Department of Justice and Constitutional Development Annual Report 2012: continuation

Meeting report

Annual Report of the Department of Justice and Constitutional Development (DOJ&CD)2012
Ms Nonkhululeku Sindane, Director-General, DOJ&CD continued the briefing to the Committee on the 2011/12 annual report of the Department.  The delegation from the DOJ&CD included Advocate Jacob Skosana (State Law Adviser), Advocate Lawrence Basset (Deputy Chief State Law Adviser), Ms Tessie Bezuidenhout (Chief Director: Office of the Master), Advocate Lester Basson (Chief Master), Mr Johan Johnson (Acting Chief Financial Officer) and Ms Kalay Pillay (Acting Chief Litigation Officer).

The briefing continued from Programme 3: State Legal Services (page 102 of the attached document).  The purpose of Programme 3 was to provide legal services to Government; to supervise the administration of insolvent and deceased estates; to conduct research and to prepare and promote legislation.  Five strategic objectives were set.

Details were provided of key achievements and the performance in the projects aimed at improving the services provided by the Office of the Master; State litigation; international legal relations; compliance with the Promotion of Access to Information Act (PAIA); constitutional development and the Access to Human Rights Programme; implementation of human rights policies and policy development.

The achievement of the targets set for each of the thirteen projects under the Access to Human Rights Programme was summarised.  The Department was concerned that the funding provided by the European Union (EU) for the programme could be reduced or discontinued and had initiated discussions with the National Treasury to explore alternative funding solutions.

The report on the legislative programme included information on the Bills passed by Parliament; the Bills introduced to Parliament; participation in deliberations on Bills introduced by other Departments; the Bills under consideration and in the process of preparation and other subordinate legislation (e.g. proclamations, regulations and guidelines).  Ms Sindane reported that there was much opposition to the Muslim Marriages Bill.  She pointed out an error on page 56 of the Annual Report where it was stated that progress had been made on two Bills.  The Bills had not been submitted to the Cabinet.  The Department would issue an erratum.

Mr Johnson took the Committee through the 2010/11 and 2011/12 expenditure report for Programme 3.  The total 2011/12 budget for the Programme was R697.7 million.  The Department had tried to accommodate the reduced budget and hoped to retain the savings achieved to further enhance the services offered by the Office of the Master.

Discussion
Mr J Jeffery (ANC) observed that the Department had an ambitious legislative programme and suggested that a separate written document was submitted to the Committee.

Advocate Bassett said that the Minister was aware that it was unlikely that the targets set for the legislative programme would be met.  He listed the proposed legislation considered to be high priority, including the Bills dealing with the Human Rights Commission, Third Party Funds, the Maintenance Act, the Attorney’s Act, the Insolvency Bill, the Extradition Bill, the Muslim Marriages Bill, the Office of the Chief Justice Bill and the Domestic Violence Amendment Bill.

Ms D Smuts (DA) asked why so little was spent on the administration of the Courts.

Advocate Skosana advised that most expenditure was incurred in the following financial year.

Ms C Pilane-Majake (ANC) suggested that the Department included amendments to deal with the appointment of the Deputy Public Protector.

Ms D Schafer (DA) observed that 72% of the targets that had been set had not been achieved.  It was clear that some progress had been made but it was necessary to ensure that realistic targets were set.  She asked what the reason was for the withdrawal of the ratification of the international convention on cyber-security.  She suggested that the Department considered making provision in the Maintenance Act to prevent people from fabricating their expenses to avoid paying maintenance.  She suggested that the provision requiring magistrates to be trained before PAIA could be implemented was removed.

Mr Jeffery asked what the reasons were for the delay in advertising two vacant senior posts.  For some reason the Department had to receive a letter from the Minister to the effect that the position of Deputy Public Protector was becoming vacant before action was taken to appoint a successor.  The Committee had asked the Public Protector to provide a list of complaints against her office but the list had not been received.  He asked what progress had been made in improving access to the Guardian’s Fund.  Currently beneficiaries had to travel long distances and incur much expense in order to reach the Office of the Master.  He asked for more details of litigation against the State and what the success rate had been.  He asked what progress had been made in training candidates from previously disadvantaged backgrounds to serve at the Bar and what succession plans were in place.  The amended Criminal Procedure Act made provision for automatic expungement.  The matter was referred to the Law Commission and he wanted to know what progress had been made.  He felt that a certain category of pardons and expungements could be dealt with by the Minister rather than the President.  The report on the Human Rights Commission (HRC) was not good but he hoped for an improvement in the following year.  He asked what progress had been made with the training of magistrates in terms of PAIA.

Mr Jeffery noted that a number of responsibilities of the Department should be dealt with by the HRC, for example promoting knowledge of the Constitution.  He noted that 45 legal advice offices were closed down and asked if responsibilities for these offices should be transferred to Legal Aid South Africa (LASA). He asked what progress had been made with the alignment of the Traditional Courts with the Constitution.  The amendment to the Remuneration Act was a constitutional requirement but a review of the Chapter 9 institutions might uncover the need to spend a substantial amount on bringing salaries in line.  The Chief Justice was a statutory entity and should be the responsibility of the DOJ&CD.  He asked for more information on the matter concerning the mediation Rule.

Mr L Landers (ANC) asked if the HRC had the capacity to fulfill its mandate and what the reason was for the Department taking responsibility for activities that belonged to the HRC.  The Public Protector enjoyed popular support from the public but complaints against her office should not be ignored.

Ms Smuts asked if the Access to Human Rights Programme funded by the EU was a duplication of the mandate of the HRC.  She wondered why it was necessary to create another entity if the HRC was doing a good job.  She asked if the possibility of the EU funding drying up was a fact or an assumption.  She asked what progress had been made on legislation governing refugees.  She did not consider it necessary to have a separate budget item for constitutional development.  There would be a gap in training capacity if the person currently responsible for training was sent to the Bench.  The Protection of Personal Information Bill included a number of changes related to PAIA and she suggested that the provision requiring the training of magistrates was changed.

Ms Pilane-Majake asked what the original agreement was with the EU.  The DOJ&CD acted as the conduit for funding but the HRC should take over the programme and appoint non-governmental organisations (NGO’s) if necessary.  The Director-General of the Department was on the Board of the HRC but the Department should not be involved in running the Commission.  The advice offices had a chequered history and she suggested that consideration was given to developing a sustainable funding model.  She asked for more information on the R6 million spent on the provision of services.  She asked if the Department of Home Affairs should be dealing with legislation on asylum seekers.  Hate speech was dealt with in the Equality Act and duplicated legislation should be avoided.

Ms Sindane agreed that certain expungements required Ministerial discretion.  Members’ comments on the issue had been noted and would receive attention.  The Department had found that the necessary job evaluation was not done and the advertising of the vacant posts were delayed.  Job evaluations had to be undertaken by persons who had been trained.  The job evaluation team would consider the matter on 26 October 2012.  The post of Chief Litigation Officer was affected by the requirements for the transformation of State legal services and the filling of the vacancy was pending until discussions with the National Treasury were concluded.

Ms Sindane undertook to provide a written report on the withdrawal of South Africa from the cyber-crime agreement.  The Department had briefed the Portfolio Committees on Women, Children and Persons with Disabilities and on the Police.  The cyber-crime agreement was based on the EU environment but there had been other developments in other parts of the world, which were not covered by the existing agreement.

Ms Smuts asked that the report included the concerns of the Department of Communication (DOC), the South African Police Service (SAPS) and the State Security Agency with regard to the cyber-crime convention.

Ms Sindane agreed to the request and would liaise with the other affected entities.  All outstanding international obligations were being listed and prioritised.  The President had issued a directive that all obligations had to be complied with before the end of the year.  Regular reports on the progress made would be issued.  There were financial considerations associated with the ratification of international treaties and conventions.  The readiness of the country to implement the agreements had to be assessed.  A country could be sanctioned for failing to implement an agreement that had been ratified.  The Inter-Ministerial Committee had held extensive discussions on the previous approach to sign international agreements without registering reservations.  The international covenant on social and economic rights required access to free basic education, which was not available in South Africa.  South Africa did have the option to enter a reservation until such time as the requirement could be met.  Certain requirements in previous agreements had been included in the Torture Bill.

Ms Sindane undertook to provide the Committee with a progress report on the legislative programme.  She presented a list of the training programmes for magistrates since 2007.  Most of the required training on PAIA had been completed by December 2009.  A list of designated Magistrates Courts had to be published in the Government Gazette.

Ms Sindane advised that the agreement with the EU included that the reports would provide details of the financial contribution made by the EU.  She attended the annual conference in February 2012 and was warned that funding would be curtailed but was not advised of the extent or the effective date.  The DOJ&CD was committed to its constitutional development mandate and would attempt to persuade Members that the Department should continue to be involved with the Human Rights programme.

Advocate Basson advised that progress had been made on increasing access to the Guardian’s Fund.  The number of service points had been increased from 6 to 24.  Deceased estates were dealt with at more than 400 service points.  The Office of the Master continued efforts to minimise the risk at service points to ensure a clean audit outcome.  The implementation of more stringent security measures were limited by the available funding.  Certain complaints lodged with the Public Protector were not justified, for example in the matter of an insolvent company, the assets were sold and all creditors were paid, with the exception of the South African Revenue Service (SARS).  An agreement was reached with the liquidator that the settlement of the SARS liability of R36,000 would be shared by the creditors.  The Master refused to agree to the agreement as it was contrary to the legal requirement that the SARS claim had to be settled before the claims of any other creditor.  Another case referred to the settlement of a deceased estate in favour of the widow and children of the deceased.  An uncle of the deceased felt that he should have benefited as well and had lodged a complaint with the Public Protector.  The uncle had no rights in terms of the succession provisions.  The Office of the Master acknowledged that certain areas could be improved but oversight was welcomed and there was a good working relationship with the Office of the Public Protector.

Mr Landers recalled that the Committee was only provided with statistical data and had requested the Public Protector to provide a more detailed report.  The Committee was responsible for oversight over the entities within the Justice portfolio and had asked the Public Protector to inform the Committee of any complaints against these entities.  He noted that there had been 528 complaints concerning appeals.  In 125 cases the complaint was that the appeal judgment had been delayed.  However, matters before the Court were not the responsibility of the DOJ&CD.  The Committee would like to know to whom the complaints were referred to and how the Public Protector had managed to finalise the cases.  The Committee would request the Public Protector to provide more detailed information of the complaints involving the Office of the Master.

Advocate Skosana advised that the opinion of the State Law Adviser on the rules for mediation was requested.  The Rules Board was also considering the matter.  Concerns had been raised over the constitutionality of compulsory mediation and the capacity of the Courts to deal with the increase in the number of mediation cases.  If cases were subject to mediation in the first instance, the Courts would need to appoint more dispute resolution officers.  The Minister and the Heads of the Courts had requested the rule to be reconsidered.  The Cabinet had approved the original framework for the Traditional Courts, which had formed the basis for the Traditional Courts Bill.  The Department had considered the policy principles and identified which areas needed to be revised.  An updated policy document was being compiled and would be submitted to the Committee in the near future.  The demarcation process had been completed.

Advocate Bassett advised that most of the amendments in the Maintenance Amendment Bill were of a technical nature.  The Australian model had been considered, which followed a different approach.  The proposed legislation dealing with hate speech dealt with criminal prosecution.

Ms Schafer asked for a more detailed report on the maintenance data provided in the annual report.  Ms Sindane undertook to provide the information.

Mr Donald Mphulo, Chief Director: Human Resources, DOJ&CD responded to a previous question regarding the anomaly in the data for dismissals.  He explained that the difference in the number of dismissals and the number of findings by the presiding officer was because the decision was appealed in certain cases.  An ‘abnormal appointment’ was when a foreigner with a temporary identity document was appointed, usually to provide language services.

Ms L Adams (COPE) asked if the 24 employees who had appealed their dismissals were included in the 61 dismissals.

Mr Mphulo confirmed that 61 employees had been dismissed and were no longer employed.

Ms Schafer congratulated the Director-General and her staff on a job well done.  Much work still needed to be done but it was clear that progress had been made.  Her comments were supported by Ms Smuts, Mr Landers, Ms Pilane-Majake and Ms Adams.

Ms Sindane thanked the Committee for the guidance provided to the Department.

The Chairperson thanked Members and the delegates from the Department for their participation.

The meeting was adjourned.