B Mabandla: Justice and Constitutional Development Dept Budget Vote
2006/07

19 May 2006

Madame Speaker,
Honourable Ministers and Deputy Ministers,
Honourable members,
Distinguished members of the Judiciary,
Eminent friends and partners of the Department,
Comrades,
Ladies and gentlemen,

Introduction

As we celebrate a decade of our Constitution, our task is to continue to
translate the provisions of the Constitution into a living reality during our
‘Age of Hope.’ Given the impressive progress and our achievements in the last
decade of our Constitution, our task is to consolidate this progress. In his
State of the nation address in February this year, President Mbeki pronounced
that: “We have known that it would take considerable time before we could say
we have eradicated the legacy of the past. We have expected that the
circumstances handed down to us by our history would indeed condemn us to a
‘petty pace’ of progress towards the achievement of the goal of a better life
for all.”

Honourable members,

We cannot afford to rest on our achievements but need to vigorously continue
with the unwavering commitment to the pledge we made that “South Africa belongs
to all who live in it, united in our diversity”. The transformation process
that we have embraced is intended to fulfil this undertaking. This commitment
has in the last 10 years of freedom, afforded an ever expanding mass of our
people greater access to justice.

All our activities as we seek to meet these challenges and our budget
expenditure over the next three years will be guided by the following strategic
goals:

* access to justice for all, especially the poor and vulnerable
* transforming justice in line with the democratic values of our national
Constitution
* enhancing organisational efficiency and the integration of quality services
to make them simpler, faster and cost-effective.

1. Access to justice for all

Honourable members,

We take very seriously our obligation to ensure that access to justice does
not become the sole preserve of those able to hire the services of a lawyer. As
a Department we are continuously seeking innovative ways to ensure that all
South Africans have access to quality justice. Failure to improve access to
justice for all especially the indigent would be an unforgivable betrayal of
the poor and vulnerable in this country. But worse still it would undermine one
of the founding principles of our Constitution that of access to justice. In
our efforts to ensure access to justice for all, we are inspired to do more by
the observation made by former Chief Justice, Ismail Mohamed who said; “The
Constitution has eloquently repudiated the racist foundations upon which that
past was premised in ringing terms but it cannot itself repudiate or reverse
the cruel consequences of that past which manifest themselves in massive
disparities in the socio-economic conditions of different communities.”

Our Constitution also guarantees the right to equality before the law for
every one. This means that all South Africans are equally entitled not only to
recourse to the law but also to the full information so that they can
understand their constitutional rights. Access to justice embodies more than
just the issue of legal representation in formal court proceedings but the
notion is also about the proximity of justice facilities to citizens and their
communities, length of court proceedings. It is about language, gender and
victim support measures as well.

Judiciary

Madame Speaker,

Last year we bid farewell to the former Chief Justice, Arthur Chaskalson,
who retired and welcomed the new leadership of the judiciary with the
appointment of Chief Justice Pius Langa and Deputy Chief Justice Dikgang
Moseneke. I am pleased that we are bound by a commitment to the transformation
of the judiciary for the common good. Together with the leadership of the
judiciary, we are fully committed to policies that ensure that qualified and
deserving black candidates in particular women receive an opportunity to serve
the country in leadership within the judiciary and the legal. In this regard, I
also want to congratulate new judges who have been appointed to the bench this
year, Justice BE Nkabinde, who is the third woman judge to be appointed to the
Constitutional Court, Justice MML Maya, the first black and third woman judge
of the 22 member bench of the Supreme Court of Appeal, Justice MML Maya, Judge
JP Levinsohn, the Deputy Judge President of KwaZulu-Natal High Court and Judges
L Molopa and C Pretorius who have been appointed to the Pretoria High
Court.

I am pleased that the leadership of the judiciary is considering the
training of women candidates to enhance their opportunities for appointment to
the bench as a priority. My Department and the judiciary have in this regard
established a task team to collectively develop a framework for judicial
education. I am expecting the task team to submit concrete proposals soon to
enable the Department to develop legislation required by the Constitution.

On 5 May 2006 the Department hosted the largest ever forum for women lawyers
in South Africa, at which a women’s law association was established. I am
advised that the formal launch of the association will take place sometime this
year. I am hopeful that this association will develop programmes that address
issues that impede the advancement of women in the legal sector.

Vulnerable groups

Honourable members,

President Mbeki in his State of the Nation address in February said, “I
believe that the very fact that this year we will celebrate the 50th
anniversary of the Women’s March underlines the need for us to ensure that
these issues receive the necessary attention in the implementation of our
development programmes.” In line with government’s efforts to improve the
livelihood of members of vulnerable groups such as the disabled, the elderly,
children and in particular poor women, the Department will continue to
implement programmes to enhance their access to justice.

To ensure that we deal effectively with the horrific crimes against women
and children and that the victims are treated with respect and dignity, we have
developed strategies and several programmes to improve the management of sexual
offences cases.

As you know in sexual offences cases children are usually severely
traumatised and in need of specialised and trained guidance in order to prepare
them for court. To date, more than 50 000 victims have been prepared for court
by 66 court preparation officials employed by the National Prosecution
Authority (NPA). The NPA will formalise the court preparation programme in the
next financial year and will broaden the programme to all sexual offences
courts and adult victims over the next three years.

Most of the Department’s programmes such as an effective maintenance system,
capital works and services offered by the offices of the master have the
potential to contribute significantly to poverty alleviation. In respect of the
masters’ office, there was an average annual growth of about 24 percent in the
funds of the Guardians Fund in the last few years. It is pleasing that during
the month of January this year we had our first electronic transfer of funds
from the guardians fund at the office of the master in Kimberley to various
beneficiaries. Funds are now being transferred directly into the banking
accounts of the beneficiaries and the use of cheques is being minimised. The
success of this project has shown us that this programme can be extended
countrywide. In respect of estates, it is therefore critical that we ensure
that estates both deceased and insolvent estates are promptly wound up so that
proceeds there from can be distributed to beneficiaries as quickly as
possible.

The Legal Aid Board has been critical in our efforts to ensure access to
speedy, quality and affordable justice for all. I am pleased to announce that
during the 2005/06 financial year, the board is working together with the
Department of Correctional Services to ensure legal aid for persons awaiting
trial in custody. The significance of this project is that it places emphasis
on addressing the needs of children awaiting trial.

We will therefore continue to prioritise deliverables relating to access to
justice for vulnerable groups. Some of these include:

* Implementation of relevant legislation and enabling policy, for example,
accelerating the finalisation of the Child Justice Bill. I am also pleased that
Cabinet has approved the Sexual Offences Bill and it will be placed before
parliament soon.

* Ensuring assistance from prosecutors and public defenders for child
maintenance cases;

* Enforcing the right of children to receive support from earning
parents;

* Prioritisation of child justice and all cases involving children,
especially those in prison awaiting trial.

Madame Speaker,

I want to take this opportunity to deal with important matters that arise
from the TRC recommendations. In January this year, the NPA announced
prosecutorial guidelines dealing with offences that emanated from conflicts of
the past and which were committed before 11 May 1994. I am informed that the
NPA is seized with the matter. I am further advised that it will make
appropriate decisions after considering inputs of relevant stakeholders. In
addition, following extensive investigations, the NPA also located and exhumed
last year, the remains of 23 persons.

Court Services Programmes

Madame Speaker,

As the custodian of the dispensation of justice, the Department’s focus in
ensuring access to justice is reflected in the deliberate shift in the
allocation of resources and facilities in favour of rural and previously
disadvantaged areas. The total budget allocation for the department for the
current financial year is as follows:

A total budget of R208 000 million in our capital works programme was spent
during 2005/06 on the construction of new courts and additional court rooms to
existing courts. Of the 10 major renovations projects undertaken, six were in
the previously disadvantaged and rural areas.

A total budget of R7 312 545 billion is allocated to the Department for the
2006/07 financial year. Of this budget allocation, R1 535 562 billion is
allocated to the NPA, R2,4 billion to the court services programme and R986
million is for the chapter nine institutions. An amount of R308 million was
allocated for capital works in this financial year. As a result of continuous
and careful planning the budget for capital works is fully committed and 100
percent spending is anticipated in the current financial year. The capacity at
the courts includes the employment of additional magistrates and 500
prosecutors. These will be assigned to these new and other deserving
courts.

Honourable members,

The NPA has attained its target to finalise five percent more cases in the
last financial year. The number of cases that were diverted from the criminal
justice system more than doubled this year from an average of 1 208 cases
diverted per month in 2004 to an average of 2 800 cases per month in 2005.
Diversion will thus remain one of our priorities for this financial year. This
implementation of the diversion programme has seen a total of 89 425 children
avoiding the punitive justice system from 1999 to date. This is line with our
efforts to provide a more caring and humane justice for children in conflict
with the law.

The lower courts also attained an excellent conviction rate of 85 percent in
the 2005/06 financial year; thus attaining our target in the district courts. A
higher percentage of cases in the district courts are dealt with within a
period of six months. The case cycle times in the lower courts have increased
from 17 percent to 19 percent of cases older than our target. This shows that
there is clearly still room for improvement.

A number of 935 commercial crime trials were finalised with a conviction
rate of 94,22 percent and with some courts averaging more than six hours per
day. The Specialised Commercial Crime Court in Port Elizabeth was officially
opened in June 2005.

In the past six years, more than R1 billion from the proceeds of crime was
frozen and nearly R100 million was paid into the Criminal Assets Recovery
Account. Cabinet will soon consider proposals on how to spend this money to
fight crime and assist the victims of crime.

Honourable members,

The courts still face the challenge of huge case backlogs. The Department is
currently conducting a study to establish the extent of these backlogs at all
courts countrywide. Information obtained from this study will be shared with
all the stakeholders to develop an integrated programme to reduce the backlogs.
This programme which we hope to implement soon will entail, among others, the
appointment of acting judges and magistrates from the ranks of retired judicial
officers and practitioners to preside in these cases.

2. Transforming justice and society

Bills on the transformation of the judiciary

You will recall that during my budget speech last year, I reported to this
House about the colloquium we just had at the time and I thought the
deliberations were fruitful. Then I stated that “The government and the
judiciary are engaged in meaningful dialogue about proposed legislation to
improve the functioning, accessibility and transformation of the justice
system… The colloquium enabled us to gather diverse and invaluable views and
comments which we will consider.”

Today there is a perception that there is an intractable tension between the
judiciary and executive. This is not the case. But an important debate is
taking place around the Superior Courts Bill and the Constitution 14th
Amendment Bill. Extensive lobbying has occurred inside and outside South Africa
creating a perception of the threat to the judiciary. This debate has taken a
political dimension. This pressure will mount at the time that parliament
considers these bills. As a member of this House and a Cabinet member, I have a
duty to assure the House that there is no threat to the independence of the
judiciary. What the debate has brought to the fore is the varying
interpretations of the current dispensation. Judges and legal scholars have
written extensively on these in relation to the current dispensation. There are
some for an example who believe that the Constitutional Court Complimentary Act
introduced the post apartheid framework that gave the judiciary and the
Constitutional Court, the authority to make budget, administer their court as
commonly understood. I am puzzled by this assertion and I will, in time,
indicate why I am surprised by such a view. I have looked at Hansard to try and
determine what the objective of the legislators was at the time. I have
carefully gone through the summaries of their speech and my conclusion is that
section 14 which deals with appointment of officers of the court and section 15
dealing with finance were considered to be elementary powers to enable the
court to function. I would like to refer to the Minister of Justice then,
talking on the bill who said, “The Constitutional Court is a new institution…
For that reason it is appropriate to adopt legislation not only to grant the
court powers associated with a court of law but also to establish an elementary
infrastructure of this court similar with that found in the Supreme Court.”
There was also an argument about who should appear before the Constitutional
court, whether advocates or attorneys.

Madame Speaker,

The status quo is distorted to fit in the discourse that says that the bills
seek to reverse the gains by the judiciary in the past 10 years. Let me present
to you the current framework.

In terms of section 13 of the Magistrates Court Act, a magistrate may
appoint a clerk of the magistrates’ court. This provision remains in our law
today notwithstanding the fact that magistrates are regulated by the
Magistrates Commission. It is in my view clear why this section was enacted in
that manner. It is because, until 1993, when the Magistrates Act was enacted
magistrates were employed by the Department of Justice and Constitutional
Development as civil servants. They were officials of the Department and part
of their functions was the appointment of staff. When Act 90 was passed,
magistrates ceased to be civil servants. Quite clearly the appointment of court
officials in the magistrates courts, the management of the budget therefore and
all the other resources for the proper functioning of those courts, have always
been and still are the responsibility of the Minister.

In respect of the High Courts, section 34 of the Supreme Court Act, provides
that the Minister is also responsible for hiring officials and for managing the
budgets and the resources of those courts. It has always been this way and
there is no reason to change this system. In addition, section 34 is clear on
the temporary appointment of officials when those appointed are not available
for whatever reason. In this regard, it provides that the Minister may on a
temporary basis appoint officials to act in the place of those not available or
where there is a vacancy.

It has been argued in a number of forays that judges are responsible for
managing the courts and the budget. It has also been argued that the proposed
amendments put forward by my Department take away from the judges that which
they have been doing. That is not correct. As indicated earlier, the Department
has always been responsible for the management of the courts and the budget.
However, the framework has been slightly different for the Constitutional Court
for reasons that I will explain shortly. The Constitutional Court Complimentary
Act deals with the functioning of the Constitutional Court including the
provision of resources for the Constitutional Court. In terms of section 14 (1)
thereof the Minister is responsible for hiring officials of that court. In
doing so however, the Minister must consult with the Chief Justice. Similarly,
Act 13 of 1995 in section 14 thereof provides for the temporary appointment of
officials when the need arises.

In addition, it must be noted that the budget of the Constitutional Court is
part of the budget of the Department that the Minister submits to parliament
for approval. The Constitutional Court budget and the budget for all the other
courts is therefore a part of the budget of the court services branch of the
Department. As soon as parliament has approved the departmental budget, each
branch of the Department then receives its allocated amount as determined by
the Accounting Officer of the Department, the Director-General. This is the
money that parliament would have appropriated for the administration of all the
courts in the country including the Constitutional Court. There is therefore no
basis in my view in law or otherwise for an argument suggesting that the budget
for the Constitutional Court is determined and managed in manner that is
different from the rest of the other courts. The only difference is that the
Chief Justice, after consultation with the Minister determines and submits to
the Minister the budget required for the administration and functioning of the
Constitutional Court. The Minister submits the budget to parliament in the
normal course. There is no separate or special process for the Constitutional
Court. The Constitutional Court Complimentary Act recognises the responsibility
of the Accounting Officer to account for the budget of the Constitutional Court
in terms of section 15 thereof. This aspect remains undisputed.

The above framework for the Constitutional Court was, in my view, clearly
designed to assist the Constitutional Court to function effectively in
anticipation of the passing of the Interim Constitution of 1996. This was
important to be done as there was a vacuum in the legal system to deal with the
soon to be passed Interim Constitution and the relevant court as required by
the said constitution. It was not and could never have been the intention of
government that this be a permanent feature of the court system in the country.
It was always intended that as soon as is practically possible, the
rationalisation of all courts will be done and through national legislation,
government would determine the system for the proper and efficient functioning
of the courts. In this regard I draw your attention to section 16 of schedule
six of the transitional arrangements contained in our Constitution. What it
shows is that it is not only the structure of the courts that must be
rationalised but their functioning and jurisdiction as well. The Constitution
of the country requires of this government, that it revises the current court
system and put in its place a new system that is consistent with the new
Constitution.

What this framework indicates, is that the principle of separation of powers
has always been observed by the government and further that the independence of
the judiciary has always been protected. The bills therefore seek to maintain
this framework and by putting it in the Constitution, entrench it
accordingly.

On the question of the Constitutional Court and the fact that the Chief
Justice prepares the budget, it must be understood that the court manager of
the Constitutional Court an employee of the Department plays an important role
in the preparation of that budget. He assists the Chief Justice in order to
ensure that Department is able to consider properly the needs of the
Constitutional Court. The court manager assists the Director General to account
for the expenditure of the Constitutional Court.

This management approach is practical and contributes to the department’s
ability to manage the resources of government. In this financial year we have
taken this approach further by starting a process in terms of which, court
managers are required to engage and consult with judicial officers in each
court when they prepare a budget for that particular court. In exercising our
responsibility in this regard, we are cognisant of the need for consultation
with the judiciary in matters affecting the proper functioning of each
court.

The principle of separation of powers, in my view, seeks to recognise the
role of each branch of government and its responsibilities. It must be noted
that there is no universal model for separation of powers.

Much has been said about the extent to which the proposed bills undermine
judicial independence. I do not share that view. On the contrary, I must say
that the proposed framework for the transformation of the judiciary and
rationalisation of courts strengthens judicial independence. It is this
framework that seeks to reinforce the principle of separation of powers as
required by the Constitutional Court. The rationale behind judicial
independence is essentially to guarantee judicial impartiality and the rule of
law. The basic idea being that a judge or magistrate should decide a case
purely on the basis of the facts and the law. There should be no real or
perceived pressure on the judge to decide a case in favour of one of the
parties, even if one of the parties is the State.

In addition, I believe that the people should believe that justice is
dispensed by an independent cadre of professionals with no vested interest in
the outcome. This is important not only for government but also for the
judiciary itself. There are, as we all know, many factors that can play a role
in undermining the independence of the judiciary. This includes commercial
interests and political interests. Because it is difficult to determine
precisely when these factors are at play, the basic safeguard that can be
employed to prevent such an eventuality is by putting in place an appropriate
mechanism, including legislation to protect the judiciary. The bills do exactly
that in this context.

The other point to take into account in this discussion around the bills and
what they seek to do is the need to instil public confidence in the judiciary.
The cumulative effect of this if it is not adequately dealt with would result
in the total erosion of public confidence in the judiciary. This is one thing
that during my administration, I will not allow to happen. It is for this
reason amongst others that I will during this year promote the Judicial Service
Amendment Bill which provides measures to deal with complaints against judicial
officers. I am hoping that we will soon complete our consultation on complaints
handling mechanism and it is desirable to have this legislation introduced in
parliament this year. I do believe that the public interest and good governance
demand that these measures be enacted. In sharing this with you I am informed
by the wise words of Thomas Jefferson who on this matter wrote.

“The dignity and stability of government in all its branches, the morals of
the people and every blessing of society, depend so much upon an upright and
skilful administration of justice, that the judicial power ought to be distinct
from both the legislature and the executive and independent upon both, that so
it may be a checks upon both, ass both should be checks upon that. The judges
therefore, should always be men of learning and experience in the laws of
exemplary morals, great patience, calmness and attention; their minds should
not be distracted with jarring interests, they should not be dependent upon any
man, or body of men. To these ends, they should hold estates for life in their
offices, or, in other words, their commissions should be during good behaviour,
and their salaries ascertained and established by law.”

Conclusion

Honourable members,

This budget presented today is for the enhancement of access to quality,
speedy, fair and affordable justice for all the people of South Africa. It
speaks to our desire to engender and enhance respect for the constitution, the
law, the judiciary and the justice system in general, in a South African ‘Age
of Hope’ that truly belongs to all the people.

To conclude, I wish to thank everyone working in and with the Department
over the years. I particularly want to thank the Department’s staff and
management for working hard towards fulfilling our Constitutional mandate, to
ensure access to justice for all. I recognise the Deputy Minister, Advocate
Johnny De Lange, the Director-General, Advocate Menzi Simelane, the Chief
Operations Officer, Dr Khotso De Wee, the Chairperson of the Portfolio
Committee, Fatima Chohan and members of the Committee for their outstanding
work, the Judiciary and the Magistracy, Chairpersons of the chapter nine
institutions and all our civil society partners.

I thank you!

Issued by: Department of Justice and Constitutional Development
19 May 2006