Minister of Justice and Correctional Services Budget speech & responses by DA

Minister of Justice and Correctional Services, Adv Michael Masutha gave his Budget Vote Speech on 19 April 2016.
_____________________________________________________________________________

Good morning ladies and gentlemen

This year we celebrate the 20th anniversaries of the Constitution and the commencement of the Truth and Reconciliation Commission hearings. These key developments in our democracy have played a profound role in healing our nation from its painful past and nurturing non-racial and human rights based society.

When President Mandela signed the Constitution into law in Sharpeville on 10 December 1996, he set us on a path to build a society that respects constitutional rights, thereby marking a break from a past characterised by racial oppression, intolerance and discrimination by a minority against a majority in our society. We have since made considerable progress in building a tolerant and human rights society.

In this spirit, we must all rise to deal with all forms of intolerances to consolidate our democracy. As a department, we will soon introduce legislation which will address racism and in particular, hate speech. We have also developed and released with Cabinet’s approval the draft National Action Plan (NAP) to Combat Racism, Xenophobia and related intolerances for public comment. Many sectors of society are already coming forward to share their views on the draft NAP.

We encourage all South Africans to make their inputs to the draft NAP by 30 June 2016.  In addition we are currently expanding the provisions of the draft Bill to establish hate crimes to include hate speech which will be introduced in parliament later this year. This will help bolster existing legislative measures notably under the promotion of equality and prevention of unfair n discrimination Act and other related laws.

These are amongst the concrete measures we are embarking upon to give expression to the President’s call during his State of the Nation Address for the nation to focus its human rights promotion efforts this year towards the fight against racism.

At the commencement of the current administration and in response to the mandate espoused in the National Development Plan (NDP) and the policies of the ruling party to turn South Africa into a safe haven where all are and feel safe, we have committed ourselves to have at the centre of our efforts the restoration of public confidence in the justice system. These includes ensuring that the public appreciates and are therefore able to participate fully in the justice system and feel protected and supported by it whether in criminal or civil proceedings.

Last year, I referred to default judgements and emoluments attachments orders or garnishee orders as they are often called, which are prone to abuse by unscrupulous debts collectors and creditors. The Courts of Law Amendment Bill seeks to amend the Magistrates’ Court Act of 1944 in order to address abuses in the emoluments attachment order (EAO) system and to amend the Superior Court Amendment Act, 2013, so as to provide the rescission of judgements with the consent of the judgement creditor in the high court. In the main, the amendment is intended to alleviate the plight of debtors who find themselves at the receiving ends of abuses in the debt collecting system in our magistrates’ courts.

We are encouraged by the success of our criminal justice system in dealing with crime and corruption. The NPA conviction rate has shown a remarkable 14.1 per cent overall increase.  In particular, during 2015/16, the NPA recorded an 82 per cent conviction rate in trio crimes, 88 percent in organised crime and 94 per cent in complex commercial crimes. In respect of sexual offences, the conviction rate stands at 70 percent, an increase of 6 per cent from the 64 per cent obtained in the previous financial year. The fight against sexual violence on our streets and in our homes has been intensified with the re-introduction of the Sexual Offenses Courts in August 2013. Since then, we have upgraded 46 regional courts into sexual offences courtrooms. These courts are specially designed for the delicate handling of sexual offences through the use of technologies, intermediaries and appropriate court environment for dealing with sexual offences.

The overall improvement in the justice system can also be attributed to the aggressive stance adopted by our judiciary, prosecution and law enforcement as demonstrated by the 28 life sentences and 538 years imprisonment recently imposed on serial rapist Peter Khoza. Performance in the lower courts has been enhanced by utilizing the Alternative Dispute Resolution Mechanisms (ADRM) which swiftly settles disputes through arbitration and mediation. In 2015/16, a total of 152 743 cases were finalised through ADRM, exceeding the set target by 9 percent. We are currently working with the NPA to refine the system to ensure that it is fair and just, not only to the accused but equally to the victim as well.

In order to broaden access to justice, we are steadily implementing our court infrastructure programme.  In this regard, I am pleased to report that the Limpopo High Court which was built at a cost of R1, 1 billion commenced operation from 25 January 2016.  The Mpumalanga High Court and 3 Magistrates Courts in Dimbaza, Mamelodi and Port Shepstone will be completed in the current financial year.

Further to this, we have aligned the jurisdiction of magisterial districts with municipal boundaries in Gauteng, North West, Limpopo and Mpumalanga provinces. This programme ensures that our people access justice services closer to their communities.  The rollout to the outstanding five provinces will take place in the current Medium Term Expenditure Framework.

We have also, during the past year, piloted the Court-Annexed Mediation programme to allow more people to access justice speedily and in a cost effective manner.

We are prioritising the amendment of the Magistrate’s Court Act to address the utilisation of all official languages in court proceedings. Concurrently, we are improving the quality of interpreters for both foreign and local languages.

One of the key pieces of legislation that we will be prioritising this year is the finalisation of the Traditional Courts Bill. We are working with representatives from traditional leadership and civil society to take this process forward, with a view to introducing the Bill in June 2016.

We are nearing our target to establish a Small Claims Court in all magisterial districts. In 1994 there were 120 Small Claims Courts which were deliberately located in mainly white and urban areas. To date, our department has established 371 Small Claims Courts and will prioritise the remaining 32 courts in the current financial year.

More people, in particular the indigent, are increasingly receiving free legal assistance and advice through the Legal Aid South Africa. In the first three quarters of the 2015/2016 financial year, the Legal Aid South Africa took on 315 138 new criminal matters and 228 905 new civil matters and assisted 11 781 children via its Justice Centres and 64 satellite offices.

Our department continue to make progress in the protection of children’s rights, especially with regards to maintenance. In 2015, the Maintenance Amendment Act was enacted to intensify our efforts of ensuring that every child receives the appropriate parental care, basic nutrition, shelter, basic health care services, education, and other related support. We have introduced stringent measures to enforce maintenance recovery including black-listing of perpetual defaulters. The legislation further introduces interim relief whereby children will be able to receive maintenance whilst an application is under consideration.

We are improving our services in the Master’s office through the automation of our services and we will continue to improve the efficiency of the system to ensure better quality of services to our people.

Together with our colleagues in the JCPS cluster we continue to implement measures to decisively deal with cases of corruption. In 2015/16, 163 government officials were convicted of corruption-related offences.

The Asset Forfeiture Unit (AFU) continues to ensure that criminals do not benefit from the proceeds of crime. In this regard, the AFU obtained 483 forfeiture orders to the value of R372 million. Recoveries totalling R356.9 million were obtained in terms of the Prevention of Organised Crime Act  which is  166 percent higher than the target of R134 million. 

In the ethos of our Constitution, we also accept that a great deal of transformation must take place in the justice sector broadly. To this effect, I will be outlining the initiatives of the department aimed at transforming State legal services and consolidating the State litigation account. In this regard, we will be pursuing the establishment of the Solicitor-General dispensation. We are also forging ahead with initiatives to transform the legal profession through the National Legal Forum.

Transformation initiatives are also firmly afoot in the Sherriff’s profession. In January this year, we appointed 30 Sheriffs, of whom 43 % of new appointees are women and 57% are African.

On youth empowerment, last year I indicated that the department would be initiating youth development opportunities. Through our partnership with Safety and Security, Sector Education and Training Authority (SASSETA), the department has appointed 800 interns in the 2015/2016 financial year. Between February 2010 and February 2015 the NPA has recruited 814 aspirant prosecutors. The Legal Aid South Africa has appointed 581 candidate attorneys and 182 paralegals.

The R18 billion budget that we have been allocated includes the following transfers: R1, 577 billion to Legal Aid South Africa, R262, 8 million to the Public Protector and R153, 4 million to the South African Human Rights Commission. We are confident that the allocated budget of R18 billion in 2016/17 will assist us in expanding access to justice and creating efficiencies in our service.

In conclusion, allow me to thank the outgoing Director-General, Ms Nonkululeko Sindane who contributed immensely in enhancing the governance and administration of the department.

I thank you.

_______________________________________________________________

Responses

Our benches cannot be bought: Werner Horn (DA)
Shadow Deputy Minister of Justice and Correctional Services

It has rightfully being said that while democracy without an independent judiciary would fail and turn into tyranny, tyranny would inevitably collapse in the face of an independent judiciary.

This powerful reminder must form the backdrop of this debate on the judiciary’s budget, especially as it takes place in a time in which the vast majority of South Africans are still basking in the comfortable re-assurance provided to all South Africans who hold dear our constitutional democracy by our Constitutional Court in the judgement in the case of the EFF and DA against the Speaker of the National Assembly.

Chair, we all know that Section 165 of the Constitution guarantees the independence of the judiciary in very explicit terms and calls on our Courts to interpret and apply our Constitution and our law without fear, favour or prejudice, and while we know there is a duty on organs of state to ensure the independence, impartiality, dignity, accessibility and effectiveness of the Courts and to not interfere with the functioning of the Courts, the constitutionalists among us have been deeply worried about the way the subtle erosion of our Constitution and its status as supreme law of the country has been enabled and effected by the Executive and the majority party in this legislature over time.

This judgement and the absolute clarity it gave not only on how each of the branches of government should exercise their constitutional obligations, but also on the commitment of our judiciary to uphold and protect the Constitution – and consequently its own independence – is nothing less than transcendent, especially in the face of the continued attempts over a prolonged period to subdue our judiciary.

While this debate therefore must be used to celebrate the steadfast commitment of our judiciary to our Constitution, we must remind ourselves of the warning by Chief Justice Mogoeng, nearly a year ago in an address to the Magistracy, when he said, “We ought to be terrified and deeply concerned when the judiciary does not appear to be what it was established to be. When there is a possibility, no matter how remote that the judiciary might be manipulated… then we have to be vigilant. Without independent judiciary democracy is doomed”

Chair: Let there be no doubt: The stubborn refusal by the members of the ANC to even mention in this budget report the issue of the unresolved conflict between the judiciary and the executive about the operational independence of the judiciary raises all kinds of alarm bells warning us that this ANC is already contemplating using their grip on the purse strings of the budget of the Office of the Chief Justice to exert influence, of the undue variety, on the judiciary.

The steadfast resistance of the Minister to honour the agreement reached by his predecessor with the judiciary to facilitate the complete operational independence of the judiciary by enabling the Office of the Chief Justice to negotiate its annual budget directly with National Treasury, rather than with the Executive, must be questioned.

The run around we are still seeing on this issue is not doing anything to ease our fears: First there was the promise of a colloquium to be arranged by the Minister at the end of last year to help carve the way forward. That did not happen.

Now, and on this point Chair I urge all of the ANC members on the committee to, as their President would say “listen properly”, because they all claim that not a word on this issue was said during the budget briefing process, but yes now, six months later, the Minister during his political briefing of the Portfolio Committee stated, while being as evasive and noncommittal as ever, that he is still to formulate a policy position on this issue through on-going dialogue.

Chair, let there be no doubt. The issue of the independence of our judiciary is not supposed to be the topic of government policy. It has been decided with absolute finality by the drafters of our Constitution in very clear and emphatic terms that we are to have an independent judiciary – that means independence in all respects, including operational independence. To achieve this does not need something similar to a journey to space. All you need is the political will.

In the meantime, this Minister and this ANC must be advised: If the refusal to properly fund the Public Protector to get back at her caused public unhappiness, and if the sacking of Mr Nene as Finance Minister caused a public outcry, you must be prepared for uproar, pandemonium and even rebellion from South Africans if you dare try and intimidate the judiciary with even the most subtle failure on your part to properly fund it in budgets to come.

State capture stops at our courts: Glynnis Breytenbach (DA)
Shadow Minister of Justice

The Office of the Chief Justice has expressed a preference for a funding model based on the model applicable to independent institutions like the Auditor-General, who negotiate their budget directly with National Treasury and not with the Executive, which would go a long way to ensuring and entrenching the independence of the judiciary.

I am sure no one will argue with the fact that if we want our constitutional democracy to succeed we must continue to ensure the independence of the judiciary.

We have had a number of very recent lessons in just how important an independent judiciary is.

We have watched for some time now as various state institutions are captured and rendered ineffective in order to advance the agenda of cronyism and to ensure that corrupt actions by those inside and outside of government are protected and those responsible are not held to account.

Wildly inappropriate appointments are made, with appointees not even remotely qualified to hold the positions they are appointed to. Other appointments are made with the expectation that the incumbent will toe the line.

This fortunately does not always work out as expected.

Imagine the shock when the Public Protector demonstrated independence and did her job without fear, favour or prejudice.

We saw what happened to Mxolisi Nxasana when he asserted independence.  He was bundled out of office within days.

But no more important or far reaching example exists than the firing of Nhlanhla Nene.  Just see what asserting independence did for him.  President Zuma was quite happy to do irreparable harm to the economy of the country in order to further his own agenda and protect his cronies.

We have watched, largely helplessly, with our warnings falling on very deaf ears, while SAPS, the NPA, SIU, HAWKS, SARS, SABC and other state institutions have been captured and bent to the will of the President and his cronies.

Attacks on the office of the Public Protector have been vicious and unfettered, but unsuccessful, until the recent Nkandla judgement by the Constitutional Court.  Now a somewhat different tune is being sung.

Similar attacks have regularly been launched on the judiciary now and in the past by the majority party. So far the judiciary has withstood the onslaught.

So we saw Gwede Mantashe saying recently about the Western Cape and North Gauteng high courts:

“There is a drive in sections of the judiciary to create chaos for governance; that is our view.  We know if it doesn’t happen in the Western Cape high court it will happen in the North Gauteng – those are the two benches where you always see that the narrative is totally negative and creates a contradiction.”

Mantashe has also contemptuously referred to the judges as “counter-revolutionaries”.

This type of rhetoric continued unabated and unchecked until Chief Justice Mogoeng Mogoeng requested an unprecedented meeting with the President over the unwarranted attacks on South Africa’s judges.

Deputy Chief Justice Moseneke has been quoted as saying, “I chose this job very carefully.  I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society.  It’s not what the ANC wants or what the delegates want, it is about what is good for our people.”

As set out in the Mail and Guardian recently – one cannot lose sight of the fact though, that when Justice Moseneke is replaced on the bench the majority of the Constitutional Court judges will be Zuma appointees.  As Justice Mogoeng has proved, that does not mean that South Africa’s highest court will be populated by pro-government judges.  It does mean that those who are outspokenly critical of the state are arguably less likely to have a shot at serving in the country’s most powerful court.

That is concerning.

The country’s judges have become the last line of defence against poor state decision making, government abuses and failure to comply with the Constitution.  This neither fair nor desirable, but currently there is no other choice available than to rely on the independence of the judiciary to do the right thing.

It is little wonder then that the majority party and this committee in particular want to keep the Office of the Chief Justice under their thumb.  The ANC holds the view that he who pays the piper calls the tune.

There is nothing that the majority party fears more than independent thought and actions, hence the sustained attacks on the judiciary. It also fully explains their reluctance to cut the fiscal umbilical cord with the Office of the Chief Justice.

Time after time South Africans have had to look to the courts to protect them and the country from the excesses of this government.  This is not an ideal situation, but ordinary citizens have been left with little choice.

South Africa has increasingly become a country where challenges to the state’s unlawful and irrational decisions and policies are routinely decided in the courtroom. And that’s what makes the judiciary so incredibly important.  An independent judiciary is all that normal citizens have to protect them.

And as usual, the President blamed others for what went wrong. In his so-called apology, the President said, “I wish to reiterate that any action that has been found not to be in keeping with the Constitution happened because of a different approach and different legal advice.” He also said there was no deliberate effort or intention on his part to subvert the Constitution.

No rational, thinking South African will ever believe this. To say it is a monumental insult to every South African citizen, and to the judiciary.

The Speaker went so far as to make the ridiculous assertion that the court’s finding that the National Assembly’s conduct was “inconsistent” with the Constitution was different from saying it “violated” the Constitution.

Regarding her own position, Mbete said, “May I also publicly say I’m not resigning nor do I believe there will be a reason shortly to decide to resign. I’m not considering resigning.”

The President, Mr Mantashe and Ms Mbete showed utter disrespect for the people of South Africa with their utterances, undermining people’s intelligence and ridiculing the constitutional principles that the Chief Justice so eloquently spelt out in the Nkandla judgement.

In 2012, the President spoke about the need to “review the powers of the Constitutional Court”.

This trend then found expression in the Judicial Service Commission, the constitutional body that appoints judges. Its membership includes several members of the ANC who have become increasingly preoccupied with “separation of powers” in recent years.

This is, of course, a euphemism for their growing preference for non-activist judges who will more likely defer to the Executive. This is evident when questioning candidates for judicial appointment in the twice-annual public interviews conducted by the body.

Bearing in mind this acrimonious approach to the judiciary, which frankly borders very closely on contempt, it is imperative that the Office of the Chief Justice attains and maintains total independence, both principally and financially.

No iota of influence, financial or otherwise, can b countenanced with regard to the judiciary.  The survival of South Africa as a constitutional democracy depends on it.

State capture stops at our courts:  Glynnis Breytenbach (DA)
Shadow Minister of Justice

The Office of the Chief Justice has expressed a preference for a funding model based on the model applicable to independent institutions like the Auditor-General, who negotiate their budget directly with National Treasury and not with the Executive, which would go a long way to ensuring and entrenching the independence of the judiciary.

I am sure no one will argue with the fact that if we want our constitutional democracy to succeed we must continue to ensure the independence of the judiciary.

We have had a number of very recent lessons in just how important an independent judiciary is.

We have watched for some time now as various state institutions are captured and rendered ineffective in order to advance the agenda of cronyism and to ensure that corrupt actions by those inside and outside of government are protected and those responsible are not held to account.

Wildly inappropriate appointments are made, with appointees not even remotely qualified to hold the positions they are appointed to. Other appointments are made with the expectation that the incumbent will toe the line.

This fortunately does not always work out as expected.

Imagine the shock when the Public Protector demonstrated independence and did her job without fear, favour or prejudice.

We saw what happened to Mxolisi Nxasana when he asserted independence.  He was bundled out of office within days.

But no more important or far reaching example exists than the firing of Nhlanhla Nene.  Just see what asserting independence did for him.  President Zuma was quite happy to do irreparable harm to the economy of the country in order to further his own agenda and protect his cronies.

We have watched, largely helplessly, with our warnings falling on very deaf ears, while SAPS, the NPA, SIU, HAWKS, SARS, SABC and other state institutions have been captured and bent to the will of the President and his cronies.

Attacks on the office of the Public Protector have been vicious and unfettered, but unsuccessful, until the recent Nkandla judgement by the Constitutional Court.  Now a somewhat different tune is being sung.

Similar attacks have regularly been launched on the judiciary now and in the past by the majority party. So far the judiciary has withstood the onslaught.

So we saw Gwede Mantashe saying recently about the Western Cape and North Gauteng high courts:

“There is a drive in sections of the judiciary to create chaos for governance; that is our view.  We know if it doesn’t happen in the Western Cape high court it will happen in the North Gauteng – those are the two benches where you always see that the narrative is totally negative and creates a contradiction.”

Mantashe has also contemptuously referred to the judges as “counter-revolutionaries”.

This type of rhetoric continued unabated and unchecked until Chief Justice Mogoeng Mogoeng requested an unprecedented meeting with the President over the unwarranted attacks on South Africa’s judges.

Deputy Chief Justice Moseneke has been quoted as saying, “I chose this job very carefully.  I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society.  It’s not what the ANC wants or what the delegates want, it is about what is good for our people.”

As set out in the Mail and Guardian recently – one cannot lose sight of the fact though, that when Justice Moseneke is replaced on the bench the majority of the Constitutional Court judges will be Zuma appointees.  As Justice Mogoeng has proved, that does not mean that South Africa’s highest court will be populated by pro-government judges.  It does mean that those who are outspokenly critical of the state are arguably less likely to have a shot at serving in the country’s most powerful court.

That is concerning.

The country’s judges have become the last line of defence against poor state decision making, government abuses and failure to comply with the Constitution.  This neither fair nor desirable, but currently there is no other choice available than to rely on the independence of the judiciary to do the right thing.

It is little wonder then that the majority party and this committee in particular want to keep the Office of the Chief Justice under their thumb.  The ANC holds the view that he who pays the piper calls the tune.

There is nothing that the majority party fears more than independent thought and actions, hence the sustained attacks on the judiciary. It also fully explains their reluctance to cut the fiscal umbilical cord with the Office of the Chief Justice.

Time after time South Africans have had to look to the courts to protect them and the country from the excesses of this government.  This is not an ideal situation, but ordinary citizens have been left with little choice.

South Africa has increasingly become a country where challenges to the state’s unlawful and irrational decisions and policies are routinely decided in the courtroom. And that’s what makes the judiciary so incredibly important.  An independent judiciary is all that normal citizens have to protect them.

And as usual, the President blamed others for what went wrong. In his so-called apology, the President said, “I wish to reiterate that any action that has been found not to be in keeping with the Constitution happened because of a different approach and different legal advice.” He also said there was no deliberate effort or intention on his part to subvert the Constitution.

No rational, thinking South African will ever believe this. To say it is a monumental insult to every South African citizen, and to the judiciary.

The Speaker went so far as to make the ridiculous assertion that the court’s finding that the National Assembly’s conduct was “inconsistent” with the Constitution was different from saying it “violated” the Constitution.

Regarding her own position, Mbete said, “May I also publicly say I’m not resigning nor do I believe there will be a reason shortly to decide to resign. I’m not considering resigning.”

The President, Mr Mantashe and Ms Mbete showed utter disrespect for the people of South Africa with their utterances, undermining people’s intelligence and ridiculing the constitutional principles that the Chief Justice so eloquently spelt out in the Nkandla judgement.

In 2012, the President spoke about the need to “review the powers of the Constitutional Court”.

This trend then found expression in the Judicial Service Commission, the constitutional body that appoints judges. Its membership includes several members of the ANC who have become increasingly preoccupied with “separation of powers” in recent years.

This is, of course, a euphemism for their growing preference for non-activist judges who will more likely defer to the Executive. This is evident when questioning candidates for judicial appointment in the twice-annual public interviews conducted by the body.

Bearing in mind this acrimonious approach to the judiciary, which frankly borders very closely on contempt, it is imperative that the Office of the Chief Justice attains and maintains total independence, both principally and financially.

No iota of influence, financial or otherwise, can b countenanced with regard to the judiciary.  The survival of South Africa as a constitutional democracy depends on it.