Department of Justice & Constitutional Development on its Annual Report 2008/09

NCOP Security and Justice

12 October 2009
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Meeting Summary

The Department of Justice and Constitutional Development briefing entailed describing its achievements for each of the Department’s core functions of access to justice services, effective management of resources, resolution of civil and criminal cases, review of the criminal justice system, protecting and promoting the rights of vulnerable groups, developing legislation including conducting research and improving court rules, developing and promoting the Constitution including educating the public about their constitutional rights, supervising the administration of deceased and insolvent estates, administering the Guardian’s Fund and providing legal advice services to and protecting all organs of state.

The Committee was given a breakdown of the Department’s 2008/09 budget and expenditure, as well as explanations on the Auditor-General’s audit outcomes. The Department’s overall expenditure had increased from 92.7% in 2006/07 to 99% in 2008/09. Lack of financial systems, vacancies, inadequate job levels of financial staff, inadequate training and skills shortages were identified as some of the root causes for the qualified audit outcomes the Department received. The initiatives it was taken to eradicate the causes were provided.

The briefing elicited much response from members and some of the concerns were:
▪ The lack of a proper working relationship between investigators and prosecutors in dealing with cases
▪ The huge backlogs at courts
▪ Unfilled vacancies within the Department and the unfilled magistrates posts
▪ The finding by the Auditor-General that employee leave was not captured timeously by the Department.
▪ The unnecessarily high levels of temporary staff employed by the Department
▪ The Department was defaulting in meeting its employment equity goals.
The Committee felt that the responses given by the Department on the issues raised were inadequate. Members needed more practical answers. The Department’s explanations highlighted even more problems. A key observation made by the Committee was that the Human Resources section within the Department was not performing its function as many of the issues raised stemmed from its inadequacies. Members requested the Department to make a return visit with more specifics on the issues raised.

Meeting report

The Department of Justice and Constitutional Development (DOJ) briefed the Committee on its Annual Report 2008/09. The departmental delegation included Adv Simon Jiyane, Acting Director General, Ms Sandra Gaum, Chief Financial Officer, Mr Johan Johnson, Chief Director: Budgets, Adv Meme Sejosengwe, Acting Deputy Director General: Court Services. Adv Jiyane conducted the briefing which entailed elaborating on the core functions of the Department and describing their achievements in each.

Access to Justice Services
Some of the achievements were: The DOJ had completed two new courts. They were the Daveyton Magistrates Office and the Polokwane Circuit High Court. Major extension work had been done on three courts and of the 24 branch courts that had been identified 15 were capacitated to become magisterial courts. More than 10 sites had been acquired for construction of new courts in various provinces and an extra 10 new sites were planned for acquisition.

Ensure effective management of resources
Some of the achievements were: The Department continued to improve its financial processes identified by the Auditor-General in previous audits, including addressing the deficiencies in Asset Management and Third Party Funds. The employee vacancy rate had been slightly reduced from 15% in the previous financial year to 14.5 % this year. There was a reduction in temporary staff, including termination of staff reduced from 7.5% to 6.7% this year.  The Department continued modernising its IT systems with more that 2 430 digital court recording systems being installed to replace outdated analogue recording machines. More than 4 721 employees now had access to the Department’s flagship E-scheduler system which tracked and evaluated case-flow management on a daily basis in each court.

Facilitate resolution of criminal and civil cases
Some of the achievements were: The courts sat an average of 3h50 hours per day. A total of 1 058 376 cases were enrolled with 638 720 cases being removed from the roll. In essence 60.3% of cases were removed from the roll. There was a 6.2% decrease in the number of withdrawn cases. The Department achieved a conviction rate of 66.7%, of which 444 cases were finalised through alternative dispute resolution. It also saw an improved reduction of backlog cases by 9% at Regional Courts, but saw an increase of 0.8% on all criminal court rolls. Lower Courts and High Courts maintained high conviction rates, with District Courts achieving 88.1%, Regional Courts 73.7% and High Courts 86.3%.

Review of the Criminal Justice System
Some of the achievements were: The Review of the Criminal Justice System had gained much traction as was one of Government’s most visible interventions. A bill amending the Criminal Procedure Act, 1977, was being drafted. A permanent Budget Review Team would be established under the Chairmanship of National Treasury. A Criminal Justice System statistics and performance centre had been established. Backlogs at courts were also being addressed. On the Regional Courts roll, there was a 22.9% reduction from the initial number of backlog cases.

Protect and promote the rights of the vulnerable groups
Some of the achievements were: The Department had developed policies and frameworks to protect and promote the rights of vulnerable groups. The Interim National Protocol on the Management of Children Awaiting Trial, the Restorative Justice Strategy and the Mediation of Maintenance Matters were some of the Department’s policies.

Developing legislation, including conducting research and improving court rules
Some of the achievements were: The Child Justice Act 2008, the Criminal Procedure Amendment Act No 65 of 2008, the Repeal of Black Administration Act No 7 of 2008 and the Constitution Sixteenth Amendment Act were pieces of legislation passed by Parliament during 2008/09.

Develop and promote Constitution, including educating public about their Constitutional rights
Some of the achievements were: In the year under review, seventy requests for access to information were received in terms of the Promotion of Access to Information Act No 2 of 2000 and dealt with. Sixty one of these were granted and nine were refused. Fifteen training sessions were conducted with officials from national and provincial departments as well as with municipalities.

Supervise administration of deceased/insolvent estates, including administering Guardian’s Fund
Some of the achievements were: The Department received 117 656 new matters on estates, of which 81 477 were files on estates worth less than R125 000, and 36 179 were files on estates worth more than R125 000. There was a considerable increase in the number of insolvent estates and liquidation matters for the year under review. Total volume of payments from the Guardian’s Fund exceeded R618 million.

Provide legal advice services to, and protect all organs of state
Some of the achievements were: The Department finalised 203 out of 204 requests for legal opinions. It also finalised 183 of 191 bills and 354 out of 355 international agreements. A total of R273 925 219 was spent on briefs and 64.6% of briefs had been handed over to private advocates. 

2008/09 Budget and Expenditure, audit outcomes and 2009/10 audit action plans
Specifics on the 2008/09 DOJ Budget and Expenditure, audit outcomes and audit action plans were presented by Mr Johnson and Ms Gaum. The Department’s overall percentage expenditure had increased from 92.7% in 2006/07 to 99% in 2008/09. Mr Johnson gave the Committee a breakdown of the Department’s expenditure outcome per programme as well as per economic classification. A year on year expenditure comparison showed that the Department had reduced its fiscal dumping during the last quarter of its fiscal year. Under-spending decreased with R83 million from R165 million in 2007/08 to R81 million in 2008/09. Ms Gaum continued with explanations on the Auditor General’s qualified report. She pointed out that there had been five qualifications dealing with Third Party Funds, Employee Benefits, Finance Lease Commitments, Irregular Expenditure Condoned and Capital and Minor Assets. Lack of financial systems, vacancies and inadequate job levels of financial staff and inadequate training and skills shortages were identified as some of the root causes for the qualified audit outcomes. Initiatives to do with Expenditure Management, Revenue Management, Stock Management and Performance Information were some of the action plans that had been compiled to addressing the identified problems in National and Regional Offices.

For greater detail on each of the presentations please refer to the attached briefing documents.

Discussion
Mr M Makhubela (COPE, Limpopo) asked what the relationship between SAPS investigators and prosecutors were. He referred to exhibits obtained from rape and murder cases and asked whether the integrity of evidence was maintained. How was the Department being frustrated by the late supply of DNA and ballistic test results? How many cases of theft of money at courts had been registered? What policy was in place to give effect to the Department’s core function of protecting vulnerable groups? He pointed out that there had been a great outcry over the issue of the jurisdiction of courts. What was the Department doing about the issue? On page 6 of the briefing document it stated that temporary staff had decreased from 7.5% to 6.7% currently. He asked for actual figures and not for percentages. How did the new system of video postponements, without the accused having to appear at court, going to be applied in rural areas? Of the warrants issued how many of them were suspects that were arrested and brought to court. He asked how many magistrates were qualified to deal with civil cases. Of the cases that were struck off the court roll, how many returned to the court roll? Reference was made to the Restorative Justice Programme and how many cases there were. What was the reason behind the decrease in under spending by the Department? Why was employee leave not captured timeously?

Mr Jiyane responded that the relationship between investigators and prosecutors were being addressed by the CJS Review. The Department was trying to create a separate dispensation for investigators from normal SAPS members. Investigators need to have the right skills and proper qualifications. Both investigators and prosecutors had to sit down together and discuss cases. At operational level investigators and prosecutors work together.

He stated that DNA tests were conducted by the Department of Health, some of the other tests were done by SAPS themselves. The Department was creating a separate dispensation for experts within SAPS. The problem was that experts working for SAPS were not paid the same as experts working in the private sector. Figures on delays on DNA and ballistic test results could be forwarded to the Committee.
Exhibit management was considered important. A system for exhibit management which was IT driven would be rolled out soon by the Department. The Justice system was being modernised. An e-docket system was in place which allowed a police case docket to be available to the prosecutor electronically.
He said that the Auditor-General’s audit report had noted that there was a lack of financial systems at courts and hence money had disappeared. Maintenance money was often stolen. Some persons had been arrested whilst others had been fired.

A Chief Directorate over the protection of vulnerable persons had been created. There were various policies proposed over the matter but many had not been finalised as yet. He explained that the issue of jurisdiction related to boundaries which in turn were about demarcation. It was an issue that not only involved the Department but the Department dealing with Local Government as well. The Department of Land Affairs was also involved in the redrawing of boundaries. Legislation still existed over the issue. In order to effect change, maps had to be redrawn. Maps of seven provinces had been finalised. The rest of the provinces maps were still outstanding.

Video postponements were to be done in both urban and rural areas. If a rural area had a densely populated prison, video postponements would be provided for.

He agreed to deal with the issue of warrants at a later stage; figures could also be forwarded to the Committee.

Each District Court had civil court magistrates. Regional courts only dealt with criminal matters. The Department had a programme in place for the training of magistrates and court employees on civil matters. 

Adv Sejosengwe said that she did not have the exact figures at hand of how many cases after being struck off the court roll, were replaced on the court roll. If a matter was placed again on the court roll, it was allocated a new case number. She did not have the exact numbers of Restorative Justice cases at hand.

Mr Jiyane said that the Restorative Justice Programme had been started three years ago. He believed the figure to be around 44 000 cases. The number of cases was increasing each year. There were also other mechanisms to bring about restorative justice such as the use of traditional courts. Legislation over traditional courts was being discussed in Parliament. The Department was also considering the establishment of community courts. It could assist in solving matters within communities.

Mr Shabalala responded that the issue of leave management was less about controlling leave or controlling leave through the Persal System. The employee applied for leave, the supervisor approved it. At the end of the month the supervisor needed to check that the employee should not be paid for leave that was taken irregularly. The Auditor-General’s Report said that there was a lag in capturing leave taken within the Persal System. A system needed to be developed at transversal level to address the issue. It should not be developed at departmental level. Part of the delay in capturing leave on the Persal System was because leave forms were sent in bundles to regional offices. Hence there was a delay. It should be sent on a weekly basis. The leave records on Persal consequently did not reflect actual leave.

Mr A Matila (ANC, Gauteng) asked how many vacancies the Department really had. He said it was all good and well that the Department was going through transformation but it had come to his attention that black magistrates were not used to preside over civil cases. He felt that the briefing had not provided a clear picture of what was actually happening. The Committee needed a full report. More information was also needed on the audit report by the Auditor-General. How long was the current state of affairs in the Department going on? What improvements had been made?

Mr M Mokgobi (ANC, Limpopo) asked whether magistrates really worked only three hours fifty minutes per day as the briefing document stated. Were magistrates paid per hour? If magistrates worked so few hours, was justice being delivered to the people at court level? He was concerned. The loss of dockets was another concern and had to be addressed.  

Adv Sejosengwe stated that court hours should be considered holistically. The three hours fifty minutes referred to in the briefing was actual sitting hours by magistrates. It was considered unrealistic to have a magistrate sit in court for eight hours as other work needed to be done. For example magistrates need to read and write judgments and had to conduct research. Many factors had to be taken into consideration.
She added that interventions were being put in place to combat the loss and theft of dockets.

Mr T Chaane (ANC, NW) was concerned that the Department was non-compliant with National Treasury Regulations. He asked how the Department intended to fulfil its mandate when it was breaching the law itself. To make matters worse the Department was also under spending. Six courts were supposed to be built but had not been completed. The Department placed the blame with contractors. What was being done by the Department to resolve the issue? He referred to the payment of TRC reparations and asked if there were any outstanding beneficiaries and how many of them were there. Had all small claims courts been designated? The backlogs at high courts were still considered to be high. What were the figures on backlogs at labour courts? The information on labour courts in the Annual Report only covered a few months and did not cover a twelve-month cycle. He asked for an explanation. Why was performance at Land Claims Courts so poor? What was being done by the Department to fast track matters? He also felt that the Department’s vacancy rate was far too high. Why were vacant magistrates’ posts not being filled. What plans did the Department have in place to address the issue of vacancies? In 2007/08 the Department had 3 000 employees on temporary contracts. What was the situation at present? The employment equity performance of the Department was far too low at 36%. The required figure should be 50%. Persons with disabilities in the Department were at 1% when it should be 2%. What was the correct state of affairs? 

Adv Sejosengwe noted that court backlogs were a priority of the Department. Trial-ready cases were being fast tracked. Mechanisms were being put in place. If a change in legislation was required it would be done. She explained that the National Operations Centre was established to collect and compile information from courts. Land Claims Courts tended to have long cycle times as there were long negotiations and matters were often referred to other forums. In essence its processes were very protracted.

Mr Jiyane responded that the National Operations Centre had only been established in 2008. Hence the information available on labour courts was only that of a few months. The rest of the information could thus not be included in the Annual Report.

Mr Shabalala said that the vacancy rate shifted as the establishment of the Department shifted. As new services were established at courts, new vacancies needed to be filled. This was not withstanding the historical vacancies that the Department had. The point was that the vacancy rate was a moving target. It was ever changing. He did not have exact figures at hand on temporary staff but said that temporary staff did have a high turnover rate. Temporary staff was employed to deal with specific tasks. Employment equity was a concern of the Department, especially the representation of women at senior management level. The Department actually sought to fill posts in view of meeting employment equity targets.

Mr L Nzimande (ANC, KZN) asked what the status of secure care facilities was in view of the Department wishing to provide access to justice for vulnerable groups. He asked what the Department was attempting to do about civil union and traditional marriages. It was felt that the Department seemed to be choking on the system. Was the Department addressing issues of staffing and training at the Master’s Office? When was the establishment of courts to be finalised?

The Chairperson felt that the question on the working relationship between investigators and prosecutors had not been adequately answered. What was the Department’s plan to reduce vacancies from 14.5% to 0%? What work was being outsourced to consultants? Could the Department not employ persons to do the work? He referred to the Department’s R60m irregular spending and asked for an explanation.

Adv Sejosengwe said that the CJS Review would allow for a better working relationship between investigators and prosecutors. She pointed out that the Department tried to identify issues that hampered the case flow management process.

Mr Mokgobi stressed that the Committee needed practical answers from the Department. He suggested that perhaps the Minister should be invited to answer some of the questions. It was recommended that the Committee refer specific issues to the relevant parliamentary committees to deal with challenges that the Department was experiencing.

Mr Matila felt that the Department when appearing before the Committee should bring along all institutions and components that fell under the umbrella of Justice. It would assist with accountability.

Mr Chaane said that some of the Department’s responses provoked even more questions. The explanations highlighted even more problems. The issue of leave not being captured was an example of the Department’s human resource problems. The explanation on vacancies was unacceptable. How was the private sector always managing to fill vacancies? Problems with vacancies were an issue that recurred every year. The Department’s systems in Human Resources were weak and needed to be fixed.

Mr Makhubela agreed that the Department’s Human Resources department needed to be jacked up.

Mr Matila reiterated that the Department should bring along all its components/units to answer questions. The top management was only provided with information and was unable to satisfactorily comment on it.

Mr Nzimande said that he was requesting the Chairperson to close the meeting as the meeting had run its course. He however felt that management was ultimately responsible for the performance of the Department even though units/components of the Department would be asked to account. 

Mr Mokgobi suggested that the Department note the concerns raised by the Committee and prepare responses to them. He suggested that the meeting be adjourned.

The Chairperson said that the issues raised had been noted and asked the Department if they wished to comment.

Mr Jiyane said that the engagement with the Committee had been useful. Comments by the Committee would not be taken personally but could only improve the performance of the Department.

The meeting was adjourned.



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