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Speeches
Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Judicial Officers Association of South Africa (“JOASA”) Gala Dinner, held at the Kopanong Conference Centre, Benoni, 18 May 2018
Programme Director
The Chairperson of the Magistrates’ Commission, Judge President Legodi
Deputy Judge President Ledwaba
The President of JOASA, Mr Thulare
Members of JOASA
Ladies and gentlemen, friends
As you know, 2018 is the year of the Mandela Centenary, as Madiba would have been 100 years old on the 18th of July.
In his First Court Statement, in the 1962 trial, he said:
“In its proper meaning equality before the law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the case of the violation of rights guaranteed in the constitution, and the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.”
And it is this last sentence that is really applicable and pertinent to us all in the here in the room this evening –
“…. the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.”
Because at the time when he said these words, the majority of the people of this country - along with most white women as well – had zero chance of partaking in the administration of justice.
And what a terrible indictment that was.
We have come such a long way and we can and must take pride in the gains we have made since then.
Today our judicial officers reflect our society.
They are sensitive to the needs and aspirations of our people and our judges and magistrates enjoy the confidence of all South Africans.
We have made significant progress in terms of racial transformation of the judiciary, although further measures need to be taken to ensure that more women are appointed to the bench.
In this regard, we must also take into account those women who are serving as magistrates.
It is noteworthy that some 29 magistrates have become permanent judges since 2004, and of these 29, the overwhelming majority (18) are female. We are also pleased that more and more magistrates of all ranks are appointed as acting judges.
Since January this year, the Minister has already appointed 35 magistrates as acting judges, including those who have been reappointed. Magistrates are now also eager to do both civil and criminal work, as it will enhance the opportunity to be appointed as acting judges.
We must ensure that our magistracy has a sufficient number of females serving at all levels and this is an area where we are pleased to advise that we have made significant progress. Currently, of the 8 Regional Court Presidents, 3 are female and of the 17 Chief Magistrates, 10 are female.
If we look at the figures, in terms of race and gender of the magistracy over a 20-year period, we see that today 46% of the magistracy are women – up from a mere 18% in 1998. And today 69% of magistrates are Black – up from 37% in 1998.
Race and gender are also important considerations when acting magistrates are appointed, both from inside and outside the magistracy.
For example, in the 2016/17 financial year of a total of 2994 acting appointments, some 1267 females were appointed to acting positions. This amounts to 42% of appointments made.
It is, at the same time, in the appointment or re-appointment of acting magistrates, important to strike a balance between those persons who have not as yet had the opportunity to act, and those who have already acquired the necessary experience.
We have also engaged with the Regional Court Presidents and the Chief Magistrates with a view to strengthen the current contract of appointment of acting magistrates. We trust that this process, once completed, will also attract many suitable persons to act as magistrates.
I am aware that the magistracy met with the Independent Remuneration Commission (IRC) yesterday, as part of the required consultation of the annual remuneration recommendations of public office-bearers for 2018/19.
I have been informed that the magistracy raised concerns regarding the delay with the major review of the remuneration of judicial officers and that the IRC indicated that they are waiting for the relevant officials in the Presidency to approve the appointment of the successful bidder of the tender, where after work can commence. We will take it up with the Presidency with a view to expedite the appointment.
Often our magistrates are the very face of the law, as our Magistrates’ Courts are at the forefront of people’s interaction with the law and the justice system – a justice system which speaks to the needs of our people.
One of the matters that both the Regional Court Presidents Forum and the Chief Magistrates Forum, which meet quarterly and which I am invited to attend, raised is the level of communication, the support and the timeous response from, for example, the Court Managers, the Regional Heads and officials at National Office to the day to day and other challenges raised by the Heads of Courts.
Some of these matters, such as interpreters, intermediaries, court equipment and infrastructure, impact severely on the performance of the courts and we should do more to constantly monitor the status and progress in this regard.
It is, in our view, an absolute imperative that court officials and officials at our regional and national offices attend to any of these challenges without delay, as it not only affects the performance of the courts, but also impacts on other role-players, such as the public.
The term “single judiciary” commonly refers to a process through which the magistrates’ courts and magistrates are integrated to form part of a unified court system. This is what is envisaged in our Constitution.
This unification is informed by the history of the judicial system which provided for a hybrid system in terms which judges enjoyed a larger degree of independence, compared to the magistrates.
Freeing the magistracy from executive control has been a gradual process. The Department of Justice and Constitutional Development is making progress in developing draft legislation aimed at replacing the Magistrates’ Court Act, 1944 and the Magistrates Act, 1993 to introduce a modern statutory framework for the Lower Courts and its judiciary.
The Lower Courts Bill will replace the Magistrates’ Courts Act of 1944, this aligns the administrative provisions relating to the courts with the model introduced by the Superior Courts Act.
The Magistrates Bill will replace the Magistrates Act of 1993 and one of the objectives will be, as far as it is possible, to align the misconduct proceedings, including the suspension and removal from office of magistrates, with that of the judges Provision is also made for the declaration of “registrable interests”, similar as those in the case of judges.
One of the other matters of interest to the magistracy is the progress with the Regulations for (1) the requirements for the appointment of magistrates, (2) leave, and (3) a code of conduct that have been recommend by the Magistrates Commission at the end of November last year and submitted to the Minister for consideration.
It is envisaged that the regulations on the appointment of magistrates and the code of conduct will be promulgated during July 2018 and will bring to a close the current “probation period” for newly appointed magistrates as well as appointments to the Regional Court, that are still reminiscent of that of public servants.
The Regulations for leave will take a bit longer to promulgate as it is currently subjected to a Socio-Economic Impact Assessment (SEIAS) where after it will be submitted to the Minister of Finance as it has financial implications.
Magistrates will now have to take their annual leave within a 3 year cycle and this will enable you to take a much longer period of leave in the last year, should you so wish, for a well-deserved rest.
Magistrates will, of course, retain the leave that they have accumulated before this Regulation comes into operation but it is, at the same time, important that the accumulated leave be audited before it is paid out.
Some have asked why the Bills are taking so long.
But as you know, laws – much like certain judgments I would suppose – take time.
And it vital for us to ensure that we have the views of the magistracy and that we have properly considered these views.
I have recently had a second meeting with the leadership of the magistracy on both draft Bills, which some of you have attended, and have now also received their preliminary comments on the Bills. The Bills will now be further refined.
I would like to convey our appreciation to the magistracy for their contribution as this will now enable us to consult and engage with the Chief Justice on these Bills.
In an address delivered by the Chief Justice he highlighted three points that have been identified as the main features of a single judiciary, namely:
• The establishment of a single governance framework for judicial officers of the superior courts and the lower courts under the Chief Justice as the head of the judiciary.
• The application of a uniform complaint-handling mechanism.
• Streamlining the courts to establish a unitary court system, which consists of superior and lower courts, in accordance with the hierarchy of the courts envisaged by the Constitution.
We believe that the new legislation will take us a step closer to achieving this.
The magistracy is a vital part of our justice system – our lower courts are just as important as our high courts. If our lower courts fail, the justice system fails.
If the public lose faith in our lower courts, they lose faith in the entire justice system.
A strong and independent magistracy is fundamental to the rule of law. And well-functioning and accessible lower courts are crucial in ensuring access to justice and upholding our fundamental freedoms.
As Cicero said:
“The magistrates are the ministers for the laws, the judges their interpreters, the rest of us are servants of the law, that we all may be free.”