Speech by Mr. Andries Nel, MP, Deputy Minister of Justice and Constitutional Development during the debate on Budget Vote 23: Justice and Constitutional Development in the National Assembly
5 May 2010
Mr Speaker / Chairperson
I have a passionate dislike for the term: “all protocol observed”. Fortunately, the Minister has spoken before me. I can, therefore, take refuge by saying that I associate myself with the acknowledgements that he has made. I hope to acknowledge many in, and beyond, this audience by speaking of their good deeds.
I add my voice to those who have expressed their sadness and condolences on the passing of Judge Mohamed Jajbhay and the stalwart human rights campaigner, Mrs Sheena Duncan.
Sixteen years ago, on 26 August 1994, the late Minister Dullah Omar opened the debate on the first justice budget vote of our democratic South Africa. He concluded with the words, “We have taken the first steps. They are small ones, but we are comforted by the thought that every journey begins with a single step.”
One year – and a few steps – later, during the 1995 justice budget debate, he outlined in greater detail a vision for justice in South Africa and stressed that:
“When access to justice does not exist or is inadequate – in our case hopelessly inadequate – and where there is no equal protection under the law, there will be a greater tendency for people to take the law into their own hands. The result is violence, crime and the destruction of the safety and security of communities.
Access to justice, therefore, is the heart and soul of our vision in the work of the Department of Justice. It is part of our contribution towards building a just society, but also towards guaranteeing the safety and security of all South Africa’s communities.”
In his State of the Nation Address President Jacob Zuma identified five national priorities. These are the creation of decent work and sustainable livelihood, education, health, rural development and food security as well as the fight against crime and corruption.
These priorities are mutually dependent and reinforcing. They require united action by all of us to achieve. The question of access to justice is central to the realisation of these goals.
Chairperson, Small Claims Courts is a powerful mechanism to provide access to justice, especially to the poor. These Courts function on the basis of speed, simplicity and cost effectiveness.
These courts provide a forum for the resolution of civil claims up to R7 000.00 an amount determined in 2004. Consultations have started to increase this amount to between R10 000.00 and R15 000.00.
Interestingly, Brazil has a very dynamic system of Small Claims Courts in which jurisdiction is defined in terms of a nationally determined basic minimum salary. Currently these Courts have jurisdiction to hear matters involving up to 40 minimum salaries or USD11 000.00 (SAR75 000.00).
Our objective is to establish at least one Small Claims Court in each of South Africa’s 384 magisterial districts.
Presently, we are just over the half-way mark, with 201 functioning Small Claims Courts, 13 of which were established in the past year, and the imminent proclamation of a further seven. Our aim is to establish another 60 courts during 2010 and a further 60 by the end of the 2011 financial year.
Most of these newly established courts will be in rural areas. Special attention is also being given to those fifteen branch courts designated as full service courts. These are all located in what the topography of apartheid would have classified as black areas.
The excellent work done in these courts is done after hours, on a voluntary basis, without any remuneration, by the 1 078 legal practitioners who preside as Commissioners. We call on all to follow their example.
Training manuals for clerks and commissioners will be launched publicly on 21 May 2010 and the first training for commissioners will commence on 19 May, further improving the quality of services rendered by these courts. We wish, yet again, to extend our appreciation to the Swiss Development Agency for their support and partnership in this endeavour.
Outreach awareness campaigns to popularize the use of these courts are being promoted as well as referrals of cases to the courts by civil society, various pro bono organisations, legal aid clinics and lawyers.
We call upon all Members of Parliament to assist us by adopting the rallying cry: “One Constituency, One Small Claims Court.” Chairperson, Legal Aid South Africa has continued to discharge its mandate to facilitate access to justice by providing legal representation, and has done so in a manner that can only be described as excellent – an example to all organisations, public and private.
During the 2008/09 financial year Legal Aid South Africa continued providing legal aid services at all criminal courts through 62 justice centres and 55 satellite offices. During this period these centres delivered quality legal services in 434 922 new legal matters which included assistance in 404 613 criminal legal matters and 30 309 civil legal matters.
The establishment of a Legal Quality Assurance Unit to review the work of legal practitioners and provide assurance on quality throughout the organisation will further strengthen the quality programmes provided by Legal Aid SA.
Outdoor advertising campaigns, community events and the branding of police and prison cells to increase awareness of legal aid services and human rights continued.
A board of independent non-executive directors continued to provide strategic direction and guidance to the organisation. The 2008/09 financial year, was the eighth consecutive year that Legal Aid SA achieved an unqualified audit and the fourth consecutive year of no matters of emphasis in the Auditor-General’s reports.
Chairperson, the work of sheriffs forms an important link in the civil justice value chain. The transformation of this sector is one of our priorities. We are implementing measures to enhance the capacity of sheriffs to improve the turn-around time on the service and execution of court processes.
Amendments to deal with flaws in the appointment process for Sheriffs will be finalised by August, where after the long overdue process of filling 230 vacant offices will commence. In this regard, we are consulting with the South African Board for Sheriffs and the organised profession.
We are deeply concerned that under developed and poverty-stricken areas are unable to attract suitable persons for appointment as sheriffs. These nonviable offices constitute almost 30% of the 384 magisterial districts and most are in the Eastern Cape, Northern Cape and Limpopo.
We will soon be introducing legislation that will enable the Department to appoint State employees in deserving circumstances to ensure that communities in these areas are able to enjoy the equal benefit and protection of the law. The Department is in the process of evaluating comments received in relation to the Bill.
Chairperson, at the dawn of our democracy, former President Nelson Mandela, addressing the Africa Regional Workshop of the International Ombudsman Institution in 1996, stated that: “We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end our Constitution contains several mechanisms to ensure that government will not be part of the problem, but part of the solution.”
We commend the work done by our State Institutions Supporting Constitutional Democracy such as the Human Rights Commission, the Commission on Gender Equality and the Office of the Public Protector.
We have a constitutional and legal responsibility to support these institutions. We are committed to work closely with them, without compromising their independence.
It is a matter of serious concern that the remuneration and conditions of service of members of a number of our State Institutions Supporting Constitutional Democracy continue to be dealt with in terms of an outdated framework that predates the adoption of our Constitution. We are attempting to expedite implementation of the Cabinet decision that this framework must be reviewed.
Chairperson, the South African Law Reform Commission has continued doing valuable work by researching and making recommendations regarding the development, improvement, modernisation or reforms our law. The commission has done so informed by the need to improve access to justice and transform justice in the country, to protect the rights of all parties – especially those of women, children and the poor, to make laws less complicated and legal processes more affordable and accessible. The Commission is busy with 17 substantive research areas approved by the minister.
It is clear that the Commission adds value to the government’s strategic outcomes and priorities and that there is recognition, locally and internationally, of the tremendous contribution the commission has made to law reform.
Chairperson, I would like to highlight three bills in our legislative programme that impact most directly upon our objective of ensuring that everyone in South Africa is safe and feels safe.
Firstly, the Prevention and Combating of Trafficking in Persons Bill, providing for the prosecution of imposition of heavy penalties for those involved in the trafficking of persons, and for the protection of and assistance to, victims of trafficking, among others.
These crimes are perpetrated by trans-national syndicates, hence the calls from many states for regional and international cooperation and our ratification of international instruments.
We have demonstrated our intention to deal forcibly with these crimes. A National Action Plan is currently being finalised that will enable the coordination of preventative initiatives, criminal justice responses, training, public education and improvement of services to victims of human trafficking.
We urge honourable members to process this Bill with the urgency that it deserves.
Secondly, the Protection from Harassment Bill is a victim empowerment tool and provides for the granting of a protection order by a court of law against persons who harass or stalk their victims. This is similar to the procedures found in the Domestic Violence Act, but is also available to victims of harassment who fall outside a domestic relationship.
Thirdly, the much spoken about amendment to section 49 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), dealing the use of force in affecting arrest. This amendment is not about “shoot to kill”, but about bringing section 49 into line with the judgment of the Constitutional Court in the Walters case. This will assist law enforcement officers in the performance of their functions, thereby enhancing efficiency in the combating of crime. The introduction of this Bill into Parliament will be preceded by a broad public consultation process.
Chairperson, other Bills which are being prepared for submission to Parliament include the Bills mentioned by the Minister as well as the Muslim Marriages Bill, the State Liability Bill, the Prevention and Combating of Hate Speech, Racial Discrimination, Xenophobia and Related Intolerance Bill, the South African Human Rights Commission Amendment Bill and the customary Judicial Matters Amendment Bill.
Chairperson, one aspect of our legislative programme that often goes unnoticed is so-called subordinate legislation – the rules and regulations, the nuts and bolts, required for the implementation of Acts of Parliament.
Honourable members, if the devil is in the detail, then the drafters of subordinate legislation must own substantial tracts of sub-prime time-share in Hell. However, whenever I meet members of the dedicated team responsible for this important work, they smell, not of brimstone but, of nicotine. I take this opportunity, publicly, to urge them to part ways with this habit – we need your skills for many years to come.
I would like to highlight the excellent work done in respect of the Child Justice Act, 2008; Chapter 5 of the Promotion of National Unity and Reconciliation Act, 1995, dealing with the reparation and rehabilitation of victims of gross violations of human rights; as well as the Criminal Procedure Amendment Act, 2008, dealing with expungement of criminal records in respect of misdemeanours.
Chairperson, I would like to thank the Minister for his leadership, guidance and wisdom. I would also like to associate myself with the Minister in thanking the Chairpersons of the Portfolio and Select Committees, Advocate Ngoako Ramatlhodi and Mr Harry Mofokeng respectively, as well as committee members from all parties for the committed manner in which they have executed their constitutional mandate to legislate and to oversee the work of the executive. Special thanks to Adv. Menzi Simelane, former Director-General, as well as the current Director-General, Adv Nonkululeko Msomi and the staff in the Department of Justice and Constitutional Development.
I also wish express appreciation to the following persons: The Chairperson of the Magistrate’s Commission, Judge Ngoepe; the Chairperson of the South African Law Reform Commission (SALRC), Justice Mokgoro; the Chairperson of LASA, Judge Mlambo; Chairperson of the Human Rights Commission, Adv Mushwana; the Chairperson of the South African Board for Sheriffs (SABFS), Judge Erasmus, and the Public Protector, Adv Madonsela. The respective members of these institutions and their staff are also thanked for their work.
Last, but not least, I wish to thank a lawyer who occupies a special place in the Court of my heart, my wife, Kim Robinson.
Chairperson, I would like to conclude where I started, with the debate on the first justice budget vote in democratic South Africa, on 26 August 1994.
It was during this debate that I spoke for the first time in our democratic Parliament. I spoke about young people and justice. I spoke about proposals made by the ANC Youth League for the reform of the juvenile justice system. Chairperson, on 1 April 2010, 16 years later, the Child Justice Act finally came into operation, giving effect to almost all these proposals by the ANC Youth League.
I make this point to illustrate the painfully slow pace at which the transformation of our legal system has, in many instances, proceeded and the need to increase the pace of change dramatically. We are confident that, working together, we can speed up change. Through our joint efforts in the Justice, Crime Prevention and Security (JCPS) Cluster aimed at fulfilling the outcome and outputs set for the cluster by the President, we can ensure that all in South Africa will be safe and feel safe.
Chairperson, I urge the House to support the Budget of the Department of Justice and Constitutional Development for the 2010/11 financial year.
Issued by: Department of Justice and Constitutional Development
5 May 2010
Source: Department of Justice and Constitutional Development (http://www.justice.gov.za/)