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Address by the Deputy Minister of Justice and Constitutional, the Hon JH Jeffery, MP, at the Judicial Officers Association of South Africa (JOASA) Gala Dinner, held at the Aviator Hotel and Conference Centre, Kempton Park, Johannesburg, 19 May 2017

President and members of the National Executive Committee
Members of the Provincial Executive Committees
Distinguished guests
Ladies and gentlemen
                 
Good evening and thank you for the invitation to address you at your Gala dinner.

It has been a rather busy week on the justice front – with the budget vote debates for the Office of the Chief Justice and that of the Department of Justice and Constitutional Development having been concluded in the National Assembly yesterday and the day before.

Budget vote debates gives one the opportunity to get a holistic view of all the many different components and various role-players within the justice system. It also provides an opportunity to reflect on successes and identify weaknesses and areas which demand more attention.

It also gives rise to questions such as what the law is, how it develops through legislation and jurisprudence and what we need to do to make the law more responsive to the needs of our people.

Whether we are legislating to try and combat hate crimes and hate speech or whether we are trying to regulate the use of traditional courts within our constitutional framework, one thing is certain – our law is dynamic and vibrant - never static.

It changes as society changes and becomes a vehicle through which we regulate certain things, solve certain problems and try and prevent certain situations, all in an attempt at making society better.

Of course, as societies develop, and as the needs of society change, so does the law and the justice system. The law evolves.

An article I read recently said that having presiding officers adjudicate over legal disputes is the result of “1,000 years of legal evolution”.

Now today many people will view having to go to court as a rather unpleasant ordeal, but it is definitely better – and hopefully more fair - than the “trial by ordeal” which was used in English courts, to determine guilt or innocence in criminal cases, until almost the end of the 12th century.

Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful. If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence.

Needless to say, the conviction rate was rather high.

Another popular ordeal involved water - the accused would be tied up and thrown into a lake. If innocent, he or she would sink. This was, of course, a tad problematic, particularly in respect of the method; the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink.

So again the conviction rate was rather high.

William II of England (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was finally condemned by the Church in 1216.

Criminal and civil disputes could also be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could employ their own champions. 
Those of you who watch Game of Thrones would know what I am talking about.

Trial by combat gradually fell into disuse for civil cases, although it was only technically banned in 1818.

Thankfully our justice system has moved on from there.

The last few weeks have seen a significant amount of discussion and debate on the issue of the separation of powers and the question as to what judicial overreach is and isn’t.   This is also an issue that we debated this week in the National Assembly.

Some argue that the court is performing its duty as the custodian of the Constitution, whilst others will say that it’s judicial overreach, with the judiciary entering the domain of the executive.  Law experts themselves are divided in their opinions as to where to draw the line on judicial overreach.

Whichever way one argues it – and whether or not one agrees with the judgments or not - our courts have proved themselves to be independent.

The debate around judicial overreach is something we find in developed countries and also in developing countries. It is not a uniquely South African question. It is not the first time that the issue of judicial overreach is raised and fiercely debated, and nor will it be the last. Nor it is a clear cut issue, either way. As a developing constitutional democracy it is natural and normal that we will grapple with these issues.

With regards to our courts, an area of some concern is the result of the Victims of Crime Survey 2015/16. This survey is a countrywide household-based survey which, amongst others, focuses on people’s views regarding access to, and effectiveness of, the criminal justice system. I raised this matter in the debate on the OCJ on Wednesday.

It is a matter of concern that the survey shows declining trends in levels of satisfaction with the courts.  The findings show a decline in the percentage of households who are satisfied with the way courts are dealing with perpetrators of crime in all provinces, except in Limpopo. The highest levels of satisfaction with the courts was observed in Limpopo in 2015/16 (73%). The Western Cape displayed the lowest levels of satisfaction with the courts (32%).

In this regard, it would be important to engage the judiciary on measures that we – the Department and the judiciary together, along with other role-players – could implement to raise confidence and trust amongst members of the public in our courts.

I want to take this opportunity to thank those magistrates who are going the extra mile, in making justice accessible.  For example, the South African Judicial Education Institute has for the current financial year scheduled over 90 courses to the magistracy.  In this regard, I would like to extend our appreciation to all senior judicial officers who are assisting SAJEI with the training programmes.  

Of the 1 921 Commissioners presiding in our Small Claims Court, 55 are magistrates. These magistrates offer their time and expertise, free of charge, and after hours, to assist in this important task.

Furthermore on the issue of Small Claims Courts, we have now reached our target in respect of a 100% roll out nationwide of our Small Claims Courts.

There are, at the end of the 2016/17 financial year, 405 Small Claims Courts covering all magisterial districts and sub-districts nationally with another 19 additional places gazetted as places of sitting of these courts.  The establishment of Small Claims Courts, with at least one in each magisterial district and sub-districts in South Africa, is a major step forward in terms of enhancing access to justice.  We are now focusing on ensuring full coverage in the Branch Courts.

Also of interest is the issue of language in our courts. We are eager to promote the use of indigenous languages in the courts, including court proceedings and legal processes as required by the Constitution.

To this effect, the Department has started preparing a Discussion Document on the use of African Languages in court proceedings and court processes in order to address the repeal of the language provisions in the Magistrates Courts Act, to improve court interpretation and to building of capacity for translation.

It should also address issues of curriculum change to incorporate African languages in LLB degrees.

In the interim, the Department will amend the Rules Board for Courts Act by providing for rules for judicial officers, parties in a suit and officers of court to use any official language in court proceedings.

It will be amiss of me I do not make mention of the impact of the current economic climate on the budget of the DOJCD.  For the 2017/18 financial year the budget allocation of the DOJCD of over 18.9 billion has been cut significantly from previous indicative estimates. Cabinet approved, during the January 2016 budget review, a reduction of R554, 5 million and during the 2017 budget review a further reduction of R186,8 million. The latter related to a cut in infrastructure provisioning budget. 

A matter which I know is of great importance to you is that of the new Regulations for Judicial Officers in the Lower Courts.

By way of background, a Task Team - comprising of, amongst others, representatives from the magistrates’ profession - was established to take forward the draft Regulations  prepared by the Magistrates Commission. At the first meeting of the Task Team four matters that needed specific urgent attention, were identified, namely -

  • leave, 
  • the procedure for the appointment of aspirant magistrates,
  • a code of conduct, and
  • transport and subsistence

I have expressed my concerns to the Department regarding the delay in finalising said Regulations and have informed them that it should be expedited.

I also informed the Department that I am of the view that since some of the provisions regarding travel and subsistence are adjusted on a regular basis it may well be prudent and necessary to also provide for separate financial instructions for Magistrates.

The current practice of providing for employees of the Department, as well as Magistrates, in the Departmental Financial Instructions (DFI), is clearly not sustainable and also undermines the status of magistrates as part of the independent judicial branch of State.

The Regulations on leave, on the procedure for the appointment of aspirants and on the code of conduct were submitted to the Magistrates Commission in November 2016 and we are awaiting feedback from the Commission.

The leave provisions provide for amongst others the capturing of accumulated vacation leave.  Magistrates’ vacation leave must be taken within a three year leave cycle, as follows:

  • In the first year of a leave cycle, a magistrate may take all the leave that he or she is entitled to, but must take at least ten consecutive days’ leave.
  • If a magistrate does not take all his or her leave days within the first calendar year, the remaining leave days, to a maximum of 15, are carried over to the next (second) calendar year of the cycle.
  • In the second year of a leave cycle, a magistrate may take all of his or her  leave days, as well as the number of days carried over from the first calendar year, but must take at least ten consecutive days’ leave.
  • If a magistrate does not take all the leave which he or she is entitled to take during the second calendar year, the remaining leave days, to a maximum of 30, are carried over to the third calendar year of the cycle.
  • In the third year of a leave cycle, a magistrate may take all of his or her leave days, as well as the number of days carried over from the second calendar year.
  • Any vacation leave not taken by the end of the third calendar year shall lapse.

The above provisions will thus enable a magistrate to take ‘long leave’ in the 3rd cycle.

I am aware that there are some magistrates who are objecting to the capping of leave and want to continue to accumulate leave indefinitely.

Some even argue that they have a right to accumulate leave indefinitely.  Surely the right thing is to take leave - as the nature of the work of a magistrate requires that magistrates should take leave and rest.  And there are some magistrates with over a 1000 days accumulated leave!

If the fiscus must pay them out tomorrow, the accumulated leave of all the magistrates will cost in excess of R750 million. This is clearly not sustainable and was never the intention. 

A number of magistrates who have resigned have requested the Department for their accumulated leave to be paid out. Although the Minister has, since the settlement reached in the case of Magistrate Gerber, approved the payment of such accumulated leave on resignation, any further such requests will be kept in abeyance as the Department has approached Counsel regarding, amongst others, the issue of retrospectivity.

I have been informed that the Independent Remuneration Commission for Public Office Bearers have met with members of the Lower Courts Remuneration Committee on 11 April 2017 and the long awaited major review on the remuneration of the judiciary is in the process and that it is envisaged that the process will be finalised before the end of this year.  The Lower Courts Remuneration Committee will also make submissions regarding the pension- issue of magistrates.    

The Judicial Matters Amendment Bill of 2016that is currently before Parliament, also contains a number of provisions pertaining to the magistracy:

  • One of the proposed amendments aims to extend the age of retirement of magistrates from 65 to 70 years, if magistrates so choose, and to bring it more in line with that of judges.
  • A further proposal is to do away with the requirement that only certain regional court magistrates may adjudicate on civil disputes. The amendments provide that Regional Court Presidents must designate appropriately qualified magistrates to adjudicate on civil disputes in regional courts.
  • The Bill also proposes to do away with the administrative burden of having to compile and update a list of trained judicial officers in terms of PAJA, PAIA and PEPUDA.
  • The Bill also proposes to do give the Minister a wider discretion in determining the benefits to which magistrates are entitled to for part- heard matters, as it is currently limited to an hourly rate.

We are hopeful that the Judicial Matters Amendment Bill will be approved by both Houses of Parliament before the end of June 2017.

Our Department also committed to develop a draft Lower Courts Bill which is intended to rationalise and transform the legislative framework of the lower courts in line with the Constitution, by overhauling the Magistrates Courts Act of 1944 and transforming the lower courts in line with the Superior Courts Act of 2013.

The draft framework on the Bill was discussed with representatives from the magistracy in January this year, and we have since also received their comments. 

The further work of the Task Team and the drafting of the Lower Courts Bill was unfortunately delayed due to unforeseen human resources and budget constraints, but we are now, once again, in a position to take the process forward.    

During the past financial year the Minister appointed 25 Regional Magistrates and 48 Senior Magistrates  to vacant posts and the Magistrates Commission will soon commence with interviews for a further 214 posts of magistrate.

Ladies and gentlemen,

I want to repeat what I raised on Wednesday with the judiciary, namely the importance of our continuing engagement with the judiciary so that we improve access to justice, address any blockages or shortcoming in relation to the efficiency of our courts and address the support to, and working conditions of, magistrates.

My door, and that of the Minister, is always open.

Improving access to justice is a constitutional imperative.

And one we must endeavour together.

I thank you.