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Budget Debate Vote on the Office of the Chief Justice and Judicial Administration By (ANC) MP Hon. Stanford Maila

15 May 2018

The African National Congress rises in support of this budget vote.

As we celebrate the centenary of Tata Nelson Mandela and Mama Albertina Sisulu, it becomes imperative that we make a reflection of where we come from, where we are and how we would like to shape our future. Though we are from a sad past, we never despaired. The struggle against apartheid colonialism was long and costly. We fought against dispossession through tribal wars. We saw the importance of unity for a common course. We engaged in deputations, passive resistance, armed struggle, international solidarity, mass mobilization and negotiations. At last our efforts were rewarded.

When victory became certain, the ANC developed policy guidelines for a democratic South Africa: Ready to Govern. The understanding was that ours should be a Constitutional democracy and that central to the Constitution should be the Bill of Rights which shall be binding upon the state and organs of government. The Bill of Rights will be enforced by the courts headed by a separate newly created Constitutional Court, which will have the task of upholding the fundamental rights and freedoms of all citizens against the State or anybody or person seeking to deny those rights. We declared that the judiciary will be independent and should consist of men and women drawn from all sections of the community on the basis of their integrity, skills, life experience and wisdom. We were indeed ready to govern, we are governing and we are still prepared to serve our people with diligence.

As we celebrate the centenary of President Nelson Rholihlahla Mandela, we remember his first court statement at the Old Synagogue Court, Pretoria in 1962:

The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us. It is fit and proper to raise the question sharply, what is this rigid colour-bar in the administration of justice? Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced? Why is it that no African in the history of this country has ever had the honour of being tried by his own kith and kin, by his own flesh and blood? I will tell Your Worship why: the real purpose of this rigid colour-bar is to ensure that the justice dispensed by the courts should conform to the policy of the country, however much that policy might be in conflict with the norms of justice accepted in judiciaries throughout the civilised world

Transformation

This is a reflection of our sad history. Even if we can't forget, we must never go back. Our sad history dictates that we must not be shy in our quest for transformation of the judiciary. Under the system of apartheid colonialism, appointment to the judiciary was restricted and highly regulated. The result was dominance of white males in all facets of the judiciary. The exclusion of other races and women from the judiciary and use of the courts to advance ideals of the apartheid regime caused many people in black communities to lose confidence in the judiciary. It is for this reason that transformation became desirable to redeem the judiciary.

The Constitution provides the need for the judiciary to reflect broadly on the racial and gender composition of South Africa when judicial officers are appointed. Both the Judicial Services Commission and the Magistrates Commission have the responsibility to ensure that aspects such as race, gender, experience and qualifications are considered in the Department's appointment processes.

We are confident that the Office of the Chief Justice will pursue our transformation agenda. According to a 2016 investigative report by the Commission for Gender equality, gender transformation is still quite slow. In March 2016, of the 227 filled positions of judges, 82 were female, reflecting as 36%. In terms of demographics: 101 were African, 78 white, 24 Indian and 24 Coloured. While this is move in the right direction, much more still needs to be done.

The ANC National Conferences have consistently highlighted the importance of an independent judiciary. Our 2012 Policy Discussion Document clearly states that "The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored". This was echoed yet again in our 54th National Conference where we resolved that: In upholding the doctrine of separation of powers, the three arms of state should be clearly regulated by development of rules of engagement without any arm of state undermining the constitutional authority of the other.

Each arm of the State must therefore observe the inherent constitutional limitations regarding its power and authority and no arm should undermine another when exercising its constitutional mandate.

The Constitution Seventeenth Amendment Act came into effect in 2013. The changes effected to the Constitution by the amendment Act are to make the Chief Justice the head of the judiciary and to make the Constitutional Court the highest court in the country for all matters and not only constitutional matters. It further entrenches the independence of the courts and acknowledges the responsibility of the Chief Justice over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. It is in this context that the Chief Justice must now develop such norms and standards. The Superior Courts Act, not only rationalises and consolidates the laws relating to the Constitutional Court, the Supreme Court of Appeal and the high courts of South Africa, it also recognises the desirability of a uniform framework for the judicial management of all courts.

The mandate of the Office of the Chief Justice (OCJ) is to provide effective administrative and technical support to the Chief Justice as the head of the Judiciary and the Constitutional Court. The OCJ was established as a measure to promote and reaffirm the principle of judicial independence, as guaranteed by section 165 of the Constitution.

In executing its mandate, the OCJ supports the Judiciary in its contribution to Chapter 14 of the National Development Plan (NDP): Promoting Accountability and Fighting Corruption. Contribution to this NDP priority is done through strengthening the judicial governance and the rule of law.

Jurisprudence

"If transformation does not touch the aspect of jurisprudence, judicial transformation will be incomplete because "apartheid jurisprudence was the means for elevating law and order and sectarian class and race interest above inclusivity and justice."

South Africa inherited the colonial legal system and colonial jurisprudence, which is based on Roman Dutch and English common law. These common law systems are founded upon European culture and custom which is fundamentally different from African culture and custom. Roman Dutch and English common laws are fundamentally concerned with the individual, as opposed to the African legal system. Even with the colonial legal system in place, Africans continued to live in accordance with their traditional laws and customs.

Budget and performance

We note the proper spending patterns displayed by OCJ. We commend the Department for spending 100% on the IJS allocation. We are pleased to hear about the reduction in time that judges had for reserved judgments from 12 months to three months because that had been denying justice. We thank the Office of the Chief Justice in the good that it continues to do in dispensing justice.

We would like to extend a word of congratulations to the head of the judiciary, Chief Justice Mogoeng Mogoeng on his inauguration as Chancellor of the University of KwaZulu-Natal (UKZN) in December 2017 and for the conferral of an honorary doctoral degree by the University of Johannesburg (UJ) in March 2018. The University of Johannesburg conferred the degree in recognition of his pioneering commitment to serving humankind by upholding the independence of the judiciary and by promoting access to justice in tangible ways which has earned him wide spread respect and admiration for serving humankind.

The caliber of South Africa's judiciary fits well in the ANC's "Thuma mina" campaign. The people of South Africa should know that it is only the ANC which can be sent on a mission of transformation. You can never trust the DA on transformation. The DA is only concerned about one sector of the society. The DA does not care about people of African origin. It only needs them when it wants to use them and the have a rich history on that. They used Motlatjo Thejeng in Limpopo and dumped him. They kissed Mamphele Ramphele and dumped her. The list is endless. Lindiwe Mazibuko, Wilmot James, all used and dumped. Now they have met their match in Patricia De Lille. The DA has been exposed.

The ANC supports the budget vote.

     
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