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22 October 2008

Madame speaker
Honourable Ministers and Deputy Ministers
Honourable members
Comrades and friends
Ladies and gentlemen

The provisions in this Bill are diverse in nature. They amend 15 different Acts of Parliament which affect different aspects of the administration of justice. Almost without exception, they address certain problem areas which have arisen in practice or give effect to constitutional imperatives. I do not intend dealing with all the amendments. The memorandum on the objects of the Bill is comprehensive, going into quite some detail on every clause. I would like to highlight a few of the provisions which are particularly noteworthy.

There are a number of provisions which are necessary to give effect to judgments of the Constitutional Court. Constitutional Court judgments have made the amendments in clauses 1, 13, 14, 15, 16 and 21 necessary. Clause 1 amends the General Law Amendment Act of 1935, which deals with the concealment of births. The main object of this clause is to delete the reverse onus provision contained in section 113(2) of that Act. This clause also provides that the Director of Public Prosecutions must authorise prosecutions for the intentional concealment of births.

The mischief this aspect of the Bill is trying to address is the institution of indiscriminate prosecutions against women, who often have these charges against them withdrawn at a later stage. I see from the Portfolio Committee's report that there are still a number of aspects in this clause which need further investigation, after consultation with role players.

Clauses 13 to 16, arising out of a Constitutional Court judgment in the case of
State v Shinga, ensure that appeals from the lower courts to the High Courts and from the High Courts to the Supreme Court of Appeal, are held in open court, that the full record of proceedings of the trial court is made available to judges in petition proceedings, where leave to appeal has been refused by the trial court, and that at least two judges consider every petition.

Clause 21 gives effect to another Constitutional Court judgment, this time in respect of the Matrimonial Property Act of 1984. The Constitutional Court was of the view that damages for patrimonial loss awarded in such instances must not fall into the joint estate but must become the separate property of the injured spouse. It declared this prohibition to be unconstitutional.

I deal now with the provisions in the Bill dealing with admission of guilt fines. These are to be found in clauses five, six, seven, eight, 17 and 39. The amendments in clause seven, that is the amendments to section 57 of the Criminal Procedure Act, form the crux of these amendments. The rest are mostly consequential in nature.

The effect of the existing provisions is that different admission of guilt fines
exist in different parts of the country for different offences. There are two worrying factors about this legislative framework. Firstly, section one of the Constitution, dealing with the right to equality, guarantees everyone the right
to the equal protection and benefit of the law. Living in one part of the country might result in a person receiving a heftier fine for a particular offence than a person living in another part of the country. This cannot be right.

The second problem relates to fact that there is no uniformity in respect of the offences and the amounts which can be paid as admission of guilt fines across the board, many persons are arrested and brought to court. This clogs up the court rolls with petty offences and results in persons spending time in detention unnecessarily, often over weekends.

The proposed amendments are intended to promote uniformity, thereby ensuring that the objectives of admission of guilt fines are used to their full potential, to unburden our CJS of minor offences. Clause seven proposes that the
Minister must determine the offences which qualify for admission of guilt fines. The Minister must also determine the amounts which must be paid in respect of those offences.

These determinations must be made after consultation with the Chief Justice, the National Director of Public Prosecutions (NDPP) and the Minister for Safety and Security. The clause repeals the power of magistrates to determine amounts for admission of guilt fines for certain offences in their magisterial districts and takes away the power of clerks of the court to set admission of guilt fines. I am positive that such a uniform regime for the admission of guilt fines will pay dividends in the long run. This amendment has been strongly promoted and supported by the Review of the Criminal Justice System (CJS).

In similar vein, I am of the view that the amendments to section 60 of the Criminal Procedure Act will be beneficial for the criminal justice system. Clause nine amends the bail provisions. In terms of these bail provisions and the Constitution, an accused person must be released on bail if the interests of
justice permit. Clause nine therefore proposes that if a court decides that the interests of justice permit the release of an accused on bail, the court must hold a separate inquiry to determine the ability of the accused to pay the sum of money that the court intends setting as a condition for release or to consider alternative conditions for release on bail.

This, I am sure, will go a long way in alleviating the overcrowding in prisons. There are eleven thousand persons awaiting trial in prison who should not be there. Their continued detention in prison is, in most cases, as a result of their inability to pay the bail money set.

Presently, South African officials doing diplomatic duty abroad who commit offences cannot be prosecuted due to diplomatic immunity principles. Clause 11 inserts a new section in the Criminal Procedure Act which confers jurisdiction on South African courts to try offences committed abroad by these officials in certain circumstances.

The Judge's Remuneration and Conditions of Employment Act, requires a judge who is discharged from active service and who is not yet 75 years old, to perform service for three months every year when required to do so. Such a judge may volunteer to perform more than 3 months if requested. Judges older than 75 years may also voluntarily perform such service. Voluntary service may only be performed after consultation with the Judicial Service Commission at the request of the head of the relevant court and with the approval by the Minister.

The question may be asked what is the need for provisions of this nature? These provisions seek to ensure that judges who have been discharged from active service do not routinely continue in active service, blocking the entry of new members to the bench, often to the detriment of aspirant young judges who will facilitate the transformation of the judiciary. This clause intends to create a procedure where retired judges can be obtained quickly for purposes of dealing with backlogs and additional work at courts where temporary judicial posts have been created for this purpose.

Because the Judicial Service Commission only sits twice a year, this requirement to seek its approval frustrates efforts to tackle backlogs in the courts. The Act is being amended so that only the approval of the Minister, at the request of the head of the court, is required when it is necessary to "recall" a judge who has been discharged from active service to come and assist for a short while in a temporary post. The amendment will only apply in respect of created temporary posts and not in the case of permanent judicial posts.

Lastly, I would like to thank the chairperson and other members of the Portfolio Committee, who despite a very heavy workload, have ensured that we processed this Bill before the term of this third democratic Parliament ends. Congratulations to all of you from all parties.

May I also thank members of my department for their assistance in processing the Bill, especially Advocate Lawrence Bassett. On behalf of government and the governing party, the ANC, I unconditionally support the passing of this Bill and recommend it to House, urging for the support of all parties.

I thank you.

Issued by: Department of justice and Constitutional Development
22 October 2008
Source: Department of justice and Constitutional Development (http://www.doj.gov.za)