Address by the Deputy Minister of Justice and Constitutional Development, Mr Andries Nel, MP, During the Debate on Budget Vote 24: Justice and Constitutional Development
17 May 2012
Honourable Acting Chief Justice and President of the Supreme Court of Appeal, Public Protector, members of the judiciary,
Members of the justice family
Comrades and Friends
The mandate of the Department of Justice and Constitutional Development, funded by Vote 24, is to uphold and protect the Constitution and the rule of law, and to render accessible, fair, speedy and cost effective justice to all in South Africa.
It is also to ensure, as part of the Justice Crime Prevention and Security Cluster, that everyone in South Africa is, and feels, safe.
This debate coincides with a number of very significant dates.
Seventeen years ago on 17 May 1995 the legislation establishing the Truth and Reconciliation Commission was passed by Parliament.
Today is also the International Day against Homophobia.
Three and a half centuries ago on 19 May 1659 the Khoi and San united in a military coalition against the Dutch in one of the very first acts of united anti-colonial resistance.
The reverberations of this act of resistance would in time join with others to form the African National Congress which this year celebrates a century of united struggle to create the kind of society described in our Constitution.
A struggle which was led by those such as Walter Sisulu, who was born on 19 May 1912, not long after the formation of the ANC on 8 January 1912.
On 18 May 1959 the Separate Representation of Voters Amendment Act came into effect to remove Coloureds from the common voters roll in the Cape. The Act had been declared invalid by the Supreme Court but the NP enlarged the Senate to obtain the required majority to re-enact it.
These dates remind us, in various ways, of why we have the transformative Constitution that we do.
Some might regard these reminders as superfluous.
However, we have the former Executive Deputy President from the Largest Minority Party and co-recipient of the Nobel Peace Prize, Mr FW de Klerk, to thank for reminding us that such reminders are, in fact, necessary.
Much of the transformative work of the Department of Justice is aimed at overcoming the legacy that he suggests was a well-intentioned sociology experiment that escaped from its laboratory.
Perhaps the challenge experienced by the former Executive Deputy President from the Largest Minority Party and co-recipient of the Nobel Peace Prize is best described by Milan Kundera in his novel Ignorance, where he says of one of his characters that:
"He knew very well that his memory detested him, that it did nothing but slander him; therefore he tried not to believe it and to be more lenient toward his own life. But that didn't help: he took no pleasure in looking back, and he did it as seldom as possible."
Or, perhaps rather, that, "... people who do not spend time with their compatriots, ...., are inevitably stricken with amnesia. The stronger their nostalgia, the emptier of recollections it becomes."
Apartheid was not, to use Schalk Pienaar's words, a "ligte mistykie" - for which a quick, and qualified, "sooorrriii" or "'skuus man" can suffice. It requires a concerted national effort to overcome.
After the World Conference against Racism in Durban in 2001, the Department, together with the other Departments, Civil Society and Human Rights Commission, developed a National Action Plan to address racism, racial discrimination, xenophobia and other related intolerance which will soon be submitted to Cabinet for approval to embark on a national public participation process.
The Department has also developed a draft policy framework on Hate Speech that has been submitted to the JCPS Cluster for consideration.
Equality Courts continue to play a crucial role in the prevention and prohibition of unfair discrimination and harassment. Through the “Access to Justice and Promotion of Constitutional Rights Programme”, workshops were held in all Provinces to promote the effective use of Equality Courts and to provide guidelines and practical training to civil society and court officials on the Prevention of Unfair Discrimination of Act, including training material and booklets, some of which have been translated into Braille.
We thank Ms. Yasmin Sooka and the Foundation for Human Rights as well as the European Union for their partnership in this Programme.
We urge organisations who are active in the areas of human rights, and women’s rights in particular, to apply for grants from the Programme before the closing date on 15 June 2012.
The Equality Review Committee established to advise on the operation of the Promotion of Equality and the Prevention of Unfair Discrimination Act, is now fully functional and being chaired by Adv Lawrence Mushwana.
In order to give effect to its constitutional development mandate, the Department has established a Branch: Constitutional Development and Participatory Democracy to be headed by a Deputy Director-General.
Small Claims Courts
Someone remarked that "Justice is open to everyone in the same way as the Ritz Hotel." It is also said that, "The houses of lawyers are roofed with the skins of litigants."
During 2011/12, 118 889 litigants did not want their skins to be used in this way and chose to use Small Claims Courts to settle their disputes.
There are now Small Claims Courts in 248 magisterial districts, 66 more than in 2009. We are working hard to ensure that the remaining 139 magisterial districts also benefit from using these, simple, speedy, cost effective courts to resolve civil disputes involving claims of less than R12,000.
A major break-through will come in June when Gauteng becomes the first province to achieve”wall-to-wall" Small Claims Court coverage in each of its 28 magisterial districts.
Significantly, most of the 23 Small Claims Courts established during the past year are in rural areas, located in the former homelands, the areas some suggest were a well-intentioned mistake.
Courts were established in, amongst others, Botsabelo, Nongoma, Ingwavuma, Umbombo, Ganyesa, Bloemhof, Balfour, Mamelodi, Matatiele and Cala.
We thank Legal Aid SA for the fact that 79 of their practitioners have already joined the ranks of 1370 SCC Commissioners. A further 25 will follow soon.
It is heartening that many candidates interviewed by the JSC have extensive experience as Commissioners of Small Claims Courts.
We also thank the Small Claims Steering Committee who are present in the gallery today, advisory boards, clerks, interpreters, Justice College lecturers, the Swiss Development Agency as well Members of Parliament who have popularised Small Claims Courts amongst their constituents.
We thank the Chief Justice for his ongoing and very public support for Small Claims Courts.
We trust that the Review of the Civil Justice System under the leadership of the Chief Justice and the Minister of Justice will consider incorporating elements of the Small Claims Court system into other areas of our civil justice system.
Legal Aid SA
Legal Aid South Africa's budget now stands at R1, 286 billion. It is Government’s primary source of delivery of access to justice through its 1790 full time legal staff stationed at 64 Justice Centres, 13 High Court Units and 64 Satellite offices country-wide.
During the past financial year Legal Aid SA delivered quality legal services in about 429 000 new legal matters, comprising 382 419 (89%) criminal and 47 060 (11%) civil matters, whilst children were assisted in 27 960 matters (80% criminal and 20% civil). A Client Call Centre assisted 46 025 people with first level legal assistance.
Strong governance and management systems have ensured unqualified audits every year for the past decade.
We thank Judge President Dunstan Mlambo for his sterling leadership of an excellent collective and for the central role he played recently in the adoption of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. We wish him the best as he assumes leadership of the High Court in Gauteng.
Chapter nine institutions
It is said that we make our decisions and then our decisions turn around and make us.
One of the decisions that we made as a nation at the dawn of our democracy, was to establish institutions supporting constitutional democracy, including the Public Protector and the Human Rights Commission.
We did so being very aware that we were not writing a constitution for a choir of angels but for real human beings, living in a society with a history and legacy that the former Executive Deputy President for the Largest Minority Party and co-recipient of the Nobel Peace Prize assures us is the result of a well-intended mistake.
We thank Adv. Lawrence Mushwana and members of the SA Human Rights Commission as well Adv Thuli Madonsela, the Public Protector for their work.
The office of the Public Protector investigated 20, 219 complaints during the 2011/12 financial year as well as 5609 complaints carried over from the previous financial year, of which 16,509 were finalised.
Someone once remarked that, "A real patriot is the fellow who gets a parking ticket and rejoices that the system works."
Our patriotism, as evinced by our commitment to the vision and values of our Constitution, cannot allow us to rejoice at exposure of wrong-doing by others, however expedient this might be in pursuance of our partisan interests, nor can it allow such exposure to drive us to despair, what it must do is to make us rejoice that our system is working.
It is a matter of concern that on every occasion in the recent past that the Public Protector or the Human Rights Commission have made findings adverse to administrations run by certain parties these have been met with aggression and rumblings of resistance and unfulfilled promises of resignation in Twitter Space.
It is worrying that this phenomenon has been greeted with deafening silence from the latter day Don Quixotes who are ever forward in going backward to tilt at the windmills they imagine to be ANC dragons threatening the Constitution.
The South African Judicial Education Institute commenced with training of judges and magistrates in January and has so far, trained 666 judges and magistrates on various aspects of judicial work.
In the past year Parliament finalised the State Liability Amendment Bill and Protection from Harassment Bill. Both the Prevention of Trafficking in Persons Bill as well as the Protection of Private Information Bills are nearly finalised.
The 2012 Legislative Programme is dominated by Bills intended to improve the application of existing legislation.
For example, the National Prosecuting Authority Amendment Bill the SA Human Rights Commission Bill and a new Legal Aid Bill.
Under subordinate legislation we must highlight that eleven proclamations were prepared authorising the Special Investigating Unit to investigate allegations of impropriety in state institutions. A further five were under consideration by the end of March 2012, underscoring our commitment to fight corruption.
Law Reform Commission
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 Magistrates Commission continues to play an important role in the transformation of the lower court judiciary. We are considering legislative measures to harmonise the work of the Commission and the Judicial Service Commission in advancing to a unified judiciary. We thank Judge Frans Legodi and other members of the Commission for their work.
We congratulate Ms. Charmaine Mabuza and other newly appointed members of the SA Board for Sheriffs. We have introduced the Sheriffs Amendment Bill to improve the functioning of the Board. The Minister will be announcing the filling of vacancies in 240 positions in the near future. We are confident that this will go a long way to promoting transformation of the profession.
We must work together to ensure that we build a system of justice not only of law. So that when we are asked the question whether it was unjust for former President Nelson Mandela to be imprisoned for 27 years we do not respond, as his co-recipient of the Nobel Peace Prize recently responded in the interview where he was quoting himself out of context, by saying:
"He [Mandela] was properly tried in front of a properly constituted court, he was represented by the best lawyers and he was found guilty of what is a crime in the United States, what is a crime in all developed counties, of treason, he planned as a young man to overthrow the government.
I thank Mr Luwellyn Landers and all the members of the Portfolio Committee.
I also express my deep appreciation to the ever supportive and committed master of multi-tasking, the Director-General, Ms. Nonkululeko Sindane, and the officials in the Department and the Ministry.
At the risk of revealing protected state information, I can inform members of this House that colleagues in the Executive have come to refer to the Minister and I as Senior Counsel and Junior Counsel respectively, so to the Minister I say, Bhungane, SC, thank you very much for who you are, for your decisive leadership, guidance, good humour and your commitment to develop and reproduce leadership.
A special word of thanks to the special lawyer in my life, my wife Kim Robinson, who is not able to be here because, true to her A+ type personality, she is walking our talk here today by conducting a constitutional law and human rights education workshop in Alexandra township in Johannesburg.
Issued by: Department of Justice and Constitutional Development
17 May 2012
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