Speech by Mr Andries Nel, MP, Deputy Minister of Justice and Constitutional Development during the Debate on Budget Vote 24: Justice and Constitutional Development in the National Assembly on 29 May 2013
Honourable Cluster Colleagues,
Honourable Members of the Judiciary,
Ladies and Gentlemen,
Comrades and Friends.
This year marks the centenary of the 1913 Land Act, one of the foundations of apartheid colonialism, the legacy of which we are today still grappling with.
It is interesting then to read what the Annual Report of the Department of Justice for 1912 says about land and labour.
The Magistrate of Lydenburg was of the view that: “The native was naturally a person of indolence and was pleasure-loving and until such time as kaffir farming was discontinued it would not be possible to instill into them the desire for progress and advance in civilization. A few months work on the mines was sufficient to keep a kraal going for some time and as long as women were there to till the ground and brew the beer the kaffir had attained his ideal. This evil of kaffir farming had in the Magistrate’s opinion to be expelled by legislation.”
The Magistrate for Heidelberg, on the other hand, observed that, “The cause for the scarcity, however, was undoubtedly the growing independence of the natives. This was brought about by so many of them working on the farms not as labourers, but on a share of the crops. Others paid rent for land and farmed entirely for themselves. The Rev. Muller of the Berliner Missions Gesellschaft was of the opinion that when natives were allowed to cultivate a limed number of acres in return for their services they showed a great care in the cultivation of the land, and where they worked for a certain portion of the harvest as their wages or where they hired land they often outstripped the white owner, as they spared neither care nor pains to gain the greatest possible harvest and procured the most modern agricultural machinery for the purpose.”
These quotes are not merely of academic interest. The legacy they speak of still impacts on how we live, where we live, with whom we live, where we go to school, and in the context of this debate - which court we use and what quality of justice we access.
Much of our Reconstruction and Development Plan, and now our National Development Plan are aimed at addressing this legacy in a manner outlined in the Freedom Charter and our Constitution.
After almost two decades of democracy it would be appropriate ask whether we are succeeding in doing so.
FW DE KLERK
In last year's debate I quoted some unfortunate remarks by former Deputy President de Klerk, this time around he has made more fortunate ones, it would only be just and fair quote him again.
Mr. de Klerk says:
“Unfortunately, a tendency has developed to be skeptical and often pessimistic about both South Africa - and Africa. I should like to address these Prophets of Doom and Afro-Pessimists in a balanced way.
[…] I believe that it is important to retain balance in one’s assessment of our complex society. In fact, South Africa has, on the whole, done pretty well since 1994.
After decades of isolation and criticism, the new South Africa has emerged as a respected member of the international community:
We are regarded as an international model for democracy, constitutionalism, human rights and the rule of law;
We have set an example for national reconciliation and multiculturalism;
We have played a commendable role in promoting peace throughout our continent;
We have become a member of BRICSA - the most dynamic group of global emerging economies;
We play a leading role in international forums - in the UN Security Council and in the African Union.”
He goes on to say that:
“We have also made remarkable social progress in many areas:
The percentage of the population living in absolute poverty has declined from 31% in 1995 to 23% in 2008 - largely because of social grants.
94% of households now have access to drinkable water;
more than 3 million housing units have been built - enough to house almost a quarter of the population - with another million units in the pipeline;
three quarters of the population now has access to electricity and sanitation compared with only half in 1994;”
He says that:
“I also remain an optimist about South Africa’s future because of the excellent foundation that our non-racial Constitution has created for present and long-term stability.
South Africa will succeed - provided that we can work together as South Africans to support our constitution; to demand the rights that it guarantees; and to achieve the vision of human dignity, equality and enjoyment of human rights and freedoms that it articulates. In the same manner I am increasingly confident about the future of Africa.”
I would like to share some stories that would suggest that this optimism is well-founded.
LEGAL AID SOUTH AFRICA
One such story is that of Legal Aid South Africa.
Twenty years ago, in 1993/4, the Legal Aid Board, as it was then known, was an organization on the precipice of disaster – a legal Titanic on a collision course with a constitutional, administrative and budgetary iceberg.
The Board handled only 79, 501 matters by paying private lawyers to represent indigent people, mainly in criminal matters.
It was an organization with a budget of R62, 467 million, a staff of 42 based in a national office and 58 based in 8 branch offices located mainly in white, urban areas.
The Board was unable to cope with the explosion in the demand for legal representation that followed the adoption of the interim Constitution. Its affairs were in chaos. Budget deficits and qualified audits were the order of the day.
The dedicated efforts of the parliamentary committee, academics, law clinics and a board under the leadership of Judge Mohammed Navsa, led to a dramatic turn-around with the implementation of a public defender model and sound organizational governance practices.
Eighteen years later, for the financial year 2012/13 Legal Aid SA, provided assistance in 736, 679 matters. This includes legal representation in 438, 844 criminal and civil matters and advice in a further 297, 835 matters, including through a national legal aid call-centre.
This sterling work is done by a dedicated, motivated and representative team of 183 staff at national office and 2 395 staff based at 128 justice centres nationally - comprising 64 main and 64 satellite offices. South Africa’s legal aid budget has increased to R1, 259 billion - at a time when a number of other countries are scaling back their legal aid budgets.
Indeed, Legal Aid SA has made a valuable contribution to the formulation of the recently adopted UN Guidelines for Legal Aid.
There are still many challenges but we know what needs to change, we know how to change it – and we are doing it faster than ever, including amendments to the Legal Aid Act of 1969 that will soon be brought to Parliament.
We thank the Chairperson, Judge President Dunstan Mlambo, and CEO Ms Vidu Videlankar for leading a team that continues to show that South Africa is a remarkable nation, with remarkable people - for whom no challenge is too great, especially when they unite and work together.
Another such story is that of the Public Protector.
The 1994 Election Manifesto of the ANC said that, “Government administration exists to serve the people. It must be answerable to them. The ANC will encourage private citizens to use the independent Public Protector to investigate corruption, dishonesty or violation of rules of conduct on the part of government officials - those found guilty will be dealt with.”
This is exactly what has happened.
When Adv Selby Baqwa, SC, as he then was, was appointed as the first Public Protector in 1995, the office had a budget of R1 630 000 and dealt with a total of 1989 new cases for the period October 1995 to September 1996.
By 2012/13 the third Public Protector, Adv Thuli Madonsela, was investigating 33 533 complaints per year, assisted by a staff of whom 160 are based at a national office and 238 at nine provincial and satellite offices through out the country. The budget of the Public Protector stood at R183,1 million (plus R15m for additional capacity). For 2013/14 an amount of R199 million has been budgeted.
Surveys have shown that 77% of the population is aware of the Office of the Public Protector.
The recently reported interaction between the Public Protector and the Portfolio Committee on Justice and Constitutional Development has, regrettably, been reported and commented upon as widely as it has been understood narrowly.
In our view the Constitution is clear about both the powers and the independence of the Public Protector as well as the powers and the oversight role of Parliament.
Interactions such as these are necessary catalysts for evolution of a deeper and stronger culture of constitutionalism.
We thank Public Protector Adv Thuli Madonsela, Deputy Public Protector Kevin Malunga and CEO Themba Mthethwa for leading another team of remarkable people dedicated to realizing the vision of our Constitution and creating a life better for all in South Africa.
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
The story of South African Human Rights Commission is yet another.
Starting off in 1995 as a small organization with a staff of 60 and a budget of R6 million, the Commission has grown into an institution with a staff establishment of 165 and a national footprint through nine provincial offices. Its budget for 2012/13 was R100,74 million. An amount of R116m has been budgeted for 2013/14.
The Commission deals with a wide range of human rights complaints. For the 21012/13 financial year it finalized 7 033 out of 8 924 cases brought to it.
One of these cases was the referral by the Department of Justice and Constitutional Development of the case involving a training institute that excludes LGBTI persons.
Recognition for this work has taken the form an award from the African Commission on Human and Peoples’ Rights in October 2012 as well as the election of the Commission’s Chairperson, Adv. Lawrence Mushwana, as the Chair of the Network of African National Human Rights Institutions (NANHRI) in November 2011, and also as the Chairperson of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) in May 2013. Adv. Mushwana is the first African to hold this position.
The amendment of the outdated Human Rights Act, is currently before Parliament.
A story that is starting to be told but which must be elaborated it that of Equality Courts and the struggle to deal with out painful legacy of racism, sexism, xenophobia and related intolerances.
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000), gives effect to our Constitution’s provisions against unfair discrimination.
By 2009 each and every High Court and Magistrates Court had been designated as an Equality Court.
Cases enrolled at these courts have increased substantially as these Courts become more accessible and public awareness of the remedies they offer increases.We commend the excellent work done by the Foundation for Human Rights as part of the Access to Justice and Constitutional Rights Programme conducted by the Department with the support of the European Union.
For the 2012/13 financial year, 619 matters were enrolled before equality courts.
Most of the complaints dealt with include hate speech, unfair discrimination and harassment. The Department is preparing legislation that will criminalise hate speech.
SMALL CLAIMS COURTS
One of my favourite stories is the Small Claims Courts story.
These courts eliminate time-consuming adversarial procedures before and during the trial thereby providing speedy and cost effective justice, especially for the poor.
We are more than half-fast approaching our goal of having a functioning Small Claims Court in each of South Africa's now 393 magisterial districts.
In 1994 there were 120 Small Claims Courts, mostly in white and urban areas.
In 2013, as we speak, there are 268. A further 9 courts will be established during the first week of June when the necessary proclamations appear in the Government Gazette.
The vast majority of the new courts and places of sitting are in rural areas and former black group areas.
The goal of having a Small Claims Court in every magisterial district is in sight. Gauteng and Mpumalanga have already achieved this goal and we are working hard to ensure that others join them.
The number of people enjoying the benefits of access to justice through Small Claims Courts has increased steadily.
During 2008/9, 95 569 new cases were registered, 47 168 summons were issued resulting in 38 257 trials and 22 397 judgments and 9 405 out of court settlements.
Whilst the number of new cases for 2012/13 only increased by 5305 cases to 100 874, the number of summons issued increased by more than 21 137 to 68 305. The number of trials also increased by more than 11 788 to 50 045. But most significantly, the number of judgments jumped by 13 971 (62,3%) to 36 368 and the number of out of court settlements by 9 682 (102,9%) to 19 087.
Establishing these courts is partly dependent on the number of dedicated women and men who volunteer their services as Commissioners or as Advisory Board members.
The number of Commissioners who preside over Small Claims Court has almost doubled in the past four years, from 811 in 2009 to 1 546 currently - comprising of 1314 men and 232 women. Serious attention is being given to address this gender imbalance.
We thank all those who have volunteered and encourage others to following their commendable example. We also thank member of the Small Claims Court Steering Committee and the Swiss Government their partnership in this project.
One of the most dramatic stories of transformation comes from the sheriff’s profession.
Before 1994 this was an overwhelmingly white male profession with a “skiet, skop en donner” reputation, one that was not always undeserved.
Sheriffs had the power to arrest and imprison people, often the poorest of the poor, for their inability to settle civil debt.
In 1994 there were 475 sheriffs. The overwhelming majority, 399, were white men. There were also 40 African men, 4 coloured men, 15 white women, 4 African women, 1 coloured and 2 Indian women.
Furthermore, these few black sheriffs were located mainly in the so-called homelands and in economically non-viable offices.
By 2012 this picture had started to change significantly with the appointment of 124 new sheriffs. Of these appointees: 64 are African, 44 white, 12 coloured and 7 Indian. Women represents 40 (or 31,49%) of the new appointees and men 87(or 68,50%).
Significantly, many black and women sheriffs have been appointed to some of the most economically viable and lucrative areas. There is, however, still a long way to go. But the pace of change is accelerating.
A further 120 vacant sheriffs posts will be filled by the end of June. We are confident that by the end of this administration the Sheriff’s profession would have made a decisive break with the past.
We thank the South African Board for Sheriffs (SABFS) under the leadership of Mrs Charmaine Mabuza, for their good work.
The Sheriffs Amendment Act of 2012 (Act 14 of 2012) was assented to by the President on 11 December 2012, and will contribute to better governance of the profession.
The work of the South African Judicial Education Institute (SAJEI) under the leadership of Chief Justice Mogoeng is another such story in the making.
After initial delays the Institute is now functioning. During the 2012/13 financial year, a total of 2187 Judges and Magistrates attended 56 seminars/workshops on a wide range of topical matters including sexual and gender based violence. The Aspirant Judges Training Course was attended by 71 participants.
These stories demonstrate that we are a remarkable nation with remarkable people who day by day prove that no challenge is too great to overcome, especially when we unite and work together.
Regrettably, honourable members, your chances of reading about these stories are negligible – the news is either simply too good to be profitable or too fundamentally at odds with the preconceived notions of the prophets of doom.
Those in the media who want to tell these stories, and they are there, are afraid to do so for fear of being branded as stooges of government who are not truly independent.
My appreciation goes to the Minister for his leadership, guidance and support, and to the Director General, Ms Nonkululeko Sindane, the leadership and staff of our departments and justice family institutions for their ongoing commitment and hard work to ensure access to justice for all. Members of the Portfolio Committee
Last but not least my special thanks to a special lawyer who is exempt from the Legal Practice Bill, my in-house counsel Ms Kim Robinson, who is a New Yorker by birth and proudly South African by marriage.
And in conclusion, Annual Report of the Department of Justice for 1912, contains this interesting observation by the Magistrate of Johannesburg -
Under the heading, Fortunetelling penalty too severe, it says: “Section 34 of Act No 26 of 1904 prescribed imprisonment only as a penalty for this offence. There were many cases, which would be met by a fine, and, as Magistrates are naturally loth in such cases to send the accused to prison, the effect was that he – or, more probably, she – got off with a warning.”
At the risk of being sent to prison, I want to do some fortunetelling and predict that Parliament will support Vote 24: Justice and Constitutional Development and I want to ask your support to make this prediction a reality.
I thank you