Court System progress report; Judges Remuneration & Conditions of Employment Bill: amendment

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Justice and Correctional Services

12 November 2001
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
13 November 2001
COURT SYSTEM: PROGRESS REPORT;
JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL: AMENDMENTS

Chairperson:
Adv J H de Lange

Documents:
Business Unit Court Services Report
Business Unit Court Services Report - Executive Summary (see Appendix 1)
NCOP Amendments to Judges Remuneration & Conditions of Employment Bill (Appendix 2)

SUMMARY
The Progress Report on South Africa's court system was presented by the Department of Justice, and the following issues were raised in the ensuing discussion on the report:
- general concerns with increasing the efficiency of the courts, especially the management and supervisory skills of officials;
- plans and programmes to ensure this is effected via strict adherence to a single departmental procedure;
- efforts made by the Department of Justice to enforce this procedure;
- whether any equipment has been provided to effect this procedure, especially the “kit� referred to;
- no mention was made of proposed restructuring or improvement to the High Courts;
- restructuring of the Regional Courts must not pre-empt the directives of the awaited Rationalisation of the High Court Bill;
- concerns regarding the granting to the Department of Justice that portion of the Department of Public Works budget dealing with infrastructure;
- whether the provision of maintenance investigators should be and clarity on the additional costing exercise for maintenance matters;
- composing a “footprint� detailing the structure and composition of every South African court;
- clarity on the status and proposed improvements to the Kathlehong, Madadena and Phuthaditjaba magisterial districts and demarcation of the Matatiele court district;
- improvements made to court security, and a breakdown of the budgetary demands here;
- measures adopted to increase security at “cash halls� and “cash in transit� operations;
- addressing the issue of under-utilised courts;
- the status of proposed “virtual-libraries�;
The Director General was asked to provide further information on certain issues.

The Committee agreed to the NCOP proposed amendments to the Judges Remuneration and Conditions of Employment Bill.

MINUTES
Report on Court System by Business Unit: Court Services
Ms F Chohan-Kota (ANC) suggested that a short-term intervention is needed to make the South African court system more efficient, and requested clarity from the Department of Justice on this.

Mr A McKenzie, from the Office of the Chief Financial Officer of the Department, replied that that that sort of solution would not be possible, because the primary concern here is with the dire need for basic supervisory skills within the Department. The supervisors have “no idea what they are supposed to do�, and most do nothing all day. This is a huge problem facing hundreds of courts in South Africa. In fact the Umtata court has been identified as the worst court in this regard as the head clerks do absolutely nothing all day, they merely delegate tasks to their subordinates who, in turn, delegate the same important tasks to their subordinates. The nett result is that the Department now has three layers of clerks who do not properly exercise their assigned functions, and do not follow the prescribed Departmental procedure in terms of the handling of funds. In fact a chief clerk has been suspended for defrauding the Department of R300 000 via bogus bail applications, but the “books were not written up� with the result that the crime could not be reconciled with the records. For this reason the Department recommends that the “books be written up� to address and correct these incompetencies within the Department.

Mr McKenzie continued that what should ideally happen is that officials should follow the prescribed procedure to the letter, and this entails comparing the banking details of the day with the cash- and receipts books. Should any inconsistency be discovered, it has to be reported immediately so that the matter may be further investigated. Yet the harsh reality is that such books and entries are not maintained, with the result that “total chaos� reigns supreme. The court district in the Eastern Province for instance, has a beautiful new courthouse, but all the records are stashed in an old garage, together with pieces of ramshackle furniture. These records will never see the light of day.

Mr McKenzie insisted, however, that the Department's Executive Mini Board of Finance is “excellent�, and will no doubt remedy the problems being presently experienced by the Department. A written macroplan has been drafted to identify the problem areas and possible solutions to them, but this entails a huge effort from the Department.

The Chair suggested that the problem with Mr McKenzie's discourse is that it contradicts the statements made in a previous meeting with this committee, namely that the “writing up of the books� cannot be implemented because Treasury has decided against the provision of further funds to the Department to facilitate this process. Yet Mr McKenzie now asserts that this process can be embarked upon. Did the Department currently have the necessary funds to implement this process or not?

Mr McKenzie replied that the solution to this problem is not as straightforward as it may seem but rather consists of a number of initiatives, and the Department currently has the necessary funds to achieve some of these objectives but not all. Thus, the initiatives have been prioritised, and the “writing up of the books� has been identified as one of the more critical matters, and has thus been singled out for immediate implementation.

Ms Mabe (ANC) suggested that the use of more accurate job descriptions might alleviate and indeed solve some of the problems being experienced by the Department in this regard. Secondly, are there any monitoring systems in place to ensure that officials are executing their duties properly and in accordance with the imposed mandate. Thirdly, it seems unfathomable that the officials at supervisor level have been allowed to do nothing all day, and still receive salaries for their incompetence.

Mr McKenzie replied that the job descriptions are clear in terms of the Departmental Prescripts, but there is no supervisory or management skills training programme. The incompetence and ensuing problems have endured precisely because there is currently no solid structure of performance manual to offer a guideline to Departmental officials, such as quarterly reviews.

He replied to Ms Mabe's third question by stating that these officials were actually members of the staff of the former self-governing territories who are now regarded as “excess� personnel, and have consequently been redeployed into management posts in other government Departments. The problem here is that they were simply moved to other areas of government without ever formally applying for the new posts, and herein lies the reason for the gross incompetence as their competence was never really analysed.

Ms S Camerer (NNP) requested clarity on whether R5m has been set aside for the implementation of the skills development plan.

Mr McKenzie responded that R5m was anticipated by the Department, and it would be used to “write up the books� and the creation of new posts.

The Chair asked the following questions as well as making certain comments regarding the Business Unit: Court Services report:
- Are there figures detailing the status of the Saturday and additional courts in the year 2000, because only through comparing that period with the present could the actual progress made be measured?
- The Department should guard against the literal transposing of the American court system into South Africa's, as suggested by the Executive Summary. His concern was that the South African doctrine of the separation of powers differs fundamentally to the American model, as their courts are essentially seen as a third leg of government.
- Point 2.2.1 of the Executive Summary does not mention the status of the High Courts at all, and something has to be said about these courts.
- Point 2.2.2 of the Executive Summary seems unclear because if it says that 9 provincial regional courts will be established, the Department should be cautious in “not running ahead� of the Rationalisation of the High Court Bill which prescribes a different number of High Courts.
- Does Point 2.2.3 of the Executive Summary mean that the budget described no longer falls under the Department of Public Works but to the exclusive jurisdiction of the Department?
- Point 2.2.5 of the Executive Summary seems to be the most viable option in placing dedicated officials in each court who do not have to be legal practitioners to deal with maintenance issues.
- The omission of any consideration of domestic violence is a vital failure of this document.

The DG, Mr V Pikoli, replied to the first question: the average court hours have increased slightly, because court hours during the week have been increased and the Saturday and additional courts are needed to remove the backlog.

The Chair accepted this, but suggested that the need for such courts can only be validated once this committee has the opportunity to compare the present situation to the previous scenario, so that an informed decision can be made regarding the position of the court system before and after the inception of such courts.

The DG replied that 40 sites would be completed by September 2002 that will house the tutor programme referred in the Executive Summary. The tutor project essentially entails a legal team consisting of a prosecutor and an experienced legal practitioner who will, before the matter is even heard, reach an informed decision on whether the particular docket is fit for trial. The aim is to reduce court time, and current results indicate that the amount of time spent on a single docket has been reduced from 2 hours and 5 minutes to just 1 hour.

The Chair voiced his approval of this project, and qualified its “excellence� by contending that it comes at no extra cost to the Department, and it is these “simple things� that can make the difference at the end of the day.

The DG replied to the Chair's second concern, stating that the Department will indeed be cautious here, and assured the Chair that only the management aspect will be implemented, not the underlying substantive policy framework.

The Chair was satisfied by the response, and encouraged further progress in this regard.

Mr McKenzie replied to the Chair's concern with Point 2.2.3, stating that the budget is indeed “in our books�.

Mr Jiyane, Acting Manager of Business Unit: Court Services, responded to the Chair's fourth question stating that only the Gauteng and North West provinces have not yet been considered because of the problems with the boundaries with neighbouring provinces. This problem has to be resolved by 27 November, and the current dispensation is nearly in line with the Constitutional directive.

The Chair asked if this has any impact on the municipal boundaries.

Mr Jiyane replied that these have to be followed where possible, and any deviation from it has to be motivated in writing. There are, however, only certain areas that have deviated from the prescribed norm, and thus no significant complications were caused.

The Chair inquired whether a proclamation has to be passed to effect this deviation.

Mr Jiyane replied in the affirmative, and noted that this power does rest with the Minister himself, and this concern would be brought to his attention at the next ministerial meeting.

The Chair urged the Department to set out a “footprint� detailing the exact structure of the South African court system, including the location and personnel of each court, the current status and planned improvements and progress made in effecting these alterations. This alone would clearly identify the shortcomings and highlight means to achieve the goals set by the Department. Furthermore, this approach would clearly indicate the resources currently available to the Department, and how much would be needed to effect the proposed improvements, as well as where funds can be “moved around� to ensure optimal efficiency. This “footprint� would also assist the Department when requesting additional funds from the Treasury, as the precise layout would be presented to the Treasury.

Mr McKenzie replied that such a “footprint� has already begun, and input from other state departments has been welcomed in this regard.

Mr Jiyane replied to the Chair's question on Point 2.2.5 by stating that a proposal has been submitted to the Minister regarding an application for a maintenance investigation. The aim of this inquiry would be to evaluate the feasibility of outsourcing this function, so that several budgetary complications may be avoided.

The Chair questioned the outsourcing option as it seems to be more expensive than employing personnel on a permanent basis.

Mr Jiyane responded that these outsourcing posts would be similar to the court sheriffs, and this programme is being piloted in the Western Cape in 100 cases, so that a cost-benefit analysis may be detailed.

The Chair reiterated that outsourcing does not seem to be the preferred option. It only seems viable as far as the outsourcing of security personnel is concerned. If the route proposed by the Department is followed, enormous expenses would be incurred without any long-term benefits accruing to the Department, as far as skills and self-sufficiency is concerned. On the other hand, the advantage of employing permanent personnel is that the domestic, maintenance and any ancillary matters would be added to the Department's pool of wealth and knowledge. If, however, outsourcing is opted for, the officials would deal specifically and exclusively with those matters, and their knowledge and experience would never properly form part of the Department as it would always belong exclusively to the private sector.

Mr Jiyane informed the Chair that only the outsourcing of maintenance investigations is being referred to here, not the actual posts.

The Chair acknowledged the misunderstanding, and consequently agreed with the proposal put forward by the Department, but insisted that the quasi-judicial officers employed have to be members of the Department.

Mr L Landers (ANC) drew the Department's attention to point 2.2.3 of the Executive Summary and contended that the transfer of the capital works budget to the Department is indeed laudable and a definite sign of improvement, but the primary problem here remains the maintenance and repair of such structures. Are these concerns included in the capital works budget and thus also done by the Department, or is it still handled by the Department of Public Works?

The Chair pointed out that the Department had already indicated that the entire budget has been allocated to it. Mr McKenzie added that R52m of the Department of Public Works budget has not yet been spent and R10m of this has not yet been committed to any project.

The Chair asked Mr Jiyane whether projects are currently in place to address the “putrid� conditions of the “urban township� courts.

The DG stated that the lack of skills of Department officials is due primarily to the inefficiency of the previous dispensation, together with the problems with the tremendous backlog in the Regional and National offices. A plan has been drafted that seeks to clear this backlog as soon as possible. The Department has identified 20 of the worst courts in South Africa, and the common factor amongst these is a clear lack of commitment in terms of attitudes to the position held together with no knowledge of what exactly the post entails, because these officials have never received formal training.

The Chair acknowledged the problems with the system inherited from the previous dispensation, but asked if the Department has devised a system that provides a precise and comprehensive procedure to be followed by officials, which is relatively foolproof. Furthermore, are sincere efforts being made by the Department to implement this one system throughout South Africa, and whether each and every official would be required to know this single procedural framework thoroughly.

The DG replied that a manual has indeed been assembled on this very issue, and the Department aims to train 1 800 officials in the next 20 weeks.

The Chair asked if the Department has the necessary equipment, such as stationery, to successfully implement this procedure.

Mr McKenzie replied that the answer to this question has to be “yes and no�, because some courts have not received their allotted stationery with the result that several were forced to draft their own record books.

The Chair insisted that adequate stationery be supplied to each and every court, along with the requisite training called for earlier, so that Department officials may now use these in accordance with the manual. Thus, the Department now has to ensure that the officials of each South African court receive the training and equipment necessary to follow the prescribed procedure, and the fact that “some have but not the rest� will not be tolerated.

The DG replied that the precise details regarding the implementation of this system will be supplied to this committee at a later stage.

The Chair reiterated that what is essentially being referred to here is a “kit� that the entire Department will be familiar with, and that contains all the necessary equipment together with the prescribed manual. This has to be made mandatory as an integral part of the job description referred to by Ms Mabe earlier. If this is not done the same problems will be perpetuated. Thus, part of the problem now is the system of management employed by the Department itself, which has to be addressed as soon as possible.

Imam Solomon asked what the precise extent of the problems with the under-skilled officials is because, surely, these problems cannot be scattered “all over the show� as seems to be the case. What exact percentage of the lower courts are currently experiencing these problems. What measures have been proposed to combat these problems? What disciplinary action, if any, is taken against the offenders? Regarding point 2.1.6 of the Executive Summary, is there a court official that ensures that fellow officials follow the prescribed procedure and, if so, how much progress has been made in this regard?

The Chair continued Imam Solomon's point by requesting the Department to categorise the courts so that the precise progress made thus far may be measured effectively. The aim of this exercise is not to lay blame, but rather to identify the problems and recognise the areas of improvement. Secondly, a category that includes efficiency and financial considerations should also be incorporated in this “footprint�, so that this inquiry may be dealt with more scientifically.

Mr McKenzie replied that the precise percentage figure with the lower courts is not certain, but assured members that the Western Cape “is nearly up to date�. The Northern Province is the most problematic, as its records entries have not been made since as far back as 1982.

In response to the second question, the only solution here is that the Department's administrative branch has to run “like a factory, where everyone has his spot�, and where regular and thorough checks are made on the competence of officials.

Mr M Mzizi (IFP) referred to page 20 of the Report by Business Unit: Court Services, and asked what exactly is being done to the Kathlehong District Court as far as services introduced and the erection of a new building. He asked for the precise measures taken to improve the terrible conditions in the Madaden court district, referred to on page 25 of the Report. The fact that the problematic district of Phuthaditjaba has been considered on pages 13 and 14 of the Report is to be commended, as the entire administration is problematic. What exactly are the plans of the Department in this regard?

Mr Jiyane replied that the Kathlehong district is not being abandoned, but rather that a new office building will be erected there in the foreseeable future as stipulated in part (iii) on page 20 of the Report. The problem is that this district currently falls under the Alberton district. The Department is presently engaged in negotiations with the local government authorities on this issue, but the construction cannot yet begin because the existing structure is the property of the local authority. Once this matter is finalised, the Department would be able to buy the existing building and continue with the proposed improvements.

He continued that the entire building in the Madaden court district will be renovated as it would not be feasible to restructure the existing building. The Phuthaditjaba district has been prioritised for improvement, and is “next in line� for renovation, and the problems with the administration are also being seriously considered.

Ms Chohan-Kota referred the Department to the Geographic Information System (GIS) currently used by the Demarcation Board and said that it seems an unnecessary waste of resources to develop an entirely new system when this established system could be used instead. Secondly, are the Report's identified security measures court-specific because there are several courts that have special security needs, such as the Orlando court district. Thirdly, has the Department identified those South African courts, if any, that are currently under-utilised, such as the Lenasia court which contains three court rooms but only one magistrate and clerk. Surely methods could be devised to better utilise such courts, and in this way the broader objectives of maximising efficiency would also be addressed.

Mr McKenzie replied that the Department does indeed have a “sharing relationship� with the Demarcation Board, and its system has been adopted and subsequently adapted by the Department.

Mr Jiyane replied that those provinces that do need heightened security have been identified by the Department, and security arrangements are indeed court specific. In fact, the R50m referred to in the Report would not be sufficient to effect the desired change. The Western Cape is only now in the tendering stage and is therefore far behind the progress made in other provinces. For the Orlando court district, the entire court structure will be remodelled with non-governmental funding. Its restructuring will commence once the renovation of the Mitchell's Plain court has been completed. Mitchell's Plain is in its final stages and will be completed by the year's end. Improvements to be made to the Orlando court include the erection of fences along the perimeter of the courthouse, together with an increase is police visibility and court personnel.

Mr Jiyane replied that the Department has compiled a list of underutilised courts. The problem with the Lenasia court is that the Protea court was to be moved to Lenasia but there were complications with the moving of witnesses to the new venue. The costs involved in effecting this move were too high. Furthermore, the Department intends establishing additional Regional Court buildings in Lenasia by 1 January 2002 to remedy this problem. The Edenvale and Gauteng districts are similar to Lenasia, and the Department is currently investigating the feasibility of moving the Germiston court to Edenvale.

Mr McKenzie added that is indeed a problem, especially when these courts have been sponsored by prominent businesses in South Africa, such as the Vodacom sponsorship of the Wynberg district court.

The Chair also referred to the security concerns, and questioned the measures in place regarding the handling of funds in the “cash halls�, because these contain open counters without any protective bars and would be an “easy heist� if the matter is not addressed immediately. Secondly, what security measures are in place to safeguard the cash in transit from these “cash halls� to the banks.

Mr Jiyane responded that the R30m referred to here would be used to employ the services of a security agency rather than officials from the Department, but this depends entirely on the amount of funds made available. The transport issue is still being discussed with Transport Minister Omar, and precise details of these tenders could be provided to this committee.

The Chair suggested that only one security agency should be approached to provide this service throughout the particular province, as the cost incurred here would be far less than that incurred in employing security on a court-by-court basis.

Mr McKenzie responded that the tender could be very costly.

Mr G Magwanishe (ANC) requested clarity on the “virtual libraries� project. The Chair added that each court needs just one computer that would enable it to be linked to the mainframe which stores all the relevant legal information needed. What developments have been made in this regard?

Mr McKenzie agreed with the Chair's contention, but informed him that most courts do not in fact have computers.

Mr Jiyane replied that the problem here is that the “virtual-libraries� are not popular amongst the magistrates, and consequently the hardcopy format is still preferred. Furthermore, computer training programmes have to be implemented to train the magistrates and court officials in this regard. These programmes have to be tailored to their specific needs.

Mr McKenzie added that the Department acknowledges this problem and has consequently allocated an additional R10m to a discretional fund for this very purpose, R2,9m of which has since been spent.

Ms Mabe referred to the “financial emergency kit� mentioned earlier by the Chair, and cautioned against allocating a budget to officials who do not know the purpose for which it has been granted.

Ms Camerer questioned the need for the “costing exercise� requested in point 2.2.5 of the Executive Summary, as it merely seems like another “delaying tactic� employed by the Department. Secondly, the same point refers to the “withdrawal of prosecutors� and that these tasks would now be delegated to the clerks, but surely the law does not allow clerks to fulfil the functions of state prosecutors?

The Chair pointed out that the clerks currently do everything anyway. The National Director of Public Prosecutions, Mr B Ncguka, had directed that clerks may execute certain functions “outside the courtroom�, but once inside the prosecutor has sole jurisdiction.

Mr Jiyane replied that the “costing exercise� refers to the feasibility of the introduction of maintenance investigators, and the Department has to decide between outsourcing of this service or not. This is a separate inquiry that requires a separate costing exercise, and it is thus not a “delaying tactic�, but a necessary step that has to be followed. Mr McKenzie added that the costing exercise forms an integral part of the Department's “footprint� strategy, and is not a “delaying tactic�.

Ms Camerer requested clarification on the R35,8m needed to appoint the maintenance investigators as well as the need for point 2.2.4 of the Executive Summary, as well as what the additional “costs exercise� entails precisely. She also asked if the Department could provide a list of all the maintenance courts within the Republic where only the prosecutors, clerks and/or secretaries are doing all the work.

Mr Jiyane replied that the “costs exercise� deals with the feasibility of the implementation of maintenance investigators, because the previous study conducted by the Department did not fully cover all the issues that have now become relevant. It is therefore a brand new exercise which covers new issues and is not related to the previous study in any way.

Mr McKenzie added that R35m had been requested by the Department at the beginning of this year, because the estimates at that time indicated that this amount would be sufficient to effect all the proposed improvements. Tremendous progress has since been made especially in ensuring that divorced women receive their maintenance payments more quickly than before by directing the payment from the former husband directly to the ex-wife herself. Yet this improvement in service efficiency has “burdened� the maintenance system somewhat, because there is now a need for more maintenance investigators to ensure the longevity of this new programme. For this reason the R35m initially requested is no longer sufficient, and a new “cost exercise� is needed to examine the feasibility of the introduction of additional maintenance investigators.

The Chair attempted to clear the confusion by suggesting that it is Ms Camerer's contention that the Department should proceed with the available funds and should not abandon all efforts while additional funds are awaited.

Mr McKenzie maintained that a cost exercise has to be conducted first before the proposed system can be fully implemented.

Mr Jiyane responded to Ms Camerer's question on the delegation of prosecutor tasks to clerks, by stating that this “withdrawal of prosecutors� is only done in certain areas, and the administrative processes involve clerks.

Ms Camerer requested clarity on who precisely these “clerks� are and what their functions are, as well as the number of courts that do have prosecutors that properly execute their mandate. The Chair requested the Department to furnish a one page report on whether these prosecutors actually handle maintenance matters themselves, or not.

Ms N Mahlawe (ANC) referred to the demarcation of magisterial districts in the Report (pg 15), and stated that the area surrounding the Matatiele has two magisterial districts. What impact does this have on the general accessibility to the courts, because this creates travelling problems for the members of the community. Secondly, do the “security packages� referred to on page 27 of the Report apply equally to the magisterial districts in rural areas?

Mr Jiyane replied that this matter remains uncertain because the status of the Eastern Cape court structure and possible improvements have not yet been fully canvassed by the Department. The objective here is not to deprive members of the public of these services, but instead the Department is committed to bringing them close to these services. The overlapping of the two magisterial districts will be examined by the Department. Certain officials are currently being moved to places with greater population density where their services are needed more.

In response to the Ms Mahlawe's second question, Mr Jiyane stated that the intention of the Department is not to exclude the rural areas, but that those areas that need increased security urgently have been prioritised.

Ms Camerer requested clarity on the period over which the R50m, referred to in point 2.2.4 of the Executive Summary, would be spent.

Mr Jiyane replied that this amount would be spent by the end of March 2002, and the Western Cape uses the majority of the funds allocated in this regard.

The DG added to the Department's response regarding the security issue, stating that the President himself had directed the Department to do everything within its power to protect judicial officers and thus the decision was taken by the Department to cover the home security of these officials.

The Chair stated in no uncertain terms that this is “a big mistake� because huge costs will now be incurred by the Department, and this is not done in any other foreign jurisdiction.

Ms Chohan-Kota requested a breakdown of the R50m needed for the security budget that details the portion of the budget that is to be used for the actual court security, and the portion that has been allocated for the provision of personal security of the judicial officials. This breakdown should also reflect how much each court actually receives, because the security needs of the courts in the Western Cape should be prioritised here, and the real test for the Department would be how many courts would be covered by March 2002.

Mr McKenzie replied that this reflects the set-aside decided upon at the beginning of this year, but this amount was not granted by the Treasury, with the result that the Department had to dip into its own coffers, and subsequently spent the entire R50m. The Treasury granted the Department the R50m it sought initially on the condition that it be spent on the same objectives as the first R50m. This is the reason for the new expenditure.
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The Chair commended the Department on the progress made thus far, and said that he is “impressed� by the effort made thus far, especially in view of the fact that at a previous meeting with this committee the Department “didn't have a clue�. The progress made since is “magnificent�. The Department must remember that this committee does not expect miracles but merely want the officials to do their job properly, and it is clear from this session that a sincere and committed effort is being made by the Department in addressing this issue.

He continued that there are certain financial issues that this committee is not entirely satisfied with, and these areas have to be clarified and the proposed improvements have to be made, which include the “financial kit� referred to earlier. This committee is also aware that officials cannot be taught the new system “overnight� because the current management system employed by the Department is fatally flawed, and therefore these officials have to, essentially, be “spoonfed� to remedy this problem. It is thus the role of the National Assembly to drive this process forward and to effect the necessary and much needed change, and at the moment this entails the buying of the necessary equipment that is needed to implement the new administrative procedure.

In conclusion, he requested that the DG respond in writing on the status and subsequent progress made on the following issues:
- a comprehensive and detailed budgetary comparison on the funds that have already been received by the Department, the projects that need to be funded, and any future improvements that may have to be effected at a later stage.
- a salary comparison of all officials that includes the progress made by such officials and merit reports made in this regard since 1994.
- the “footprint� diagram breakdown referred to earlier, detailing the structure and composition of the South African court system from the highest to the lowest court.
- the compiling of the “financial kit�
- the categorisation of courts via the criteria used to measure the progress made.
- clarity on all the issues raised regarding maintenance, especially in view of the report from the National Director of Public Prosecutor in this regard.
- a breakdown of the concerns with the security issue.
- clarity on the demarcation issue.

The DG noted the request, and stated in conclusion that the task ahead is huge, but a sound start has been made by Department, and finally thanked this committee for the opportunity to present its report.

National Council of Provinces Proposed Amendments to the Judges Remuneration and Conditions of Employment Bill
The Chair pointed out that the only substantial NCOP proposed amendments are made to Clauses 3 and 16 of the Bill, and the remainder are merely consequential amendments.

Clause 1
The Committee agreed to the technical amendment.

Clause 3
The Chair said that the phrase “as a Constitutional Court judge� has been inserted to add clarity, and “section 4(1) or (2)� is merely a consequential amendment to alter the numbering of the provisions. All members agreed to the proposed amendments.

Clauses 4 to 8
The Committee agreed to these amendments.

Clause 13
The Committee agreed to the technical amendment.

Clause 16
The Chair contended that the wording of this clause is not satisfactory, but it “more or less� captures the intentions of the legislature.

All members agreed to the proposed NCOP amendments.

Appendix 1:
EXECUTIVE SUMMARY
REPORT TO THE JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE:Â Â NOVEMBER 2001

BUSINESS UNIT: COURT SERVICES
Â
VISION:Â Â
The establishment of a new Business Unit: Court Services provides an opportunity to overhaul and modernise court administration aimed at enhancing confidence in the acceptability and credibility of the courts. A challenge is to move from an out of date system of court administration that is not coping adequately with the current pressures on it in terms of the volume of work, the requirements of the judiciary and the expectations of the community to a more dedicated, quality and responsive support service to courts promoting quality services that meet the needs of customers of the courts. Courts operate out of buildings that require substantial upgrading to meet required standards for health, safety and security. A review of functional boundaries is necessary as courts are still located in a historical basis and the utilisation of some courts is very low.

KEY ISSUES: The report addresses the following key issues:

2.1 COURT EFFICIENCY
There are a number of factors causing process inefficiency in our courts. The fusion of judicial and administrative functions, poor case flow management, poor scheduling and utilization of court hours and poor role clarity among key players in the justice processes are key drivers of inefficiency and unmanageable case backlog. Inefficient management information system is also a contributing factor because despite the large amount of data within the system, there is little effective and systematic information for managing courts. The existing data is often inaccurate and not integrated usefully.

To improve court efficiency the following steps have been taken:

2.2 Additional and Saturday courts
As at September 2001, the backlog stood at 119 475 outstanding cases at district courts 45 474 at Regional courts and 926 at High courts. To fight this backlog, the Department has earlier this year initiated the establishment of additional courts and Saturday courts. This is done in co-operation with the NPA and other inter-sectoral role players. This measure has proved to be a success because for the period February to September 2001 a total number of cases finalised in additional and Saturday courts stands at 8045. There are 96 Saturday and 55 additional courts. A performance indicator in this regard is a remarkable in crease in the number of sentenced prisoners and a decrease in the number of awaiting trial prisoners.  However, without the appointment of permanent additional court staff we will not be able to significantly decrease the high court rolls

2.1.2Â Â Tutors
The NDPP has appointed tutors on contract basis to provide training for prosecutors at problem areas.

2.1.3Â Â Rescue teams
The NDPP has appointed Rescue Teams on contract, comprising experienced former prosecutors to assist in working down the backlog and to provide training and guidance to prosecutors.

2.1.4Â Â US court centre project
This is a semi-automated court and case management system and is being implemented at a number of courts where case backlogs are unacceptably high. This system provides a single nodal point within the court from where the entire court process is managed. The overall objective is to reduce the average case cycle time. The Minister officially opened the IJS Court Centre at the New Law Court Port Elizabeth on 17 August 2001. The rollout programme is included in the reports.

2.1.5Â Â Separation of functions
There was unanimous agreement that the time for separation of functions between the judiciary and the administrative components of the courts has arrived. The process has reached an advanced stage and the Minister has been approached to withdraw section 14 delegations to Magistrates.

2.1.6Â Â Courts/office Manager's project
The vision for this project is to place the management and administration of courts in the hands of competent, fully trained office managers in order to free-up the judiciary to adjudicate cases and execute their roles as heads of the courts. Such managers have been appointed for Magistrates offices of Johannesburg, Durban and Port Elizabeth. The idea is to rollout to the other major centres such as Pietermaritzburg, Randburg and High Court Cape Town shortly.

2.1.7Â Â Visit to USA by the Business Unit: Court Services
Court/office Manager concept is a new thing in South Africa, and to learn from other experiences, the acting MD and other members of the Business Unit visited USA to look at court managers and case flow management. The study tour was a success and will enable us shape our project accordingly.

2.1.8Â Â The establishment of a court operations room
The lack of information to form a sound planning base for courts has for some time been recognised as a short coming in the effective management of courts. This situation makes it difficult to manage or predict workload. In response to this shortcoming, the department has established an operational room. This is a valuable resource in that the information needed to assess the service delivery and performance levels of the courts is provided.

2.1.9Â Â Quality assessment/court performance revies
The Business Unit has launched an initiative that aims at assisting magistrate's offices to improve service delivery and work performance at such offices. A number of factors led to this initiative, such as the Department's need to respond to the quality assessment report from Departmental inspectors, Audit reports and petitions/representation from members of the public on the functioning of courts. These reports are analysed and teams are sent out to introduce corrective measures at under-performing courts. A priority list of offices whose performance is unsatisfactory has been compiled. The first three offices that received attention are Umtata, Randburg and Phuthaditjaba. Best practises are being documented to ensure high performance standard and service delivery in all offices countrywide.

2.2 OTHER ASPECTS RELATING TO COURT SERVICES

2.2.1
  Re-demarcation of magisterial district boundaries
Magistrates are still located on a historical basis and that result in under-utilization of some of them while others are not accessible to members of the public. These considerations have among others influenced the Department to review all magisterial district boundaries. Although this process started in 1994, it was placed on hold while the Municipal Demarcation Board completed its task of re-drawing municipal boundaries. The process relating to seven provinces (excluding Free State and Northern Cape) are basically concluded with only some miner aspects to be followed up. It is envisaged that the whole process should be completed by the end of the year.

2.2.2Â Â Rationalisation of Regional Courts
There are currently eight (8) Regional Court Divisions in South Africa. This results in Divisions in other Provinces serving provinces, which do not have Regional Court Divisions.  As an example Regional Magistrates from Pretoria serve areas in the Mpumalanga and Northern Provinces. This practice is not cost effective. Negotiations are being held with stakeholders to establish if 9 Provincial based Regional Courts Divisions would not be a solution. It is envisaged that the process could be finalised by the end of this year.

2.2.3Â Â Accommodation
Those members of the Portfolio Committee who were fortunate to tour the country to acquaint themselves with conditions prevailing in various courts, have seen for themselves that a number of courts especially in the former homelands, operate out of buildings that require substantial upgrading to meet the required standards for health, safety and security. In other areas new buildings have to be erected. In response to these conditions, the department is at present investing R30m in the upgrading of infrastructure countrywide and another R20m has been allocated to target the upgrading of infrastructure services for vulnerable groups such as children. With effect from the current financial year the budget for capital works is no longer administered by the Department of public works, but by the Department itself. The capital work budget for the current financial year is R193m. A report contains a list of all offices receiving attention.

2.4 Security
We are at present investing R5Om in the upgrading of security service countrywide. One can safely say that although there are security problems in our courts countrywide, most of our courts if not all have been installed with minimum security measures. Problems relating to the protection of the judiciary and prosecution at the Western Cape are being addressed by this Department together with SAPA.

2.2.5Â Â Children issues and maintenance in particular
We are inundated with petitions and representations from members of the public on the implementation of Maintenance Act, i.e. the appointment of maintenance investigators in particular. The withdrawal of prosecutors from handling maintenance cases is also a cause for concern. A National Action Plan on the re-engineering of Maintenance System has been drafted. In order to process the appointment of Maintenance Investigators a costing exercise has to be completed first. The Department is in the process of requesting a baseline costing study from an independent consultant, in order to give the Department an accurate idea of what is needed in this regard. With regard to the withdrawal of prosecutors from handling maintenance matters, an agreement has been reached with the NDPP that prosecutors may only be withdrawn when there are properly trained maintenance officers to handle maintenance cases. Justice College is continually training clerks to serve as maintenance officers.

With regard to the Child Justice Bill, it is envisaged that it will be ready for Parliamentary Sessions of early 2002. The department, together with other relevant agencies, is gearing itself for programmes to support the envisaged child Justice System, such as restorative Justice, legal representation for Children, one-stop-child justice centres, alternatives to imprisonment etc.

2.2.6Â Â Transformation of language services
In recognition of interpreters as essential service providers in our courts, a number of measures have been taken to professionalise interpreting services, of which the establishment of a language service transformation unit based at National Offices in noteworthy.

2.7 Lay assessors
The Business unit is at present putting the final touches on a proposal to implement the legislation relating to the appointment of assessors in courts in a phased manner in certain selected places such as Port Elizabeth, Pretoria and Cape Town. The criterion for selecting these areas is the presence of strong assessors' committee system in operation.

2.2.8Â Â Casual labourers in the Northern Province
The Minister has already approved recommendations for the retrenchment of casual labourers with severance package.

2.2.9Â Â Putting Judges' salaries on persal
All judges have now been put on persal system.

2.2.10 Training of ex-officio commissioners of oaths.
In order to ensue that the administration of Justice is brought closer to the people, the department has undertaken to train ex-offcio Commissioners of Oaths. Certain traditional leaders and parliamentarians have received such training.

S JIYANE
ACTING MANAGING DIRECTOR: BUSINESS UNIT: COURT SERVICES
NOVEMBER 2001

Appendix 2:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Judges' Remuneration and Conditions of Employment Bill [B 83 - 2001] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 1
1. On page 2, in line 19, to omit "and" and to substitute "or".

CLAUSE 3
Clause rejected.

NEW CLAUSE
1. That the following be a new Clause:

Discharge of Constitutional Court judges and judges from active service

3.
(1) A Constitutional Court judge who holds office in terms of section 176(1) of the Constitution -
(a) must, subject to the provisions of section 4(1) or (2), be discharged from active service as a Constitutional Court judge, on the date on which he or she -
(i) attains the age of 70 years; or
(ii) has completed a 12-year term of office as a Constitutional Court judge,
whichever occurs first;
(b) may at any time be discharged by the President from active service as a Constitutional Court judge if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties; or
(c) may at any time on his or her request and with the approval of the President be discharged from active service as a Constitutional Court judge if there is any reason which the President deems sufficient.
(2) A judge who holds office in a permanent capacity-
(a) shall, subject to the provisions of section 4(4), be discharged from active service as a judge on the date on which he or she attains the age of 70 years, if he or she has on that date completed a period of active service of not less than 10 years, or, if he or she has on that date not yet completed a period of 10 years' active service, on the date immediately following the day on which he or she completes a period of 10 years' active service;
(b) who has already attained the age of 65 years and has performed active service for a period of 15 years, and who informs the Minister in writing that he or she no longer wishes to perform active service, shall be discharged by the President from active service as a judge;
(c) may at any time be discharged by the President from active service as a judge if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties; or
(d) may at any time on his or her request and with the approval of the President be discharged from active service as a judge if there is any reason which the President deems sufficient.

CLAUSE 4
Clause rejected.

NEW CLAUSE
1. That the following be a new Clause:

Continuation of active service by Constitutional Court judges and judges

4.
(1) A Constitutional Court judge whose 12-year term of office as a Constitutional Court judge expires before he or she has completed 15 years' active service must, subject to subsection (2), continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service, whereupon he or she must be discharged from active service as a Constitutional Court judge.
(2) A Constitutional Court judge who, on attaining the age of 70 years, has not yet completed 15 years' active service, must continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service as a Constitutional Court judge.
(3)(a) A Constitutional Court judge who is discharged from active service in terms of section 3(1) or subsection (1) or (2) and who is also a judge contemplated in section 174(5) of the Constitution, may continue to perform active service as a judge in the court in which he or she held office as such immediately before he or she was appointed as a Constitutional Court judge if-
(i) he or she indicates his or her willingness to do so in writing to the President three months before he or she is so discharged from active service; and
(ii) he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(2) or subsection (4).
(b) Nothing in this Act precludes a Constitutional Court judge -
(i) who is discharged from active service in terms of section 3(1) or subsection (1) or (2); and
(ii) who is not a judge contemplated in section 174(5) of the Constitution,
from being appointed to the office of judge in a court other than the Constitutional Court by the President on the advice of the Judicial Service Commission as contemplated in the Constitution, if he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(2) or subsection (4).
(c) The holding of office by a judge referred to in paragraph (a) or (b) -
(i) interrupts that judge's discharge from active service in terms of section 3(1) or subsection (1) or (2); and
(ii) suspends any salary payable in terms of section 5 to that judge pursuant to such discharge from active service.
(d) The holding of office by a judge referred to in paragraph (a) or (b), entitles such a judge to an annual salary which -
(i) is payable in terms of section 2; and
(ii) may not be less than the annual salary applicable to the highest office held as a Constitutional Court judge or a judge.
(4) A judge who on attaining the age of 70 years has not yet completed 15 years' active service, may continue to perform active service to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service as a judge.

CLAUSE 5
1. On page 5, in line 35, to omit "section 3(1)(a), (c) or (d), 3(2) or 4(1), (2) or (3)" and to substitute "section 3(1), 3(2)(a), (c) or (d) or 4(1), (2) or (4)".

2. On page 5, in line 42, to omit "section 3(1)(b)" and to substitute "section 3(2)(b)".

3. On page 5, in line 46, to omit "section 3(1)(c) or (d) or 3(2)(b) or (c)" and to substitute "section 3(1)(b) or (c) or 3(2)(c) or (d)".

CLAUSE 6
1. On page 6, in line 26, to omit " section 4(1)" and to substitute "section 4(4)".

CLAUSE 7
1. On page 6, in line 41, to omit "section 3(1)(b), (c) or (d) or (2)(b) or (c)" and to substitute "section 3(1)(b) or (c) or (2)(b), (c) or (d)".

CLAUSE 8
1. On page 7, in line 30, to omit "section 3(2)(a) or 4(2) or (3)" and to substitute "section 3(1)(a) or 4(1) or (2)".

2. On page 7, in line 36, to omit "section 3(1)(a) or 4(1)" and to substitute "section 3(2)(a) or 4(4)".

CLAUSE 13
1. On page 9, in line 26, to omit "and" and to substitute "or".

CLAUSE 16
1. On page 10, from line 34, to omit subsection (4) and to substitute:

(4)(a) Any person who retired as a judge in terms of the Judges' Pensions Act, 1978 (Act No. 90 of 1978), and who, at the commencement of this section, receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of this section, entitled to an amount equal to two thirds of the salary payable to a judge contemplated in section 5(1) of this Act who held the same or a similar office to that of the retired judge on the date of the latter's retirement from office and who has the same number of years' service in an acting or permanent capacity.
(b) After the commencement of this section, any surviving spouse of a judge referred to in paragraph (a) shall be paid with effect from the first day of the month immediately succeeding the day on which the judge died, an amount equal to one half of the amount to which his or her deceased spouse would have been entitled under paragraph (a).
(c) Any surviving spouse of a judge who retired as a judge in terms of the Judges' Pensions Act, 1978, and who, at the commencement of this section, receives a pension in terms of the said Act, is, from the date of commencement of this section, entitled to an amount equal to one half of the amount to which his or her deceased spouse would have been entitled under paragraph (a).
 

 

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