JUSTICE AND CONSTITUTIONAL DEVELOPMENT MINISTRY
13 September 2000
MEDIA BRIEFING

Document handed out:
Minister’s Media Briefing: Minister Dr P. Maduna (appended)

In his media briefing, Minister Penuell Maduna spoke on progress made with regard to the key challenges of Department of Justice identified in his budget speech:
· The announcement: Justice Colloquium
· Change management processes
· An effective prosecutorial service
· An integrated justice system
· TRC reparation and
· Financial administration

Before starting his briefing, he referred to the assassination of Magistrate Piet Theron who was killed the previous week. He assured everyone that very serious measures are being taken and that the cases over which Magistrate Theron presided, were not going to be dropped but would be given to other magistrates. He said that there is R1million reward for the information that brings the perpetrators to justice.

The Director-General addressed the media on the matter of financial administration. He clarified the issue of unauthorized expenditure that has been reported on by the Auditor General in his audit report of the Justice Department. Mr Pikoli pointed out that money which is said to be spent in an unauthorized manner does not equate to corruption. He emphasized that there is no element of corruption, fraud or theft.

Discussion
(Q) Do you have an explanation for last night’s bombing [outside the Samaj Centre in Athlone]?

(A)The Minister said that the bombing involved the element of terror. The perpetrators knew that the Western Cape Premier was going to hold a meeting there otherwise they would not have merely bombed an empty hall. He said that this act was directed at the state, the perpetrators are fighting the state.

(Q) A question was asked about South Africa having a trial-by-jury system?

(A) Dr Maduna replied that they should rather wait for the Colloquium, held on the 19 and 20 October 2000 to hear his position. He stressed the fact that he is a firm believer in lay participation in the hearing of trials and in the justice system.

(Q) The time frame for proposals reaching Cabinet with regard to the payment of reparations was requested.

(A) Dr Maduna: We are talking about 2-3 months before Cabinet sees it.

(Q) You claimed that its Pagad which is committing these terrorist attacks, what evidence do you have?

(A) Dr Maduna: If you’re looking at the evidence as required in the courts, then its difficult to have evidence now, but if you look at the facts you can say that it is Pagad who is doing these things. The same kind of weapons and equipment was used in this bombing as in the previous bombings in which Pagad members were involved and even arrested for.

Minister Tshwete joined Dr Maduna and he was also asked to give explanation as to the previous night’s bombing?

(A) Min. Tshwete: Bombers knew about the meeting, the bomb was not just there. He said that the bombing was an act of terror aimed at the rally that was going to be held there and also aimed at the police who were going to protect the VIPs. He pointed out that the instruments that were used were identical with those that were used in previous similar attacks by the Pagad members.

(Q) Would you say you are at war with Pagad?

(A) Min. Tshwete replied that they were at war with Pagad and that they are going to defeat them. He acknowledged that this might not be today or tomorrow.

(Q) Why don’t you declare the situation to be a state of emergency?

(A) Min. Maduna replied that in terms of Section 37 of the Constitution, they have the power to declare a state of emergency anywhere in the country. He personally did not believe the situation warranted a state of emergency. To him the situation warranted tackling the Pagad G-force.

(Q) Some Pagad members are still in jail, is this likely to speed up those cases?

(A) Minister Maduna: We can speed up these cases.
Deputy Mininster Gillward: It will not be a good idea to merely try to fast track them. What is important is to see that justice is done.

In answer to a question on pending anti-terrorism laws, Minister Maduna replied that, "First and foremost we are the only democratic country which does not have laws which deal with terrorism". Dr Maduna stressed that South Africa needs legislation, which deals with terrorism just as other countries have. The limitation clause as contained in the Bill of Rights of the Constitution provides that any law in this regard has to pass the requirements of the limitation clause. As we don’t have laws dealing with terrorism, we are looking at how legislation in other countries is dealing with terrorism. We are looking at international standards and what is internationally acceptable as the way of reacting to acts of terror, we will comply with these.

Appendix 1:
Minister's Press Briefing
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Minister for Justice & Constitutional Development: Dr. Penuell Maduna
13 September 2000

1 The assassination of Piet Theron
2 Announcement: Justice Colloquium
3 Change Management Processes
4 Financial Administration
5 An Effective Prosecutorial Service
6 An Integrated Justice System
7 TRC Reparations

In my Budget Speech, I addressed some of our key challenges and how the Department of Justice and Constitutional Development is responding to them. I believe it necessary to report on progress made and developments that are unfolding.

1. The assassination of Piet Theron
Before I proceed, I would like to pause a moment to refer to the dastardly and callous act of the assassination of our Regional Court Magistrate, Piet Theron, last Thursday evening.

I wish to report that the SAPS, in conjunction with the Department of Justice and Constitutional Development, will perform full security and risk assessment on courts in the Western Province, especially those courts designated for urban terror-related cases. The investigation into the murder of Mr Theron has been given priority status and is being conducted in co-operation with all relevant state agencies.

We wish to make it absolutely clear that the state will not allow terrorists to undermine the application of the rule of law. All cases presided over by the late Mr Theron will be taken over by other magistrates; if a case was partly heard, it will be heard de novo (i.e. from the start); if persons were convicted, sentences will passed by other magistrates.

All levels of government and every agency of state are working together to achieve a common objective: the security and safety of the people of Cape Town. Let there also be no doubt that the law will be applied. We are determined to bring the perpetrators of these crimes to book.

Once again, we appeal to the public to come forward and supply any information they may have concerning these crimes to the police. Co-operation between the security services and the community is essential to the successful prosecution of the perpetrators. A reward of R1 million for information leading to the successful prosecution of perpetrators of urban terror remains available.

It has been decided that sensitive court cases will be centralised in a few courts. Security for these courts will be maximised to ensure that the cases can be tried without hindrance. In addition, a central, high-security court has been established at Pollsmoor Prison, where some of the most sensitive cases will be heard.

2. Announcement: Justice Colloquium
On a more happier note, I would like to announce that a legal Colloquium will be held from 19 to 20 October 2000, in Pretoria. The objective of the Colloquium is to discuss issues that will assist in moving towards a rationalised, effective and efficient structure for the courts that promotes access to justice.

The main aspects to be dealt with by some of the top legal people in the country, including the President of the Constitutional Court, Higher Court Judges, and other senior judicial officers, relate to the structure of the courts, language in the courts and access to justice.

The question may be posed as to why such a Colloquium now?
The background to this is the following. South Africa's present court structure, with the exception of the Constitutional Court, has been in place since 1910, when the South Africa Act 1909, was brought into operation, creating the Union of South Africa. The present legislation governing the structure and functioning of the superior courts dates back to 1959 and the Magistrates' Courts Act to 1944. The Constitution of the Republic of South Africa, Act 108 of 1996, in section 16 (6)(a) of Schedule 6, provides that A[a]s soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution. After consulting with the Acting Chairperson of the Judicial Services Commission, I have decided to host a Colloquium. This will enable us to consult with relevant role-players concerning the issues relevant to the rationalisation process and other aspects impacting on the effective and efficient functioning of the justice system.

3. Change Management Processes
In my Budget Speech I reported that we have secured free of charge the assistance of various senior business executives in reviewing and finalising our strategic plans and change management process. I promised then that implementation of this process would be completed before the end of this year. I want to report that this process is well under way and we intend to meet our targets.

4. Financial Administration
There has been much said in the media about the state of our finances. Our courts would need much more money than is currently available in the budget. We therefore have had to prioritise our budgets to address those areas that are central to our core functions. There have been unfortunate reports that some of our offices have suspended services because of these budget constraints. To address this concern, the department has issued a circular instructing all offices not to compromise on our core functions in their austerity program.

5. An Effective Prosecutorial Service
In Parliament, I also reported that the Bill for the establishment of DSO has been referred to Cabinet and will soon be introduced. As you well know this is currently under discussion. Furthermore, discussions are currently underway to consider a better salary dispensation for the prosecutors (and magistrates). I believe that this will assist in promoting better service delivery.

6. An Integrated Justice System
I have also previously reported on the Department's e-Justice programme and specifically the Court Process Project, which is being piloted in both Johannesburg and Durban. Here again, I wish to report that good progress has been made. All the stakeholders in these courts have been consulted and are soon to be engaged in a change management process. This is an exciting project. I trust that you will be watching this space.

7. TRC Reparations
I would also like to record some progress here. The Department is in the process of preparing a set of proposals for consideration by Cabinet regarding the payment of reparations. We are doing this in consultation with the relevant departments of government and hope to make an announcement in the near future.

END

MEDIA CONFERENCE: 13 SEPTEMBER 2000

1. ANNOUNCEMENT: COLLOQUIUM: 19-20 October 2000, PRETORIA
A legal Colloquium will be held from 19 to 20 October 2000, in Pretoria. The objective of the Colloquium is to discuss issues that will assist in moving towards a rationalised, effective and efficient structure for the courts that promotes access to justice.

The main aspects to be dealt with by some of the top legal people in the country, including the President of the Constitutional Court, Higher Court Judges, and other senior judicial officers, relate to the structure of the courts, language in the courts and access to justice.

The question may be posed as to why such a Colloquium now?
The background to this is the following: South Africa's present court structure, with the exception of the Constitutional Court, has been in place since 1910, when the South Africa Act 1909, was brought into operation, creating the Union of South Africa. The present legislation governing the structure and functioning of the superior courts dates back to 1959 and the Magistrates' Courts Act to 1944. The Constitution of the Republic of South Africa, Act 108 of 1996, in section 16 (6)(a) of Schedule 6, provides that A[a]s soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution. The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, is required to manage the rationalisation (section 16 (6)(b) of Schedule 6).

In line with this, the Ministry of Justice and Constitutional Development, after consulting with the Acting Chairperson of the Judicial Services Commission, will host a Colloquium on judicial and court reform.

Role-players will be asked to review issues relevant to the court rationalisation process and other aspects which impact on the effective and efficient functioning of the justice system.

2. THE ASSASSINATION OF REGIONAL COURT MAGISTRATE, MR PIET THERON.
The Minister, Deputy Minister and entire Department of Justice and Constitutional Development wish to extend their condolences and assurances of support to Mrs Theron and the family of Magistrate Theron, who was tragically assassinated outside his home last Thursday evening.

We will do everything in our power to ensure that justice officials are able to perform their work in an environment of security. The overall security of all our courts is being reviewed on an ongoing basis and a special effort for courts in the Western Cape is underway. The investigation into the murder of Mr Theron has been given priority status and is being conducted in co-operation with all the relevant state agencies.

We wish to make it absolutely clear that the state will not allow terrorists to undermine the application of the rule of law. All cases presided over by the late Mr Theron will be reassigned, where appropriate. If cases are part-heard, they will be heard de novo (i.e. from the start) and if cases have progressed to the conviction stage of the process, sentences will passed by other magistrates.

All levels of government and every agency of state are working together to achieve a common objective: the security and safety of the people of Cape Town. Let there also be no doubt that the law will be applied and we are determined to bring the perpetrators of these crimes to book.

Once again, we appeal to the public to come forward and supply any information they might have concerning these crimes to the relevant authorities. Co-operation between the security services and the community is essential for the successful prosecution and conviction of the perpetrators. A reward of R1 million for information leading to the successful prosecution of perpetrators of urban terror remains available.

It has been decided that sensitive court cases will be centralised to a few courts. Security for these courts will be maximised to ensure that the cases can be tried without hindrance. In addition, a central, high-security court that has been established at Pollsmoor Prison, will be used to try some of the more sensitive cases. Aside from existing security measures, it has been agreed that the local SAPS in conjunction with the Department of Justice and Constitutional Development will perform security and risk assessments of all court buildings that provide the venues for urban terror-related cases. Personal security will also be provided for various officials where risk to the individual is identified.

3. FINANCIAL ASPECTS
It has come to my attention recently that a number of newspaper articles have intimated that services have been or are to be suspended in some of our offices and Courts because of budget constraints.

I wish to make it clear that none of our essential and core related services will be curtailed. Accordingly, a circular from the Director-General has been issued indicating that Heads of Office are required to re-prioritise the funding of activities in their respective offices and to apply strict austerity measures without compromising core functions, in order to give absolute preference to the latter.

In general, it should be noted that the demands on our justice system have increased dramatically in recent years. In order to meet these demands, we have accepted as one of our major goals that we must ensure that the courts are organised and administered as effectively and efficiently as possible.

The Courts - as the core business of the Department - have therefore been earmarked for increased allocations from our budget and for special attention to improve service delivery and efficiency.

4. PROGRESS IN TERMS OF THE DELIVERY OF OUR FUNCTIONS FOR 2000
4.1 THE PROMOTION OF LEGISLATION
* The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000), gives effect to a constitutional right, the right to equality, as enshrined in section 9 of the Constitution. In terms hereof everyone is equal before the law and has the right to equal protection and benefit of the law. This Act will make South Africa a better place for all its people. Sections 1, 2, 3, 4(2), 5, 29 (with the exception of subsection (2)), 32, 33 and 34(1) came into operation with effect from 1 September 2000 and it is envisaged that the remaining sections will come into operation during March 2001. Draft regulations have already been formulated and widely distributed for comment.

The comments received are being evaluated. Through a Government Notice published in the Government Gazette, the members of the Equality Review Committee were appointed with effect from 1 September 2000 and they can now commence work.

In respect of combating crime, the following can be noted:
* On the international front, the Department is in the process of finalising draft legislation, namely the International Criminal Court Bill.

* Criminal Law Amendment Act, 1997 (Act 105 of 1997) - Besides giving effect to the Constitutional Court's judgement in respect of the death penalty, this Act also provides for the imposition of minimum sentences in respect of certain serious crimes. Sections 51 to 53 of the Amendment Act, which deal with minimum sentences, were put into operation on 1 May 1998. The operation of these sections was extended for one year with effect from 1 May 2000 and continues to empower the courts to deal effectively with serious crimes, but also metes out suitable punishment.

* Witness Protection Act, 1998 (Act 112 of 1998) - The object of this Act is to provide for the proper protection of witnesses that will be administered by a central Office for Witness Protection under the supervision of the Minister of Justice and Constitutional Development. The Act, with the exception of sections 6 and 20, commenced on 31 March 2000. No date has been set for the implementation of the said two sections. The establishment of branch offices and the publication of regulations are being attended to. In this regard, six branch offices were created in terms of section 2(2)(a). These offices are situated in Cape Town, Port Elizabeth, Durban, Bloemfontein, Potchefstroom and Johannesburg. The number of persons under protection has, since the implementation of the programme, increased dramatically. In December 1999, 635 persons were being protected, and currently we have 746 persons on the programme.

* Directorate of Special Operations Bill, 2000
The Department has recently introduced this Bill into Parliament. The legislation will provide a legal framework for the Directorate of Special Operations, similar in nature to that of the US Federal Bureau of Investigation. The main objects of this Directorate are to -
(i) gather intelligence and to investigate offences which are identified in terms of the proposed legislation as being of an especially serious nature; and
(ii) ensure that the preparation for the prosecution and the prosecution process itself, are carried out in the best possible manner.

This legislation emanates from the President's Opening Address in Parliament on 25 June 1999, when he announced "that a special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption."

And while discussing the Scorpions Bill, some background information on the National Prosecuting Authority:
NATIONAL PROSECUTION AUTHORITY
In terms of section 7 of the National Prosecuting Authority Act, 1998, the President may, by proclamation in the Gazette, establish Investigating Directorates in the Office of the National Director of Public Prosecutions, in respect of specific offences. The following Directorates have been established:
(i) Investigating Directorate: Organised Crime and Public Safety (on 16 October 1998).
(ii) Investigating Directorate: Corruption (on 24 March 2000) which was established to deal with offences relating to corruption.
(iii) Investigating Directorate : Serious Economic Offences, incorporating the old OSEO functions.
(iv) Two additional Special Directorates have been established; they are the Directorate: Court Management and the Directorate: Violence Against Women and Children. The latter directorate was established in response to the specific prosecutorial requirements of the exceedingly vulnerable victims of sexual offences.

* Interception and Monitoring Prohibition Amendment Bill, 2000
This Bill is intended to bring the legislation dealing with the interception and monitoring of communications having a bearing on serious crimes, including corruption, into line with the latest telecommunications technology. This legislation will extend the ambit of the existing legislation, particularly in respect of cellular networks and will strengthen the powers of law enforcement agencies in the combating of serious crimes.

* Promotion of Access to Information Act, 2000 (Act 2 of 2000),
This gives effect to the right enshrined in section 32 of the Constitution, namely the right of access to information. In terms hereof everyone has the right of access to any information held by the State and to information held by another person when that information is required for the exercise or protection of any fundamental rights. It will also foster a culture of transparency and accountability in public and private bodies and actively promote a society in which its members have effective access to information to enable them to exercise and protect their rights fully. It is intended to put the Act, with the exception of sections 10, 14, 16, 19 and 51, into operation on 15 September 2000. Draft regulations for the purposes of sections 18(1), 22, 53(1), 54 and 75 have been finalised and were submitted to the State Law Advisers on 18 August 2000.

* Promotion of Administrative Justice Act, 2000 (Act 3 of 2000),
This gives effect to section 33 of the Constitution, relating to the right to administrative action. This section provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. It provides that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. This Act will go a long way in promoting efficient administration and good governance. It will create a culture of accountability, openness and transparency in the public administration.

Draft regulations have been prepared. It is intended to put the Act, with the exception of sections 4 and 10 thereof, into operation on 15 October 2000. Letters have been sent to State organs informing them of the intended date of commencement and a general notice in this regard has also been published in the Gazette.

* Protected Disclosures Act, 2000 (Act 26 of 2000)
This Act provides for the protection of employees against occupational detriment or disadvantage as a result of having made disclosures of crime and other irregular conduct by their employers or other employees in the workplace. The Act came into operation on 1 September 2000. The guidelines provided for in section 10(4) of the Act are being attended to and will be published as soon as possible.

* Recognition of Customary Marriages Act, 1998 (Act 120 of 1998)
The main object of the Act is to extend full recognition to marriages entered into in accordance with customary law or traditional rites. It improves the position of women and children within these marriages by introducing measures which bring customary law in line with the Constitution. It is intended to put the Act into operation with effect from 1 November 2000 together with subordinate legislation that is necessary to give practical effect to the provisions of the Act.

4.2 TRANSFORMATION ASPECTS
Transforming the Department and the courts
* The continued improvement of the national prosecuting has led to court management being improved. The Office of the NDPP has further made an impact on court and case management through monitoring the performance of prosecutors and linking the performance to their salary increases.
* To help deal with the backlogs, particularly in the Western Cape and Eastern Cape, several additional Regional and even High Courts have been established. More such courts are envisaged.

* In conjunction with the NADEL/BLA and members of the legal profession, several courts could be established where members of these organisations - are rendering their services as presiding officers free of charge. We have such assistance now in KwaZulu-Natal, the Eastern Cape and soon we will also have it in Pretoria.

* The skills base and status of the lower court judiciary have been enhanced through the adoption by the Magistrates Commission of new policies and procedures regarding appointments and the improvement of training opportunities and their access to legal resource material.

* The various departments involved with the integrated justice system (IJS - i.e. SAPS, Justice, Correctional Services and Welfare) are working together in order to use resources as effectively as possible. Through the IJS we are busy re-engineering business processes throughout the criminal justice process. It is also aimed at developing an integrated management system for the whole criminal justice system, in order to increase the efficiency and effectiveness of the criminal justice processes.

* Training programmes, to improve the effectiveness and efficiency of all courts functionaries are continuously receiving attention. All courses presented by Justice College now have a separate social context component. Social context and diversity training is used as a method to ensure that transformation within the department and the judiciary is progressively achieved.

* Special attention is being given to the problems of overcrowded prisons and awaiting trial prisoners.

What is the result of all this -
* The average number of outstanding cases per court have been reduced;

* despite a substantial monthly increase in the number of cases, increased productivity led to an average decrease of cases in the district courts and in the Regional courts;
* court time has started to improve;
* cases finalized with a verdict have increased;
* outstanding dockets/inquests have decreased substantially- this despite an increase in inquests per month.

4.3 REFORM INITIATIVES BY THE SOUTH AFRICAN LAW COMMISSION

4.3.1 CUSTOMARY LAW
* Conflicts of Law
A Report on Conflicts of Law was submitted to the Minister on 8 September 1999. The Report was tabled in Parliament on 29 May 2000. This investigation was necessitated by the acknowledgement that it is not always clear when customary law should be applied in real life circumstances and the realisation that both Roman-Dutch law and customary law are now major components of the state's legal system. A new enactment devoted exclusively to the application of customary law is now needed in order to disentangle choice of law rules. This report has attempted to achieve this purpose.

* Succession
Discussion Paper 93 was submitted to the Minister on 8 August 2000. The question of succession in customary law has been a burning issue for some time. The closing date for comment on Discussion Paper 93 is 22 September 2000.

4.3.2. JUVENILE JUSTICE
The Report was submitted to the Ministry on 8 August 2000. It contains final recommendations and a draft Bill on a proposed new child justice system. In essence, the proposed system aims to ensure that children accused of less serious offences will be afforded the opportunity to pay their debts to society without obtaining a criminal record through a process known as diversion. Diversion is the referral of cases away from the formal criminal justice system to an approved programme or plan.

4.3.3. SEXUAL OFFENCES
* Substantive Law
On 8 September 1999 the Commission published a Discussion Paper on the Substantive Law relating to Sexual Offences. The Discussion Paper contains a draft Bill that embodies a number of progressive recommendations on the reform of the law. It is envisaged that a draft Report will be finalised by the end of 2000.

* Process and Procedure
The preparation of a Discussion Paper on Sexual Offences: Process and Procedure is receiving attention. This Discussion Paper addresses issues such as bail for sexual offenders, making it easier for victims of sexual offences to testify in court, and the sentencing of persons convicted of sexual offences, etc. It is envisaged that a draft Discussion Paper will be submitted to the Working Committee of the Commission by the end of October 2000.

* Sex Workers
A third Discussion Paper on Adult Sex Workers is also receiving attention. It is envisaged that a draft Discussion Paper will be submitted to the Working Committee of the Commission by the end of October 2000.

4.4 STRATEGIC CHALLENGES FOR THE PRESENT AND FUTURE
The following strategic challenges will be addressed continuously by the Justice and Constitutional Development Portfolio in the implementation of our transformation objectives:
* The modernising of all systems in the justice network, including financial, administrative and management systems.
* Finding the most cost-effective way
of implementing key new legislative frameworks and the development of a strategic approach to costing legislation.
* Utilising budget reform as an instrument of improved planning, bench marking and performance assessment and to fully implement the undertaking to redirect spending away from administrative structures to service and operational points.
* Prioritise the filling of all empty and budgeted posts in all courts and court structures.
* The effective co-ordination of the justice process between functionally independent entities e.g. prosecutors and magistrates
* Complying with increased constitutional, legal and international obligations in the face of serious budgetary constraints.
* The acceleration of the implementation of legislation.
* Oversee the implementation of complex key transformation statutes: i.e. the Promotion of Administrative Justice Act; The Promotion of Equality and Prevention of Unfair Discrimination Act; and the Implementation of the Promotion of Access to Information Act.
* The integration of traditional courts and customary law into the mainstream legal system
* Transforming the judiciary and reconciling judicial independence with public accountability and the introduction of a complaints mechanism in respect of judges to be administered by the Judicial Services Commission.
* Stepped up training initiatives for all judicial officers, especially in sensitivity training and aspects of new legislation.
* Improve overall court productivity.
* Improve security in our courts.
* Assist the effective and complete transformation of the Legal Aid Board and the incremental introduction of justice centres to replace the judicare system.
* The promotion of access to justice with special reference to vulnerable groups, including women, children, the disabled, the elderly, HIV/Aids victims, victims of sexual offences.
The strategic integration of the Constitutional Development portfolio into Ministerial and Departmental structures.