It is my pleasure to address the Chief Magistrates Forum this morning. I find it significant that we are meeting where we are meeting. The Chief Magistrates Forum, a structure bringing together members of the judicial branch of the State is meeting in the Parliamentary precinct, housing the legislative arm of the state, in a building that is used by the Executive arm of the state.
This demonstrates one the fundamental principles underlying our Constitution, that of cooperative governance. As different arms of the state we have distinct mandates and the duty to respect each other's mandates. We also have the duty to cooperate and to support each other in the execution of these mandates all in service of our people.
I have studied your agenda. It is very substantial and dare I say, ambitious. In my remarks I will reflect mainly on the key policy aspects currently under consideration relating, in particular, to the lower court judiciary. I will also reflect briefly on some of the items on your agenda. As regards legislation, I will touch on those bills which Cabinet approved recently and also some of the key legislation which we are implementing. I will also reflect on some of the programmes being implemented by the Department of Justice and Constitutional Development that aim to enhance the efficiency of the administration of justice at the level of the magistracy.
I will not attempt to commit perjury in front of so many Chief Magistrates by saying that I will be brief. I will not. Hopefully, however, what I have to say will be of some use, both in your deliberations and beyond.
Superior Courts Bill and Constitutional Amendment Bill
At its meeting of 5 May 2010, Cabinet approved the Superior Courts Bill and a related Constitution Amendment Bill and the Superior Courts Bill. The minister went on to release these bills for public comment during the department’s budget vote speech in the afternoon of the same day. Many of you were there to witness this. Prior to the submission of these bills to Cabinet, the minister invited the heads of courts to comment on the draft bills to obtain the views of the broader judiciary. We understand that the magistracy gave its inputs in this regard. We are thankful for this.
In the main, the Constitution Amendment Bill seeks to:
* Affirm the Constitutional Court as the Apex Court of the Republic and the Supreme Court of Appeal as the Appeal Court
* Affirm the Chief Justice as the Head of the Judiciary and assign to that office the authority to develop and monitor norms and standards for the effective functioning of all the courts, including the magistrate’s courts
* Enhance the capacity of the Office of the Chief Justice to be commensurate with the added responsibilities of that office. This also paves the way for the establishment of a separate administration for the judiciary in the form of a Court Administration Agency. Legislation for the envisaged separate Judicial Administration Agency is, by agreement between the Minister and the Chief Justice, expected to be submitted to Cabinet later this year or early in 2011
* Convert the magistrates' courts into lower courts to form part of a single seamless court structure with the Chief Justice at the helm and Judges President heading courts within their Division
* integrate the Magistrates Commission into the Judicial Service Commission to ensure the harmonisation of the appointment and disciplinary processes of the magistracy with that of judges. The Magistrates Commission is likely to function as it does currently, but as a substructure of the JSC.
In the main the Superior Courts Bill aims to:
* Establish a single high court with divisions in all provinces and one or more local seats to enhance access to justice to remote communities. To this end all provinces will have a division of the high court thereby, we can say in jest, as some do, "liberating" Limpopo and Mpumalanga from their long bondage to Gauteng North High Court since the establishment of the Transvaal Provincial Division in 1910
* Integrate the specialist courts as special divisions under the single high court structure. This will, for example, confer upon all high court’s the jurisdiction to hear labour matters, thereby increasing access to justice
* Empower the Chief Justice to issue enforceable directives and protocols for the entire judiciary, which directives and protocols must be approved by a forum of heads of courts. This would be seen as a transitional arrangement, as the envisaged legislation on a judicial authority/court administration agency will likely provide for a more inclusive judicial council/committee in the place of the heads of courts forum. I imagine that the envisaged structure could result in the rationalisation of existing forum, including the Regional Courts President Forum and the Chief Magistrates Forum. These are matters on which there will still be extensive engagements with the judiciary
* Empower a Judge President of a Division to lead and coordinate the superior and lower court judiciary within his/her division. This will effectively create a seamless, single judiciary
* Provide space for the judiciary to develop rules of court which is their domain, while at the same time affording the executive and Parliament the opportunity to have a meaningful role in the process.
There are still few aspects in respect of which there is not complete consensus. In this regard Parliament would need to give guidance. By and large the two bills provide an opportunity to conclude this very, very long outstanding work of judicial reform.
For the lower court judiciary the finalisation of the Superior Courts Bill signifies the beginning of overhauling the entire Magistrate Courts Act No. 32 of 1944, repealing the Magistrates Act No. 90 of 1993 as well as amending the Judicial Service Commission Act of 1995 to include the lower court judiciary. It is at this stage, for example, that the nomenclature of “magistrate/regional magistrate” versus “district/regional court judge” would need to be discussed.
The Legal Practice Bill
The Legal Practice Bill was also approved by Cabinet and will be introduced into Parliament. The bill seeks to:
* Establish a single regulatory structure in the form of a legal practice national council for all attorneys (about 18 500) and advocates (8 000). The Council will establish uniform norms and standards, on among others, admission requirements and discipline
* Institutionalise the concept of legal community service in terms of which every legal practitioner will be required to perform a certain minimum number of hours of legal service on a pro bono basis (at no costs to the consumer of the service), which service will be concentrated in under-developed areas and rural communities, including in the Small claims courts
* Establish an office of legal services Ombud to handle complaints against legal practitioners
* Establish a mechanism for the determination of fees to keep legal services within reach of the poor and average person.
Implementation of Legislation
The following are important Acts, the implementation of which rests mainly with the Lower Court judiciary, namely:
* The Child Justice Act, 2008 which came into operation on 1 April 2010. I wish to thank magistrates who are at the forefront of implementing this legislation which establishes a child-friendly justice system for young offenders. We are aware that there are very few precedents to seek guidance from at this stage. I trust that the judicial education institute will also make a contribution to building jurisprudence in this regard. We remain committed to provide all support that is required for the successful implementation of the act.
* The Judicial Service Commission Amendment Act, 2008: The drafts Code of Judicial Conduct and the Regulations on the disclosure of financial interests by judges as required by the Act have been finalised. The minister has asked the President to put the act into operation. The date is likely to be 1 June 2010. It is envisaged that the complaints mechanism, the code and the regime for the disclosure of financial interests will be extended to the magistracy in due course. Of course the magistracy will be thoroughly consulted.
* The Jurisdiction of Regional Courts Amendment Act, 2008: Necessary steps are being taken to implement this legislation, hopefully by June 2010. We recognise that civil experience is located more in district courts than regional court and that the LLB requirement prescribed for appointment as regional magistrates bar many of the experienced district magistrates (and attorneys with B Proc degrees) from progressing to the regional courts. It is for that reason that we took a deliberate decision to separate the Magistrates Courts Amendment Bill, that abolishers the LLB requirement for appointment as a Regional Magistrate from the Judicial Matters Amendment Bill and put it in a separate bill in order to fast track the amendment. Another significant change that will result from the implementation of the act is the integration of the divorce courts into the regional courts from the date of the commencement of the Act. I am aware that a meeting has been arranged for tomorrow to ensure an integrated and coordinated approach towards the implementation of this important legislation. I have been assured that the Chief Magistrates have been invited to participate in the meeting and that the meeting has been moved to Cape Town to coincide with this meeting.
* The above legislation and many more pieces of legislation we have implemented recently require extra personnel. We recognise that these have not always been forthcoming.
Key on-going programmes being implemented by the department
The criminal justice review project
The criminal justice review remains a priority project of the government in its fight against crime. The project is now at its implementation phase and we are grateful to the magistrates for contributing to the success of the project. In particular the magistrates who have to oversee the implementation of some of the protocols developed to improve case flow management in the courts. Courts will be more effective if judicial officers take charge of the court processes from the time cases enter the courts until completion.
Civil justice review
We have developed the terms of reference for the review of the civil justice system to provide a speedier, simpler and affordable system for the resolution of civil disputes. The magistracy will play a critical role in this project as most of the civil disputes come through the lower courts where most of our people come into contact with the legal system. The review will be undertaken by research streams that will focus on law reform and the overhauling of the rules of courts. At the high level a multi-disciplinary Civil Justice Review Advisory Committee (CJRAC) will consider the recommendations of the research teams before they are considered by Cabinet and Parliament. The minister and the chief justice will co-chair the CJRAC and the judiciary will be represented in all its levels. You will soon be approached to nominate representatives in this regard.
Re-designation of branch courts into full services courts
We are aware that the re-designation of the first 15 branch courts into full services courts in August 2009 has resulted in additional work for those former branch courts. We recognise that commensurate capacity has not always followed the additional work. The re-designation of four additional courts with effect from 1 June 2010 (Mamelodi, Attridgeville, Ntuzuma and Northam) will place a further strain on the overstretched judicial capacity. I am advised that the complexity of the implementation of this programme arises from the need for coordination with other law enforcement agencies, in particular the NPA, to provide commensurate capacity to match the changes in the judicial capacity. I am advised that most of the magistrates' posts recommend by the Magistrates Commission to be moved from elsewhere to the re-designated courts will be affected before 1 June 2010.
Re-demarcation of magisterial districts
I am informed that the department has finalised the first draft report that seeks to rationalize all magisterial districts with municipal boundaries and that the lower court judiciary has been involved in this process. The report will be released for public comment once the Minister’s approval of the report has been obtained. The Chief Magistrates Forum will be kept abreast of developments in this regard.
Sheriffs
The implementation of amendments to the Sheriffs Regulations published in December 2008 had become cumbersome for the department and the Board for Sheriffs. The delay in the implementation of the Regulations left most sheriffs (more than 210) who should have retired, continuing in vacant posts in an acting capacity. New amendments have been drafted to enhance the integrity of the appointment process. Part of this process includes addressing the shortcomings identified in the regulatory framework. The Department has started consultations with the Board for Sheriffs and the organised profession on the proposed amendments. The judiciary will also be consulted. It is envisaged that these amendments will be finalised by August this year after which the appointment process for over 230 vacant offices of sheriffs will proceed.
Another area of concern is in relation to under developed and poverty-stricken areas where we are unable to attract suitable persons for appointment to the vacant offices of sheriffs. These nonviable offices constitute almost 30 percent of the 384 magisterial districts. Most are in the Eastern Cape, Northern Cape and Limpopo. We have now drafted legislative proposals to address this challenge through the Judicial Matters Amendment Act, 2010. These provisions will enable the department to appoint State employees in appropriate circumstances to ensure that communities in the under developed areas able to enjoy the equal benefit and protection of the law. I trust that the magistracy has made its comments on the Bill. The department is in the process of evaluating comments received in relation to the Bill. We intend to submit this Bill to Cabinet for introduction into Parliament before the end of May 2010.
Small claims courts
We are once more grateful to the magistrates who participate in advisory committees. We now have 201 functioning small claims courts and we aim to establish an additional 60 new Courts by the end of the 2010 financial year and a further 60 by the end of the 2011 financial year. We have recently appointed 19 new Advisory Boards with the support of the magistrates. Our objective is to ensure that there is at least one Small claims court in each of our 384 magisterial districts. We will appreciate your inputs and suggestion on how the small claims courts can be improved as they provide an important service to the indigent and the poor.
Language policy and the indigenous language project
The matter of the language policy for courts also serves before the heads of courts meetings. The minister has asked the department to expedite the finalisation of the desired policy and legislation in this regard as the matter has been long outstanding. The minister will consult with the judiciary before submitting a proposal to Cabinet, before the end of this year. The language policy will focus mainly on the language of record, including the language of court processes/instruments, court interpretation and translations.
I am advised that the Magistrates Commission was requested by the department to invite inputs of the magistracy on the recommendations of the Committee of the Heads of Courts which was appointed to look into the matter. The views of the magistracy are important in drafting the policy framework document which will be accompanied by the legal instrument to implement the recommendations in the policy.
As far as the indigenous language project is concerned, I am advised that the department is the process of finalising a report on the evaluation of the project which would also assist in identifying areas that require policy intervention. The report, once finalised, will also be shared with the judiciary.
Lastly, what I have said, I have said in the context of the vitally important question of access to justice and the need for all institutions in our country, including the judiciary and legal system, to continue to undergo transformation. I would like to suggest the question of access to justice and transformation should feature as a permanent item on our agendas.
Access to justice is both a means as well as an end. The United Nations Development Programme Practice Note on Access to Justice released in 2004 states that, "Justice is closely related to poverty eradication and human development. There are strong links between establishing democratic governance, reducing poverty and securing access to justice. Democratic governance is undermined where access to justice for all citizens (irrespective of gender, race, religion, age, class or creed) is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalised means being deprived of choices, opportunities, access to basic resources and a voice in decision-making. Lack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability."
President Jacob Zuma, speaking in September 2008 at a public lecture, in his capacity as President of the African National Congress (ANC), "Let me underline that access to justice is the cornerstone of orderly co-existence of citizens of any country. Access to justice is not necessarily the ability to walk to and reach the building where justice is administered. It only becomes complete when one's dispute is settled speedily, in an unbiased manner and when one feels he or she has had access to qualitative justice."
The UNDP makes the same point in the following way: "Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable."
President Zuma went on to say that, "Our concern is the failure to have cases or disputes processed and resolved speedily. Justice delayed is justice denied, so goes the proverb. Part of the transformation of the system is to ensure speedy access to justice. Poverty is still one of the major barriers for our people in enjoying or exercising their right of access to justice" and that, "The courts therefore remain a very hostile and traumatic experience for many of our people and this discourages many from using these forums to advance their rights or settle disputes. This is not healthy in a democratic society."
We are confident that, working together, we will be able to change this.
I wish you well as you deliberate upon your very substantial agenda.
Thank you.
Issued by: Department of Justice and Constitutional Development
10 May 2010
Source: Department of Justice and Constitutional Development (http://www.justice.gov.za/)
