Department of Justice and Constitutional Development Annual Report 2008/09

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Justice and Correctional Services

17 November 2009
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

The Department listed its core functions and provided its achievements in each of these for that financial year. Important achievements were the two new courts that had been built in Daveyton and Polokwane. Another achievement was the progress made in modernising its Information Technology. However, the Department was also faced with the tremendous challenge of the backlog at courts across the board which had not been resolved. The Department had the responsibility to represent the state in cases of litigation against it. The Nyathi case was a prominent example which exposed the vulnerability of the state. Contingency plans for the FIFA 2010 World Cup was discussed as well as new legislation. The Auditor-General had given it a Qualified Audit Opinion in respect of two old and two new matters.

In response to the Committee wanting to take the bull by the horns about court backlogs, the Department said that it was difficult for it to interfere with what was the jurisdiction of the Judges President. When the Department raised it as part of case law management, which included monitoring case cycle time, the judges viewed it as encroaching on the independence of the judiciary. The system that was being implemented would give a cycle time, but it was difficult for the Department to make the judges accountable.

The Committee suggested the establishment of a monitoring mechanism to create insight into the problem of court backlogs and outstanding judgments.

The Committee also discussed the Nyathi judgment and the litigious attitude of the state in that departments were defending the indefensible, especially when cases dealt with the timely furnishing of state grants to applicants. This matter had given government a wake-up call as to what the implications were if government departments did not honor court orders.

Meeting report

Department of Justice and Constitutional Development on its Annual Report 2008/09
The Department (DoJ) delegation included Adv Simon Jiyane, Acting Director General, Ms Sandra Gomm, Chief Financial Officer, Mr Johan Johnson, Chief Director, Budgets, Procurement & Decision Support, Adv Meme Sejosengwe, Acting Deputy Director General: Court Services, Koekie Mbeki, Acting Chief Master of the High Court, Neville Gawula, Acting Chief Litigation Officer, Julian Marsh, Acting Director of the Justice College, Vuso Shabalala, Deputy Director General: Corporate Services, Khotso De Wee, Chief Operations Officer, Michael Ndlokowane, Acting Chief Director: Court Performance.

Adv Simon Jiyane presented the briefing which stipulated the core functions of the Department and under each of these, the achievements for the financial year (see attached document). The briefing covered the Vision and Mission Statement then launched into describing its achievements for each of its core functions: ensuring equitable access to justice services for all; effective and efficient management; resolution of civil and criminal cases; building, securing and maintaining the infrastructure; protecting and promoting the rights of vulnerable groups; developing legislation; developing and promoting the Constitution; supervising the administration of deceased estates, including administering the Guardian’s Fund, providing legal advice services and protecting all organs of state.

Access to Justice Services
Two new courts were completed, the Daveyton Magistrates Office and the Polokwane Circuit High Court. Major extension work was done to 3 courts. Of 24 branch courts, 15 were capacitated to become magisterial courts. Branch courts were being redesigned, and 40 mobile units were instituted to penetrate under-serviced areas. More than 10 sites had been acquired for the construction of new courts and 10 more sites were planned to be acquired in the near future.

Ensure effective and efficient management of resources:
Financial Management
The Department continued to improve its financial processes as identified by the Auditor-General in the previous audits, including addressing the deficiencies in Asset Management and Third Party Funds.

Human Resources Management
The employee vacancy rate changed from 15% to 14.5% for the financial year 2008/09. There was a reduction of temporary staff. There were 178 disciplinary cases that were finalised out of a total of 298.

Information Systems management
2430 digital court recording systems had been installed. The E-scheduler system, designed to track and evaluate case flow management on a daily basis in each court across the country was made available to 4721 employees. The Department was also continuing to roll out its video postponement system aimed at fast-tracking case postponements without the accused person having to leave the correctional centre and attend court. The system was currently operating in 43 courts and 3 correctional centres. The Electronic Funds Transfer (EFT) system aimed at improving efficiency at Master’s Offices was currently rolled out to offices in Polokwane, Bloemfontein, Kimberley, Cape Town, Pietermaritzburg and Grahamstown.

Facilitate resolution of criminal civil cases
The courts sat an average of 3h50 hours a day. Out of 1 058 376 cases enrolled, 638 720 cases (60.3%) were removed from the roll (this figure included cases withdrawn, transferred, struck from the roll and warrants issued). The Department achieved a 66.7% conviction rate, of which 444 cases were finalised through alternative dispute resolution. The Department also saw an improved reduction of backlog cases by 9% at Regional Courts, but an increase of 0.8% on 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
The review of the Criminal Justice System had gained much momentum and was one of Government’s most visible interventions. A Bill amending the Criminal Procedure Act was being drafted. A permanent budget review team would be established under the chairmanship of National Treasury. An interim office for the Criminal Justice System Review and Secretariat had been established with a programme finalised. A CJS statistics and performance centre had been established.

Court Backlogs: The total number of cases permanently removed from the regional court rolls as a result of the backlog courts was 13 113 from November 2006 till the end of March 2009. On the regional court roll there was a 22.9% reduction from the initial number of backlog cases (20 452).

Protect and promote the rights of vulnerable groups
Policies were developed to this end. Some examples were:
- Interim National Protocol on the Management of Children Awaiting Trial,
- Restorative Justice Strategy - Draft National Policy Framework in terms of the Child Justice Act, 2008
- Management and prioritisation of children’s matters in courts, in terms of the Children’s Act, 2005
- Mediation on Maintenance Matters

Developing legislation, including conducting research and improving court rules
Examples of legislation developed and passed by Parliament during 2008/09:
- Repeal of Black Administration Act, 2008 (Act No 7 of 2008),
- Criminal Procedure Amendment Act, 2008 (Act No. 65 of 2008),
- Child Justice Act, 2008

Develop & promote Constitution, including educating public about their constitutional rights
In the year under review, 70 requests for access to information were received in terms of the Promotion of Access to Information Act. Of these 61 were granted and nine were refused. 15 training sessions were conducted with officials from national and provincial departments as well as municipalities. Six road shows were conducted at Atteridgeville, Polokwane, Pretoria, Pretoria-North, Durban and Kimberley to raise awareness of the Promotion of Access to Information Act.

Supervise administration of deceased & insolvent estates, including administering Guardian’s Fund
The Department received 117 656 new matters on estates, of which 81 477 were estates less than R125 000, and 36 179 were files on estates worth more than R125 000. The Department finalised 88.6% of all estates received during this year. The Department saw a considerable increase in the number of insolvent estates and liquidation matters this year. Liquidations increased from 2 124 in 2007/08 to 4150 in 2008/09, and the number of individuals who were sequestrated soared from 1 864 to 5 221. Improving access to the Guardian’s Fund, the department recorded 10 643 receipts for the Guardian’s Fund at a total value of R576 432 957. The total volume of payments from the Fund exceeded R618 million.

Provide legal advice services to protect all organs of state
The Department finalised 203 out of 204 requests for legal opinions, 183 out of 191 bills and 4 out of 355 international agreements. The Department spent R 273 925 219 on 6628 briefs. A total of 64.6% (4285 of the 6628 briefs) were handed over to private advocates. The Department received 2 359 requests for pardons, and 84.4% (1 992) of those were processed.

Corporate Services: Information & Systems management: Modernisation Initiatives
JDAS - Justice Deposit Account System
This system automates current manual processes at Magistrates Courts that administer Third Party Funds.
Consist of various modules such as Bail, Fines, Contributions, Admission of Guilt and in particular, the Maintenance Module. The system was currently deployed to all 480 courts that administer Third Party Funds.
Payment could be made anywhere. Maintenance and bail money could be accepted and paid at any Magistrates Court regardless of where the case was registered or person detained. The system was currently in its final pilot phase.

ICMS – Integrated Case Management System
This was an Enterprise Case Management System and Framework. Its main objective was to manage case flow and tracking of a case through the entire case life cycle. It made dockets and files available electronically. The system comprised different modules, each customised for the specific function it would be used for. There were different modules for Lower and High Civil Courts, Lower Criminal Courts, Small Claims Court, for the National Register for Sex Offenders, and for the Master’s Office.

GFS - Guardians Fund System
This administered the monies kept in trust by the Masters Office on behalf of minors and persons not fit to manage their financial affairs and tracked all transactions. It made use of a verifiable audit trail on all transactions that past through the system as well as a three tier authorisation level before monies could be moved and transactions posted. It was currently deployed at 14 Master’s Offices.

JMIS - Justice Management Information System
This allowed for effective reporting on all systems data as captured by the courts and was used as a business intelligence tool. The dashboard reflected detailed information to business such as daily, monthly and annual trends, statistical analysis and a national overview on volumes and values even down to court and case level. It empowered management at all levels to monitor performance and make informed decisions based on real time and accurate information.

Video Remand System
This was a video conference system between courts and prisons to enable court hearings for remands and postponements for awaiting-trial detainees without the detainee leaving the prison facility. It included the building or refurbishment of cubicles within the correctional services facilities to provide an environment similar to a court room. It included a fax machine to receive J1 and J7 warrants. Client-Attorney lines were also installed between the court room and correctional services facility. It was currently operating in 42 courts and 3 correctional centres.

IJS - Integrated Justice System
This system was aimed at the better management of crime and criminals, from the reporting of a crime to the arrest, conviction, imprisonment and rehabilitation of the offender. Participating departments were SAPS, National Prosecuting Authority, DOJ, Department of Correctional Services, Department of Social Development, Department of Home Affairs and the Legal Aid Board. There was electronic sharing of information which reduced the loss of case dockets by tracking all aspects of a case through the justice cycle. The system integration status was as follows: The electronic transfer of case detail and e-dockets to all IJS Departments as captured by SAPS, the electronic transfer of postponement dates and case outcomes to all IJS Departments as per court roll, the electronic notification between Departments as part of work flow and early warning indicators, automated notification to SA Legal Aid if service was required by accused, verification of identity between SAPS and DHA and notification of persons on the SAPS “Wanted” Database to Border Control System.

Doj &Cd Portfolio Committee Briefing on Systems Modernisation
There was a comprehensive process underway to modernise communications and other systems in the Justice Cluster. Systems were being developed and installed to make the cluster more efficient in terms of its core functions as well as enhancing its management and control capabilities.

Public Education and Communication Annual Report
The Chief Directorate for Public Education was responsible for developing and implementing the program plan to educate the Public on Justice Services. It was divided into three directorates, namely Media Research and Liaison, Public Education and Liaison, and Internal Communication and Language Services. In financial year 2008/09 the Directorate embarked on an aggressive public education and communication program. Media Research and Liaison‘s role was to maintain the public image of the Department through the media. It used newspaper supplements, community radio, and SABC radio programs to this end. Its core function was to build public confidence in the administration of justice by educating the public about legal and constitutional matters. Awareness campaigns on justice related matters were held with NGOs, schools and other entities nationwide. Conferences, exhibitions and Human Rights day celebrations were utilised to create an awareness of what the DoJ was doing. The Internal Communication and Languages Services directorates printed 35 000 copies each of six issues of the bi-monthly newsletter, Justice Today. Nine issues of the electronic internal newsletter Tsala ya Molao were produced. The annual report was made available in Braille and some court forms were translated into the 10 other official languages and made available on the department website.

Financial Report 008/09
Mr Johan Johnson, Chief Director, Budgets, Procurement & Decision Support, DoJ, presented the first part of the financial report, which dealt with the budget and expenditure. He said that the expenditure of the Department had increased from 91.3% in 2006/07 to 99.4% in 2008/09. Expressed in monetary terms, the Department had a budget of R 6 403 716 billion of which it spent R 6 362 176 billion. A factor that caused negative reflection on the spending pattern of the Department in previous years, was fiscal dumping – which was the phenomenon of spending a huge percentage of the budget close to the end of the financial year. During financial year 2008/09 the Department spread the spending throughout the year, resulting in a more acceptable spending pattern. He gave a breakdown of the spending on the programs: Administration, Court Services, State Legal Services and Auxiliary and Associated Services. The salaries of judges and magistrates were paid by National Treasury, but were channeled through the DOJ. The budget here was R1.588 billion, the spending was R1.6 billion and the over expenditure R13 million. These figures differed from those given in the hard copy report. The highest amount of under spending occurred in the category of machinery, equipment and motor vehicles. The Department managed to absorb the unexpected cost of the Occupation Specific Dispensation and other programs within the baseline, through reprioritisation and cost curtailment.

Ms Sandra Gomm, Chief Financial Officer, DoJ, presented the rest of the financial report, stipulating the different programs that formed part of the Minister’s Portfolio and the audit outcomes thereof. The Criminal Asset Recovery Account, the President’s Fund, the Guardian’s Fund, the Special Investigating Unit and the Legal Aid Board all received unqualified audit opinions. The Justice Vote Account, the National Prosecuting Authority and the Third Party Fund received qualified audit opinions. The areas of Employee Benefits as well as Finance Lease Commitments (on office equipment like faxes and copiers) and the irregular expenditure connected to it received new audit qualifications. The areas of Third Party Funds (such as bail and maintenance) and Capital and Minor Assets were old matters that received qualifications again.

She pointed out key root causes and identified improvement areas. The most importantly factor was the lack of an Integrated Financial Management System. This would be achieved by 2011. Inadequate financial staff, skills shortages, the lack of proper reporting structures and control systems at courts were issues that had to be addressed. This Department was not unique in its Asset Management qualification in the sense that 80% of government departments had received a qualification in this area for financial year 2008/09, as per the Auditor-General’s General Report.

The plan of action to achieve an unqualified audit opinion throughout included having debriefing workshops with all managers at the different levels to bring across the shared responsibility for the qualifications and to clarify their role in cleaning these up. It also included enhanced financial reporting and audit facilitation. This included Audit Action Plans, compiled per Financial Statement Component with National Office Champions responsible for its execution, the setting up of task teams to deal with specific issues like AFS disclosure notes and leases, monthly financial statements with effect from September 2009, the use of the Enhanced National Operations Centre (NOC) Tool, identifying weaknesses in the system and initiating training and other interventions to eradicate these. Standardising reporting processes would also assist towards clarity. There was also a new Private Public Partnership strategy around Third Party Funds with clearly stipulated timelines for the different stages of its implementation. There were definite strategies to tighten control, verification and reporting in the areas of Asset Management and Supply Chain Management.

Audit Action Plans
The approach with the audit action plans were changed from an audit plan per office to an audit plan per financial statement component. National Office Champions were responsible for developing action steps and continuous monitoring. They would report to the CFO who would report monthly to the Executive Council.

Irregular expenditure
There were two categories of irregular expenditure. In the first instance R138.8 million were spent in transactions where the proper procurement processes were not followed. There were disciplinary actions in some cases and others were still under investigation. In another category of irregular expenditure, R53 million had been spent, but at the time of the audit, the supporting documentation could not be found. The documentation had since been recovered and although still listed as irregular expenditure, condonation had been requested.

Fruitless Expenditure
The Auditor-General declared R 18 million spent on a User Asset Management Plan (UAMP) as fruitless expenditure. However, the Department was in the process of appointing an independent assessor to determine whether it was indeed fruitless expenditure.

Mr Swart (ACDP) asked if there were mobile courts in place to process soccer hooligans during the 2010 FIFA World Cup Soccer Tournament.

Ms Sejosengwe, Acting Deputy Director General: Court Services, said that the plan for the World Cup was ready. Mobile courts were in place and anti-trafficking arrangements had been made. Plan 2010 was in place but struggling with funding The steering committee was liaising with police and other bodies. Language services and court interpreters were organised. Staff to work overtime had been organised.

Mr Swart enquired whether Anti-Trafficking legislation would serve to protect women and children against trafficking for sexual purposes during the FIFA World Cup Soccer Tournament.

Adv Rudman (DoJ) replied that the Anti-Trafficking Bill would be ready before the 2010 World Cup. It had been approved by Cabinet and received back from the state law advisers. The Department was now looking at all the amendments and advising the Minister regarding the amendments, that the the state law advisers had proposed. The Department would introduce the Bill into Parliament within the next two to three weeks. The Committee would be able to look at the Bill early next year.

A member posed the question whether it would be worth passing, whether it would not be too late.

Adv Rudman replied that certain provisions could be implemented before the 2010 World Cup if Parliament passed the Bill before 2010, especially sections relating to the Prohibition and Combating of Trafficking.

Mr Swart commented that it was in the public interest. It needed to be prioritised. At least the bare elements had to be in place.

Mr Swart asked why so many cases, 60.3%, had been removed from the criminal court roll. He asked why 3649 cases, which had to be serious in order to reach the Regional Courts, were re-screened and withdrawn.

Mr S Ntapane (UDM) asked what caused the victims to lose faith in the judiciary. He asked how the video remand system would affect the accused who used their court appearances to ask for access to medical treatment.

Mr Jeffrey (Acting Chairperson) felt that the Department could have had a more detailed report on how the video remand system was working in Durban and Port Elizabeth where it had been implemented.

Ms Sejosengwe explained that the Video Remand System sought to alleviate the problem of the accused taken to court only to be remanded. Administrative processes to take the accused out of prison, staff, transport, and time added up and made a court appearance costly. Cases without issues would be dealt with in this manner. In other words, where the accused was over 18 years old, where the accused had no injuries and where the case would not be heard on that day. There would be a video conference room in prison and in court and the two parties would be able to see and talk to each other. There would be fax facilities to provide for the lawyer-client privilege. It would cut the cost and administrative burden on prisons and courts. The system was piloted in Durban and Port Elizabeth.

Ms N Michael (DA) commented about the load shedding that the courts were practicing. Dockets were lost and cases were thrown out of court as a result. She mentioned the Wynberg Magistrates Court in Johannesburg. A number of murder and robbery cases were thrown out because there were no CDs available in the court to copy the case dockets onto. Seven cases were struck off the roll due to the constant unavailability of magistrates. The Pretoria High Court was the only court in the country which accommodated intellectual property cases, and there was such a case with a judgment outstanding for three years. She cited the example of a case at the Pretoria High Court that had been postponed fourteen times. The person involved had used up all his leave to attend court, and his case had still not been finalised. She alleged that maintenance courts were non-operational. It was easy for people to evade paying maintenance, because the claimant had to follow the person around the country and obtain a new warrant in each new magisterial district in which that person stayed. She said that the earliest date one could get to have a civil case heard in the Pretoria High Court was 2014.

Mr L Ndabandaba (ANC) asked if the Department could share plans and strategies to reduce the backlog.

Mr Swart asked why the Pretoria High Court was handling 74% of all civil cases in the country.

Mr Ndabandaba asked why the Pretoria High Court had such a huge backlog.

Mr J Jeffrey (ANC) felt that the presentation was vague. He suggested that the Committee and the Department together look at systems and methods to address the backlogs in courts.

In reply to his asking how many unqualified audits the Department had had in the last 10 years, the answer was two.

Mr Neville Gawula, Acting Chief Litigation Officer, said that there was a new trend emerging in the High Court in Pretoria. Litigants would put an intellectual property case on roll, and look which judge was allocated to preside over the hearing. If the judge was black, they would go for alternative dispute resolution. They did not trust the competence of the judge handle the subject matter, as this was a highly specialised area and not many law professionals specialised in this area. This trend was taking momentum.

Mr Jeffrey stated that he understood the cases referred to Alternative Dispute Resolution were withdrawn from the court roll. They were then not part of the backlog of cases awaiting judgments. The cases with outstanding judgments were actually heard in court, but a judge decided when to deliver judgment. Presumably the Judge President of the province was the only one who could exert influence in that regard.

Mr Gawula concurred.

Ms D Smuts (DA) stated that she understood Mr Gawula to have said that the reason why there were so many outstanding judgments for intellectual property cases were the fact that the acting judges could not handle the subject matter.

Mr Gawula agreed with her.

Mr Jeffrey then asked whether the Department was monitoring how long it took to deliver judgments.

Ms Smuts then said that the question should rather be: “Should the Department be monitoring anything that judges do?” and her answer would be “No.”

Ms Sejosengwe commented that it was difficult for the Department to interfere with what was the jurisdiction of the Judge President. When the Department raised it as part of case law management which included monitoring case cycle time, the judges viewed it as encroaching on the independence of the judiciary. The system that was being implemented would give a cycle time, but it was difficult for the Department to make the judges accountable.

Mr Swart said that this matter needed some discussion, because, although the judiciary was independent, there was a problem with judgments taking too long, causing backlogs. He felt that the Department could monitor the performance of acting judges to see who was not delivering judgments, without infringing on the independence of the judiciary. He suggested that the Department ask the Law Society for their statistics. The Minister appointed acting judges, not the judiciary. The Department could then advise the Minister about acting judges who had track records of not delivering judgments.

Mr Ntapane (UDM) said that the normal practice was to write to the Judge President asking for a judgment in the High Court. If there was no response, the Department could come back to the Portfolio Committee to take it up.
Ms Smuts suggested said that the JSC now had many duties and maybe could assist in this regard.

Mr Jeffrey suggested that the Department set up mechanisms to look at judgments that took longer than six months. This could form part of the Annual Report, like the report on court hours.

Mr Gawula stated that he was not aware of a system or process to monitor outstanding judgments.

Mr Swart said that the Portfolio Committee could meet with the judiciary around the issue of backlogs.

Adv Jiyane said that despite screening, so many cases not trial ready. The Department was dealing with problems where people sat in jail for long periods of time while their cases were still not trial ready, and investigations incomplete.

The Chairperson asked Ms Sejosengwe to respond to the backlogs in the Northern Cape and Limpopo.

Ms Sejosengwe replied that since November 2006 a process was underway to deal with backlogs. At this stage it was confined to regional courts, but it would be extended to the district courts, and then to the High Court. They would look at cases that were trial ready, but older than six months

Adv Jiyane agreed with the establishment of a monitoring mechanism to create insight into the problem of court backlogs and outstanding judgments.

Ms Sejosengwe addressed the meeting on IT and what it sought to achieve in the DoJ. She said that the Digital Case Recording System (DCRS) would replace old analogue equipment. It would have a central archive.  E-Scheduler would have a central database to manage case flow from a central point.

Civil courts had high case rolls in Pretoria High Court. This was because litigants and lawyers were free to go where they wished. Litigants and lawyers from the South preferred to go to the North and clog the system. The jurisdiction of the Pretoria North Court included Limpopo and all other areas in the north. Gauteng carried the highest workload.

Ms Sejosengwe said that Road Accident Fund (RAF) cases also affected civil high courts, and was not limited to Gauteng. The Department was talking to the Minister about it. The Department was exploring other mechanisms to resolve RAF cases. The DoJ was in the process of partnering with Department of Transport to find a mechanism to settle cases out-of-court.

Ms Sejosengwe wanted the details of the case that had been postponed 14 times, referred to by Ms Michael, for follow-up purposes.

Ms Sejosengwe said that with court dates not being available, turnaround time became longer and longer. It was an issue the Judge President was grappling with in the High Court.

Mr Jeffrey said that the jurisdiction was split in two divisions, North and South Gauteng. This would become law when the Superior Courts Bill was finally passed. Was there any plan in the interim to resolve the problem of the concurrent jurisdiction in the north and in the south? What happened with the jurisdiction in Limpopo, there was a High Court at Thohoyandou, the former Venda High Court? What steps was the department taking to resolve the jurisdiction problem. There was a circuit court in Limpopo.

Ms Sejosengwe explained that with the High Court in Thohoyandou, legislation provide for the original jurisdiction only. It could not expand jurisdiction beyond that.

Mr Jeffrey asked whether she was correct there. There had been a problem with Ciskei High Court in Bisho. The High Court wanted to sit in East London. Legislation had been passed to allow it to expand its jurisdiction to East London. Why could the same legislation not be used to expand jurisdiction of the Thohoyandou High Court.

Ms Sejosengwe said perhaps Mr Rudman could shed some light on the issue.

Mr Rudman said that the legislation that the chairperson referred to was passed for a specific problem in the Ciskei, but it created the possibility that it could be adapted to extend the jurisdiction of courts in other areas.

Adv Jiyane said that there was a proposal to give the circuit court in Polokwane, local division status under North Gauteng. People were still traveling to Pretoria for civil matters

Acting Chairperson Mr Jeffrey quoted the Annual Report, saying that the Department had undertaken to establish high courts in Limpopo and Mpumalanga. He asked what, apart from the building, the Department was doing to start putting structures in place towards that end.

Ms Sejosengwe said she would address that but she said her colleague would respond to the question about the backlog and statistics.

Mr Michael Ndlokovane, Acting Chief Director: Court Performance, explained that concern had been raised about the large number of cases removed from the roll. The Department had asked itself how it could reduce the number of cases that were withdrawn. A better screening mechanism resulted in a reduction in such cases being withdrawn. He pointed out that transferred cases also contributed to the number of cases removed from the roll.  The District Court was the court of first instance but some of its cases were then transferred to the Regional Court, and nothing could be done about that. The Department also investigated what happened when warrants were issued. In 57% of cases where warrants were issued, people got back to court.

Mr Jeffrey felt that the Department should have given and still needed to give a report on the impact of the Child Justice Act and all the bills that were passed and their status regarding implementation.

Adv Rudman replied that Mr Jeffries had been a Member of Parliament for 11 years and he should know about the existence of a document, dealing with the implementation of legislation since 1994. He undertook to provide the Committee with the updated document within the next week.

Adv Rudman added that the regulations had now been drafted for the Child Justice Act. These had been formally submitted to the Minister, and would take effect on 1 April 2010. On minimum sentencing relating to a judgment of the Constitutional Court, those amendments had been drafted and submitted for comments. Amendments would be included in a Judicial Matters Amendment Bill which would be introduced into Parliament during the first half of the next session of Parliament. The amendments would be submitted to role players. The State Liability Bill and Constitutional Amendment Bill had been published in the Gazette for public comment. It had received vast numbers of comments especially the Constitutional Amendment Bill. The Department subsequently had a meeting with Treasury to look at ways to deal with this matter. The guidelines from the Constitutional Court explained how the Constitutional Court saw this matter, especially on the matter whether execution against state property should be allowed. If one allowed it, how does one do it? It could possibly be allowed, but only against non-essential state property. The Department would meet with National Treasury again to finalise this matter. Execution against state property – only non-essential state property like desks, could be attached. The state should pay judgment debts. And the Department and the state should avoid all executions against state property.

Adv Rudmen said that the regulations had been drafted for Video Remands. It was open to comment for role players. The Department was looking at the comments. It hoped to submit the finalized regulations to the Minister at the beginning of December 2009, with a recommendation of an implementation date.

Mr Jeffrey stated that there were problems with the magistrates’ salary increases. He wanted a report on whether there was progress in the rationalisation process.

Mr Jeffrey asked why there were so many acting officials and why vacancies were not filled. He focused on the position of Master of the High Court which had been vacant since 2007 and was still not filled, although it was such an important position. It was Adv Ms Koekie Mbeki’s second stint as Acting Master.

Mr Vuso Shabalala, Deputy Director General: Corporate Services replied that the Minister had prioritised the two posts, namely, the Chief Master and the Chief Litigation officer that became vacant at the end of June. Both posts required the involvement of the Minister. There had been a hesitancy to fill posts, because of a change of administration. Hence, the many ‘Acting’ appointments. In both cases advertising had happened. Both appointments should be made by January

Mr M Gungubele (ANC) criticised the structure of the report. He said that the Department had to have a clear planning system. There were three principles that had to apply: consistency, continuity and coherence. Department had to have a baseline and then set targets, so that it could measure its achievements against these. He suggested that if the Department had to report to the Committee on the issues raised by the Auditor-General and SCOPA, a plan need to be drafted on how to deal with it, and regular progress reports would have to be filed by the Department with the Committee. The department needed a monitoring and evaluation system. Strategic objectives were shorter term building blocks towards strategic goals and it should be reflected in the report as such. He could not understand how the audit committee could be satisfied with the monthly and quarterly audit reports of the Department while there were so many discrepancies. For example, if building projects were delayed, they ended up costing the state more than initially planned. The fact that documentation for the leased office equipment was not available raised the question whether the Department was not aware of the planning cycle. The inadequacies displayed by the Department were unacceptable.

Mr Khotso De Wee, Chief Operations Officer, DoJ, replied that there were two units in place to assist the Department with monitoring and evaluation on the implementation of its strategy and the achievement of its strategic objectives. There was a Strategy Unit in place that produced quarterly, half yearly and annual reports. He would submit a quarterly report to the Committee for perusal. There was also a National Operations Centre in place. The purpose was to collate information from the courts. At the moment the core of it was at the head office, but in time it would be expanded to the regions and the information collated would be more accurate and complete.

Mr De Wee said that the Department relied on the Department of Public Works (DPW) for the development of buildings as this was its mandate. However the department felt the need to have a dedicated Facilities Management Unit to assess where courts had to be built and to take responsibility for court maintenance. He stated that the co-operation with DPW was not what it should be.

Mr Swart said that it was too easy to pass the ball between the Department and DPW. Only 33 out of 78 projects were completed and this affected the core function of the DoJ’s objective of Access to Justice. The delays probably had to do with underspending in the Department. Linked to this was the decision to have a high court in Nelspruit, Mpumalanga. However there was no land available yet.

Mr De Wee said that he had met on several occasions with Polokwane Municipality land board. He negotiated with them up until a point when the DPW had to become part of the process. The process got stuck there, because the DPW was never available and never responded.

The Chairperson said that if the Department experienced problems with the DPW, they should come to the Committee. The Department should pursue the DPW, write letters. Get the cluster to address it. Let them account to their own Portfolio Committee. Write to the Director General of that Department. If there was still no response, escalate the problem to the Minister and to the President if necessary.

Mr Jeffrey asked for a progress report on the high court in Polokwane.

Mr De Wee said that the tender process had been completed and that the construction process should start after the builders’ holiday in January 2010.

Mr Jeffrey asked whether Mr De Wee could be held to account that the building would start in January.

Mt De Wee said that he would follow up to ascertain the facts and then inform the Committee in writing.

Mr Gungubele remarked that it was a major project. It was a bad state of affairs when a senior manager did not know the state of progress on such an important issue.

Mr Jeffrey remarked in turn that it reflected poorly on the Department. To establish a high court in each province - two did not have high courts, should be a major priority. The Committee would want the answer in writing before the end of the week.

Mr Gungubele returned to the shortcomings of the structure of the report.

The Chairperson resolved it by telling the Department that its strategic plan did not agree with its programs. The Department should look at the deficiencies and realign it.

The Chairperson said that it should not take 15 years to find land in Mpumalanga on which to build a high court. He said that the Committee would find land.

Mr Jeffrey said that his question about the 33 out of 78 repair and maintenance projects completed and how it was linked to underspending and the problem with the DPW, had not been answered.

Mr De Wee promised to submit the details in the written report that he was supposed to submit before the end of the week.

Ms L Adams (COPE) asked whether, of the 20% finalised civil cases, there was a table that indicated the number of old cases per high court still pending.

Ms Adams asked, firstly, what the percentage was of judgments delivered against a government department, old and new cases. Secondly, of the judgments against government departments, how many were paid out.
Thirdly, were there statistics of outstanding payments in respect of judgments against the state, per department and fourthly, what the Department’s strategy was to implement the Nyathi Case Judgment other than a litigation policy that would guide departments how it should litigate and not focus on the independence of courts and paying out of claims.

Mr Gawula, said concerning judgments against the state, the current system do not supply the state with an inventory, but the new NOC system would have it.

Ms Adams asked whether the Department could not get it from regional offices.

Mr Gawula replied that the current template that they used to collect data did not make provision for old cases. He did not have the information.

Ms Adams asked what the cost was of judgments still outstanding.

Mr Gawula explained that there had been 210 judgments the state had not paid. This had been reduced to17 outstanding cases. These were mainly cases of the SAPS and Department of Health. The monetary value attached to it was R3 million.

Ms Adams asked whether the cases were old or instituted or finalised this year.

Mr Gawula replied that the Constitutional Court had instructed the Law Society to compile a list of cases where judgment was made against the state. The list consisted of about 200 cases dating from 1996/97 to date. The list of 17 came from this list, but was not broken down into any categories.

The Acting Chairperson, Mr Jeffrey, at this stage, asked Mr Gawula to provide a breakdown at later stage.

Mr Gawula responded on how the Department handled litigation through the Office of the State Attorney,
Non-compliance of client departments was a major reason for litigation against the state. Lawyers exploited the loopholes. Lawyers got huge sums of money from the state in vexatious litigation. They started in KZN, and then moved to the Eastern Cape, now they were in the Western Cape. The Nyathi case set the precedent that a private citizen could attach the property of the state until the law could be amended in 2011.

Mr Jeffrey had a problem with the term vexatious litigation. He made an example: Person X had a grant. The grant stopped. Person X goes to court. The Department of Social Development should not have defended the case, it should have been settled out of court. The Provincial Department of Social Welfare should have sorted it out with the lawyers. It should not have been defended. He was concerned about the attitude, calling the litigation “vexatious”.

Mr Swarts shared the sentiments. Parliament passed laws. It was unfair to blame lawyers for taking advantage of loopholes. Laws passed must be complied with by government departments. There was a major problem with the State Attorney’s Offices. Attorneys were at fault. The Constitutional Court had commented on State Attorneys’ Offices. The Chief Justice was unhappy.

Mr Jeffrey said that the Constitutional Court asked for a progress report.

Ms Smuts questioned the use of the term “vexatious”. She asked what point was Mr Gawula making.

Mr Gawula stated that there were instances where a client department did not comply with their advice. There were applications for an adult grants and the period for response by that department had expired. These lawyers went to rural areas, set up mobile offices and recruited applicants in bulk to apply for ID documents and social grants. Knowing these departments would be able to cope with the demand. Some of these applications would take longer than the specified time to process. They then sued the state on behalf of all these applicants. They started in KZN, moved to the Eastern Cape and were now in the Western Cape.

Mr Jeffrey said that grant applicants should receive their documentation within a reasonable period of time. The Department of Social Welfare was defending the indefensible. The response should be consent to issue the ID book or social grant.

Ms Sithole commented that these lawyers were doing very good work. She wanted their contact details.

Mr Gawula said that when it came to litigation, the state attorneys did not get instructions from the client departments. They often had no case to fight in court. It was a problem.

The Chairperson asked Mr Gawula, what he advised the client departments to do. Did he ever advise them not to fight a case?

Mr Swarts said that the Department should not wait for instructions, but issue directives, because its staff were the legally qualified people, who had the authority to advise client departments not no fight cases which they had no chance of winning. The Department should consider those officials could be held responsible by the Treasury for incurring cost to the state.

Mr Jeffrey asked whether the Department did an audit of the lawyers it hired in terms of their success rating. Many lawyers saw government as a cash cow. The Department should verify whether lawyers that gave bad advice, were used again.

Mr Gungubele said in terms of the Public Finance Management Act, if a Director General told a Minister not fight a case, and the Minister did not comply, the onus still rested upon the Director General to prove by correspondence that he had issued a directive to the Minister and that the Minister had defied his directive.

The Chairperson agreed that in such a case, if that defiance of the Minister could not be demonstrated by the DG, it reflected poorly on the whole team which included the Portfolio Committee and the Department. It showed that the team could not execute its mandate. He reassured the Department that it had the authority to advise client departments not to litigate if they did not have a case.

Afternoon session (chaired by Mr Jeffrey)

Mr Gawula resumed his feedback on the current status of the Nyathi case. In the Nyathi case, the state should not have opposed the application from the High Court, Supreme Court of Appeal or the Constitutional Court. The cost to the state was astronomical. It also exposed how the government approached litigation. The Department was given a deadline to amend Section 3 of the State Liability Act, and the 18th Constitutional Amendment Bill also needed to be amended. A process of consultation was underway, because the State Liability Act was of immense interest to the legal profession.

The Order of the Judgment as it stood now was that, if a debt was not honored within 30 days by a client department, the creditor had to go to the Treasury, National or Provincial. Treasury had 14 days to satisfy the judgment. If Treasury did not respond, the creditor could bring an application to court to attach state property. The court granted 20 days to allow the client department/debtor to respond. After 20 days, the creditor could go to the debtor to attach some property, but not remove this for 14 days. If there was no reply to an application to stay those proceedings, then the creditor could physically remove the attached articles. People were using this legislation to help themselves to state property and it could not be allowed .The matter was not solely in the hands of the DoJ. Client departments had to make sure that they complied with the legislation as it stood until it could be amended. This matter had given government a wake-up call as to what the implications were if government departments did not honor court orders. The Minister would brief Cabinet about the implications, later that day, of the Nyathi matter.

The Chairperson asked whether Mr Nyathi had been paid.

Mr Gawula replied that he had been paid, but had died by time of payment. The money was paid into his estate.

The Chairperson said that the Department had spoken about the Minister going to Cabinet, but it had to get an extension from the Constitutional Court. He asked how far the Department was with the State Liability Bill. Possibly the Department would want to include info in their written report about the Minister’s report to Cabinet, and Cabinet’s response, but the Department should start reporting to the Committee in early 2010 on the progress on the Bill. It was supposed to have been passed June 2009, but the Department had asked for an extension.

Mr Tapane questioned Adv Jiyane about the bail regime. He asked whether, in the case of habitual offenders, the rules for schedule six offences were not enough to keep them in custody. A propensity to commit crime should be reason to refuse bail. He asked whether that would not be a remedy, rather than amending the law.

Mr Swart asked for more about the new bail regime

The Chairperson directed Adv Jiyane to explain the new bail regime.

Adv Jiyane stated that the Bail Protocol had been signed, and was in operation. The Department was in the process of monitoring the effective implementation of it by all relevant departments. The Bail Regime sought to address situations where perpetrators of serious crimes were granted bail only to commit another crime. In short it meant that it would be much harder for repeat offenders to secure bail in terms of the three-strike bail provision. One of the mandates that the Department had when doing the Criminal Justice Review was to identify areas within the legislative framework that needed to be changed. The need to tighten the bail laws was identified then.

Ms Sejosengwe added that the new bail protocol stipulated that when a prison became overpopulated, prison managers could apply for cases to be reviewed. The bail could be reduced or the person could be let out on bail.

The Chairperson asked for a copy of the Bail Protocol.

Mr Ntapane opined that the amounts that were spent on private practitioners were exorbitant. He asked whether the Department could not recruit staff with the necessary skills

Mr Gawula said that a process was started in 2007. The Department created a framework where the state could save money on litigation. It was piloted by appointing a few individuals to the Department. The Department was still in the process of determining whether it was better value for money. At this stage there was no legal policy framework.

Mr Swarts commented that, with the Legal Aid Board, many people had the impression that it employed second rate lawyers. The department needed to strike a balance, between employing skilled legal professionals and empowering private black advocates. The state was the biggest litigator and it would always have complex cases where specialists would be needed. The Department should accept that as an expense, but would be reimbursed by client departments.

Mr Gawula said that sometimes when the Department suggested legal professionals who were experts in their field to a client department, the client department insisted on employing a different set of professionals, or litigate outside the framework of the state. This situation left room for corruption. One of the Department`s measures to deal with it, was a policy document that stated that it was the State Attorney’s decision, in consultation with the client department, to appoint council.

Mr Ntapane asked for details about cases being struck off the roll. According to their report, 60% of cases had been removed from the roll. When had the screening started?

The Chairperson stated that the 60.3% was a confusing statistic, because it lumped together so many different categories. It combined ‘actual withdrawals’ with ‘cases transferred’ to more appropriate courts.

Ms Sejosengwe said on the issue of why maintenance courts were not operational, the Department was busy with a process to fast track maintenance matters. It was busy compiling statistics and would have accurate statistics for maintenance available soon.

In response to Mr Ndabandaba asking about the Isondlo Project, Ms Sejosengwe explained the project. The department identified unclaimed money. The aim of this project would be to find beneficiaries and get offenders to pay. The details would be included in the maintenance report that she would provide to the Committee.

Mr Ndabanaba asked whether the Isondlo project would look at ‘ghost’ children.

Ms Sejosengwe said that proper identification of beneficiaries would be very important, so ‘ghost’ children would be taken care of.

Ms Sejosengwe said that there was a project underway to audit cases with missing court records to get an overview. There would be a process of systemic training of staff to keep proper records in response to the CD problem at the Wynberg Court in Johannesburg, raised by Ms Michael.

Mr Swart (ACDP) commended the Department on the report and subsequently raised a number of issues. He commented that the Department was still struggling with the leave application process which should have been easy to resolve, but was the cause of a qualified audit report again.

Mr Jeffrey asked why amounts spent in previous financial years, were reflected in financial report 2008/09.

Ms Sandra Gomm, Chief Financial Officer, DoJ, answered that these amounts were discovered by the Auditor-General to be for, example, irregular expenditure, during financial year 2008/09.

Ms Sithole commented that many of the issues that had caused the qualified audit opinion could have been resolved through proper communication with the Auditor-General. She asked whether the Chief Financial Officer had a problem communicating with the Auditor-General.

The CFO stated that she was not proud of the qualified audit report

The Chairperson said that she did not have to change the structures, but had to face the problem.

The CFO said that she was happy to provide monthly reports. The Department was communicating with national and regional audit facilitators. There was sufficient communication. The Department had asked the Auditor-General to do a lot more interim audits.

The Chairperson told the CFO that it would not work if the internal auditors reported to her. They needed to be independent.

Mr Swarts wanted quarterly reporting, monthly was too frequent.

Ms Sithole said that she would like to see what the quarterly report looked like. The procedure should have been that the Department discussed its problems with the Portfolio Committee, and it resolved all the issues before submitting the report to the Auditor-General. She said that the Department should not wait for an invitation from the Committee, but could approach it whenever it had difficulties.

Mr Jeffrey referred to the fact that the Department had not responded to the concerns raised by the Auditor-General or Standing Committee on Public Accounts. The Auditor-General‘s audit report was detailed and the Department should have had a written report on the issues they raised.

Mr Jeffrey stated that neither the problems of the Auditor-General nor SCOPA were addressed. He was not sure what SCOPA had demanded. This Committee also needed to know how the Department had responded to the Auditor-General’s report. He asked why the Department did not comply with SCOPA resolutions.

Ms Sithole replied that she would prefer to get monthly financial reports about how the Department was following up on the Auditor-General’s report. One of reasons for implementing the Public Finance Management Act was the element of timely reporting. Financial reports were tools of management – if you could not manage your finances you could not do your work effectively. A Department of Justice had to have integrity, to build confidence about it amongst the citizenry.

The CFO replied that she was nor aware that Ms Sithole wanted the internal auditors to report to her. She supported independent internal audits. During the last financial year, they had met on a quarterly basis The Department provided monthly budgetary review reports and audit action plan reports to the audit committee. The SCOPA resolutions were about the two old issues that had received qualifications: the supply chain management issue and the third party funds. According to the Auditor-General’s report, the Department had not substantially addressed the issues.

Mr Jeffrey stated that the research section had done a summary and analysis of the Annual Report. They raised a number of questions. In the 2008 State-of-the Nation Address certain priorities were set out amongst others. Two issues were not mentioned in the report: the implementation of the Victims Charter, and the implementation of additional measures from the TRC Recommendations. According to the Annual Report, 2008/09 was the same as 2007/08. There was no movement. There were still consultations on the medical benefits for the families of the victims.

Adv Jiyane said that the Department had integrated the Service Charter with the Victims Empowerment Program. He would provide a written report on this. He did the risks because the High Court delivered judgments in which it had criticised the Department because there was no legal terminology if cases escalated to appeals and review stages. It was a constitutional imperative and the courts would run in indigenous languages, when the infrastructure was in place.

The Chairperson asked how one would develop legal terminology in indigenous languages if they were not used. Both criminal and civil trials were conducted within the framework of African law and that the terminology did exist. Afrikaans was the best example of how a language grew. African languages could develop in the same way.

The Chairperson said that judges could not limit languages. No judge could undermine the Constitution.

Mr Jeffrey remarked that lawyers loved to use Latin, when there was no word in the English / Afrikaans language to describe something. Likewise, if there was no word in an indigenous language, Afrikaans or English words could be used.

Mr Ndanandaba said that developing languages were not insurmountable. Language boards could also help to develop the languages

Ms Smuts said that according to the Constitution – each one must use at least two, not all 11. Language boards and lexicographic units could help. She agreed that languages should be developed.

Ms Smuts remarked on the standoff between government and the judiciary about the administration of the courts. It had lasted since the 2004 election until the subsequent election. She asked whether they were in calmer waters. She asked whether she was correct in not expecting any attempts to attempt on the administrative and institutional independence of the courts. She asked Adv Rudman to comment.

Adv Rudman replied that indeed unanimity had been reached on the provisions of that Bill as well as the constitutional amendments. The Minister had had numerous discussions with the judiciary, the heads of court. There was agreement on the provisions and it would be before Parliament possibly during the latter part of first half of the next session.

Ms Smuts stated that she was horrified to read in a document on the Criminal Justice Review that according to Adv de Lange “the Criminal Justice head’s organising and management structure would flow in a seamless manner from the Cabinet to its courts”. She asked what the Cabinet was doing running the court, and appointing a person from the executive as head of the CJS with co-ordination and management powers but not executive powers. She saw in the Annual Report that there was an operational centre war room, run by Adv De Lange, from Luthuli House. She wanted to be assured that it was not the intention and practice for the Cabinet to run the courts.

Adv Jiyane replied that there was now a champion for the Criminal Justice Review. It was no longer the Deputy Minister, it was now the Minister. The Minister did not get involved in operational issues, but was responsible for making sure that there were standardisation of policies in relation to the application and the co-ordination of the activities of the cluster. It did not impinge on the independence of the judiciary.

Ms Smuts asked why the President and Minister were joining
Ryan Albutt* in fighting the ruling of the High Court? The High Court held that the victims had to be heard before the President granted a pardon.

Mr Gawula replied that
Ryan Albutt had met with the family of the victim before he was incarcerated and had made peace with them. In other words, they had been heard already, and did not need to be heard again. That was why he opposed the ruling of the High Court that the family of the victims needed to be heard. The President and Minister agreed with his view, and joined him in opposing the ruling by the High Court.

Ms Adams asked the following question relating to court services: Why there was no report regarding reducing the cycle time of cases where children were involved. How the Department was planning to achieve the 50% finalisation of cases by the family advocate, now that the Children’s Act prescribed compulsory mediation. How the Department planned to fast track the establishment of the small claims court in this financial year. How many of the 97 Small Claims courts still had inactive advisory boards. She asked for a provincial breakdown of the Equality Court statistics.

Mr Jeffrey suggested that the researchers should compile a document to circulate raising the issues requiring follow-up.

This was agreed upon and the meeting was adjourned.


[*Centre for Study of Violence and Reconciliation writes: The High Court held that victims of crime had a right to be heard before the President exercised his pardon power under s 84(2)(j) of the Constitution. It granted an order restraining the President from exercising this power until the main application was decided. In the Constitutional Court, Mr Albutt, the President and the Minister are challenging this interim order on two main grounds. The first is that the High Court erred in finding that the pardon power constitutes administrative action in terms of PAJA. Alternatively, and if PAJA does apply, Mr Albutt, the President and the Minister contend that s 1 of PAJA should be declared unconstitutional and invalid in so far as it includes the pardon power under the definition of administrative action. Additionally, Mr Albutt, the President and the Minister contend that the order violated the separation of powers principle, by intruding on a power entrusted to the executive, by requiring the President to give victims a hearing before granting a pardon.]


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