This year’s presentation of the budget policy statement of my department coincides with the 15th anniversary of the Constitution which President Nelson Mandela signed into law on 4 February 1997 as we work towards realising a justice society in envisioned in the supreme law of the land.
This Constitution remains our foremost guiding torch which lightens our nation’s long and difficult walk from the legacy of colonialism and apartheid that was characterised by inequality and injustice, to a future founded on equality, human rights and social justice.
I will now focus on the business of the department which mainly is about providing for a conducive and enabling environment for the proper administration of justice in our country. I will refer to the programs and the projects we will undertake, while at the same time reflecting on progress made thus far.
Transformation of the judicial system
I would like to thank everybody who made time available to consider the discussion document I introduced in February this year. To this end, I would like to express our gratitude to Members of Parliament, academics, opinion makers, scholars, jurists and all other commentators who took part in the dialogue that ensued following the release of the document. I would also like to convey my profound appreciation to the media for creating space, through various avenues, for the continuous dialogue on the principles discussed in the document.
We however have taken note that some commentators have maliciously lamented the Terms of Reference we announced subsequent to the release of the document “for calling for the review of the court decisions” while commentary which made headlines of a leading weekend newspaper this past Sunday attributed to the Deputy Chief Justice puts blame on policies of this government for the increasing poverty and inequality. Firstly, let me state categorically that we neither sought to nor do we have competence to review court decisions.
The legal precedent, expressed in the maxim ratio decidendi, which is entrenched in our legal system, dictates that decisions of the lower courts are only reviewable by a higher court and that lower courts are bound by the legal precedents of their superior courts. On the contrary, the assessment is aimed at maximising our concerted efforts as the Branches of the State, to rid this country of its ugly past and to use our evolving jurisprudence as navigational guide to a society envisaged by the Constitution.
Secondly, the views expressed in the newspaper concerned misrepresent the progressive laws, policies and decisions of government that have cumulatively contributed to the reconstruction of society and the improvement of the quality of life of many of our people.
The comments we have received thus far are intriguing and provide balanced views on topical subjects such as the application of the separation of powers’ doctrine and the institutional arrangements geared to safeguard the rule of law and the independence of the judiciary. I have extended the deadline for submission of inputs on the document to 1 June 2012 following a request I received from some of the would-be commentators to allow more time for submissions. Comments received by the extended deadline will be considered in the recapitulation of the document into a policy framework document which will form the basis for legislation, programmes and other measures aimed at advancing our transformation trajectory.
Transformation of State Legal Services
As part of advancing the course of transformation, on Monday, 21 May 2012 I will release a Framework document on the Transformation of State Legal Services. Through this policy framework, we aim to revolutionise the public legal sector to be able to provide legal services of the highest standard that protect and safeguard the interest of the state and advances access to justice for all people.
The envisaged reforms are aimed at addressing some of the shortcomings in the current system result in government losing court cases it ought not to have lost, or embark on ill-fated litigation where it ought to have considered other alternative forms of redress to litigation thus resulting in huge costs to the fiscus. The intended reforms are also aimed at broadening the pool of legal practitioners who are briefed by the state to ensure that reflect a fair representation of black and women practitioners consistent with racial and gender demographics of our society.
The scarcity of black and women practitioners from the pool of practitioners who continue to dominate constitutional and other high profile litigation has a consequential effect on the slow pace of the transformation of the judiciary as the profession is the main feeder to the judiciary. I will elaborate more on the fundamental reforms envisaged by the policy framework when I launch the document on the date I have already mentioned.
Justice Crime Prevention and Security (JCPS) Cluster
Interventions of the Justice Crime Prevention and Security cluster to fight against crime and corruption continue to yield positive results. The Cluster has made strides regarding the integration of Information and Communication Technology systems enabling an electronic flow of information between the Police, the National Prosecuting Authority and our department.
The Information Communications and Technology (ICT) integration is being extended to other JCPS departments. In line with the Delivery Agreement that I and my colleagues in the JCPS Cluster have signed with the President, we continue to strengthen the integration of the programmes of law enforcement agencies with a view to maximising our fight against crime and corruption. The appointment of Adv. Jiba as acting National Director of Public Prosecutions, in view of the on-going court action regarding the appointment of Adv. Simelane, has stabilised the leadership of the National Prosecuting Authority of South Africa (NPA).
Combatting Corruption
The Asset Forfeiture Unit (AFU) of the NPA continues with its ruthless approach to crime and corruption which deprives the majority of the enjoyment of the fruits of our democracy. More than 120 JCPS officials were convicted of corruption in the past year. The conviction rate on the corruption cases stood at 72%. The total value of assets seized by the AFU over the past 13 years is nearing R5 billion. About R150 million recovered by the AFU has been allocated from the Criminal Assets Recovery Account (CARA) to build capacity in the Anti-Corruption Task Team (ACTT) to intensify its investigative capacity.
During the past year the ACTT finalised 175 cases with charges of corruption involving 182 JCPS officials. Similarly, the Special Investigating Unit (SIU) is making strides in the investigations of serious incidents of corruption arising from the numerous Proclamations which were promulgated by President Zuma in 2011 alone.
Further Proclamations for large scale investigations, including the investigation of alleged irregularities in the Fishing Industry which Minister Joemat-Pettersson announced when she tabled her budget vote recently, will be submitted to the President soon.
Case Backlogs and court performance
Key to the work of the cluster is the finalisation rate of cases that are brought before the courts. The performance of our courts is measured in terms of time, cost and quality, namely, the time within which cases are processed through each stage of the proceedings from beginning to end; the cost of litigation in respect of each stage of the proceedings; and the quality of the outcome of each case. The statistics of cases finalised by the lower courts in the 2011/12 financial year show a decline when compared to the outputs realised in the previous financial year.
The number of criminal court cases finalised by all courts during 2011/12, namely 448 760, is slightly down from 460 891 in the 2010/11 financial year. However, the average conviction rate in our courts for the past financial year remains high and has increased from 88.3% in 2010/11 to 88.8% in the past financial year.
The Judicial Practice Directives which have been developed by the judiciary pursuant to the resolutions of the successful Access to Justice Conference held in July 2011, will go a long way in addressing the case flow management challenges and ensure that judges take charge of their courts. This will reduce unnecessary postponement of cases and reserved judgments, some of which take years to be delivered.
Similarly, the court-based mediation rules which I have received from the Rules Board for Courts of Law this week will reduce the time and cost of litigation immensely and thereby enhance access to justice. I will announce the date of the promulgation of these rules soon.
Sexual offences
I have taken note of the incidents of rape and other forms of sexual offences which have taken an upswing in recent times. I will soon be convening a multi-disciplinary task team of the Cluster departments to conduct an urgent investigation for purposes of the re-establishment of Sexual Offences Courts which have proved to be successful in the past.
The task team will investigate the steps that ought to be taken to ensure that Sexual Offences Courts benefit all communities across the country and not only selected areas as was the position regarding the 62 Sexual Offices Courts which were piloted during 2007/8 financial year. This Task Team will submit its report and recommendations by the end of August this year to guide the Cluster on how to tackle these horrendous crimes. While on this matter, I have studied the judgement delivered last Friday (11 May 2012) by the Western Cape High Court where it found that the Sexual Offences Act does not prescribe sanctions for certain offences proscribed by the Act and the consequences that may arise from this judgment.
We are considering some measures to address this matter urgently to manage potential repercussions which could result from this judgment where persons who have been convicted and are serving sentences could approach the courts to squash the convictions and sentences. I am grateful to the proactive measures that the Justice Portfolio Committee are considering to address this urgent matter.
We are taking strong measures to deal with Lesbian Gays Bi-sexual Transgender Intersex (LGBTI) with a view to eliminating sexual offences perpetuated as a result of sexual orientation. I must laud the communities of Cape Town that have been in the forefront against this scourge and wish to encourage communities in all other parts of our country to report to the law enforcement agencies both the homophobic hatred as well as the consequences of rape, as both must be rooted out from the social fibre of our communities.
Superior Courts Bill and Constitution 17th Amendment Bill
I wish to express my gratitude to the Justice Portfolio Committee for paying visits to the Supreme Court of Appeal and the Constitutional Court to engage with the judges of these courts to glean their views on the provisions of the Constitution Seventeenth Amendment Bill and the Superior Courts Bill. We are moving steadfastly in creating the necessary infrastructure in anticipation of the enactment of these important Bills.
Court Infrastructure
Work is underway regarding the conversion of the interim accommodation for the Mpumalanga High Court and this is expected to be completed by July this year. The completion of the construction of the High Court in Limpopo is envisaged by March 2013. The enactment of the much awaited Superior Courts Act will therefore bring an end to the hardships endured by the communities of these provinces, who have to travel to the remote High Court in Pretoria to seek justice, at high costs and intolerable inconvenience.
There are other courts we have completed and we will be opening them officially during the course of this year as we did with the Ashton Magistrate’s Court on Tuesday this week. Ntuzuma Magistrate’s Court and Tsakane and Palm Ridge Magistrates’ courts in Kwazulu-Natal and Gauteng provinces respectively will also be opened this year.
Traditional Courts Bill
The Traditional Courts Bill has, since its introduction into the National Council of Provinces early this year, elicited extensive commentary and debate on some of the contentious provisions that it proposes. The Bill does not seek to create “Traditional Courts” as these already exist, but merely seeks to regulate these courts which, although they are of pre-colonial times origin, there appears to be sufficient evidence that show that their original restorative characteristics were later eroded by the colonial and apartheid regimes. It is for this reason that the Constitution recognises the continued existence of these courts subject to their alignment with the Constitution.
The Bill was published in its original form with an explanatory note which acknowledged all the views which were raised during the Parliamentary Hearings conducted by the Justice Portfolio Committee. I am certain that these concerns will be taken into consideration together with any other further input that is being made as part of the on-going consultation process.
I therefore make a plea to commentators, institutions of traditional leadership and organs of civil society to participate in the on-going Parliamentary process aimed at shaping legislation that will embrace the virtues of our traditional justice system. As government, it remains our desire to accommodate the desires of traditionally-inclined communities as a matter of democratic and constitutional right.
Legal Practice Bill
I am aware of the anxiety, in particular from the legal profession, regarding this long awaited legislation. I can happily report that the Bill was certified by the Chief State Law Adviser this week and it is before Parliament for consideration by the honourable members of this House. The introduction of this Bill is a momentous occasion in the history of the legal profession.
TRC Recommendations
We have made progress with the implementation of the Truth and Reconciliation objectives. To date 16 837 beneficiaries have received reparations where R541 million has already been used. Of the 875 who were untraced at the end of April 2011, 435 living beneficiaries or their rightful next-of-kin in the case of deceased beneficiaries, have since been traced and have been paid reparations. The outstanding 440 are still being traced. The regulations to provide medical benefits and other forms of social assistance will be finalised before the end of this year.
Budget allocation
A total budget of R15 480 billion has been allocated to the Department for the 2012/13 financial year. Of this allocation R5 284 billion is earmarked for the Court Services programme; R2 816 billion is allocated to the National Prosecuting Authority and R1 814 billion to the Public Entities and Chapter 9 Institutions. Growth in 2012/13 is driven by increased provisions for appointments of judges and magistrates, the carry through cost of salary increases, planned IT upgrades and funding for the building of 2 high courts and other court infrastructure.
Conclusion
I would like to assure all South Africans that we are on course in our quest to achieve an unqualified audit report at the end of this financial year. We will channel public funds to programs and projects we have alluded to; we will intensify our efforts to root out rouge elements out of our system in order to attain clean, transparent and accountable administration. It is time that we started speaking less about planning, but more about accelerated implementation with proper monitoring mechanisms in place.
