Address by Mr Andries Nel, Deputy Minister of Justice and Constitutional Development during the Debate on Budget Vote: Justice And Constitutional Development
7 Jun 2011Honourable Chairperson
Heads of Court and Members of the Judiciary
Heads of Constitutional Institutions
Comrades and friends
Ladies and gentlemen
Chairperson, 27 years ago in 1984 the people of South Africa marked the first anniversary of the United Democratic Front (UDF). On this occasion one of its co-presidents said: “Sons and daughters
To me today I’m a great big mother
For today our multiracial baby is born
For today our baby that will rule this South Africa in future is born
The multiracial baby, the United Democratic Front
Which is uniting the people to speak with one voice
Which is uniting the people with the truth
Which is uniting the people to say no to the Koornhof Laws
Which is uniting the people to say away with the New Constitution, because it doesn’t give us freedom”
Chairperson, these were the words of the late Ma Albertina Sisulu.
Today, because of the selfless struggle that she and so many others waged, we do have a Constitution seeks to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; a Constitution that provides us with both the vision and the institutional framework to guarantee to all South Africans, united in our diversity, human dignity, the achievement of equality and the advancement of human rights and freedoms.
We must continue to work together to unite all in our society with this truth.
Government’s five priorities of education, health, creating jobs, rural development and land reform as well as fighting crime and corruption are guided by this vision.
Everything we do in the Department of Justice and Constitutional Development is done in pursuit of making real the vision mandated by our Constitution of a transformed and accessible justice system, which promotes and protects social justice, fundamental human rights and freedoms by providing transparent, responsive and accountable justice for all.
Next week we commemorate the thirty fifth anniversary of the 16 June uprising in 1976 under theme, “Youth Action for Economic Freedom in our Lifetime”, reminding us of the enormous contribution young people have made and continue to make to our struggle for liberation and the need to realise the socio-economic rights contained in our Constitution.
The legislative programme outlined by the Minister will require careful management and co-ordination by and between the National Assembly and the National Council of Provinces (NCOP).
In this regard, we look forward to regular interaction with the relevant Portfolio and Select Committees. And would like to thank their Mr L Landers and members of the Portfolio Committee.
Significantly, this programme contains the Constitution Seventeenth Amendment Bill, which seeks, among others, to lay the basis for establishing a transformed and unified judiciary.
This will involve, amongst others, harmonisation of the work of the Judicial Service Commission and the Magistrates Commission with a view to establishing uniform norms and standards for the appointment of, and handling of complaints concerning judicial officers.
I would like to thank Judge President Bernard Ngoepe for his sterling contribution over many years to the work of the Magistrates Commission.
Let me also congratulate Judge Frans Legodi on his appointment as the new chairperson. I am confident that under his leadership the commission will travel even further along the transformation highway.
In this regard, it is significant that of the 80 newly appointed district magistrates during the 2010/11 financial year, 66 are Black and 14 are White. Forty-six of these newly appointed magistrates are women. During the same period 26 regional magistrates were appointed of which 23 are black and three white. Ten of these regional magistrates are women.
During this period a total of 2 031 acting appointments of magistrates were made. We are exploring ways of using this process further to accelerate the process of transforming our district and regional court benches, including making this process more open, transparent and structured and also enlarging the pool from which appointments are made.
The South African Judicial Education Institute Act of 2008 has already established a single framework for the training of judges and magistrates.
With effect from April 2011, the judicial training programme of the Justice College has now been formally integrated into the programme of the South African Judicial Education Institute.
The Council of the Institute tasked the Chief Justice and the Deputy Chief Justice to direct the work of the Institute with the assistance of appropriately qualified administrative staff.
The first judicial education programmes will be implemented soon after the important Access to Justice Conference scheduled for 7 to 11 July 2011.
Guided by vision contained in the Constitution that Ma Albertina Sisulu struggled for, that of human dignity, the achievement of equality and the advancement of human rights and freedoms, we continue to provide strategic support to independent institutions supporting constitutional democracy to ensure their independence, impartiality, dignity and effectiveness.
We express our gratitude to Advocate Thuli Madonsela and Advocate Lawrence Mushwana and members of the HRC.
We also continue to work with civil society to promote access to justice. The department’s Access to Justice and Promotion of Constitutional Rights Programme has moved with speed in utilising more than R200 million to provide a number of grants to civil society organisations through the Foundation for Human Rights. We thank Ms Yasmin Sooka and other members of the foundation.
Priority is being given to the most vulnerable in society - women and children, rural and urban poor communities, farm workers, people affected by HIV and AIDS, child headed households, people affected by violations of human rights, the aged, persons with disabilities, youth including children in prisons and foreign nationals in need of assistance.
We thank the European Union for their support and partnership in this vitally important programme.
Legal Aid South Africa (LASA) has been very effective in utilising a budget of more than R1 billion to execute the constitutional imperative of providing legal aid to indigent accused persons and vulnerable litigants. LASA now provides legal aid services at all our criminal courts through a national network of 64 Justice Centres and 64 Satellite Offices staffed by 1 600 salaried in-house legal representatives and access to over 4 500 accredited lawyers.
During the 2010/11 financial year LASA provided legal services in 421 365 legal matters, comprising assistance in 389 914 criminal legal matters and 31 451 civil legal matters. Through these legal services 25 586 children were assisted in criminal matters and 2 529 children in civil matters.
The Legal Aid Advice Line was launched in November 2010, facilitating telephonic access of primary legal assistance by persons from across the country and especially from rural areas, thus increasing access to justice. Since then, the Legal Aid Advice line has assisted over 13 926 callers. We thank Judge President of the Labour Court Dunstan Mlambo and CEO Vidu Videlankar.
The South African Law Reform Commission continues to make an invaluable contribution to the development, improvement, modernisation and reform of our law through their research and recommendations. The focus of the statutory law revision project is to ensure the constitutionality of the entire statute book. The Commission will play an important role in the review of the civil justice system, which is our flagship project in the 2011 Medium Term Expenditure Framework (MTEF) cycle. We thank chairperson Judge Yvonne Mokgoro.
In this regard also, the department will, through the Sheriffs’ Transformation Programme strengthen the regulatory framework to address the transformation challenges in the appointment of sheriffs and the service and execution of civil processes. We will also prioritise the filling of the 230 vacant offices, which are currently filled on acting basis. We thank outgoing chair Judge Nathan Erasmus and Acting Chairperson Ms Charmaine Mabuza.
When it comes to access to justice, Small Claims Courts demonstrate clearly that size does matter and that small is big.
We continue to increase both the number and the capacity of our Small Claims Courts. We have to date established 224 Small Claims Courts - 26 of which during the past year - with the emphasis on rural and remote communities. In addition, 17 inactive Small Claims Courts were revived and 229 Commissioners were appointed during the past year. We are on course to establish a Small Claims Court in each of our 384 magisterial districts.
The monetary jurisdiction of Small Claims Courts has been increased from R7 000 to R12 000, enabling more litigants to institute claims in an informal and cost effective manner.
Awareness of the services offered by Small Claims Courts has increased. During the past year no fewer than 400 000 cases dealt with in our Small Claims Courts.
We will continue to improve legislative and administrative framework of the Small Claims Courts.
We thank the Swiss Agency for Development and all commissioners and clerks of Small Claims Courts.
As Honourable Members know, all magistrates’ courts are now designated as Equality Courts. This has resulted in an increase in the number of cases enrolled at these courts from 447 in 2008/09 to 508 in 2009/10.
Equality Courts dealt with a total of 320 cases and enquiries between 1 April and 30 September 2010. Of these, 100 have been disposed off. The majority of matters relate to hate speech and unfair discrimination.
The United Nations Human Rights Council and the General Assembly have adopted a Resolution declaring 2011, the International Year for People of African Descent, to mark the 10th Anniversary of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerances.
The department will be working with all sectors in our society to finalise our National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances (NAP).
In a fortnight we will be celebrating the 30th anniversary of the adoption of the African Charter on Human and Peoples’ Rights on 27 June 1981 and later this year, on 21 October, we will celebrate the 25th anniversary of African Human Rights Day, the day on which the African Charter came into effect.
We have during the past year, together with the Department of International Relations and Cooperation participated in a number of international fora relating to justice matters.
One of these was the Review Conference of the International Criminal Court held in Kampala in June 2010.
Our support for the International Criminal Court is a principled one that reflects our commitment to the foundational values of our own Constitution as well as that of the African Union.
The AU Constitutive Act affirms the sovereignty of the state as represented by the people and not just governments. It grants participation of African people in the activities of the Union and promises never again to be blind, deaf or mute to the evils of war crimes, genocide and crimes against humanity by granting powers to the Union to intervene in States where these crimes are committed.
Speaking at the second Conference of African National Institutions for the Promotion and Protection of Human Rights in Durban on 1 July 1998, former President Nelson Mandela said that:
"We have sought to ensure that the International Criminal Court is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court."
African States were amongst the most ardent proponents of the creation of the International Criminal Court during the negotiations leading to the adoption of the Rome Statute. It is also no accident that with 31 States Parties, Africa remains the biggest single regional block in the Assembly of 115 States Parties to the Rome Statute.
South Africa views the International Criminal Court, not in isolation, but as an important element in a new system of international law and governance.
The importance of the International Criminal Court needs to be seen in the context of the need for the fundamental reform of the system of global governance. As President Jacob Zuma said, "We argue that the affairs of the world of today cannot continue to be managed by the existing institutions of global governance unless they undergo fundamental reform."
In this regard, and in relation to the International Criminal Court, former UN Secretary-General Koffi Anan, speaking during the opening session of the Review Conference of the Rome Statute in Kampala said:
"And questions of credibility will persist so long as three of the five permanent members of the Security Council refuse to reconsider their position and join those who have taken the courageous step to become parties to the Statute. The same is valid for countries that aspire to permanent membership. Indeed, the problem is not limited to the Security Council. Six of the G20 have not ratified the Rome Statute.
"The States Parties to this historic Statute must therefore pose the question, “What kind of leadership is this which would absolve the powerful from the rules they apply to the weak?” A laggard leadership is no excuse.”
It is the lack of transformation of these institutions, the UN Security Council (UNSC), as well as less than judicious pronouncements by certain officials linked to the Court that is responsible for the perception that the ICC focusses exclusively on Africa.
The point has been made by, amongst others, our Chief Justice that this is a wrong perception. Of the five matters before the Court, three were referred by African States, one by the United Nations Security Council (and one was initiated by the Prosecutor. This does not mean that the Prosector should not expedite the investigation of the many other situations elsewhere in the world.
Time does not allow me to address a number of important matters related to the Southern African Development Community (SADC) Tribunal.
Suffice to say that we have argued in various fora that we must at all times safeguard jealously those institutions that we collectively have created. Where these institutions are found to have shortcomings our responsibility is to address the shortcomings, never to discard or discredit the institutions.
We do so based on the conviction, expressed by President Jacob Zuma on the occasion of the opening of the Harare Agricultural Show in Zimbabwe on 29 August 2009, that:
"Africa cannot only be defined by geography. We should also come together around a set of values that define our humanity. For this reason the promotion of democracy, the respect for human rights and the improvement of governance are vital for our success as a continent."
In conclusion, I would like to express my sincere appreciation to the Minister for his comradeship, support and guidance at a personal level as well as his principled and decisive leadership of the Department and the Justice, Crime Prevention and Security Cluster. Our ever hard working and even keeled Director-General and the officials of the Department.
Our deep appreciation also goes to the long suffering, ever diligent and also ever sleep deprived officials in the Ministry. Last and most, appreciation to my favourite member of the legal profession, the one I receive most excellent pro bono support from, my wife Kim Robinson.
Issued by: Department of Justice and Constitutional Development
7 Jun 2011
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