Issued by the Office of the Minister of Justice and Constitutional Development
6 June 2000
MEETING THE CHALLENGES OF THE 21ST CENTURY
Madam Speaker,
My fellow members of Cabinet,
Honourable Members of Parliament,
It is indeed an honour for me to present to you and this House the report of the Department of Justice and Constitutional Development for the first year of the second democratic Parliament.
1 Introduction
At the very outset, allow me to express my appreciation for the co-operation received from all my fellow Ministers within the Justice Cluster which comprises the Ministers and Deputy Ministers of Correctional Services, Defence, Finance, Home Affairs, Intelligence, Justice and Constitutional Development, and Safety and Security. The approach and work of the Department of Justice and Constitutional Development have to be seen in the context of the broad work of this Cluster.
Since we were appointed last year to our respective portfolios, we have at all times diligently sought to cooperate and interact with one another. The objective has been to ensure that we respond to matters relating to the criminal justice system in an integrated manner. With this in mind, the Cluster has striven to hold regular meetings under the able stewardship of Minister Tshwete. The effective management of the government's responsibilities in this regard depends on this cooperation.
Revolutionary changes took place over the past six years. We successfully made the transition from apartheid and white minority rule to a non-racial and non-sexist democracy. We established a new constitutional order and a polity that is predicated upon the will of the majority.
This required the creation of a new department out of eleven departments of justice with diverse cultures and an overhaul of the entire system of justice. New policies and laws were also required. With hardly sufficient time or resources to adequately meet the challenges of this revolution, we are today faced with yet a new revolutionary process with a new set of even more demanding challenges.
Our department is relatively new. Our administration is woefully under-funded and in many instances lacks appropriate human resources. The large volumes of case backlogs and increasing awaiting trial prisoner population are causes of major concern. To make matters worse, crime, particularly serious and violent crime, has grown to unacceptably high levels.
Whilst the challenges facing my Department may seem to be daunting, the current situation presents us with exciting opportunities. It is therefore exciting to announce some of the important developments that are due to unfold in our environment.
A month ago, I had the pleasure of presenting my first report to the Justice and Constitutional Development Portfolio Committee. I provided the Committee with a detailed report on our activities over the past year. I will therefore today only address some of our key challenges and how the Department of Justice and Constitutional Development is responding to them.
2 The Impact of Globalisation
Globalisation is a reality. It impacts on our new democracy in a most dramatic fashion, particularly in the Justice environment. Capital virtually moves at the speed of thought between and to those markets that are regarded as most favourable or profitable. This new global economy is fuelled and energised by the Internet revolution. The Internet itself will also have a profound impact on our economy and legal system.
As part of the world economy, we are also confronted by organised crime, which has also become an important part of globalisation. We are directly affected by the scourge of money laundering, 'the lifeblood of drug dealers, fraudsters, smugglers, kidnappers, arms dealers, terrorists, extortionists, and tax evaders' (1). And yet we still have to enact legislation that will enable us to respond appropriately to this challenge.
Another area that requires urgent attention is cyber crime. We do not as yet have legislation in South Africa to deal with this problem. We have agreed to cooperate with, among others, the United States Department of Justice with the view to developing appropriate responses. Special training will also have to be provided to our police, prosecutors and judicial officers.
Needless to say, the unacceptably high level of crime and the quality of the administration of justice have a serious impact on our attractiveness as an emerging market and our ability to attract increasing foreign direct investments. This represents our most pressing challenge yet.
What bothers me most is corruption within my own department as well as within the broad criminal justice system. It was reported to me recently, and I subsequently informed our Portfolio Committee, that ò 480 cases of malfeasance involving members of my department were investigated. Of these, thirty-eight are cases of fraud, twenty-six of corruption and thirty of theft, are pending before our courts. We are acting in conjunction with the SAPS and the National Prosecuting Authority with the view to expediting the investigation and prosecution of similar matters.
Today, we are required to make a clear statement that we are meeting these challenges. This statement must be made not only to the international community, but should also to the South African people. These new challenges have substantially influenced our plans and the approach that I intend to take. Together with my colleagues in the Justice Cluster, we are determined to play our role in building a better future for all South Africans and making our country a more attractive market. I am, however, confident that this scourge would be rooted out.
As for the e-revolution, it is anticipated that the Internet will in the coming years be the premier vehicle for all commercial trade. We are therefore obliged to consider the manner in which it will impact on our rules of court and laws of evidence. The South African Law Commission is already studying these.
3 Leveraging greater efficiencies and a more effective management
One of the first tasks that I performed as Minister was to visit as many of our courts as possible. I still do this regularly. The full impact of the difficult conditions in which our courts operate became apparent. More to the point, the shortcomings in our delivery of services were glaring.
The Department has embarked upon a campaign to ensure that all Head Office managers visit our various offices. This would ensure that senior officials and policy makers familiarise themselves with those issues pertinent to the efficient functioning of our courts. I will encourage this practice. It will sharpen our managers' senses to our essential priorities.
This project is called "Operation Mutingati". It is a Venda word that means working together as a team. The operation kicked off on the 1st June with the DG and other senior officials visiting the Eastern Cape courts.
We have also embarked upon a redeployment project. The intention is to take a number of suitably qualified lawyers, magistrates and prosecutors currently doing administrative work back to the courts in order to reinforce our delivery processes.
The Department of Public Service and Administration issued a directive in 1999 obliging each department to develop an Integrated Implementation Plan consisting of a strategic plan and human resource plan. This also coincided with the Department's review of Justice Vision 2000. I am pleased to report that the Department has successfully completed the requirements stipulated by the DPSA.
An approach of our government has been to develop and strengthen our public-private partnerships. It is our intention to pursue these strategic partnerships where it would lead to mutual benefits. In this regard, we have had tremendous success.
We have, for instance, been assisted by the organised legal profession, members of which every now and then come forward to act as prosecutors, magistrates and judges. We have been offered the services of senior counsel in order to ensure that our high courts continue to function even during court recesses. The legal profession has offered to help in the training of our officials, particularly prosecutors.
Business people and companies have even given us assets such as photocopiers, computers and motor vehicles. In one instance Vodacom helped in the refurbishment and automation of a magistrate's court and a police station, all of which cost in excess of R20m. Similar ventures were concluded in Sophiatown with the full assistance of Phillips.
I have also secured free of charge the assistance of various senior business executives in reviewing and finalising our strategic plans and change management process. I wish to express my gratitude to them for their contribution. The model that they are using is based on 'best business practices' adopted in the private sector. It is anticipated that the team will submit their report by the end of July and implementation would be completed by October this year. Some of the key areas they have already identified as requiring attention are:
In this regard, I am confident that the processes we have embarked upon will result in greater efficiency and more effective service delivery.
4 Making our courts more accessible to all
During our Cluster's visits to a number of our courts, police stations and prisons, we found the physical infrastructure and conditions in which people live and operate simply unacceptable. This cannot be permitted to continue. The upgrading of our Courts will therefore be a major challenge that my administration will face. In this regard, I am pleased to report that the allocation of R145 million for capital works during 1999 has enabled the Department to commence with the construction of new buildings and other major works. This will take place at centres where there were no facilities at all and where service delivery was seriously hampered because of a lack of facilities.
Despite insufficient funding, the largest number of major and minor building services ever is currently under construction. This is due to an efficient management of the limited resources.
This significant progress is substantiated by:
Most of these worthy projects have been undertaken in previously disadvantaged rural areas of our country. This will contribute to the Department's goal of bringing justice closer to the people. What is particularly satisfactory about our initiatives in this area is that we have also in the process won several awards for the innovative approaches adopted in our construction work.
In addition, facilities for specialised courts e.g. sexual offences courts and family courts, have been provided at new court buildings in places such as Waterval, Knysna, Bethlehem and Alexandra. These facilities will also be included in the planning of all new buildings and additions to buildings. In any major renovations, as with the construction of all new buildings, the special needs of the disabled are being incorporated.
A new challenge has arisen over the past few years in the form of the declining security in and around our court buildings. This has been a matter of serious concern to me. The traditional approach has been to employ, train and equip security officials to serve this need.
Burglary continues to be one of the biggest threats to the Department and these burglaries have escalated each year. Two hundred and ninety six (296) burglaries have taken place in our courts since 1990. We have also witnessed an escalation of shooting incidents in our courts, in some of which death has ensued.
To address these problems, we have initiated a process of outsourcing our security requirements. In this financial year, we have invested a further R14m to meet this challenge.
5 Ensuring Access to Justice
Legal aid
Another major challenge that we face this year is the crisis we are confronted with in the provisioning of legal aid. With the appointment of the Legal Aid Board last year and the gallant efforts by its chairperson, Judge Mohammed Navsa, we have only recently come to understand the full impact of the problems that we are confronted with.
Despite the allocation of additional funds to enable the Board to provide legal aid to the indigent, the Board has not been able to effectively fulfil our constitutional obligation and is at present in a state of financial crisis. We are experiencing inordinate delays in the payment of legal fees.
The primary method of delivery of legal aid services has thus far been by way of judicare. This method has proved to be unacceptably expensive and cumbersome to administer.
A business plan has now been prepared and judicare will be drastically scaled down and eventually replaced by a new system based on salaried employees in legal aid clinics, advice offices and public defenders. I am confident that the measures soon to be put in place will address the problems that are currently being faced by the Board. Needless to say, I will be monitoring developments in this area of our work closely and new legislation is being considered.
Civil procedure
The Rules of procedure followed by our lower and higher courts are, in many respects, outdated, and certainly complex and cumbersome for ordinary people to understand and apply. They, therefore, require to be overhauled if they are to help us assert and defend our rights in the new constitutional dispensation.
An observation has been made, however, that our Rules Board, which consists of twelve members, is perhaps, too large to promote efficiency and achieve this objective. The availability of members for Board work and meetings is erratic; and, besides, budgetary constraints prevent the Board from holding regular meetings. If the truth were told, we have achieved representivity in race, gender and geographic terms at the cost of efficiency. I have discussed this with the Chairman, Judge Sandile Ngcobo, who has assured me that the Board agrees that the Board needs restructuring and downsizing. For this purpose, the Rules Board for Courts of Law Act, 107 of 1985 may have to be amended.
Meanwhile, the Rules Board is studying the Rules of both lower and higher courts with the view to bringing them in line with the Constitution and harmonising them. The Board is also to simplify the Rules. These must be easily understood and applied even by non-lawyers. This will enhance our effort at promoting accessibility of our courts.
6 Our legislative programme
Since 1994, the Department has been responsible for the promotion of 72 Acts of Parliament. This represents an average of 12 each year. Most of the 72 statutes emanate directly or indirectly from our constitutional obligations.
The Department has, quite legitimately, been criticised for not doing the necessary financial planning and costing in respect of legislation hurriedly pushed through Parliament. As a result, in some instances we have had to delay the implementation of legislation or certain provisions thereof. We are now beginning to address this problem.
The Department has also been faced with the challenge of implementing many pieces of legislation within a short time and with limited resources. Problems were inevitable. I am, however, confident that, despite the limited resources the new legislation has brought about many positive changes and impacted positively on the lives of many of our people.
I must, however, be quite frank. This year we have a shortened session of Parliament due to the forth-coming local government elections and quite a few Bills on the Legislative Programme will only possibly be nearing completion when it might be too late for them to be considered by Parliament during 2000. This means that we must prioritise.
The Bills on the current programme, which I think must be finalised by Parliament as a matter of urgency, are the following:
- A complaints mechanism for the public or any interested parties regarding the conduct of a judge;
- The procedure to be followed in following up a complaint against a judge; or
- Steps that may be taken against a judge where his or her alleged misconduct does not justify removal from office.
It should be emphasised that the decision to conduct research on this question and to draft proposals regarding the establishment of a complaints mechanism in respect of judges emanated from within the Judicial Service Commission, as long ago as 1997. The Judicial Service Commission identified certain guidelines in accordance with which the draft proposals had to be prepared. These were, for example, that -
- Provision should be made for the establishment of a Complaints Committee; and
- The Committee should consist of members of the Judiciary and the Commission, but not exclusively.
My department prepared a draft. I took this to the Judicial Service Commission. I proposed to the Commission that, instead of going directly to Cabinet, we should first consult the judiciary on a matter such as this one. This proposal was accepted and an ad hoc committee of the JSC, consisting of the Chief Justice, the President of the Constitutional Court and Judge President Ngoepe, was appointed to oversee the consultation process.
It should also be mentioned that the Judicial Service Commission appointed a Drafting Committee to consider the proposals taking into account the legislation of various other countries. If Cabinet approves the draft bill, the legislative process will follow its normal course, including the comprehensive consultation process that takes place when considering legislation.
It should further be noted that the draft legislation would in no way be aimed at interfering with the functioning of the courts and judicial independence. Judicial acts (such as judgements and sentencing) will always be dealt with in terms of judicial procedures (e.g. review and appeal proceedings). The proposed legislation will only be dealing with complaints or allegations of misconduct by judges.
Madame Speaker, I have given this lengthy explanation primarily to respond to numerous misinformed media articles in this regard.
I would like to express my appreciation to those members of the Judiciary for their positive contributions on this matter. I also want to especially thank the members of the Drafting Committee for their contribution towards the drafting of this legislation.
Should time permit and should the legislation be prepared, I would be pleased if we could also process the legislation dealing with the detention of juvenile offenders, the International Criminal Court Bill seeking to give effect to the Rome Statute on the International Criminal Court, as well as the Sexual Offences Bill.
7 An Effective Prosecutorial Service
Madam Speaker, the National Prosecuting Authority has continued to make strides in major areas in the administration of criminal justice and the fight against crime in collaboration with the South African Police Service (SAPS). It has continued to strive for an efficient and effective prosecution service. The Office of the National Director of Public Prosecutions (NDPP) has created new national entities in order to begin to address some of the challenges facing the prosecuting authority. I will now deal with the work that some of these entities and units have embarked on recently.
Before the Court Management Unit was established in the Office of the NDPP the prosecution service had no statistics on which to base its management decisions. In a sense, senior management in the prosecuting authority had been groping in the dark. However, with the establishment of the Court Management Unit we are now in a position to manage and monitor the performance of each court. We are now able to identify and shift human and material resources to areas where they are sorely needed.
Shortly after my appointment as Minister of Justice and Constitutional Development, the Minister of Safety and Security and I visited the Mdantsane Magistrates Court at the invitation of the National Director of Public Prosecutions. What we found there was that the courts were working for an average of 1 hour per day. The courts would start working at about 11:00 or 14:00 every day. Prosecutors and magistrates were coming to work under the influence of liquor.
We immediately intervened to correct this state of affairs. We appointed new chief and senior prosecutors and court orderlies and put in additional resources. I am pleased to report that, since then, the Mdantsane Magistrates Court has become one of the best performing courts in terms of the performance targets set for the prosecuting authority. The same is true of the court in Zwelitsha and other courts. Further, for the first time in the history of this country, we have established a High Court seat in the Mdantsane Township to deal with sexual offences.
Having achieved the targets it has set for itself for the past year, the National Prosecuting Authority has set itself other targets for this year. We have already begun to see that the prosecutors are meeting even the new targets. We are already beginning to see the following:
The newly established Sexual Offences and Community Affairs Unit in the Office of the NDPP has come up with innovative ideas to deal with crimes against women and children. A number of sexual offences courts have already been established in a number of areas throughout the country. The Unit, in conjunction with other departments and ministries such as Health, Welfare and Safety and Security and NGOs, is demonstrating a collaborative effort that seeks to improve the investigation and prosecution of rape and sexual abuse cases.
Based on the findings of a study focusing on the experiences of rape victims in the Cape Flats, we will soon be announcing the creation of a Care Centre in the Cape Flats to demonstrate that it is possible to improve services to rape victims. If successful, the project will be extended to major centres.
Before dealing with the work that the investigative directorates under the NDPP have been doing, I would like to first congratulate all of them for their excellent performance. In particular I would like to thank all the members of the investigative directorate who sacrificed their December vacations and answered the call to come and work when the country was experiencing devastating bombings in the Cape Peninsula during the festive season.
We have seen the same kind of success in respect of drug trafficking and gangsterism in the Cape Flats. At the beginning we targeted five main drug suppliers in the Cape Flats, while SAPS continued to deal with ordinary drug suppliers and dealers. As a result of this approach five suspects are before our courts now. As far as the gangs are concerned, we are making breakthroughs there as well. Soon we would be bringing prosecutions against one of the major gangs in the Cape Flats.
In the Gauteng Province the investigative directorate operating there has managed to dismantle a large number of car hijacking syndicates. Car hijacking in Gauteng has decreased quite dramatically. In Kwa-Zulu/Natal the investigative directorate that deals with political violence has done outstanding work. Although the Asset Forfeiture Unit has had one or two setbacks in some of its major cases asset forfeiture remains our main weapon in the fight against organised crime. Interestingly enough, in all of the cases that the unit has lost, none of the accused persons denied that the property sought to be seized constituted proceeds of crime. Instead of dealing with the merits of the case the respondents chose to deal with technicalities relating to the drafting of the Act. Despite these difficulties, the unit has been more successful than what it expected when it started. Overall, the unit has initiated a total of 23 cases and it has been successful in 18 of its cases - a success rate of over 75%. In total the assets seized so far amount to well over R70 million.
The Directorate of Special Operations, popularly known as the Scorpions, has already been set up in terms of the mandate from the President. The DSO will deal with national priority crimes including organised crime. The Bill for the establishment of DSO has been referred to Cabinet and will soon be introduced.
Madam Speaker, allow me to mention that I have just returned from Scotland Yard in Hendon, London, and the FBI Academy in Quantico, Virginia, USA and have seen the training of our new DSO recruits. I am satisfied with the training of the new recruits. Looking at our young people undergoing that intensive training, I wished I were younger.
Madam Speaker, I am satisfied that the National Prosecuting Authority is well on its way in establishing a prosecuting service that is representative, professional, ready to fight crime, legitimate in the eyes of the people it serves, and is regarded as the true "People's Lawyers".
Before I turn to the next topic, I wish to stress that we simply need to increase the efficiency of our courts.
To help deal with the backlogs, particularly in the Western Cape and Eastern Cape, several additional Regional and even High Courts have been established. For example, 9 additional Regional courts have been established here in the Western Cape, including two additional Sexual Offences Courts in Wynberg. More such courts are envisaged.
We have also established a special regional commercial court in Pretoria to expeditiously deal with and dispose of economic offences such as fraud. Unfortunately, however, this House has to note that, due to a paucity of skills and experience in our ranks, we are not in a position to dispose of ò 120 commercial matters, the investigation of which has long been concluded. The National Director of Public Prosecutions has suggested that, in the short term, we should source resources from the bar and the side bar, an exercise that is likely to cost ò R30m for which we have not provided in the Budget.
In addition, we have, in conjunction with the SA Revenue Service, established a special court in Belville, Cape Town, to deal with tax-related offences. For this purpose, suitably qualified members of SARS personnel have been accorded the status of prosecutors under the National Prosecuting Authority Act so that they can help prosecute in such matters.
In conjunction with the National Association of Democratic Lawyers, the Black Lawyers Association and members of the traditional legal profession, several courts have been established where members of these organisations are rendering their services as presiding officers free of charge. Four such courts are currently in operation in KwaZulu-Natal, and several are planned for the Eastern Cape. This assistance is sincerely appreciated.
The skills base and status of the lower court judiciary have also been enhanced.
Training programmes, in consultation with the various role-players to improve the effectiveness and efficiency of all court functionaries have received and are continuously receiving attention, with Justice College even going so far as to give decentralised and ad hoc urgent training at centres identified as problem areas. The provision of court-related community legal advice and support services are being upgraded, including the provision of:
A. citizen advice desks;
B. family advocate services;
C. assistance with domestic violence complaints;
D. victim support services;
E. mediation services; and
F. the counselling and diversion of juvenile offenders.
These are all social welfare services and their provision is in line with government policy on poverty relief and the empowerment of disadvantaged communities. The Department's initiatives include strategic interventions to broaden the legal profession and access to the services of that profession for persons and communities from all cultural groups and economic backgrounds.
8 An Integrated Justice System
Madame Speaker, allow me now to turn my attention to some of our most difficult challenges that affect our core business - our courts! There are two key challenges that face us in this regard. These are -
Our problems over the past few years can be characterised in the following way:
Our research and analysis over the past few years have shown that the only effective solution to these problems is to adopt an integrated Cluster approach. We cannot respond to these challenges solely within the Department of Justice & Constitutional Development. The only viable approach is to address these problems together with our partners within the Justice Cluster, particularly with the Departments of Safety and Security, Correctional Services, and Welfare. The success of this approach is borne out by international best practice.
Madame Speaker, it gives me great pleasure to report to this House that after several years of planning and research, we are in the process of implementing an Integrated Justice System (IJS).
At its recent meeting, the IJS User Board resolved to invest in excess of R50m in establishing a common Justice sector network for the effective transmission of all voice and data communications. This is a project that is estimated to take three years to implement.
Of greater significance though is the fact that pilot projects to develop a docket management and event notification system between the police, prosecution, courts and prisons has been approved. The project is referred to as the Court Process Project. The tender for this project has been considered and we will imminently announce the award of a major contract for its implementation. It is expected that the pilot project will provide us with a basis on which to address the most critical demands made on the justice system. A central aspect of this project though is the emphasis on change management. We intend to facilitate a management process that would allow officials from each of our departments to effectively communicate with one another and manage the relevant processes in an integrated manner.
A further project to address the more immediate and pressing problem of the excessive population of prisoners awaiting trial has already been piloted with important results and benefits. Over the past five years, the population of un-convicted prisoners exploded from an average of 25000 to more than 75000. At a cost of more than R80 per day per prisoner, the cost effect of this has already begun robbing the criminal justice system of sorely needed financial resources. It has therefore become essential to address this problem as a matter of urgency.
To do so, we have launched several pilot projects in different parts of the country. I am pleased to report that these projects have started yielding positive results. Indirect savings in excess of R50m have been already made. The best practices deriving from the lessons learnt are to be rolled out.
These are only some of the most important projects we have initiated in this financial year. Of significance is the fact that we have aligned the priorities from each of the departments within the Justice Cluster to ensure a maximum impact in our fight against crime. The fact that we are investing more than R140m this financial year is, if anything, indicative of our seriousness.
This is yet another area in which I want to congratulate the business community represented particularly by Business Against Crime for their co-operation and assistance.
I would like also to mention one specific important investigation that I believe would further assist to alleviate the current delays in our courts, namely the investigation of possibilities to simplify our criminal procedure. In essence, we have come a long way toward addressing issues relating to plea-bargaining, out-of-court settlements and an inquisitorial approach to criminal procedure. This investigation under the auspices of the SA Law Commission continues.
In meeting all these challenges, I am glad to say that I am ably assisted by the effervescent Deputy Minister Cheryl Gillwald whose resourcefulness knows no bounds. Between us, we have agreed on a functional division of responsibilities. Comrade Cheryl has been charged with the task of bringing to the Ministry and the Department a business approach in the execution of our mandate. Of specific importance is the fact that she has also assumed the responsibility for executive oversight on all matters pertaining to management, financial management, and all gender-related matters, including maintenance matters.
9 Public Criticism of the courts
It would be remiss of me not to comment on this topical question. In this regard, it will be useful to remember that, as a country, when we embarked upon the transition from apartheid to democracy and as part of our political settlement, we chose to retain the judicial structures and personnel we inherited from our past. In fact, but for the establishment of one new court, the Constitutional Court, we chose to use such structures and personnel as the foundation for post-apartheid justice. This, notwithstanding the fact that the majority of our people legitimately had no faith in any of them.
We are in the process of remaking our country in its entirety and, within our known constraints, tremendous work is being done to transform the Courts. The judiciary as an institution, under the leadership of our Chief Justice and the President of the Constitutional Court, is part of the efforts that are being made. Great strides are being made and black people and women are gradually becoming more visible in the echelons of our judiciary. Many suitably qualified South Africans, whose commitment to human rights cannot be gainsaid and who would find it unthinkable to join the institution in the days of apartheid, are coming forward and offering to join the ranks of the judiciary.
At the same time it would be sheer dishonesty, if not the height of self-delusion, to deny that there is still a long way to go before we have a judiciary which is next to the ideal in racial and gender terms. Similarly, it would be foolhardy to pretend that our judiciary as an institution was spared, or was sealed hermetically from, the full impact of apartheid or that the mere fact that April 1994 happened instantaneously transformed South Africa into a non-racial and non-sexist society predicated upon the values we now espouse. Those of us who were at the receiving end of apartheid still have fresh memories of what was done to us as we struggled against the evil system. Victims of pass laws and forced removals under Group Areas Acts, for example, knew that they could not approach our courts with any hope for justice as our judges would tell them glibly then that theirs was not to make but to interpret and apply the law as given by Parliament.
There is a lingering public perception that things are not changing fast enough in the judiciary. Leaders and some commentators even list certain instances relating to apparent and disturbing sentencing disparities, from which a judicial racial bias can be gleaned. Except to sensitise us to what still has to be done, statistics may not necessarily help us in performing our arduous task in this regard.
All of us, including the judiciary, as builders of a new South Africa, have a responsibility to work hard at enhancing the image of our judiciary and promoting popular confidence in our courts. Part of this responsibility is to desist from indulging in uninformed criticism of the work of the judiciary or ascribing certain motives to judges when they rule in certain matters; the other part is for judges themselves to desist from making statements on or off the bench that would bring reasonable people to the conclusion that a judge's behaviour or attitude is impermissible.
On behalf of government, I am appealing to all South Africans of goodwill, particularly political leaders, to support the little that we are doing in this regard. No democracy can thrive without a strong judiciary in which all of us have full confidence. As a democracy, we cannot instruct people not to express opinions on any matter of public concern, not even on the judiciary; if we did so at the instance of the judiciary or on the pretext of protecting the judiciary from particularly informed and responsible criticism, we would certainly be stifling public debate on matters of public importance and the price over time would be too high to pay.
10 Sentencing policy
One issue that has caused some public concern is the law relating to sentencing. Recently Judge Lewis in Johannesburg declared aspects of the 1997 Criminal Law Amendment Act unconstitutional. What is important is that she has not declared the whole Act unconstitutional. All she did was to hold that the procedure, used mostly in serious rape cases, where someone is tried in the regional court and sentenced in the High Court, is unconstitutional. It is to be noted that judge Lewis did not find mandatory sentences, from which departure is possible in 'substantial and compelling circumstances' to be unconstitutional. The Constitution does not determine how sentencing discretion should be structured. All it requires is that sentencing law should not result in sentences that are 'grossly disproportionate' to the crime. The power to depart means that judges are not compelled to pass unfair and unconstitutional sentences. This has been recognised in a number of divisions of the High Court.
The government recognises that, as was envisaged by Parliament, the 1997 Act is a temporary measure. In all democracies that we have looked at the notion has developed that judicial sentencing discretion should be properly structured to ensure that like cases are treated alike.
Thus, the S A Law Commission has been asked to consider new legislation on sentencing along these lines. The Commission has already published a discussion paper that contains new proposals. These include a revised sentencing framework in which there will be a new partnership between the different arms of Government. It argues for more general sentencing guidelines from which limited departure both upwards and down will be possible. The guidelines will eventually cover all major offences in order to ensure consistency while allowing for departure where unusual facts make it necessary. The Supreme Court of Appeal will be able review and revise these guidelines. The discussion paper also provides for the extension of the involvement of victims in sentencing and for consideration being given to making offenders pay compensation in every case where they can do so. The Law Commission's proposals are being widely discussed. After these consultations the Commission will provide me with its recommendations.
It is my belief that an appropriate sentencing policy and structure will go a long way towards obviating accusations of bias.
11 TRC Reparations
As a department we have hitherto received from the TRC Reparations Committee 12 000 cases requiring interim financial relief. I am happy to inform this House that we have already paid more than 10 000 people; about 1 600 cases which we received last month are being processed so that payment is effected without any undue delay.
Plans are being made to deal with the intractable question of long-term reparations which may not necessarily and certainly will not in many instances, take a pecuniary form. For this purpose, an inter-departmental committee of Directors-General co-ordinated by the Director-General of the Department of Justice and Constitutional Development has been established to advise the executive on how best to handle this issue. As envisaged in the Promotion of National Unity and Reconciliation Act, 34 of 1995, proposals distilled in this process will soon be brought before this House for debate and approval.
Children in Detention
In 1995 Section 29 of the Correctional Services Act was amended to prevent children from being held in prison awaiting trial. There were at that time approximately 800 children awaiting trial in prison and an estimated 500 awaiting trial in police cells. Due to a lack of inter-sectoral planning the sudden implementation of this legislation created a crisis in the child and youth care system. The government responded to this by setting up the Inter-Ministerial Committee on Young People at Risk (IMC).
The IMC identified the need for secure care facilities and a programme for the development of one such facility per province was embarked upon.
Section 29 was further amended by this Parliament in 1996 to provide for children charged with certain serious violent offences like rape, murder, hijacking etc to be detained in prison to await trial. This amendment also allowed for magistrates to detain children on other charges in circumstances " so serious as to warrant such detention". Statistics from the Department of Correctional Services indicate that there are 2658 children in prison awaiting trial. The majority of these children are awaiting trial for serious offences. If there are children in prison awaiting trial for minor/petty offences then the inter-sectoral team made up of the Department of Justice, the National Prosecuting Authority, Welfare, Correctional Services and Safety and Security as well as the United Nations Programme Child Justice Project will attend to such. This team has actually embarked on a programme which started on 1 June 2000 and will end on 20 June 2000. The expected outcomes of the intervention and action plan are the following :
12 Conclusion
Madame Speaker, I have limited my report to only those areas that I believe represent the key challenges in the way forward. This has been because our interaction with the Portfolio Committee allowed for a much more intensive and extensive study of the Department's report on past activities and future plans.
It now remains for me to express my heartfelt gratitude to the Chairperson and members of the Justice Portfolio Committee, the Director-General, Adv. Vusumzi Pikoli, the National Director of Public Prosecutions, Mr Bulelani Ngcuka, and members of their management teams for the excellent support provided to me over the past year. I also wish to thank the Chief Justice, the President of the Constitutional Court, the Judges President and all members of the judiciary in the lower and higher courts, without whose dedication, hard-work and tenacity we would not be able to give what I believe is a good account of ourselves.
Footnote:
(1) Jeffery Robinson, The Laundrymen: Inside Money Laundering, the World's Third Largest Business (Arcade Publishing, New York, 1996), at 4.