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4 June 2008

Chairperson;
Honourable Members;
Comrades and friends;
Ladies and gentlemen;

I commence with a sincere apology for the absence of Minister Brigitte
Mabandla, MP, who is abroad.

Introduction
Chairperson,
I present the Department for Justice and Constitutional Development’s budget to this House at a time of national trauma, upheaval and shame for our country. The recent criminal (and in some instances orchestrated) attacks on foreign nationals are one of the most painful events that can happen to any nation and is a terrible indictment of our country. None of us can and should attempt to justify these attacks. Poverty and its legacy cannot be used to turn on desperate people that are seeking refuge in our country, for economic or whatever other reason. No amount of economic hardship and discontent can ever justify criminal activity and bigotry that these attacks represent, and any suggestion that poor service delivery and the rising cost of living is to blame for these attacks must be rejected with the contempt it deserves. Equally, any suggestion that foreigners alone are responsible for the high crime levels in our country is totally misplaced and detracts from the fact that many South Africans are involved in criminal activity. Therefore, I for one will not provide these cowardly and dastardly criminal acts with any veneer of legitimacy by considering or proffering any excuse or explanation for them, and will not even refer to this criminality as xenophobia.

Have we as South Africans so quickly forgotten that it was our brothers and sisters across the borders that gave our leaders and others refuge when they had to flee into exile from the apartheid forces? Do we forget the ravages rent upon these countries by the apartheid state for their support of our liberation struggle? Shame upon us and I would like to add my sincerest apology for the barbarity of a small number of thugs amongst us.

Honourable Members,
What are the rights of non-nationals seeking refuge in South Africa? Our cherished Constitution is premised on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. Chapter 2 contains the Bill of Rights which defines the human rights of all the people in South Africa. The Constitution guarantees most fundamental rights to all individuals, whether they are citizens or non-citizens. The Constitution expressly uses the word “everyone” to connote this reality. There are however exceptions where certain rights apply only to citizens. Rights pertaining to voting, political party formation, standing for public office, obtaining a passport, entry into the country, freely choosing a trade, occupation or profession, and benefiting from state measures relating to access to land, housing and other socio-economic rights are expressly limited to South African citizens. So any debate on these issues has been resolved in the Constitution.

Chairperson,
Last week during the budget vote debate in the National Assembly, Minister Mabandla announced the creation of special regional courts in the affected areas in order to expedite all the criminal cases arising from these murderous attacks. Attacks were reported in seven (7) of the nine (9) provinces. Most of these were in the Gauteng and the Western Cape. In this regard, three (3) special regional courts will commence with sittings on Monday in Khayelitsha, Wynberg and Atlantis. These courts will have dedicated prosecutors and judicial officers and the main goal is to fast track these cases as much as possible through the criminal justice system.

Budget and Financial Management
Chairperson,
In order to facilitate the realisation of the Department’s three strategic goals, of: improved access to justice, transformation of the legal and justice system and organisational efficiency, a total budget of R9,7 billion is allocated for the 2008/9 financial year. The allocation covers the following programmes:
* R3,4 billion for Court Services
* R2,1 billion for the National Prosecuting Authority
* R1,4 billion for judges and magistrates (statutory allocation)
* R191 million for the South Human Rights Commission, Commission on Gender Equality and the Public Protector
* R941 million for administration
* R660 million for the Legal Aid Board
* R503 million for State Legal Services

The allocation reflects an 11% increase from the previous allocation. The increase in the Medium Term Expenditure Framework (MTEF) include an allocation for major policy priorities such as building new court infrastructure in areas of need; the maintenance and the upgrading of existing infrastructure (R140 million); reduction of case backlogs (R98 million); implementation of legislation envisaged to be promulgated during the term of this parliament, namely the Regional Court Jurisdiction Amendment Act, the Judicial Education Institute Bill and the Child Justice Bill (R74 million); increasing the legal research capacity (R45 million); implementation of the Victims Charter (R10 million); transformation of the Judiciary (R15 million); review of the criminal justice system (R10 million); and improving the management of cases (R10 million).

It is pleasing that the Department has managed to substantially increase its financial performance with a 5% increase in overall spending. The improved spending was a result of the timeous identification in the quarterly budget reviews of the Department of possible savings and the virement of savings to other priority areas. These re-allocations of projected savings were confirmed through parliamentary approval during the adjusted estimates; approval by the accounting officer; and national treasury approval as prescribed in the Public Finance Management Act (PFMA). Funds were re-allocated in August and November as prescribed by the budget management framework of the Department – considering the spending priorities needs of the department, the NPA and Legal Aid Board (LAB). Spending increased from 92, 7% to 97, 7 %. In the last financial year one of the primary focuses was to provide the much needed human resource capacity in all the sections of the Department in order to improve efficiency. In that period we were able to reduce our vacancy rate from 23% to 12%.

Radical transformation of the Criminal Justice system
Chairperson,
The review of the criminal justice system, which is one of the apex priorities endorsed by government earlier this year, is underway in partnership with Business Against Crime (BAC). Cabinet has approved a package of seven fundamental and far-reaching transformative changes to the Criminal Justice System, as a whole, as it is presently. The seven are:
* The adoption of a single vision and mission leading to a single set of objectives, priorities and performance management targets
* The establishment of a new coordinating and management structure for the Criminal Justice System at all levels
* The establishment of an integrated and seamless national CJS IT database/system containing all information relevant to the CJS, and review and harmonise the template for gathering information relating to the CJS.
* The modernisation, in an integrated and holistic manner, of all aspects of the system and equipment of the CJS
* Making substantial changes to the present courts processes in criminal matters
* The implementation of all the proposed key priorities identified for the component parts of the CJS which impact upon the new court processes
* The introduction of changes to the Community Police Forum regime, including expanding their role to deal with all matters in the CJS and making them financially independent.

The President has now given the go-ahead to commence with the implementation of this seven-point plan and to report progress to the July Cabinet Lekgotla.

Access to Justice
Infrastructure Development and Spatial re-alignment of courts
Honourable Members
To give effect to our undertaking to bring justice facilities closer to the poor and marginalised, we continue to commit a substantial amount of our budget towards building additional courts and service delivery points for the office of the Master to ensure that we reach out to rural and remote communities.

We continue to build, in ever-increasing numbers, court buildings where there were none before. Not only have we built twenty three (23) new courts and refurbished and upgraded fifty eight (58) courts since the inception of democracy, we have also improved the architecture and design of these courts to meet the service level standards befitting our constitutional era. These courts are more accessible to the users, including people with disabilities and have in-built facilities commensurate with the work of the courts, such as archives to safeguard court information and libraries to provide adequate capacity for legal research. The courts in Tembisa near Kempton Park, Khayelitsha in Cape Town, and Motherwell near Port Elizabeth are examples of the modern architecture, which compares with courts in much more advanced countries. The five (5) courts that are currently under construction and the eighteen (18) that will be built in the next five (5) years will retain the modern architecture.

We are also proceeding with our review of the spatial distribution, racial and geo-political separation of courts, which is the cause of the vast disparities in the court infrastructure and resources between the former White and Black areas were created. Twenty three (23) of the ninety (90) Branch Courts will, in the current financial year, be re-designated as full courts. The designation of these courts will be effected gradually, commencing from 01 August 2008. By designating Branch Courts as proper courts, the communities in the rural and former Bantustans and Black townships will enjoy equal access to civil and criminal justice as their counterparts in the towns and suburbs. This will alleviate the hardship they have endured for many years of having to travel long distances from remote areas in the former Bantustans or townships to obtain services in the old White areas. For example, the people from Poffader Branch Court in the Northern Cape commute more than two hundred and thirty (230) kilometres to its main court in Kenhardt to obtain services, such as maintenance, deceased estate’s benefits and protection orders.

Similarly, during this financial year, the hundred and sixteen (116) of the two hundred and twenty seven (227) periodical courts located on private farms, in police stations and prisons will be replaced with accessible courts within the community settlements. The system of periodical courts benefited largely the beneficiaries of apartheid. This system does not have a place in a constitutional state where the independence of the judiciary and the right to a fair trial are the corner stones of our constitutional order.

Civil Regional Courts
Honourable Members,
One of the important developments in our efforts to ensure improved access to justice for all our people, especially the poor and those in rural and outlying areas of the country, is not only the building of new courts facilities, but also giving the courts in these areas new jurisdictional mandates in certain civil matters. In this regard, we are preparing for the implementation, in anticipation of the expected passing by the NCOP, of the Jurisdiction of Regional Courts Amendment Bill, which confers civil jurisdiction on the Regional Courts. The Regional Courts, despite being the intermediate court between the district and the High Court were not given civil jurisdiction by the apartheid regime. The exclusion of civil jurisdiction to these courts results in the denial of access to civil justice to the majority of the citizens who cannot afford to pursue legal redress in civil matters at the High Courts. The immediate impact of this intended legislation, will be to ease the hardship of the vulnerable and poor members of society who are compelled by the current system to seek civic legal redress in remote courts, some times beyond the provinces where they reside.

In particular, this legislation will correct the jurisdictional areas of the country’s Divorce Courts. For the entire Republic three divisions of the Black Divorce Courts were established in 1929, namely: the North East Division with its seat in Durban, the Central Division with its seat in Johannesburg and the Southern Division with its seat in King Williams Town. Regardless of where people stayed they were expected to file their cases at one of the seats of the courts even though they had no connection with those areas declared as seats of these courts. In 1997 the Divorce Courts were de-racialised to bring them in line with the constitutional order. However, their demarcated areas were left unchanged. The pilot Family Court Centres established at some of the major towns did not remove, but minimised the hardship endured by people in far flung areas from such courts. Through this Bill the Divorce Courts and the pilot centres of the Family Court Centres will be integrated into the Regional Courts.

Rumours abound, especially in the magistracy about how we are planning to implement this Act. Many of these are wrong. So let me spell out clearly what our intentions are.

We have allocated funds for the creation of additional, new judicial, registrar and administrative posts to deal with the extended civil Regional Courts jurisdiction provided for in this Bill. The creation of the additional judicial posts for the civil jurisdiction Regional Courts will ensure that the current criminal jurisdiction Regional Courts are not diverted from the current heavy criminal case load. In line with the incremental approach advocated in respect of this Bill, when and where the need arises, civil jurisdiction may also in exceptional cases be conferred on the regional courts which are presently dealing with criminal cases only. Appropriate judicial education programmes will be designed, through the envisaged Judicial Education Institute, to provide for the incremental training of the current Regional Magistrates, in practical civil law. This will address the current potential vacuum caused by the fact that most of the current Regional Magistrates have mainly a criminal law background. This will also allow the current Regional Magistrates dealing with criminal matters: to apply for permanent appointment to the new civil jurisdiction Regional Courts’ posts or to be appointed in an acting capacity in such courts, or to be capacitated for appointment to deal with cases if civil jurisdiction were to be extended to a specific existing regional court with criminal jurisdiction only.

Small Claims Courts
The improvement of the functioning of the Small Claims Courts is one of our key priority areas. The Department has developed a National Action Plan (NAP) to Re – engineer Small Claims Courts, through which the poor and the vulnerable members of society are able to access civil justice in respect of claims at the lower end of the spectrum. The NAP has led to an increase in the number of requests and inquiries received from Regions and courts for establishment of additional Small Claims Courts, appointment of Advisory Boards and appointment of Commissioners. We have in total one hundred and sixty eight (168) established Small Claims Courts in the country and our long term target is to establish at least one Small Claims Court in every magisterial district, and maybe even in sub-districts.

Sheriffs’ Profession
Honourable members, as you are no doubt aware, the sheriff’s profession is one of the important role players in the civil justice system. One of the major challenges we have identified in the transformation of the profession is the lack of an accurate database or baseline information relating to the profession. For example, there was no accurate data in respect of: the number of vacancies; the number of magisterial districts for which a sheriff holds an appointment; the number of deputy sheriffs; the number of resignations and retirements, and so on, to facilitate proactive planning and to guide or assist the Minister in the transformation of the Sheriffs’ profession.

Although the audit of the profession has unfortunately taken longer than anticipated, the Department is now in a position to advise the Minister on the way forward. As of 31 March 2008, there were 546 sheriffs, of which 462 were for the Lower Courts and 84 for the Superior Courts. Of all the sheriffs, 74% are White and 26% are Black. Women comprise only 13% of all sheriffs. We are ready to advise the Minister to commence with the advertisement of at least 126 vacant posts (currently occupied by acting sheriffs) and to propose various other aspects of the rationalisation of the profession. This will no doubt impact significantly on the race and gender composition of the Sheriffs’ profession.

The Department has also drafted amendments to the Regulations relating to the Sheriffs, inter alia, with a view to streamlining and establishing uniformity in the appointment process and to re-designate administrative functions that previously resided with Magistrates.

Rationalisation of the Judiciary/Magistracy and the Court Structures
Chairperson,
The Department will, during the course of this year, finalise the consolidated policy framework to address outstanding aspects of transformation of the judiciary, which formed the basis of the Superior Courts Bill, introduced into Parliament by the previous Minister. These aspects include: the affirmation of the Constitutional Court as the apex court in the Republic; the establishment of single judiciary which is geared towards the full integration of the magistracy into the judiciary; the establishment of a single High Court with divisions, the harmonisation and integration of the Magistrates Commission and the Judicial Services Commission; the creation of a single rule making body; the language usage in courts; and court administration and policy relating to the administration of justice vesting in the Executive.

Legal Services Charter
Honourable Members,
The Legal Services Charter, which could become one of milestones in the transformation of the legal sector, is nearing completion. To mark this milestone, in December 2007, the Law Society of South Africa presented the Minister with the second draft of the Legal Services Charter, which is the culmination of the work of multi-sectoral steering committee, coordinated by the Director-General, which produced the first draft. The full participation of the legal profession in the Legal Services Charter process, through the Bar, the side Bar and the para-legal formations is a reflection of the commitment of the legal sector towards the establishment of a transformed justice system founded on the values of equality, human dignity. The Charter will, among others, provide sustainable programmes to redress imbalances of the past in the provision of legal services and for the transfer of skills to new entrants into the legal profession. The Minister will soon take the Charter to Cabinet and Parliament before it is published. With the finalisation of the Charter, it is imperative that we expedite the finalisation of the Legal Practice Bill. This Bill will bring us closer to the regulation of all practitioners under a single statutory framework. The process of regulating the profession into a unified, independent legal profession, which will serve the interest of justice, the public and members of the profession, has been a complex and protracted debate. The Bill will hopefully bring this debate to a close.

Legislative programme
Honourable members,
The Criminal Law (Sexual Offences and Related Matters) Amendment Bill, which was debated over a very long time, was finalised by Parliament at the end of 2007. This Bill revolutionises the outdated law relating to sexual offences. Most of its provisions came into operation on 16 December 2007. The following Bills, which are intended to be finalised during this session of Parliament, require special mention:
* the South African Judicial Education Institute Bill, which for the first time in our history, will provide for an integrated judicial education framework for both judges and magistrates, has recently been approved by the NCOP;
* the Judicial Service Commission Amendment Act which introduces the long awaited complaints handling procedures for judges, will be adopted by the NCOP this week;
* the Child Justice Bill, the Traditional Courts Bill, the Customary Law of Succession Amendment Bill and the Renaming of High Courts Bill are presently being considered by the National Assembly.
* The Criminal Procedure Amendment Bill and the Judicial Matters Amendment Bill are presently being introduced into Parliament, and three Bills dealing with the prohibition of floor crossing will be introduced once the thirty (30) days publication in the Government Gazette has expired.
* Two Bills dealing with the dissolution of the DSO are being introduced in Parliament. The General Law Amendment Bill establishes the Directorate for Priority Crime Investigations (DPCI) with the SAPS, which is accountable to the National Commissioner of SAPS, in the place of the DSO.

The South African Law Reform Commission and the Rules Board for Courts of Law continue to support our endeavours to transform the justice sector. In particular, the SALRC has undertaken a project to review all pre 1994 legislation to evaluate their relevance to and consistency with the Constitution. Similarly, the Minister has requested the Rules Board to review all old rules which are an impediment to access to justice or are inconsistent with the Constitution. I am confident that these statutory bodies will complete this important work within a reasonable time.

The new Legal Guide will also be finalised in the course of this year, for tabling and adoption in Parliament.

Conclusion
In conclusion, I wish thank the Select Committee chairperson, Kgoshi Mokoena and members for their oversight role in an outstanding and enthusiastic manner.

Honourable Members I am indebted to this House for supporting this budget vote of the Department of Justice and Constitutional Development.

I thank you!
Issued by: Department of Justice and Constitutional Development
4 June 2008
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)