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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 March 2002
DEPARTMENT OF JUSTICE PROGRESS REPORT; INPUT TO EU DELEGATION
Documents handed out:
Progress Report: IJS Court Centre Project
Report on appointment of Maintenance Investigators (see Appendix 1)
Letter to Commissioner of Correctional Services (see Appendix 2)
Short summary of inputs regarding maintenance officers
Business Unit: Court Services Report to Portfolio Committee [awaited]
Court Services Progress Report (Feb 2002)
Department of Justice Salary Report: Legal Personnel 1994-2001
Letter from the delegation of the European Commission in South Africa
Chairperson: Adv J H De Lange (ANC)
The Court Services of Department of Justice gave a progress report on problematic matters discussed in November 2001 : Court Services Report, Court Centre Project, Report on appointment of Maintenance Investigators, Salary Report. The Committee was pleased with the inputs that, in particular, showed that the Department was beginning to take control of court services. The Chair congratulated the Department on this tremendous work but insisted that the Department must not hesitate to take employers to court who refused to comply with garnishee orders.
The Committee provided input to the European Commission delegation from the European Union on challenged areas in the justice sector and potential areas needing funding from the EU.
Teams for Committee visits to Northern Cape, Mpumalanga, North West Province and Free State during April are being drawn up.
Court System: Progress Report
The Chair welcomed Mr S Jiyani, Manager of the Business Unit: Court Services in the Department of Justice. He noted the presence of the Director General and said that his presence was greatly welcomed. Mr Jiyani had been invited to update the Committee on three issues: the Court Centre Project, Salaries and Maintenance.
Mr Jiyani stated that he would make his presentation brief, under the assumption that the Committee had already gone through the relevant documentation. He listed the matters that he would deal with: -
The composition of the courts
The breakdown of security particulars
The demarcation project
The Integration Justice Systems (IJS) centres
The under-utilised court buildings
The maintenance report, with particular reference to the Umtata area
The composition of the courts
Mr Jiyani explained that following the advice of the Committee, the courts had been classified according to stipulated criteria into three categories: good, satisfactory and unsatisfactory courts. There was also a summary of province-by-province performance, with the Northern Cape greatly under-performing. The Eastern Cape and Kwa-Zulu Natal courts also had much work to do. There was also a breakdown of provinces, court by court, with relation to their performance. As a result, a project had been undertaken to address the shortcomings in 52 courts, in the name of the Performance Review Committee.
Integrated Justice System (IJS) Court Centre Project
The Department had conducted a study in order to establish areas in the court environment where integration was poor. A number of blockages had been identified, showing a lack of co-ordination. Therefore, all the relevant players of the Criminal Justice System would be integrated in order to expedite the court process. They had also collapsed all sub-group projects into the IJS (such as the Awaiting Trial Project and the Children's Court). The aim of the IJS would be to reduce the court cycle time and thus ensure that all prisoners would be dealt with expeditiously.
Mr Jiyani pointed out that progress had been made to date. This included 19 projects countrywide and reports on each of the courts that had been attended to. He referred to the statistics of the case flow in the Middelburg district as an example. Although it had 268 projects in the beginning, these had risen to 347 by the end of the report. In addition, although 213 cases were disposed of, the number new cases had risen to 305. He said that this highlighted the great inflow of cases to court. He added that daily court hours had not improved significantly. He referred to the indicated average preparation time before cases could be scheduled for hearings, and said that the figure had been reduced from 75 days to 64 days. The slight improvement was better than no improvement. He noted that the adjudication cycle time currently sat at 57 days before trial.
The IJS process had a Police Liaison Office to deal with docket problems. He pointed out that more cases were currently ready to go to trial. The IJS was a good development in that it was establishing teamwork between the police and the courts in dealing with matters that would be heard in court. The IJS had been criticised for lacking co-ordination at the implementation stage. Part of the proposal to the Criminal Justice System cluster led to the formation of the Provincial IJS (management structures at the point of delivery).
Under-utilised court buildings
Past experience had shown that certain courts were not being optimally utilised such as the example of Protea. He said that the Department was trying to alleviate heavy workload by transferring cases to under-utilised courts. Johannesburg was a difficult area where the department was trying to decentralise services and it was currently looking for mechanisms to create space.
Mr Jiyani noted the concern by Mr Mzizi on the Alberton issue and explained that the Alberton office fell under city council jurisdiction. However, the department had arranged to establish other courts in order to assist the regional court as Alberton could not be expanded. He noted that he would be meeting the relevant chairperson on 8 March in order to discuss the matter.
In response to Adv deLange asking him to remind the chairperson not to forget his roots, Mr Jiyani agreed. He noted that they also wanted to create more courts in the townships.
He noted that this was a 'thorny issue', and that he would attempt to provide the Committee with a comprehensive report about the problems concerning the implementation of the entire Act (see Report on appointment of Maintenance Investigators for detail).
The appointment of Maintenance Investigators was currently being finalised by the Minister. He added that a number of other initiatives were being carried out. The Chief Financial Officer was also involved in the process, taking care of all financial issues.
Mr Jiyani explained that he had met with the National Director of Public Prosecutions (NDDP) regarding the problem of the withdrawal of prosecutors. Although, the NDDP was initially reluctant, he had since agreed to the proposals. The NDDP had initially agreed to provide 100 Maintenance Prosecutors (Maintenance Investigators) that had since been reduced due to budgetary constraints to 80 Maintenance Prosecutors and 10 Senior Maintenance Prosecutors. The idea behind the split would be to ensure supervision, especially in expediting matters. Administrative officers had been appointed in the past to carry out this task. However, this had led to many problems due to lack of skills. Prosecutors would be better able to deal with the enquiries. He noted that the posts had already been advertised.
Mr Jiyani said that the Department had addressed the problems with particular attention to Umtata. The Department had taken disciplinary actions against officials. In respect of garnishee orders, and the lack of co-operation that had been met with on the part of the employers, he stated that he had discussed the matter with the Premier. The Premier said that he was prepared to take steps to improve the process.
The Chair said such a response was unacceptable. Court orders required strict compliance. No room was provided to 'improve the process'. He directed the Department to go straight to court in situations where employers would not comply with the court order.
Mr Jiyani explained that they were trying to improve communications at the provincial level.
The Chair told Mr Jiyani that the Department would not have any problems with employers if it managed to secure a prosecution against an employer during March 2002. This would serve to show employers that garnishee orders are strictly enforceable.
In response to Mr Jiyani's reply that the Department would consider that option, the Chair stated that he wanted to see at least one prosecution by May 2002 when Court Services would return for a further progress report.
This project relating to the lower courts (Magistrates Offices) was almost complete. They were only waiting to solve problems in Gauteng and the North West provinces. Therefore, a final deadline had been set for the end of March. They were yet to finalise the KwaZulu Natal process as the Department was still debating the Eastern Cape proposal regarding location of nearest offices.
Due to time constraints, the Chair decided that the High Court report would be discussed later.
A committee member wanted clarity regarding the table in the document. She felt that the information was difficult to assess. Percentages did not clearly identify the baseline. She noted that success rates in terms of prosecutions were completely left out of the table. The Chair asked for an explanation and methods of improvement in this regard.
Mr Jiyani replied that the table would be subject to changes. He explained that once the Department had completed its model, it would respond to the problems raised.
In answer to the Chair asking if this process would be carried out for all courts, Mr Jiyani said that it would and the Department would attempt to perfect the system.
Mr Mzizi (IFP) was concerned with cases that sat on the court roll for less than 60days. He wanted to know which categories of cases were referred to. He added that reference to particular cases would be necessary in order to allow the Department to either punish the police or strike the case off the roll.
Mr Jiyani explained that the Department was currently faced with cases bearing even larger periods. It would therefore be working on the 60 day mark.
Mr Mzizi stated that the Maintenance Court in Alberton was facing serious problems. He reminded Mr Jiyani that he had suggested splitting the courts, as such methods would alleviate the problems.
Mr Jiyani explained that the Department would report-back on the issue, and that it would follow his advice.
Ms Mahlawe (ANC) referred to the Eastern Cape list and noted that all towns in the former Transkei were unsatisfactory. She asked what measures had been put in place to deal with this.
Mr Jiyani said that the Eastern Cape was one of the areas targeted by the Court Performance Committee that dealt with the under-utilised areas.
Mr Swart (ACDP) asked for the bottom line figures for outstanding cases.
The Chair said that the Department would have to bring those figures at a later stage.
Mr Swart (ACDP) asked for an indication as to whether outstanding cases were improving.
The Chair replied that the process had improved, despite more cases going to court.
Mr Swart (ACDP) stated that the Committee would all agree about the vulnerability of the maintenance issue. He commended the fact that 80 Maintenance Prosecutors would be appointed. He was also pleased to see that sheriffs would be carrying out the tracing in the interim. He asked for comment on the efficacy of that process.
The Chair exclaimed that he was absolutely infuriated by the fact that although the document before them was impressive, the Department was still in the process of defining its functions in order to determine whether it would be outsourcing. He thought that this had been taken care of and the only question was where to obtain the funds. He pointed out that the Maintenance Act had been passed in 1998. Nevertheless, the Department was to blame and he was venting his frustrations at the wrong person.
Mr Jiyani replied that the Department acknowledged this.
Mr Solomon (ANC) wanted clarification concerning the connection between the Chief Financial Officer and the Department in financial matters.
Mr Jiyani explained that the CFO was working with the Department in an attempt to jointly address all shortcomings.
The Chair reminded the Committee that they were told of wonderful plans at the November 2001 meeting. Now there is no money!
Mr Jiyani said that the servicing problems were the result of historical situations. Nevertheless, the Department was in the process of finalising its initiatives.
Mr Masutha (ANC) commended the Department on its maintenance efforts. He referred Mr Jiyani to the North West province where people had to travel great distances at great cost in an attempt to receive maintenance support. He wanted to know what would be done.
Mr Jiyani stated that he could not report much on the maintenance issues. He said that it would be suffice to say that he had noted the comments made.
Mr Masutha (ANC) stated that there were no toilets in some regional courts. People resorted to using plastic bags. He asked whether the Department was aware of such problems.
Mr Jiyani replied that the regional court would follow up on the matter.
The Chair stated that he felt that many of the matters would be difficult for the officials to follow up. He suggested writing to the Department about specific issues. He added that usage of the 'more formal' routes would probably be beneficial.
Ms Mahlawa (ANC) suggested directing the questions to the Minister.
The Chair said 'absolutely!'
Mr Delport (DP) was concerned that although magistrates had been appointed, the report indicated that 63% of the Northern Province offices did not function well. There did not seem to be a system to bring the specific circumstances to the attention of the department . What could be done in order to receive better performance appraisals? He noted that he would be happy to receive the information at a later stage.
Mr P Bruwer, in his presentation on the Salaries Report, stated that approximately 14 000 persons were employed with annual remuneration amounting to R1.8billion. This showed that most of the Department's budget was paid out to salaries. He added that the exposition indicated the average salary increases and that the Legal Administration Offices existed in the legal departments of all offices.
The Chair asked for an explanation for the 60% pay increase between June 1995 and June 1996.
Mr Bruwer explained that the entire public service had received substantial salary increases. Although the remuneration increase of judges looked substantial, it was therefore average.
The Chair asked for the inflation rates over the years in order to make comparative analysis for real income figures.
Mr Bruwer explained that the Department was in the process of uniting salary and benefits as a full package.
The Chair said that the separation was illegal. He explained that the Deputy was legally entitled to receive up to a maximum of 80% of the salary of the NDPP. The report indicated that he was receiving R185 000 more than his boss. He told Mr Bruwer to immediately direct them to stop the process.
Mr Jeffery (ANC) referred to the discrepancy between the salaries of the Law Advisors, the State Attorneys and the State Prosecutors. The figures indicated that State Prosecutors received higher salaries.
Mr Bruwer explained that the salary difference existed because the various positions in the different offices were differently determined. He added that the salary survey attempted to reward performance instead of comparing salaries to other occupations.
The Chair told the visiting officials that the Committee was highly impressed by the quality of the work received from the Department. He compared their reports to those received in June 2001 and stated that the inputs clearly indicated that the department was beginning to take control of that unit. He concluded by congratulating the Department for their tremendous work.
The Chair asked the Department to ensure that at least one Department member accompany each of the Committee delegations to the provinces. He commended Mr Bruwer for an excellent salary job, and suggested that Mr Jiyani send his document to the different role players in order to give them an idea of the issues raised.
Meeting with EU delegation
The Chair welcomed the visiting EU delegation and explained that the EU was in the process of preparing draft background papers on the justice sector in preparation for future formal consultations with the South African government, civil society and other stakeholders on its Multi-Indicative Programme 2003-2006.
Ms Merlo, representing the delegation, explained that the context for the meeting was in preparation for a new country strategy with South Africa. In this regard the commission had begun evaluating the current strategy, and that it would take the evaluation team approximately one month to end that process. Consultations were to be held with different stakeholders, and a formal consultation with the government had been scheduled for May/June 2002. The Brussels final consultation was to take place at the end of 2002.
Ms Merlo explained that the first step would involve preparing a background paper through discussions with various stakeholders. As a result, the delegation was seeking the views of the Committee concerning the main issues in the justice sector, and seeking discussion surrounding issues such as the role of civil society and donor funding.
Ms Wannenburg followed and explained that she was the Programme Officer for Justice and Human Rights. Two projects were currently underway, namely:
E-Justice project - to create a digital interface (14million Euro budget).
Foundation for Human Rights - funds for Non Governmental Organisations and human rights awareness activities (costing 25million Euro over 4years).
Mr Carstens stated that he was the Project Officer for Safety and Security with the EC delegation in Pretoria. His department was conducting projects with the police and with the Department of Safety and Security. He outlined the major aims: -
To assist policing - 4 year programme (strengthening the oversight role; capacity building; infrastructure).
Institutional Development and Capacity Building Programme - directed at the police to assist policy development, human resources development, affirmative training and a DNA analysis capacity programme. The total expenditure over 4 years would be 18.5million Euro.
Ms Merlo said that they had circulated a paper outlining the main questions for which they required answers dealing with policy challenges, issues critical for effective functioning, role of international donors and role of civil society
The Chair said that the EC projects were impressive. He gave particular reference to safety and security, and explained that such projects were necessary for the justice sector. He briefly introduced his Committee, and apologised for the members that were not present:
>Dr Delport (DP) - veteran of politics. Started as a law professor and eventually became a politician in the Democratic Party. He noted that Mr Delport was heading the DP matters in the Committee.
>Mr Mzizi (IFP) - old veteran in the justice sector. Worked his way up through the courts, initially interpreting. He added that Mr Mzizi was a member of the IFP and one of the more staunch justice members.
>Mr Swart (ACDP) - ACDP party affiliate with a long career in law at the State Attorneys Office. He said that Mr Swart was a valuable member of the Committee, and that he did all the committee reading.
>Mr Maseka (UDM) - UDM party member. He explained that Mr Maseka was one of the newest members to the Committee, with a long career as an attorney.
>Ms Camerer (NNP) - He stated that although Ms Camerer was not present, she was a strong member of the Committee.
>Mrs Mahlawa (ANC) - from the Eastern Cape. He explained that she was a lecturer, and very involved in women's issues and the anti-apartheid struggle.
>Mr Solomon (ANC) - had been in the Committee for a long time. He added that Mr Solomon was very involved in Muslim religious communities.
>Mr Magwanishe (ANC) - 'young lion' involved in youth politics. He added that Mr Magwanishe was an upcoming youth leader.
The Chair moved on to list the most important policy challenges:
1. Rationalise the Court System.
He said that this was the main focus of the department because the broad consensus was that a single judiciary would be necessary (in comparison to the present distinction between judges and magistrates). In his opinion, the split was unacceptable as it had enormous implications. He gave examples: -
- legislation dealing with the areas was vast
- the perceived and real stumbling blocks resulting from the past.
Thus, it would be necessary to rationalise all apartheid courts (i.e. High Courts in all provinces; lower courts harmonised with high court structures; harmonisation between personnel).
He noted that the process would be extremely costly. People would have to be capacitated (involving ongoing training). He said that the law was busy dealing with the complaints mechanism. This highlighted the fact that a single judiciary would be an enormous task. As a result, capacity would be vital because it is capacity (management, people) that would create good courts. He added that although other resources played an important role, human resources were essential.
2. Prosecutorial services
He said that this was one of the success stories because the services had been amalgamated into one. He mentioned the inclusion of additional services such as the Scorpions and the SIU (though indirectly). Nevertheless, these services were not fault free. He noted that issues of skill and capacity were enormous in those areas, and that as a result continuous capacity-building would be vital.
3. Chapter 9 Institutions
He explained that these institutions promoted and supported democracy. He noted that they would be particularly important with regards to the work of the EC. He said that this Committee was involved within this area of justice because the institutions were accountable to the Committee. He mentioned that there had been problems with accountability because of difficulties with capacity. In addition, some of the institutions had "funny views about their independence".
4. Wider Justice System (Criminal Justice System)
5. Civil law
The Chair stated that the Committee had passed more than 90 pieces of legislation over the past seven years. He mentioned the Truth and Reconciliation Commission Act that that created that commission, the Promotion of Access to Information Act, the Administrative Justice Act, and the Interception Act. He explained that the Committee had managed to do this with only one clerk and without any researchers. He stated that the Justice Portfolio Committee had been vital, and he suggested that the EC look at this Committee because it simply did not have the capacity to fully perform all of its functions.
The Chair explained that he was very supportive of the role of international donors. Nevertheless, his preferences lay with systems that built capacity (tangible rights). Thus, he felt that all donations should be projects because some appalling conditions were faced in some areas. He stated that the role of maintenance was an issue very close to him. He emphasised that women in our community really suffered, having to travel absolutely enormous distances in order to receive maintenance that would possibly not be available. He stressed that the whole system was rather weak. As a result donor funding would be absolutely vital. He explained that the Department of Justice budget was enormously small, half of which would go to the Chapter 9 institutions. The Department would therefore not be able to cope without international donors. He noted that 50% of the unauthorised spending in South Africa came from the Justice Department, and that this was money that 'had' to be spent in order to keep the courts going. He said that one advantage of this was that department projects were greatly improving and a clear vision was beginning to emerge.
The Chair moved on to the role of civil society. He stated that is was 'various, enormous, and vitally important'. Civil society, such as the Law Society or the Human Rights Commission, had assisted the Committee in passing all its legislation. He explained that this would occur through making the Committee aware of all relevant issues. Thus the capacitating of civil society in the Justice arena would be vitally important. He added that without the proper functioning of civil society, the Committee would not be able to adequately perform its functions.
The Chair ended by suggesting possible donor areas: -
- The Justice Committee - if possible! This would assist in creating the capacity for the Committee to perform its functions.
- Civil society.
- The Department of Justice.
He noted that he was honestly not particularly excited over the idea of E-Justice, and he gave the example of creating a Rolls Royce where a Mercedes Benz would do. He said that the practical work of the Department in safety and security was most vital, and noted that it was in Europe where the skills for efficient safety and security existed. As a result, from where he was sitting E-Justice was simply not a priority. He added that E-Justice would take a very long time to work in South Africa. Therefore he advised the delegation that if they wanted to become involved in projects with the Department, they would have to be very practical in these initial stages.
The Chair concluded that he hoped that he had given the delegation some important indications. He asked the floor whether they had any additional issues to raise.
Mr Delport (DP) stressed the importance of raising the quality of officials dealing with the application of justice. He stated that it would be necessary to empower better-equipped persons in order to increase the administration of justice.
Mr Mzizi (IFP) had two points to mention:
- As far as justice matters were concerned, an information centre had not been dealt with. He stated that a particular centre would be necessary.
- With regard to safety and security, he said that the Community Policing Forum (CPF) would assist the police. He noted that that form of capacity building had not been taken into account and directed the delegation to look to making donations in that area.
Mr Swart (ACDP) said that the role of civil society was another area that faced difficulties in the implementation of the legislation. He gave the examples of the Maintenance Act and the Child Justice Act.
Mr Solomon (ANC) emphasised the fact that the quality of the justice sector officials would be very important. He said that one of the challenges faced concerned the modus operandi at ground level, and that constitutional principles had to be applied in that regard. This would make training in constitutional values very important, and he stressed the need for change from the old administration system to the new government.
Mr Solomon (ANC) noted that the Criminal Justice Department was fed by ongoing socio-economic problems. Focus on this aspect would therefore be necessary before focusing on additional investments and contributions.
Ms Mahlawe (ANC) pointed out that the general belief was that justice was a man's world, and that women were generally ignored. She proposed the empowering of women in order to build their capacity.
The Chair asked the delegation how they wished to take their matter forward from that point.
Ms Wannenberg replied that 20% of the budget of the International Foundation for Human Rights was geared towards the Chapter 9 institutions.
The Chair noted that this indicated how badly the commission was promoting itself because the Committee was not aware of this fact!
Mr Delport (DP) encouraged the donors. He explained that although the Committee was not going to get everything right overnight, this was not an indication that the Committee was not a suitable donor recipient.
Ms Merlo thanked the Committee for the contributions made. The Chair thanked the delegation and wished them luck with their work. The meeting was adjourned.
REPORT TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE APPOINTMENT OF MAINTENANCE INVESTIGATORS AND MATTERS RELATED THERETO: MARCH 2002
The Portfolio Committee wished to be informed of the progress relating to the appointment of maintenance investigators and maintenance officers in terms of sections 4(1), 4(2) and 5(1) of the Maintenance Act, 1998 (Act No.99 of 1998), as well as progress relating to the training of maintenance officers.
2. DISCUSSION: APPOINTMENT OF MAINTENANCE OFFICERS
2.1 The Unit of Sexual Offences and Community Affairs in the Office of the National Director of Public Prosecutions has advertised maintenance officer posts in February 2002. One hundred posts were advertised nationally. Inclusive of 90 maintenance officers and 1 0 senior maintenance officer posts. Due to budgetary constraints the number of posts has been reduced to 80 that will be made up of 70 maintenance prosecutors and 10 senior maintenance prosecutors.
2.2 One senior maintenance prosecutor will be placed in each province to manage the maintenance prosecutors in that province. Maintenance prosecutors will be placed in identified courts across the country. The number to be placed in each province will vary depending on the need identified.
2.3 The Senior maintenance prosecutors will report to a representative at the SOCCA Unit of the National Director's Office. Chief magistrates across the country have been informed of this process and have expressed full cooperation and support for this initiative.
2.4 The courts that will receive these new posts will be informed by inputs provided by chief magistrates and chief prosecutors. The Department will also provide input in this process.
2.5 A job evaluation on the profile of both positions has been carried out by the Office of the NDPP and the outcome thereof is awaited.
3. THE TRAINING OF MAINTENANCE OFFICERS:
3.1 Justice College has reported that relating to the training of maintenance officers, Justice College is continually training Clerks of the Maintenance Courts, who are now for the most part being used as maintenance officers. All Provinces are visited for training sessions at least twice a year by Justice College; where special requests are received from magistrates to handle crisis areas, ad hoc-training is given in the courts concerned, such as in Umtata and Rustenburg earlier this year. In Umtata in September 2001, two experienced maintenance court personnel from East London, were requested to train the Clerks in the Accounts Section of the Maintenance Court there and requested for a two weeks' extension, in order to bring the Payments Section up to date. Justice College has also indicated that they are already planning for continuous year-round training sessions for 2002, with a minimum of 14 courses next year. They are in Bloemfontein for such a course at the moment and will be conducting training sessions in Kimberley and Durban before the end of the year 2001. Justice College has, however, also indicated that the Maintenance Clerks would like to be appointed as Maintenance Officers in terms of section 4(2) of the Act, because they are already acting as such, but do not know if they will eventually be appointed as Maintenance Officers.
3.2 The Danish Government has in principle committed R2.5 million for the training of Maintenance Clerk. Maintenance Officers and Maintenance Investigators, as a result of the Business Plans submitted to them in terms of the National Action Plan for the Re-engineering of the Maintenance System. The Department has requested Justice College to develop a Training Strategy to start training in terms of the Training Business Plan (Key Result Area 2; Human Resources Development of the Maintenance NAP), in February 2002.
3. DISCUSSION: APPOINTMENT OF MAINTENANCE INVESTIGATORS
3.1 Maintenance Footprint
3.1.1 The Office of the Acting Chief Financial has commissioned a Project called the Footprint for Justice in South Africa. The Chief Financial Officer has priortised maintenance as one of the Footprints of the Department.
3.1.2 Two Workshops were convened by the Office of the CFO on 24 January 2002 and 26 February 2002. The two main issues discussed, focused on Innovations to the Maintenance System, both in terms of Court Process and Financial Management.
3.1 .3 The proposals contained in the Report released by the CFO will assist with the financial management of maintenance courts and payment of maintenance monies through automating existing manual procedures supplemented with on line up to date data. This will ensure
Â· Increase in staff productivity
Â· Additional information being made available to tracing agents and investigators
Â· A concerted move by the department towards "best practice functionality"
3.1.4 The Business Unit: Court Services fully supports such a managed flow of monies and the technology that will enable the flow of monies to be diverted from the courts to the financial institutions. This will also enable the maintenance courts to concentrate on its core function, namely the tracing, investigation and prosecution of maintenance defaulters.
3.1.5 One of the priorities of the Business Unit: Court Services is the full implementation of the Maintenance Act, 1998. As was indicated earlier to the Portfolio Committee the Department has undertaken a series of consultations regarding the policy for the appointment of maintenance investigators in terms of section 5(1) of the Maintenance Act, 1998. The recommendations flowing out of these consultations is that a multi-disciplinary approach relating to the appointment of maintenance investigators should be endorsed, and that the best service providers, whether sheriffs, Non-Governmental Organisations, Community Based Organisations (CBO'S) or private investigators, should be appointed as maintenance investigators. The multi-disciplinary approach would entail considering service providers who are able to perform digital tracing functions (office bound, use of computers linked up to 14 data bases nationally), or physical tracing targeted at rural/informal settlements.
3.2 Costing of necessary budget for the appointment of maintenance investigators:
3.2.1 In the preparation of the memorandum for the Minister on the preferred policy for the appointment of Maintenance Investigators, it is the Department's view that the preferred option of outsourcing the function, should be costed, in order to give an accurate indication of the budget needed. The Department therefore attempted to think on the lines of remunerating maintenance investigators in terms of fees, tariffs or at a fixed tariff per successful trace.
3.2.2 In order to decide on the best methodology for the costing of the outsourcing option for the appointment of maintenance investigators, the following steps would have to be undertaken:
(a) Gathering information on maintenance cases:
To be able to estimate the demand for maintenance investigators it is essential to have information on the number of maintenance cases that are likely to be referred to maintenance investigators. We expect the number of cases to differ from area to area depending on a range of social, economic and cultural factors. In order to get a reasonable indication of the numbers involved it is proposed that visits be made to a sample of courts to evaluate their maintenance case files in order to assess how many might have benefited from the services of maintenance investigators.
(b) Defining the functions of the maintenance investigators:
In order to cost the use of maintenance investigators, it is essential to know exactly what their functions will be. While most of this can be deduced from the Maintenance Act, 1998, there are a number of areas of uncertainty. It is therefore proposed that the team produce a document, after consulting with various role-players defining the functions of the maintenance investigators. This would then be used as a basis for working out proposals for remunerating maintenance investigators, as well as for the costing itself.
(c) Developing proposals for remunerating maintenance investigators:
It is not clear on what basis maintenance investigators are to be remunerated. It is therefore proposed that the team develop a number of options for the Department's consideration. These would inform the costing as well.
(d) Developing proposals for the implementation of the policy on maintenance investigators:
In order to get the policy to work, it is essential that a holistic plan for implementation be developed. Elements of the plan are likely to include the appointment of maintenance investigators, training such investigators, training maintenance officers, putting in place systems to manage maintenance investigators, introducing the system to the legal profession, etc. Mr Barberton proposed producing an initial proposal regarding the phased implementation of the policy, but it would need to be evaluated and confirmed by the relevant officials within the Department of Justice.
(e) Developing a baseline costing model of the implementation of the above policy proposals:
Once all the above information has been gathered it will be possible to proceed to build a spreadsheet based costing model to develop baseline estimates of the cost of implementing the policy on maintenance investigators.
The Business Unit Courts is of the view that this is an important process that will inform the implementation process of S5 of the Act.
3.3 Appointing sheriffs in the interim:
3.3.1 The Department acknowledges the delays experienced with the implementation of Section 5 and therefore recommends as an interim measure and part of the multi-disciplinary approach to the appointment of maintenance investigators, that sheriffs be used to perform the functions of the maintenance investigators in the interim.
3.3.2 The Department is planning a meeting with the organised sheriffs' profession later in March 2002 in this regard.
4. INITIATIVES TO ADDRESS PROBLEMS AT MARKET STREET JOHANNESBURG:
4.1 The Regional Head: Justice and Constitutional Development in Gauteng as well as the Director: Accommodation of the National Department are in the process of identifying ways and means to assist the Johannesburg Maintenance Court relating to its accommodation problems as well as its personnel problems. The Regional Head is having discussions with the supernumerary personnel from Mpumalanga, some of whom have indicated that they would be willing to be transferred to Johannesburg, in order to assist there.
4.2 The Sub-Office Review Committee of the Department is also in the process of evaluating the reports from the National Inspectorate; the visiting Teams; Justice College; the Regional Head; as well as the Magistrates; Prosecutors and Maintenance Clerks themselves, in order to draft an action plan for assisting them further in this regard as a matter of priority.
5. THE HANDLING OF MAINTENANCE COMPLAINTS
5.1 The Department receives maintenance complaints from individuals, Constitutional Institutions such as the Public Protector and the Gender Equality Commission and concerned community organizations When a complaint is received, the Directorate: Children and Youth Affairs refers such complaint to the Regional Head of the Department of Justice, the Head of the Magistrate's Office or the Maintenance Officer at a Magistrate's Court, in order to prioritise the matter.
5.2 The complainant is also regularly kept up to date with the progress relating to the matter concerned and if it is a ministerial representation, a memorandum is drafted to the Minister, together with a draft letter.
5.3 The Directorate regularly also gives legal advice and assistance to women who come and complain personally in the Directorate's Offices - approximately 10 to 15 women per week are assisted in this regard.
5.4 The Directorate receives twenty to twenty-five new written complaints per month and fifty telephonic enquiries per month, which are referred to the relevant maintenance office. The Directorate also telephones and faxes the relevant offices when the matters are very urgent and generally solve such complaints within the month.
5.5 However, systemic complaints such as lack of personnel and inadequate buildings are difficult to solve in the short term and are referred to the relevant Managers working with these matters.
6. VISITS TO CLUSTER HEADS AND ADMINISTRATIVE HEADS OF DEPARTMENT
6.1 The Department has also started a series of meetings with Cluster Heads and their Office Managers, in order to assess and address the needs of the Maintenance Courts on ground level. Three meetings have already taken place in Johannesburg, Cape Town and Kimberley. Three reports have been received in this regard.
6.2 Most of the problems experienced in the Clusters, are the lack of personnel, Maintenance Officers, Maintenance Investigators, which cause a lack of morale in the Maintenance Personnel and practical things such as lack of computers, proper buildings etc. These matters are receiving attention.
7. THE MAINTENANCE CRISIS IN UMTATA
Pursuant to a complaint received from the Women's Caucus of the Eastern Cape Provincial Legislature to the National Committee on Security and Constitutional Affairs regarding the maintenance crisis at Umtata Magistrate's office, the Department constituted an Emergency Task Team that visited the Umtata Magistrate's office during the period 10 to 14 September 2001, after it was identified by the National Inspectorate as an office where service delivery and work performance require urgent attention.
It was found that the poor work performance and service delivery can mainly be ascribed to the non-compliance with instructions, a lack of proper management and guidance, poor discipline, a lack of discipline and commitment in terms of the job content, sufficient checking and control and no overhead control.
It was observed by members of the Task Team and confirmed by the Head of Office, Mr Ncapayi that a general lack of commitment and discipline does exist in the Office. As the work performance and service delivery provided by the Magistrate's Office, Umtata were found to be deplorable and a cause of embarrassment for the Department, the Director-General, the Chief Financial Officer and other members of management visited the Office on 28 September 2001 to intervene in the situation.
It was furthermore decided that members of the Emergency Task Team re-visit the Office in order to determine whether corrective measures were put in place and whether there is an improvement in the work performance and service delivery.
On the 28 September 2001 the Director-General indicated that misconduct proceedings would be instituted against negligent, indolent, ill-disciplined, noncommitted and not gainfully employed staff members if no improvement in the work performance and service delivery could be found within a month.
The Department requested a progress report from the Eastern Cape Regional Office of the Department on the Umtata Maintenance Crisis in line with the Director-General's directive that misconduct proceedings be instituted against the officers involved with misconduct.
After an investigation into allegations of ill treatment of maintenance beneficiaries and financial mismanagement at the above office it was decided to suspend four officials who were implicated in these activities. Disciplinary steps have been instituted against all four officers Dates for hearing in respect of the officers are listed hereunder.
Ms Jubase, a Senior Admin Officer in maintenance section-her hearing was scheduled for the 24th February 2002 but was postponed to 11 March 2002. The reason for this postponement was that her legal representative objected to the refusal by the employer to allow a legal practitioner to represent the officer at the hearing on the grounds that it was unconstitutional. The lawyer then declared that he intended to take the matter up on review. A postponement was then agreed upon on the understanding that the matter would then proceed as the Department felt strongly that it had a valid case and that no further delays would be allowed.
Ms Matanzima and Ms Mtirara as the officers in the Department were also suspended for allegedly embezzlement of bail monies: The officers inquiries have been set down for hearing on Ms Tunzi (another maintenance officer)- inquiry was also set down for hearing.
The Umtata Magistrate Office has employed the services of two temporary workers to substitute the two suspended officers. It has been reported that the performance of the two temporary workers has been very well.
The Inspector of Interpreters has been appointed Acting Office Manager, pending the filling of the office manager's post. (The manager's post was filled in October 2002, however, the appointee declined to take the post) It then became vacant again.
The Regional Office in consultation with the Umtata Magistrate Office has established a Complaint Register Project which is managed by the Director of legal Services of the Regional Office. The registered complaints are dealt with by a team headed by the project manager. They record the findings and resolves of every reported complaint.
The Regional Office is monitoring the progress by paying surprise visits to the Office as part of the monitoring mechanism. These visits are done once a week by senior officials of the Regional Office
27 February 2002
From: Mr V P Pikoli (Director General: Department of Justice & Constitutional Development
To: Mr L M Mti (Commissioner of Correctional Services)
REPEAL OF SECTION 81(4) OF THE CORRECTIONAL SERVICES ACT, 1998
Section 30(0) of the Correctional Services Amendment Act, 2001 (Act 33 of 2001), inserted the lolloWng subsection in section 81 of the Correctional Services Act) 1998 (Act 111 of 1998):
(4) In the case of unsentenced prisoners the Minister may release any such prisoner or group of such prisoners subject to such conditions as may be determined by the Minister with the concurrence of the Minister of Justice.
The said Act 33 of 2001 came into operation on 14 December 2001 (the date of publication in the Gazette), but section 81 of the Correctional Services Act, 1998, has not yet been put into operation
It was brought to my attention that the above amendment to section 81 had been effected by mistake. During the deliberations on the Judicial Matters Amendment Bill and the Correctional Services Amendment Bill (now Act 33 of200]), the National Assembly's Portfolio Committees on Justice and Constitutional Development, on the one hand, and Correctional Services, on the other, decided that it would be more appropriate to amend the provisions relating to bail in the Criminal Procedure Act, 1977, in order to make provision for the release of unsentenced prisoners. Anew section 63A was accordingly inserted in he Criminal Procedure Act, 1977, and came into operation on 7 December 2001.
During a joint meeting of the above Portfolio Committees on 20 February 2002 my Department was requested to liaise with your Department regarding the repeal of the said section 81(4) of the Correctional Services Act, 1998. It was proposed that, unless your Department is aiming to introduce
further amendments to the Correctional Services Act, ] 998, during this year, the matter could be dealt with in the Judicial Matters Amendment Bill which my Department intends introducing towards the middle of the year. The matter was also discussed between Messrs Paxton and De Lange of our respective Departments.
If this proposal meets with your approval, the following amendment will be included in the Judicial Matters Amendment Bill.
Amendment of section 81 of Act 111 of1998, as amended by section 30(b) of Act 33 of 2001
X. Section 81 of the Correctional Services Act, 1998, Is hereby amended by the deletion of subsection (4).
I look forward to hearing from you regarding this matter.
V P Pikoli
DIRECTOR-GENERAL: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
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