Department of Justice and Constitutional Development 1st Quarter 2011 Performance

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Justice and Correctional Services

09 August 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development considered the quarterly performance report from the Department of Justice and Constitutional Development. The Department  informed Members that the overall expenditure against the budget at the end of the first quarter was at 25% whilst capital spending was at 39.9%; this was pressure from the Department’s leases, which were higher than normal.  The Department had an unfunded mandate of over R600 million by the end of July 2011.  For the current financial year cost-cutting measures were instituted to help manage the spending; this included savings on travel and telephone costs. Risk management was severely under-capacitated and this was a challenge. To address this problem an external consultant would be engaged to assist. The expenditure on Goods and Services was currently at 11.3%.  The Department ’s explanation on the Salu building issue was that it has not moved into the building because the tenant installations had not been concluded and the building has not been handed over. The Department of Public Works was making final arrangements before handing it over to the Department of Justice and Constitutional Development. The approved audit plan’s target was exceeded by 1%.  An accounting framework was secured for the Third Party fund from National Treasury. Process mapping for the Third Party Fund in all courts had been initiated. The number of safety and security incidents at courts had been reduced through the stringent enforcement of the contractual agreement with the service provider. The number of queries handled from the Presidential Hotline had improved due to the increase capacity for the unit that deals with this.  The targets for the Truth and Reconciliation victims had not been achieved. The Department and the National Prosecuting Authority were struggling to deal with the issue of case backlogs. The target for the reduction of case backlogs for the first quarter of 2011 (backlog reduction to 37 602 backlog cases) was not met as a result of the slight increase of case backlogs from 37 034 to 38 585 backlog cases (1 551 cases). The heads of court and prosecution services were looking at addressing the issue of case finalisations and there were other initiatives to turn the situation around.

Legal costs for the Department of Justice and Constitutional Development were rising unabated; there would be overall transformation on the handling of legal costs with more use of alternate dispute resolution mechanisms. The percentage completion of integrity competency of senior management (vetting) was a real concern and there was every likelihood that things would slow down. The vetting of senior management as well as strategic areas like procurement would be prioritised. The percentage of courts with case management systems deployed and supported was at 85%; however, the utilisation of theses systems was not at an optimum. The Department was slightly behind in terms of the percentage of legislative instruments completed as it was at 87% instead of the target of 100%.  The State Liability Amendment Bill was on track and due to be finalised by 31 August 2011. The Sheriff’s Amendment Bill had been delayed and had not been tabled to Parliament as planned.  The Legal Aid Bill, although comments were still being evaluated and finalised, was on track for tabling as planned. The Prevention and Combating of Torture Bill was on track. The Criminal Procedure Amendment Bill was on track. The tabling of the Legal Practice Bill before Parliament had been delayed. The Criminal Procedure Amendment Bill dealing with the use of force for purposes of arrest had been delayed. The Protection of Personal Information Bill was still on track as well as the High Court Rule 31 (5). The Review of scale and cost fees for Magistrates Courts target was still on track. 

The Committee pointed out that there was no indication in the quarterly report of where the facts, figures and objectives were derived from. The Committee expressed grave concern for the Department’s non-responsiveness on issues it had raised in its report as well as those raised by the Standing Committee on Public Accounts. The Committee had requested some of the following from the Department of Justice and Constitutional Development in its previous report: a strategy and action plan on the Third Party Funds, a detailed action plant on the vacancy rate by July 15 2011, a progress report on disciplinary and grievance matters especially relating to financial misconduct, a strategy and action plan to address the security at courts, a strategy and action plan to address the recommendations regarding the Truth and Reconciliation Commission  victim compensation issue and a detailed written report on briefings by legal practitioners for the Department of Justice concerning state litigation. Compliance for the Promotion of Access to Information Act at 46% was described as appalling. The Members warned that the Auditor General could view the issue of the non-occupation of the Salu building as fruitless and wasteful expenditure and that the Department of Public Works could still charge the Department of Justice and Constitutional Development for the rental. The Committee requested an update on the Insolvency Bill as well as the 80 employees in the Eastern Cape involved in a major forensic investigation.

Meeting report

Introduction
The Chairperson welcomed the Department.

Mr J Jeffery (ANC) asked what was the rule on the time frames regarding the submission of documentation. There has been one set of documents distributed, and then there was a report from the Research Section of Parliament. Now in the morning one discovered that the documentation had been updated; this made it a lot more difficult for Members to prepare. It would be better if the Department added annexures if it wanted to effect changes. In future all documents had to be in by a week before meetings

The Chairperson said that it would be a rule that documents would be provided to the Committee seven days before the meeting.

Ms Gillian Nesbitt, Researcher for the Committee said that the Research Section had prepared an updated version of its document that was in line with the changes made by the Department. The Committee Secretary had distributed it to Members.

The Chairperson said that the Committee appreciated the Research Section’s efforts, which were commendable; however, the problem was that the Members were only receiving the document this morning.

The Chairperson handed over to the Director-General.

Presentation: 2011/2012 Quarter 1 Performance Review
Ms Nonkululeko Sindane, Director-General (DG), Department of Justice and Constitutional Development (DoJ&CD), said that the presentation would be based on the budget review. The overall expenditure against the budget at the end of the first quarter was at 25% whilst capital spending was at 39.9%. The reason behind the slightly higher capital expenditure was pressure from the Department’s leases, which were higher than normal. It was not clear whether this would improve as the Department was under a lot of pressure regarding its capital assets. The Department had an unfunded mandate of over R600 million by the end of July 2011.  For the current financial year the Department had instituted cost-cutting measures to help manage the spending; this included savings on travel and telephone costs. Overall expenditure for Programme 1 was at 24% by the end of July. Risk management was a problem for the Department as it was under capacitated. An external consultant would be engaged to assist the Department with its Risk management. Expenditure for Programme (Court Services) was at an acceptable level of 23.6%. The expenditure on Goods and Services was currently at 11, 3%. The average spend for Programme 3(State Legal Services) was lower than average at 20.8% due to the pending restructuring and the move by a number of branches to the Salu building.

The Department had not moved into the Salu building because the tenant installations had not been concluded and the building has not been handed over. The Department of Public Works (DPW) was making final arrangements before handing it over to the DoJ&CD.  The areas where the Department had reached its targets will be highlighted to the Committee. The Department went over its target of 1% for the approved audit plan, which was completed by an Internal Audit at 24%. 29.7% of grievance cases were finalised; there was much improvement on the percentage implementation of the approved Maintenance Turnaround Project. The Department had been able to secure an accounting framework for the Third Party fund from National Treasury. Process mapping for the Third Party Fund in all courts has been initiated. The Department had reduced the number of safety and security incidents at courts by stringently enforcing the contractual agreement with the service provider. The number of queries handled from the Presidential Hotline had improved due to the increase capacity for the unit that dealt with this.  The sexual offences that were committed against children and people with disabilities were being captured on time in the Sexual Offences Register. The targets for the Truth and Reconciliation (TRC) victims were not met. 

The Department and the National Prosecuting Authority (NPA) were struggling to deal with the case backlogs. The target for the reduction of case backlogs for the first quarter of 2011 (backlog reduction to 37 602 backlog cases) was not met as a result of the slight increase of case backlogs from 37 034 to 38 585 backlog cases (1 551 cases). The heads of court and prosecution services were looking at addressing the issue of case finalisations and there were other initiatives to turn the situation around. Work has not begun on a baseline for quasi-judicial indicators that the Department would have measured its progress against, this was associated with the Service Delivery Charter and both initiatives had to be completed at the same time. The Department was doing badly on legal costs as they were rising unabated. The Department had embarked on the overall transformation of legal costs and would undertake more initiatives on alternative dispute resolutions as solutions and keep matters out of court as much as possible. The Repair and Maintenance Projects (RAMP) remained a challenge and would be reviewed. The Committee should be aware that the maintenance of courts was ongoing and on track.  A lot of work has gone into ensuring that the Department did not have a qualified audit.  A number of workshops were conducted in May and June 2011 to address fraud and corruption within the Department. The Department had concluded its financial disclosure to the Department of Public Service and Administration (DPSA). Investigations for forensic cases had improved from last year’s results despite the Department's not meeting its target for this quarter; however, it was still on course for meeting its target this year.

The percentage completion of integrity competency of senior management (vetting) was a real concern and there was every likelihood that things would slow down. The vetting of senior management as well as strategic areas like procurement would be prioritised.  Many staff left during the past quarter, and the Department achieved a 9.6% figure for filled posts. The target for the percentage of misconduct cases finalised was not achieved; however, there were now measures in place to deal with the misconduct cases and all Deputy Directors-General (DDGs) were duly informed.   The percentage of courts with case management systems deployed and supported was at 85%; however, the utilisation of theses systems was not at an optimum. Considerable work has been done on the Draft National Policy Framework for the Prevention and Combating of Trafficking in Persons Bill. The Department was not performing as well as it was last year in the family law arena.  The establishment of small claims courts in every magisterial district was going well. The Integrated Case Management System (ICMS) was working well in the Master’s Office. Considerable work has been done on the Draft National Policy Framework for the Prevention and Combating of Trafficking in Persons Bill. The Department was on target to table the Insolvency Bill by March 2012. The Department was rather embarrassed that the national action plan on racism was not complete. The Department was not 100% fully compliant with the Promotion of Access to Information Act (PAIA), it was currently at 46%.

The Department was slightly behind in terms of the percentage of legislative instruments completed as it was at 87% instead of the target of 100%.  The State Liability Amendment Bill was on track and due to be finalised by 31 August 2011. The Sheriff’s Amendment Bill has been delayed and had not been tabled to Parliament as planned.  The Legal Aid Bill, although comments were still being evaluated and finalised, was on track for tabling as planned. The Prevention and Combating of Torture Bill was on track. The Criminal Procedure Amendment Bill was on track. The tabling of the Legal Practice Bill before Parliament had been delayed. The Criminal Procedure Amendment Bill dealing with the use of force for purposes of arrest had been delayed. The Protection of Personal Information Bill was still on track as well as the High Court Rule 31 (5). The Review of scale and cost fees for Magistrates Courts target was still on track. 

Discussion
Mr Jeffery said that the report was balanced; however, the Department’s reports did not have an indication on what they were based on or where they came from. This report was based on the objectives and Key Performance Indicators (KPI).  The Strategic Plan, which one would assume the report was derived from, had the objectives but not the KPIs. The Committee had not seen these KPIs; it would have been expected that they would be in the Strategic Plan but they were not. The Committee and the Standing Committee on Public Accounts (SCOPA) performed oversight over the Department, yet there was no reference to both Committees’ reports in the presentation. There was no response from the Department on the Budget Review Reports (BRR); there was a claim that it had not been seen but Treasury had responded to it accordingly. The Committee’s report, which was put up on the Announcements, Tablings and Committees notice board on 06 June, mentioned that there was much detail on reports that the Committee had requested and dates were specified. The Committee had not received the reports. The Committee had wanted a strategy and action plan on the Third Party Funds, a detailed action plant on the vacancy rate by July 15 2011, a progress report on disciplinary and grievance matters especially relating to financial misconduct as well as a strategy and action plan to address the security at courts. Why had the Department not responded to the report that was adopted by the Committee and the National Assembly? The Committee had also requested a strategy and action plan to address the recommendations regarding the TRC issue. 

There were 373 TRC victims; how was this broken down? How many of them were deceased and how many were untraceable? The Committee continuously got responses from the Department stating that the TRC victims issue would be resolved soon and this was problematic. The first fundamental problem was that the Department was not responding to the Committee's or SCOPA’s reports and recommendations.  The Committee had also asked for a detailed written report on briefings by legal practitioners for the Department concerning state litigation. Briefings were meant to encourage the growth of black advocates. If the Department briefed the same black advocate then they would meet their target but not expand black advocates on a general basis. The Promotion of Access to Information Act (PAIA) compliance was appalling at 46%. If the Department could not implement PAIA,  then which department would be able to?  The Department could not set targets on Bills that were in Parliament, as they did not know what the Committee would do. The Bills before Parliament should not be listed as KPIs.  The Chairperson should write on behalf of the Committee to the Chairperson of the South African Human Rights Commission (SAHRC) to say that the Department had received comments on the Human Rights Commission Bill late in June 2011 because the Committee was always receiving complaints from the SAHRC that its Bill was not being dealt with urgently enough.

Some Non-Governmental Organisations (NGO) had said that it was not well known that criminal records could be expunged as per the Child Justice Act and Criminal Procedure Act. The process of expunging criminal records was quick and easy to follow but some legal practitioners were charging about R7 000 to expunge records.  The point was that not enough people knew about this; more information publicising how records could be expunged was needed.

Ms Sindane said that a strategy was prepared in terms of the rules, which did not have KPIs; these would be in a separate document labelled Annual Performance Plan.

Mr Jeffery asked when the Annual Performance Plan was tabled.

Ms Sindane replied that it was tabled on February 9. There was definitely a problem with the BRR and SCOPA report because she signed off on the reports after the Department considered them. The Department would respond in future to the Committee’s report and the issues raised therein.  There was a comprehensive response in the Department’s response on the BRR report regarding its interventions on the Third Party Fund.

Mr Jeffery said that he has been alerted to the fact that the BRR report was signed by the DG on 31 May 2011. This indicated that there was a real problem as the process was now beyond the BRR report, which was adopted last year. The Committee needed a response to the BRR report by the time the budget was considered. The Committee was now on its budget vote report, which the DG has only recently heard about. The Committee had to have reports on the issues it had already raised during the quarterly meetings.

Ms Sindane said that the Department would try and find a different way to deal with issues relating to the handling of reports. The Department would thus provide a more comprehensive response to the issues raised in the Committee’s report, such as the vacancy rate and Third Party Fund, etc. The Department had not started paying rent for the Salu building, as it had not occupied it as yet. DPW was currently paying the rent for this building. The delay in occupying the building was largely due to the tenant installations, which in turn were being delayed by the availability of adequate resources. The issue on the distribution of briefs for black advocates would be incorporated within the broader discussion of the transformation of the Department’s legal services. The Department regretted its level of PAIA compliance, it was not that it was unable to comply with the Act but it had experienced some capacity issues. The Department would re-visit its targets on Bills as some of them were with Parliament.  There was communication from the Department’s side regarding expungements; perhaps it was not sustained for a long enough period.

Adv Deon Rudman, DDG: Legislative Development, DoJ&CD, said that the Department had received the final comments on Human Rights Commission Bill at the beginning of June. The Department was considering the comments and was at an advanced stage. The Traditional Courts Bill had been withdrawn; there was still a briefing session that the Department would have on this Bill and it was still seeking guidance on the introduction of the Bill from the Chairperson of the National Council of Provinces (NCOP). 

Mr Khotso de Wee, Chief Operations Officer (COO), DoJ&CD , said that by the end of June the Department had identified about 677 positive addresses for TRC victims. As of today there was confirmation of 72 people and 31 had been paid. The challenges were that the victims, once identified, were sent letters requesting them to confirm if they were the correct individuals.  However the responses were slow.  The challenge was having to wait for victims to respond. The Department was now going to make use of its regional offices to have officials going to victim’s homes to verify and ensure that the correct persons were paid.

Mr Jeffery said that the Committee had asked or a comprehensive report on the TRC issue by 15 July 2011. The Committee was tired of hearing about good ideas on the TRC matter; it wanted implementation. This was an embarrassment as it was money being paid to victims; every time the Committee made noise it was met with new ideas. The COO should not waste the Committee’s time on verbal ad hoc explanations.

Mr De Wee moved on the issue of the unfounded mandates and said that the bulk of the unfounded mandates was on the need to create new positions in various courts, e.g., the courts in Thoyandou, Motherwell, Pietermaritzburg, Cape High Court, the Marina Child Justice District Courts, and Labour Court. Other unfounded mandates were funding for the Judge’s Conference and funding for the business continuity programme. A detailed report would be submitted on all the unfunded mandates.

Mr Jeffery agreed that a report should be submitted; however the list mentioned by the COO did not have unfounded mandates on it. The unfounded mandates seemed to be as a result of poor planning. The reports should be sent to the Committee by the end of next week.

Ms D Schäfer (DA) said that her understanding of an unfunded mandate was paying for something that the Department was not meant to pay for and this did not include salaries. It was not clear why the Salu building was being paid for but remained unoccupied. When did the Department tell DPW? Did the Department specify to DPW when it needed the building and what alterations needed to be done to this building that were taking 18 months? Surely DPW was not going to pay for the rental out of its own budget; on what basis did the Department think that DPW was not going to charge for it?  Could the DG assure the Committee that there were no similar instances where the Department had unoccupied buildings for which rent was being paid? It was good to hear that the security contracts for the courts were being better managed. Could there be a better explanation on the South African Local Government Association’s involvement with the managing of the Third Party Fund? Could there be an explanation on the 250 000 terminations on page 7 and what had happened to the 80 employees involved in a major forensic investigation case? Was the Department liaising with the Justice College? There was nothing in the presentation on the Sexual Offences Courts. Was the Department dealing with this? Could the Committee have the report on the maintenance turnaround strategy?  What was happening with the insolvency Bill?

The Chairperson asked for more detail on the Salu building and for the name of the landlord.

Ms Sindane replied that the Department was not moving headquarters and the Salu building was meant to create more space for the Master and State Attorneys whose building lease has lapsed. Senior management, the Minister, Master and State Attorneys would move into the new building. Tenant installations included security and cable lines, etc. The Department was currently trying to establish if there were similar problems with other buildings. The Department was going to be engaging with SALGA on the issue of the collection of traffic fines paid to municipalities.

Ms Schäfer said that surely the issue of the fines should be handled with the individual municipalities; SALGA did not control all the municipalities.

The Chairperson agreed and asked why each province could not collect its own fines instead of piggybacking on the Department.

Ms Sindane continued to say that there was an issue on the Justice College which used to train Magistrates but that was now the responsibility of the South African Judicial Education Institute (SAJEI). There was some level of disjuncture in the handover, which had slowed things down somewhat.

Ms Tshilidzi Ramanyimi, Chief Director: Facilities Management, said that the name of the landlord for the Salu building was Homela Property Investment.

Ms M Smuts (DA) said that she had read in the newspapers that there were three senior state law advisors who were being ignored and not given work by the Chief State Law Advisor, who was working out of the Cape Town office even though traditionally the headquarters were in Pretoria. Could there be a comment on this? On page 18 there was reference to a policy framework on the Foundation for Human Rights being developed and that this would inform the contents of a Bill. What was this about?

Ms Sindane replied that there was a dispute between the officials in the Department and the Chief State Law Advisor. Not much can be said on the dispute as it was being resolved via appropriate and official channels.  The officials had filed a formal grievance and were not happy to have the matter resolved via arbitration. The officials would be given work in the interim.

Mr De Wee said that the forensic investigation related to fraudulent claims as well as re-location costs.

Adv Rudman said that he would follow up on the matter of the Bill that would be informed by the Foundation for Human Rights. The delay on the Insolvency Bill had been as a result of the processes at the National Economic Development and Labour Council (NEDLAC). The Department had received an interim report from the NEDLAC management committee in April 2011. There were a number of recommendations and issues in the report that the Department had to look at. The Bill was also delayed by the drafting of the business rescue provisions in the Companies Act. The Department was due to meet with Treasury on the World Bank’s report on the observance of standards and codes relating to insolvency and creditor rights.

Adv S Holomisa (ANC) requested further clarification on the Salu building issue.

Ms Sindane said that in the long term the Department was anticipating to make a saving via the occupation of the Salu building, which had more space. It was not the norm to have an unoccupied building that was being paid for. The challenges probably emanated from the initial negotiations.

Ms S Sithole (ANC) asked if the Department was going to make its own cable installations and said that the rent that the DPW was paying might reflect as wasteful and fruitless expenditure on the Auditor-Generals (AG) report.

Ms Sindane said that the issue of Salu was being co-managed with DPW. Hopefully the Department would not be settled with the full bill for the rent payment and that this would not be reflected as wasteful and fruitless expenditure.

Ms Ramanyimi said that the Departments in-house service provider would do the network cable installations, whilst the landlord would do the other tenant installations.

Mr Jeffery said that since the Masters Office and the State Attorneys were already housed somewhere on a month by month basis, the Department was paying rent for something for which it already had space by paying for the Salu building. The issue of the Salu building seemed like fruitless and wasteful expenditure. There should be an explanation on expungement, as well as who would qualify, the forms and the processes.

Adv L Adams (COPE) asked if the Department had prioritised the funded vacancies, how many had been filled and how many still had to be filled. Were there still vacancies in the office of the chief financial officer, risk management and internal audit and how many posts were filled in terms of the target for people with disabilities? In which court was there no progress in terms of case backlogs? Where were the eight small claims courts established as per the figure mentioned in slide 20? What were the delays encountered by the Department in terms of PAIA implementation?

Ms Sindane replied that a number of positions had been filled in terms of in the office of the chief financial officer, risk management and internal audit. Senior posts in the office chief financial officer had been filled and there was a last minute withdrawal out from an appointee. The financial statements this year had been prepared via the internal capacity that already existed. There was a high turnover rate in terms of risk management but the Department would address this by making use of in house sources.

Adv Simon Jiyane, Deputy Director-General (DDG): Court Services, DoJ&CD, said that there was a breakdown of the case backlog per province; this would be provided in the Department’s report that would be submitted to Parliament as well as the eight small claims courts that had been recently established.

Ms Matsie Litheko, Chief Director: Human Resources, DoJ&CD, said that all the posts were funded and there would be a detailed breakdown of filled and vacant posts.

Ms Sindane said that the problems that related to PAIA were management related and the PAIA unit would be re-capacitated.

Ms Christine Silkstone, Content Advisor of the Committee, asked what challenges the Department experienced regarding its work on capital as it had already spent 40% of the budget on this? What items would require additional funding and what would be the amounts involved?  

Ms Sindane reminded the Committee that there was ongoing construction of courts; the Masters Building in Pietermaritzburg had just been completed and occupation would be undertaken in July/August. A list of other projects would be provided.

The Chairperson asked how far down did the vetting within the Department go, and if the DG requested this or it it was required of her.

Ms Sindane replied that the vetting process began with senior management all the way down to directors. In certain instances, such as procurement, the vetting process went further down into other posts.

The Chairperson asked if a non-disclosure agreement was required to be signed by officials.

MS Sindane replied that in all executive committee (EXCO) minutes there was a requirement for disclosure in the form of a clause on all agenda items. Each year officials disclosed their interests to the Public Service Commission (PSC). Officials involved in the tender process had to disclose their interests.

Mr Jeffery said that he would like to move forward to where disciplinary action was taken on issues that the Committee was continuously raising and there was no response to them from the Department.  The Department should produce a report soon.

The Chairperson asked Mr Jeffery if he was requesting a report from the Department on the Committee’s June report.

Mr Jeffery replied in the affirmative. The Committee could legislate on the sexual offences court issue as it was a policy issue.

Ms Sindane requested three weeks for the report to be submitted to Parliament.

The Chairperson thanked Members and the Department.

The meeting was adjourned.

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