Justice Budget Vote 2003
African Christian Democratic Party MP Steve Swart

17 June 2003

Madame Speaker, Justice requires that society deal seriously and firmly with
crime, recognising that it is as much an offence against persons as it is
against the state. It is as much a violation of the victim as it is a
violation of the law. The purpose of government is primarily to protect the
life, liberty, and property of all individuals by punishing evildoers and
protecting law-abiding citizens. The question for debate is whether the
Department of Justice is succeeding in fulfilling this mandate.

It is undeniable that the levels of crime remain at unacceptably high
levels. Whilst we will have to wait until August to obtain the exact crime
figures, most South Africans are clearly overwhelmed and preoccupied with
crime, its effects and how to combat it. The callousness of the crimes,
particularly the rapes and murders has resulted in society calling for
harsher measures, including the re-introduction of the death penalty, a call
that the ACDP has consistently supported.

Few would disagree that the judgement prohibiting the death penalty remains
one of the most unpopular decisions of the Constitutional Court. It is
crucial for the Court to be sensitive to public opinion to retain public
support for the exercise of its power, failing which it may lose legitimacy
as an institution of South African public life. Judges who reject public
opinion particularly when dealing with national moral issues may be faced
with the dilemma of counter-majoritarianism. This occurs when the court
moves away from its traditional judicial mode to a legislative mode of
conducting its business .

"Constitutional review is conducted by un-elected judges who are empowered
to overturn the will of a democratically elected and accountable legislature
in terms of a process of interpreting abstract constitutional provisions. In
short, the question arises as to how to account for and justify the
curtailment of the operation of a democratic political system to an
unaccountable institution. "

It is against this background that the issue of the Judges Presidents
complaints must be considered.
Madame Speaker, the Judges Presidents' comments that the Honorable De Lange'
s criticism in the Justice Portfolio Committee amounted to an "insidious
attempt to undermine the independence of the judiciary" received widespread
media attention over the week-end, with comments such as "Parliament,
Judiciary on a collision course" - Sunday Times, June 15.

The ACDP is in total agreement that the independence of the judiciary is one
of the central pillars of our Constitution, and the guardian of the rule of
law. We need only to look at Zimbabwe to see what happens to the rule of law
when the independence of the judiciary is not safeguarded.

There is no doubt that whilst the criminal justice system might not be
collapsing, it is showing signs of severe stress, particularly if one
considers the increasing backlog of cases. The Chief Justice has eloquently
referred to the various departments involved, from the investigating
officer, to the prosecutor, to the judiciary as various links in a chain -
the chain being as strong as the weakest link. During the week's discussions
and oversight visits, all aspects were studied including the judiciary. It
was in this context certain comments were made concerning the judiciary, and
questions were put to the Chief Justice.

Having practiced as an attorney for 15 years, I am fully mindful of the
tremendous workload faced by the judiciary. My concern relates to the fact
that the High Courts are only able to sit for an average of three hours
twenty minutes. At no time do we as the ACDP, or I'm sure any member of the
justice committee allege that judges only work for this period - clearly
there is a huge amount of chamber work, and the recesses are inter alia used
for the preparation of judgements, and the reading of appeal records.
The Chief Justice pointed out that a visiting American judge could not
believe the high number of criminal cases that South African judges were
expected to finalise. Let us also not forget that our High Court judges
severely lack the administrative resources, such as researchers, to make
their jobs easier.

I wish to categorically disassociate myself and the ACDP from any
insinuation that judges "are lazy and overpaid". Indeed, I don't think this
was the sentiment of any of the members of the Committee. My understanding
of the sentiments expressed was that we need to find ways of increasing the
court hours per day for all courts, including the High Courts, in order to
address the increasing backlog of cases.

We as politicians, do however need to monitor the courts and address the
issues contributing to the increasing court backlog.

A particular concern, and one that I raised with the Director of Public
Prosecutions is the application of minimum sentencing legislation by certain
High Courts. I am particularly concerned with the practice that rape victims
are being subjected to unnecessary further victimisation, by not only having
to give evidence in the Regional Court, but when the matter is referred to
the High Court for sentencing in terms of the minimum sentencing
legislation, they are being recalled to give evidence a second time. This
further victimisation is unnecessary, unacceptable and must be brought to an
end.

A solution to this problem would be to institute all prosecutions where
there may be a minimum sentence in the High Court to avoid such secondary
victimisation. Alternatively, the Regional Courts must be given the
jurisdiction to impose life sentences.

According to statistics provided by the National Prosecuting Authority
(NPA), 1 065 013 new cases were recorded by the NPA during 2002, up from 756
801 in 2001, and representing a substantial increase in the workload of the
courts.

Whilst the NPA must be applauded for its valiant efforts at stemming the
tide of crime, there is no doubt that the significant increase in reported
cases will result in a further backlog crisis. Already, for the months of
February and March, an additional 141 616 and 155 627 cases were referred by
the SAPS, with 2 954 and 11 217 not being disposed of, adding to the
backlog.

To further assist the prosecuting authority with their task of fighting
crime the following must be speedily implemented:

Firstly, as requested by the National Director of Public Prosecutions, the
forfeiture legislation needs to be urgently beefed up. How is it possible
that a fugitive from justice can contest forfeiture proceedings aimed at
combating organized crime, without subjecting themselves to the jurisdiction
of the courts. I am in total agreement that taking the profit out of crime
is one of the key objectives of the prosecuting authority, and consequently
urgent legislative amendments are required to address this issue.

Secondly, last year I endorsed the call for legislative amendments to compel
accused persons to divulge their defence, in view of the obligation on the
state is provide a copy of the police docket. This, together with plea
bargaining, and special initiatives such as Saturday Courts will go a long
way to expedite the finalisation of cases.

Whilst the conviction rate appears impressive (District Courts-83%, Regional
Courts- 74%, High Courts- 82%), the high number of withdrawals compared with
finalised cases remains a problem. The factors contributing to this were
either poor police investigations, or poor decisions by prosecutors. If one
compares this to the statement by the Chief Justice that it is estimated
that only 50 % of reported crimes are investigated, it clearly gives the
impression that crime does pay.

The Scorpions are doing commendable work in fighting organised crime, by
combining crime analysis, investigation and prosecution supported by modern
technology. The problem in their Human Resources section is regrettable, and
serves as a poor example for an elite crime-fighting unit.
The Specialised Commercial Crime Unit continues to play a key role in
fighting commercial crime, with high conviction rates in the commercial
crimes courts.

The main problem of prison overcrowding can be solved by addressing the high
number of awaiting trial prisoners caused by backlogs in the criminal
justice system, rather than a general amnesty for certain prisoners (as
mooted by the Inspecting Judge for Prisons, Judge Fagan).

In this regard I wish to commend the efforts of the departments in the
criminal justice cluster in reducing this number by applying sections 62(f)
and 63(A) of the Criminal Procedure Act, Act 51 of 1977. As at March, there
were 187 748 prisoners, (in prisons designed for 110 874, representing 71,1%
overcrowding) including 58 144 awaiting trial, of which 19 592 could not
afford bail, and were not considered a danger to society.

The social cost of locking up these persons, who are in law presumed to be
innocent until proven guilty, in these "universities of crime" is
inestimable. According to Judge Fagan, "They just sit idly without receiving
instruction or attending courses, wasting their lives. Besides losing their
employment or schooling, the cost to the state is enormous."

During the recent visit to Port Elizabeth by the joint Justice and
Correctional Services Committees we were most impressed by the willingness
of all officials to find solutions to prison overcrowding; the Integrated
Justice System approach, as well as the pre-trial services project will go a
long way to reducing the number of awaiting trial prisoners. It is a pity
that these projects have been shelved in certain other provinces following a
cutback in donor funding.

The ACDP commends the Minister and Department for their support for
restorative justice programs, which we have advocated over the years. This
new approach to criminal justice is victim-centred in that it recognises
that crime is primarily an offence against human relationships and
secondarily a violation of the law. It is victim-centred in that it seeks to
hold prisoners directly accountable to victims whose rights they have
violated. Whilst the Child Justice bill has been substantially rewritten,
the ACDP fully supports the inclusion of Restorative Justice principles, as
long as the safety of the public is not compromised.

The issue of maintenance remains a severe problem, experienced by many in
our constituencies. Maintenance is often the sole means of support for many
single parents. It is estimated that there could be hundreds of thousands of
fathers who do not pay maintenance. In Mitchells Plain, it is estimated that
only about 5 000 of the 50 000 men who have maintenance orders against them
pay regularly.

The ACDP is in agreement with the views of Professor Kruger of the Wits Law
Clinic, as reported in this week's Sunday Times, that the maintenance
system was in a "shambles every step of the way. The administration of
justice has failed women and children totally."

A very serious issue relates to the department's Deposit Account. It is
disgraceful that corrupt officials are robbing the public by pocketing
millions deposited for maintenance payments, bail money, fines and deceased
estates. The fact that accounts of many of the approximately 750 courts are
in a state of chaos, and that the amount of money that has been
misappropriated is, according to the CFO "significant" is an issue of great
concern. The state will be held liable to make good the losses that may run
into many millions.

The department will receive an increase of approximately R¾ billion this
financial year. The department has made commendable improvements in dealing
with its budget and the issue of unauthorized expenditure. However, the ACDP
is unable to support this budget vote due inter alia to the increasing
backlog of criminal cases, the failure of the maintenance system, and the
severe problem of the missing millions from the Deposit Account.


For more information: Steve Swart MP at 083 285 6290
Media Liaison: Charmaine Horne at 084 370 3550 or 021 403 3307