Department of Justice and Constitutional Development on its Annual Report 2009/10

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Justice and Correctional Services

12 October 2010
Chairperson: Mr J Jeffery (ANC) (Acting)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on its Annual Report 2009/10. The Department continued to focus on people living in townships and rural areas who previously had only limited access to courts. However, it had already become clear that budget constraints would have an impact on future work. The Department continuing to correct and realign Magisterial Districts with Municipal Districts, with 15 Branch Courts converted to full service courts. The Department had established 17 Small Claims Courts; promoted the use of indigenous languages in the District Courts; and completed three new courts with three courts were under construction.

The vacancy rate dropped from 13.6% in 2008/09 to 10.7% in 2009/10. Key appointments included the Director-General, the National Director of Public Prosecutions, the Chief Justice, and the Public Protector.
Capacity was improved through training in strategic and operational areas by means of the Justice College.
The development and roll-out of the Integrated Case Management System were finalised. The Justice Management Information System which dealt with extracting information for management purposes from the Integrated Case Management System was now fully functional. Information technology infrastructure needed to support the roll-out of the Integrated Case Management System to courts, was not fully funded. Existing servers and other systems were ageing and would need to be replaced. More than 11 million transactions in the Justice Deposit Account System represented a landmark.

Bills introduced into Parliament included the Constitution Seventeenth Amendment Bill (Municipal Functions), the Protection of Personal Information Bill, the Protection from Harassment Bill, and the Prevention and Combating of Trafficking in Persons Bill.

Bills on the legislative programme were the Recognition of Muslim Marriages Bill, the Legal Practice Bill, the Judicial Matters Amendment Bill, the State Liability Bill, the Prevention and Combating of Hate Speech, Racial Discrimination, Xenophobia and Related Intolerance Bill, and the South African Human Rights Commission Amendment Bill.

The Department continued with promotion of the guarantees in the Constitution through legislation such as Promotion of Access to Information Act 2000, the Promotion of Administrative Justice Act 2000 and the Promotion of Equality and Prevention of Unfair Discrimination Act 2000.

All Magistrate Courts were designated as Equality Courts and there was an increase in the number of cases enrolled at the Equality Courts. Cases increased from 447 in 2008/09 to 508 in 2009/10. The training material for the Promotion of Administrative Justice Act was completed.

The Department also increased its programmes aimed at educating the public on justice and constitutional matters and strengthening participatory democracy in partnership with the European Union. It had visited 166 schools. Approximately 43 000 people had been reached so far in terms of promoting awareness of constitutional rights. Additional funds were received from the European Union in January 2010 to support constitutional development. The Department ran radio shows to educate the public about justice and constitutional matters. Justice on the Airwaves and Law on Call were produced as a result of the partnership between the Department and the South African Broadcasting Corporation.

The Department sought to improve access to the services of the Master. There were 14 Masters Offices in the High Courts. All Magistrate Courts were designated as service points for Master’s services. To improve access to the Guardian’s Fund, the Department was integrating the Guardian Funds system with the Integrated Case Management System, which would lead to Guardian Funds services being delivered in 480 magistrate courts. The appointment of Assistant Masters in magistrate courts was delayed by lack of funds. Office space and infrastructure was a challenge in certain courts.

The Department expanded the establishment of the State Attorney by 209 posts, but unfortunately not all were filled due to lack of funds. It appointed 24 advocates to deal with 648 High Court matters. The Department won 14% of the cases, lost 6%, and settled 18% out of court. 7% were awaiting judgement and 55% judgements were postponed, mainly because there were not enough judges, particularly in North and South Gauteng.

Towards transforming the legal system, the State Legal Services issued 5 804 briefs to Black practitioners to the value of R261.941 million (74% of the total). Other legislative instruments that would support transformation within the legal system were the Legal Practice Bill, the Superior Courts Bill, and the Constitutional Amendment Bill.

The Minister and the Department played a leading role in the Justice Crime Prevention and Security Cluster - the mandate of the Department relating to the upholding of the protection of the Constitution and the Rule of Law was continued through collaboration within the Cluster.

The video postponement system developed between courts and correctional facilities was now available in 45 courts. An Inter-sectoral Management of Remand Detainees Task Team, at deputy director-general level, was appointed to fast-track initiatives to reduce the number of detainees awaiting trial. Various standard operating procedures, manuals and policies were developed, such as case flow management. Bail management was strengthened and information technology systems used to provide an integrated management information system to the Justice Crime Prevention and Security Cluster.

Significant progress was made in ensuring the entrenchment of the independence of the judiciary and the rule of law and substantial work was done relating to the Constitution Amendment Bill and the Superior Courts Bill. The Office of the Chief Justice was strengthened as a precursor in the transition to the establishment of a separate Court Administration for the Judiciary.

The Jurisdiction of Regional Courts Amendment Act made it possible for Regional Courts to hear divorce matters. Implementation Plans required capacitating of Regional Court staff to handle these cases; training; and accommodation for the additional staff.

The Department received substantially less funding than was requested to deal with all its increased responsibilities, including the implementation of legislation. There was improved departmental spending – expenditure increased from 99.4% in 2008/09 to 99.8% in 2009/10. Under-spending decreased by R28 million from R41.4 million in 2008/09 to R13 million in 2009/10. Spending on compensation of employees was at 99.5 % of parliamentary approved budget. Goods and services spending was 100%. There was a re-prioritisation to fund Guarding Services and Capital Works.

A summary of expenditure as against final budget was presented for the period 2007/08 to 2009/10, followed by a report on voted funds in which departmental expenditure was detailed by Programme. Also presented was expenditure per economic classification, departmental revenue, and transfer payments.

Since 2005/06 the Department had consistently received a qualified audit report from the Auditor-General. Third Party Funds was a basis for qualification for the fifth year running. A new basis for qualification in the 2009/10 financial year was irregular expenditure in respect of non-compliance with the Preferential Procurement Policy Framework Act.

The Department's Strategic Turnaround Plan targeted key failure points in governance, people management, methods and practices. Specific action plans were drawn up to address perennial hotspots such as Supply Chain Management, Asset Management and Management of Third Party Funds. Four out of the previous five audit qualifications (2008/09) were resolved through the Asset Turnaround Project, the Leases Project, leave management initiatives, and the training of financial staff in regions and branches. However, sustainability was challenged by high staff turnover, lack of competencies and skills, insufficient financial management capabilities, financial constraints, and possible suspension by National Treasury of funding for the Third Party Fund. Vacancies in the Office of the Chief Financial Officer were 29% of the establishment.

The new audit qualification on irregular expenditure related to payments made in contravention of the Preferential Procurement Policy Framework Act: the Department had applied the Broad-based Black Economic Empowerment Code of Good Practice instead. These contracts were entered into in the period 1 July 2005 to 31 December 2009 and with regards to quotations 2005 to date. The audit qualification related to the inability to determine the amount of irregular expenditure from 2005 by the time of finalising the Audit Report. Due process in quantifying the full extent of this non-compliance was under way after which the National Treasury would be approached in accordance with the Treasury Guidelines. The Department was resolving the non-compliance through training initiatives.

The National Treasury’s Strategic Support Plan was a further key initiative to avoid future audit qualifications. Other initiatives included the Monthly Financial Management Monitoring Matrix which replaced Audit Action Plans, and the distribution of audio visual aids to All Area Court Managers on financial transaction capturing and report requesting as well as Cash Hall Procedures (payments, receipts, petty cash, Pay as You Earn and agency services.

The Department explained the results of the forensic audit investigations for 2009/10 into fraud and corruption. It received 149 cases of which 86 cases were received during November 2009 from the Office of the Public Service Commission. Of the 86 cases received: 31 cases were finalised; and 13 were referred to the South African Police Service for criminal investigation. The cases referred for disciplinary proceedings involved 28 officials. 30 other misconduct cases included charges such as nepotism, political activities during working hours, conspiracy to commit theft, refusing to carry out instructions, bringing the department into disrepute, unauthorised expenditure and loss of an estate file. A total of 45% (79) of the misconduct cases involved action taken against officials in breach of regulations relating to the management of state assets.

Preventative measures for fraud and corruption were explained. The Department was actively involved in the anti-corruption structures of the Government. These included the Anti-Corruption Coordinating Committee and the National Anti-Corruption Forum. The successes up to date in the public service forum in which the Department was participating included the development of an Anti-Corruption Programme Course for anti-corruption practitioners in the public service. The course was accredited at National Qualifications Framework (NQF) level 4. Other activities to combat fraud and corruption were discussed under the Audit Turnaround Plan. Officials could contact the Director-General on an internal ‘Tattle Line”.

South Africa and its justice system had to contend with the effects of widespread poverty and unemployment. This led to the people being more exposed to human rights abuses and high levels of crime. It also impacted on the victims. The Department’s budget of R7.4 billion still rated as one of the smallest in the share of the national vote. This had a negative impact on the delivery of justice services to the public.

Race and gender transformation of the Bench remained an important constitutional imperative. The Judicial Service Commission had now for the first time since its establishment in 1994 recommended the appointment of the first woman to the office of the Judge-President.

Members of the African National Congress commended the Department on aligning the magisterial districts with the municipal districts and on the Small Claims Courts, which were of especial benefit to constituents, were pleased that the Department was using community radio stations for public awareness, but asked what criteria the Department used to select radio stations, said that something needed to be done to improve efficiency in the Office of the Master, asked if fathers were using the courts to delay maintenance, when would there be a legislative amendment to allow maintenance to be paid directly from the father to the mother without having to go through the court. The Department was ordered to return with a proper plan for maintenance paid by fathers as this was “not going well”. Members said it was necessary to establish a norm so that all concerned could agree on the amount of work to be accomplished in the courts, asked if the Department was silent on its fifth audit qualification, asked about social workers who conducted assessments and whose work accommodation was inadequate, asked for the first quarterly report from the Department, asked if the Department owned any municipality any money for rates and services, and complained that that the Department had not provided accurate figures on vacancies. The Acting Chairperson observed that any judge or magistrate who sentenced a defaulting maintenance payer to imprisonment was obviously defeating the aim of the sentence. He suggested “more creative” forms of punishment, such as imprisonment over the weekend with the offender going to work Monday to Friday.

A Member of the Democratic Alliance asked about maintenance, pointed out a discrepancy in figures for maintenance and asked why the numbers of outstanding cases were so high, observed that it was good that children were being removed from the prisons, but asked what was the Department doing about the extra-ordinary increase in outstanding sexual offences cases, which since 2006 had increased by over 4000%, asked how the Department worked out its percentages, asked why tenders were being awarded to companies which failed to perform and what was being done to ensure that this did not happen again, asked why so few women – attorneys and advocates – were being briefed by the Department: was the Department not getting enough applications? The Member also struggled to understand the figures for vacancies in senior management.
 

Meeting report

Department of Justice and Constitutional Development. Annual Report 2009/10. Presentation
Introduction
Ms Nonkululeko Msomi, Director-General, Department of Justice and Constitutional Development, said that in the period under review the Department continued to deal with its core functions through services based on the following principles and values: commitment to constitutional values and a culture of human rights;
Batho Pele; good governance; ubuntu; professionalism and continuous improvement; and open communication.

The Department’s key strategic measurable objectives were as follows (AR, pages 14): capacitating and restructuring the courts and integrating the justice system; catering for the needs of vulnerable groups; improving the maintenance system to relieve pressure at courts and enhance standards of service delivery; broadening access to justice; and improving the efficiency of the National Prosecuting Authority (NPA) through its programmes and units.

In terms of the National Treasury estimates of national expenditure programmes, the Department’s activities and expenditure were dealt with through the following Programmes (AR pages 14 – 16): Programme 1: Administration; Programme 2: Court Services; Programme 3: State Legal Services; Programme 4: National Prosecuting Authority; and Programme 5: Auxiliary and Associated Service.

Operational highlights
A summary of highlights, achievements and noteworthy aspects was given. As to ensuring equitable access to justice services for all, the Department continued to focus on people living in townships and rural areas who previously had limited access to courts. During the period under review it had already become clear that budget constraints would have an impact on future work done in this regard in terms of capital projects and other matters. Highlights in this regard included the Department's continuing to correct and realign Magisterial Districts with Municipal Districts with 15 Branch Courts converted to full service courts - Motherwell, Daveyton, Alexandra, Thembisa, Madadeni, Tiyane, Enkangala, Groblershoop, Jan Kempdorp, Kakamas, Keimoes, Poffader, Kathu, Atlantis and Khayelitsha. The Department established more Small Claims Courts (17); promoted the use of indigenous languages in the District Courts (Pilot Project 27 District Courts); completed three new courts - Galeshewe (Northern Cape), Colesburg (Northern Cape), and Lutzville (Western Cape). Three courts were under construction - Katlehong (Gauteng, Polokwane High Court (Limpopo), and Ntuzuma.

As to improving access to justice in respect of court infrastructure, there were budget constraints. Although planning had already started on 12 projects (slide 7) there were not enough funds for implementation, and this might have an impact of service delivery in the future.

During the period under review, the Department focused on strengthening its leadership and building capacity for improved service delivery by the appointment of key staff and a decrease in vacancy rates.

The vacancy rate dropped from 13.6% in 2008/09 to 10.7% in 2009/10.

Key appointments included the Director-General, the National Director of Public Prosecutions, the Chief Justice, and the Public Protector.

A table of numbers of appointments finalised in the review period was given (slide 8).

Further achievements included improving capacity through training in strategic and operational areas by means of the Justice College. Figures were indicated in a table (slide 9).

The development and roll-out of the Integrated Case Management System (ICMS) that spanned all disciplines of cases administered in the justice environment were finalised. The Justice Management Information System (JMIS) which dealt with extracting information for management purposes from the ICMS was now fully functional. Figures were indicated in a table. There were challenges in so far as information technology (IT) infrastructure needed to support the roll-out of the ICMS to courts was not fully funded. Existing servers and other systems were aging and would need to be replaced. Further system development had been heavily affected by budget cuts. About R128 million was required. (Slide 10).

Ms Msomi noted that with regard to the ICMS, the Master's offices represented a key success.

Ms Msomi noted that more than 11 million transactions in the Justice Deposit Account System represented a landmark. (Slide 10).

Also under the heading of operational highlights, Ms Nsomi said that the Department had, during the year under review, dealt with various substantive bills as well as subordinate laws and Rules of Court. Bills introduced into Parliament included the Constitution Seventeenth Amendment Bill (Municipal Functions), the
Protection of Personal Information Bill, the Protection from Harassment Bill, and the Prevention and Combating of Trafficking in Persons Bill.

Bills that were on the Department’s legislative programme for the year under review were the Recognition of Muslim Marriages Bill, the Legal Practice Bill, the Judicial Matters Amendment Bill, the State Liability Bill, the Prevention and Combating of Hate Speech, Racial Discrimination, Xenophobia and Related Intolerance Bill, and the South African Human Rights Commission Amendment Bill. (Slide 15).

Under the heading of developing and promoting the Constitution, Ms Nsomi said that the Department continued with promotion of the guarantees in the Constitution through legislation such as Promotion of Access to Information Act 2000 (PAIA), the Promotion of Administrative Justice Act 2000 (PAJA) and Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA).

In the period under review the Department designated all Magistrates Courts as Equality Courts and had seen an increase in the number of cases enrolled at these Courts. Cases increased from 447 in 2008/09 to 508 in 2009/10.

The training material for the Promotion of Administrative Justice Act (PAJA) Act 2000 was completed during the period under review

The Department also increased its programmes aimed at educating the public on justice and constitutional matters and strengthening participatory democracy (in partnership with the European Union (EU) and the Foundation for Human Rights) by providing support to civil society to protect and promote a human rights culture.

In the period under review, 166 schools were visited. Approximately 43 000 people had been reached so far in terms of promoting awareness of constitutional rights. Additional Funds were received from the EU in January 2010 to support our constitutional development. (Slide 16).

The Department ran radio shows to educate the public about justice and constitutional matters (Slide 17) as part of its public education and communication project. Justice on the Airwaves and Law on Call were produced as a result of the partnership between the Department and the South African Broadcasting Corporation (SABC) to educate the public about the values contained in the Constitution and the process of accessing justice services.

The Department sought to improve access to the services of the Master. There were 14 Masters Offices in the High Courts. All Magistrate Courts were designated as service points for Master’s Services. To improve access to the Guardian’s Fund, the Department was integrating the Guardian Funds system with the ICMS system, which would lead to Guardian Funds services being delivered in 480 magistrate’s courts.

Challenges were identified. The appointment of Assistant Masters in magistrate courts was delayed by lack of funds. The accommodation (office space and infrastructure) was a challenge in certain courts. (Slide 18).

The growth in beneficiary receipts and payments to the Guardian’s Fund was indicated (slide 19).

With regard to supervising the administration of deceased and insolvent estates, in the period under review the Department experienced an increase of 10% of estate matters received (130 635 new matters of which 88 551 were files on estates of less than R125 000). Of the 88 551 estates, 92% were finalised. (Slide 20).

As regards providing legal advice service and protection of all organs of state, the Department expanded the establishment of the State Attorney by 209 posts (unfortunately not all filled due to lack of funds) and appointed 24 advocates to deal with 648 High Court matters. The Department won 14% of the cases, lost 6%, and settled 18% out of court. 7% were awaiting judgement and 55% judgements were postponed, mainly because there were not enough judges, particularly in North and South Gauteng and because of the level of complexity of the cases. The Department saw an improvement of the provision of advice and certification of international agreements and legislation. 294 requests for certification of international agreements were received and 285 were finalised. 187 requests for the certification of bills and regulations were received and 155 were finalised. (Slide 21).

Towards transforming the legal system, the State Legal Services issued 5 804 briefs to Black practitioners to the value of R261.941 million (74% of the total).

Other legislative instruments that would support transformation within the legal system were the Legal Practice Bill, the Superior Courts Bill, and the Constitutional Amendment Bill. (Slide 22).

Ms Msomi said that the Minister and the Department played a leading role in the Justice Crime Prevention and Security (JCPS) Cluster and the coordination of activities to ensure that all people in South Africa were and felt safe. The mandate of the Department relating to the upholding of the protection of the Constitution and the Rule of Law was continued through collaboration within the Cluster. Part and parcel of the activities in this regard was the continuation of the implementation of the Seven Point Plan following the finalisation of the CJS Review research and investigations and the development of the JCPS Delivery Agreement dealing with the Government’s Cluster priorities and outcomes. Through the Criminal Justice System (CJS) the Department adopted an integrated approach to ensure that the CJS was a holistic continuum that stretched from where a crime was committed to the police, to the prosecutors, to the courts, to Social Development and Correctional Services, and to restoration and integration back into the communities. (Slide 23).

In terms of the implementation of the Seven Point Plan various protocols were developed and implemented to enhance the integration and effectiveness of the CJS, screening mechanisms and the trial readiness of cases, as well as a protocol on the taking and processing of forensic samples, and the Court Protocol on Legal Aid Cases, improving coordination between the South African Police Service (SAPS), the National Prosecuting Authority (NPA), Legal Aid South Africa, the Department of Correctional Services (DCS), the Department of Justice and Constitutional Development (DoJ&CD) and the Judiciary, as well as Departments such as Health, Social Development, Home Affairs and Education.

The video postponement system that was developed between courts and correctional facilities was now available in 45 courts.

An Inter-sectoral Management of Remand Detainees Task Team, at deputy director-general level, was appointed to fast-track initiatives regarding improving the awaiting trial detainee situation.

Various standard operating procedures (SOPs), manuals and policies were developed, for example, case flow management.

Bail management was strengthened and information technology (IT) systems used to provide an integrated management information system to the cluster departments and the Justice Crime Prevention and Security (JCPS) Cluster overall. (Slide 24).

Significant progress was made in ensuring the entrenchment of the independence of the judiciary and the rule of law and substantial work was done relating to the Constitution Amendment Bill and the Superior Courts Bill.

The Office of the Chief Justice was strengthened as a precursor in the transition to the establishment of a separate Court Administration for the Judiciary.

A number of staff were deployed to the Office of the Chief Justice to assist with the strengthening that and to deal with research and the development of proposals and action plans.

Principles to underpin policy in the above were developed. (Slide 25).

Under the heading of the extension of civil jurisdiction, the terms of reference for the Civil Justice System Review were developed and the preparation for the extension of Civil Jurisdiction to the Regional Courts received attention.

The Jurisdiction of Regional Courts Amendment Act made it possible for Regional Courts to hear divorce matters. Implementation Plans required capacitating of Regional Court staff to handle these cases; training; and accommodation for the additional staff. (Slide 26).

Financial report
Ms Msomi presented key observations for the 2009/10 financial year. The Department received substantially less funding than was requested to deal with all its increased responsibilities, including the implementation of legislation.

There was improved departmental spending – expenditure increased from 99.4% in 2008/09 to 99.8% in 2009/10.

Under-spending decreased by R28 million from R41.4 million in 2008/09 to R13 million in 2009/10.

Spending on compensation of employees was at 99.5 % of parliamentary approved budget whilst absorbing carry through costs of Occupation Specific Dispensation (OSD) expenditure within baseline through re-prioritisation and cost curtailment.

Goods and services spending was 100%.

There was a re-prioritisation to fund Guarding Services and Capital Works. (Slide 28).

Ms Sandra Gomm, Chief Financial Officer (CFO), Department of Justice and Constitutional Development, gave a summary of expenditure as against final budget was given for the period 2007/08 to 2009/10 (slide 29), before giving a report on voted funds in which Departmental expenditure was detailed by Programme (slide 30). Afterwards she reported on expenditure per economic classification (slide 31); and Departmental revenue (slide 32); transfer payments to these institutions - the South African Human Rights Commission, the Commission on Gender Equality, the Special Investigating Unit, the Legal Aid Board, the Public Protector, the Represented Political Parties' Fund, the Education, Training and Development Practices Sector Education and Training Authority (SETA), and the President's Fund (slide 33).

Ms Gomm then described audit outcomes. Audit qualifications for the past 10 years were indicated (slide 36).
Since 2005/06 the Department had consistently received a qualified audit report from the Auditor-General. Third Party Funds was a basis for qualification for the fifth year running. A new basis for qualification in the 2009/10 financial year was irregular expenditure in respect of non-compliance with the Preferential Procurement Policy Framework Act (PPPFA). (Slide 36).

A summary of vote audit opinions from 2000/01 to 2009/10 was given by way of a graph (slide 37).

Ms Gomm then highlighted achievements in the Department's Strategic Turnaround Plan, which targeted key failure points in governance, people management, methods and practices as well as addressing the impact on changes in the wider operating environment.

On a detailed level, specific action plans were drawn up to address perennial hotspots such as Supply Chain Management, Asset Management and Management of Third Party Funds.

As a result, four out of the previous five audit qualifications (2008/09) were resolved through the following initiatives: the Asset Turnaround Project, the Leases Project, leave management initiatives, and the training of financial staff in regions and branches. (Slide 38).

The Asset Turnaround Project was illustrated by means of a route map towards an unqualified audit opinion in respect of assets over the financial years 2006/07 to 2009/10 (slide 39).

Ms Gomm explained the sustainability of previous initiatives. During the 2009/10 financial year the Department embarked on the following projects to eliminate previous financial audit qualifications as well as other critical areas of concern highlighted by the Auditor General: the Asset Turnaround Project (Multi-year initiative), the Leases Project (one year project); and Training to Branches and Regions with regards to the submission of accurate and reliable information for the compilation of Financial Statements (one year initiative).

As a result of the aforementioned initiatives these issues were resolved; however sustainability thereof was a challenge due to the following: high staff turnover (CFO vacancies – 29%); lack of competencies and skills; insufficient financial management capabilities; financial constraints; and the possible suspension of funding by the National Treasury for Third Party Fund Public Private Partnerships (PPP). (Slide 40).

The vote account qualifications in respect of Third Party Funds (TPF) were described: the qualifications pertained to Departmental revenue, contingent liability disclosure note, and receivables for Departmental revenue disclosure note.

The previous audit qualification referred to the impact of the financial administration of the Third Party Fund (TPF) on the Vote Account; the awarding of a tender for a service provider to produce reliable, accurate and complete audited financial statements (AFS) from 2007/08 – 2010/11 (subject to availability of funding from National Treasury) - a tender evaluation was in the final stages; the establishment of TPF as a Trading Entity in order to resolve the lack of a legal framework for separate reporting (in progress); the Public Private Partnership (PPP) (In progress); Electronic Maintenance Payments (centrally); and the Piloting Decentralisation of the Electronic Maintenance Payments to improve turnaround times. (Slide 41).

Ms Gomm said that the qualification on irregular expenditure – the new audit qualification - related to payments made in contravention with the Preferential Procurement Policy Framework Act (PPPFA) 2000 (Act No. 5 of 2000): the Department had applied the Broad-based Black Economic Empowerment (BBBEE) Code of Good Practice instead of the PPPFA regulations. These contracts were entered into in the period 1 July 2005 to 31 December 2009 and with regards to quotations 2005 to date. The audit qualification related to the fact that the amount of irregular expenditure from 2005 could not be determined by the time of finalising the Audit Report.

Due process in quantifying the full extent of this non-compliance was under way after which the National Treasury would be approached in accordance with the Treasury Guidelines.

The Department was resolving the non-compliance through training initiatives. (Slide 43).

Ms Gomm described key initiatives to achieve no audit qualifications (NAQ). Firstly, the Department was one of 10 Departments included in the National Treasury’s Strategic Support Plan.

In the National Office of the CFO there was formulating and guiding, and consolidating and monitoring of the 
implementation of the Turnaround Initiatives (Monthly Financial Management Monitoring Matrix). The template was derived from the Financial Management Maturity Survey conducted by the National Treasury.

With regard to the basics of good financial management, the first survey was conducted in 2008, and the second in 2010. There was a monthly report back on action plans to address deficiencies.

The toot cause analysis done 2009 included Standing Committee on Public Accounts (SCOPA) resolutions - progress included; the Auditor-General's (AG) management letter - findings included; the AG Key Controls Reviews – included; compliance monitoring – included; and Key Disclosure notes – included. (slide 44).

The National Treasury’s Strategic Support Plan was a further key initiative to achieve NAQ. The objectives were to enhance financial maturity in general; improve audit outcomes of the Department; and ease financial control in general.

Focus areas of the Strategic Support Plan were asset management (sustainability of 2009/10 initiative); Third Party Funds; finance leases (sustainability of 2009/10 initiative); goods and services; compensation of employees; transfer of payments; performance Information; internal audit; and risk management (Slide 45).

The Monthly Financial Management Monitoring Matrix (MFMMM) replaced Audit Action Plans. Components included supply chain management (SCM)/ asset management; expenditure management; liability management; revenue management; human resources / compensation of employees; and transfer payments. Other focus areas included performance Information. In the regions and branches there was to be monthly MFMMM reporting for consolidation by National Office of the Chief Financial Officer (NO CFO) champions. A Project Manager was appointed in the Office of the Director-General for overall monitoring of Turnaround Initiatives. (Slide 46).

Further key initiatives to achieve NAQ included Interim Capacity Support; CFO Training and Capacity Building Initiatives - training initiatives included Cash Hall Training ( Vote, TPF & SCM), SCM (Preferential Procurement Policy Framework ), Finances for Court/Office Managers (Budgets, Internal Controls, SCM, Payments, Receipts legislation and policies).

Another key initiative was the distribution of audio visual aids to All Area Court Managers, FOMS and Regional Functionaries. (Leases – Procedure & Payment Presentation, BAS – Financial transaction capturing and report request, and Cash Hall Procedures – Payments, Receipts, Petty Cash, Pay as You Earn (PAYE) and Agency Services). (Slide 47).

Action steps pertaining to fraud and corruption
Ms Nsomi explained the results of the forensic audit investigations for 2009/10. In the 2009/10 financial year the Department received 149 cases of which 86 cases were received during November 2009 from the Office of the Public Service Commission. Of the 86 cases received: 31 cases were finalized; and 13 were referred to SAPS for criminal investigation. All cases referred to the SAPS were work in progress.

During the same period 15 cases from different financial years were referred to the Legal Section for Civil Recovery.

During the same period 14 cases were referred to the responsible managers in the Department for further action. However, the cases referred to the responsible managers for further action covers different financial years. The line managers took further action by instituting the necessary sanctions in dealing with recommendations made by the Forensic Audit Unit.

The cases referred for disciplinary proceedings involved 28 officials. The status of the disciplinary proceedings was as follows: 10 officials received written warnings; three officials were dismissed; three officials were arrested for fraud and corruption; one official was not found guilty; one official's matter was still pending before the Labour Court; three officials resigned as a result of investigations; and seven disciplinary proceedings were still work in progress. (slide 48).

The 30 other misconduct cases referred to in Table 23 included charges such as nepotism, political activities during working hours, conspiracy to commit theft, refusing to carry out instructions, bringing the Department into disrepute, unauthorised expenditure and loss of an estate file. A total of 45% (79) of the misconduct cases involved action taken against officials in breach of regulations relating to the management of state assets. (Slide 49).

Preventative measures for fraud and corruption were explained.

The current Fraud Prevention Plan was reviewed and the Whistle blowing Policy was separated to focus more on implementing the Protected Disclosures Act and reporting to the SAPS in terms of the Prevention and Combating of Corrupt Activities.

The Department was actively involved in the anti-corruption structures of the Government. These included the Anti-Corruption Coordinating Committee (ACCC), the Governance and Administration Working Group on implementing the anti-corruption action plan of the public service to address initiatives identified by Government, and the National Anti-Corruption Forum (NACF).

The successes up to date in the public service forum in which the Department was participating included the development of an Anti-Corruption Programme Course for anti-corruption practitioners in the public service. The course was accredited at National Qualifications Framework (NQF) level 4 and was intended to assist officials within the departments to implement measures to prevent, detect and monitor corruption-related behaviour as well as reporting.

NACF was initiating the participation of the private sector, public sector and civil society in collaborating on combating corruption in society. The Department is participating through the Deputy Minister of Justice and Constitutional Development and officials in the Risk Management Chief Directorate. A task team to ensure proper implementation of resolutions of the NACF was tasked to formulate a concept document that would be adopted in due course. (Slide 50).
 
A three day workshop for all officials covered anti-corruption and internal controls. These included

creating an ethical organizational culture that was consistent with the values and principles that were embedded in the Department's Strategic Plan (Medium Term Strategic Framework (MTSF)); the legal definition of corruption and the understanding or corruption to interpret ethical behaviour that might amount to corruption or fraud; the legal obligation of reporting the criminal offence of corruption by managers to the police station in compliance with the Prevention and Combating of Corrupt Activities Act 2004; the management of ethics that included the keeping and maintaining of a gift register for the offices, compliance with the Departmental Financial Instruction (DFI) on management of gifts (chapter 20 of DFI), compliance with the Code of Conduct of the Department, focus on service delivery in terms of developing service standards, and educating and encouraging officials on ethical conduct when assisting members of the public who were accessing centres.

Other activities to combat fraud and corruption were discussed under the Audit Turnaround Plan. (Slide 51).

Ms Msomi said that the Department's risk management team was small. There were a number of training courses (slide 50). The Department might wish to brief the Committee further on these. She referred to the Ethics policy (slide 51).

Ms Msomi said that officials could contact her on an internal “Tattle Line”.

Medium-term estimates
Mr Johan Johnson, Chief Director, Budgets, Department of Justice and Constitutional Development, indicated year on year growth 2009/10 to 2012/13 (slide 53) and the effects of reduced budget allocations in response to the Minister of Finance's call to do more with less (slide 54).

Mr Johnson indicated budget allocations per programme: the 2009/10 revised estimates; and the 2010/11 to 2012/13 medium-term estimates (slide 55).

Budget allocations per economic classification were indicated (slide 56).

Medium-term spending pressures included additional accommodation, specifically capital investment in new court infrastructure and additional office accommodation. Another pressure was the personnel establishment expansion. The Department was currently funding new courts with no concurrent additional allocations for personnel and operational expenditure. Also for regional capacitation, additional personnel were needed for regions, including court personnel (interpreters, finance and supply chain management personnel). Also the expansion of the personnel establishment included internship, learning and development and recruitment. Further pressures were technical personnel adjustments, compensation of employees – OSD for legally qualified personnel, and IT requirements. IT was needed to improve business productivity. Additional investment was needed in IT infrastructure – hardware renewal, network infrastructure, data security and expansion of roll out of IT and information systems, maintenance, licensing, hardware renewal and backup. (Slide 57).

Further medium-term spending pressures included the implementation cost of new and proposed legislation: the Civil Jurisdiction of Regional Courts; the Child Justice and Children's Act; the Traditional Courts Bill; the
Superior Courts Bill; and the High Courts for Mpumalanga and Limpopo.

Other spending pressures were security and risk management, including securing 127 justice service delivery points with integrated security infrastructure; enhancing security of personnel, Departmental records and state assets; and cash in transit, guarding services and security.

Also there was the Review of the Criminal Justice System and the implementation cost of recommendations after Cabinet and Parliamentary endorsement and approval.

Moreover the Department aimed at increased proximity of courts services to all, especially in townships and rural areas, replacing 46 of 230 branch courts to ensure that they provide full court services by 2010/11, and introducing multilingualism in courts. (Slide 58).

Other medium-term spending pressures were: filing - document and record management; enhancement of constitutional development programmes; developing and implementing the Departments oversight mandate and functions; enhancing communication services; language services at court; library services in various provinces; start-up and implementation cost of the newly proposed Court Services Agency; enhancing training and development capacity – Justice College, Judicial Education Institute and Human Resource
Civil Justice Review; and transformation of the judiciary in relation to the establishment of the Court Administration Agency. (Slide 59).

Conclusion
Ms Msomi noted challenges. South Africa and its justice system had to contend with the fact that our society still comprised many poor people. Many of these were living in townships and rural areas and were often trapped in prolonged periods of unemployment. This led to the people being more exposed to human rights abuses and high levels of crime. It also impacted on the victims. As in many developing democracies, resource allocation was complex and difficult to balance; however the Department’s budget of R7.4 billion still rated as one of the smallest in the share of the national vote. This meant that the Department did not have sufficient resources to fulfil all its functions and effectively implement all its strategic objectives. This had a negative impact on the expansion of justice services, the capacitating of the organisation, training of its employees, maintenance of its capital infrastructure, modernisation of its information technology and its delivery of justice services to the public.

Race and gender transformation of the Bench remained an important constitutional imperative. While the Judicial Service Commission continued to play an important role in establishing a judiciary which was representative of the South African society, and had now for the first time since its establishment in 1994 recommended the appointment of the first woman to the office of the Judge-President, this still remained a focus area. (Slide 60).

Ms Msomi noted that the Department had appealed to the National Treasury for more money for the High Court, that there was a finance committee in the Department whose members did not sleep, that there was a huge demand on the Department for services, and that the Department was challenged as to gender.

Discussion
The Acting Chairperson questioned the Department about PPPs.

Mr L Landers (ANC) also asked about these public-private partnerships.

Ms D Schafer (DA) asked about third party funding.

The Acting Chairperson said that Members had not been kept property in the picture about PPPs. He referred to the previous meeting of the Committee. He asked the Department to return and explain to the Committee, in the presence of the National Treasury. The Committee needed a clear picture.

Ms Msomi thanked the Committee for giving the Department some space and time to prepare.

The Acting Chairperson asked if Ms Gomm was confident that the Department could avoid a repeat of the new audit qualification.

Ms Gomm replied that she was confident.

The Acting Chairperson asked about vacancies in the Office of the Chief Financial Officer and why there were so many vacancies and such a high turnover. He asked what the Department was doing about it. He suggested that perhaps the Department could make the work of the employees more congenial.

Ms Gomm replied that 90% of the vacancies had been occasioned by transfers to other departments. It was a serious concern. She was confident that the Department could deal with the problem with the support of the National Treasury.

Ms Msomi said that certain things had to be held back. Just filling vacancies was something of a crisis. She noted that the Department relied heavily on external support. The Department took full responsibility for that decision. She wanted to focus on the basic expansion of capacity.

Ms Msomi referred to The Sowetan, 23-24 June 2010, which had alleged that the Department was “the most corrupt department”. This was not correct. What The Sowetan had missed was what the Department had done. 31 cases had been finalised. When the Department returned to the Committee, it would highlight these areas.

Mr Landers asked for information on this subject to be included in the Department's report to the Committee.

Mr J Sibanyoni (ANC) commended Ms Msomi on her mode of presenting her report, in particular, her provision of page references.

Mr Sibanyoni commended the Department on aligning the magisterial districts with the municipal districts. This was of considerable benefit, especially since the disbanding of cross-border municipalities. He gave examples.

Mr Sibanyoni commended the Department on the Small Claims Courts. These were of especial benefit to constituents.

Mr Sibanyoni was pleased that the Department was using community radio stations for public awareness, but he asked what criteria the Department used to select radio stations. Did the stations tender?

Mr Sibanyoni asked about the Master of the High Court. He had visited the Master of the High Court in Pretoria on several occasions, specifically after a will was declared invalid. There was no response from the Office of the Master to Mr Sibanyoni's enquiry, after the Master had made a report that there was no opposition to the matter; the Master would abide by the decision of the Court. The judge, however, pointed out a minor error in the date, and asked this to be corrected. The supplementary affidavit was never forthcoming. In the end, the judge overlooked the minor error. However, Mr Sibanyoni's point was that something needed to be done to improve efficiency in the Office of the Master.

Ms D Schafer (DA) asked for clarity on the figures for applications for maintenance (Annual Report, page 20). However, there was a discrepancy with figures given for new applications (page 83). Why were figures for outstanding cases so high?

The Acting Chairperson observed, from his constituency experience, was that maintenance was a matter that was not going well. He asked if fathers with money were using the courts to delay maintenance. He said that there should be better coordination. Magistrates were granting adjournments when they should not have granted them. There were maintenance officers in the Department, and maintenance prosecutors in the National Prosecuting Authority. Both groups were trained lawyers. There should be better coordination. The decisions that the magistrates were taking were not particularly helpful.

The Acting Chairperson asked when there would be a legislative amendment to allow maintenance to be paid directly from the father to the mother without having to go through the court.

Ms Schafer referred to a maintenance case that had been postponed 20 times.

The Acting Chairperson asked the Department to return with a proper maintenance plan.

Ms Schafer asked what the Department was doing about sexual offences (page 92). The number of outstanding sexual offence cases had increased since 2006 by over 4000%. It was good that children were being removed from the prisons, but the fact remained that the number of outstanding cases had increased so dramatically in both categories. Why was this and what was the Department doing about it?

Ms Schafer said that many cases had been diverted (Annual Report, page 81). There was a discrepancy in the figures. She did not understand how the Department worked out its percentages.

Ms Schafer asked about tenders being awarded to companies which failed to perform. Why were these companies appointed in the first place? What was being done to ensure that this did not happen again?

Ms Schafer asked why so few women – attorneys and advocates – were being briefed by the Department. Was the Department not getting enough applications?

Mr L Landers (ANC) pointed out that the Public Protector was appointed by Parliament.

Mr Landers said that it was necessary to establish a norm so that all concerned could agree on the amount of work to be accomplished in the courts.

Mr Landers congratulated all concerned in the Department on its work during the FIFA World Cup 2010.

Mr Landers asked about the fifth audit qualification. What had happened to it? (Slide 38). Was the Department silent on it?

Mr Landers noted that Members had been asked to make oversight visits to courts. He raised this in relation to the Child Justice Act.

Mr Landers asked about social workers who conducted assessments, and whose work accommodation was inadequate. He gave the example of three social workers who had to interview children in a corridor. Was this a Justice or a Public Works matter, and should he put it in writing?

The Acting Chairperson asked for the first quarterly report from the Department, and said that this matter should be covered in that report. The matter was technically not part of the financial year under review. The Child Justice Act had come into law on 01 April 2010.

Mr Landers asked if the Department owned any municipality any money for rates and services, or for anything else. If so, how much, and which municipalities? He said that huge sums of money were involved.

The Acting Chairperson complained that the Department had not provided accurate figures on vacancies that Members could understand, and was using money allocated for filling vacancies for other purposes. The Department had included in its figures the appointment of the Public Protector, which was not one of the Department’s vacancies. The Department had included judges and magistrates, which the Department was not responsible for filling – these positions were the responsibility of the Magistrates Commission and the Judicial Services Commission.

The Acting Chairperson was worried about the Department’s key performance indicator (KPI) which was to reduce the vacancy rate by half. This was “a weird KPI”. He would have thought that the KPI should have been to fill all the vacant posts. He asserted that the Department was using money for these vacancies to subsidise other programmes. So while there was an apparent improvement in spending, there were virements where the Department was taking money that should have been used for salaries in the vacancies. Perhaps the Department lacked interest in filling all the vacancies. It was a problem, as with the Chief Financial Officer's Office, which was at 66% capacity. It was not surprising that this Office produced only two thirds of the desired results.

Linked to the above was the issue of disciplinary cases. These were growing. There were more coming in than going out. (Page 39). The Acting Chairperson said that it could not be good for the organisational culture for people to have to wait years for their disciplinary cases to be heard. The same applied to grievances. It was important to be aware that in a disciplinary case it was a matter of the balance of probabilities, unlike in a criminal case where proof beyond all reasonable doubt was required. So it was much easier to conclude a disciplinary case. Why were half the disciplinary cases lost? Why were those cases brought in the first place?

It seemed to the Acting Chairperson that the Department’s Human Resources section was faced by a number of challenges, which, if they were addressed, would assist the Department overall. The first was to fill the vacancies. The second was to deal expeditiously with disciplinary cases. It would seem from the figures that people were being charged with disciplinary matters when they should not be.
 
Ms Schafer referred to the Annual Report, page 301. She struggled to understand what the vacancy rates in the senior management service (SMS) really were.

Ms Msomi acknowledged the Committee’s request for the Department’s plan for maintenance.
 
Adv Pieter du Rand, Acting Deputy Director-General, Court Services, Department of Justice and Constitutional Development, explained, with reference to the Small Claims Court, what the Department did when it launched a new court. An official launch involved all relevant role players, including the Deputy Minister. He would endeavour to ensure that all concerned were informed well in advance.

Adv Du Rand, with regard to sexual offences, noted that these had increased. In general, if one examined statistics, it could be seen that the police had done more to deal with those cases. The Sexual Offences Act aimed at better coordination. There was a greater focus in dealing with sexual offences. As a result, there were more cases. There were not enough courts specifically for sexual offences. In fact, the numbers of such courts had decreased, since the Judiciary was not keen just to have specialist courts. There was a fear that victims would not obtain equality of treatment from specialist courts. The Department sought to increase the resources, including video equipment and proper training, available to the courts dealing with sexual offences.

Adv Du Rand explained how the percentages regarding the diversion of cases were derived (page 81). The Department would reply in more detail subsequently.


Adv Lester Basson, Acting Chief Master of the High Court of South Africa, Department of Justice and Constitutional Development, apologised for the lower than standard service. It was wrong that a Master’s report had been issued with a mistake, and thereafter the Master’s Office had been reluctant to correct the mistake. He appreciated this kind of feedback, and said that the Department hoped to learn from its mistakes.

The Department said that there was a lower number of women studying law than men. The Department would check the statistics. There was some amusement among the Members and delegates at this point. The Department said also that the number of women law graduates who entered the profession was somewhat low, which had impacts on gender representation. There were only two female practitioners at the Northern Cape Bar. There was a big challenge with regards to such bars. The Department had attempted to draw female practitioners from other areas, although this had cost implications. However, if one compared the first quarter with the fourth, there had been a slight increase in the number of females obtaining briefs. On the other hand, according to the Johannesburg Bar Council, there had been an exodus of women from the profession. In January 2010, from the Johannesburg Bar alone, 16 women left the profession. It would take the Department a considerable time to increase the representation of women.

Ms Schafer alleged that the Department was not serious enough in its efforts to ensure that women lawyers were given more work.

Dr Khotso De Wee, Chief Operations Officer, Department of Justice and Constitutional Development, said that when the Department had presented its first quarter report, it had said that 581 vacant posts were advertised; by the end of September, 290 appointments were expected. It would provide a second quarterly report in due course. The Department was experiencing certain challenges as regards appointments. As Ms Msomi and Ms Gomm had reported, the Department had serious budget constraints. It had challenges as to accommodation for new appointees. New buildings were had to obtain. Also acquiring the supporting equipment, like computers, was a challenge in the current financial situation. Notwithstanding the comments about the Office of the Chief Financial Officer, the Department faced a serious challenge as to vacancy rates.

Dr De Wee acknowledged that the Department was not making as much progress as it should with regard to disciplinary cases. He noted a need to increase capacity to preside over such cases. He hoped to report an improvement by the time the Department presented its second quarterly report.

Adv Deon Rudman, Deputy Director-General, Legislative Development, Department of Justice and Constitutional Development, said that there was nothing in the Act that prohibited the direct payment of maintenance money to the recipient. In most of these cases one was talking about women, who preferred that the money be paid into the court, since there was a perception that there was thereby much more weight attached to the order.

The Department had now finalised the Judicial Matters Amendment Bill 2010. It included a number of amendments to the Maintenance Act 1998 (Act No. 99 of 1998). The Department would try to accommodate the Committee’s views.

Adv Rudman added to Dr De Wee's remarks. He said that he was chairperson of the Department's human resources sub-committee, which had asked the human resources section to report on vacancies in the Department in general, but with particular reference to human resources together with a plan on how to deal with them. In due course the Department would report back to the Committee.

Ms Tshilidzi Ramanyimi, Chief Director, Facilities Management, Department of Justice and Constitutional Development, spoke about terminating contracts of service providers who did not perform adequately. The Department rarely became involved directly in the management of buildings, since this was supposed to be done by the Department of Public Works.

Ms Ramanyimi, could not, because of the problems that the Department was experiencing with the Department of Public Works, say whether the Department owed money to a certain municipality. Public Works had been given a period of two years grace, in which it was supposed to verify its asset register, in terms of who was using and occupying each building. The Department had been paying Public Works; thereafter Public Works would pay the municipality.

Ms Ramanyimi admitted, however, that in the last financial year, the Department could not pay Public Works “the recovery monies” that Public Works used to pay to the municipality. Otherwise, the Department did not owe money to Public Works, so it assumed that Public Works had paid the municipality. It was not possible for the Department to take over any system from Public Works until that Department had “cleaned up” its assets register.

Ms Ramanyimi added that it had “not paid them” for the last invoice “that they gave us” because of the financial constraints.” “We did not have the money.”

Ms Gomm clarified on the four out of five previous audit qualifications that were resolved. As to 2008/09, items 2 to 5 were resolved, and were not repeated in 2009/10. The Third Party Funds qualification was a remaining item from previous years. The irregular expenditure qualification related to non-compliance with the Preferential Procurement Policy Framework Act 2000 (No. 5 of 2000).

Ms Schafer asked about the implications of non-compliance with the Preferential Procurement Policy Framework Act 2000 (PPPFA).

Ms Gomm said that when the former chief financial officer had implemented his transformation programme, part of that process was to develop the Department’s own procurement system. In so doing, the Department had various interactions with National Treasury. The Broad-based Black (BBB) scorecard was tabled for implementation in the near future. That scorecard was built into the procurement system. The BBB scorecard was definitely more beneficial, more measurable, and more quantifiable.

Ms Schafer asked if it was just a matter of different criteria.

Ms Gomm said that the BBE scorecard was much the better approach.

Ms Msomi responded on the co-ordination of prosecutors and the Department’s own internal lawyers. The Department was working to improve this area, with particular regard to maintenance. The Department would return to deal with this issue more specifically. It would be one of those areas in which the Department extended where it worked at a cluster level.

Ms Msomi said that the same applied to the working of the Child Justice Act 2008 (No. 75 of 2008).

Ms Msomi welcomed Members’ visits to courts.

Ms Msomi acknowledged that some cases had been struck from the rolls because certain functions had been left undone by other departments. It was one of those processes in which the Department was learning to integrate better. It remained work in progress.

Ms Msomi said that the criteria used for radio stations included the language mix and the total number of listeners. The criteria would be revised to ensure that the Department chose stations that had a better reach at the local level.

Ms Msomi acknowledged the need for intervention as to court working hours. One of the reasons why the Department wanted control of courts to be given to the Judiciary was precisely this. The Judiciary knew best when courts were active or inactive. At present the Presiding Officer did not have total control of how the court operated: it depended on the lawyers, on the Prosecutor, and others. The transformation process was intended to ensure that the Chief Justice should be able to state what was needed from the courts in terms of working hours, standards, and document delivery.

Ms Msomi said that the Department was also working on amending the rules of the courts to assist the Department to identify issues of time. Some of these issues were historic, and thus the Department was working with a legacy.

Ms Schafer said that Members still did not know how many applications had been received for maintenance.

Adv Du Rand said that the Department would respond in detail subsequently, when it returned to the Committee with the plan for maintenance.

The Acting Chairperson observed that any judge or magistrate who sentenced a defaulting maintenance payer to imprisonment was obviously defeating the aim of the sentence. He suggested “more creative” forms of punishment, such as imprisonment over the weekend while going to work Monday to Friday.

The Acting Chairperson said that judicial officers were granting postponements when they should not, and required more training.

The Acting Chairperson asked the Department to return with more information on the vacancy situation in the human resources section. It was clear from the Annual Report that members of the Department did not see the problem from the same perspective. There was a need for an audit of vacant positions, and an assessment of where appointees would be accommodated. There was no point in employing someone if he or she would have to sit on a chair in the corridor.

The meeting was adjourned for lunch.





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