Address by Jeff Radebe, MP, Minister of Justice and Constitutional Development, on the occasion of the Justice Budget Vote (Vote 24) Debate, Wednesday 29 May 2013, National Assembly, and Parliament
Distinguished Members of the Judiciary
Heads of Constitutional and statutory bodies
Comrades and Friends
Ladies and Gentlemen
It is almost 20 years since South Africa chose the path of democracy in contrast to that of self-destruction to take up its rightful place amongst the international family of nations. In less than a year South Africans will be heading to the polls to elect the fifth government to continue the journey that we started in 1994. Not only has this new nation freed itself from the shackles of more than three hundred years of colonialism and 4 decades of apartheid misrule, but have also embarked on journey of laying down a legal framework for a just order as underlined by our Constitution.
Just four days ago, on 25 May 2013, South Africa and the rest of the Continent celebrated the 50th anniversary of the establishment of the Organisation of African Unity (OAU), the predecessor to the African Union. The commemoration is of significance to South Africa in particular as the de- colonisation of Africa and the demise of apartheid rule in South Africa was part of its primary focus. Half a century later, the Continent has been de-colonised. As we forge ahead with the African Renaissance, we are reminded of the wise words by one of the continent’s iconic freedom fighters, Dr Kwame Nkrumah, when addressing the OAU in 1964, he stated: (and I quote)
“….the struggle against colonialism does not end with the attainment of national independence. Independence is only the prelude to a new and more involved struggle for the right to conduct our own economic and social affairs; to construct our society according to our aspirations, unhampered by crushing and humiliating neo-colonialist controls and interference.”
Today, I, as a proud South African and an African, am greatly honoured and privileged to present before this Honourable House and all South Africans the budget of our extended Justice Family. I do so, on behalf of the Department of Justice and Constitutional Development, the Office of the Chief Justice and the entire Justice Family. I also renew our pledge, as servants of the people - to endeavour to protect and promote the right to freedom and security of all persons, to uphold and defend the rule of law in our quest to ensure that All in South Africa are and feel safe. We reaffirm our commitment to building a safer South Africa during Child Protection Week. Children are our future and like our fledgling constitutional democracy, they deserve to be treated with the utmost care.
Our Constitution is an embodiment of the values and ideals of the
Freedom Charter which were shaped and championed by the African National
Congress during its 100 years of selfless struggle for freedom and
justice. Our country’s transition from a bleak past
to a bright future has been phenomenal. During this transition
spanning over 19 years, Parliament has enacted 1 294 laws (Acts of
Parliament) while the magnitude of policies adopted and implemented
by the Executive is beyond imagination. These laws and policies
have been translated into strategies, programmes and plans that give
effect to the transformative goals in our Constitution. It is
through these programmes of the ANC-led Government that today millions
of our people are able to enjoy the rights in the Bill of Rights, including
the right to equal protection and benefit of the law; housing, basic
education, health care, water and social security. At this time
of the budget debates this House is inundated with statistics and figures
showing the strides that we as a country have made, changing the lives
of our people. The facts are there for everyone to see.
We continue to put measures to enhance the capacity of Government to deliver on its constitutional mandate. I am pleased that that Government, through the Ministry of Performance Monitoring and Evaluation, has initiated a research to assess both the gains we have made and challenges we have encountered in the past 19 years of democratic rule. The assessment on the impact of the decisions of the Constitutional Court and Supreme Court of Appeal will complement the initiative of Government to give South Africans a holistic picture of how far we have progressed as a country. I am pleased to announce that the process relating to the appointment of a suitable research institution to conduct this important exercise is nearing completion. It is anticipated that a preliminary report of the assessment will be completed by 31 March 2014.
As the ANC-led Government, and indeed as a democratic State, we are not basking in the glory of our successes, but we continue to tackle challenges of unemployment, inequality and poverty which still persist. Our icon President Nelson Mandela warned us, when addressing the Campaign to Make Poverty History in London’s Trafalgar Square in 2005, that, and I quote:
“Like slavery and apartheid, poverty is not natural. It is man-made and it can be overcome and eradicated by the action of human beings. And overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of a fundamental human right, the right to dignity and decent life. While poverty persists, there is no true freedom” (Close quote).
In advancing its progressive agenda, the ANC at its 53rd conference in Mangaung adopted a fundamental and radical shift towards economic transformation. Our Government, anchored by the Legislature, the Executive and the Judiciary as its three equal branches, is solid and unshakable. The autonomy and territory of each Branch is safeguarded by the separation of powers and the rule of law entrenched in our Constitution. The proclamation, by our President, of the Office of the Chief Justice as a separate entity from the Department of Justice and Constitutional Development in 2010, affirms the ANC commitment to the independence of the Judiciary.
This year we shall be commemorating the legacy of injustice as caused by the draconian Land Act of 1913. The Constitution provides a framework for individuals and communities dispossessed of their land to be restored to their land or to equitable redress. We look to our courts to develop jurisprudence to guide us regarding the interpretation and implementation of the provisions of the property clause in our Bill of Rights. It is for this reason that we have, through the Department of Rural Development and Land Reform, proposed legislative amendments that will enable the Judicial Service Commission to recruit judges who possess appropriate skills and the required judicial philosophy to redress the devastating effects of land dispossession. I am pleased that my colleague in the Ministry of Rural Development and Land Reform is pursuing these amendments.
Of the 1 294 Acts passed by Parliament since 1994, 148 are attributed to the Justice sector. These Acts focus mainly on the following pillars of the Justice system, namely:
- Building and strengthening state institutions that support our constitutional democracy;
- Transforming the judiciary and the justice sector broadly;
- Fighting crime and corruption; and
- Broadening/Widening access to justice.
I will now reflect briefly reflect on these four pillars before outlining the budget allocation to our different programmes.
Democratising the State and its institutions is one of the hallmarks and imperatives of our constitutional democracy. In our Justice environment, the amalgamation of the 11 erstwhile separate and fragmented administrations of Justice are the highlights of our successful transition to democracy, which laid down the foundation for further institutional reform. A strong and legitimate body of state machinery was created to promote and advance access to justice. These include the Office of the Public Protector, the South African Human Rights Commission and the Legal Aid South Africa. Through these bodies, many of our people are able to enjoy the rights enshrined in our Constitution. These constitutional bodies, together with the courts of our land, all embrace our common adage that permeates the entire justice sector, namely that “Justice delayed is Justice denied”.
The ANC-led Government has introduced radical reforms which are aimed at strengthening the Judiciary as a separate Branch of Government. The Constitution Seventeenth Amendment Act which the President assented into law in February this year has broken new ground in our judicial landscape. These amendments confer, on the Chief Justice, the authority to lead and guide the performance of judicial functions by all judicial officers. The Constitution now enjoins the Chief Justice to develop standards for the performance of all judicial functions. These standards, which will be made public, will address challenges caused by long postponements and delayed judgments which clog court rolls at our courts. With the implementation of these amendments, the Judiciary will have the necessary armoury to drive case flow management.
These amendments also put beyond any doubt, the position of the Constitutional Court as the Apex court in the Republic. It can now hear any matter under any law that raises an arguable point of law of general public interest. When these amendments were initiated, it was argued by some who sought to sow confusion and mistrust amongst South Africans that Government introduced these amendments in order to curtail the powers of our Constitutional Court. On the contrary, the amendments put the Constitutional Court firmly on the driving seat of our jurisprudence across all facets of the law. It is at the level of the Constitutional Court that the delicate power of judicial review, embodied in our Constitution, ultimately resides. Honourable Members will be interested to know that since 1994, the Constitutional Court has declared only 17 provisions of different Acts of Parliament unconstitutional. This translates to less than 1, 6 % of all legislation passed by this Government since 1994. This is a drop in the ocean and affirms that under the ANC-led Government our democracy is in safe hands.
Transformation of the Judiciary
We have made significant strides in our quest to transform the judiciary. Today 61% of judges (generic) are black compared to only one black in 1994. Similar progress has been made in addressing race and gender imbalances in the magistracy. Of the 1661 magistrates, 974 are black and 687 are white, 647 are women and 1014 are men.
We still face challenges regarding the appointment of women judges. Out of 239 judges only 76 are women. This is a matter of grave concern to Government and the Judicial Service Commission in particular, which plays a significant role in the appointment of judges. It is also disturbing to observe that the debate regarding the slow pace in appointing women judges is raised alongside that of White male judges. Let me put the record straight: Out of a total of 311 judges appointed since 1994, 113 are White males compared to 76 women judges. This shows that White males outnumber women in the appointment stakes thus far. Drastic steps are needed to replenish and nourish the pool from which female judges can be appointed. The challenge does not lie with the dispensation of silk or Senior Counsel as some argue, but with the transformation of the legal profession broadly speaking and also the general gender transformation in society at large. Of the 5708 enrolled advocates only 1841 are women, whilst there are 7 477 female attorneys from a total number of 21 463.
It is also important to remember that prior to 1994, it was policy to appoint judges from silks (Senior Counsel). This explains the reason why the bench remained predominately White and male. We still have appalling statistics regarding silks today. Of the 473 silks, 402 are White (382 White males and 20 White females) while 78 are Black (generic) (namely 69 Black males and 9 Black females). Only 58 of the 311 judges appointed since 1994 were drawn from the ranks of senior counsel. If the emphasis was on Senior Counsel we would still be lagging far behind. The requirement of “fit and proper person” in our Constitution has opened opportunities to people of color to pursue a career on the bench. Therefore the Constitution is an indispensable weapon to remove barriers and prejudices that disqualify women from being appointed to judicial office.
From the department’s side we have taken bold steps by increasing the allocation of briefs to legal practitioners from Previously Disadvantaged Individuals from 65% which we set for ourselves last year to 70% this current financial year. We are optimistic that our target will benefit more women, despite the underrepresentation of women in the legal profession broadly which as I have said, owes its origin partly on the general untransformed patriarchal society. There is no doubt therefore, that as we ensure equitable women representation in the judiciary, we will be enormously contributing towards transforming the patriarchal society which remains oppressive to women.
I am pleased that, as we debate this issue, there is an on-going debate taking place at the OR Tambo Southern Sun Hotel on the transformation of the curriculum of the LLB degree. I hope that this workshop, which I had planned to address had it not been for today’s occasion, will come up with tangible proposals to fast track the transformation of the profession. We also anticipate that Parliament will finalise the Legal Practice Bill as soon as possible. This Bill, amongst others, seeks to overhaul the current structure of the legal profession which is inherently prejudicial to any woman who wishes to pursue a career as lawyer.
Strengthening the Criminal Justice System
Compatriots and Friends;
We have, in the Justice Crime Prevention and Security Cluster, changed the ways in which we approach the fight against crime and corruption by working as a formidable team. We have also forged strong partnerships with our social partners and civil society. As Cluster Departments and security agencies, we have achieved more than what each of us would have achieved individually. This is evidenced by the realisation of the 7 outputs of the Cluster, namely:
- The significant reduction of serious crime;
- the Criminal Justice System (CJS) is functioning more efficiently,
- corruption is being dealt with severely in a focused manner,
- the perceptions of the public about the work of the Cluster is improving,
- border management has been prioritized,
- the population registration system has been improved, and
- a safe cyber space has been made a focus area.
The concerted efforts of the Special Investigating Unit (SIU), the Anti-Corruption Task Team (ACTT), the Asset Forfeiture Unit and the Hawks, have made notable progress in our quest to combat corruption in the public sector. The work of these agencies complements efforts of the Department of Public Administration of South Africa (DPSA) and other entities outside the public sector such as Corruption Watch which aim to rid the country of corruption. Not only does corruption erode the fruits of our hard-earned democracy, but it also tarnishes our good name locally and internationally and discourages foreign investment. The SIU currently has 25 active proclamations - 10 arising from national government incidents, seven from provincial government incidents, six from local government incidents and two from state-owned enterprises. Investigations in relation to seven proclamations were finalised in the 2012/13 financial year. Another 15 are envisaged for finalisation in the 2013/14 financial year and 10 in the 2014/15 financial year. These include the investigation of 481 incidents of serious corruption which were recorded in the 2012/13 financial year and more than 758 persons are currently under criminal, financial and/or forensic investigation. The Asset Forfeiture Unit (AFU) completed 302 forfeiture cases in the past financial year, with a value of R118, 4 m. The success rate of the AFU in this period was 94.1% (289 cases). In addition 276 new freezing orders were obtained for the past financial year to the value of R518 m.
The President is giving due considerations regarding the filling of
the positions of the NDPP and the Head of the SIU. I will discourage
against speculations until appointments have been made by the President.
Honourable members and fellow compatriots;
I had undertaken to release the names of persons who were convicted of serious acts of corruption. We believe that the naming and shaming of those who in turn shame the good name and integrity of our beloved country will have a deterrent effect. The names of 33 convicts will be released on 9 June 2013.
Let me also highlight some of the rigorous steps that we, as the JCPS cluster, are taking to root out gender-based violence. We have adopted a zero-tolerance towards rape, violation of the rights of Lesbian Gay Bisexual Transgender Intersex (LGBTI) and other forms of violence targeted against our mothers and daughters. We have, after engaging with Regional Court Presidents, identified 57 regional courts across the country that are dedicated as sexual offices courts. These courts most of which are already operational, will be announced by the middle of June 2013. We have allocated a separate budget in our 2013 MTEF to increase the capacity of these courts. The earmarked budget will be used in particular for the following:
- the creation of posts of additional regional magistrates’ posts to increase the capacity of these courts
- appointment of additional personnel including intermediaries
- skills development programmes and social context training for regional magistrates and personnel of these courts
- enhancing services of the Thuthuzela Care Centres (TCC’s) which are essential in addressing secondary victimisation. We will also mobilise more funds to increase the current number of 51 TCC’s across the country
- the installation and maintenance of the technological equipment fitted in the designated courts, such as CCTV cameras to ensure the integrity of the judicial process
We are also considering amendments to the sexual offences legislation to strengthen these courts.
Magistrates’ Courts form an important cog of our judicial system as it is where ordinary people come into contact with the justice system daily. It is for this reason that this is where the bulk of our budget and resources are concentrated. Jointly with the Chief Justice we implement programmes that are aimed at supporting these courts. One of such intervention is backlog courts. In total the Regional and District backlog criminal courts have dealt with 82 271 cases since their inception in 1996. Of these, 57 668 cases have been finalised, 21 932 withdrawn and 2 671 transferred to the High Courts.
Significant progress is being made to improve our civil justice system. As part of the Civil Justice Reform Programme, we have just published, for public comments, Court-connected Mediation Rules. These rules introduce into our legal system a dispensation through which disputes can be resolved by mediation within the precinct of our courts. Mediation has proven to be a successful form of dispute resolution in many jurisdictions. The rules will also make it possible to resolve many of the civil claims brought against government. Early resolution of these disputes to avoid the costly litigation will save Government and other litigants millions of rands. These rules will be promulgated sometime in July this year after the Rules Board has considered comments that we have received in respect of these rules. We also intend to increase the civil jurisdiction of Magistrates Courts and Regional Courts beyond their current R100 000 and R300 000 thresholds, respectively. This is with a view to widening access to justice as more people will be able to access the Magistrate’s Courts where it is cheaper and faster to obtain a legal recourse compared to the High Courts. I am also pleased to announce that the date for submission of comments in this regard has been extended to 30 June 2013.
I can report that the recent protest action orchestrated by the Judicial Officers Association of South Africa (JOASA) did not have any significant impact on the performance of our Magistrates’ Courts. Through the assistance of the Magistrates Commission, necessary measures were put in place to minimise the impact of the protest action or strike called by JOASA. We are pleased that the majority of our magistrates remained loyal to their oath of office and continued dispensing justice at their courts. We also welcome the decision of the Constitutional Court which overturned the judgment of the North Gauteng High Court which had earlier set aside the 5% salary determination made by President Zuma. The Constitutional Court found that process followed by President in determining the remuneration was rational and consistent with the law.
Before I conclude, let me now highlight some of our service delivery projects which form part of our Access to Justice Programme. Deputy Minister Nel will elaborate on the remainder of these programmes.
Construction of new courts
Yesterday, we officially opened the Ntuzuma Magistrates Court, which is the 43rd new court to be built since 1994. This magnificent court symbolises a complete break with the past. I, with the assistance of my Deputy, uncovered for our archives the reasons for the poor quality of many of the courts inherited in 1994. It is disheartening to read how specifications for courts built in rural and Black townships excluded amenities such as cloak rooms, consultation rooms and waiting rooms for witnesses on the basis that black people were perceived as sub-humans. This shows how infrastructure was used as a tool to perpetuate the segregation policies of the erstwhile colonial and apartheid regimes.
We have started to turnaround this deplorable situation. Besides the 43 new courts, we have revamped and equipped a further 24 Branch Courts and elevated them into proper courts. The outstanding 65 Branch Courts and 230 Periodical Courts have been lined-up for rehabilitation consistent with the National Development Plan. The Limpopo High Court will be completed by June 2014 and the construction of the Mpumalanga High Court is expected to commence in July this year. There are also 6 new courts planned for construction in our next three year MTEF cycle.
Maintenance and Deceased estates
From the 369 maintenance courts nationwide, the Department registers about 200 000 new maintenance complaints per annum. To reduce the maintenance queues at our courts we have installed technology to process payments through Electronic Financial Transfers (EFT) to replace the card-based manual system. The courts are also increasingly making orders for payments to be deposited directly into the accounts of beneficiaries.
Similarly, through the Guardian’s Fund, the Department contributes substantially to poverty alleviation. In 2012/13 the Department made 37 000 payments totalling R1,006 billion to Guardian’s Fund beneficiaries. In November 2010 the department introduced an electronic payment system reaching 92,88% of beneficiaries, reducing the turnaround time of payments and thereby limiting cheque payments with the associated risks the money not ultimately reaching its beneficiaries.
Truth and Reconciliation Commission
The total number of beneficiaries who have been paid reparations is 16 721. The number of outstanding beneficiaries still to receive payment is 111. This is an improvement, compared to 28 March 2013, when the total number of beneficiaries remaining to be paid, totaled 133.
Allow me to provide you with the budget allocations relative to the Programmes and commitments I have outlined in my address. A total budget of R16, 7 billion has been allocated to the Department for the 2013/14 financial year. Of this budget allocation R5, 8 billion has been allocated to the Court Services programme, R3 billion is for the NPA and R1, 84 billion for Public Entities and Chapter 9 Institutions. Growth in 2013/14 is driven by the following:
- The carry through cost of salary increases;
- Investment in Thuthuzela care centres;
- Major investments in IT upgrades and systems development as part of the CJS (Criminal Justice System); and
- Additional capacity for Legal Aid, the Office of the Public Protector and the South African Human Rights Commission over the MTEF period.
Savings, totalling R230 million in the MTEF period financial year, have been identified in selected goods and services items, by reducing spending in advertising, communication, catering and entertainment, stationery and printing, travel and subsistence, venues and facilities, which have funded the following policy priorities:
- Commissions of Enquiries: Strategic Defence Procurement Package and the cost of finalising the Marikana Commission in 2013/14.
- Assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on South African law and jurisprudence.
- Transformation of State Legal Services.
The 2013 Budget sets out the following:-
- Additional allocations of R300 million in the 2013/14 financial year, R400 million in 2014/15 and R450 million in 2015/16 for investments in IT upgrades and systems development as part of the CJS revamp;
- funding improvement on conditions of service in the Department, the National Prosecuting Authority; Chapter Nine Constitutional Institutions and the public entities (SIU and Legal Aid South Africa);
- additional funding over the MTEF period to increase capacity in legal aid (R45 million), the Public Protector (R24 million) and South African Human Rights Commission (R24 million).
Over the next 3 years, the Department will spend R3,1 billion on the construction of courts and other infrastructure projects. A further R96 million will be spent on day to day maintenance and R291 million on the rehabilitation of court facilities.
An amount of R249 million has been earmarked in 2013/14 for DOJ&CD, NPA and Legal Aid South Africa for the reduction in criminal case backlogs in regional and district courts.
In 2013/14, the Department envisages spending R1,9 billion on Public Prosecutions, R159 million on witness protection, R116 million on Asset Forfeiture, R305 million on the Special Investigating Unit and R1, 36 billion on Legal Aid. In support of the constitutional institutions, the Department will transfer R116 million to the South African Human Rights Commission and R199 million to the Public Protector.
Honourable members, this Budget that is presented here today reflects our firm commitment towards achieving the various goals that we have set for ourselves. It is the blue print against which we will be assessed as to the strides we are making in ensuring access to justice for all our people and that all our people are and feel safe.
Let me convey our profound gratitude to the Chairperson of the Portfolio Committee and his entire committee for their continued and support and guidance.
Please allow me to thank my Deputy Minister, Mr Andries Nel, for his continued sterling support, my colleagues in the JCPS Cluster, Heads of Court and distinguished members of the judiciary, Heads and Chairpersons of statutory bodies for their endurance in making sure that justice continues to be dispensed to all our people who increasingly flock to the courts daily.
A special word of thanks goes to the Director-General, Ms Nonkululeko Sindane, the Secretary-General, Ms Memme Sejosengwe and their respective managements and the entire staff in the justice family for their tireless efforts.
Lastly and most importantly, I would like to thank my wife, Bridgette, and my family who are my power of strength through the many challenges I encounter in the execution of my responsibilities.I thank you.