Department of Justice & Constitutional Development & National Prosecuting Authority: Strategic Plans & Budget 2009/12

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Justice and Correctional Services

16 June 2009
Chairperson: Mr N Ramatlodi
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Meeting Summary

The Committee was briefed by the Department of Justice and Constitutional Development (the Department) and by the National Prosecuting Authority on their Strategic Plans and Budgets.  The Department presented the strategic goals of access to justice for all, enhancing organisational efficiency and transforming justice, State and society. Each of the Administration, Court Services, State Legal Services Programmes and the 2008/09 Expenditure Outcome were presented in depth. Members asked questions about professionalism of court officers, civil process challenges, Truth and Reconciliation Commission reparations, trial backlogs, Legal Aid and the Directorate of Special Operations budget.

The Acting National Director of Public Prosecutions gave a basic background to the National Prosecuting Authority, the values agreed upon and its structure. Further presentations were given on the strategic framework, the expenditure outcomes and Estimates of National Expenditure allocations. Members noted that they needed time to study the documents in detail and would be asking further questions. Members’ questions related to the vacancies, the unadvertised available posts, office space, including Innes Chambers, and the disclaimer from the Auditor-General.

Meeting report

Department of Justice and Constitutional Development (Department or DOJ) and National Prosecuting Authority (NPA) Strategic Plan and Budget briefings
Mr S Swart (ACDP) raised his concerns about the Committee being asked to go through so many items in one day.

The Chairperson explained that he had a prior engagement the week before and that the Committee had to get through everything in the time available. He announced that the presentations would begin with the Strategic Plan.

Adv Menzi Simelane, Director-General of the Department of Justice and Constitutional Development,  presented the Strategic Plan . He focused upon the strategic goals. The first of these was described as Access to Justice for All (page 3). He referred that this was reflected in the Medium Term Expenditure Framework (MTEF) document. He spoke about the importance of adequate justice services and need to construct more courts in outlying areas. The need to increase services such as accommodation and other necessary services was also highlighted. He informed Members that the Department was working with other stakeholders to educate people and that it was supporting stakeholders in their efforts. He stressed the need to increase language capacities of courts, and to this extent informed the Committee of the start of a pilot project where the court would run cases in the common language of the parties wherever possible. He explained that the Department had found that there were many delays that stemmed from language problems. He mentioned that the thrust of the programme was to allow people to speak their first language. He however pointed out that this initiative carried logistic challenges that would hopefully be addressed by 2010, but added that there would be financial consequences, and gave the example of trial records that would have to be translated. He mentioned that activities to protect vulnerable categories of women and children would be discussed later in the presentation.

Adv Simelane then presented Strategic Goal 2: as Enhancing Organisational Efficiency. He informed Members of the phase in of the modernisation of processes, making the processes more computerised. He explained that the initial phase had begun with making sure that key criminal case documents, such as dockets, were safe and were scanned in on a daily basis. He added that the Department was now rolling this out to the police services and was also trying to capture civil case documents. The advantage of this was that the Department could now merely email documents to the defence teams instead of having the administrative burden of printing everything and having to collect payment. He mentioned that the network was in place, but that bandwidth requirements were important and that the Department was working with TELKOM to address these requirements. He also acknowledged the challenges that that this system brought, as people were now needing to adjust by becoming more computer literate, but emphasised the great advantage of this system in preventing the loss of documents.

Adv Simelane then presented Strategic Goal 3 as Transforming Justice, State and Society. He emphasised that this goal did not only encompass transforming gender and race demographics, but that it also includef transforming services and processes. He talked about the transformation agenda as the reason why the interviews of new judicial officers have been delayed. He spoke of the review of Criminal and Civil Justice systems. With regard to the administration of deceased and insolvent estates, including the Guardian’s Fund, he noted the conversion of the administrative system to an electronic system rather than a manual checks system, to improve efficiency and to minimise aspects of fraud and corruption. He conceded that it still needed to be rolled out further. He underlined the need for increased judicial transparency, especially concerning dealings with the judiciary, to allay concerns of judicial interference and misinterpretations by the public and the media. He informed the Committee that the Department would implement the Truth and Reconciliation (TRC) recommendations as this was approved.

Adv Simelane then proceeded to present on Programme 1: Administration. He noted that the first strategic objective as building of Human Resource (HR) capacity. He talked about reducing the Department’s vacancy rate and the challenge that was brought by differing salaries for the same level post across different departments, which led to the problem of staff leaving the Department. He also spoke about disciplinary cases and his concerns aboutthe types of activities, such as nepotism, corruption at lower levels, and said that this included handing over restricted documents, or documents handed out for a fee when in fact this was a free service.

Strategic objective 2 related to training and development. He assured Members that there was not a problem with training provided to staff members, but spoke of how too much training could disrupt service delivery, and the importance therefore of achieving the right balance.

Strategic Objective 3 relating to implementing sound financial management, and he stressed that the Department had progressed and that by the next financial year it should receive an unqualified audit. He noted that some of the qualifications were resolved through the need for proper training, and did not necessarily indicate corruption.

Strategic Objective 7 relating to managing corporate risks and improving corporate compliance and accountability. He spoke of the importance of an asset register and addressing supply chain problems to improve security levels. He further informed the Committee of the Department’s efforts in providing and increasing the number of guards and Closed Circuit Television (CCTV) cameras in the various courts, but pointed out to Members that this was dependant on budget resources.

He touched on Strategic Objective 9, which was promoting international cooperation and ensuring compliance with international obligations, informing the committee that extradition was dealt with by the National Prosecuting Authority (NPA) on behalf of government.

Adv Simelane then presented on Programme 2: Court services.  He stressed that the formulation of policy and implementation was key for this programme. With reference to Strategic Goal 10, he mentioned that 11 new courts were being built for 2011/2012, and that if Members felt that more courts were needed then there was a need to provide budget resources, as each court cost around R100 to120 million. He also revealed the Department’s emphasis to improve the branch courts so that they could provide full court services.

Strategic Objective 11 dealt with the implementation of the Child Justice Bill, which had an emphasis on diversion, and the importance of getting the right people working within this area, such as counsellors and intermediaries.

Adv Simelane moved on to Strategic Objective 14, informing the Committee that the Sexual Offenders Register, containing the names of anyone who had been convicted of a sexual offence, a new initiative under the Criminal Law (Sexual Offences) Amendment Act, would be operational from 1 July. He stated that the register was in fact already ready, but would be operational on that date. He noted that this would assist in hiring teachers who had not been convicted of a sexual offence and would assist employers in their employment decisions.  He revealed that a National Policy Framework for sexual offences would be finalised at the end of the month, and would then be passed on to Cabinet, to serve as the new framework.

Adv Simelane then presented Programme 3: State Legal Services. He noted that Strategic Objective 17 concerned developing legislation to transform justice, State and society, mentioning the Bill dealing with the trafficking in persons as one of particular interest at present.

Strategic Objective 22 related to reducing State liability, and he spoke of the S v Nyati case and the situation where judgment debts against the State were not paid but where statutes prevented the attachment of government assets. He noted that the Constitutional Court had criticised this state of affairs and gave the Government until July 2009 to submit a progress report on what had been done to give effect to the number of judgments against the government. He revealed to the Committee that the Department was going to ask for an extension of time for the adoption of an amendment to address this problem, because it was uncertain whether the necessary amendment would be passed through the Parliamentary structures in time. He added that a draft bill was in the public domain, but that it had problems and had been criticised for not fully addressing the issue. He made it clear that the measure to address the dilemma was not through allowing attachment, but rather by strengthening the mechanisms to settle judgment debts quicker.

Adv Simelane then tabled the document dealing with the 2008/09 Expenditure Outcomes, voicing his belief that the Department had in fact been given a generous budget. He pointed out to the Committee that the Department had improved underexpenditure from R472 million down to R81 million under expenditure in the last two years, and that the latter amount related to integrated projects.

He noted that Court Services accounted for the greatest part of the budget, followed by the NPA and auxiliary and associated services, which included the Legal Aid Board (LAB) and Chapter 9 Institutions, and he mentioned the desire of the Department to increase the Legal Aid Board budget. He highlighted to Members that the bulk of the budget was used for human resources, explaining that the Department was a primarily a service provider, and to goods and services, which facilitated this function. He indicated his hope that the budget for buildings would increase.

Adv Simelane raised his concern about the budget challenges of absorbing the Occupation Specific Dispensation (OSD), which had to be done using the Department’s baseline budget, with the result that the Department had had to suspend some programmes and cut the budgets of some services. He reminded the Committee that the Department had asked for a separate allocation for the OSD.

He explained to Members how the increased Corporate Services had lead to increased office accommodation expenses in the form of rent, and introduced the idea that perhaps Government should acquire its own buildings because of the rent expense and the challenges of bad landlords.

Adv Simelane spoke specifically about the Court Services budget and justified the lower courts receiving the most money, because they dealt with the most work. He then talked about the Constitutional Court budget, and how there was a need to ensure greater value from this budget compared to other courts. He emphasised that this was not about political interference, but rather that it was a legitimate debate.

He noted the increased litigation over the years, and said that the budget for public prosecutors had seen the biggest increase in the NPA budget, as set out on page 25, to attain the goals of the manifesto. He pointed out that the Auxiliary and Associated Services budget set out on page 27 saw the biggest increases to the Legal Aid Board, followed by justice modernisation. He also highlighted that the Magistrates’ salaries budget had had a sharp increase, as set out on page 29. He then turned to the key observations set out on page 30, and he highlighted the huge vacancies concerning magistrates, judges, and prosecutorial staff. He also argued for a larger budget for court infrastructure and accommodation for prosecutors. Lastly, he noted the large case backlog and pointed out the dedicated allocation to reduce this backlog, set out on page 37.

Ms D Smuts (DA) queried where the budget of R300 million for the former Directorate of Special Operations (DSO) was going to go, and where the allocation for the Judicial Services Commission was contained. Further, she asked for clarification on the TRC recommendations situation, in particular how much funding was left and what reparations meant.

Ms Smuts asked for a Commission of Inquiry to investigate the Master of the High Court of Pretoria/Southern Gauteng, citing correspondence that was claiming that the staff did not know what they were doing and that there was no scanning of documents.

Ms Smuts asked how far the modernisation process was and whether the State liability issue would be resolved without changing the Constitution, which she saw as a critical matter.

Ms N Michael (DA) argued that the problem facing the Department was that things were becoming technical but were not filtering through to the courts. She said that getting court dates was very difficult, and that there was a need for accountability because of all the posts that had not been filled.

Ms Michael hoped, in regard to Children’s Courts,  that cameras were being used during testimony to protect the children, and that all the requirements were implemented.

Ms Michael argued that a fundamental problem pertaining to legal aid was that only the poorest of the poor could access this service, but that people like teachers who earned low salaries still earned too much to qualify for legal aid, yet too little to hire a private attorney.

Ms Michael also raised the issue of training, agreeing that there was no need for over-training, but she was adamant that an immense amount of training was needed for registrars and clerks of courts, because these functions were vital for the efficient running of the legal process.  She stressed that the professionalisation of services was essential, claiming that when attorneys somehow managed to irritate clerks, then the clerks would deliver poor service, so that the widespread practice to get things done was to bring them a box of chocolates.

Mr Swart wanted feedback in relation to the proposals given in the previous report.

Mr Swart also asked about the former DSO (Scorpions) allocation and asked how many members had applied to the new Directorate for Priority Crime Investigation (DPCI).

Mr Swart said, in relation to the comment that the unqualified audit did not necessarily indicate corruption by the Department, that there were tender problems relating to the Siberia group, and the internal committee looking into tenders in general.

Mr Swart noted that there had been a DNA Bill, for which an ad hoc committee was constituted in January, but which did not finalise its work, and wanted to know when it would be raised again.

Mr Swart finally stressed the importance of the Bill relating to human trafficking, especially in light of the 2010 World Cup.

Mr J Jeffery (ANC) asked for greater detail on how the intentions and the strategic objectives would be achieved. He gave the example of the vacancy rate issue, wanting to know how this would be addressed and requested more statistical details.

Mr M Gungubele (ANC) said that he was grappling with the planning models. He wanted to know what were the central objects of the strategic goals. Further, he said that it was not sufficient to just provide access to justice and wanted to know what the access would provide. He wanted clarification as to which strategic objectives related to which strategic goals, and wanted time frames for this object of change. He queried the difference between strategic goals and objectives, and argued that some of the stated strategic objectives were in fact core functions.

Mr L Landers (ANC) questioned the fact that a Swiss accident victim who was awarded an astronomical figure against the Road Accident Fund had been paid out without much delay, but that a Mr Nyate, who was owed far less, had enormous delays in getting his payment.

Adv Simelane replied that in respect of the DSO, the budget would move with Members to where the new Unit was relocated. He assured the Committee Members that there had to be National Treasury mechanisms for the allocation of these transfers.

He informed Members that the JSC allocation was located in the office of the Chief Justice.

With regard to questions around the TRC, he replied that there was still a President’s fund and that the regulations dealt with reparations, which were largely community reparations. He pointed out that the funds could not be spent until there was an agreed framework, but that it would primarily be put to matters such as health and education.

With regard to the Master’s Office issue, he explained again that the Department had phased in the criminal processes but were still rolling out the civil process.  He explained that this was why there had not been complete scanning as yet, and that the problems mentioned by the Member should disappear over time.

Adv Simelane did not believe there was any need for a Commission of Inquiry into the Master’s Office. He explained that the problem was that the people would file papers and then wanted to amend the documents, and because of the manual system these would get lost through inefficiency, which could be addressed through training. He also informed Members of a pilot system that required filling out the forms online, printing them and then coming into the office to get them stamped. This shifts more of the responsibility onto the parties themselves.

He then addressed the professionalism issue and told Members that attorneys and other users of the court system should not be giving “gifts” or any other incentives, because this would only serve to encourage the practice, but should rather report the problems. He also said that part of the problem was the way attorneys dealt with the matter, such as continually amending documents without giving notice. He informed the Committee of a system that would be introduced that would require the requesting of a file in writing beforehand so that it would be ready for collection timeously.

Adv Simelane conceded that getting trial dates was very difficult and that a person could wait up to 18 months, because there were so many cases, especially as people were getting more litigious. He added that what the Department had noticed was that some of the cases on the court rolls were cases that were not ready to be heard, and that this was in the hands of the judiciary. He said that the Department would engage with the judiciary to make the system more efficient, and that the judiciary had to adapt its court rules and practices to address this problem.

Regarding the Constitutional issue of the amendment relating to State liability, Adv Simelane noted that there were different interpretations of the effect of the amendment, and that it was a political issue upon which Members must decide.

He then addressed the issue of backlogs, saying that it was easy to agree on the need for accountability because it did not fall to the Department but to the judiciary. He said that the judiciary was accountable for the backlogs, and suggested that they may have to come and explain the situation. He also recognised that there were delays because of delayed police investigations. He told the Committee that the Department did engage with the judiciary and the police, but noted that there were numerous cases that kept coming forward, and that there were infrastructure problems. He pointed out the need for the magisterial and judicial vacancies to be filled by the relevant institutions.

Adv Simelane stated that Legal Aid was one of the biggest challenges, and that the LAB had been arguing for its jurisdiction to extend to civil matters, although it was strictly speaking only primarily mandated to deal with criminal matters. He told the Committee that there might be the need for a political solution. He also suggested that an alternative desirable route would be to increase the pressure for more attorneys and for the fees to be better regulated, such as in the medical profession.

When addressing strategies, he contended that the Justice Department was a basically a giant law firm, but that the problem was that a lot of the administration and services provided were not provided by lawyers, but rather by clerks or paralegals. He said that transforming this would take years and that there were challenges such as talent retention, because the Departmental attorneys would leave to join private firms.

He spoke again about the possibility of increasing the jurisdiction of Legal Aid and redirecting resources for the LAB to increase the civil services offered. He however noted the problem that, because Government was enjoined to assist in certain matters, the demand increased.

In regard to the Auditor-General’s report, he said that the Department could furnish the Committee with its reports that addressed the issues.

The Committee agreed to this suggestion.

National Prosecuting Authority (NPA) briefing
Adv Mokotedi Mpshe, Acting National Director of Public Prosecutions, began the presentation, based upon the document by K de Wee, by giving a basic background to the NPA. He discussed the five values agreed upon and the structure of the NPA, and tabled a list of the Departmental heads and the vacancies. He also spoke of the post-establishment and aspirant prosecutor programme.

The Chairperson  voiced his concern about so many ‘acting’ heads of department, as opposed to permanent appointments.

Mr Jeffery voiced his concern about the number of vacancies and asked what the strategies and targets were to deal with this issue.

Mr Gungubele raised his concern about why the core functions were called strategic objectives and raised the need for specification of time frames.

Dr Silas Ramaite, Deputy National Director of Public Prosecutions replied to the issue of vacancies, informing Members that the NPA had started addressing it by hiring and advertising 600 posts, and hoped that the vacancies would be down to 10% by next year.

Mr Jeffery asked why, if there were 1 055 vacant posts, only 600 were to be filled.

Mr Gungubele agreed and asked also that the NPA must justify their reasons to not advertise.

Mr Ramatlodi said that the 600 positions were budgeted for, so they needed to be filled.

Adv Sibongile Mzinyathi, Deputy National Director of Public Prosecutions, and Acting Head of the National Prosecuting Service (NPS) informed the Committee about the challenges and processes.  He said that the vacancies issue would still take time because new staff would come in but then those whose posts they filled would be promoted, filling vacancies on higher levels.

Mr Jeffery did not agree with the logic, saying that it would make sense for the NPA to in fact advertise to fill all the posts.

Mr Mpshe reiterated that not all of the vacant posts were funded posts However, he acknowledged this was not sufficient reason for the issues raised by the Members.

Ms Karen Van Rensburg, Acting Executive Manager: Strategy and Risk, NPA, explained the strategic framework of the NPA, as set out on page 17 of the presentation. She discussed the strategic goals, the sub-programmes that were linked to the goals, the measurable objectives and the strategies to achieve these objectives.

The Chairperson said that the Committee would study the documents and ask questions in the next meeting.

Mr Gordon Hollamby, Executive Manager: Finance, NPA, went through the 2008-2009 expenditure outcomes as set out on page 6 of the attached document. He explained the reasons for machinery and equipment under spending, followed by the ENE Allocation per Economic classification and the ENE Allocation per sub-programme. He mentioned that the Department was dealing with the South African Police Service regarding the adjustment estimates for the DSO budget. He talked about the support services amount, explaining that there was centralisation of certain areas under this, which explained the high amount.

Mr Jeffrey asked about the disclaimer from the Auditor-General and asked for a response to the issues raised in the Auditor-General’s report.

Mr Jeffery also raised the issue of office space and asked if it included Johannesburg, and, if so, did it include the Innes Chambers. He also asked for details of what the NPA was going to do about that situation.

Mr Hollamby pointed out the acknowledgment of the report finding, as set out on page 11 of the document, and then also pointed out that page 12 contained the steps that were being taking to address this situation. With regard to Innes Chambers, he informed the Committee that the NPA had bought the building about five  years ago, but that it was transferred to Department of Public Works, as was the policy. He then said that the NPA had requested that they wanted to use the building free of any lease agreements, but that despite this a lease contract was renewed for another five years, so they could not start the refurbishment process. He said this was done through the Public Works tender process, which did not go well. He however stressed that the NPA needed this building as the Department was currently leasing Inner Court at R1 million a month.

Mr Jeffery said that he could not understand the explanation and requested a more detailed report in writing.

The Chairperson requested a report before the next meeting, so that the Committee could review it and ask questions.

Ms Michael made a suggestion that the NPA work with the Law Society regarding community service for law students.

The meeting was adjourned.

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