Departmental Budget Hearing: the Courts

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Justice and Correctional Services

28 May 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 May 2002
DEPARTMENTAL BUDGET HEARING: THE COURTS

Chairperson:
Adv J H De Lange

Documents handed out:
Business Unit: Court Services
Road Map (see Appendix)

SUMMARY
The Deputy Director-General of Legal Services explained that the Steyn judgment had resulted in a large increase in cases taken on appeal. The Department was currently in the process of drafting legislation that would have the filtering effect of only allowing meritorious cases through. The Department was working on ways of improving efficiency of the court process and to reduce the backlog of cases. The establishment of Additional and Saturday courts had dramatically reduced the number of backlogged cases. The process of re-demarcation of the courts was on track but moving slowly.

The situation in the Masters Offices is improving. A report had been drafted regarding the Guardian Fund and the results of the report were currently being worked on. Indications of a syndicate operating in the Pietermaritzberg's area had been handed over to the Scorpions for further investigation. With regard to insolvency, new criteria were being drafted to allow for standardisation of the criteria used to appoint trustees. The Department was unsure on how to proceed concerning the Moseneke judgment. It was clear that the judgment required one law of intestate succession to cover all South Africans but which law to apply had not been decided on and people were currently being allowed to choose for themselves.

MINUTES
Mr Landers (ANC) acted as chairperson until Adv De Lange arrived. He handed over to Mr Jiyane for his briefing on court services.

Briefing on Court Services
Steyn Judgment

Mr Jiyane, Deputy Director-General of Legal Services, commenting on the Steyn judgment said that since the judgment had been handed down in November the courts had experienced a huge increase in the number of cases. In the High Courts the rate of increase in cases taken on appeal was 177%. Judges had complained that they could not cope with the increased workload. There may be a need to look at increasing the size of High Courts to deal with the effects of the judgment. There was a need to look at additional courts and human resources. He asked Mr De Lange, the Department's legal advisor to take the Committee through the legislative interventions.

Mr De Lange said that the Constitutional Court had left some scope in the judgment for legislative intervention. This allowed for parliament to find a filtering approach that would not allow unmeritorious cases through the system. To avoid the cost implication in all appeals, the Constitutional Court limited the provision of records to certain circumstances. An amendment had been drafted to correct the criticisms made in the Steyn judgement. He had prepared copies of the Bill but stressed that it was very much at the drafting stage and could not see that it served any purpose to hand them out to the Committee.

Court Performance
Mr Jiyane moved on to the aspect of court performance. He explained that the total capacity of prisons was 106 090 persons. However, at the beginning of March this year the number of awaiting trail prisoners was 57 066, while the number of sentenced prisoners was 120 635. This meant that the average populate was 167.5%. A decrease in the number of unsentenced prisoners had been experienced between April 2001 (56 151) and October 2001 (51 757). However the number had increased in January 2002 to 57 066 and decreased in March to 55 500 unsentenced prisoners.

Comparatively, there had been an improvement in terms of the output of courts since 1999. The target of 2002 was to increase the disposal of cases by 10%. Average court hours had increased from three hours to 4h05. The conviction rate in High Courts was 77%, Regional Courts 66% and District Courts 83%. Target rates for 2002 were 85%, 70% and 85% respectively.

Additional courts had increased from 37 in March 2001 to 84 in March 2002. As at March 2002, 1 972 cases had been finalised and averaged court hours were 4h10. March 2002 had 104 Saturday courts sitting on average 5h15 and 21 924 cases had been finalised since the start of the project in February 2001. Project would continue until the end of June 2002, depending on funding. The conviction rate of Saturday and Addition Courts was 75%. Mr Jiyane said that the Department was relying on the Additional and Saturday Courts to help reduce the backlog.

On commercial courts, he said that the first one had started in Pretoria, with two more courts being established after that. In 2002 another court was being established in Johannesburg. As at March 2002, 223 cases had been registered, 51 convictions had been made with 3 acquittals and 24 withdrawn.

The Department was planning to expand the establishment by creating 12 regional magistrates posts, a regional court president in the Limpopo and 12 additional interpreters (to be in line with the additional magistrates. An increase in the number of courts and family advocates as well as the expansion of the Equality Review Commission and the Judicial Services Commission was planned. Regarding the Equality Review Commission, he said that though the Department was struggling to implement the legislation, they were trying to prioritise the issue to make the work of the Committee more effective.

Re-demarcation Process
As part of Government's transformation process, the Department had begun examining its functional and service boundaries in 1994. With the gazetting of new municipal areas, the Department was able to re-institute the process of the re-demarcation of magisterial boundaries.
The aim was to, wherever possible, align the boundaries of every magisterial district to those of the new municipal areas.

Mr Jiyane said that though the process had been started, it was moving at a very slow pace. The Department had been able to get the co-operation of local government structures and the process had been slow because the demarcation of local municipalities had had to be taken into account. The Free State had been the only outstanding province, but that had now been finalised. The process was being done in phases because the Department did not have the resources to establish new courts.

The re-demarcation process did have a major influence on the re-alignment of the Regional Court Cluster due to the fact that the Regional Division consists out of districts and sub-districts. The re-alignment of the regional court structure could only be finalised when the re-demarcation process was finalised.

The process was not without problems, as people would be affected by the demarcation. Problems had been experiences with some judges, however the situation was improving, and the process was moving ahead with those courts where were no problems. Two provinces that would not be dealt with were the Eastern Cape and the Limpopo province because the Minister had asked that a more workable solution be found. He said that in the Eastern Cape there was a debate in terms of what should happen. The recommendation was that some cases heard in Grahamstown be taken to Bisho. The Northern Province was faced with the situation of the previous dispensation where only one court existed and the two judges that were seated there were unable to deal with their workload. The Department was hoping to have final draft legislation by the end of June and was looking at revamping the magisterial court in Pietersburg to house the High Court.

He said that cases outstanding were:
High courts 1064 (2002) and 926 (2001).
Regional courts 42 877 (2002) and 45 473 (2001)
District courts 143 878 (2002) and 119 475 (2001)

The Future
Mr Jiyane explained that confusion had been experienced with the appointment of court managers, who were usually perceived as having the same functions as control officers. The Justice College was looking at training control officers as court managers. Court managers were one of the issues that had been privatised for training in the aim of trying to improve managers.

With regard to the backlog, the Department was attempting to redefine the role of the registrar and the clerk of the court. The idea was that once a case comes to court it becomes the sole responsibility of that court. Registrars could play an instrumental role in taking away a part of the workload that is currently on the shoulders of the judiciary. He had agreed with the Chief Justice to hold a workshop, as it was important to have a common ideal and to set up performance standards for each and every role player. This was one way in which to improve court efficiency. Support was also being received from the prosecutions department and the Department was trying to rope in the police and correctional services as well.

On the issue of maintenance, he said that the Department was currently involved in an investigation process with a member of the Swiss Embassy. The NDPP was in the process of establishing a system of appointing maintenance prosecutors and were looking at privatising these appointments. Regarding the administrative capacity, the Department was looking at trying to create more posts for maintenance clerks, however funding was not sufficient. Due to centralisation of the courts, long queues for maintenance were to be found. Training of maintenance clerks was taking place through the Justice College.

Discussion
Ms Mhlawe (ANC) was concerned that the Department was waiting for a political decision in some areas. She inquired as to what criterion was being used in making the decision. She asked for comment on the effect of Saturday courts on cases.

Ms Camerer (NNP) asked if the Department had any mechanism in place to monitor the people who had been released and if the Department was concerned about those people coming to court. On the question of equality courts, she quoted Mr Jiyane as having said that the Minister had ordered the implementation of parts of the Act. She inquired as to which parts of the Act had been implemented, particularly in the light of a discussion held by the Committee the previous day on the fact that no "real" money had been allocated to the equality courts.

Adv Schmidt (DP) raised the issue of performance standards, asked if the Department had considered individual performance standards, for example, how many cases had a particular prosecutor completed, and what was his individual conviction rate. His/her conviction rate could be linked to a yearly assessment/promotion plan.

Imam Solomon (ANC) questioned if the success of the Department would continue into the future or if the problems overcome now would recur later. On the issue of maintenance, he noted that maintenance officers would be appointed in June but inquired as to what was currently being done to relieve the situation.

Mr Landers (ANC) raised the issue of withdrawn cases and case backlogs. He said that while on a tour of the courts, at either Kroonstad or Bethlehem, he had met with a police liaison officer. This liaison officer was a senior police officer whose job it was to liase between the investigating officer and the prosecutors regarding any queries that may arise. He wondered if this system could be expanded with the intention of it becoming permanent. In that particular court, he had noted that the level of withdrawn cases and the backlog had dropped dramatically.

Mr Jiyane responded that he had already indicated the level of success of Saturday courts. Their output as of March 2002 had been 21 124 cases. On the question of performance standards, he said that the idea was to come up with a national framework of performance standards. Each and every court would have to do some sort of planning. The issue of individual performance standards was something that would be encouraged.

Mr Jiyane said support services to courts was important and he felt that there should be someone responsible for tracking down queries. The Department had not yet found the right procedure to provide that courts increase their own performance. In some areas the leadership was so low that courts hours had dropped. He said that there was a need to shift responsibility back to the courts and to reach some sort of agreement in this respect. Forty percent of the problem was due to the inefficiencies of the system. He hoped that one day, given the loyalty and resilience of the people in the courts, the backlog would be dealt with.

He noted that Kroonstad was one of the areas where a project was being implemented to ensure that there was proper communication and a police liaison officer as well as a person from Correctional Services had been placed there. A joint taskforce had been established to ensure that people are communicating and to deal with the backlogs. The Department intended to implement the system in 40 courts by the end of the year.

The Chairperson (Adv De Lange) inquired as to how much had been spent on the IJS project.

Mr Jiyane responded that less than R2 million had been spent on the project and that it was cheap because current resources were being used and Business Against Crime were also providing resources.

The Chair questioned if the resources were being put in the right place and if it was not more important to create human resources first and then implement systems development. He said that on the previous day the Committee had learnt that the department had spent R200 million on computers that were now gather dust and wondered what would have happened if the money had been put into training people, such as Masters and prosecutors, instead.

The Director-General (DG) replied that he was glad to hear that the Chair was not against "high tech" as he felt that it was important to have the appropriate technology. He agreed that human resources were important but gave the example of the Durban High Court, which had a high number of cases being withdrawn because of dockets being lost. He said that this would become a thing of the past because those dockets could be put on disk. It was an expensive process but there was a need to ensure that the technology worked to their advantage.

Mr Du Rand, Chief Director of Court Services, added on that without the Additional Courts, the number of backlogged cases would not have decreased. He said that the project would continue until the end of the year.
On the question relating to the monitoring of released prisoners he said that the Correctional Services Department were monitoring them and liasing with other government departments in that respect and relevant reports would be presented. Implementation of the monitoring mechanism had started in the Western Cape and thereafter moved to Gauteng. It had been found to have a beneficial impact.
He said regarding the IJS centres that the aim of the project was to improve communication between the role players and the focus was not on technology. He said that in those areas where the system had been implemented the courts had become more effective.

The Chair remarked that despite this communication, there were still a large number of cases being withdrawn because they were not ready for trial. It was not a system that was needed but a person who was high up from the police to say to the prosecutor that a case was not ready.

The DG responded that that was the type of person they were trying to put in the courts, i.e. someone to phone up witnesses and go through the case to make sure that everything is ready.

Adv Schmidt said that from an operational point of view there was no need for technology. He felt that the emphasis should be on human resources.

The Chair added that technology should play a supportive/backup role. He did not have a problem with technology and felt that it was a wonderful thing in the right environment. However, he felt that there might be a need to re-evaluate. Decisions may be taken to implement expensive solutions when the people were not yet ready for it.

Mr Mackenzie's opinion was that the department was suffering from "expectation fatigue" in trying to implement programmes across the board. He felt that pilot programmes should be implemented rather that trying to implement it across the board and not seeing any improvement.

The Chair responded that he had observed that although the technology is available, there was no improvement due to a human capacity problem. The problem was one experienced by all people and was not a racial issue. The people in the relevant positions are used to the old system and the national average was therefore not going to go up because a new system was put in place. It was his view that if the Saturday courts were taken away things would go back to the way they were and this was due to a human problem.

Masters Office
Mr Tshishonga, Deputy Director-General of Regional Co-ordination, began by stating that there was a perception that the TBVC states were the worst as far as service delivery was concerned, however the same could be said of the former RSA although there were pockets of exception.

There were quite a number of problems that inhibited service delivery. One of these was the leadership and management style. It was not true that anyone with a legal background could do everything. He agreed with the Chair that there was a need to invest in the human element. The finances of the TBVC states and the former RSA have reached a proportion that could be termed a crisis. He could allude to apartheid but the department was interested in dealing with the present situation. Horrible things that had been occurring in the Masters office were now history. Service delivery reports demand that all offices tell him what they are doing and what head office can do to support them. All Masters Offices make these reports quarterly.

He said that the issue of the Guardian Fund had been a sore point and he wanted the Committee to know the magnitude of the problem that he was facing. The Master of Bloemfontein, who had been targeted because he appeared to know what he was doing, was chosen to lead a task team. It had been discovered that bad things were happening in the Guardian Fund. It had been decided to transfer the Guardian Fund in Bisho and Umtata to Grahamstown, and similar changes had been made in other courts. At that time the Auditor General had been asked to audit all the Guardian Funds in all the Masters Offices. The team had completed its work and was busy disciplining people and rectifying mistakes that had been highlighted in the report. The problem in the TBVC states is that they had invested in commercial banks at an interest rate of 3 or 4%. The former RSA had invested their monies in the PIC at a rate of 10% resulting in certain persons being disadvantaged. All monies were now being transferred to the PIC. In Pietermaritzberg, a forensic audit had discovered that the Department was dealing with a syndicate that influenced the appointment of officers in the Guardian Fund. The matter had been handed over to the Scorpions.

He touched on the issue of insolvency, with which the Masters Office deals with. A problem had been experienced in relation to appointments and the criteria used. It had been determined that the criteria used had differed in the different courts. New criteria were being determined so that all Masters Officers would be using the same criteria. No problems were being experienced with relation to trusts.

With regard to deceased's estates, a serious problem was being encountered because of a lack of funding. Provision was being made to being planning ahead. The current position was that it was clear that the new administration would not go through parliament yet. The legal services division had been approached to make an application to the Constitutional Court to postpone the deadline.

The Chair said that he did not have a problem with the decision if it could be justified. He felt that a good reason must exist to treat black people differently from white people and he inquired as to that reason.

Mr Tshishonga replied that he had heard from the research and legislative department that estates must say something about succession.

The Chair continued that there was one intestate law and another that was dealt with by way of African custom. He questioned why this was so, in the light of the decision by the Constitutional Court that it was unconstitutional.

Mr Tshishonga replied that his information came from the legislative and research department.

The Chair asked him to make sure that the department was at the meeting on the following day. He was not opposed to asking the Court for more time but questioned what the department was doing in the meantime.

Mr Tshishonga said that he had drafted a memo to the Minister because the matter required a political decision. He said that a pilot project had been started in Bloemfontein.

The Chair said that the major question to be decided was which intestate law would apply. The issue of who does the job is administrative whereas the Moseneke judgment required a policy decision.

Mr Tshishonga suggested that that question be answered the following the day with the legislative and research department.

The DG added that the current position was that nobody was being turned away from the Masters Office.

The Chair inquired as to which intestate regime was being applied, particularly with regard to the pilot project in Bloemfontein.

Mr Tshishonga replied that at the present moment people who go to the Masters Office must be helped. It was found that magistrates offices were confused. Some used both customary and ordinary administration of estates, while others used only the ordinary law. He realised that something needed to be done about the widespread disparity.

The Chair asked for a full report the following day. He could sense from the answers he had received that there was uncertainty concerning the issue. He asked if all the Guardian Funds had been audited and Mr Tshishonga answered that they had. The Chair asked until what dates had the Fund been audited and Mr Tshishonga replied that they were audited up until March 2002. He said that a report was in the process of being written up and would be out by June.

Mr Swart (ACDP) questioned the R20 million shortfall.

Mr Loxton, Director of Finance for the Eastern Cape, said that the figure came about as a result of the problem of having to books. The department had decided to "draw a line" and start afresh. The figure was an estimation of what the books would look like if everything had been done correctly from the beginning.

The Chair summarised that the Department had discussed the Steyn appeal, although it was not clear where the Department was heading with that. He had hoped that legislation would be ready in that respect. He felt that the way information was being gathered was very haphazard and not satisfactory. He hoped that a committee would be established, composed of a senior person from the Department, a senior person from the prosecuting authority and a senior person on the Legal Aid Board, who could put the information together in a report and present it to the Committee within a month. The report would reflect the impact of the judgment on the legal system.
He asked for clarity on the Moseneke judgment as he felt that he had no clue as to where the Department was in the process. He was worried because it was a change in structure of a serious nature.

He felt that it was important for the demarcation process to take place. He suggested being a bit cautious in creating things that might need to be altered later.

Meeting adjourned.

Appendix:
ROAD MAP

(A) Outstanding reports
Steyn judgement
Courts performance
Redemarcation of High and Lower Courts
(B) Future -creating efficiency in courts

Steyn judgement
·
Implications on courts workload-BFM,JHB,KZN etc(pages35-46)
· Need for additional courts
· Additional human resource Transcription of records R3m

Legislative intervention
·
Old purpose of leave to appeal and petition was to discourage flood of unmeritorious appeals
· Flaw not mandatory to submit record of proceedings
· To avoid costs implication in all appeals const court limited the provision of records to certain circumstances
· Options were whether to provide filtering mechanism or allow a right of appeal in all matters
· Consultation process NDPP suggestions of limitation of the right
· Ministerial directives to reinstate automatic right of appeal subject to monitoring mechanism to monitor impact
· Meeting with Heads of Courts recommendation for provision of filtering mechanism
· Draft legislation prepared leave to appeal and petition retained
· Records to be submitted in respect of-leave to appeal heard by magistrate other than trial one and all petitions to High Court

Courts performance
·
Awaiting trial prisons population
· Improvement in output of ordinary courts
· Additional courts
· Saturdays courts
· Commercial courts
· Additional resources to increase courts' outputs

Prison population (31\01\02)
·
Total capacity of prisons 106 090
· Actual occupation-sentenced = 120 635
· Unsentenced = 57 066
·
Average population 167, 5%
· Decrease of unsentenced prisoners - April 2001= 56 151 - October 2001= 51 757
· Increase in January 2002= 57 066 in March 2002 decreased to 55 500

Sentenced prisoners
·
Increased from 115 267 in April 2001 to 123 498 in March 2002
· Juvenile Awaiting Trial - population decreased from 4 019 in April 2001 to2322 in March 2002
· Sentenced juveniles increased from I 687 in April 2001 to 1 789 in March 2002

Cases finalised
·
District courts finalised (by comparison) 219 416 in 1999, 274 235 in 2000 and 313 822 in 2001
· Regional courts finalised 28 579 in 1999,33 312 in 2000 and 44 301 in 2001
·
Cases received by lower courts during 2001
· 756 801 of which 423 890 were withdrawn
· Target for 2002 is to increase the disposal of cases y 10%
· Magistrates' court Giyani and Tzaneen were the highest in 2OOleach with more than 300 cases on average
· Workload reduced to 112 and 158 respectively

Average court hours
·
Increased from 3 hours to 4h05

Conviction rate
·
Highcourts 77%
· Regional courts 66%
· District courts 83%
· Targets for 2002 are 85%, 70% and 85% respectively

Additional and Saturday Crts (p67-73)
· Additional courts increased from 37 in March2OOl to 84 in March 2002
· Finalised 1 972 as at March 2002 Averaged court hours 4h10

Saturday courts
·
March 2002 had 104 courts sitting on average 5h15
· Finalised 21 924 cases since February 2001 at start of the project
· Project to continue until end of June 2002 depending on funding
· Conviction rate of Sat and Add crts 75%

Other contributing factors (reduction of prison pop)
·
IJS Court Centres
Implementation of section 63(a) of Criminal Procedure Amendment Act \1 977(implementation December 2001)

Commercial courts
·
Number of sites increased from 2 to 3
· 223 cases registered as at March 2002
· 60 cases enrolled and 200 on hand
· 51 convictions over same period, 3acquitals and 24 withdrawn

Expansion of establishment
·
Regional magistrates 12posts
· 1 Regional court President- Limpompo
· 12 interpreters
· Family advocates
· Equality Review Comm
· Judicial Service Comm
· New courts

Redemarcation (p12-28)
· Magistrates offices Regional courts
· Highcourts

Outstanding cases
·
High courts 1064(2002) 926(2001)
· Regional courts 42 877(2002) 45 473(2001)
· District courts 143878(2002)119 475(2001)

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