Department of Justice & Constitutional Development Strategic Plan 2012: Day 2

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Justice and Correctional Services

19 April 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

During the first part of the meeting, the Department of Justice and Constitutional Development (the Department) answered questions posed on the previous day, particularly in relation to the Master’s Office and problems at the Guardian’s Fund. Members were concerned at the lack of service points, the fact that beneficiaries of the Fund were not informed of the correct situation and were instead called back several times to the offices, and a few problematic instances were cited, calling for a report. The Department noted that the number of service points would be increased, from six to 25, but noted the need to balance adequate provisions to prevent fraud against access to services. The Department also noted the problems with telephone systems and undertook that they would be corrected. Members also raised queried on the improvement of ITC systems, for which a large allocation had been granted, after a request by the Committee, and called for the timeframes on the disaster recovery programme, queried the problems with the State Information Technology Agency, suggested discussions with South African Revenue Service, who had an effective system, and noted their concerns that there did not seem to be enough communication within the Department on financial matters. The Department noted that it would submit a report on the questions on witness protection, transformation in the Department, noted improvements in the number of advice centres, and reported back on vetting of staff prior to appointment.

The Department then presente its budget and expenditure report for 2011/12, noting improved outcomes. The Department was, however, experiencing strain on operational budgets as a result of cuts by the National Treasury, and said that it would be requesting more funds to upgrade its buildings. It paid its revenue from fines, penalties and forfeits to National Treasury, and predicted an increase in revenue as a result of projected increases in efficiency in third party matters. The Department was responsible for the funding of certain policy priorities, including the allocation for the Commission of Enquiry into the Strategic Defence Procurement Package, and would need further funding for this, and the planned assessment of the impact of Constitutional Court and Supreme Court of Appeal decisions. Members asked about the large budget for travel, under the Court Services programme, questioned whether Occupation Specific Dispensation had been reflected and commented that it seemed not to have had the desired effects, nor had its financial implications been well considered. The complaints about under funding and poor administrative staff at the Supreme Court of Appeal were raised. A Member suggested that the Department should remind National Treasury of the large amounts it contributed to the fiscus and use this as a bargaining tool, to which the Department responded that it as considering proposing a similar dispensation as applied to the Department of Correctional Services. Members asked if the Department was oblige to fund Commissions of Enquiry, asked if the allocations for Justice College included the South African Judicial Education Institute, and questioned the funding under the Electoral Act. The proposals for oversight of magistrates were briefly raised, as well as maintenance issues at courts. The Committee expressed concern that budget cuts would impact negatively on delivery of access to justice, noted that increases in rates and taxes above inflation would have further implications, and called upon the Department to provide detailed reports on its priorities in order that the Committee could motivate for further funding for the Department, to National Treasury.

Meeting report

Department of Justice & Constitutional Development Strategic Plan 2012: continuation of deliberations
The Chairperson noted that the Department of Justice and Constitutional Development (DOJ) had given a presentation on the master’s Office on the previous day, and invited questions from Members on that presentation.

Ms M Smuts (DA) wanted to know what progress had been made by the Master’s Office in relation to EFT payments.

Mr J Jeffery (ANC) referred to a case that had occurred at the Master’s Office in the South Gauteng High Court, in relation to which the Committee had previously made enquiries. Ms Wilkinson, who had a claim against the Guardian’s Fund, had lodged a complaint that although she lived in Johannesburg, she was not helped at the South Gauteng High Court, and was told to go to Pretoria. When she did call at the offices in Pretoria, she was given forms and told to return on a later date. However, on this later date, the Master’s Office informed her that there were problems with the beneficiary’s details, which meant that she could not be paid out. The response from the Master’s Office failed to acknowledge that there had been any problems with service delivery, nor to deal with the fact that there was  no service delivery point for the Guardian’s Fund in Johannesburg, and that the Master’s also failed to answer the telephone. Ms Wilkinson should not have had to visit the Pretoria office three times before eventually being told that there were problems with the names

Mr Jeffery also noted that in a different matter, involving Ms Mashaba, the rightful beneficiary was not paid the money owed to her, as someone else had obtained it by fraudulent means. The fault appeared to lie at the Magistrate’s Court in question, and although Ms Mashaba was in no way responsible for the fraudulent activity, she failed to receive what was rightfully due to her. If Ms Mashaba were to bring a claim for damages against the Master, she would probably succeed, because the fact that someone else had managed to access the funds fraudulently did not mean that her own rightful claim should suffer.  

Mr Jeffery and Ms Smuts also said that the Committee needed to be told the position in regard to the vacancy in the Pretoria Master’s Office. Ms Smuts asked this was due to the labour law regime.

Ms C Pilane-Majake (ANC) remarked that since the Master’s Office dealt with people’s assets, there should be a disaster recovery fund for problematic cases, otherwise this could result in a crisis situation. She also thought it was problematic that the Guardian’s Fund was situated only in Pretoria, and said that this had to be remedied urgently. The turnaround time was also a problem, and there should be mechanisms in place to make the system more user-friendly. Assistance to beneficiaries must increase, and beneficiaries must be given clarity on what to do and where to go in order to claim from the Guardian’s Fund. With regard to the Mashaba matter, it was unacceptable that the Master’s Office had refused to take responsibility for the situation, since it was incumbent on that Office to set up reliable systems to reduce instances of fraud, such as the verification of identity documents.

Mr Jeffrey added that he had heard of people from Durban having to go to Pietermaritzburg to claim from the Guardian’s Fund. He asked whether this implied that there was only one Guardian’s Fund in each province, and whether it was correct that beneficiaries could only claim payments in person. It did not make sense that residents in some of the biggest cities in the country had to go elsewhere to deal with Guardian’s Fund matters. He asked what mechanisms were being put in place to ease the burden on people who had a legitimate claim, but did not have the means to travel to access their claims.

The Chairperson said that the Master’s Office had told the Mashaba family that they would be apprised of the progress of the criminal investigation into the fraud. He asked the Director–General and the Chief Master for the docket number and name of investigating officer for the Mashaba case. He also asked the Chief Master how many Guardian’s Fund matters were outstanding.

Mr Lester Basson, Chief Master, apologised for the lack of proper service delivery in the Mashaba matter. He explained that this was not a usual Guardian’s Fund matter, as the money had been left to a person who was already a major, with instructions to set up a trust in the event of the deceased’s death. Extra burdens were placed on the Guardian’s Fund to deal with matters involving majors. Because the Guardian’s Fund had been targeted by fraud, steps had been taken to reduce that fraud, and that included a higher degree of caution when dealing with claimants. The Master’s Office would be more cognisant of service delivery in the future, and would put measures in place to prevent repeated visits, whilst still protecting against fraud.

Mr Jeffery remarked that someone from the Guardian’s Fund should have advised Ms Mashaba as to the legal position, before her multiple visits to various service points.

Mr Basson said that unfortunately, in the Mashaba matter, the money had never reached the Master. Money had been in the bank, and the person committing the fraud applied directly to the bank to access the funds, with that application approved by the local magistrate’s court. However, he confirmed that the matter still fell within the responsibility and ambit of the Master’s Office, which would try to assist where possible. The Master’s Office had already met with the bank to try to find a solution. The matter had been reported to the police, and he would provide the Committee with the name of the investigating office and the docket number. The Master’s Office wanted to achieve closure and assist the family as soon as possible.

Ms Pilane-Majake asked for clarity on whether the Master’s Office had to give approval for money to be paid out by the bank.

Mr Basson confirmed again that the matter did fall within the responsibility of the Master’s Office, although the fraud did not happen at the Master’s Office, but at the magistrate’s court. The Master’s Office had met with the Law Society of the Northern Provinces, requesting feedback on service delivery by the Master’s Office. There had been similar complaints about unanswered phones at other Master’s Offices. Callers complained that they heard the phone still ringing, whereas the system should have been set up to give a message that all the lines were currently busy, and the caller was in a queue, and there was a need to change the switchboard system. To date, 16 900 people had used information on the internet to answer their own queries and this service would be enhanced. Mr Basson had not been aware that the problem of nterminably-ringing phones also existed in Cape Town, and personally undertook to see to the improvement of that.

Ms Smuts complimented Mr Basson on his recent interview on SAfm, in which he gave out the official e-mail address of the Chief Master’s office as well as his own personal address.

Mr Basson then outlined the policy on liquidators. A code of conduct would be compiled in order to give guidance on disciplinary procedures for attorneys who breached the policy. The accessibility of services in the Guardian’s Fund had been improved. In this financial year, the Master’s Office planned to provide 25 additional points of service delivery for Guardian’s Fund matters. Beneficiaries would be able to give their documents to the local magistrate’s court, which would then liaise directly with Pretoria on their behalf. Any further interaction needed would require the beneficiary to attend the local magistrate’s court.

Mr Basson confirmed that currently there were only six sites in the country that dealt with the Guardian’s Fund, and they were located in Pretoria, Pietermaritzburg, Grahamstown, Cape Town, Bloemfontein, and Kimberley.

Mr Jeffrey asked when the additional 25 service points would be ready, and whether that was sufficient to meet demand. He requested a written report from the Master’s Office detailing the strategy.

Mr Basson said that there were additional initiatives in place to assist beneficiaries to process their paperwork before it was sent to Pretoria. The Master’s Office would provide detailed information. He stressed that it was necessary to balance the need to protect the Guardian’s Fund against fraud with the need to make it more accessible to beneficiaries.

Mr Jeffery said that there needed to be more hands-on assistance at local service points, to ensure that paperwork was in order before it was sent to Pretoria. He asked if capacity problems were the reason for lack of assistance at the moment.

Mr Basson said that the Johannesburg Office had ample facilities and resources and sufficient staff, but that the Durban Office still needed additional staff and accommodation.

Ms Smuts asked again whether the situation she had referred to earlier could be attributed to labour legislation.

Mr Basson said that it was a ‘very subjective situation’ and could not be blamed on the labour law regime.

Mr Johan Johnson, Acting Chief Financial Officer, Department of Justice and Constitutional Development, said that the EFT system was deployed in over 90 courts and was used to make payments to large numbers of people. He would investigate what problems still existed in the system. The Master’s Office had a back-up 3G system for cases when the main internet services were not operating.

Ms Nonkululeko Sindane, Director-General, Department of Justice and Constitutional Development, said that the Department appreciated the R100 million that it had received, as a result of the Committee’s intervention, to help the Department to improve its ITC systems. A disaster recovery programme had yet to be formally rolled out, but some interventions had already been put in place. Computer files were backed up on a daily basis. Part of the allocation for ITC systems would be used to enhance the ITC side of the disaster recovery programme.

Ms Pilane-Majake asked for the predicted timeframes on the roll-out of the disaster recovery programme.

Ms Sindane replied that that information would be provided to the Committee.

Mr Serati Ntsimane, Project Manager, Department of Justice and Constitutional Development, said that the Department’s network services had previously been provided by the South African State Information Technology Agency (SITA). Those services had subsequently been migrated to Telkom, and then back to SITA in November 2011. Over a two-month period, there had been many complaints about slow internet, especially in Bloemfontein. The Department had met with SITA to institute investigation of those complaints. SITA had requested the Department to hire an independent service provider, and tenders were currently being under consideration. The main concern was that the R100 million that had been received to upgrade infrastructure should not be used to invest in a shaky foundation.

Ms Pilane-Majake said that the Department should follow due diligence procedures and take note of best practices used by other government entities with regard to ICT facilities. South African Revenue Service (SARS) had improved its ICT system dramatically, illustrating that it was quite feasible to do so.

Ms Sindane confirmed that the Department was already in communication with SARS.

Mr Johnson said that the Department did not know the full extent of the budgetary needs on information regulation, but that it would be guided by new information, and would make supplementary allocations.

Mr Jeffrey said that the Committee was concerned about the costs. The Committee had received documentation that indicated that financial controllers were not communicating properly with one another, and it was a problem that Mr Johnson also did not know all of the amounts.

Mr Lawrence Bassett, Chief Director: Legislative Development, Department of Justice and Constitutional Development, said that the money that Mr Johnson indicated had been set aside was allocated for start-up costs for the planned new office.

Ms D Schäfer (DA) wanted to know when SITA was going to be held accountable. She suggested that the Committee call SITA to a meeting, noting that it had caused problems in the past.

The Chairperson said that the Committee could look into calling SITA directly. He noted that it was unacceptable that, despite the Promotion of Access to Information Act, public bodies still refused to give out information.

Ms Sindane said that the Department would revert to the Committee with more complete information on the questions that had been asked on the previous day in relation to witness protection. This matter had already been raised with the Minister of Justice and Constitutional Development. A formal report on the issue of transformation within the Department would also be provided to the Committee, which would include information on how staff were procured and promoted. The Department had already submitted a report on transformation and gender in the legal profession, and the allocation of briefs.

A representative from the Department listed the employment equity percentages with regard to race and gender.

Ms Pilane-Majake remarked that there had been improvement, but that there still needed to be more effort on this.

Another official from the Department spoke about the funds that had been allocated by the European Union, and that were managed by the Foundation for Human Rights, with the purpose of increasing access to legal services and advice. Government had made an undertaking to assist in strengthening civil society organisations. There was an improvement in the number of advice centres, and 51 had been established around the country.

Ms Pilane-Majake found it encouraging that the Department was focusing on rolling out access to legal advice services to South Africans who could not afford these on their own.

Ms Sindane then responded to questions asked on the previous day around vetting prior to appointments. Although there was not comprehensive vetting for all staff, there were fingerprinting and background checks prior to appointment. Once staff were appointed, more detailed security procedures could be engaged in.

Budget report
Mr Johnson took the Committee through the Department’s presentation on its budget and expenditure report for the 2011/12 financial year (see attached presentation). Overall, there was an improved budget and expenditure outcome, but the Department was suffering strain on operational budgets as a result of an efficiency gains cut by the National Treasury, which had cumulatively amounted to R724 million. The Department might have to approach the Committee for assistance in requesting more funds, as buildings would need to be improved in the near future. Inter-departmental programmes involving the National Prosecuting Authority (NPA) and Legal Aid South Africa (LASA) took up a substantial allocation. There was currently over R1 billion in the President’s Fund. The Department received revenue from fines, penalties and forfeits, which were paid over to the National Treasury. There were projected increases in revenue, as a result of the predicted increase in efficiency in third party matters. Regional budget allocations were determined by the number of personnel and the number of courts in each region. However, a different situation applied to branch budget allocations, and some branches had received increases while others had received decreased budget allocations.

The Department was responsible for the funding of certain policy priorities, including the allocation for the Commission of Enquiry into the Strategic Defence Procurement Package. This Commission would need to receive supplementary funds. Further funding would also be needed for the planned assessment of the impact of Constitutional Court and Supreme Court of Appeal decisions.

Ms Smuts asked why there was such a large budget for travel under court services.

Mr Johnson said that judges and magistrates often flew business class when attending to their official duties, and sometimes they brought their spouses with them, in line with the official policy for circuit courts. However, this had recently been raised with the Chief Justice, with a view to reducing the spending. He noted that the amount spent on travel and subsistence had been brought down from a R400 million figure in previous years. He also noted fluctuation in the funding of the Special Investigating Unit (SIU), which had been in ‘dire straits’, and had also received funds from the National Treasury.

Ms Smuts asked whether Occupation Specific Dispensation (OSD) arrangements had been reflected in the budget. The whole point of the OSD was supposedly to retain and develop the Department’s legal personnel, but the opposite had actually happened. Junior registrar’s salaries, for instance, had been reduced.

Mr Johnson explained that the Department received guidance from the National Treasury and other parties on the OSD, and then identified which groupings needed to be incorporated into the Department’s budget. There had been some contest from people who fell outside of the dispensation and wanted to be grouped within it. Budgetary provision had been made for the OSD.

Ms Sindane also addressed the question of OSD, and said the challenges that registrars had been experiencing were also being experienced throughout the organisation, including within NPA, Legal Aid South Africa, and the Special Investigating Unit. The Department would be raising these issues with the Department of Public Services and Administration. Other departments had also experienced problems with the unintended consequences of OSD. A more detailed report would be submitted on the effect of OSD on registrars specifically.

Ms Pilane-Majake asked whether there had been any specific effort to budget around OSD when it was first introduced.

Ms Sindane said that the answer was both yes and no. The Department had budgeted, in the broader sense, for the eventuality of OSD, and had received R300 million to cater for OSD. When OSD had first been introduced, it had not been possible to categorise all existing staff. It would only be possible to determine OSD groupings when the entire portfolio had been properly defined. That debate would hopefully come to a close soon.

Ms Pilane-Majake commented that it was clear that the financial implications of OSD had not been well considered.

Mr S Swart (ACDP) noted that the Committee had received complaints from the judges at that court about under-funding and minimal resources, yet the Department’s budget reflected that there had been under-spending at the SCA. This was a cause for great concern, and needed to be addressed. ‘He commended Mr Johnson and the Director–General on the total budget, bearing in mind the cuts over the years.

Mr Swart said that the Department collected a large amount of money that was then given over to the National Treasury, to use as it chose. He suggested that the Department should be able to use that money as a bargaining tool when requesting further funds from the National Treasury, and also asked whether the Committee was in a position to request additional funds for the Department now, as it was clear the Department needed such assistance.

The Chairperson strongly agreed on this point.

Mr Johnson noted that the Department was doing well on revenue collection and wanted to improve. The Department of Correctional Services (DCS) had a special dispensation, under which it received back a third of the monies it contributed to the National Revenue Fund, and this might be a possible model for the Department of Justice and Constitutional Development to follow.

Mr Swart also asked whether it was a legislative requirement that the Department should fund Commissions of Enquiry.

Ms Schäfer wanted to know if the allocation for Justice College was meant to include the South African Judicial Education Institute (SAJEI). She asked where SAJEI would be situated. She also noted that if the Committee could make recommendations for additional funding for the Department, it would ask the Department to present a concrete proposal on its biggest priorities, and the Committee would see what it could do to assist.

Mr Johnson advised that currently, the Department was trying hard to channel the money it had received to critical areas. The Department appreciated the assistance for extra funding already given by the Committee, and would compile a list for the Committee of its most important support needs for the future.

Ms Sindane explained that it was anticipated that the responsibility of overseeing SAJEI would eventually move to the Chief Justice. This would allow him to assess and approve the ways in which the judiciary was being trained. The Justice College would continue to exist within the Department, in order to assist in training for special skills shortages. The Department planned to increase the services of the Justice Colleges in the near future.

The Chairperson wanted to know what machinery and equipment were necessary for the SCA, and whose responsibility it was to buy such assets for the court.

Mr Johnson replied that the Department was responsible together with the judiciary, as the Department procured equipment on the advice of the judiciary.

The Chairperson remarked that the Department had not done that.

Ms Smuts thought that the problem was due to both a lack of proper communication, as well as the relationship between the SCA and the Free State Regional Head, who had been absent. The problem ultimately came down to court management and staff. She had heard, informally, that the staff at the SCA were not working properly, and proposed that the Committee inform the President of the SCA of this, and call for comment.

Ms Pilane-Majake said she thought there might be a problem in that the Department had received funding yet was not acting. She wanted to know what interim arrangements were in place to ensure improvements in the courts. She commented that the delays in equipping courts might be due to some level of complacency.

Ms Sindane appreciated the guidance of the Committee, and undertook to provide a document to help the Committee assist the Department in its dealings with the National Treasury. She made a commitment to look into the situation at the SCA, and said that she personally would oversee the matter. The Department would, within the next few days, be appointing a new Regional Manager to address the managerial issues. There was a court manager at the SCA, but there were always leadership issues in that region, and that translated into the court environment.

Ms Sindane also noted that the amount that had been set aside for the assessment of the decisions of the Constitutional Court and Supreme Court of Appeal decisions, would still have to be squeezed from elsewhere in the Department’s budget, although it was a relatively small amount in comparison to other matters.

Ms Schäfer asked if it would compromise the tender process for the court assessment project if the amount budgeted was disclosed.

Mr Johnson noted that the Department had started negotiations with the Department of Home Affairs about the Represented Political Parties Fund.

The Chairperson asked how National Treasury could simply withdraw funds from the Department of Justice, and give them to the Department of Home Affairs, and whether this was done under the Independent Electoral Commission Act.

Mr Bassett said that the Act, and its fund, were originally administered by the former Department of Constitutional Development. When the new Department of Justice and Constitutional Development was formed, the administration of that Act was transferred to the new Department. DOJ had recently asked the Minister of Home Affairs to consider taking over the administration of the legislation and the fund.

Mr Johnson said that it was not possible to predict when a capital works building project would be completed. The Department’s outstanding commitments and accruals would lead to problems if they were not properly attended to. Some money had been shifted from the Justice Colleges to SAJEI for the training of magistrates.

Ms Sindane then explained that the Magistrates Commission was formed in terms of the Magistrate’s Court Act, and until there had been amendments on that, it was not possible to finalise the leadership strategy for magistrates. However, it was proposed that the Chief Justice exercise oversight of magistrates on a trial basis until the legislation was amended.

A representative from the Department confirmed that court files were now available to the South Gauteng High Court.

Ms L Adams (COPE) asked why there were problems with the proper maintenance at certain courts, even though there were funds available for that purpose. She wanted to know why the issue of toilets had not been addressed at the South Gauteng High Court. There was money available for the maintenance of courts, so she wondered what was causing the hold-up.

The Chairperson also bemoaned the shocking condition of the Bloemfontein High Court.

The Director–General said that the Department had committed to work out a programme in this respect, and a programme in the Kwa-Zulu Natal region was operating with NGOs providing evaluation. Such initiatives did not always need to come from the Regional Office. The Department had allocated funds for court maintenance, but she recognised that the amounts may not have been enough to improve those courts that needed a substantial amount of work. She thanked the Committee for the useful engagement on the topic of infrastructure. Within the infrastructure portfolio, discussions to date had been limited to building and maintenance. The Department had not yet discussed the issue of leases, but would like to discuss that topic with the Committee in future.

The Chairperson said that it was obvious that the budget cuts that the Department was experiencing would impact negatively on its core functions, and that was cause for serious concern, as it had not been expected, and led to dire implications for delivery of access to justice for all South Africans. The increases in rates and taxes of local authorities were also of concern, as they were above the inflation rate. Other programmes were going to suffer as a result, and the Department would struggle to keep up with its obligations. The Committee would deal with these issues when it engaged with the National Treasury. The Committee needed assistance from the Director–General and the Chief Financial Officer to prepare properly for the discussions and requests to National Treasury.

The meeting was adjourned.


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