Department of Justice and Constitutional Development Annual Report 2011/12

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Justice and Correctional Services

16 October 2012
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development met with the Department of Justice and Constitutional Development to deliberate on the 2011/12 Annual Report and Financial Statements. The Department of Justice informed the Committee that one of its key activities over the past financial period was the capacitation of the Office of the Chief Justice. The Department of Justice seconded senior departmental staff to the Office of the Chief Justice; a structure for the Office of the Chief Justice was approved by the Public Service Commission as well as National Treasury. The Department of Justice advertised the terms of reference for the analysis of the judgments of the Constitutional Court and the Supreme Court of Appeal and the tender process has since been closed. The Department of Justice’s biggest problem was the Third Party Fund for which it has received a qualification. In order to turn things around, annual financial statements and a lot of consultations were done in order to set up the appropriate accounting framework that would address the expectations of all partners and stakeholders such as the Auditor General, National Treasury and the Standards Accounting Board. The Department of Justice was very clear on what had to be done now.

The Department of Justice was audited for the first time on performance information and it received a disclaimer in 2010/11. It was disclaimed because it was unable to verify the performance it had claimed it achieved. For the current financial year hard work has been put in to ensure that all of the Auditor General’s recommendations were fulfilled and as a result a clean audit on performance information has been achieved. The Department of Justice decided that it was going to be of no value for it to go back and prepare annual financial statements from way back until now for Third Party Funds. There was a decision and statements were prepared from 2009 till now. The Department of Justice was not qualified on irregular expenditure because it had tightened its controls Remedial action was implemented which had been discussed with the Auditor General. Financial reporting also improved.

 In terms of the Financial Report the Committee was informed that 99.9% of the budget had been spent and R1 million was given back to the national fiscus. The Department of Justice had to do some re-allocation of the funds. R2.6 billion was spent on goods and services. Over R80 million has been re-allocated to beef up the infrastructure spend. Most of the budget was spent on court services and there was a 7.8% increase (R3.9 billion to R4.2 billion). The amount for accruals has increased from R185 million and this financial year it was over R379 million. There has been a steady increase in the budget over a three year period. In the next four years nearly R4 billion was going to be spent on court infrastructure. As of next year the Political Party Fund would no longer be with the Department of Justice. In the baseline for judges and magistrates R150 million was set aside for additional appointments.

In the second part of the meeting, the Department continued to outline the matters in Programme1 and said that budgetary constraints were continuously hindering the improvement of safety and security initiatives in the offices and courts. This was revealed when the Department was briefing the Portfolio Committee on Justice and Constitutional Development on its annual performance.

The Department had received an unqualified audit report, but with findings. During the 2011/12 financial year, the Department enhanced financial capacity through the approval and funding of middle management and technical positions in the areas of supply chain management, internal control, trust fund management and asset management. An Audit Action Plan was developed to monitor implementation of interventions identified by the Auditor-General (AG). 90% of this plan was implemented during the year under review against the target of 100%. 64% of risk mitigation plans were finalised by December 2011 against the target of 100% by the same period. 29 risk mitigation plans were conducted for all areas by 31 March. Annually the Department was facilitating risk assessments in all its branches and regions.

The Department adopted a three-pronged strategy in order to fight corruption. This entailed staff awareness programmes, improved finalisation of cases and the vetting of key staff members. 21 workshops on the prevention of fraud and corruption were held and some in collaboration with the Public Administration Leadership and Management Academy.

The Department continued to provide special protection services for various members of the Judiciary and Prosecution based on the on-going Threat and Risk Assessments. The Department was assisted by other law enforcement agencies in this area to ensure a coordinated approach.

The Committee wanted to know why the Department of Justice had been saddled with the bill for the Marikana and Arms Deal Commissions given that the budget process was already finished and it was struggling in terms of financial resources to meet all of its obligations. The issue of the Department’s Performance Indicators was raised as still being a concern. Case flow management was referred to as a disaster in some courts and the Department was asked whether or not it still relied on the National Prosecuting Authority’s statistics. The Department of Justice was commended for improving by some Members whilst others pointed out that it still had only achieved 72% of its targets. Some Members referred to the tender for assessment of decisions of the Constitutional Court as well as the Supreme Court of Appeal as less of a priority and thus an area where cuts could be implemented.

Concerns were raised over the Administrations of Agency Bill which was not forthcoming as well as the fact that the Department seemed to be running ahead of legislation in setting up the Office of the Chief Justice. The Committee expressed disdain at the fact that magistrates have not been trained as per the requirements in the Promotion of Access to Information Act 12 years down the line, the Committee pointed to the fact that there were certain parts of this Act that could not be implemented until the training had been done. The Committee questioned why the Public Protector had not received any cuts.

Members wanted clarity on the issue of vacancies and on the change of contracts of security infrastructure. The continuing problems with the Department of Public Works were outlined, and Members enquired whether the Department had thought of buying its own building.  They enquired if State Attorneys were charging other state departments for conveyancing work they done. A substantial debate was held on the position of the Public Protector, some complaints that the Department had not responded to findings and the status of those findings vis-à-vis the Department.  

Meeting report

Presentation: Department of Justice and Constitutional Development Annual Report and Financial Statements 2011/12
Ms Nonkululeko Sindane, Director General form the Department of Justice and Constitutional Development (DoJ&CD) said that the DoJ&CD did not disagree with the findings of the Auditor General (AG). A key activity was the capacitation of the Office of the Chief Justice (OCJ).  The Department seconded senior departmental staff to the OCJ; a structure for the OCJ was approved by the Public Service Commission (PSC) as well as Nation al Treasury (NT).  The Department has reviewed the South African Judicial Education Institute (SAJEI) in order for it to start doing the work that it was originally intended to do. The Department has advertised the terms of reference for the analysis of the judgments of the Constitutional Court (CC) and the Supreme Court of Appeal (SCA) and the tender process has been closed.  Considerable time was taken to invest in senior management and turning around the weak structure that has resulted in several qualified audits. In order to turn things around the Department has identified systems, people and process that  were needed to address the biggest problem that the Department faced which was the Third Party Fund (TPF) . The Department has prepared the annual financial statements for the TPF and a lot of consultations were done in order to set up the appropriate accounting framework that would address the expectations of all partners and stakeholders such as the AG, NT and the Standards Accounting Board (SAB). The Department was very clear on what had to be done now.

The Department was not out of the woods yet it was still touch and go however it has learnt to deal with these problems. The Department was audited for the first time on performance information and it received a disclaimer in 2010/11. The Department was disclaimed because it was unable to verify the performance it had claimed it achieved. For the current financial year the Department worked hard to ensure that all of the AG’s recommendations were fulfilled and it has achieved a clean audit on performance information. This year the Department was only qualified for TPF. The Department had not paid sufficient attention to the human and systems capacity that was required for properly managing TPF. The Department had decided that it was going to be of no value for it to go back and prepare annual financial statements from way back until now. It decided to take a risk and started preparing statements from 2009 till now. The AG and NT were informed of this decision and they agreed. The Department took remedial action to ensure that the current financial statements would meet the reporting standards. The operating standard procedure has been developed as well as key controls. The number of courts paid via an Electronic Funds Transfer (EFT) payment method has increased; this was to ensure that there was a paper trail and a reduced time period for the payments to maintenance beneficiaries. The Department embarked on extensive training for the handling of the TPF.

The Department was not qualified on irregular expenditure because it had tightened its controls. The Department implemented remedial actions which it had discussed with the AG. The financial reporting has also improved.  During the previous year the Department was disclaimed for performance information because the usefulness of the information and the indicators were not well defined. The Committee should bear with the Department as it was mindful of the recommendations from the AG and was working very hard on implementing them. It was important for the Department to properly scan through information that it submitted for performance purposes. The Executive Committee sat twice a week and submitted monthly reports. The internal audit was used for verification purposes. Performance targets were being developed scientifically and were linked to the budget. Despite the ongoing problems the Department has ensured that courts continued to rune adequately. The Department spent R4.2 billion on the running of court services. The current Chief Justice (CJ) has been a proponent of an efficient case flow management system, there was already a difference through the work he has already done.  Cases were moving a little faster than they were before however it is still early days.

Mr Johan Johnson, Acting Chief Financial Officer of the DoJ&CD continued with the presentation dealing with financial matters. The Department spent 99.9% of its budget and gave back R1 million to the national fiscus. The Department had to do some re-allocation of the funds. R2.6 billion was spent on goods and services. Over R80 million has been re-allocated to beef up the infrastructure spend. The Department still spent most of its budget on court services and there was a 7.8% increase (R3.9 billion to R4.2 billion). The amount for accruals has increased from R185 million and this financial year it was over R379 million. The Department has established a compliance policy unit as part of the turnaround strategy. The Department has enhanced its departmental policy and prescripts and was meeting regularly at the Executive Committee level and also preparing quarterly financial statements. Budget and expenditure reviews were conduct on an ongoing basis. The work done since mid -October has focused on document management and accounting validation. The big challenge now was the conclusion of the 2012/13 financial statements and the objective of obtaining a clean audit. Less consumption and more investment had to be undertaken as NT has advised the department hat it had to take into consideration the current economic crisis.

Mr Johnson continued to state that there has been a steady increase in the budget over a three year period. In the next four years nearly R4 billion was going to be spent on court infrastructure. As of next year the Political Party Fund would no longer be with Justice. In the baseline for judges and magistrates R150 million was set aside for additional appointments, the Department was arguing that perhaps there should be a cut down on appointments as there were impending budget cuts to the tune of R1 billion. Another alternative was to minimise the awarding of performance bonuses. Usually when there were budget cuts the first area that suffered was training, the question was whether or not this was ideal as judicial officers had to be trained on Sexual Offences as well as other new pieces of legislation that were coming out. If some of these cuts were implemented then there would be major concerns on the impact of this on service delivery. There had to be additional capacity for courts, magistrates as well as legal aid. Currently the Department of Public Works (DPW) wanted to give the service of cleaning and maintaining courts back to the Department with no baseline allocation. The Marikane Commission cost was apportioned to the Department, this came after the budget process and the Department was expected to find this money. There was a R350 million shortfall for security services.

Discussion
Mr J Jeffery (ANC) said that it was difficult because there were two presentations, this was more than just minor changes and slides have been moved around. This must be avoided in future. Could the Committee be given figures for officials against whom disciplinary action has been taken? The Performance Indicators were still problematic; the Department has not informed the Committee on the new system that was being used? The statistics on the court cases were still not matching? Has all personnel of the DoJ&CD moved to the new Salu Building? When the Committee visited the Department earlier this year the site was not impressive as telephones were not connected on the date that the Department was moving in. How much has been spent on rental for the building since the lease started and what was the break down in terms of liability between the state and the Department? There was no detail on training of magistrates on the use of the Promotion of Access to Information Act (PAIA). Case flow management at some courts was a disaster. The Public Protector (PP) has informed the Committee that it was not going to get a cut, who authorised this and why? In terms of the cuts reflected for judges and magistrates the Department would have to cut the numbers of judges and magistrates but not their individual salaries. The Department would have to ensure that the existing courts functioned; cuts could be implemented by putting on hold new court building projects.

Mr S Swart (ACDP) said that here has clearly been improvement from the Department. Progress has been made and this has to be commended. What was the situation on the South Gauteng High Court? Why was the Department called to pay for Commissions, surely the Presidency should approach NT for funds. Should the inquiries behind the decisions of the SCA and CC not be seen as less of a priority?

Ms C Philane-Makaje (ANC) said that the improvement was encouraging. The area of performance was still important, how measurable were the indicators? Was there nothing glaring or problematic from the financials before 2009 of the TPF given the Department’s decision to start auditing after this period? The shift of cleaning services from DPW has to happen with funding that should be made available to the Department.

Ms M Smuts (DA) pointed out that one of the proposals from the Department in terms of cuts was the non-implementation of the Protection of Personal Information Bill (PPI), this would be a terrible mistake as there was a dire need for this Bill, and the Committee would not allow it. There was virtue in the idea for stopping building projects. The Department should brief the Committee on how far were the Polokwane and Nelspruit High Court building projects. If there was an easy candidate for where cuts could happen were the assessments behind the SCA and CC judgments, nothing would come of this. I have received an email from a person who calls themselves the ‘suffering civil servant’, were the allegations made in this email true, that the performance assessments have not been finalised? Surely the Department had to create an independent administrative agency for the OCJ, what was the implication of what it was currently doing in this regard and which part of the Superior Courts Act was being relied upon?

Ms D Schäfer (DA) said that the Department was still not complying with 72% of its targets. The R75 million for the Marikana Commission was not fair on the Department. If the PP was not getting cuts then so should the Department. Was the Department no longer relying on the National Prosecuting Authority’s (NPA) figures for cases? Has NT instructed the Department to not pay municipalities fees and services and rather build infrastructure? What levels of cooperation was the Department experiencing with the DPW and also what problems were there? Were the accruals as a result of a depleted budget? There was no way that one could cut posts for magistrates and they were also litigating as they have not had any salary determinations, to cut their salaries at this point would be disastrous.

Mr Johnson replied that the Department was getting R150 million to appoint additional magistrates and judges and next year it would be R250 million. Instead of doing this the funds could be diverted to more pressing matters. The PP was a Chapter 9 Institution and engaged directly with NT. The disciplinary hearings against staff entailed the issuing of verbal warnings however there were no statistics off hand now. Goods and services had no money by the end of the financial period. There was a particular shortfall for the TPF; the Department was not just writing off the figures, the system was working.  

Ms Lebo Mphahlele-Ntsasa, Chief Director: Strategy form the DoJ&CD said that the AG in its report had said that the DoJ&CD had to implement an electronic management system that would assist with the performance information. The Department found a system and began to implement it. Different users have been identified and used regularly.   The biggest problem with performance information was the quality of the information provided and not the system itself, the Department was focusing on ensuring that there was proper validation and processes in place.

Dr Kgotso De Wee, Chief Operations Officer (COO) said that the Department had transferred certain functions to the OCJ on a pilot basis in order to strengthen this office and enhance the independence of the judiciary. The Department experienced complications on transfers for the SCA, CC and the Secretariat of the Judicial Service Commission (JSC). This was delayed due to the complications experienced with the Magistrates’ Commission (MC) and the Rules Board. Treasury has inquired as to the state of readiness of the OCJ in light of the Superior Courts Bill and Constitution 17th Amendment Bill. NT then pointed out that it would not be sufficient to only transfer the SCA and CC to the office of the OCJ because now that it has become a Department on its own it was better that it had more responsibilities in anticipation of the two Bills. NT suggested the addition of the High Courts from 1 April 2013. The OCJ has embarked on filling posts, there should be a head of department by at least December 1 2012. The intention was not to run ahead of legislation, these were recommendations from Treasury. The accruals problem was as a result of the cash flow management problems that the Department has been experiencing. In terms of storage for court records Phase 1 of the project would be finalised by the end of December.

Ms Smuts said that this would have to be sorted out in the Superior Courts Bill, it was improper to set up a government department, now the Department was perpetuating this government department for the CJ. The law should be written differently in the Superior Courts Bill.

Mr Jeffery said that the only way of creating an entity was via proclamation or law. The only way of establishing an independent body would be via statute. The Administration of Agency Bill was meant to do this however the Bill was taking a long time. 

Ms Sindane replied that Mr Jeffery had captured what was originally intended. The Department would come back on the third day to answer the question on how far the process was in terms of the Administration of Agency Bill. The Department would provide a more detailed answer on Salu tomorrow. The Department acknowledged that it could have handled the Salu building issue much better. Everybody who ought to have moved to Salu had moved.

Mr Jeffery asked if rent was being paid for the vacated buildings.

Ms Sindane replied that the vacated building was not going to be empty, the Marikana Commission of Inquiry has already moved in there.

Ms Schäfer asked why this building was not used for the Arms Deal Commission.

Ms Sindane replied that the Arms Deal Commission was bigger, it had more documents and the Momentum building was not ideal for the storage of documents. The Department has had engagements with the CJ on the training of magistrates for PAIA. The Department has been so engrossed in setting up SAJEI as opposed to training for individual pieces of legislation. The CJ has since begun the process of training magistrates but in terms of PAIA the process was behind schedule. Information for specific training on the various pieces of legislation would be provided tomorrow.

Mr Jeffery said that the sections of PAIA cannot operate until the training has been done; PAIA was passed in 2000 already. The slides did not indicate how many of the 6 200 magistrates have been trained. Under the indicators there was no PAIA but it seemed like it was not a priority for PAIA. The other Acts were not dependent on the training of magistrates in order for them to be implemented. This was completely unacceptable given that this was raised at last year’s Budget Review Report (BRR) process and a year later nothing has been done. When would these sections of PAIA be implemented and perhaps this should be adopted as a House resolution?

Ms Smuts said that she supported Mr Jeffery. The idea of training judges and magistrates was a nicety however such persons should be appointed because they could do the job.

Ms Schäfer agreed that people who could not apply the law should not be there in the first place, it would be easier if PAIA was amended instead.

Mr Jeffery said that the requirement was in the law already.

Ms Sindane said that the point was noted. On the salary cuts the Committee should be aware that the matter was out of the Department’s hands especially for Legal Aid South Africa (LASA). The Department had tried to engage with NT to stop the cuts for LASA however it was not the Department’s call.

Mr Jeffery asked whose call was it.

Ms Sindane replied that the Department received an instruction that there had to be cuts of 1%, 2% and 3% over three years. The Department has not undertaken a study as to determine the difference that has been made via the building of new courts. The Department cannot respond to why it was paying for the Commissions of Inquiry.

Mr Jeffery asked what the implications were for the Commissions; it did not make sense because the Department received a budget, the Committee then inquired as to whether the budget was being followed then the Department was expected to find this money from within the budget.

Ms Sindane said that where there was a Commission of Inquiry that has been appointed the Department had to try and find the money, after the tenure of the Commission then Treasury makes up for it. There was a shifting of recourses from the Nation in Dialogue project to the Marikana Commission.

Mr Jeffery said that he understood now.

Ms Philane-Makaje said that here has to be a specific fund set up for commissions in future.

Ms Schäfer asked if the DG has stared engaging with Treasury on the adjustment of the funds for the Marikana Commission.

Ms Sindane said no.

Ms Schäfer said that she should.

The Chairperson said that he had difficulty with the questions asked of the DG when this was not her doing, she did not take the decision to appoint these Commissions, and she was simply told to find the money. The question must be diverted to the presidency.

Ms Sindane continued to say that more detail would be provided on the progress of courts that were under construction tomorrow. The impact for government in terms of job evaluations as well as Occupation Specific Dispensation (OSD) was that there was no difference in terms of performance; it was the same people doing the same job just with a little bit more. The performance assessments of senior managers have been delayed but they have been done, they were ongoing and the Department was paying in batches. The whole OSD model must be re-looked at.

Ms Philane-Makaje said that the Committee should get a full report from the Human Recourses section of the DoJ&CD on performance assessments, job evaluation etc.

The Chairperson thanked the Department and said the Committee should reconvene after lunch.

Third Party Funds
Ms Sindane noted that in order to address the Third Party Funds qualification, some key activities were implemented. The Department enhanced financial capacity through the approval and funding of middle management and technical positions in the areas of supply chain management, internal control, trust fund management and asset management. It completed a comprehensive review and documented Third Party Funds operations. 160 area court managers, financial operations and senior financial managers were trained on basic financial management and appropriate financial reporting framework for the Trust fund. Further training interventions would be deployed during 2012/13 and would focus on court managers and personnel assigned to the cash management operations in cash halls.

Audit Action Plan
An Audit Action Plan was developed to monitor implementation of interventions identified by the AG in 2011/12. Although there were few implementation challenges, 90% of this plan was implemented in 2011/12, against the target of 100%.

Challenges identified in the Audit Action Plan indicated that the planned interventions were not adequately Specific, Measurable, Achievable, Realistic and Time-bound. (SMART). The calculation of percentages could not be accounted for; and deadlines were revised continuously.
In order to correct the challenges, a new approach was developed where responsibility for resolution of findings rested with users of the service and management of the Department.  SMART interventions were developed, together with metrics to measure the SMARTness. There was development of a calculator based on four elements to measure progress and account percentages. All branches and regions had assigned a person to coordinate progress in resolving audit issues.

Risk Management
During 2011/12 financial year, 64% of risk mitigation plans were finalised by December 2011 against the target of 100% by the same period. The 29 risk mitigation plans were conducted for all areas including the regions. During 2012/13 some risk management initiatives were undertaken. Every year, the Department was facilitating risk assessments in all its branches and regions. Vacant posts were filled and the Department was now in the process of finalising the appointment of Risk and Compliance Champions. The appointment of Champions would assist in the coordination of risk assessments, and monitoring of mitigation plans and compliance-related activities to enhance better and quicker reporting.

The risk management initiatives would assist the Department to move from level 3 to level 4 or 5 rating in terms of maturity levels. This meant the Department should improve from mere compliance with prescripts, to a stage where value-add could be measured and all processes were coordinated. The prescripts, policies and codified instructions were being amended to ensure alignment with performance expectations as well as service delivery initiatives.

Fraud and Corruption Management
The Department adopted a three-pronged strategy to fighting corruption. This entailed staff awareness programmes, improved finalisation of cases, and vetting of key staff members. During the period under review, 21 workshops on the prevention of fraud and corruption were held against the target of 30, and some sessions were held in collaboration with the Public Administration Leadership and Management Academy (PALAMA).

The fraud prevention implementation plan was also developed to monitor preventative detection, and to have a reaction, investigation and resolution mechanism within the Department. The Department had raised awareness to more than 2 500 officials and was still intensifying awareness sessions. In addition, the Department was involved in Cluster Anti-Corruption Activities to ensure proper alignment with other government structures.

Special attention had been placed on the vetting of senior managers. By the end of the 2011/12 financial year, 50% of the 154 senior managers had been vetted against the target of 65%. In terms of cluster initiatives, the supply chain managers complied with the submission of vetting forms as required. This exercise would assist the Department to decrease the risk of fraud and corruption within the supply chain environment.

Safety in the court environment
Although the initial contract for security installations was targeted at 150 courts, cost escalations had brought the number down to 90. During the 2011/12 financial year, the target of completing 50 sites was achieved. The Department continued to provide special protection services for various members of the Judiciary and Prosecution services, based on the on-going Threat and Risk Assessments. The Department was also assisted by other law enforcement agencies to ensure a coordinated approach.

Various challenges were noted, which made it difficult to provide safety in courts. Budgetary constraints were hindering continuous improvement of safety and security initiatives in DOJ&CD offices and courts. Currently, an amount of R325 million was needed to meet the demand of current contracts. There was also a need for ongoing maintenance and upgrade of current security infrastructure, security servers and other security equipment. Some of the courts needed supply and installation of fire-arm discharge units that complied with the prescripts. With current budget allocations, this area would remain one of the security challenges. The current security contracts were expiring in December 2012 and if additional funding was not made available, the Department would be forced to scale down on security services, and this would compromise the security of staff and members of the public.

Human Resources Services
Although the vacancy rate of 10,5% was above the public service norms, and way above the Governance and Administration targets, it remained lower than the Departmental target of 7%. Budget and accommodation constraints would continue to make it difficult to move the vacancy rate into single digits.

During the 2011/12 financial year, the target for training 6 048 staff, in line with Departmental objectives, was not achieved, due to additional training requested for the Judiciary.  In total, 6 207 people were trained, including the Judiciary.

Completion rates of both grievance cases were improved substantially as compared to the previous financial year. A project plan and substantial resources were put in place to finalise 65% of both misconduct and grievance cases. These should be seen against the targets of 50% and 65% respectively.

During the year under review, 446 individual reparations were paid, against the target of 500. This was a major improvement on the previous year where only eight beneficiaries were traced and paid. Education and health regulations which were necessary to enable victims and their immediate families to be assisted were the subject of consultation and were expected to be finalised during the 2012/13 financial year.

Finally, the Department was playing a supporting role in the exhumation and reburial of victims, and to date had assisted in 77 exhumations, 54 of which have resulted in reburials and symbolic repatriations.

Discussion
Mr Jeffery wanted clarity on the issue of vacancies. Specifically, the Department indicated it was unable to fill the post of a Deputy Director General and Chief Financial Officer.

Ms Sindane explained that the posts for DDG: Corporate Services and CFO were advertised, and interviews were done. The candidates were found to be unsuitable, and that process was stalled. Now, those posts have been re-advertised.

Mr Jeffery asked if the Department was relying on NPA statistics.

Ms Sindane confirmed that the methodology of getting statistics had not been agreed on and the statistics were, previously, being interpreted in different ways. The Department needed to find a solution quickly. A new portfolio for statistics had to be agreed upon, with follow up actions. This was not affecting only the DOJ&CD, but all other state departments. The NPA statistics were not a relief or a discomfort either.

Ms Smuts wanted some clarity on the change of contracts for the security infrastructure.

Ms Sindane said it was not the guarding contracts that were a problem but the infrastructure. Infrastructure costs have increased monumentally. As a result, although many courts had been upgraded already, this could not be done in all. At the same time, not all courts could be guarded. Sometimes the Department had to rely on technology.

Ms Schäfer enquired if the Department was paying rates and taxes.

Ms Sindane explained that the Department of Public Works (DPW) was paying rates every month, and the Department was then refunding the DPW. DPW was the landlord. At this stage the Department was looking at fast-tracking billing and payments, and was planning to sit with National Treasury to discuss areas where it could fast-track areas in infrastructure development. There was a broader directive on this issue. She further indicated that some of the money allocated for infrastructure development would be returned to National Treasury because of problems related to tender procedures. It was suggested to National Treasury that the returned money should be used to settle rates and taxes finally.

Mr Swart asked about the cause of the accruals; and wanted to know about monies owed by other state departments to DOJ&CD.

Ms Sindane stated that cash flow management was the cause of the accruals. The Department had now started a process to ensure that it would pay within 30 days. In the past, this used to be 90 days.

Ms Sindane added, in regard to monies owed to DOJ&CD that the collection process was going very well. The R384 million collected was owed to the Department, as distinct from the vote of DOJ&CD. It was difficult to achieve account balancing. During April 2012 a sum of R354 million was recovered. She emphasised that often, in attempting to recover money, further debts would be incurred, so this was in a sense a revolving matter. There had to be improvements to the collection process.

The Chairperson wanted to find out if the Department was invoicing within 30 days.

Ms Sindane said the process of collection had not been a good one. That was why, because of certain interventions, the Department has started to see improvements in this area.

Mr Swart enquired if the State Attorneys were charging other state departments for conveyancing work they did.

Ms Sindane expatiated that the directive from National Treasury said they should charge other state departments. The conveyancing area had not been taken into account. Any money that came to the Department had to be taken to the Revenue Fund.

Ms Schäfer asked the Department to unpack some of its problems with Public Works.

Ms Sindane elaborated that many challenges included the capacity to advertise the requirements of DOJ&CD in time. The Department would be happy if DPW could unblock this challenge. Secondly, DPW was failing in ensuring that broad maintenance plans were done in time. Thirdly, although the Department was giving DPW its plans early in the year, the latter would, from its side, fail to indicate the technical challenges. Fourthly, governance around leases was another headache. The Department needed to tell DPW 18 months in advance about lease expirations, so that DPW could start taking action. Unfortunately, DPW was failing to act in time, and there was therefore little gained from this time limit.

The Chairperson remarked that when Minister appeared before the Committee he indicated that he saw no reason why lease agreements had to be entered into with rich people. He asked the Department why it was not looking at taking a short-term lease, instead of a ten year one, and use the money to buy a piece of land and build its own offices.

Ms Sindane explained that leasing was a good option at this point. For the medium-term it was still an option. On whether to build or rent, she said if there was no allocation for building it became hard for a department to build, and therefore renting was the only other option. She fully agreed that if a department had its own property, it could determine the pace of maintenance. In the final analysis, owning a property made perfect sense, especially if costs involved in leasing and problems associated with maintenance were taken into account.

A Member asked who was running the SA Judicial Institute.

Ms Sindane said Dr Kgomolemo Mogemu had been seconded to run the institute as an administrator.

Mr Jeffery enquired about the number of reparations made from the TRC Fund, and wanted clarity on the regulations of health and education for the victims.

Dr  De Wee, explained that in the Western Cape five people were to be paid. In the Eastern Cape, 49 people have to be paid, and in KwaZulu-Natal payments were to be made to 262.

Dr De Wee clarified that the health and education regulations had been signed by the Minister. The Department was waiting for the Cabinet to approve them, so that money could be spent. The only regulation that was outstanding was that of housing, because there was a need  to get information on how many people needed houses. The Department of Human Settlements (DHS) Department had been consulted. One of the challenges noted about the TRC was that the the TRC Commissioners never thought that a community-needs analysis would have to be done. Furthermore, he said the Department was also involved in community rehabilitation, and was busy with a needs assessment, and would require some money to do that. Already an agreement had been signed with the Independent Development Trust (IDT).

Mr Jeffery indicated it was not necessary for the Department to do a community needs assessment and spend the sum of R50 million on that, because municipalities had needs-assessment information gathered through Integrated Development Plans (IDPs).

Dr De Wee explained the Department was still engaging with the IDT as it was its service provider, and was about to sign a Memorandum of Understanding. The IDPs were not going to be neglected, and there would be engagement with the municipalities. However, there was a challenge around the time. Eighteen years had passed and a needs assessment was crucial in order to get guidance for communities. It was a mistake to think the Department would spend R50 million.

Mr Jeffery indicated that what was needed should come from the community, and the needs-analysis of the Department should point out what made the community qualify for this programme of community rehabilitation.

Dr De Wee said it had taken the Minister a lot of time to agree on the methodology chosen for this programme. All the communities chosen were identified in the TRC Reports.

Mr Jeffery commented that the Public Protector, during the Annual Report briefing, had complained to the Committee that the Government and its entities were not implementing its recommendations. The DOJ&CD was one of the departments cited in the report. There was no synergy between the Public Protector, Portfolio Committee and the Department.

Ms Schäfer agreed with Mr Jeffery, and pointed out that the Public Protector had said that she had raised the matter with the DOJ&CD, but the latter was not responding.

Ms Sindane elaborated that the Department did respond to the Public Protector when communication was received. The main issue was the manner in which it was approaching the Department. In many cases the Public Protector would approach the Department about a matter two months after it had released its Report and had been reported on in the media. She fully accepted that there were some inefficiencies in the Department. To illustrate her point, she cited a labour-related matter. She said the Department had got internal controls regarding labour issues, but there were still cases where employees would approach the Public Protector. The Public Protector had re-instated people who had simply left without notice, and the Department would then find itself being instructed to give back pay to them. She noted that she did respect the findings of the Public Protector, but she had a problem in that some of these findings ran contrary to legislation. Sometimes the Department would oppose some of the things raised in the report of the Public Protector. For the Public Protector to say the Department was doing nothing was disingenuous. A further problem was that although Ms Sindane had written to the Public Protector, the Public Protector had replied to the Minister. In future, she said that she would, in all quarterly and annual reports, include sections on Public Protector and Chapter 9 institution engagements.

Ms Schäfer asked if the Department had considered taking the matters raised to Court.  

Mr Jeffery intervened and said the Constitution was not clear on the matter. There was nothing binding the Department to implement the findings of the Public Protector. The Department had the right to comment on the findings of the Public Protector. In regard to the labour matter, it was the Labour Court that had the final say, not the Public Protector. He said there must be communication between the Director General and another entity, but at the same time the Director General could not be blamed for lack of response if the matter was in the first place taken up with a junior staff member by the Public Protector. He reiterated that the Department should not blindly implement the findings of the Public Protector. It should make its own evaluation first.

Ms Schäfer indicated some of these issues could be reviewed in a Court. She agreed that there was nothing that stopped the Department from disagreeing with the findings of the Public Protector.

Ms Sindane indicated there was a forum that was monitoring and evaluating the work that all Directors General were doing, and how they interacted with each other and with administrators of other entities. This Forum allowed them to share success stories and challenges experienced.

Ms Sindane wanted to emphasise that the Department had not ignored the findings of the Public Protector. Some of the findings have been implemented. There might, however, be an instance where the findings around the TRC had not been implemented.

The meeting was adjourned.







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