Office of the Chief Justice Budget speech & reponses by ANC and IFP

Minister of Justice and Correctional Services, Mr M Masutha gave his Budget Vote Speech on 20 April 2016.
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House Chairperson
Ministers and Deputy Ministers,
Honourable Members,
Members of the Judiciary
Heads of Professional Law bodies;
Distinguished Guests;
Ladies and Gentlemen

Let me acknowledge, amongst our esteemed guests in the gallery, Heads of the various courts and Heads of the Magistracy and wish to thank them for making time to attend the debate.

This year’s twentieth anniversary of our Constitution presents an opportunity to take stock of the path we have traversed in realising the ideals of our Constitution.

The ANC Government continues to ably lead the complex and tedious task of transforming the judicial system and the legal system generally.

Chapter 8 of the Constitution ushers in a judicial and administration dispensation that vests judicial authority on the courts and enjoins organs of State to assist them and safeguard their independence, accessibility, and effectiveness, among others. 

The amendments brought by the Constitution Seventeenth Amendment which are now imported under section 165 (6) are ground breaking.  It places the responsibility for the establishment and monitoring of norms and standards for the exercise of judicial functions of all court under the Chief Justice.

It became apparent that administrative machinery that will enable the Chief Justice to carry-out this profound constitutional mandate was necessary.   This came in the form of the Office of the Chief Justice which was proclaimed by Presidential decree in 2010.

The establishment of the office, like that of the Constitutional Court, is watershed.  This finds reflection in the address by President Mandela when he, at the occasion of the inauguration of the Constitutional Court, stated as follows:

“It is not just a building that we inaugurate, handsome though it is. It is not a body of wise men and women that we launch on their path, important though we regard their work. It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish - South Africa`s first Constitutional Court. People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken.”

The Office of the Chief Justice is the conduit through which the public funds are channelled for functions related to courts.  Chief Justice and I are in discussion regarding an appropriate framework for conferral on matters that relate to the functioning of the courts. 

At this point let me also state that Cabinet has set up an Inter-Ministerial Committee to consider the views of the Judiciary regarding the end-state of the Court Administration model. Work has commenced in this regard.

When administration of the Superior Courts was separated from the Department of Justice and Constitutional Development during the 2015/16 financial year, the focus was primarily on the Superior Courts. This is so because the Superior Courts Act enacted by this august House in 2013 provides a legislative framework for this policy imperative. 

We are now prioritising legislative reforms that will enable us to transfer the administration of the Magistrates Courts to the Office of the Chief Justice.  This is with a view to establishing a seamless court administration system.

The initial staff complement that was transferred from the Justice Department to the Office of the Chief Justice was 1486. The establishment of the office is now around 1700. In a year this shows an increase of over 214.  The appointed staff perform judicial support functions at court level and assist the structures that have been established by the Chief Justice to monitor the norms and standards.

An effective administration is fundamental to the realisation of the right of access to justice.  When I presented the budget policy statement of the Department yesterday, I alluded to the expansive court infrastructure programme we are embarking on.  This work includes the rollout of the local seats dispensation as part of the implementation of the Superior Courts Act.  We have also taken a conscious decision to make effective use of Magistrates’ Courts as local seats of the Divisions of the High Court where infrastructure permits.  This is to ensure that communities are able to get full services of a High Court closer to where they live. The Lephalale Magistrates Court in the Limpopo Province is the first to be designated as such. 

We must be mindful that courts are not the only vehicle for resolving disputes.  It is in this context that we are promoting optimum use of Traditional Courts, and other fora such as the CMMA and the Small Claims Court. In addition there are quasi-judicial tribunals established under different laws that provide speedy, cost effective or free services for the adjudication of disputes, some of which are public and statutory and others private and even voluntary.

We have further created mechanism for non-adversarial and informal dispute resolution through Court Annexed Mediation in civil disputes and are currently looking at developing policy to enhance the efficiency and effectiveness of the Alternative Dispute Resolution Mechanism under the office of the National Prosecuting Authority. 

Honourable Members

As I have indicated during the inaugural budget debate of the Office of the Chief Justice last year, I undertook visits to all the Superior Courts and some of the regional and district courts to appreciate conditions under which judges and magistrates work. I have made intervention where necessary to address some of the hurdles which were raised during these visits. I have now embarked on bilateral meetings with my colleagues with a view to find solutions on a range of issues that have a bearing on the courts and the justice system in general with a view to eradicate efficiency and other challenges. We will, after completing the outstanding bilateral engagements, compile a comprehensive report on the interventions that require policy and legislative interventions.   I will solicit the views of the Chief Justice on this report before submission to Cabinet.

Honourable Members,

Although the Judiciary values its independence as enshrined in the Constitution, it is also alive to the reality that it is also accountable. Judicial independence and judicial accountability are in fact not mutually exclusive. Judicial accountability is essential in ensuring that our courts perform optimally without fear, favour or prejudice.

The Constitution entrenches a comprehensive accountability mechanism through the Judicial Service Commission; This finds reflection in section 177 of the Constitution where it provides that:

“A judge may be removed from office only if -

(a)  The Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of misconduct; and

(b)  The National Assembly calls for the judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members”.

One of the mechanisms that we have put in place to ensure judicial accountability is the disclosure of Judges’ financial interests. I am pleased that there is overwhelming compliance by judges in respect of the law in this regard.  We will be extending the same dispensation to Magistrates in pursuit of a single judiciary.   

Honourable members,

Transformation of the Judiciary lies at the heart of our constitutional discourse. It is a constitutional imperative which the Judiciary and the Executive continue to grapple with.  Indeed great strides have been made in transforming our Judiciary so as to reflect the racial and gender composition of the South African society as espoused in the Constitution. We are indeed making progress especially in the appointment of women Judges.  Of the 242 Judges in active service, 86 are women and some of these Lady Justices are in leadership positions.  The appointment of Madam Justice Mandisa Maya as Deputy President by the President in November 2015 is historic.  She is the first women in the history of our country to occupy one of the four top leadership positions in the Judiciary.

It is also important for Honourable members to note that the number of female Judges at the Constitutional Court has also been increased to three following the appointment of Justice Mhlantla by the President in November 2015.  

The number of black Judges in our Superior Courts has also increased to 156 out of the 242 Judges.

Let me take this opportunity to thank the Chief Justice and the Heads of Courts for alerting us on the fraudulent use of court orders and court stamps and for the steps they are taking in addressing this matter.

We also appreciate the effort of judicial officers in supporting the use of indigenous in the courts. We are prioritising legislative reforms to promote multilingualism in our courts.

House Chairperson

Over the three year Medium Term Expenditure Framework period, the OCJ has been allocated a total budget of R5, 8 billion. For the 2016/17 financial year the allocated budget amounts to R1, 785 billion. Of this amount R920.057 million is allocated to Judges’ remuneration and benefits. This means that the Office of the Chief Justice will have an operating budget of R864.99 million. The budget reflects our firm commitment towards the various goals set out for ourselves and the Judiciary. We are committed to ensure that the funds allocated in this budget will be utilized in an efficient and effective manner.

Let me take this opportunity to announce the imminent retirement of Deputy Chief Justice Moseneke and the President of the Supreme Court of Appeal, Justice Lex Mpati in the next two months.  Both have served our Judiciary with great distinction and honour and made an indelible contribution in shaping our jurisprudence.

Let me convey our profound gratitude to the Chairperson of the Portfolio Committee and his entire Committee for their continued support and guidance.  A special word of thanks also goes to the Chief Justice of the Republic of South Africa for his astute leadership of the Judiciary, the Heads of Court and all members of our Judiciary.

Please allow me to thank my two Deputy Ministers, the Honourable Thabang Makwetla and the Honourable John Jeffery, for their profound and sterling support, and my colleagues in the JCPS Cluster.

A special word of thanks goes to Secretary General for the Office of the Chief Justice, Ms Memme Sejosengwe, the Director-General of the Department of Justice and Constitutional Development, their respective managements and the entire staff in the Justice family for their tireless efforts.

I thank you.

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Responses

 

Responses

Speech by Dr Motshekga, (ANC) debate on Vote 22: Office of the Chief Justice and Judicial Administration Towards Institutional and Substantive Transformation of Our Legal System

1. INTRODUCTION

Firstly, let us convey our condolences to the ANC and families of the ANC volunteers who lost their lives in a bus accident on their way from the launch of the ANC Manifesto in Port Elizabeth.

Secondly, let us congratulate Advocate George Bizos and Honorable Andrew Mlangeni on their receipt of the Freedom of the City of Johannesburg from the executive mayof, Dr Parks Tau.

The ANC agree with Honorable Minister Michael Masutha on judicial accountability as is the case in the United States. Minister, the time has come to hold a conference on constitutionalism and judicial restraint.

I shall not dwell on the details of the report because we all agree that the office of the Chief Justice and Judicial Administration support vote 22 and recommends its approval.

2. TRANSFORMATION OF JUDICIARY

The Portfolio Committee on Justice and Correctional Services is happy with the progress thus far made in the transformation of the judiciary and the legal profession. What remains is the implementation of the relevant legislation, including the legal practice act. The transformation of the judiciary and the Legal Profession deal with formal structures necessary for the delivery of formal justice, not substantive justice itself. The rule of law has both formal and a substantive aspects. The formal aspects is the principle of legality which deals with compliance or non-compliance with the letter of the law. The substantive aspect deals with compliance with the spirit of the law.

Access to justice requires compliance with both the formal and substantive aspects of the Rule of Law. South Africa is a Constitutional State (Rechtsstaat) based on social justice, human and peoples` rights.

Our Constitution provides for the creation of a united, democratic, non-racial, non-sexist and prosperous society in which the value of every citizen is measured by our common humanity (Ubuntu/Botho). The spiritual philosophy of humanism (Ubuntu/Botho) is the fountainhead of social justice, human and peoples` rights. It is an overriding constitutional value, not one of the Constitutional values. This philosophy is rooted in human nature itself. The human personality comprises the mind (M), soul (U) and body (NTU). This constitutive principle of the human personality found expression in the concepts:

Muntu
Mundu
Muthu
Motho
Munhu
The intrinsic quality of every person, both black and white, is called:

Ubuntu
Ubundu
Botho/Vuthu
Vunhu
The principles of equality freedom and brotherhood which formed the basis of the French and American human rights culture derived from the spiritual humanism of the European Renaissance which was catalysed by the Khemetic of Hermetic philosophy of ancient Egypt and Ethiopia. Thus, Ubuntu/Botho philosophy is universal and predates the western human rights culture.

South Africa needs a new jurisprudence or legal philosophy based on our common humanity (Ubuntu/Botho). A legal system that is not rooted on the common humanity of all its citizens cannot give equal access to all. The transformation of our jurisprudence cannot not be left to the judiciary and the executive. Our legal system must reflect the sense of justice of all the people, both black and white. Thus, the transformation of the judiciary and the legal profession cannot be complete without a thoroughgoing transformation of our legal philosophy.

We acknowledge that the Department of Justice commissioned the University of Forthare to evaluate courts` judgement to assess the extent of jurisprudential transformation taking place. However, it must be pointed out that the transformation of a legal philosophy is not an academic matter. It must depart from a people`s world-view (Weltanshaung). Our transformation agenda must be people-centred and driven.

In shaping a new and progressive legal system, we must depart from the premise that South Africa is an African country at the Southern tip of the continent, not an outpost of Europe. We must guard against interpretations of the Rule of Law and human rights which seeks to Europeanise Africans. Africans fought for and won the right to decide their own destiny. The legal system cannot be divorced from that destiny.

Our starting point in shaping the new legal philosophy must be the recognition and acknowledgement of the fact that our past is rooted in racism ad institutionalised forcible dispossession of African land and its natural resources. This dispossession is the root of the triple challenge of the poverty, unemployment and racial inequalities. Without the eradication of racism and this triple challenge our judiciary, however, structured, cannot give equal access to justice.

This august house is therefore obliged to speed up the criminalisation of racism, the amendment of the Land Restitution Act that is loaded in favour of land owner, to pass the traditional Courts Bill, Community Courts and para-legal legislation to ensure that the poorest of the poor can access both formal and substantive justice.

The current landlessness and homelessness degrades and dehumanises the African majority and breeds social ills, crime and corruption which creates backlogs in our courts and overcrowding in our correctional centres. This overcrowding makes it virtually impossible for correctional centres to rehabilitate inmates and ensure their social reintegration.

The current transformation programmes of the legal system and the judiciary in particular focuses on modernisation of the inherited system without the realisation and acknowledgement that legal systems operated within societies. If society is morally degenerate, no legal system, however modern and well resourced, will give equal access to justice to all.

Our Constitution and Bill of Rights did not fall from heaven like manna. They can be traced back to the 1923 ANC Bill of Rights, 1943 African Claims, 1954 Women`s Charter and 1955 Freedom Charter. These developments of these human and people`s Rights Charters were people-centred and driven. These human and people`s rights charters must inform the desired transformation of our legal system. Our transformation agenda must also put the people first.

This parliament cannot leave the transformation of our legal system to the executive and judiciary. As a representative of all the people of South Africa, both black and white, this parliament must spearhead the transformation of the legal system and the infusion of African jurisprudence into this system.

We recognise and acknowledge the important work done by the Chapter 9 Institutions and their requests for more money. These requests must be considered in the light of the economic situation and competing social needs. We agree with Minister Michael Masutha that the rationalisation of chapter 9 institutions proposed by the Kadar Asmal report must be finalised to eradicate duplication of responsibilities and a multiplicity of structures at provincial and local levels in the race of some chapter 9 institutions to extend their footprints.

We must also recognise and acknowledge that more than 40 percent of our population have not read and do not know the constitution, what the constitution says. Many people think that the constitution gives rights without duties. These people, including some political parties, in this House, do not recognise the constitutional and legal procedures for exercising their rights.

Chapter 9 Institutions should not solely focus on investigations but also, perhaps more importantly on constitutional and human rights education to deepen and entrench our constitutional democracy and human rights culture. The mandate of the Foundation for Human Rights must also be reviewed to shift its focus to constitutional and human rights education and training. The proliferation of violent services delivery affirms ignorance of the constitution and a misconception of the human rights culture.

We need a legal framework which will enable chapter 9 institutions to co-operate and collaborate in order to prevent duplications and infrastructure developments which unnecessarily increase their budgets. It is therefore important that parliament completes the rationalisation process before the 2016/2017 financial year.

THANK YOU

Vote 22: Office of the Chief Justice and Judicial Administration
National Assembly Mr N Singh, MP Inkatha Freedom Party

Honourable Speaker,
At the outset let me say that Inkatha Freedom Party supports this budget vote and supports the Office of the Chief Justice.
The Office of the Chief Justice not only plays an integral role in ensuring the independence of our judiciary-led court administration system and support for the constitution and it’s enshrined Institutions, but also a vanguard role as the final arbiter on the prolific attacks we are now witnessing being perpetrated against the Rule of Law by some of those well placed in government who seek to undermine our hard fought for and won constitutional democracy.
This Office plays pivotal roles in the development of judicial policy, continuing judicial education and supports the Judicial Services Commission in the execution of its mandate.

As Head of the Judiciary, the Chief Justice has the responsibility of oversight of norms and standards for the exercise of judicial functions of all courts and the strategic goal of ensuring administrative support to the superior courts.
The Chief Justice has an unenviable task but has risen to the challenge and shown himself to be a champion of judicial independence and protector of the Rule of Law in South Africa.

His job however, is made all the more difficult by the Ministries of Justice and Public works continued neglect of our court infrastructure. Conditions in some of our courts are in a poor state of disrepair and I know of many such sentiments being publicly expressed.
Honourable Speaker, and if that was not enough of a challenge for the Honourable Chief Justice, we are now also noting the public derision of judgments handed down particularly from those who hold lofty positions in government and the ruling party.
This is tantamount to an assault on the independence of the judiciary and the binding nature of the judgments, when they are seen to be second guessed by those in government. What kind of a message does this send to our citizens? Government must respect judicial independence and set the example that court judgments are final. It is for this reason that the appeals process is available for those who contend otherwise and this should be utilized rather than the courts of public opinion.

Honourable Speaker,
Transformation in our judiciary remains a concern that requires attention as does the filtering process of JSC candidates. We note only too often in JSC conducted meetings for the appointment of judges that the same candidates seem to be placed before us, some of whom we have previously dismissed as being unsuitable at a particular time for a particular bench position. The flow of candidates into “acting judgeships” positions which is a pre-requisite to a position on the bench must be made more widely accessible to all who aspire to be sitting judges of our High Courts.
Of particular concern is the paucity of women who apply for ‘bench’ positions. More must be done to actively empower and encourage women applicants.
Of late, more young people have been recommended to occupy positions on the bench. To this end, on-the-job training must be a continuous process. There is what is called a “South African Judicial Education Institute”, but this needs to be accompanied by qualified facilitators. Who better to assume this role than our highly respected retired Judges?

The challenge, Minister, seems to be the inadequate resources to compensate such judges for subsistence and travelling. Perhaps, we should make request to some of the SETA’s to assist as they are certainly not spending money allocated to them in a productive manner.
In conclusion, we call for complete independence from the Department of Justice for the Office of the Chief Justice and Judicial Administration.
The IFP supports this budget vote.