Department of Justice & Constitutional Development Strategic Plan and Budget 2011

NCOP Security and Justice

11 April 2011
Chairperson: Mr T Mofokeng (ANC; Free State)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) presented its Strategic Plan and Estimates of National Expenditure for 2011, noting that this was in line with the guidelines of National Treasury. The Department had a Constitutional mandate to provide an environment for the efficient and effective administration of justice, and to promote Constitutional development through new legislation and implementation of programmes that strengthened the Constitution. The legislative mandates and policy mandates linked to the Cluster were outlined. The Department noted ongoing work to strengthen the judiciary, and mentioned the Presidential Proclamation empowering the Office of the Chief Justice to establish a department. The Constitutional Amendment Bill and Superior Courts Bill, which would regulate jurisdiction, and the proposed realignment of magistrate's courts with municipal districts were also outlined.

The Department highlighted a number of challenges, broadly categorised into financial performance, the internal processes, customer and staff issues. The Department had been affected by budget cut-backs but hoped to improve its ageing information technology in the coming year. It had previously been obliged to provide its own security at the courts, and was faced with difficulties in protecting judicial officers who received threats because of the cases they were handling, but was discussing the possible deployment of older South African Defence Force members to secure court premises. The infrastructure and expansion of justice services was another challenge, because the escalation of infrastructure costs exceeded inflation, and this resulted in some building projects having to be postponed, and at most only two courts could be built each year. The Department noted that litigation against the State had increased significantly because of citizens’ appreciation of their rights, but some of this legal action was purely opportunistic. R250 million had been set aside for State litigation, and the Department hoped to strengthen the Office of the State Attorneys. The previous audit qualifications, which had related partially to management of Third Party funds, had been a problem, but the Department had put measures in place to try to achieve an unqualified audit result by 2012/13. Fraud and corruption related cases were being managed through the increase in capacity of the forensics investigation unit. The Department named its key priorities as ensuring a clean audit; improving delivery of maintenance services, and improving the delivery of Masters’ services.
A further presentation was given on the financial statements, noting that the Department would receive increased budget allocations of 11.5%, and that additional allocations of R85 million in 2012/13 and R90 million in 2013/14 would be used to expand the capacity for the implementation of the Child Justice Act, Children’s Act, Maintenance Act and Sexual Offences Act. More personnel would be appointed at court services level, as listed in the presentation. The allocations to Legal Aid South Africa, the Special Investigating Unit, Office of the Public Protector  and South African Human Rights Commission were also outlined, and it was noted that R2 billion was allocated to the National Prosecuting Authority, that R4 billion was allocated to court services, and R9 billion for Auxiliary and Associated Services, and that nearly 40% of the budget was spent directly on court services. Certain entities were independent and negotiated directly with National Treasury for funding, although it was channeled through the Department. The Department also noted that the Justice Integrated Programme, with an allocation of R140 million for 2011/12, was intended to integrate the IT systems of the cluster departments. Finally, the Department announced its plans for filling of vacancies. personnel had been appointed to deal with court backlogs.

The Committee was disappointed and concerned with many substantive aspects of the presentations as Members did not feel that the presentations reflected what was happening on the ground, and cited a number of gaping omissions, including information on vacancies, the number of acting magistrates and the length of time that they had been acting, the lack of reporting on the transformation of the Magistrates Commission, lack of progress reports about building of infrastructure, despite budget having been committed to it, and numbers of personnel assigned to addressing case backlogs. Members also commented that there were no clear plans how an unqualified audit would be achieved, and insufficient goals and targets were included. They also wanted further details on the strengthening of the Office of State Law Advisors. Members felt that the Department of Justice should have commented on the recent raid on the Public Protector’s office. They also questioned, at some length, the explanations given on acting magistrates’ appointments, and called for a full report not only on the situation in Pretoria but at other courts as well. They asked about the underspending, and reporting lines for the National Prosecuting Authority.

Meeting report

Department of Justice and Constitutional Development 2011/16 Strategic Plan & Estimates of National Expenditure: Briefing
Dr Khotso De Wee. Chief Operations Officer, Department of Justice and Constitutional Development said that the strategic plan of the Department ((DOJ&CD) was prepared in accordance with the guidelines of National Treasury. The constitutional mandates covered two areas, namely to provide an environment for the efficient and effective administration of justice and to promote constitutional development through the development of legislation and implementation of programmes that strengthened South Africa’s Constitution. The DOJ&CD would try to work with the South African Human Rights Commission (SAHRC) to ensure that there were adequate programmes that strengthened South Africa’s Constitution. Legislative mandates included the courts, National Prosecuting Authority (NPA), the administration of the Guardian’s Fund, Chapter 9 institutions, the appointments of Masters of the High Courts and the provision of general legal assistance. The policy mandates were linked to the cluster delivery agreements that were signed by the Minister of Justice.  The judiciary was another key area were there was work in progress. The 8th Constitutional Amendment sought to affirm the Chief Justice (CJ) as the head of the judiciary. A Presidential  Proclamation empowered the Office of the CJ to establish a department, and the long-term vision was not to have the Office of the CJ as part of the Executive.

The Constitutional Amendment Bill and Superior Courts Bill determined that the Constitutional Court (CC) would be the apex court of South Africa, and regulated the jurisdiction of the CC and Supreme Court of Appeal (SCA) to be a single high court of South Africa with various provincial divisions. A further important policy mandate was the re-alignment of Magistrates Courts with the municipal districts.

Mr de Wee indicated that the DOJ&CD wanted to highlight some challenges around organisational context. The challenges affected financial performance, the internal processes, customers and people issues. The efficiency gains implemented by National Treasury had affected the Department negatively over the MTEF period. Although the Information and Communication Technology (ICT) component of the Department was hindered by ageing servers, the Department was positive that it would be able to manage this better in the forthcoming financial year, with the new allocation.  Security services for the courts were another issue of concern. Previously, the Department had to provide security for its own courts, which had been problematic, as it had to cover 750 service points using 6000 security personnel. The protection of the judiciary was of paramount importance, but they had faced a number of security threats arising from cases they were hearing. The Justice Crime Prevention and Security (JCPS) Cluster had made a suggestion, as yet not finalised,  that soldiers from the South African National Defence Force (SANDF), above 35 years old, who were rarely deployed, could be used to secure court premises.

Mr de Wee noted that the infrastructure and expansion of justice services was a challenge because the escalation of infrastructural costs was above inflation. Insufficient cash flow when building courts sometimes resulted in the postponement of building projects. At most, the Department could only afford to build two courts a year, and had to balance the need for additional courts against the costs of maintenance and accessibility programmes for existing courts. Increased service delivery demands required the Department also to increase in size, although it did not have the financial capacity to increase its accommodation. The Department thus had to be innovative and it was exploring alternative funding methods.

Mr de Wee said that litigation against the State had increased significantly, as citizens became increasingly aware of their rights, and at times entered into opportunistic litigation against the State. The previous, fragmented approach to State litigation had been proven ineffective. The Department had set aside a budget of R250 million for litigation, and had almost completed its draft policy framework on State litigation. The Department was also working on strengthening the capacity of the Office of the State Attorney. Standardised fee structures were being developed for the payment of private counsel. The Department was also working on increasing its use of alternative dispute resolution mechanisms.

Another challenge arising from service delivery demands was the need to establish more lower courts, and providing support staff. Some of the new and proposed legislation had had huge financial implications, including the Child Justice Act, which may even be implemented piecemeal. Another need that had caused some concern was the provision of adequate library services for the judiciary. 

Mr de Wee noted that the Department was trying to improve its audit results and avoid further qualifications, and to this end was putting measures in place to deal with Third Party Funds. Financial capacity in all the courts was being increased to deal more effectively with Third Party Funds. In the previous year, DOJ & CD had received a qualified audit, as a result of the Department applying the wrong legislation, but it had since addressed this issue. The Department was trying to improve its management of fraud and corruption related cases by increasing the capacity of its forensic investigation unit. To address the issue of customer satisfaction the Department was improving the capacity and quality of its frontline staff, its awareness campaigns and the business process improvement. From the inception of the backlog reduction intervention in November 2006, up to December 2010, 32 350 criminal cases were disposed of, including an additional 21 000 cases that were finalised with a verdict. 9 700 cases were withdrawn and 1 236 cases were transferred. For the 2010 financial year there were 12 000 that were disposed of on the district and regional court rolls.

Mr de Wee said that, in line with the JCPS cluster delivery agreement, the Department had reduced the case backlogs by instituting and running the Regional Court Case Backlog Project. A service charter and service standards have been developed to improve on customer relations. The Department was working on increasing the capacity of the Presidential hotline to increase the response time to complaints. However, further challenges arose from the shortage of skilled staff. One key area of serious skills shortages was in the financial management department. The Department had now appointed two Chief Directors and one Director. However, there was under representation of women and people with disabilities. 

Mr de Wee noted that the Department would continue to support the Chapter 9 institutions by facilitating their budgetary process, assisting with financial arrangements, promoting their reports and recommendations, ensuring compliance with Section 181 of the Constitution as well as evaluating and investigating the legislation that established Chapter 9 institutions.

Mr de Wee then noted that the Department had four key strategic goals. The first goal was to increase accountability, effectiveness and efficiency of the Department, which was linked to Programme 1: Administration. The second strategic goal was to improve the effectiveness and efficiency in the delivery of justice services, and this was linked to Programme 2: Court Services. The third strategic goal three was to transform legal services in order to protect and advance the interests of the government and citizenry, which was linked to the Department’s Programme 3. Strategic goal four was the effective coordination of the JCPS cluster, which was linked both to Programmes 1 and 2.

The key priority areas focused on ensuring an unqualified audit; improved delivery in maintenance services, and the improved delivery of services of the Masters of the High Court. The Department aimed to increase the percentage of payments for the outstanding Truth and Reconciliation Commission (TRC) cases, and it also had education and health regulations in place for TRC victims.

Estimates of National Expenditure (ENE) briefing
Mr Johan Johnson, Acting Chief Financial Officer, Department of Justice and Constitutional Development, said that there was a concerted effort to ensure that there was minimal underspending in the Department. There was little funding available for expansion, as already explained by Dr De Wee. The Department thanked Parliament for ensuring that it had received an additional 11.5% for the second year of the Medium Term Expenditure Framework (MTEF). The Department planned to use the additional allocation, of R85 million in 2012/13 and R90 million in 2013/14, to expand its capacity to implement the Child Justice Act, Children’s Act, Maintenance Act and Sexual Offences Act. More personnel would be appointed at court services level. Over the past years the Department had managed to spend over 100% of its capital budget and it would continue to build courts. In this MTEF period the budget for court infrastructure would be R1 billion. R240 million was set aside for upgrading courts and R250 million was set aside for building courts in the 2011/12 financial year. R100 million and R110 million were set aside for Information Technology Services and court security respectively. There were a number of new priorities in this budget, such as the administration of legislation, appointment of new personnel, increased salary costs and municipal services. The budget cuts included the cancellation of the Third Party Fund initiative, which was due to a funding shortfall in the Department. Cabinet had also cut down on the operational expenditure of the Department.

Over the next three years, Legal Aid South Africa (LASA) would receive allocations of R44.62 million, R90.56 million and R106.28 million. The Special Investigating Unit (SIU) total baseline adjustment over the next three years would be R15.59 million, R21.46 million, and R27.18 million.  The Office of the Public Protector’s (OPP) baseline adjustment was R18.33 million, R24.07 million and R27.77 million. The South African Human Rights Commission (SAHRC) would be receiving R6.17 million, R10.61 million and R12.98 million over the next three years. The Minister of Justice had urged the Department to reduce expenditure on non-core functions due to National Treasury’s budget cuts. R2 billion was allocated to the National Prosecuting Authority (NPA), R4 billion was allocated to court services, and R9 billion for Auxiliary and Associated Services included the funding allocated to the SIU and LASA. Nearly 40% of the budget was spent directly on court services.

Mr Johnson said that R600 million would be spent on buildings and other fixed structures, between the NPA and DOJ&CD. Of the R4.3 billion allocated for court service, R2.6 billion went to the lower courts. The budget allocated to courts was informed by their personnel structure and functions. R324 million had been spent on the Master of the High Court, which was a sub-programme. Some of the entities under Programme 5 were independent and they negotiated directly with National Treasury. These included the OPP, SAHRC, SIU and LASA. He mentioned that, from a provincial point of view, Gauteng spent the most and therefore received the most provincial budget, but this would be supplemented at a later stage, through funding earmarked at national budget level. A further programme of note was the Justice Integrated Programme, with an allocation of R140 million for 2011/12, which was intended to integrate the IT systems of the South African Police Service (SAPS), Department of Correctional Services (DCS) and DOJ&CD.

Mr Johnson last announced that the Department wanted to fill 200 vacancies that existed in the court structures. The Department also aimed to fill 90 new positions for supply chain management and third party funds management, 65 positions for maintenance officials, 130 new posts for intermediaries for Sexual Offences Court, 150 new positions for court clerks who dealt with the Children’s Act, and 111 posts directly linked to implementation of the Child Justice Act. R40 million was set aside for new candidate attorneys for LASA. 470 million was budgeted for the Limpopo High Court. The planned expenditure for the Mpumalanga High Court was R407 million.

Discussion
Mr A Matila (ANC; Gauteng) noted his concern on several aspects of this presentation. He did not feel that the presentation was a true reflection of what was happening on the ground. The strategic plan did not reflect how many magistrates were in acting positions, or for how long. The presentation also did not contain any further updates on the transformation of the Magistrates Commission (MC). He questioned why there were so few black magistrates dealing with civil issues. He also questioned what had happened to the unfinished structure in Mamelodi, and the budget allocated for it. He also noted that the Committee had not been told in terms about the vacancies. He asked how many personnel had been appointed to deal with court backlogs.

Mr M Mokgobi (ANC; Limpopo) agreed in principle with Mr Matila’s concerns. He commented that this presentation was vague on a number of issues, such as the Annual Performance Plan. There were no targets so, for example, it was not clear how the presentation was linked with the JCPS cluster service delivery agreements. There were no goals set out – such as building a stated number of courts within a certain stated time period. The Department had not provided a clear strategy as to how it would achieve an unqualified audit. He felt that more information was needed on how the Department was protecting the Chapter 9 institutions, and what role it played. He commented also that the Department had not made its voice heard during the whole debacle of the raid on the Office of the Public Protector by SAPS crime intelligence officials. He felt that before this Committee could approve anything, the Department had to come back with detailed and inter-linked targets.

Mr Mokgobi added that other questions that required answers related to how far the Department had gone in dealing with case backlogs, which remained a challenge, how the Department was planning to respond to the President’s call for job creation in government, and the filling of all posts, and whether it was seriously considering capacitating the State Law Advisors. 

Mr Matila added that he agreed with Mr Mokgobi on the issue of the State Law Advisors, and wanted to know how they were appointed, who appointed them, and whether their credentials were properly checked.

The Chairperson pointed out that a Court judgment in 2004 had declared all courts had to be user-friendly for disabled people, and asked what the Department had done to address this. He enquired whether the provision of two courts each year would be sufficient to ensure that the Department was able to reduce its backlogs and provide adequate services. He also asked what the Department was doing to communicate with TRC victims.

 Dr De Wee replied that a lot more had to be done in order to inform TRC victims about their rights.

Dr De Wee said, in response to budgetary questions, that he wanted to clarify that the Department was just a conduit in respect of Chapter 9 institutions funding, but it did not interfere with them. In regard to the audit qualifications, he reminded Members that the Department had previously received qualifications in respect of Third Party Funds and irregular expenditure, amongst other matters. The Department now had a long term plan that was aiming to ensure an unqualified audit by 2012/13. From November 2010 the Department has been applying the correct legislation in relation to the supply chain management, and the capacity had been expanded by the appointment of new staff.

Advocate Pieter Du Randt, Chief Director: Court Services, Department of Justice and Constitutional Development, responded to the question on magistrates by noting that there were different categories of acting magistrates. Some were acting because the posts were vacant, and in the past financial year there had been 91 vacant posts. The second category related to positions that had to be filled on a temporary and day-to-day basis. The third category consisted of magistrates contracted-in to provide extra capacity. Contracted magistrates were used to reduce the case backlog. There were 56 regional court magistrates and 17 district court magistrates who were appointed on a contractual basis. The Department would be continuing with appointments in the new financial year. When an acting magistrate was appointed, there were additional staff also appointed, being a prosecutor, court clerk, interpreter and an attorney from LASA.

Mr Matila interrupted to point out that he had known of some magistrates being in acting positions for up to five years. He commented that contract renewals were also disruptive and problematic.

The Chairperson said that the Department was creating expectations where magistrates acted for periods of up to five years, and asked why they were simply not appointed permanently.

Adv Du Randt said that those people who had been appointed for up to five years were appointed for a specific backlog project. The appointments were renewed on a regular basis every three months, when there would be a re-evaluation before renewal. The appointees knew that their appointments were not permanent, but were for the purposes of a specific project. Many of the contracted appointees were private practitioners and they could, at any point in time, apply for any vacant post. The Department would try to create more posts so that it could reduce the number of acting magistrates, as he agreed that this was not an ideal situation.

Mr Matila said that there were a number of magistrates who were acting rather than permanent, because they were being victimised at the Pretoria Magistrates Court. There were a lot of vacancies at this court.

Mr Mokgobi also cautioned that many magistrates could engage in fraudulent and criminal activities if they were insecure about their future employment. The Committee had to determine what the situation was at other magisterial courts.

Adv Du Randt said that the concerns of the Committee had been noted and the Department would provide a list of vacancies for the Committee. It should be borne in mind that the Department did not appoint magistrates as this was the prerogative of the Magistrates’ Commission.

Mr Mokgobi said that it would be ideal for the Department to include the statistics on magistrates, as this could be a key indicator to the Committee.

Adv Du Randt said that the allocations that were reflected in the presentation related to those for acting magistrates.

Mr Matila pointed out that the Committee was concerned about addressing and assisting where there were still too few black appointments. There did not seem to be as many concerns with judges.

 Adv Du Randt stressed that the Department dealt with judicial appointments, and did not provide assistance. The Department had tried to reduce the backlog cases over the last few years, and had achieved a reduction of the case backlog by up to 10% a year. In the 2009/10 financial year there was a backlog of 38 000 cases. The Department had now reduced this figure to 35 000. Sometimes the problem lay not with the numbers of people at a particular court, but its productivity. One of the challenging aspects was that the courts were not sitting on enough cases.

Mr Matila said that there were too many awaiting trial detainees. The Department should also have included this information in the presentation.

Adv Du Randt replied that there were about 40 000 remand detainees. The Department had tried to assist by identifying those people and its strategy was aligned to the whole JCPS initiative to reduce this number.

Ms Tshilidzi Ramanyime, Chief Director Facilities Management, Department of Justice and Constitutional Development, responded to questions on infrastructure. She said that the infrastructure allocation of the Department was reflective of the previous order. Most of the courts were located in affluent areas. There had not been an effort to allocate funds that specifically addressed this issue. The explanation in Mamelodi situation was that the Department had assumed that the planning process would have been complete by the time a tender was issued. However, the Department experienced a cash flow problem and could not continue with the project. In subsequent years, the funds had already been allocated to other ongoing projects. The Department would try and complete all ongoing projects and then go back to those that never commenced.

Mr Matila thanked Ms Ramanyime for an honest answer. Her answer seemed to indicate that the Department had a planning problem, as it had funding for the new projects such as the High Courts in Mpumalanga and Limpopo. The Department should not start projects that it could not complete.

Ms Ramanyime said that the planning of the Department had to be in line with that of the Department of Public Works (DPW). If the implementing agents, DPW, was not ready to proceed, then there was nothing that DOJ & CD could do. DOJ & CD was aware of the issues relating to ageing and non-secure infrastructure, which even put the lives of employees at risk. The Department based its decisions to build more courts on what funding was available. The Department had four major ongoing projects, and once these were finished then the projects previously halted would resume. The Department needed at least R1.7 billion to carry out all current construction projects.

Mr Johnson added that the expenditure had been 99.7% for the past financial year, and this translated to R13 million.

Mr Matila said that the Committee’s research team had indicated a different figure for underspending.

Mr Johnson said that the consolidated underspending for the Department and NPA was R26 million.

Mr Matila asked what the difference was between the NPA and the Department, and to whom the NPA reported.

Mr Johnson replied that the NPA reported to the Director-General (DG) of the Department of Justice, but that there was separate reporting around National Treasury-related processes. The Department had sourced funding for the filling of posts and creation of jobs.

Mr Matila asked if the Auditor-General (AG) drew two separate reports in respect of the NPA and the DOJ&CD.

Mr Johnson said that the NPA tabled a different set of financial statements to the Departments. The AG did indeed present a consolidated report, but the Department was appearing now in front of the Committee to account separately from the NPA.

Mr Mokgobi said that this was confusing, and said that if the two entities were different, then they should be separate.

Dr De Wee said that the Department was currently working on legislation to prescribe that the NPA would account separately.

Mr Deon Rudman, Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, confirmed that there was a draft Bill in place, which would be tabled before Parliament shortly. The Department had always kept in mind Section 181(3) of the Constitution when it dealt with Chapter 9 institutions. He noted the comment on the failure of the Department to comment when the Public Protector’s offices were raided, and said that this would be conveyed to the Director General of the Department.

Ms Lebogang Mphahlele, Chief Director: Strategy, Monitoring and Evaluation, Department of Justice and Constitutional Development, said that some of the Department’s objectives were not yet finalised but the Department was working on them. The Annual Performance Plan would be completed by the end of this month. The Department would ensure that all the indicators would be clear, and it could be made available to the Committee on request.

Mr Matila commented that the Committee could not deal with this prior to the Annual Performance Plan being finalised.

The meeting was adjourned.







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