Prevention & Combating of Torture Bill: Working Draft 15; Public Protector complaints, BRRR preliminary comment

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Justice and Correctional Services

23 October 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice took the Committee through the new version of the Prevention and Combating of Torture of Persons Bill, pointing out the removal of the references to cruel, degrading or inhuman treatment or punishment, because the Bill was essentially concentrating on prevention of torture. The word “complainant” was replaced by “victim” and a definition was inserted. The definition for “public official” had been changed with some words being moved to the relevant clause. Two options were noted for clause 3, and the Committee briefly discussed use of “a third person” or “any other person”. Clause 4 contained a reference to “a person” but it was pointed out that this would cover a public official, and a private person operating with the consent of a public official. Clause 4(3) contained the words “no exceptional circumstances whatsoever, including, but not limited to.. “ and a reference was made to “national security”. It was decided that clause 5(e) should rather refer to sexual assault, with a definition being inserted. In clause 6 “an accused person” was used instead of “a person to be charged”. The word “lawfully” was omitted from subclause (c), and other subclasses were changed. Members asked the drafters to consider whether it would be possible to insert the content of Article 3 of the UN Convention into the Bill. They also discussed whether clause 8, as now worded, was creating expectations or rights. Whilst the government should address instances of torture, it might, by referring to “alleged victim”, lay government open to numerous allegations of torture. Members and the Department agreed that it would be useful to word this with a reference to general regulations that could be passed, rather than referring to specific instances needing to be regulated upon before the Bill came into operation. Members noted that clauses 4 and 5 answered the need for specific penalties. They debated briefly whether a mechanism under the Optional Protocol, for a preventative mechanism, needed to be included, but determined that in the interests of time and to avoid creation of another new mechanism, this point could be debated once that Optional Protocol had been ratified. The Committee hoped to adopt the Bill in early November.

The Chairperson noted that he had received a large batch of correspondence from the Deputy Public Protector (DPP) containing allegations against the Public Protector (PP) and Members discussed how to deal with the matter. They all agreed that it would be premature to make any findings before seeing all the correspondence. They did, however, make the point that whilst it would be desirable to hold all deliberations in open meetings, there may be some instances where private hearings might be necessary to protect whistleblowers. They noted that this Committee could not sit as a Tribunal, and its function was limited to examining whether there were operational problems, then making recommendations to overcome them. The possibility was not discounted that a body such as the Public Service Commission could also assist.

Members then discussed a number of matters that arose from the hearings on the Annual Reports held over the last couple of weeks, and which may need to be contained in the Budgetary Review and Recommendations Report, which was now to be submitted by the following Tuesday. In regard to the Office of the Public Protector, it was stressed that further reports were needed on a number of matters where the Committee was concerned that this Office might be exceeding its mandate, particularly in light of the request for extra funding for appointment of more investigators. If the matters should have been referred elsewhere, this would affect the figures on complaints received. There were also some concerns about the manner in which the PP communicated with Accounting Officer and, although concerns had been expressed, a recommendation should be included on location of offices. The PP would be asked to respond in writing to matters raised in relation to the Master’s Office and Department of Justice complaints, and one Member wanted the question asked whether any investigations into private businesses were undertaken.
In relation to the Department of Justice and Constitutional Development (the Department).and National Prosecuting Authority (NPA), Members noted the substantive discussions around budget, noted their extreme concern that National Treasury had insisted that all the justice entities, apart from the Public Protector, be subjected to cumulative cuts in budget, and wanted to argue very strongly for more funding, especially given the vital nature of its work. One Member noted that this Committee could approach the Standing Committee on Appropriations, which had the power to recommend allocations to the House notwithstanding possibly contrary recommendations from National Treasury, and it was agreed that this be done. Members, after substantial discussion, decided upon a recommendation that the Department should focus carefully upon whether new buildings were necessary in this period, particularly if they would affect maintenance of existing buildings. One Member felt that the Department should be urged to fill posts, but the Chairperson said that this was not practically possible as the funding had been moved to other priorities. The magistrates’ complaints would need to be followed up, and IT improvements must be accelerated. In relation to the Master’s Office, Members felt that the services could easily be extended further, as this did not involve substantial costs, but only training of staff on systems. A Member noted the need to keep track of the external funding in the Special Investigating Unit, but was pleased to see less reliance on consultants. Another Member urged that Legal Aid, which had performed well, should be allocated more funding.

Members agreed that the Supreme Court of Appeal judges and the Head of the Impact Litigation Unit at LASA, both of whom had commented on the Criminal Procedure Amendment Bill, should be asked to present their submissions to the Committee.

It was also agreed that when the judges were invited, they should be asked also to give their comments on the position of the Competition Appeal Court.

Meeting report

Prevention and Combating of Torture of Persons Bill: Working Draft 15 October
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, tabled a new version of the Prevention and Combating of Torture of Persons Bill (the Bill) and took Members through it.

Long Title, Preamble
He noted the change of grammar in the Long Title and the change of wording in the Preamble, also reflected elsewhere, explaining that the removal of references to cruel, degrading or inhuman treatment or punishment had been effected because the Bill was essentially concentrating on prevention of torture.

Clause 1 : Definitions
Mr de Lange noted the removal of a definition for complainant, and the insertion of a definition for “victim”.

He also noted that the definition for “public official” had been changed, with some of the wording being moved to the relevant paragraph

Clause 2
Mr de Lange repeated that the Bill was now focusing specifically on torture, and this was the reason for the omission of the references to cruel, inhuman treatment or punishment.

Clause 3
Mr de Lange noted that there were two options noted for this clause, following the deliberations around public officials. The alternative option involved the insertion of a new paragraph, which essentially followed the wording of the United Nations Convention against Torture (UNCAT). In this, the phrase “a third person” appeared several times. From a personal viewpoint, he preferred the phrase “or any other person” but this was really a matter of style.

Mr J Jeffery (ANC) questioned why the words “third person” were in the Bill as introduced.

Mr de Lange explained that this was because the original drafters had followed the wording of the UNCAT.

Mr Jeffery responded that there was not really a substantive difference between the two alternatives, and the reworking of clause 3 had really broken the matters down, but he was not sure that this would make it any easier to work with the Bill in practice. He had no particular view on whether “third person” or “any other person” should be used.

Ms M Smuts (DA) also thought that either was acceptable, although it might be easier simply to follow the UNCAT wording, as some of the NGOs had been quite vocal on this. The definitional problems had been cleared.

Mr Jeffery asked that the drafters amend the two options so that they were at least consistent; the option should refer throughout to “a third person” whilst the main body should read “any other person”. The Committee could then give further thought to which it preferred. He pointed out that international jurisprudence would no doubt develop the definitions in the future.

Clause 4
Mr de Lange noted that the reference to “any public official” had been replaced with “any person”. Many of the commentators had touched on this point at the public hearings. ”A person” could still be a public official, or have acted with the consent of a public official.

Mr S Swart (ACDP) confirmed that a private person operating with the consent of a public official could still be found guilty of an offence.

Mr de Lange pointed out that clause 4(3) now contained the words “ no exceptional circumstances whatsoever, including, but not limited to.. “. The phrase “national security” had also been inserted.

Mr Swart asked what the Constitution said about non-derogable rights. He thought that it spoke to a public emergency.

Ms Smuts said that an emergency would be covered by the words “no circumstances whatsoever”. 

Mr de Lange noted that section 37 of the Constitution set out the non-derogable rights, and it did refer to a state of emergency.

Mr Jeffery questioned if this Bill should then refer to a state of emergency, to be consistent with the Constitution. This was not taken further at this point.

Ms Smuts questioned the position with the bodily integrity rights.

Other Members said this was non-derogable.

Clause 5
Mr de Lange noted that the term “an accused person” was being used, which was defined, and there were several changes of the word “complainant” to the word “victim”. He noted also new insertions into subclasses (f) and (g).

Mr Swart asked if it was correct to refer, under subclause (e) to refer to rape and indecent assault, and wondered if other offences under the Sexual Offences Act should not also be named.

Mr de Lange said it would be preferable to refer to the victim being “sexually assaulted”, and then to include a definition stating that sexual assault was any crime committed in terms of the Sexual Offences Act.

Clause 6
Mr de Lange noted the reference, again to “an accused person” and the omission of the phrase “to be charged”.

In line with the committee’s request, the word “lawfully” had been omitted from subclause © The Commission had asked for ‘lawfully” to be omitted from (c).

Clause 7
There were no changes.

Clause 8
Mr de Lange indicated that this was one instance where the word “must” was changed to “shall” because it was prescribing something to be done.

Members questioned this, as their version of the document still referred to “must”.

Ms Smuts said that whilst she personally preferred the use of “shall”, she accepted that it was the conventional drafting style to use “must”.

Mr de Lange said that this word could remain.

He then pointed out that the word “alleged” now appeared before “victims of torture”. This would cater for situations raised by Mr Jeffery previously, where a formal complaint or case may not have been made, but where assistance was needed.

General issues
Mr de Lange noted, at this point, that he had been invited, in the following week, to attend a meeting in Geneva with other parties who had been or were currently involved in drafting similar legislation, and he may glean useful comments that could be brought to the Committee. He suggested that the Bill stand over until after his return.

Mr Jeffery noted that the content of Article 3 of the UNCAT was not included in the Bill, on the basis that the common law had been determined by the Constitutional Court. Some other government departments were not happy with the wording, but there had also been several suggestions at the public hearings that it should be included. He wondered if there should not be reference at the least to what the Court had said, which would make the Bill more complete.

Ms Smuts added that this would seem logical, particularly since the requirement of “lawful” presence in South Africa had been removed, to ensure that South Africa would have jurisdiction.

Mr de Lange asked if he could discuss the matter with Mr Jeffery to ascertain exactly what he wanted.

Mr Jeffery suggested that perhaps the wording of Article 3 of UNCAT should be inserted. Some recent cases, including that of Dewani, had shown that there were problems. This was limited to a pattern of gross, flagrant or mass violations, and would not apply to any form of violation. Similar questions had been raised by this Committee when it considered a Treaty of Extradition between South Africa and Iran, and he wondered if the present wording of the Bill was sufficient to cover concerns, and if Article 3 was likely to cause any conflicts with existing case law.

Ms Smuts noted that the Constitutional Court judgments had both dealt with the death penalty.

Mr de Lange confirmed that he would check this point and revert to the Committee.

Mr Jeffery also said that this Bill raised concerns similar to those discussed when the Committee was discussing the Prevention and Combating of Trafficking in Persons Bill. He was worried that clause 8 might be read as creating any rights or expectations, and thought it might be useful if regulations defined the ambit of the clause more clearly. Whilst it was clearly intended to cover education of public officials (generally those in Correctional Services), clause 8(c) referred to “assistance and advice to alleged victims of torture”. Although he realised that his concern now was in conflict to what he had said previously, on a reconsideration, perhaps the word “alleged” should be deleted.

Ms D Schäfer (DA) agreed that inclusion of the phrase “alleged victim” could lay government open to all manner of claims as anyone could claim to be a victim.

Mr Jeffery added that government could opt to do more than was in the Bill, but not less. If the wording remained as “victims”, it was still possible that the relevant authority might decide, if budget permitted, to assist an alleged victim. However, he agreed with Ms Schäfer, saying that there was a strong possibility that every illegal immigrant could claim to have been tortured by Home Affairs officials.

Ms Schäfer thought that there should be an obligation on government to assist, but perhaps more objective criteria were needed, which might include something like the laying of a criminal charge, even if it had not been finalized. Clearly, if a person had been tortured, but was not assisted, South Africa could fall foul of the UNCAT

Ms Alta van der Walt, State Law Advisor, Department of Justice and Constitutional Development, said that if the intention was that a person complaining of torture should be notified of his/her rights, then regulations might be a good idea. The Bill could read “provide assistance in the prescribed manner”.

Ms Smuts and Mr Jeffery agreed.

Mr de Lange cautioned against making matters obligatory, and would be loath to include “as prescribed”, which meant that the Bill could not be implemented before the Regulations were in place. It would be preferable for the Bill perhaps to allow for the possibility of regulations being created, in a more general way.

Mr Jeffery stressed that the intention was to avoid the creation of expectations and increase expenditure.

Mr Jeffery then made the point that Article 14.2 said that each State should make the offences punishable by appropriate penalties that took into account the grave nature of the matters. He would be cautious to prescribe penalties, in light of the Prins matter.

Ms Smuts added that Mr Muntingh, during the public hearing, had submitted that this wording left room for non-custodial sentences to be imposed, but that really also hinged on his construction of the word “liable”.

Mr de Lange pointed out that penalties were included in clause 4, and the gravity of the offences was reflected in clause 5. There had been a number of arguments around sentencing at the public hearings, including those from proponents of a minimum sentence. The Committee had recognised that there were varying degrees of torture and had not wanted to follow the route of minimum sentencing.

Ms Smuts asked why the word “liable” no longer appeared.

Mr de Lange explained that this was done for consistency of sentence construction.

Ms Smuts noted a submission made by Lawyers for Human Rights, who pointed out that South Africa had signed, but not ratified, the Optional Protocol (OPCAT), for a national preventative mechanism. She wondered if the possibility of such a mechanism should be included in the Bill.

Mr Jeffery said that he had also wondered whether OPCAT should also be included at this point, but there was some urgency to the matter, and he felt that the Bill should deal only with the UNCAT. There were other mechanisms, such as the Inspecting Judge of Correctional Services and Independent Police Investigative Directorate, that were available, although whether they were sufficient was another issue. He suggested that when the Department of Justice and Constitutional Development (the Department) presented OPCAT for ratification, then it could perhaps propose amendments. He would be cautious of setting up another entirely new body, but would prefer to look at how resources or mandates could be improved.

Ms Smuts agreed that the main point was that the crime of torture had to be created so it could be dealt with. She agreed that if other the mandates of other bodies were being considered, this would delay this process and take too long. She agreed with Mr Jeffery’s points.

The Bill would stand over for adoption until after Mr de Lange had returned from Geneva.

Public Protector Matters
The Chairperson said he had received a flood of correspondence from Adv Mamiki Shai, Deputy Public Protector (DPPP), and other documents in relation to complaints against the Public Protector (PP).  He wanted the Committee to discuss what process should be followed. He thought that this must be an open process, but noted that some staff from the Office of the Public Protector (OPP) had requested an opportunity to address the Committee, and some may wish to do so behind closed doors.

Ms Smuts said that before the Committee got to that point, there were some other issues to clarify. The Democratic Alliance had seen some, but not all, of the correspondences. A letter was addressed by the PP to the Speaker, referring to a number of petitions and complaints. One was from investigators at the Public Protector, with complaints of maladministration. Another was written by a Task Team that the PP had appointed to look at the nature, if not the merits, of the complaints. A response had been given by the PP to some of the allegations, such as the allegation that Chief Executive Officer of the OPP had given himself a bonus, on the basis of a document on which the DPP’s signature was allegedly forged. It was noted that he was paying back the amounts, but the question remained whether that signature had indeed been forged, and if so, what was done about it. There were various allegations that matters were not properly run at OPP. Some of them had been anonymous. The Committee would also need to consider whether the OPP was indeed empowered to consider some of the matters that it was currently handling.

Mr Landers confirmed that there were other documents apart from those noted by Ms Smuts. He had not read all of those from the DPP, and he suggested, as a first step, that all be made available to the Members. There were anonymous allegations, one of which sparked the letter from the PP asking the Speaker to request Parliament to investigate. He was not sure whether the information from Ms Shai was part of the Task Team report. He agreed that if a signature was forged, this was a criminal offence, so merely paying back money was not an adequate response.

Mr Landers also noted that at a previous meeting Mr Jeffery had raised the point that the PP should be asked to explain anomalies around the reports on the Department. The question was indeed whether the PP should be investigating all the matters. If it should not, then the statistics of how many complaints were handled, which were given in support of its request for extra funding, could be inflated. He also noted that one of the matters being investigated was outstanding judgments, and that was definitely outside the mandate of the OPP.

Ms Smuts added that the same applied to the comment on the appeals; this was ultra vires the Public Protector Act and Constitution.

Ms Schäfer suggested that, given the sensitivities, it was necessary for the Committee to read all the documents before making a decision.

Ms Smuts commented that there might be a need to hold some hearings in private, if they involved whistleblowers who required protection.

Ms Smuts then said that it would be very difficult to decide how far this Committee could go. She noted that in the past the DPP had brought allegations against a former Public Protector of sexual harassment, and that was referred to a Committee chaired by Prof Asmal, which noted its own limitations and the fact that a Parliamentary Committee could not sit as a Tribunal. The function of the Portfolio Committee was limited to examining if there were operational problems, and then making recommendations to overcome the problems. 

Mr J Sibanyone (ANC) agreed that it was probably necessary to allow for those lodging complaints anonymously to address the Committee in private, as they would not be willing to speak otherwise.

Mr Swart agreed that, as a first step, all Members had to study the documentation. He pointed out that the Committee already had a heavy programme and it could not become embroiled in acting as a Tribunal, with witnesses or cross-examination, a process that could also be taken on review. He agreed that Parliament could only look into operational problems. It might be  desirable to prioritise issues.

Mr Jeffery also agreed that this Committee was not in the same position as a Tribunal, and an important point was that the PP herself had referred complaints to Parliament. Ms Shai’s complaint was already reported on in the media, and he thought this Committee should call on any other staff members of OPP to make written submissions now, if they wished, given the plethora of complaints. He agreed that whistleblowers who wanted to remain anonymous must be protected, but as much as possible should be in the open, as it was better that the media be aware of the matters, rather than being given them selectively.

Ms C Pilane-Majake (ANC) also agreed that the extent of the problem had to be known. She too commented on the heavy workload facing the Committee. She suggested, although she would not like to pre-empt Members’ decisions, that a special forum might be needed to ensure that the process was fair. She also agreed on comments on the whistleblowers.

The Chairperson commented that it should not be implied that this Committee would not be fair.

Ms Pilane-Majake clarified that the whole process must be seen to be completely fair.

Ms Smuts stressed that openness was the “default position” and doors should be closed only if necessary to protect whistleblowers. She agreed all documents had to be studied. Some of the allegations seemed to be quite petty, and others were the kind of office politics that were found in many organisations, such as who would accompany the PP on trips. Commenting on Ms Pilane-Majake’s suggestion, she said that perhaps the Public Service Commission (PSC) could look at some of the organisational difficulties. However, the Chapter 9 institutions were accountable solely to this Committee.

Ms Schäfer felt that this would be the appropriate body to consider the matters. She cautioned that the submissions that Mr Jeffery was suggesting should be only from the staff of the OPP, and no wider.

Ms S Shope-Sithole (ANC) was also concerned about the allegations around forgery of the signature, which would warrant disciplinary action. The Auditor-General had made the point that there were often no consequences for wrongdoing. She would prefer to hold back any decisions on who should deal with the matter until all documents had been studied, and stressed that serious attention must be given to the matter.

The Chairperson said that if it was found that signatures had been forged, then criminal charges should have been laid.

Matters arising from 2011/12 Annual Reports: Preliminary comments for Budget Review and Recommendation Report
Mr Vhonani Ramaano, Committee Secretary, noted that the deadline for the submission of the Budgetary Review and Recommendation Report was extended to the following Tuesday.

Public Protector Annual Report
Mr Jeffery said, in relation to the Public Protector’s Annual Report 2011/12, that the Committee had asked for further information around the request for more funding. As touched upon earlier, a breakdown was given of complaints received in September, and over the year. Many of the 1 254 complaints received were not, to his mind, within the jurisdiction of the OPP at all. He gave instances of complaints around appeal matters or leave to appeal not heard or not placed on the Court Roll, and delays in the Appeal and ordinary Courts, unfair labour practices in the Department, and conduct of the Sheriff (which was surely a matter for the Sheriff’s Board). Anything that seemed to involve complaints that were directed at organs of state were referred elsewhere, and that was correct. However, he did think that other avenues were more appropriate for many of those that did involve organs of state. Some, such as the Marikana matter, had been referred to the South African Human Rights Commission. However, he feared that the OPP seemed to be becoming “one large advice office against government”.  This had a direct impact on the funding. He believed that the OPP should be asked to explain why it was taking on so many matters. Problems in the country needed to be addressed, but the systemic problems (if there were such) within the OPP also had to be addressed.

Mr Jeffery added that the Committee had also asked for information on the Department and the Master’s Office, but it was not supplied, although it had been promised. One report on the Department of Justice was apparently not sent to the Director General of that Department, and this raised questions about how the investigations were done. At least as a matter of courtesy, this Committee would have expected communication with the Accounting Officer of the relevant department.

Ms Smuts agreed on the question of communication, adding that it was also sensible to avoid misunderstandings. She also said that in relation to the Truth and Reconciliations Commission Reparations, the PP had made a strange recommendation that clients should be able to approach magistrates to help them access money in the President’s Fund. This, however, was not really the Committee’s business.

Mr Jeffery said that another point was that the OPP did not appear to give due consideration to advice from this Committee. He cited the Committee’s concern that there were too many staff in North West and Northern Cape, and too few in Gauteng, relative to the number of complaints received at each office. This point had been made many times, but instead of closing offices in Vryburg, Kuruman or Upington, the one in Botshabelo was closed instead. He thought that the point needed to be made in the Budgetary Review and Recommendation Report (BRRR) that the OPP was not adequately responding to advice from the Committee.

Ms Smuts cautioned that whilst it was true that these points had been made, she did not think they were recorded as a resolution of the Committee. Perhaps a specific recommendation was needed that the Committee would not approve the voting of money for three offices in the North West. The OPP had explained that the far distances between towns was the reason for having the additional offices.

Ms Shope-Sithole thought Mr Jeffery had made some valid points, but also agreed with Ms Smuts that recommendations should be made in a Report, tabled in Parliament, so they could be followed up if the entities did not comply.

Ms Schäfer was not sure that this Committee could tell the OPP how to run the office, except insofar as it was directly linked to requests for extra budget. She agreed that the recommendations should be included in a BRRR, and said that more answers were needed on the complaints, to check whether the OPP was exceeding its mandate.

Mr Jeffery noted the shortage of time, and thought that the PP should be asked to respond in writing on the points he had mentioned.

Ms Schäfer added that she should also be asked to outlined the nature of the complaints and how they were resolved.

Ms Smuts had also questioned the mandate, and she now read out section 6(6) of the Act, which stated that nothing empowered the PP to investigate judicial functions. It was incorrect for the PP to be ruling on the way in which other functionaries exercised their powers if the OPP itself was acting ultra vires. There might be a problem of mis-descriptions, but this had to be clarified since it seemed that the complaints were not with the court’s decisions, but with their manner of operation. The Committee and National Assembly had the power to remind the OPP that this was outside its function, in the spirit of good cooperation and oversight.

Mr Jeffery reiterated that the details of the Master’s Office and Departmental complaints were also needed. There were apparently 54 complaints against the Master, which the Committee had been unable to raise when the Master appeared before the Committee, for lack of detail.

Ms Smuts said that the Chief Master had said that one of the complaints came from a person, who was not a relative, who expected to benefit from an estate, but the deceased died intestate. The Chief Master had correctly made the point that this was not a matter that the OPP should have taken on, as the Master was bound by the legislation.

Ms Pilane-Majake said that the Committee should also ask the OPP if any matters involving investigations into private businesses had been taken on. It should be emphasised that OPP’s recommendations or findings were not binding.

Mr Landers noted that another point had to do with the number of matters not finalised. The PP had previously said that there were insufficient investigators, but this too related to whether the staff were investigating only complaints within the OPP mandate.

Ms Pilane-Majake said that the OPP should be asked to state the nature of the delays that were leading to the backlogs.

Ms Pilane-Majake noted that the conditions of service, appointment and salaries was another matter that needed attention.

The Chairperson noted that this was to be shifted to the Independent Commission, and a method would have to be found to deal with both the PP and DPP. Although this would no longer be with the Committee or Parliament, there was still a need to amend the legislation.

Department of Justice Annual Report
Ms Smuts noted that there was significant discussion, during the Annual Report presentations, to budgetary constraints. Mr Jeffery had made a suggestion that perhaps the building of the new High Court in Mpumalanga should be halted. There was indeed merit to making one large cut like this, rather than trying to find money from a host of different programmes.

Mr Jeffery said that he was not sure that he wanted to be so specific. Every entity in the Justice sector, apart from the Public Protector (and that was a separate point of concern) was taking cumulative cuts in budget over the Medium Term Expenditure Framework. The result, especially for the National Prosecuting Authority (NPA) was quite alarming. The point he had made was one also raised previously, whether it was wise for the Department to build new courts when it could not maintain these, or indeed the existing ones. The point had been made that the Mpumalanga High Court was needed. However, it was particularly expensive. Rather than highlighting this particular court, he suggested that a recommendation be included that the Committee was concerned that the Department should curtail new buildings so that it have enough to maintain existing courts. 

Ms Shope-Sithole urged that Mpumalanga, where people were very poor, and therefore could not afford to travel to other courts, should not be singled out for cuts.

Ms Smuts wanted to explain the point. It was correct that every province with a provincial division should have a High Court and Mpumalanga was equally as important. However, the reason why it was worth giving special consideration to it was that no building work had actually commenced, and it was still on tender, meaning that it was possible to cancel the whole process and save a potential R560 million. However, she agreed that it might be more prudent to suggest “any new building programmes should be stopped”.

Mr Jeffery moved to the principle of the 1% cuts, except for the Public Protector. He urged that this Committee should express its severe concern about the NPA cuts. He pointed out that the OPP was performing an important service but it was not ensuring convictions and safety in the country, like the NPA, nor was it recovering money, like the Special Investigating Unit (SIU).

Ms Schäfer agreed that this decision appeared to be grossly unfair.

Ms Sithole did not believe that there was no money in the country, and urged that those who had milked State resources should have their property attached to repay this money.

Mr Landers thought it would be grossly unfair for the building of the Mpumalanga High Court to be stopped. He could, however, think of a number of other projects – not necessarily in the Department of Justice – that could easily be stopped to free up resources. The Department dealt with essential services and he fully agreed with Mr Jeffery that National Treasury should not have insisted upon cuts of 1%. It was impossible to stop an ongoing process, such as justice, and the negative effects of the cuts were already seen. The Director General had already admitted that she was at a loss where she could cut back. He agreed with Ms Shope-Sithole that money was indeed available in the country and it was up to NT to find it. There was already a sense of panic as to whether the Polokwane Court, which had burnt down, would be replaced. The cuts for the Department were R680 million. The Auditor-General had conceded that this would have very serious implications for the Department.

Mr Swart said that he understood that government was a self-insurer for its buildings and there would be massive capital expenditure needed to rebuild the Polokwane court. He suggested that the Department may need to comment on the additional expenditure that it was likely to need as a result of the fire.

Ms Schäfer noted her concern that this Court had apparently burnt down because the fire extinguishers were not working.

Mr Jeffery was not sure what the state was of Nelspruit and Mbombela courts, and if other buildings could be found. This would need to be explored.

Ms Pilane-Majake reiterated her point that the building of courts was taking far too long. She thought the Department had to concentrate on simply completing the current projects, and do proper due diligence studies.

Mr Jeffery was not sure that the Department could be told to stop building courts, because in some areas there were not sufficient courts, and this led to backlogs. However, touching on his earlier points, without mentioning any specific court, he thought that the recommendation should be that the Department should, at least in the current period, consider very carefully whether the decision to build any new courts had to be taken immediately or could stand over.

Ms Pilane-Majake said that the Department’s presentation showed improvement. However, she also thought that the Department had to be reminded of the necessity to fill posts, which would enhance efficiencies and the achievement of the strategic plans.

The Chairperson said that the Director General had noted that point but had raised a valid comment that she could not fill the vacancies because the overall budget was insufficient, and money was already moved away from filling of vacancies to other priorities. The question was whether any of the vacant posts were desperately required.

Ms Pilane-Majake also commented on the performance assessments and retrospective payments back to 2002. She was not sure that this was necessary.

Ms Smuts said that it was considered necessary. On aspect concerned job evaluations. Mr Hofmeyr had commented that it did have huge implications. People had actually acquired rights to the money. The problem was that under former Director-General Mr Menzi Simelane the performance assessments had not been done, and Ms Sindane, having been made aware of this, was trying to work back to the point when she was appointed. People had only been paid out to the degree possible; it was being done incrementally, and the Senior Management Staff had not yet been dealt with.

Ms Pilane-Majake said another point was that the magistrates’ complaints around salaries also had to be followed up.

Ms Schäfer agreed that the IT systems had to be accelerated, as money had been allocated to them, and until they were properly upgraded and their use maximized, service delivery would not improve. She added that EFT payments, for instance in maintenance matters, were also dependent on having good infrastructure to support them.

Mr Jeffery said that there was not very much to evaluate on the Case Flow Management System. The position as presented by the Wits Law Project was of concern. The NPA and Department had spoken highly of the Chief Justice’s initiatives. He thought, however, that the Committee had to mention, in the Report that officials who unnecessarily delayed Court proceedings (such as those who failed to arrive for court) should be subject to disciplinary proceedings. This was an issue distinct from case flow management.

Mr Jeffery said that another area of concern, which SAPS had been asked to look at too, was that of premature arrest.

Master’s Office
Mr Jeffery noted that the Guardians’ Fund report had noted that services were available in only a few centres, although the July annexure indicated that they had been extended. He did not see why these services should not be extended still further as it was unlikely to involve huge costs, being more a question of training staff to access the details. People in Port Elizabeth should not have to travel to Grahamstown to access the Master’s Office.

Special Investigating Unit
Ms Pilane-Majake was happy that the SIU was cutting down on the number of consultants and moving to permanent appointments. There was a need also for the Committee to keep track of the percentage of external funding

Legal Aid South Africa
Ms Schäfer said that Legal Aid South Africa had performed very well and clearly needed more funding. The record spoke for itself, and this entity had not been wasting money and was using it properly to deliver services.

Position of National Treasury in relation to BRRR
Mr Jeffery raised the point that the National Treasury had failed to give additional submissions to the South African Human Rights Commission (SAHRC) in the previous financial year, and he was concerned about its response.

The Chairperson questioned whether National Treasury was effectively entitled to exercise a veto after this Committee had taken a decision.

Mr Jeffery explained that the Committee would make recommendations to the House, who took a decision, and the matter was then referred to National Treasury for comment. The Standing Committee on Appropriations would normally make a recommendation to the House, and the House would agree to change a budget. In relation to the SAHRC, National Treasury had said that this body must work within its existing budget and did not agree with the Committee that it should receive more. He felt that this response was not adequate. Whilst he appreciated that the money available was not limitless, at the very least adequate responses and reasons were needed.

Mr Swart said that this Committee could approach the Standing Committee on Appropriations, make out a case, and that Committee could still recommend to the House that, notwithstanding the National Treasury objections, more funding should be given. There was a strong expectation that the deficit would increase, putting even greater pressure on the fiscus and forcing more cuts. The fiscal position had deteriorated, since February, because of strikes, decreased economic growth, and less revenue, whilst the downgrading of the country by the Credit Rating Agencies meant that service costs were higher. Having said that, he still thought that this Committee should be arguing very strongly that the justice sector was crucial to the country (particularly the NPA). Many committees did not in fact approach the Standing Committee on Appropriations.

Criminal Procedure Amendment Bill
Mr Jeffery said that this Bill had been discussed only informally, and there were some submissions made on the hearing of appeals. Legal Aid South Africa (LASA) was not in favour of the amendments. He had spoken to an official at LASA, who said that it had been involved in a matter where the necessity of having records available was debated. There was some ground for limiting the matters in which the record may not be needed. He thought that it would be necessary to arrange a meeting with the Supreme Court of Appeal (SCA) judges, who believed that the current wording posed challenges, as well as having a meeting with the Head of the Impact Litigation Unit at LASA.

Another question that needed to be debated was that of retrospectivity. LASA had claimed that making this amendment retrospective would affect rights and maintained that it was impossible to consider an appeal properly if the record was not made available.

Mr Swart suggested that if the SCA judges were called to the Committee, it would be useful, at the same time, to hear their views on the Competition Appeal Court.

Ms Smuts agreed.

Mr Jeffery noted that the Superior Courts Bill and Constitutional Amendment Bill would be debated on the following day, and he pointed out that the amendments debated previously had been in the original Bill, and were not introduced by the Committee.

Mr Swart said that changing the test for when appeals could go to the Constitutional Court would have an impact on the SCA. The Bill, as introduced, was looking at broader suggestions around hearing of all appeals. He understood the concerns around time.

Ms Smuts said that SCA judges had raised points about the 19th Constitution Amendment Bill, and they did not address this point specifically. Judges and courts could not be expected to respond to public invitations for comments. It was proper to hear their view, particularly since Judge Davis was permitted to address the Committee.

The meeting was adjourned.


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