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Remarks by the Minister of Justice and Correctional Services on the occasion of the Department of Justice and Constitutional Development Strategic Planning Session at Diep in die Berg, 15 August 2019

DEPUTY MINISTER JOHN JEFFERY;
DIRECTOR GENERAL MR VUSI MADONSELA
THE EXECUTIVE MANAGEMENT TEAM OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT;
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS ADVOCATE SHAMILA BATHOI AND THE COLLECTIVE MANAGEMENT TEAM AT THE NATIONAL PROSECUTING AUTHORITY
LEGAL AID CHIEF EXECUTIVE OFFICER, VIDHU VEDALANKAR
LADIES AND GENTLEMEN                                                                    

We have gathered here to partake in a very critical process, at a time in which history will call upon us to account for our actions. I stand before you, with a fresh electoral mandate. The mandate is emphatically clear, there is no time to talk anymore, it is now an era of action. Everyone must put their shoulders to wheel, this entails growing the economy, embracing technology with speed and fighting corruption. Service delivery by this department must bring a reality to the notion of access to justice for all and this must become a lived reality of all our people.

What we must understand is that our democracy, will not flourish if this department does not fulfil its mission.
Deputy Minister, in preparing my input for this session today, I came across a Latin phrase, Respice Aspice Prospice, in English this simply means "Look at the past, look at the present and look to the future". In many ways, this goes to the core of defining our strategic objectives as a department. Put differently, how has the department impacted the lives of South Africans, how will it continue to do so and how will it impact citizens in the future. All of this is based on the assumption that we are actually impactful.
I say this because in order for us to move forward, we must look at the past. And by the past, I am not referring to our colonial past, but our recent past. I have come across a report of a joint parliamentary committee, on the improvement of the quality of life & the status of women. The committee received a briefing by the late Dullar Omar in 1999. Ironically the meeting took place on the 9th of March which happens to be International Women’s Day, the Minister at the time was asked by the committee:
There have been many debates on women abuse statistics. How does one develop a culture of Women’s Rights as part of Human Rights?

Responding to this question the Minister said, “Surveys indicate that reporting of crimes against women has increased. On the question of creating a culture of Human Rights; this is an issue that will surely need to be addressed, but due to time constraints, only in the future.”- As we celebrate Women’s Month, I cannot help but ask if I was asked this question in parliament today, would I be able to give a comprehensive response? What have we implemented as a department which gives the impression to society that women’s right are human rights.

Upon further reading I discovered another question directed to Minister Omar:
Regarding customary law, no mention is made of Muslim marriages, why is that?

The erstwhile Minister said; “Draft legislation has been prepared and will hopefully be presented by the next session on the issue of religious marriages. The Department works on the basis of the constitution. Attitudes which promote the undermining of the Constitution cannot be supported.”
Again I am left asking if I was asked this question tomorrow, would I probably not give the same answer?

From afar, one could say this department has been giving the same answers to critical issues which affect the lives of our people over the last 25 years. Year in year out, we have gathered as a department on many occasions to devise a strategy which is couched in nice terminology and beautiful presentations but yet there is virtually close to nothing we can show of in terms of implementation on these issues. In our democratic journey of 25 years, this is the tale of our government, great plans, brilliant ideas but little impact on society.

Director General, we have to change the way we do things. We cannot leave this department the same way we found it. Victims of sexual offences and gender based violence are looking upon us for solutions. Women in Muslim marriages have their hope on this department to transform their lives. In this era,  we are the implementation agency in the fight against corruption.

We are called upon to restore the moral fibre of society. For this to happen, we need an action plan which can be monitored. It is one thing for us to say our plans are in line with NDP 2030, but are we able to take the public into our confidence with clear indicators on how far we are in terms of fulfilling this vision.

In some quarters, the department has played some role in driving change in our Constitutional democracy, although most of the Apartheid era orientated legislation remains largely entrenched.

We have done well to enact legislation like Promotion Of Equality And Prevention Of Unfair Discrimination Act 4 Of 2000, Promotion of Access to Information Act 3 of 2000 and Promotion of Administrative Justice Act 2 of 2000. These types of legislations have given full expression of the type of society we want to live in, as per the vision of our forebearers.

In everything that we do as a department, I expect us to be an embodiment of the Constitution. After all our department is where the constitution resides. We must live and breathe the constitution, especially us as people who are highly skilled and knowledgeable. The quality of the work we produce must inspire confidence in all government spheres. It cannot be that our department is found wanting in the courts on constitutional grounds.

It cannot be that our department briefs counsel without providing comprehensive research on the matters which we intend litigating on. We cannot continue to allow government as a whole to carry a reputation of being bad litigators yet the State Attorney resides with us. The State Attorney must become a centre of excellence and an instrument of transformation. It must be an institution we pride ourselves in as a country.

We cannot afford to delay transforming the Office of the State Attorney and we will not be undaunted by the resistance towards transformation in the legal profession. We need to broaden our briefing patterns for them to demonstrate inclusivity and demographics of our country so that we can correct the uneven and biased distribution of government’s legal work. We earnestly need to address the continued exclusion of women attorneys and advocates and previously disadvantaged law firms.

Benjamin Berell Ferencz, a former investigator of Nazi War Crimes after World War 2, once made a correct observation that: There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstances.
25 years into democracy, we need to ask ourselves as the department, how efficient and accessible are our courts countrywide. We cannot afford to continue lamenting about delays in the finalization of cases before our courts due to breakdown in equipment, poor maintenance and lack of adequate security.

We need to implement a turn-around strategy that will improve efficiency levels in our courts and we must work together with the Department of Public Works on our maintenance plans and we must explore the possibility of involving the Department of Correctional Services to assist us with minor maintenance and upkeep of existing courts.

We need to continue with the modernisation efforts that are before our courts and it is encouraging that the Court Recording Technology system has been rolled out to over 2000 courts across the country. We also have 146 mobile recorders that are used in periodical courts and this enable efficient recording and storage of court proceedings. We must ensure that the Master’s Online project which is scheduled to be implemented by 2020 is operational in order to improve operational efficiencies in our courts.

The approach that we have adopted in terms of publishing attorneys and advocates that we brief for departmental litigation is correct but we need to strategize on how we can impress upon other departments and spheres of government to broaden their briefing patterns. Maybe we need to work towards a transformation charter within the legal profession for both the public and private sectors as not only are briefings skewed in government, but there is a lot exclusion in the private sector.

The Department must also introduce a debate of curbing litigation costs in the country as economic disparities often deprive poor people from accessing justice. It is imperative that we address shortcomings in terms of accessing legal assistance provided by Legal Aid South Africa taking into consideration that economic classifications exclude a large section of society who are deemed not to be poor enough to be granted services of legal aid whereas reality dictates that they cannot afford  exorbitant litigation costs. The Strategic Planning should look into developing strategies that can respond to this challenge as our people cannot rely on pro bono services as that is not sustainable.

We received mixed reactions when we announced that the National Prosecuting Authority was under a huge financial constraint and that there was a need to seriously consider private donor funding as long as such funding does not compromise its independence.

We have correctly announced that we were engaging the National Treasury to ensure that private donors intended for the NPA  allow the institution to be insulated from any form of perceived or real comprise of its mandate. The  views that were articulated around this matter of donor funding towards the NPA was informed by the fear of manipulation of prosecutorial decisions and we want to once more express our assurance of the independence of the NPA.

We will continue supporting and creating an environment for them to do their with work without fear or favour guided by the supreme law of the country, our constitution. We implore upon the leadership of the NPA to vigilantly pursue those who have looted our resources and enabled state capture and make sure that they face the full might of the law.

The integrity of the NPA has been correctly questioned due to past conduct of some of the leaders of this institution and we hope it will be a thing of past under the new leadership. We cannot afford to have such an institution engulfed in actions that undermine the criminal justice system. The NPA is an integral part of our states ability to reinforce the rule of law in society. It must be given the resources, and the prosecutorial space to restore our moral compass as a nation.

Programme Director, we want to see the Criminal Justice sector embracing the technological revolution that is unfolding in most parts of the world. It cannot be business as usual where we are forever paper driven. We need to adjust to the new wave of technological disruption that must enhance our work.

Director General, let me pause here, and ask about one of the major projects I have heard the department championing strongly, the Integrated Criminal Justice System, and I too have been really excited by this project. But to my surprise, the departmental records show that this program has been on the cards since 2007 when I had just completed my tertiary education. Furthermore, since the introduction of this concept, the nation has had four Presidents and numerous Ministers have come and gone, but yet this ICJS is still a concept. Our Criminal Justice system is still under construction, the criminal procedure Act is still in reflecting apartheid characteristics. The question then is, despite there being plans in the department which are 11 years old or more, what stops us from implementing? Is it incapacity or a lack of commitment?

We will soon run out of storage facilities for all the paper that dominates our profession, elsewhere, the legal profession is already visualizing how artificial intelligence, block chain and autonomous machines and bio engineering can assist their courts. We must not be afraid to enter into this space and identify methods that can make our work much easier as failure to adopt to technology will lead to catastrophic effects towards meting out justice as criminals are far advanced in terms of technology.

Courts must continue to be sites of justice, as well as service delivery. When a woman who is victim of sexual offence interacts with the justice system, she must be enticed by the prospects of recourse and not re-traumatisation. From the guardian fund to resolution of estates, the most vulnerable in our society must have positive experience with our court services.

As the sixth administration, we have resolved to deal with problems of corruption, state capture and the types of misconduct that have given rise to public outcries and impacted negatively on the economy and society. We must hold people accountable and those who enrich themselves through corruption must face the full might of the law. We expect this department to move from talking and planning but towards implementing our policies that we have been long strategizing about.

Time of talking is over and we want implementation as talk is cheap as they say. Those who do not implement our plans must know that there will be consequence management in the department as we cannot tolerate under performance and laziness. In the beginning of my address I started out by proclaiming, that I stand before you with a new mandate.

As I conclude I would like to share with you what Former President Mandela said, on the day our Constitution was adopted, he said, “We have a commitment and a mandate from the overwhelming majority of our people in this country to transform South Africa from an apartheid state to a non-racial state, to address the question of joblessness and homelessness, to build all the facilities that have been enjoyed for centuries by a tiny minority. We want men and women who are committed to our mandate, but who can rise above their ethnic groups and think in terms of South Africa as a whole.”
In this administration I want to see action, I want to see commitment, I want to see us making the Constitution a lived reality. Let us put our shoulders to the wheel.

I thank you

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