Speech by Dene Smuts MP, Democratic Alliance shadow minister of justice, in debate on the Justice and Constitutional Development budget vote, June 24 2009

A long time ago I suggested to the late Dullah Omar that he would be dispensing with justice as our first democratic Justice Minister, instead of dispensing justice, and I was only half joking.

Because we had embarked on the wholesale indemnification and amnestising of people who had broken the law, under the process that became known by the name of the Commission we legislated into life in 1995 in this committee as the TRC. (I think my last involvement with this portfolio was in 2005 when we debated the Final, Final Report of the TRC.)

The unfinished business of that difficult process is still with us.

It is with us in the form of applications for pardon.

It is with us in the heartbreaking business of the exhumation of the remains of missing persons.

It is, or should be, with us in the form of the prosecution by the NPA's Priority Crimes Litigation Unit of persons who failed to apply for amnesty, or who failed to get it. That process should be with us because if it is not, a de facto blanket amnesty has been introduced in favour of transgressors who defied the mercy offered and hoped to get away with it.

The unfinished business is, but should not be, with us in the form of the ever-growing amount left for community reparations in the President's Fund after the payment of R30 000 each to designated survivors. Six years to the day, 24 June, when the decision on the distribution of the money was taken here, the amount now stands, after interest, at R900m. Disbursement still awaits the finalisation of regulations.

I hope the Hon Minister will make matters like these his priority - especially as the recession begins to bite - rather than jousting with the judiciary.

Throughout the time of the TRC and thereafter, the DA has stressed the importance of restoring the normal operation of the law and respect for the consequences of breaking it.  Our uncontained criminality  only serves to underscore the point.

It is obvious that respect for the courts is a necessary component of the restoration of the rule of law. Indeed it is a precondition. It is therefore unfortunate that the Hon Minister has, however indirectly, questioned the composition of the Bench. One cannot do so without bringing its authority into question.

The DA wants black judges, and Coloured judges and Indian judges.  We believe a diverse society must be led and interpreted by a leadership that reflects its many cultures and experiences. The DA wants women judges.

But something like parity has already been achieved in respect of race as defined by the ANC, while Minister Brigitte Mabandla did just the right things on gender during her tenure - inter alia ensuring that the Acting appointments within her powers went to women.

It cannot be the case that these are the factors which caused the Hon Minister to interrupt JSC proceedings or to announce the reintroduction of the Mbeki Bills on the Courts. And therefore we ask for more persuasive reasons than the broad departmental definitions of transformation.

Why, really, does the government want to take charge of the administration of the courts? There are some administrative functions that are inseparable from the judicial role, such as drawing up court rolls and deciding how many judges, and which judges, are to hear which cases. And that the government may not do. Judge Michael Corbett wrote in 2006 that any attempt to vest this function in a Minister must be treated as an assault on judicial independence.

Government has tried to do this before. When the three Acts that give effect to the rights to equality, information and administrative justice were legislated  in 2 000, the Minister was allowed to designate presiding officers who could hear cases brought under the new Acts.

I called them Penuell's poodles. It was unacceptable that Minister Maduna should hand pick his judges, especially when the draft Equality Bill expressly challenged the Constitutional Court's interpretation of equality before we fixed it, and when a Departmental official told us quite frankly that she had a problem with some "judgements, with judges and their attitude". Sound familiar to me.

I am happy to say that the Penuell's poodles provision was repealed in 2002 from all three Acts.  I sincerely hope I am not going to have to think up something that alliterates with the Hon Minister's name this year to campaign against the Constitution 14th Amendment Bill

The Constitution is clear, the Certification Judgement was clear, and any number of judgements written since then are clear that independence includes institutional independence, of which administrative control is an integral part. Let's leave the judges to dispense justice. They alone can do the job, and they must be left alone to do it.

Source: Democratic Alliance

Click here to sign up to receive our free daily headline email newsletter