Department of Justice and Constitutional Development: Revised Key Performance Indicators

Meeting report

Revision of the Medium Term Strategic Framework 2010
Dr Khotso De Wee, Chief Operations Officer (COO): Department of Justice and Constitutional Development (DOJ&CD), said that the Department had reviewed its Key Performance Indicators (KPIs) and wished to inform the Committee of the changes. The KPIs had been approved by the Auditor General (AG). The Committee approved the original strategic plan in April 2010. Audit findings from the AG in June 2010 led to a revision of the KPIs and amendments had to be implemented. The AG would audit the Department on the revised KPIs provided that the Committee approved them. A further reason for the revision was to accommodate the Ministerial delivery agreements, which were signed in October 2010. The AG had expressed concern over the lack of inclusion of the National Prosecuting Authority (NPA) and Chapter 9 institutions in the Department’s strategic plan. The AG also expressed concern that the planned and reported performance targets were not well defined.

Revised KPIs
It was important to ensure that the revised KPIs adhered to the SMAT principle. All new forensic cases would be finalised within two months and old cases within six months. The revised KPI meant an improved turnaround time for forensic cases. There was a KPI for capacity, reducing the vacancy rate from 14% to 5%. There was a shortage of financial managers. The Department had had problems with capacity in the Office of the Chief Financial Officer (CFO). This had been resolved as four critical staff had been appointed in his office. The target for training through the Justice College was 5 000 officials per annum. There was a new KPI for unqualified audits on financial reports. The Department wanted clean audits on all third party funds. The Department was currently rolling out an integrated security system to 150 priority courts. The Department sought to improve the condition of 50 priority courts through its RAMP programme. The expansion of courts to improve access to justice had been terribly affected by budget cuts such that contracts had been stopped. The revised KPI was that one magisterial court per municipal district would be built. Four branch courts would be converted by the end of the current financial year and six the following year. The Department supported three Southern African Democratic Community (SADC) countries through the legal services it provided. The Department aimed at strengthening its oversight mandate over bodies that reported to the Minister of Justice such as the Chapter 9 institutions and the NPA. The Department was of the opinion that there should be a dedicated unit for overseeing these bodies. The Department did not intend to interfere in their work.

The Department was concerned about the lack of knowledge that people had regarding the services that it provided. The Department aimed at improving the knowledge of the public on justice and constitutional services. The Department intended to conduct a survey to show that at least 60% of people had confidence in the criminal justice system. This would be completed by the end of March. The Department had set a target of 30 days for the resolution of queries from the Presidential Hotline plus ensure that at least 60% of queries were resolved. The Department was trying to ensure that the outstanding 30% of identified Truth and Reconciliation Commission (TRC) victims had access to the President’s Fund. Home Affairs had tracked down 500 victims who were deceased. The challenge was to track their next of kin and the other victims numbering about 300. The Department’s revised target was to provide access to the President’s Fund to at least 10% of the victims. Regulations would be developed to assist TRC victims via education and other programmes. A Secretary General and other key staff had been appointed to the newly created Office of the Chief Justice. The Department had to finalise the policy framework on the Transformation of the Courts, Superior Courts Bill, the Constitution Nineteenth Amendment Bill and Traditional Courts Bill. The Department was reviewing the civil justice system in order to approve its functionality. The Department had set up a number of backlog courts to reduce the number of case backlogs. Capacity was also an issue in this regard. Maintenance Services was a strategic and important KPI for the Department. The target for the finalisation of the Trafficking in Persons Bill would be changed from the current March 2011.

A new branch was to be established to deal with constitutional development. The Department was in partnership with the Foundation for Human Rights (FHR) for KPIs 31.2-31.7 to strengthen participatory democracy, promote the Constitution and a human rights culture in the country and ensure respect for fundamental human rights. This would include establishing a number of new Community Advice Centres, capacitating civil society organisations in terms of public dialogue, and signing service level agreements with civil society organisations, as well as providing support services to refugees, asylum seekers and migrants.

KPI 32.1 was to develop 12 Bills and 14 subordinate legislative instruments to improve access to justice and transform justice in the country. The Department aimed at reducing its legal costs by 25% of current value. Output 34 was to implement a Counsel Briefing Policy to promote transformation within the Justice system.

Discussion
Mr J Jeffery (ANC) asked what was meant by the SMAT principle.

Dr De Wee replied that this was an acronym, which stood for government targets which had to be: Specific, Measurable, Attainable and Time bound.

Mr Jeffery said that he did not understand how the KPI on the diversion of children was not in line with the SMAT principle.

Ms Lebogang Mphahlele, Chief Director for Monitoring, Strategy and Evaluation: DOJ&CD, said that it had been decided that diversion had to be viewed holistically. The Department tracked the diversion of children and adults, this was under one indicator.

Dr De Wee said that it was unfortunate that child diversion was under a section of removed KPIs. However it was still a KPI – it was just that it was now lumped together with adult diversion.

Mr Jeffery said that the old and new KPI for child diversion were the same.

Dr De Wee explained that the point the Department was trying to make was that the KPI for child diversion had not been removed; it was still there under the new indicator.

Mr Jeffery vehemently disagreed that the Department had merely re-phrased the KPI and it was still the same. The target figures had been changed.

Dr De Wee said that in the new document the targets had been broken down within a five-year period, this was not previously the case under the old KPI.

Mr Jeffery said that the Director General was usually good at attending meetings. However her absence was problematic given the issue under discussion for today’s meeting. The quality of the presentation seemed to be weak.

Ms Mphahlele said that the wording ‘implementation of the Child Justice Act of 2008’ had been removed because the KPI was specifically concerned with diversion and not the Act as a whole.

Mr Jeffery replied that it had been removed as an indicator and inserted as an output.

Dr De Wee explained that in the document distributed, the KPI read as follows “reduction of criminal cases involving children through diversion’, the targets were then broken up into a five-year period.

The Chairperson explained that what the Department was trying to communicate was: whereas in the past the KPI was: “compliance with the Child Justice Act”, now it included “the protection of vulnerable groups including children” as an objective.

Mr Jeffery said that the objective mentioned by the Chairperson had always been there, compliance with the Child Justice Act as an output was also still there; the main change was that the targets had been edited from 12% to 7% for the current financial year. This was quite a drop and it made one wonder if the Department had suddenly realised that it would not be able to achieve the target of 12%. Where did the Department get these figures? The target of “increasing diverted cases” might be artificial, as not all cases would require diversion as an appropriate avenue.

Ms Mphahlele said that the target had not dropped, the 7% was for year one and then for year two it was still 12%.

Mr Jeffery asked why the Department did not take 6% or 8% as a figure.

The Chairperson asked what informed the setting of the targets.

Dr De Wee replied that what informed the Department was the reality of the Department’s capacity constraints. Perhaps it was more realistic to start with 7% and then still stick to 12% for the next financial year.

Mr Jeffery asked if this was done via scientific methodology.

Dr De Wee replied in the negative. The Department was advised by Court Services via their family law division.

Mr Jeffery said that the question would then be from where all the targets came and whether they were “thumb sucks”. On what basis was Court Services coming up with this target. It would be useful to know from where the figures came. He referred to a department, not the DOJ&CD, which was setting low targets which it then exceeded, to much applause.

Ms D Schafer (DA) said that the Department mentioned a critical aspect when they mentioned capacity constraints but there was no KPI to that effect. How long had it taken the Department to realise that some of the KPIs were NPA targets?

Mr Jeffery said that he disagreed with the KPIs that were removed on the basis that they were NPA targets. The NPA aspect was just one factor in the justice conveyor belt for case backlogs; in some instances the magistrate might not be available. Court Services were very much a departmental prerogative. It was not ideal to transfer some of these KPIs to the NPA. The finalisation of cases should not be given to the NPA only. 

The Chairperson said that it would be important for the Department at a later stage to inform the Committee as to how it arrived at its targets.

Mr Jeffery asked why it would take six months to finalise old forensic cases.

Ms Mphahlele replied that cases involving forensic investigations were quite complex. It was thus necessary to develop a cleanup system and to start from scratch. Finalising cases within six months was not easy.

Mr Jeffery asked from where the six-month and two-month periods came. Was this another thumb suck? The Department had effectively said that the previous KPI was wrong.

Dr De Wee replied that what drove the KPI was mainly capacity constraints. This was being resolved.

Ms Schafer asked what RAMP was all about.

Dr De Wee replied that RAMP was the re-furbishment of the courts.

Mr Jeffery noted that the target for the rollout of integrated security systems had been greatly reduced this year from 150 to 40. The RAMP courts target was also reduced from 50 to 11. It was noted that there were funding constraints but what informed the original targets, to begin with?

Dr De Wee replied that the challenge came from the processing of heritage applications, as some of the courts were heritage buildings.

Mr Jeffrey noted that the target figures showed big changes.

The Chairperson asked for the criteria, that were used to reduce these figures so dramatically, to be made available to the Committee at a later stage.

Mr S Holomisa (ANC) said that previously one found a magistrates court in every town and the surrounding areas where there were magisterial districts. Currently one found local municipalities, which were sometimes inclusive of two or more former magisterial districts. There were also district municipalities, which combined several local municipalities. What did the Department mean in the presentation that it would provide one magistrates court per municipal district, would this not mean that there would be a reduction of courts and thus poor service delivery?

Dr De Wee replied that the Department was busy re-aligning the magisterial boundaries with the new municipal boundaries. The Department had intended that in each district municipality there would be a court. The process had not been finalised.

Mr Holomisa followed up by saying that within the context of his explanation on the current municipal boundary system, it was clear that the Department would in fact reduce the number of courts.

Mr Jeffery asked what a branch and full service court were. The Department could come back with more information.

Ms Schafer asked if the Department was paid for the services it provided to the SADC countries.

Dr De Wee replied in the negative.

Ms Schafer asked why the Department was helping other countries if it did not have the capacity to deal with its own matters.

Dr De Wee replied that this was a responsibility of the country to help other international countries as it once had received assistance. This was the case especially with regard to Sudan. The assistance rendered was via the sharing of information on how courts operated etc. The expenditure was minimal.

The Chairperson said that this was also a policy matter that emanated from Cabinet.

Mr Jeffery said that the KPI should not be restricted to SADC, as other African countries might need our assistance. Maybe this should not be a KPI as it depended on whether or not other countries requested assistance, if they did not require assistance then the Department would not meet its target.

Ms Smuts said it was inappropriate to have an oversight body over the institutions that reported to the Minister of Justice. The Chapter 9 Institutions were subject to the Constitution and the law. This was why it had been proposed that the budgets of these institutions should no longer go through the Department but Parliament instead. Parliament had already established a Chapter 9 Institutions unit via the Speaker’s Office.

Ms Schafer requested that the Committee have a briefing from the Chapter 9 Institutions unit of Parliament to get a sense of what they were doing.

Mr Holomisa said that the oversight unit within the Department was encouraging because some of the Chapter 9 Institutions were not functioning properly; the Commission for Gender Equality was one of them. In some engagements with the South African Human Rights Commission (SAHRC), it pointed out that the law creating this body was inadequate and needed further development. The SAHRC had said that it was the Department’s responsibility to table legislation that would further enhance the SAHRC.

The Chairperson addressed the approach suggested by Ms Smuts pointing out that he found it difficult to comprehend how financial accountability would work in practice. What role would the AG play in such accountability; this had to be discussed further.

Ms Smuts said that the Constitution set out that Chapter 9 Institutions were accountable to Parliament.

The Chairperson asked how and in what form did the Constitution provide for this accountability?

Ms Smuts replied that the Chapter 9 Institutions accountable to this Committee were now for the first time providing quarterly reports to Parliament.

The Chairperson asked who the accounting officer was for these institutions.

Ms Smuts replied that the accounting officer was stipulated in the Public Finance Management Act (PFMA).

Mr Jeffery asked what REACH meant and how did the Department come up with its target. Had the Department coordinated with the SAHRC because they also wanted to educate people on their rights?

Mr G Ndabandaba (ANC) asked if the surveys would be in-house or outsourced.

Dr De Wee said that it would be better if the survey was outsourced but it was not clear at this time.

Ms Schafer asked why the Department was only targeting the criminal justice system in it survey; the civil justice system also had problems.

Mr Jeffery followed up saying that the deadline for the survey was end of March yet the Department did not even know whether it would be sourced out or kept in-house.
           
Ms Mphahlele confirmed that the survey would be outsourced.

Mr Jeffery said that the KPI indicated that the survey would be completed by end of March 2011.

The Chairperson asked Dr De Wee if he could see the problem.

Dr De Wee replied that he saw it and would get back to the Committee on this one. The Department was also working on the civil justice system and its exclusion in the presentation was merely an omission.

Mr Jeffrey said that there was a KPI that the Department would respond to 100% of the queries from the Presidential Hotline. This had been replaced with 60%. This should not be the case. What was the scientific basis for the 60% target? There was no sense of improvement on this indicator. There was a danger that the more complex cases could be shoved under the 40% that the Department was intending to resolve because its target was to resolve only 60% of cases.

Ms Smuts agreed with Mr Jeffery.

Ms Schafer said that it would be useful to have figures for the total number of complaints received.

The Chairperson said that the concern was what happened to the 40%.

Ms Mphahlele said that the 60% figure was set by the Presidency.

Dr De Wee said that the 60% target did create the wrong impression as if the Department did not care about the 40%. The point made by the Committee was well taken. The Department would push the target to 100%.

Mr Jeffery said that the KPI for TRC victims was unsatisfactory. The target of 10% a year had dropped from the previous 30%. The KPI should have focused on closure with all the victims being found. The target period should also be short: payment of beneficiaries should be within a year. By the time the Regulations were developed, the children of TRC victims would have completed their schooling system and then their grandchildren would have to be educated. This matter had to be finished within two years.

Ms Smuts added that the issue of TRC victims was shameful. Could the Department find out if the President’s Fund, which was at R1 billion, was set up before it became available to TRC victims? What were the “community rehabilitation” regulations going to be? Which communities would be identified and how would they be assisted?

Dr De Wee replied that there was a list in the TRC report but it was unclear whether it was comprehensive. One of the challenges on the finalisation of this matter was implementation delays.

The Chairperson asked if there had been consultations with any of the listed communities.

Dr De Wee replied in the negative. The Department had attempted to liaise with the Premier’s Offices but to no avail.

Mr J Sibanyoni (ANC) said that it was important not to treat the Office of the Chief Justice as if it were a department under the Department of Justice.

Ms Smuts said that the Committee had to legislate on the Office of the Chief Justice.

The Chairperson agreed with Mr Sibanyoni. Was it the intention that the DoJ&CD Director General would still act as the accounting officer for the Office of the Chief Justice?

Dr De Wee replied that the Director General would be the accounting officer for now but the intention was to convert the Secretary General of the Office of the Chief Justice to be the accounting officer.

Mr Jeffery said that when the Superior Courts Bill was tabled in Parliament, the Committee would consider the structure and function of the Office of the Chief Justice. The Department was merely acting in anticipation of that development. The KPI that stated: Finalise the policy framework on the Transformation of the Courts, Superior Courts Bill, the Constitution Nineteenth Amendment Bill and Traditional Courts Bill should be removed. Why did the Department need a policy framework on the Superior Courts Bill and the Constitution Nineteenth Amendment Bill? It was unfortunate that Dr De Wee had to explain everything that was happening in the Department. The Committee had to have a workshop with the relevant officials from the Department who would answer all questions related to all the KPIs.

The Committee agreed with the suggestion from Mr Jeffery.

The Chairperson informed Dr De Wee that the Committee would not be too analytical and detailed from this point onwards as this would be done in a workshop when the Department would have a full complement of officials.

Mr Jeffery said that he had a huge problem with the exclusion of Output 22, which was on the improvement of case finalisation for criminal cases. The Department had excluded it because they believed it was a NPA function, this was incorrect. This had to remain as a KPI for the Department as it also involved Court Services.

Mr Ndabandaba suggested that the Department may want to look at the reduction of backlog cases where inquests were involved.

The Chairperson asked if all the role players were on board regarding case backlogs.

Dr De Wee said that more had to be done on this issue. The Department could only go so far before having to interfere with the work of judges.

Ms Smuts said that the real problem was a misdiagnosis of what was wrong; there was a shortage of magistrates.

Mr Jeffery disagreed with Ms Smuts that more magistrates had to be appointed.

Adv S Swart (ACDP) said that case backlogs had to be corrected by all involved; Parliament itself could create adequate legislation to address this matter.

The Chairperson agreed with the Members, the overcrowding of jails and holding cells emanated from this problem of case backlogs.

Mr Jeffery moved on to say that the solution for Maintenance was not enough from the Department. It would be important for the Committee to know what the numbers for maintenance related complaints were. If there was a backlog, it would be important to know what the Department was doing about it. From a constituency perspective, there were a lot of complaints regarding maintenance.

Adv Swart agreed with Mr Jeffery that there were too many delays. The Department had to have more KPIs for Maintenance. All role-players had to be on board.

The Chairperson agreed with Adv Swart but asked how would one be able to convince a magistrate to accept a KPI without infringing on the independence of the judiciary.

Mr Jeffery said that although magistrates were independent one could get buy-in from them. A final point on the KPI for the Child Justice Act was that the Committee had to know how the diversion programmes were working. The Committee needed a report on the state of diversion service programmes, their status and effectiveness. It would also be useful to receive input from Non-government Organisations (NGOs).

The Chairperson added that after April 2011 the Department should give the Committee a report on the state of implementation of the Child Justice Act.

Ms Schafer said that the training of magistrates should be flagged, as they were not applying the law correctly. This should be considered by the Committee in light of the review of the implementation of the Child Justice Act.

Mr Jeffery asked why the Department was undertaking the functions listed under KPIs 31.2-31.7. One had Legal Aid South Africa (LASA) and the Chapter 9 Institutions carrying out the listed functions. The SAHRC and Public Protector wanted more funding to open up offices all over the country, now the Department wanted to do the same thing. Could there be more specificity on KPI 31.6, what was it all about? KPI 31.6 was a Home Affairs function; legal aid groups based at universities and NGOs could do the functions under 31.6.

Ms Mphahlele replied that the reason for the KPIs was that there was a programme funded by the European Union (EU) which had contractual stipulations to the effect that the KPIs had to be in the strategic programme. The EU also did not want to provide funds directly to NGOs and preferred giving funds to government.

Mr Jeffery said that he rejected the reason provided, as the EU could not dictate to government how it should run things just because it provided funding. In addition, the Chapter 9 institutions were part of government. Where were the Community Advice Centres (CAC) being established? Where could the refugees and asylum seekers go to for help according to KPI 31.2 and 31.6? How was the Department going to ensure 100% compliance with the Promotion of Access to Information Act (PAIA)?

Dr De Wee replied that more detail would be provided at the workshop. The CACs were set up to provide advice in rural areas. They would also provide support to refugees. The intention behind PAIA was to try and ensure compliance amongst government departments. An inter-departmental task team had been set up, led by the Department and the Department of Public Service and Administration (DPSA) as the levels of PAIA compliance within government was poor.

Mr Jeffery pointed out that refugees were migrating to the urban areas and yet the CACs were being opened in rural areas. These KPIs were something that had to be seriously considered.

The Chairperson said he was skeptical about these particular KPIs. On the PAIA issue, when the Act was being implemented and Directors General discovered that they and the Departments could be hauled before court based on PAIA they issued directives to their departments to the effect that no PAIA applications should be granted. These directives were still out there.

Ms Smuts exclaimed that only now the Chairperson revealed this.

The Chairperson said that he thought she knew as she spoke to people, otherwise why had the Act not been working.

Ms Smuts said that mute refusal went against PAIA provisions.

The Chairperson said that if the departments had not received written directives then the Directors General had verbally said to their officials: ‘You dare and you will be in trouble with me’. This was common knowledge and now the Department was being tasked to fix this. All that had to happen was that all the Directors General should be called in and told that PAIA was an Act of Parliament and they had to comply, one could not just have a mute refusal. There had to be compliance with PAIA.

Mr Jeffery said that KPI 31.7 (“Compliance with PAIA Act”) was not worth the ink. This was the SAHRC’s function.

Ms Smuts said that the information revealed by the Chairperson should be conveyed to everybody who worked in the field.

Adv Swart said that KPI 32.1 should in fact be meant for the Committee.

Mr Jeffery said that the old wording of this KPI was fine, the current one was meaningless. Legislation was developed when there was a need for it, the Committee could not cope with this volume, was this not the function of the South African Law Reform Commission (SALRC). If the Auditor General changed this then they did not have any knowledge of legal processes.

The Chairperson said that the Department should re-use the old wording.

Adv Swart said that the issue of civil litigation paid for by the state should be flagged for the workshop. Who decided if the state should settle a matter out of court as the tendency was that a state department would challenge a matter only to settle on the day the matter was due to be in court. This resulted in unnecessary and high legal costs. This also contributed to case backlogs.

Ms Schafer agreed.

Mr Jeffery said that transformation in the legal fraternity was more than just about receiving briefs. An attorney establishing himself or herself financially could be given unopposed motions to assist them financially. The Cape Bar figures for African counsel was shockingly low and had not been improving. In the Western Cape for example was coloured or Indian counsel were regarded in the same breath as African counsel.

Mr Ndabandaba said that the advice from Mr Jeffery had implications for law schools as well.

Dr De Wee said that he accepted the advice and he would raise it with his colleagues.

The meeting was adjourned.