Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Budget Vote Debate on the Office of the Chief Justice, National Assembly, 16 May 2018
Honourable Speaker / House Chairperson
Ministers and Deputy Ministers
Members of the judiciary
Ladies and gentlemen
On this very day, in 1977, Winnie Madikizela-Mandela was banished to the rural town of Brandfort, to live in House 802 with her daughter, Zinzi.
And this coming Sunday, the 20th, marks 54 years to the day that the prosecution started its closing argument in the Rivonia Trial in which Nelson Mandela was accused number 1.
Both these days are a significant part of our history and as 2018 marks the centenary of the birth of Nelson Mandela and Albertina Sisulu, it’s important to reflect on how much our justice system and our courts have changed since those dark days.
Our judiciary has changed – now reflecting the diverseness of our society.
Our jurisprudence has changed – with the Constitution and human rights now running like a golden thread through all its pronouncements.
Our courts have changed – now a national competency and readily accessible country-wide (even in the smallest of places), legitimate and independent.
Now to some people – like those in the DA – this may mean nothing.
For the simple reason that they were never at the receiving end of a justice system that maintained apartheid laws.
They were never detained without trail.
They never faced the wrath of apartheid-era judges for their involvement in the struggle for democracy.
Yet they have the gall to say, and I quote the Hon Belinda Bozzoli, writing in the Daily Maverick, that -
“So far this year each minister has prefaced his or her speech with a paean to Nelson Mandela and Albertina Sisulu, sometimes at considerable, saccharine length.”
We are proud to be representing the party that gave the world a Mandela and a Sisulu – a Mandela and a Sisulu that stood for the ideal of a non-sexist, non-racist society.
And we know how the DA deals with issues of race.
The Honourable Kohler-Barnard reminisced about the good old days of apartheid – yet she is still here. And better still, she is now challenging the constitutionality of the Equality Act – anything to try and justify her hate speech remarks.
Helen Zille tweeted about the virtues of colonialism – she is still in the DA.
And then there’s Patricia de Lille. Does anyone actually know what the charge against her is?
The Honourable Bozzoli may make light of the achievements of the democratic government over the past two decades – but to the majority of the people of this country, the legitimacy and accountability of our courts and the justice system actually do matter.
The Hon Bozzoli says that the Justice Department has failed to meet it targets.
Does she think that the new High Courts built themselves, did the rolling out of Small Claims Courts to each magisterial district in the country happen by itself? Do Thuthuzela Care Centres magically operate themselves?
I would suggest that the Hon Bozzoli show her ignorance somewhere else.
Government is committed to strengthening the independence of, and support to, the judiciary and the courts. At the same time, the Office of the Chief Justice is committed to the provision of support to the judiciary for the realisation of an effective and efficient judicial system.
This mutual support is envisaged to guarantee access to justice for all.
A transformed judiciary has been one of the success stories of our constitutional dispensation.
In October 1993, less than a year before the dawn of our democracy, Nelson Mandela told the law Society of the Transvaal, as it was then known, why our judges and magistrates are so important.
“The vast majority of the people of South Africa cannot be asked to wait indefinitely for fundamental changes in the judiciary which is not perceived to be sensitive to the needs and aspirations of all the people of South Africa, and which does not enjoy the broad confidence of all South Africans.”
Today our judicial officers reflect our society. They are sensitive to the needs and aspirations of our people and our judges and magistrates enjoy the confidence of all South Africans.
Whilst we have made significant progress in terms of racial transformation of the judiciary, further measures need to be taken to ensure that more women are appointed to the bench.
It is noteworthy that some 29 magistrates have become permanent judges since 2004, and of these 29, the overwhelming majority (18) are women.
This shows the importance of ensuring that our magistracy has a sufficient number of women serving at all levels and this is an area where we are pleased to advise that we have made significant progress.
If we look at the figures, in terms of race and gender of the magistracy over a 20-year period, we see that today 46% of the magistracy are women – up from a mere 18% in 1998.
And today 69% of magistrates are Black – up from 37% in 1998.
In the budget vote of the OCJ on 17 May last year, I mentioned that our Magistrates’ Courts continue to be the first port of call for access to justice for most people - with more than 700 court houses countrywide. Often our magistrates are the very face of the law.
Our Magistrates’ Courts are at the forefront of people’s interaction with the law and the justice system – a justice system which speaks to the needs of our people.
One of the matters that both the Regional Court Presidents Forum and the Chief Magistrates Forum, which meet quarterly and which I am invited to attend, raised is the level of communication, the support and the timeous response from, for example, the Court Managers, the Regional Heads and officials at National Office to the day to day and other challenges raised by the Heads of Courts.
Some of these matters, such as interpreters, intermediaries, court equipment and infrastructure, impact severely on the performance of the courts and we should do more to constantly monitor the status and progress in this regard.
It is, in our view, an absolute imperative that court officials and officials at our regional and national offices attend to any of these challenges without delay, as it not only affects the performance of the courts, but also impacts on other role-players, such as the public.
The term “single judiciary” commonly refers to a process through which the magistrates’ courts and magistrates are integrated to form part of a unified court system. This is what is envisaged in our Constitution.
Freeing the magistracy from executive control has been a gradual process.
The Magistrates’ Courts Act of 1944 is based on the pre-1993 judicial dispensation where the magistracy was part of the civil service and performed both administrative and judicial functions.
They were appointed by the then Department of Justice and were predominantly appointed from the ranks of prosecutors and they exercised their powers and functions under the direction and control of the Director-General.
The Magistrates’ Commission was established in 1993, signalling the start of the de-linkage of the magistracy from the executive – something that was necessary for the independence of the judiciary.
On progress towards a single judiciary, we are making progress in developing draft legislation aimed at replacing the Magistrates’ Court Act, 1944 and the Magistrates Act, 1993 so as to introduce a modern statutory framework for the Lower Courts and its judiciary.
The Lower Courts Bill will replace the Magistrates’ Courts Act of 1944, thereby aligning the administrative provisions relating to the courts with the model introduced by the Superior Courts Act.
The Magistrates Bill will replace the Magistrates Act of 1993 and one of the objectives will be, as far as it is possible, to align the misconduct proceedings, including the suspension and removal from office of magistrates, with that of the judges. Provision is also made for the declaration of “registrable interests”, similar as those in the case of judges.
The Committee has indicated that the legislation must be expedited.
I want to stress that proper consultation is vital.
I have recently had a second meeting with the leadership of the magistracy on both draft Bills, and have now also received their preliminary comments on the Bills. The Bills will now be further refined.
I would like to convey our appreciation to the magistracy for their contribution as this will now enable us to consult and engage with the Chief Justice on these Bills.
We believe that the new legislation being developed will take us a step closer to achieving a single judiciary.
The large number of vacancies of permanent magistrates as well as the long period that it remains vacant, continues to be a matter of concern.
Although acting magistrates are appointed to these vacancies, it is not in the interest of the independence of the courts and the administration of justice. I am personally reluctant to appoint acting Magistrates for lengthy periods.
We are therefore pleased that the Magistrates Commission advertised 344 vacancies, across all ranks of magistrate, in March this year.
The previous round of advertisements for posts of magistrates and senior magistrates was in 2016 and we working towards a system of proactively and timeously filling vacancies.
We are currently evaluating the current cluster system for chief magistrates in terms of which the one chief magistrate is appointed as the Cluster Head for an Area and the other one or two chief magistrates in that Cluster are required to report to the Cluster Head, although they are holding the same office.
We are also revisiting the spread of chief magistrates. For example, in the Western Cape with its vast borders all three of the chief magistrates are holding office within a few kilometres from each other - one for Wynberg, one for Mitchells Plain and one for the Cape.
Towards the end of November last year the Magistrates Commission approved that Regulations relating to the requirements for the appointment of magistrates, leave and a code of conduct be submitted to the Minister for consideration.
The drafting of separate Financial Instructions for Magistrates is also underway and will further de-link them from prescripts applicable to public servants.
I want to extend our appreciation to the 59 Magistrates, across the country, who serve as Commissioners in the Small Claims Courts.
Commissioners of these courts give their time and expertise, free of charge, to ensure that Small Claims Court work and to serve those who would not otherwise have access to justice.
Let me, however, raise some issues of concern.
Firstly, the image of the criminal justice system and the trust the public has in it are dependent on how the public view the courts and presiding officers.
We have noted an increasing number of misconduct hearings against very senior magistrates.
The Magistrates’ Commission and Parliament act against such persons, yet there are still too many such incidents. I trust the code of conduct that I mentioned earlier will assist in this regard.
Other matters of concern are the decrease in court utilisation in the lower courts in terms of criminal cases and increased backlogs.
Last week I had indicated that a comparison over two financial years had showed, in some areas, an increase in finalised cases.
However, if one looks at the trend from 2013/14 to 2017/18, a downward trend is noted in the influx of new cases in the lower courts. Since the lower courts deal with the majority of criminal work, the reduced inflow ultimately affects the number of cases that can be finalised by the courts, as a direct relationship exists between new cases and finalised cases.
It is also well known that the efficient use of available court days by a criminal court has a direct positive impact on the output of that court. Both the district and regional courts utilised fewer court days.
Now, before Hon Bozzoli and others get it wrong, let me explain.
Court performance entails the involvement of a number of role-players: such as judicial officers, prosecutors, legal aid, court officials, the police, correctional services and public works, amongst others.
The coordinating committees established by the Chief Justice to facilitate improved case-flow management in all courts – including the lower courts - are now in place.
These are the National Efficiency Enhancement Committee (NEEC) and 9 Provincial Efficiency Enhancement Committees (PEECs) as well Regional and District Efficiency Enhancement Committees (REECs and DEECs). They are all operational.
The Chief Justice’s Norms and Standards are binding on all judicial officers and all courts. In view of these initiatives by the Chief Justice, the addressing of court blockages is receiving more focused attention.
However, in the light of the problems being faced in our courts, we need to ask ourselves what more can be done to enhance court performance and ensure better coordination between role-players.
In 1991, a mere year after the release of Nelson Mandela from Victor Verster, the African National Congress issued a Policy Document, called the Constitutional Principles for a Democratic South Africa.
In it, the ANC outlines its vision for a new justice system.
“Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society.
In a free South Africa, the legal system shall be transformed to be consistent with the new Constitution.
The Courts shall be accessible to all and shall guarantee to all equal rights before the law.”
Chairperson, Honourable Members
We have achieved this.
This is no small achievement – despite what the naysayers may say.
And the budget will assist us to further build on these gains.