Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the Transkei Attorneys Association AGM and Gala Dinner, Savoy Hotel, Mthatha
Programme Director, Mr Makangela
The Chairperson and Executive of the circle
Members of the judiciary
Members of the legal profession
Ladies and gentlemen
It is often said that the past is a foreign country.
In some ways it seems unthinkable that at the dawn of our democracy our entire bench was white, except for 4 persons: Judge JAM Khumalo who was appointed to the SCA of Bophuthatswana in 1986, Hassan Mall of KZN who was appointed as an acting Judge in 1987, Ismail Mahomed appointed to the Transvaal bench in 1991 and Tholakele Madala, appointed to the Mthatha bench in 1994.
There were many news reports recently about the Judicial Services Commission and the interviews held with aspiring judges.
We saw a renewed emphasis being placed on the background of the candidates – their upbringing, their personal circumstances and their attitudes.
Many people will ask if a truly objective judge exists – because all of us, in whatever we do, bring with it our views, prejudices, values – whether consciously or subconsciously. Who we are finds expression in what we do.
But what remains most important is that the bench must reflect all of us.
It must reflect the inclusive diversity that South Africa is.
We have made significant progress in terms of racial transformation of the judiciary. However, further measures need to be taken to ensure that more women are appointed to the bench.
White women were first allowed to enter legal practice in South Africa in 1923. The first female judge - a white woman, Leonora van den Heever, was appointed to the bench in 1969 and was, at the dawn of democracy in 1994, still the only female judge. Jeanette Traverso became our country’s second female judge in 1994, with the first African female judge, Lucy Mailula, then joining the Witwatersrand Local Division. Shortly thereafter, in October 1994, Kate O’Regan and Yvonne Mokgoro were appointed to the Constitutional Court.
Since then, the entry of women into the judiciary has been somewhat accelerated. In 2005, women constituted 13.52% of the 207 judges in the country, one of whom was a Deputy Judge President.
As at the end of June this year, 81 of the 239 judges are female. That amounts to 33,8%. Two Judge Presidents, in the North West High Court and the Land Claims Court, are female. Recently the President appointed the first female Deputy President of the Supreme Court of Appeal, which is one of the top 4 leadership positions in the judiciary.
Incidentally, the incumbent of this office, Madam Justice Maya, hails from this province, has practiced as an advocate here and served as a judge of the Mthatha High Court.
Whilst acknowledging the strides we have made thus far, we still have a long way to go before the judiciary reflects the racial and gender composition of the people of South Africa.
Of our total magistracy 25% are African males and 17% are African females. This means that 42% of our total magistracy are African. Some 61% of our magistrates are black and 41% are female.
Seven of the 9 Regional Court Presidents are African. Of the 334 Regional Magistrates, 147 are African – that amounts to 44% - and 134 are female – that’s 40%.
Of the 18 Chief Magistrates, 9 are African and 10 are female. Of the 78 senior magistrates, 37 are African (47%) and 31 are female (39%). Of the 1129 magistrates, 464 are African (41%) and 466 are female (41%).
So the question is, what can the state do to advance transformation of the judiciary, both in terms of race and gender? No single role-player in the justice system can bring about transformation of the judiciary on its own. The legal profession must do its bit, as must the JSC and the Magistrates’ Commission. Academia should be putting forward more names of potential candidates for the bench. The appointment of judges to the Constitutional Court from academia has shown the importance and value of scholastic research in the development of jurisprudence.
And government has a significant role to play in this regard.
The State is the biggest consumer of legal services in South Africa, and its litigation account runs into billions of rands annually.
However, it is evident that, when attorneys and advocates are briefed to act on behalf of the State, the cake is not shared equitably among the diverse constituencies of practitioners, with Black and female practitioners being the worst affected.
We have a target of 76% of briefs to be given to Black and female practitioners.
If 76% of the briefs are going to previously disadvantaged individuals then why are the results not showing this? The most glaring shortfall in the Bar figures is with regard to African women. We need a target within the Previously Disadvantaged category for African women. In fact, we need to break down the 76% and set targets for each group.
We have, as a Department, taken bold steps to increase the allocation of briefs to competent previously disadvantaged individuals. We must ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.
Most important, is that we increase the pool of applicants from which the JSC can select candidates.
In this regard, I am pleased that the speakers from the Law Society will be discussing the Legal Practice Act. The LPA is not only there to ensure quality and affordable legal services to the public, but also to help remove barriers to the legal profession.
Government is acutely aware that these barriers to the profession do exist. And therefore we do believe that the Legal Practice Act will remove some of the barriers that practitioners, particularly Black and female practitioners, experience. The effect of the Act is that the legal profession, both attorneys and advocates, will be regulated by a Legal Practice Council. Objectives of the Council relate to promoting access to the profession and the pursuit of a legal profession that broadly reflects the demographics of South Africa.
With regard to the Constitutional imperatives to transform the judiciary which Judge Jafta will be discussing – the words of the late Pius Langa say it best, when he spoke about “transformative constitutionalism” and said, “This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.”
Just as our country must change, so the bench must change.
I also want to touch on the issue of judicial independence. There is the Latin maxim which tells us that de fide et officio iudicis non recipitur quaestio.
No question may be asked concerning the faith and duty of the judge. That is so. But we must also distinguish critical debate from perceived attack.
Judges are invested with great constitutional powers; they are permitted to override measures enacted by the legislature and the executive, measures that that the legislature and executive regard as being within their constitutional domain.
Judicial discretion therefore competes with legislative discretion and with executive discretion. Given this competing of discretions, it is natural that tensions will occur.
There is nothing wrong, in a constitutional democracy and within the separation of powers, to critically debate perceived judicial overreach. But we must do so in a spirit of respect for the separation of powers and the integrity of the institutions of state. The meeting held between the judiciary and the executive in August was the first of its kind in our democracy. The meeting has significantly contributed to the strengthening of our constitutional democracy. It is our conviction that such interactions can only advance and deepen our constitutional democracy. At that meeting it was agreed, amongst others, that the transformation of the Judiciary and the legal profession are at the heart of our constitutional enterprise and the parties have a responsibility to strive towards its achievement.
I would like use the opportunity to deal with a few issues relevant to the Eastern Cape and, in particular, the former Transkei. Regarding the rationalization of magisterial districts in the Eastern Cape, the Regional Coordinating Committee is in the process of concluding consultations with affected communities. The outcomes of the consultations will be consolidated in their final report. Maps will be drawn based on the recommendations made and consultations with key role players and stakeholders - including the attorneys’ profession - will be conducted based on the final maps.
The intention is to have magisterial districts largely following municipal boundaries. During this process, Umzimkhulu will become the responsibility of KwaZulu Natal and Matatiele the responsibility of the Eastern Cape. The Regional Coordinating Committee consists of the Regional Head of Justice as the convener, the Regional Court President, the DPP, the Chief Magistrate, the Judicial Cluster Heads, SAPS, the Department of Correctional Services, the Department of Social Development, Area Court Managers and SALGA.
Rationalisation has been completed in the North West and Gauteng. The demarcations have been published for Limpopo and Mpumalanga which are scheduled to come into effect on 1 December 2015. The Eastern Cape comes, unfortunately, more towards the end of the process.
On the issue of access to justice and the administration of justice - which Judge Hlangulela will be discussing in greater detail - both the Minister and I have visited the Eastern Cape, and more specifically Mthatha, during the course of this year. Various issues were raised regarding infrastructure and other challenges at both the High Court and the Magistrates Court in Mthatha. The issue of office accommodation was raised.
We have, in order to address the shortage of office accommodation and condition of its infrastructure, registered various capital projects to the tune of R1.1 billion that are to be undertaken or expedited by the Department of
The Department of Justicehas in fact upgraded 19 courts in Transkei and the Department further built the new Tsolo Magistrates’ Court. Centane Magistrates’ Court had to be rebuilt from scratch as it burnt down.
I am pleased to say that we have ensured that the Department of Public Works will be funding and expediting planned maintenance projects on our court facilities in this province with an estimated cost of R85.8 million. We have, from the side of the Department of Justice and Constitutional Development, funded further planned maintenance to the tune of R17.3 million for the province.
The above projects are in various stages - ranging from site identification, site clearance, town planning processes and Environmental Impact Assessments, design and technical documentation stage, tender stage to others which are at construction or implementation stage.
The project for the additional accommodation and upgrading of the building at the Magistrates’ Court has a financial tender date of 12 May 2016 and the installation of the air-conditioning system will be completed at the end of November this year. The site for the construction of the new building, next to the High Court, belongs to the local municipality and negotiations are underway to acquire the site.
With regard to the project for the repair and renovations of the High Court, the revised design and estimated costs will be submitted for approval on the 21st of this month.
We are aware of the problems at the Mthatha Small Claims Court. That court is being repaired and renovated, but in the long term the Small Claims Court will be accommodated in the new building. The problems in relation to staff, furniture and computers are being taken up by our regional office, yet the progress has not been to my satisfaction.
The fact that the Chief Justice, the Minister and I have visited this area attests to the challenges on the ground that we must tackle head on.
The Minister has set up a special task team called the Facilities Intervention Task Team to deal with the challenges of infrastructure delivery in the region. The team includes both officials from DoJ&CD and Department of Public Works, and amongst other matters, they must also find ways of fast-tracking the implementation of projects.
I am also advised that the Department of Public Works is finalising a memorandum of understanding with the Coega Development Corporation to undertake most of the projects within the Eastern Cape with a view top fast-track the implementation and to capacitate project management.
I would welcome the involvement of attorneys and advocates in Mthatha, or the former Transkei as a whole, being involved in actively monitoring the developments regarding the refurbishment, renovation and building of the courts and welcome your suggestions on how this can be structured.
Also, if there are operational problems in courts, in the case of the magistrates’ courts, complaints must be directed to the court managers, then the area court managers and then the regional office. In the case of the High Court, which falls under the Office of the Chief Justice, complaints go to the court manager and the regional head.
With regards to the 57 new Regional Magistrates who were appointed earlier this year, 4 were appointed in the Eastern Cape. A further 13 appointments – 12 additional magistrates and 1 magistrate – were made in the Eastern Cape with effect from 1 November this year.
Of the 13 appointments, 8 are in the Transkei.
I must also refer to the progress we have made in relation to extending the coverage of Small Claims Courts in the Eastern Cape.
In September this year, new Small Claims Courts were established in Maclear, Kentani, New Brighton and Venterstad, with Albert having been gazetted on the 3rd of October. This brings the total number of Small Claims Courts in the Eastern Cape to 71; with 16 established during this financial year. This gives us 89% coverage of Small Claims Courts in the province, with only 9 more to be established so as to have a functioning Small Claims Court in every one of the 80 magisterial districts.
Seven new Small Claims Courts are needed in other parts of the Eastern Cape - in Hewu, Hofmeyr, Komgha, Mpofu (Stockenström), Ntabethemba Steynsburg and Tarka – and two are needed in the Transkei, namely in Tsomo and Willowvale. In 7 of the 9 areas mentioned, Commissioners need to be identified. I urge members of the attorneys’ profession to make themselves available in this regard.
In closing I want to extend congratulations and best wishes to the newly elected Executive Members of the Association and wish you all the best for your new term. Government is ensuring justice for all – Black and white, rich and poor, urban and rural. We must ensure justice for the communities who live here, between the Great Kei and Mtamvuna rivers, for the communities in the furthest north-eastern parts of the Eastern Cape and for people living in our metros, so that we can unequivocally say that all are equal before the law.
I know that the people of Mthatha and the former Transkei often feel marginalised and disempowered. Let us look at ways of strengthening the relationship between those involved in the administration of Justice – judicial officers, court and department of Justice officials, academics, attorneys and advocate and the ministry so that we can work together to resolve the problems.
I thank you.
