Budget Vote: Briefing by Department of Justice & Consitutional Development

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Justice and Correctional Services

28 March 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) presented its strategic plan and budget for 2011. The mandate of the Department of Justice and Constitutional Development was derived from the Constitution and various legislative provisions. The Department had to provide an environment for the effective and efficient administration of justice, and promote constitutional development through the development of legislation and implementation of programmes that would deepen and nurture constitutional democracy. It was noted that transformation of the judicial system would include institutional reforms to strengthen the Office of the Chief Justice, rationalisation of the Superior courts, the re-alignment of magisterial districts with municipal districts, and a review of the civil justice system. The budget of the Department had been reduced by R2.1 billion for the Medium Term Expenditure Framework (MTEF). This affected a number of areas, but key concerns were the need to replace ageing IT infrastructure, in view of the risk posed by a breakdown, so the Department was attempting to source donor funding and provide IT services in house. Safety and security costs were also escalating and the Department might consider engaging the South African National Defence Force to secure the courts. Some infrastructure building projects had had to be halted, due to poor cash flow, but National Treasury had provided some funding. Another concern was the increased litigation against State departments, and the Department saw the need to have a properly coordinated approach and was aiming to develop a policy framework and capacitate the State Attorney. Budget cuts had also affected the judiciary, particularly the lower courts. It was necessary to expand support staff in courts, to make adequate provision for library services and enhance Constitutional programmes.

The Department had received qualified audits in 2008/09 and 2009/10, both containing qualifications on Third Party Funds, but it aimed to have an unqualified audit in 2010/11. The services provided through the Office of the Master of the High Court were important to protect the rights of minors, and Legal Aid South Africa was also assisting minors who were heirs. The Master’s Office would be rebranded. Maintenance services would also be undergoing a turnaround in 2011/12, including services on Saturdays, increased maintenance investigators, queue reduction and properly qualified maintenance staff. Media and awareness campaigns would support this. The Department reported that it was within targets for case backlogs, and was addressing bail issues. Three new Chief Directors would take up their posts on 1 April 2011. Critical capacity was needed in the Compliance Unit, Labour Relations, Contract management and Research and Development.

The four main strategic goals were outlined, which aimed to have increased accountability, effectiveness and efficiency, increased effectiveness and efficiency in delivery of justice services, transformed legal services and effective coordination of the Cluster. The Department would be focusing on an unqualified audit, improved maintenance services and improved delivery of Masters’ services. The main programmes of the Department, and the supporting projects, were outlined.

Members were quite critical of many aspects of the presentations. They commented that this presentation bore little relation to what had been presented before, and was difficult to follow. Members were particularly concerned, and questioned the Department extensively on the Third Party funds, and whether the Department was intending to introduce legislation or pursue the idea of a Trading Entity. They were also concerned whether there had been corruption in these funds. Other issues of concern were vacancies and human resources. Members commented on the slow payout of benefits to victims identified in the Truth and Reconciliation Commission (TRC) process, questioned the figures, commented that many of those receiving the benefits were the great-grandchildren of the victims, and commented that their plight seemed to be taken less seriously that military veterans. Members also queried the State litigation processes and the use of the State Attorney. A Member questioned the contract allegedly awarded to Bosasa by the Department. Concern was expressed about library allocations.

 

The afternoon session of the meeting commenced with answers to questions posed during the morning session, relating to the strategic plans. Members also questioned, at some length, the position of the State Attorney, and the briefing policy in relation to counsel from previously disadvantaged backgrounds. The Committee suggested that more should be done to educate citizens about their rights where maintenance was not being paid, particularly attachment of the property of the party failing to pay, and enquired why the Department had not regularised the position of the Commission on Gender Equality, which was legislated for under the Interim Constitution. They further questioned the arrangements for security of the courts, whether any risk assessments had been done, the case backlog figures, the filling of senior management posts, and the reduction of the numbers of sexual offences courts, which were particularly effective and should be increased. Members also asked what had been done to combat fraud related to the Guardian’s Fund, suggested that community radio should be used to try to trace TRC victims, and asked what had been done to facilitate the implementation of the Traditional Courts Bill, and why no reports were given on the currently-operating courts. The Department was urged to introduce much stronger internal controls and improve its relationship with the Auditor-General. Members also asked about the support structure for the Chief Justice, the allocations for implementation of the Protection of Personal Information Bill, and urged that areas of potential duplication with the Chapter 9 institutions must be identified and eliminated.

The Department of Justice and Constitutional Development (the Department) then presented its Estimates of National Expenditure to the Committee. It was expected that the Department would grow by 6.3% for the 2011/12 financial year. A contributing factor to the forecasted growth were new courts in Limpopo and Mpumalanga, which would cost an estimated R500 million each to construct. The budget figures for new legislation were set out, and another important allocation was a sum of R100 million for 2012, rising in the following year, for the renewal of Information Technology infrastructure. A Presidential Initiative, entitled “The Nation in Dialogue” was allocated R30 million. Personnel costs had increased, largely because of the implementation of the Occupation Specific Dispensation, and backpay for this. In addition, a number of new posts were to be created, as set out fully in the presentation. It was noted that all non-essential expenditure had been cut back. The total budget growth was driven mainly by personnel costs, court services and the National Prosecuting Authority. More money was spent on the lower courts, which were more numerous than higher courts, at 61% of the court services allocation. One challenge was how to allocate money for facilities management, and it was decided to set aside R27.7 million for fixing of minor maintenance. The Department was aware of the challenging need to fill all vacant posts and expand capacity.  

A Member criticised the way in which information was presented to the Committee, noting, firstly, that some of the information now presented conflicted with a presentation made in October 2010, and secondly that the information on the courts in Nelspruit and Polokwane did not present all the facts comprehensively, and thus resulted in confusion as to whether the courts were running already. Members asked about the ending of the Public-Private Partnership, the reasons, and how much had been spent to date. Members also asked for a report on the Department’s response to the Committee’s Budgetary Review and Recommendations Report, and on the meeting with the Standing Committee with Public Accounts, and wondered if the Bosasa contract was addressed at that meeting. Members also asked who was responsible for maintenance, and commented that it was disempowering for this Department to have to direct all maintenance via the Department of Public Works.

Meeting report

Department of Justice and Constitutional Development: 2011-16 Strategic Plan and Budget briefing
Ms Nonkululeko Sindane, Director-General, Department of Justice and Constitutional Development, tabled the Strategic Plan of her department (DOJ&CD or the Department), indicating that this encompassed the strategic objectives, which were linked to the programmes of the Department. The Department was also developing the Annual Performance Plan (APP), which would indicate how much the Department had done so far.

She noted that the targets must now be in line with the principles set by the Auditor-General, referred to as “SMART” (Specific, Measurable, Attainable Realistic and Time bound) principles. The mandate of the Department was derived from the Constitution and various legislative provisions. These required the Department to provide an environment for the effective and efficient administration of justice and to promote constitutional development through the development of legislation, and implementation of programmes that would deepen and nurture constitutional democracy. She outlined some of the most important constitutional legislation.

Ms Sindane noted that the transformation of the judicial system entailed some key programmes, which included institutional reforms to strengthen the Office of the Chief Justice, rationalisation of the superior courts, the re-alignment of magisterial districts with municipal districts, and the review of the civil justice system (CJS). The Department was also working on the judges’ registrable interests. 

Ms Sindane noted that the Department was organised under categories dealing with financial, internal processes, customers, and people issues. The budget of the Department had been reduced by R2.1 billion for the Medium Term Expenditure Framework (MTEF) period. This, amongst others, affected its Information and Communication Technology (ICT) systems. This was of concern, since the Department had ageing servers that were out of warranty and this posed a risk for operations countrywide. The Department would try to address this challenge by attempting to engage the donor community, and consider performing Information Technology (IT) services in-house. Another concern was the escalating cost for safety and security, including the national courts, and a possible solution might be to engage the South African National Defence Force (SANDF) to secure the infrastructure. The Department was experiencing infrastructure costs that were above the inflation rate, and insufficient cash flow had resulted in some building projects being
halted midway. The number of staff in the Department was growing, and there was simply not enough accommodation for them. The Department continued to engage with National Treasury on this matter to try to secure funds.

Ms Sindane noted that State departments were experiencing increasing litigation against them, which resulted from the growing awareness of people’s rights. A coordinated approach was needed. The Department was aiming to develop a policy framework for the efficient management of State litigation, to capacitate and enhance the Office of the State Attorney by increasing human capital, to implement a standarised fee structure for private Counsel, and to develop an alternative dispute resolution (ADR) procedure.

Ms Sindane outlined that the judiciary had also been affected adversely by budget cuts, particularly in the lower courts, which lacked adequate tools of trade. The Department had to expand the support personnel in courts, to have adequate provision of library services to the various courts, and to enhance constitutional development programmes.

The Department had also realised that it was falling behind in its management of internal processes and this had to be addressed. In 2008/09, the Department received an audit qualification in respect of Third Party funds, assets, leases, leave and irregular expenditure. In 2009/10, there was a qualification, but only in relation to Third Party funds and irregular expenditure. The Department hoped that there would be no audit qualifications in the 2010/11 financial year. It was planning to increase its anti-corruption capacity to deal with fraud and corruption. It was also planning to have more efficient internal disciplinary processes to deal with corrupt individuals within the
organisation.

Ms Sindane stressed that it was important for the Department to provide services that directly affected the lives of citizens. One of these was the Office of the Master of the High Court (the Master). The Department had signed a cooperation agreement with Legal Aid South Africa (LASA), to assist minors who were heirs to estates so that they were not exposed to deceit and fraud, as well as high legal fees. LASA was now already assisting more re minors who were heirs to estates. The Home Affairs National Identification System (HANIS) had been adapted by the Master, in order to verify clients who were beneficiaries of the Guardian’s Fund. The Department was also planning to
prioritise the Master’s Services and also to rebrand this office. The Maintenance Services Project had been developed to deal with maintenance services, and this would be rolled out in the coming financial year. The turnaround strategy here would include offering services on Saturdays, increasing maintenance investigators, and reducing the numbers of citizens in queues at Maintenance Courts. The Department would also ensure that all maintenance staff were properly qualified. The Department would launch improved media and awareness campaigns, which would include making the contact numbers of Court managers available to anyone needing assistance or wanting to lodge a complaint.

Ms Sindane then outlined the performance for certain defined goals. The Department was currently performing within the targets set in its signed performance agreement, in respect of the case backlog project. Bail was one of the issues with which the Department had struggled, and the Department would try to keep those committing very serious crimes behind bars. The Department was building its ability to respond to queries received from the Presidential Hotline. It acknowledged that it had shortage of skills in critical areas such as finance, risk management, internal audit and strategy. However, three new Chief Directors would take position on 1 April 2011. The Department had experienced some challenges in attracting people to take up the vacancies, particularly women and the disabled. Critical capacity was needed in the four key areas of the Compliance Unit, Labour Relations, Contract Management, and Research and Development.

The Department would continue to assist and protect the Chapter 9 institutions by facilitating the budgetary process and assisting with financial arrangements, promoting proposals emanating from the reports of those institutions, and ensuring that Section 181(3) of the Constitution was complied with.

Ms Sindane then proceeded to set out the strategic goals. Strategic Goal 1 related to achieving increased accountability, effectiveness and efficiency of the DOJ&CD, and this was directly linked to activities in Programme 1 (Administration). Strategic Goal 2 related to the improved effectiveness and efficiency in the delivery of justice services. Strategic Goal 3 aimed to transform legal services to protect and advance the interests of government and citizens, and to promote constitutional development. Strategic Goal 4 related to effective coordination of the Justice Crime Prevention and Security (JCPS) Cluster.

The Department’s top three priorities were to achieve an unqualified audit, to improve the delivery of maintenance services and improve the delivery of Masters’ services. Its efforts to achieve an unqualified audit focused on the development, implementation and monitoring of effective controls, and putting in place an accounting system that would enable the Department to produce financial statements for Third Party Funds and the Criminal Asset Recovery Account (CARA), to appoint qualified staff to support and implement financial processes and procedures, to implement human resources systems that would improve the management of leave, and finally to implement internal audit processes that would provide early warnings of impending risk areas. The Maintenance Turnaround Project would be implemented in 2011/12 and would address service improvement through Saturday services, upgrading of skills for frontline staff, improved management of customer complaints and the launch of an improved media an awareness campaign. Key initiatives for the improved delivery of Masters’ services were the appointment of frontline staff who could resolve a wide variety of enquiries without escalations, and the implementation of training for a client-driven approach.  

Ms Sindane then turned to a description of the various programmes. She reiterated that Programme 1 related to Administration. The objectives were set out in some detail (see attached presentation) and included increased compliance with prescripts to achieve and sustain an unqualified audit, improved management of fraud and corruption cases, improved human resources and service delivery, and increased optimisation of 11 manual and automated systems, as identified in the Information Technology Plan. The Department also aimed to complete 90% of outstanding Truth and Reconciliation Commission (TRC) victim reparation cases, and believed that this was now achievable, because it had had major breakthroughs in locating beneficiaries.

Programme 2 related to court services. The purpose of this programme was to facilitate the resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to courts, and management of court facilities. This programme took up about 70% of the Departmental budget, and was at the core of the delivery of justice services. There were still major challenges around financial constraints, insufficient capacity and an insufficient budget. Within this programme were objectives related to the improved coordination of the JCPS, improved finalisation of matters, and improved delivery of maintenance services. Other programmes would be directed to increased protection of the rights of vulnerable groups, increased access to justice services in under-serviced communities and improved functionality of justice service points. Overall, the Department sought to establish high standards in court services across the country, and there would be ongoing investment into this over the next five years.

Programme 3 related to State Legal Services. The Department aimed to provide legal and legislative services to government, supervise the administration of deceased and insolvent estates, and liquidation of juristic persons, deal with the registration of trusts and management of the Guardian’s Fund. Several challenges had been identified under this programme, including insufficient capacity to meet the legal services requirements of all State organs, increasing litigation costs and a shortfall of participatory democracy programmes. Ms Sindane highlighted particular objectives, as improved service delivery at the Master’s service points, increased efficiency in the provision of services to beneficiaries of the Guardian’s Fund, of trusts and of the insolvent and deceased estates. In addition, the Department would seek to promote constitutional development and strengthen participatory democracy and ensure the respect for fundamental rights. Overall, it would strive to achieve an improved policy and legislative framework for effective and efficient delivery of justice services. The Department was confident that all internal issues would be adequately dealt with.

Discussion
Mr J Jeffery (ANC) said that it was sometimes difficult to follow the presentation, and assess exactly where it stood. He highlighted that in the past there had been a focus on key performance indicators (KPIs), but now the objectives were outlined.

Mr Jeffery added that the Department had not said much about the virtual IT library.

Mr Johnson said that the virtual (IT) library was started from the baseline, and R120 million would be needed per year to provide this service to the Department and the judiciary. The Department would need R10 billion over the next three years to satisfy all its needs. Through the interventions of the Committee, the Department was able to get R100 million for the second year of the MTEF, and R110 million in the third year. This had created the opportunity for the Department to invest in IT.

Adv Simon Jiyane, Deputy Director General: Court Services, DOJ &CD, added that the Department was aiming to invest more funds in the virtual library.

Mr Jeffery queried the status of Third Party funds. The Committee had been told that a trading entity would be established, following instructions from National Treasury (NT), but there was nothing in the presentation on this point.

Mr Johnson responded that for the past ten years the Department had not been able to produce credible financial statements for the Third Party Fund. Over the next six months, forty-five additional finance practitioners would be appointed in order to assist with financial management. The Department had submitted an application to establish a trading entity for the Third Party Fund, and another option could be to draft legislation to regulate this.

Mr Jeffery said that he was now confused. Mr Johnson seemed to be suggesting that the issue of the trading entity was not resolved, and that the Department did not know whether to establish it or to have legislation drafted. The Department seemed to have advanced no further on this than it had by October 2010.

Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ & CD, said that there was draft legislation in place and there were a few outstanding issues that had to be sorted out with National Treasury. Since there had been no response from National Treasury on the trading entity, the Department had gone ahead with drafting the Bill.

Mr Jeffery said that he thought the Committee had been told that legislation was not needed, that the public-private partnership (PPP) was not to proceed, and that it would be preferable to go ahead with the trading entity.

Ms Sindane confirmed that the Department had indeed said this. She apologised for the confusion. The bill to which Mr Rudman had referred, and the trading entity were two interventions aimed at addressing the same issue.

Mr Jeffery said that the Committee and the House had adopted a report, in October 2010, that said that National Treasury had advised that a trading entity was needed. The Committee was now being told that legislation had been developed, despite the Department having advised the Committee, in October, that there was no need for legislation, and that the trading entity would suffice. This indicated that the Department simply did not know what it was doing. He warned that, in light of this, he was expecting the qualified audits to continue into 2011/12.

Mr Jeffrey added that apart from Third Party funds, other outstanding concerns were the vacancies and the Human Resource (HR) issues. The Department had not said much on these. The Department was large, and in order to fulfill its mandate it had to fill vacancies and sort out the staff grievances, so a report was needed. He asked when last a Chief Master had been in place.

Mr Johan Johnson, Acting Chief Financial Officer, DOJ & CD, said that the current vacancy rate in the office of the CFO was 24.36%. Three new chief directors were going to be appointed for budgeting, legislative costing and financing.

Mr Jeffery interjected and said that in a previous presentation the Committee was told that it was 25%, and this was not good enough. This was raised as an issue in October 2010. He noted that an entity such as Legal Aid South Africa could manage to fill about 97% of its posts and asked why the Department could not do the same. There were bound to be problems with the financial systems if a quarter of the staff needed were not in place.

Mr Vuso Tshabalala, Head: Corporate Services, DOJ & CD, said that the current overall vacancy of the Department was a little over 9%, and this included the judiciary. The vacancy rate in the office of the CFO had remained steady and had not gone down.  In the past four months, one hundred staff had been appointed. The particular challenge in the office of the CFO was the high turnover rate, and in order to mitigate this the Department had tried to hire staff on a fixed term basis.

Mr Jeffrey said it was also impossible to follow what was happening on case backlogs, as the numbers kept changing.

Adv Jiyane noted that the Department, in consultation with the judiciary, was looking at proposals and measures that were aimed at reducing case backlogs. They included the introduction of performance targets for courts, especially lower targets. The Chief Justice (CJ) had taken ownership of the productivity of the courts, and had set up a committee that monitored the performance of the courts. This Committee was headed by a judge.

Mr Jeffrey questioned who was responsible for maintenance, and whether there was coordination.

Mr Jiyane outlined some of the interventions that were planned in respect of maintenance. He said that maintenance prosecutors coordinated all maintenance related issues. Not all courts had maintenance prosecutors and this posed a major challenge. Most prosecutors would be inclined to focus on criminal matters rather than maintenance ones. To address this challenge the Department had appointed maintenance officers. The Department also wanted to have an alternate dispute resolution programme to avoid litigation on every single aspect of maintenance.

Mr Jeffrey also asked about the TRC Regulations, as the Department had spoken only to the tracing of beneficiaries.  Overall, this presentation did not address the issues raised in the last meetings.

Dr Khotso De Wee, Chief Operations Officer, DOJ &CD, said that there were no major differences between this strategic plan and the previous one of 2010/11. He explained that regulations pertaining to the educational assistance of TRC victims had been finalised. Health and Education Regulations would be published for comment during April. He noted that the Independent Electoral Commission (IEC) had linked 500 registered voters to the TRC beneficiaries and the Department had addresses for 461 of the outstanding TRC cases. Within the next 24 months, the Department would be able to pay beneficiaries. The Community Liaison Officers of the Independent Development Trust would be used to do a needs assessment so that the Department could initiate further interventions.

The Chairperson said that the concern was that the beneficiaries who might eventually receive payouts would be the great grandchildren of those who appeared before the TRC. That was unacceptable.

Mr Jeffrey asked how far the Department had gone in finalising the Housing Regulations.

The Chairperson said that this must be a standing issue at every quarterly meeting.

Mr Jeffery commented that, following a request from the Department, the Committee had managed to persuade the National Assembly (NA) to approve additional funds, to the tune of R319 million, for the improvement of court security and justice offices. However, National Treasury then said that this amount was not requested by the Department.

Dr M Oriani-Ambrosini (IFP) raised a point of order, noting that Mr Jeffery had been allowed to ask questions for the past hour, and that the opposition members now had to leave the meeting.

The Chairperson noted that this Committee had the entire day allocated to the Department.

Adv S Swart (ACDP) said that he found the manner in which Mr Jeffery was allowed to ask questions very useful. The Department should be provided with the documents prepared by the Researchers of this Committee, as very important issues were raised. What the Committee was essentially trying to establish was if there had been any improvement in the running of the Department. It was interested in knowing to whether and to what extent there might be fraud and corruption in the Third Party funds.

Mr Swart noted that the Office of the Chief Justice was a government department, and it obviously had to be independent. He would like to hear more on the reporting lines, as the CJ had to have full control.

Mr Swart also asked for more clarity on the process of getting more funding and what should happen when the Committee had recommended that the Department should get more funding. He wondered if there were blockages in National Treasury.

Mr Swart noted that State liability was another important issue. He asked if it would not be possible for the Department to fund judgments against the State, as the first person who would know of a judgment debt against the State would be a State Attorney. He asked for more clarity on the comment that around 30% of State legal services would be privatised. He also sought more information on the success rates of State Attorneys appearing on behalf of the State in civil litigation. It would also be useful to know at what point settlement was reached in these cases, as it would save huge legal costs if early settlement was obtained in cases that were not so likely to succeed.

The Chairperson added that he would like to hear what criteria there were as to when a government department could decide whether to use State Attorneys or private Counsel.

Dr Oriani-Ambrosini said that he was a dissatisfied customer of the Department. A suggestion had been made that an American style legal system could be adopted, and this could shrink the trial times considerably. Lawyers could sort out issues before trial, leaving only a few issues still to be resolved at trial. He described the split profession of attorneys and advocates as “an absurdity” that was penalising citizens, as three lawyers ended up doing the work that could be done by one. He commented that the legislature could make laws for anything, but it tended to sit back and wait for the lawyers to sort out the matters around the legal profession. He urged that the notion of junior and senior lawyers should be done away with, and that the Department should be taking the lead in this.

Ms M Smuts (DA) said that the ideas expressed by Dr Oriani-Ambrosini were interesting but this was the wrong forum to express them.

Ms Smuts asked the Department to respond to City Press and Rapport media reports that the Department had given a contract to Bosasa in December 2010, to the value of R391 million over twenty-four months, and another for R333 million related to court security, particularly in view of the statement that the SANDF might now be asked to assist in securing courts. She pointed out that Bosasa was being investigated by the Special Investigating Unit (SIU), following allegations of corruption in the awarding of Department of Correctional Services (DSC) tenders to this company. This matter was apparently now with the NPA. She asked why the Department appeared to be awarding contracts to the same company.

Ms Smuts said that judges were not happy with library services. The Constitutional Court (CC) had a budget allocation of R117 million, whilst the Supreme Court of Appeal (SCA) had a budget of R17 million. She asked if the DOJ & CD decided on the budget allocations, saying that they were incorrect. Ms Luthuli, the librarian at the Constitutional Court, had been asked by the CJ to visit all the libraries, according to a report from the General Council of the Bar. She had apparently told the Supreme Court of Appeal that the Constitutional Court had eight qualified librarians, as well as other staff who dealt with other facilities and the website. The Supreme Court of Appeal, on the other hand, had one unqualified librarian and an assistant. The allocations were also widely divergent, as the CC’s library allocation was R8 million whilst the SCA’s was R100 000, for all 22 judges’ chambers and subscriptions. The SCA had not bought a single book in eighteen months.  This was clearly not right, as the SCA was the final court on all matters save for Constitutional cases.

Ms Smuts commented that the TRC figures did not add up. The Committee was advised that there were 875 cases outstanding. The DHA had apparently traced 500 people, many of whom were deceased so only their next of kin could be found. That meant that only 375 still had to be traced. However, it was said in this meeting that 461 victims were traced through the IEC. This did not seem to add up. She noted that there was apparently R1 billion in the President’s Fund that was being used for exhumations.

Ms Smuts noted that the Minister of Defence had tabled a Bill promising housing, health and education to military veterans, but had apparently failed to cost the Bill, although a later costing by Alexander Forbes estimated that this would cost R65 billion. This was not achievable. Although the TRC victims were also adversely affected during the apartheid era, it was likely that the Bill tabled by the Minister of Defence would go through, given the political interest, and that those beneficiaries would be looked after. She then wanted to know what would be in the regulations in regard to the benefits for TRC victims, and what the cost implications would be. That R1 billion in the President’s Fund had to be used so that it had a productive effect. She did not think that the Community Liaison Officers would work, as they would most likely serve their own interests.

The Chairperson proposed that the Committee adjourn and reconvene at 14:00 for the latest questions to be answered.

The first part of the meeting was adjourned.

Continuation of Discussion from morning session
The Chairperson requested that the previous session’s questions be addressed by the Department of Justice and Constitutional Development (DOJ &CD or the Department).

Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development, added to the answers given earlier on the amount of R391 million that the House approved, yet that Mr Jeffery thought had not been allocated by National Treasury. She explained that the Department had in fact applied for this funding, and it had received an amount that would be allocated to IT infrastructure from the 2011/12 financial year onwards. The exact figure remained to be confirmed. National Treasury had also approved funding for the Business Continuity Plan that would commence in 2012/13.

Dr Khotso De Wee, Chief Operations Officer, DOJ & CD, answered questions around the Bosasa tenders, and said that this was recently of concern to the Department as well. The contract followed the normal processes of tender advertising, establishment of the bid evaluation committee, who then made recommendations to the bid adjudication committee and selecting a final bidder out of three recommendations. The Department at one stage had considered cancelling the contract. However, it did not do so because this company was not blacklisted, none of its directors had been charged and a number of departments had either renewed or awarded contracts to Bosasa. The Department thus continued with the contract. 

Mr de Wee responded to questions on the TRC beneficiaries, noting that the Department had previously informed that 500 of the TRC beneficiaries were deceased. For this reason, the Department thus had to find their next of kin. The Independent Electoral Commission (IEC) had identified 461 addresses and had linked the ID numbers of 579 beneficiaries. The Department had been working with the Institute for Justice and Reconciliation.

Mr Johan Johnson, Chief Director: Budgets, DOJ &CD answered the questions on the budget allocations for Constitutional Court (CC) and Supreme Court of Appeal (SCA) He noted that the allocated figures for the two courts were informed by the services provided.  The additional costs for the CC included costs for the Judicial Service Commission (JSC), all international travel of judges, and the Judicial Education Institute (JEI). The President of the SCA had revealed that there was a R2.9 million shortfall for this court. However, he reiterated that the difference in budget was related to the difference in the courts’ support staff, personnel and services provided.

Ms D Schaefer (DA) said that the original question related to the huge difference in the budget allocations for the libraries.

Mr Johnson said that there was a Library Committee, consisting of members of the judiciary, chaired by Judge Dennis Davis, who advised on the budget allocations. He agreed that there were concerns on the funding for the SCA’s library. There should be communication between court managers at the various court structures. The Department’s national office did not make specific allocations of funds. The Department would consider what more could be done after it had determined the costs of the additional judges that have just been appointed.  

The Director General added that one of the resolutions taken by the JSC was that the various judicial committees should work with the Department directly in order to tackle such issues.

Mr Deon Rudman, Deputy Director General, DOJ & CD addressed the question of whether the Department could settle judgment debts against other departments in civil litigation. He noted that this would be extremely difficult to do, especially as National Treasury had been identified in Judge Mokgoro’s judgment in the Nyathi 1 case.

The Chairperson added that the other question related to the criteria for the use of private counsel. If private counsel were briefed, then this raised the question of what the State Attorney should be doing.

The Director General replied that there was no straightforward answer to this. The Department and Minster have considered whether it was discretionary for departments to retain private counsel over State Attorneys. The State Attorneys Act bestowed the responsibility for the State’s legal cases on that office. The criteria for using counsel was provided by that office, as the State Attorneys prepared the briefs for counsel. Every Department had its own counsel, because of established relationships. The Department of Justice was of the view that the retention of private counsel had to be managed tightly, but there were no special criteria.

Mr J Jeffery (ANC) noted that the advocates working for the State were prosecutors with the National Prosecuting Authority (NPA). If there was any civil court work that required advocate, then private counsel would be used. The enquiry had not related to the use of advocates, but had rather been directed to the circumstances under which departments were allowed to use private attorneys. Theoretically every department should use state attorneys, but he wanted to know the official position on this. In October, the Department had said that a policy framework for briefing counsel had been developed. However, it now seemed to be saying that this still had to be developed. He enquired what the correct position was. 

Mr Jeffery also questioned the briefing patterns. He noted that private counsel had expressed their concern that it seemed as if only those close to the State Attorney would be briefed. The Department’s targets for developing previously disadvantaged black individuals would not necessarily be achieved if there was unequal distribution of briefs. It would be useful for the Committee to receive reports on who was getting the briefs, how they were being distributed, the criteria and whether a policy framework was in place.

The Director General said that there was a blueprint policy that determined the allocation of briefs and a draft policy was in place, but was awaiting approval from Cabinet.

Mr Jeffery asked when the policy was going to be approved, and whether it was ready to go to Cabinet.

Ms Pillay, Legal Services, DOJ & CD said that more research had needed to be done on the document that was prepared in October, but this research was now complete, the document was being consolidated, and a final draft would be submitted to the Director General within the next two weeks.

Mr Jeffery said that the Department should have said this up front, and not insult the Committee by assuming that Members would have forgotten about this issue.

The Director General noted this comment. She continued that 65% of briefs, both in number and value, were being given to counsel from previously disadvantaged backgrounds. It was now a requirement that reports pertaining to briefs should take into consideration when briefs were given and what criteria was used. These reports were showing positive signs of change, especially in Gauteng. In other areas the results were not so good because there were no senior or junior counsel who met these criteria that could get briefs.

Mr Jeffery said that in October the Department had said that 74% of the briefs went to black practitioners. The total figure given was 3 728. He reminded the Department that this was not merely a numbers game but was to do with development. He suggested that one option would be to give a junior advocate a say in which Senior Counsel should get briefs, so that the Senior Counsel would develop the junior.

Ms Schaefer asked why the State had to brief advocates at all, since attorneys had the right of appearance in the High Court, so if there were sufficiently experienced State Attorneys, private counsel did not need to be retained.

Ms Schafer asked what engagement the Department had with the personnel responsible for the security of the courts. The maintenance of courts was a serious issue of concern, as previously warned to the Departments, and as illustrated clearly by the incident at the Pretoria court this year, where both infrastructure and dockets had been destroyed. She asked if the Department had any risk assessment strategy to determine which courts were the most vulnerable.

Dr De Wee said that the Department was engaging with security companies to provide security for its infrastructure. The South African Police Service (SAPS) had agreed to take over the security of courts adjacent to police stations. This still had to be finalised.

Mr Johnson added that the costing for the maintenance backlog was R1.027 billion. It would have been difficult to get funding for maintenance after having requested extra funding from Treasury for IT and security services.

Ms Schaefer clarified that her question related to whether or not any study had been conducted to determine what courts needed urgent attention.

Mr Johnson replied that the Department had a user asset management plan and the Department had done a conditional assessment of all the courts. The Department could not have foreseen that there would be an urgent need for the maintenance of the Randburg Court.

Ms Schafer pointed out that in maintenance matters there was a simple solution that could be used to reduce backlogs and ensure compliance, which was to have a Writ of Execution issued, on the basis of an affidavit by the person entitled to maintenance, which would then result in the property of the person who failed to pay maintenance being attached. She suggested that more people should be educated about their rights in this regard.

Adv Simon Jiyane, Deputy Director General: Court Services, DOJ &CD, said that the Writ of Execution against the property of a person who was supposed to pay maintenance was being used in the High Court. By the end of December 2010 the Department had finalised 12 702 maintenance cases.

Mr Rudman added that the Minister of Justice had given approval for the South African Law Reform Commission (SALRC) to undertake a project to review the Maintenance Act.

Ms Schafer was also worried about case backlog figures, which did not seem to be coming down.

Ms Schafer asked how many senior management posts had been filled.

Ms Schafer said that another matter of concern to the Committee, as expressed already at the last meeting, was the reduction of dedicated sexual offences courts. These were more effective than the Thuthuzela Care Centers (TCC), and the dedicated sexual offences courts should be increased.

Ms Schafer asked what the Department had done to combat fraud related to the Guardian’s Fund.

Mr J Sibanyoni (ANC) suggested that the Department should make use of community radio stations to trace TRC victims and beneficiaries. This medium had proven time and again to be an effective tool.

Dr De Wee said that the suggestion for the use of community radio would be pursued.

Adv S Holomisa (ANC) said that the Commission on Gender Equality (CGE) was still operating on provisions of the Interim Constitution, which did not match to the provisions in the final Constitution, and asked why the appropriate legislation had not been passed to correct the position.

Adv Holomisa asked what plans the Department had in place to facilitate the implementation of the Traditional Courts Bill, once it was passed by Parliament.

Adv Jiyane said that the state of readiness of the Department on the Traditional Courts Bill would depend on the finalisation of the Bill in Parliament. The Department aimed to align traditional courts with magistrate’s courts. The traditional courts would continue to operate under the same infrastructure but there would be a progressive approach to create appropriate circumstances under which they would operate.

Adv Holomisa said that he would imagine that the Department would already have had something to report, as traditional courts were currently operating.

Adv Jiyane said that the traditional courts were operating under non-integrated systems. Resources for the traditional courts would be provided for under the Bill. The courts would be fully recognised and catered for under the new legislation. At the moment there was no mandate for the Department to support traditional courts.

Ms S Shope-Sithole (ANC) commended the Department for its determination in aiming for an unqualified audit report. The Department had to have strong internal controls, corporate governance structures and strong communication structures with the Auditor General (AG). She urged that the Department should not ignore any of the management letters from the AG.

The Director General assured her that the Department would improve its relations with the AG.

Mr Jeffery asked how the new office to support the Chief Justice would be accounting to Parliament, and who would head it.

Adv Jiyane added that the Office of the Chief Justice would be a separate Department, with its own accounting officer. The Department would support this office and ensure that it had separate accounting systems.

Mr Jeffery asked how much had been allocated to implement the Protection of Personal Information Bill, once it was passed. 

Mr Johnson responded that R18 million had been put aside for the Protection of Personal Information Bill over the MTEF period.

Mr Jeffery pointed out that the allocations for Constitutional Development were rising quite considerably, and asked whether the Department was communicating with the Chapter 9 institutions so as to avoid duplication.

Mr Rudman said that the Department was busy with the finalisation of the Human Rights Commission Amendment Bill, but had also been instructed to consider which aspects of the report of the ad hoc Committee on the functioning of the Chapter 9 Institutions could be implemented. The CGE Bill had been transferred to the Department of Women, Children and Persons with Disabilities.

The Director General added that the Department had not consulted with any Chapter 9 institutions on constitutional development as yet. Any consultations that had taken place had been broad rather than specific. The business case for Constitutional Development included addressing such issues as racism and xenophobia. This branch would also provide guidance as to the decisions of the Constitutional Court, as well as gathering responses from the public, which would serve as a guide for the Department on its performance.

Mr Jeffery said that this would result in overlaps in functions between the work of the Department and that that of the South African Human Rights Commission (SAHRC). One area of overlap would be the promotion of the Bill of Rights. The lack of communication with the SAHRC would result in duplication. The Department should eliminate duplications before the SAHRC appeared before the Committee for it next quarterly report.

Presentation on Estimates of National Expenditure
Mr Johnson said that the expected growth in the Department was 6.3% for the 2011/12 financial year.  R85 million and R90 million was allocated for the implementation of new legislation for the 2012/13 and 2013/14 financial years respectively.  R500 million would be needed for the construction of high courts in Nelspruit and Limpopo. R100 million and R110 million was set aside for the renewal of IT infrastructure for the 2012/13 and 2013/14 financial years respectively.  A project called “The Nation in Dialogue”, a Presidential initiative, was allocated R30 million in 2011/12 and R15 million in 2012/13.

Mr Johnson added that there was an increase in personnel costs, some of which were Occupation Specific Dispensation (OSD) related.  Additional funding had been allocated to some of the Chapter 9 institutions that fell under the Ministry of Justice, such as the Public Protector (PP) and SAHRC. The Department had to cut back on its telecommunications costs as well as on excessive spending, in line with National Treasury’s call to reduce expenditure on non-core functions, ineffective policies and low priority activities. There was substantial growth in the Court Services Programme, and the National Prosecuting Authority (NPA) allocations.

Mr Johnson noted that the growth in total budget had mainly been driven by personnel costs. There were also substantial payments made towards backdated OSD payments. More money was spent on the lower courts than higher courts, because there were greater numbers of lower courts, and their spending accounted for 61% of the total programme allocation. Government Motor Transport was reduced, so that there could be funding for other priorities. The Master of the High Court accounted for the biggest expenditure under Programme 3, of State Legal Services. The allocation for Legal Aid South Africa (LASA) went down by R4 million, in order to fund Phase 2 of OSD. The President’s Fund had R1.032 billion allocated, but this would only be activated if there was any additional appropriation from Parliament. 

He noted that although the average budget growth of the Department was 8%, the average growth of the budget for court services was 12%.  The biggest challenge with regards to facilities management was to assess how much should be allocated to the smaller courts, and what amount should be reserved for the bigger courts. The day to day maintenance figure of R27 776 million for the 2011/12 financial year was for the court managers to fix smaller items, such as any broken windows or toilets, immediately.

Mr Johnson outlined the main challenges facing the Department. Firstly, it had to fill all vacant posts and to expand its capacity. 200 new positions would be filled to strengthen courts’ administration, there were 90 new positions in the Supply Chain and Third Party Fund programmes, and 65 new posts for maintenance investigators, 130 new posts for intermediaries, 152 new posts for Children’s Court clerks, and 111 new posts for Child Justice Court clerks. R40 million would be set aside for candidate attorneys to work for LASA.

The major infrastructure projects were the Limpopo High Court in Polokwane (with an allocation of R417 million) and the Mpumalanga High Court in Nelspruit (which was allocated R407 million). 6 judicial officers and 43 administrators would be appointed during 2011 when the High Court started operations at the interim leased premises in Limpopo. In Nelspruit, another 6 judicial officers and 38 administrators would be appointed in 2011.

Mr Johnson said that in order to turn around the financial management, the Department would have to improve on its governance, personnel, financial and performance management systems and financial training.

Discussion
Mr Jeffery referred to the major infrastructure section and asked where the judicial officers and administrative staff would be accommodated, as the courts in Nelspruit and Polokwane were not complete.

Mr Johnson said that the Department could not conduct planning for the Nelspruit and Mpumalanga courts until the courts had been finalised.  Funds had not been put aside for these positions.

Mr Jeffery questioned this response, in light of the statement by Mr Johnson that “6 judicial officers and 43 administrators would be appointed during 2011 when the High Court started operations at the interim leased premises in Limpopo. In Nelspruit another 6 judicial officers and 38 administrators would be appointed in 2011”. He asked if there were leased premises in Polokwane.

Mr Johnson said that there were.

Mr Jeffery asked if there were premises leased in Nelspruit as well.

Officials from the Department confirmed that there were.

Mr Jeffery asked why, in this case, it was not mentioned in the presentation, and what those expenditure figures were. He also wanted to know when the Limpopo High Court would be operational.

The Director General replied that the Court was already operational, but a new building was being built.

Mr Jeffery said that the Committee had been informed that matters arising from Limpopo were being dealt with in the Gauteng North High Court.

Adv Jiyane said that there was a circuit court in Gauteng North, and its building provided interim accommodation. A similar measure was being envisaged for Nelspruit, where there would also be a circuit court in operation by June 2011.

M Jeffery said that he was still confused, as the circuit judges would be from Gauteng North, and his query had related to where the 6 new judges and administrators would be housed, and what their functions would be.

The Director General said that this would be clarified in writing. The planning by the Department was being done in preparation for the putting into operation of the Superior Courts Bill.

Mr Jeffery said that he was concerned with the inaccurate statement in the presentation. There was no mention that this was linked to the Superior Courts Bill. There was no need for a Bill, as a Gauteng South and North courts were created without further legislation. Even if the Superior Courts Bill was passed immediately, there was nowhere to physically house the judicial officers. The Department should not make the statement that he had just quoted, if this was not going to happen in the 2011 year. He expressed his severe disappointment that the quality of information provided to the Committee indicated that the Department was not taking Parliament seriously. It seemed to have been the practice in the past that the Department would attempt to “feed (the Committee) anything and they would swallow it” but he stressed that this should not continue.

Ms Schaefer clarified that it seemed that the Department had been trying to say that it was making provision for these positions and perhaps it was the phrasing used that had created a wrong impression.

Mr Rudman clarified that the Mpumalanga and Limpopo High Courts were established in terms of the Judicial Matters Amendment Bill, which has been approved by Cabinet.

Mr Jeffery asked which Bill had created Gauteng North and South courts.

Mr Rudman said that he would have to check, this but it was a statutory provision.

Mr Jeffery said that he was under the impression the Superior Courts Bill provided for Limpopo and Mpumalanga.

Mr Rudman said that was correct, but they were actually established in terms of the Judicial Matters Amendment Bill.
 
Mr Jeffery said it would be useful for the Committee to know what the Department was doing in response to the issues raised in the Standing Committee on Public Accounts (SCOPA), whose report was adopted by the House last week.

The Chairperson said that he hoped the Bosasa issue was not part of the SCOPA report.

Mr Jeffery enquired what had replaced the Public/Private Partnership for Third Party Funds.

Ms Schaefer asked why the Public-Private Partnership was scrapped, and how much had been spent on it to date.

Mr Jeffery asked what the Department was doing with the Budget Review and Recommendation Report that had been adopted by the Committee, because one of the issues was the Public-Private Partnership issue.

Mr Johnson replied that the Public-Partnership Programme had been found not to be affordable, and was contrary to the Public Finance Management Act (PFMA) and other regulations. The Department was in a position to prepare a report on the Budget Review and Recommendation Report, as well as the SCOPA resolutions.

Mr Jeffery asked why the municipal and accommodation charges for the Public Protector (PP) and SAHRC were so widely divergent.

Mr Rendani Randela, Director, National Treasury, clarified the discrepancies by explaining that there had been some billing problems with the Department of Public Works (DPW), but instead of sorting these out now, it was decided that the allocations would be made, and that the reconciliation would be done by DPW at a later stage.  

Mr Sibanyoni referred to page 5 of the presentation, which mentioned the funding for the PP. He noted that the Chief Executive Officer (CEO) seemed to be earning more than the Deputy Public Protector, and enquired how correction of this would affect the baseline adjustment.

Mr Johnson replied that the Public Protector was a constitutional institution with its own internal structure and accountability lines.  The PP negotiated on its own, for funding from National Treasury. The Department simply received the money from National Treasury and transferred it.

The Chairperson asked how soon there would be access to the Sexual Offences Register.

Adv Jiyane said that someone had been appointed for the sexual offences register and work was being done in this regard. 

Mr Jeffery referred to the section on job creation and said that it was crucial that there should be time frames, otherwise the figures were meaningless.

Mr Johnson said that the positions were intended to be filled within the 2011 financial year. There were already advertisements that had been placed

Mr Jeffery asked if the Department ran the day to day maintenance of courts, and whether this came from the DPW budget, or that of the DOJ &CD.

Adv Holomisa asked for an explanation of the difference between rehabilitation, day-to-day maintenance and upgrading of infrastructure.

Mr Johnson replied that day to day maintenance allowed for the court managers to immediately fix things like broken windows. Rehabilitation was done under the DPW programme, called RAMP, and this intended to return any dilapidated court buildings back to their original position by fixing them. Upgrading of infrastructure was when there was an addition made to a building, such as an IT point.

Mr Jeffery asked where the budget for these projects sat.

Mr Johnson replied that they came from the Department’s budget. In some instances DPW would procure service providers, but the DOJ &CD would pay.

Mr Jeffery said that it was disempowering for the Department to have to go via DPW to have matters in courts fixed.

A response was made that DPW was charged with the maintenance of public infrastructure, and approved service providers appeared on their database.

Ms Shope-Sithole requested that the Department should report regularly to the Committee on its job creation initiatives, and also ensure that it complied with the Inter-Governmental Fiscal Relations Act.

The Chairperson said he hoped the Director General had taken note of issues raised by the Committee. He also noted that she would be present at the following day’s meeting, as she was the Accounting Officer for the National Prosecuting Authority (NPA)

The meeting was adjourned.

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