Address by Michael Masutha, MP, (Adv), Minister of Justice and Correctional Services at the occasion of the official launch of the court-annexed mediation dispensation, in Mahikeng in the North West province
Kgosi Montshioa of the Barolong community
MEC for Community Safety and Transport, Mr GO Molapisi
Justice B Nkabinde, Judge of the Constitutional Court
Acting Judge Sardiwalla, Chairperson of the Mediation Advisory Committee
Chief Magistrate of the Mahikeng Cluster and Deputy Chairperson of the Magistrates Commission, Ms JJ Ikaneng
Distinguished Members of the Judiciary
The Executive Mayor of Mahikeng and councillors present
Kgosi SM Masibi of the National House of Traditional Leaders and the North West Provincial House of Traditional Leaders
Heads and members of Statutory Bodies
Representatives of the media
Distinguished guests
I extend heartfelt greetings to Chief Montshioa and the Barolong community and we are grateful that they have welcomed us in their homestead to come unveil fundamental reforms that will change our justice for ever.
I believe that a good government is judged by how it serves its people regardless of their location and this government continues to put programmes in place to do so. I am aware that to some the absence of a flight route that connects the North West Province and this municipal district in particular to the OR Tambo International Airport in Johannesburg is a thorn in the flesh. But to us, driving through the N4 corridor that connects this province not only with the Gauteng and Mpumalanga provinces but stretches up to Mozambique symbolises the essence of the Access to Justice Programme that we have come to launch here today.
Though this programme, we are reaching out to the people who live in far flung areas and who continue to endure the hardships of the legacy of the spatial injustice of our ugly past. The long journey to court is a manifestation of experiences of many people whose quest for justice is hampered daily by the distance travelled, time spent and costs incurred in search for justice. As the old adage says, justice delayed is justice denied.
The choice of Mahikeng as the venue for today’s historic was not just a mere coincidence. As history tells us, this town was named Mahikeng by the Barolong boo Ratshidi who settled in the area during the early nineteenth century. The earliest people to settle in Mafikeng were the Khoi and San communities. The Barolong were the first Batswana to settle in Mafikeng and established their chieftaincy in the area with their capital in Mafikeng which has war monuments in honour of Black men and women who died in the Anglo Boer war.
Today’s auspicious occasion adds another chapter to the history, not only of Mahikeng, but also of the entire country. This is a culmination of the reforms that took effect from 1 December 2014 in Diepsloot at the occasion of the launch of the new magisterial districts in the North West and Gauteng provinces. On the same date of the launch, Court-annexed mediation rules came into effect in the two provinces. We extend our appreciation to the Rules Board chaired by Justice Nkabinde at the time for making these rules.
It is a source of pride that North West and the Gauteng provinces became the first to implement magisterial districts and court-annexed mediation which are radical reforms which are aimed at improving the justice system. In a nutshell, the rationalisation project seeks to reverse the harmful effects of the defunct apartheid State that was made of the Transkei, Bophuthatswana, Venda and Ciskei Homelands (TBVCs), self-governing states and the RSA territory. This province is the first of the areas that formed the TBVCs territories to discard its racially-based magisterial districts in favour of integrated and inclusive districts that are founded on equality and human dignity.
These reforms have widened the opportunity of access to justice and restored the dignity of many of communities of this Platinum province, as it is fondly called. Through these measures we are redressing irrational policies that locate court-related services within the spaces of the defunct Bantustans. In this province these measures have for example, alleviated the hardships endured by the community of Marikana in the Rustenburg municipality, who, before 1 December 2014, had to travel more than 150km to get services in the Odi magisterial district.
The latter was the nearest court they could be connected to in the old Bophuthatswana. They now obtain the bulk of these services from the court which is 35km from their homestead. Similar benefits are now enjoyed by communities in other parts of the province, resulting in them travelling shorter distance to court thereby reducing the time and cost of travel. We are stepping-up the pace of the rollout of these reforms in order to remove similar obstacles across the length and breadth of the Republic.
On the other hand court-annexed mediation is a form of Alternative Dispute Resolution that ensures speedy resolution of disputes and averts the spiralling cost of litigation. The drama that we have just watched has shown how disputes can be resolved speedily outside the litigious process. The overly regulated civil justice system coupled with the challenges facing the case flow management system contributes to the clogging of the court system. The average period for the finalisation of an opposed civil matter is two and a half year. In respect of Mahikeng districts it implies that the courts will only be able to process an average of 650 of the 2576 civil and family law disputes registered between April and December 2014, thus leaving a balance of over 1900 of the case backlog. The situation is dire in courts such as Johannesburg where on average 60 000 cases are registered on the court rolls every year.
While during the pilot phase the immediate focus will be mainly in civil and family disputes, the traditional courts offer a perfect example of how criminal cases can be diverted to Alternative Dispute Resolution mechanisms in appropriate instances. We will, over time, develop a legislative framework for the effective use of Alternative Dispute Resolution for the resolution of certain criminal cases where appropriate. Mediation as part of Alternative Dispute Resolution is underpinned by Ubuntu which is an inherent value of a caring society. In the case of S v Makwanyane, the Constitutional Court contended that Ubuntu is an expression of “umuntu ngumuntu ngabantu” (or translated in Sotho as “motho ke motho ka batho”) which describes the significance of group solidarity on survival issues so central to the survival of communities.
Distinguished guests,
It is important to know that mediation services are offered on a voluntary basis and are restricted to disputes that fall under the jurisdiction of the district and regional courts which is up to R200 000 and R400 000 respectively. However, the Magistrates’ Court Act permits parties to consent to a higher jurisdiction beyond the prescribed limits. It is our hope that the pilot will culminate into a more rigid process whereby mediation could be compulsory and may extend to the disputes that fall within the jurisdiction of the High Courts.
The operation of mediation outside any legislative framework, save in respect of limited instances such as labour disputes through the CCMA, meant that only those who could afford the cost of private mediation could benefit from the system. It therefore excluded the poor and indigent members of society, thus perpetuating an unequal justice system. Its introduction into the legal system is revolutionary. It demolished the fortified walls that kept the poor who are predominately Black from the mainstream of the justice system and now gives equal opportunity of access to services to all people regardless of race, colour or creed. As it can be deduced from the tariffs that were published in the Gazette during December 2014, the fees are affordable. As was explained by Acting Judge Sardiwalla, the fee is shared by the parties in a spirit of reconciliation and friendship.
Of further significance, court-annexed mediation will enable Government to cut its huge litigation bill by diverting claims against the state to mediation. I will soon submit to Cabinet, as I am required to do by law, a policy framework to facilitate the diversion of claims against the State to mediation across all spheres of Government.
I am sure many South Africans would certainly want to know how mediation will operate within the court precinct. At each of the court where mediation is provided a room is dedicated for mediation services which will be known as Therisano Centre. The make-up of the Therisano Centres will not have features of a court which are often intimidating. Instead, it will provide a welcoming atmosphere that facilitates constructive discussion. The lessons derived from the pilot will also inform us of the desirability of designating centres outside the precinct of the courts.
A total of 55 legal interns were appointed through the joint adventure of the Department and the Safety and Security Sector Education and Training Authority as part of building capacity at the courts to provide mediation services. These interns were jointly trained by Justice College and the Mediation Advisory Committee. We will continue to increase the intake of interns in order to give new law graduates exposure in the practical legal field. We trust that the exposure to the mediation work environment will enhance the opportunity of some of the interns and paralegals for appointment into fulltime positions once these have been created by the department.
I have, on the advice of the Mediation Advisory Committee, accredited a total of 231 mediators who are eligible for appointment by parties to a dispute to assist them in resolving their matters. The names of the accredited mediators across various sectors including the level of accreditation will, with effect from today, that is 16 February 2015, be posted on the website of the department, justice.gov.za
As I conclude, allow me to present certificates to the following interns for the attendance of the requite training in court-annexed mediation.
I thank you.
