Speech by Dene Smuts, MP, DA shadow minister of justice and constitutional development, on the justice budget vote, May 5 2010
It is not every day that a Minister puts before Parliament a suite of Constitutional changes and Bills of the scope and import of those announced today. I congratulate him and his Deputy on restoring the proper relationship between the executive and judicial branches of state after the damage that followed the 2004 election , and I congratulate him also on proposing reforms which will give our courts the institutional independence they deserve as of right.
The Chief Justice has our particular support for the Bills yet to come. They will create a policy and rule-setting Judicial Council or Authorityand in so doing enhance judicial independence; and also an administrative agency which all South Africans may hope will bring an end to the administrative malfunctions encountered especially in the lower courts.
It goes without saying that we will be vigilant in legislating these reforms, to ensure that our courts truly are independent and subject only to the Constitution and the law, as the Constitution requires, and that no person or organ of state can interfere with their functioning.
Once those principles are given full effect in the law, the seven point plan adopted under the Criminal Justice Review by the previous Cabinet can be implemented with greater confidence. Its one weakness always was the proposition that there should be coordination stretching from "cabinet to court", to be conducted at one point, most disconcertingly, from a departmental "war room" under the command of the former Deputy Minister.
We will support the R3.8bn set aside for the court services programme in view of the proposed Constitutional and legislative changes.
The R2.4bn proposed for the National Prosecuting Authority is a different matter. The Treasury's proposals are in order: it is precisely the mismatch between the appropriations per subprogramme and the NDPP's strategic plan that I pointed out to the Minister in the Justice committee. But now that he has put some sort of stop to Adv Simelane's ruinous, we need to see a new strategic plan.
And we need also to ask how it can be tolerated that the person entrusted with prosecuting people who break the law can ignore whole sections of the law that structures the NPA (as the Constitution requires) as well as the separate law governing forfeiture of the proceeds of crime. He also acted in breach of the Criminal Procedure Act when he instructed the Chief Prosecutor at the Protea Court not to oppose bail for Mr Maarohanye.
It is time, now, to amend the Constitution to provide for a better appointment procedure for South Africa's National Director of Public Prosecution. Section 179 (1) gives the President the power outright and unencumbered by requirements of recommendation or consultation of any kind to appoint the NDPP.
The 19th Constitutional Amendment Bill is likely to introduce changes to almost every section of Chapter 8, but not to section 179. We may as a committee want to consider Gazetting for public comment under section 74 (5) an additional set of amendments to that section .
These should not be seen a set of Simelane amendments, although it is that gentleman who triggers this proposal. They would just as much be a set of Vusi Pikoli amendments, because it was the fate of the former NDPP which prompted the first suggestions of review, many of them from leading ANC members.
What should the appointment amendment say?
The previous President, President Mothlanthe, proposed while he was in office that the NDPP should be recommended by the Judicial Service Commission.
The previous Justice Minister, the Hon Enver Surty, suggested Parliament should look at its own role.
The previous justice MPs, sitting in the Ad Hoc committee charged with deciding the removal or reinstatement of Adv Vusi Pikoli as NDPP, formally reported that they found it anomalous that Parliament has no role in the appointment when it has the final say on removal from office.
We agreed then, we are likely as a new caucus to agree now: the President should have only the formal signing power to appoint the person recommended by Parliament after a public nomination process.
It may be useful to remind ourselves on this point that Parliament not only has the final say on removal under section 6 of the NPA Act, the process under which Adv Pikoli was removed; Parliament can also remove on its own motion under section 7 of that Act. If both Houses in one session send an address to the President, he must remove the NDPP.
The second amendment should state clearly that the prosecuting authority is independent. The Constitution intends prosecutorial independence, and the Constitutional Court has so certified. But to say, as section 179 (4) does, that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice is to say it very softly.
It is out of character for our Constitution to be so half hearted about independence when a whole set of Independent Institutions in Chapter Nine enjoy the classic formulation that applies also to the courts: they are independent and subject only to the Constitution and the law AND they must work without fear, favour, etcetera. Like the Chapter Nines, but unlike the courts, the NPA should be accountable to Parliament, as indeed it already is under the NPA Act.
Thirdly, we need to amend the final responsibility given to the Justice Minister in section 179 (6). It stands in contradiction to the prosecutorial independence in subsection 4. It is uncharacteristically olde-worlde when we have led the world on all other constitutional counts and when the soft law emanating from inter alia the UN asks for fuller independence. Both then Minister Surty and the Pikoli Ad Hoc committee said in 2009, notwithstanding section 33 of the NPA Act, that final responsibility needed clarification and I must say that our committee discussions yesterday only proves the point; the ANC members of the Ad Hoc in 2009 recorded their view that both the Constitution and the NPA Act needed review on this point.
It had after all by then contributed to the fantastic and unlawful misconstruction of the scope of the executive powers which led Minister Mabandla and Adv Simelane, then D-G Justice, to thunder at Adv Pikoli in the notorious September 2007 letterthat "You shall not pursue the route you have taken steps to pursue" in respect of Mr Jackie Selebi. Mr Selebi is currently in court following just such steps.
It led also to Adv Simelane's "misconception of his authority" over the NPA , as Frene Ginwala described it, when he used his PFMA role as accounting officer to underminethe independence of the NPA from without. Now he has tried to diminish it from within, not least by transferring its corporate services to the Department while decapitating all the specialised units and packing senior prosecutors off to junior courts.
I am pleased as the hon Minister's shadow to have spotted the plot and revealed it, because that is properly Parliament's role.That, and the voting or withholding of taxpayers' money until satisfied. I do not see what powers the Minister needs beyond the concurrent determination of prosecution policy already given in subsection 5, and I believe we should delete the final responsibility. Prosecutorial independence cannot be qualified. It can't. It belongs to the NPA. Final responsibility for the nuts and bolts of the institution itself should take the form of accountability to Parliament, which after all passes its law.
There is one last section of Chapter 8 that requires our attention.
There is a view taking stronger and stronger root now in favour of the reconstitution or reconfiguration of the Judicial Service Commission following the exclusion of Adv Jeremy Gauntlett from eligibility for the bench.
The ANC-led bloc in that body has done the JSC and itself greater reputational injury than it may realise by excluding him from appointment even to the Cape bench, and yes, it was exclusion, not just a failure to select.
It is perfectly obvious, secret vote notwithstanding, that he had the support of the country's top judges. He has the support of judges outside also. Judge M.M. Ramodibedi, President of the Lesotho Court of Appeal, thought fit last year to quote his predecessor Judge Jan Steyn in bidding farewell to Adv Gauntlett after his 12 years of service as a judge on that bench by describing him as "simply unique" both for his intellect, his judgements, and for the way he ran his courts. That is 12 years of full appointment, apart from the four or five acting appointments on the Cape bench, apart from the groundbreaking work in the SADC region as an advocate, apart from the fact that he is our foremost constitutional lawyer.
But the ANC bloc will not appoint him. The ANC flock. Do they know what they have done? They have proved that they are not qualified to appoint new judges
We will not go with the argument that judges only, retired or otherwise, should select. But we do ask ourselves whether a better balance is not required. That is what has already been done in the JSC Amendment Act for the purposes of disciplinary enquiries, now judge-led. Why not on the JSC?
Let us discuss later, and on mature reflection, when representatives of the magistracy are added to the JSC in the 19th, whether only one representative Judge President really suffices.
The JPs are unarguably best placed to judge the potential of the lawyers from their provincial divisions.
They will have seen them in action in court, both as lawyers and as acting judges, and they will have real knowledge of the character and Constitutional commitment of a candidate. That commitment is what transformation really means. The rest is smoke and mirrors.
Underneath the smokescreen routinely thrown up by the JSC spokesperson, the JSC is clearly trying to reverse inappropriate earlier selection trends, just as this Ministry is reversing its predecessors' assault on judicial independence.
But all the doubts about the JSC have been revived, the doubts created last year when it ducked the duty of dealing with he- whose- name- we -may -not -speak. We cannot discuss him here because we have given our primary powers concerning judicial conductaway to the JSC . We cannot discuss him because we remain the final impeaching authority ,should the JSC after proper enquiry ever make such a recommendation. And the exclusion of Adv Gauntlett occurred to avoid conflict with him, too, didn't it?
How is it that one man can render several institutions paralysed and powerless? There are striking similarities with the hesitancy and the current on-again off-again attempts by the ANC to conduct an enquiry into another such a man, a younger one. But you really cannot treat a judge as if he were the Julius Malema of the judiciary. How long, Hon Minister? You must surely realise that the jury remains resolutely out on you, Sir, because of him.
Issued by the Democratic Alliance
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