Justice and Constitutional Development Budget 2013/14: overview with Minister

Meeting report

The meeting kicked off with feedback from the Chairperson on pending issues before the Committee and ensuing discussions.

The Chairperson welcomed Minister Jeff Radebe and his entourage and invited him to brief the Committee. Minister Radebe commenced with a brief outline of the presentation and an update regarding matters under consideration in the 2012/13 financial year (see document). The Department had made progress in its turnaround strategy to reverse negative audit records including clearing all qualifications on irregular expenditure and concluding outstanding financial statements for Third Party Funds for three financial years over the past 12 months. The Department did not have the resources to accept the additional responsibility of the Witness Protection programme, but may however review this position if its budget improved. The process of filling vacant Senior Management positions was underway. A Secretary-General had been appointed in the Office of the Chief Justice in the person of Ms Memme Sejosengwe.

The 2013/14 budget policy statement of the Department must be viewed in the context that being the last year of the Fourth Administration, emphasis was placed on consolidation and implementation of existing policy and not necessarily formulation of new policies. Of the five priorities that underpinned the Government’s Programme of Action, safety and crime prevention as an output of the National Development Plan (NDP) was directly attributed to the Justice, Crime Prevention and Security Cluster (JCPS). The Justice sector contributed indirectly to other priorities of government and access to justice or the lack thereof permeated all five priorities of government. Crime and corruption posed the greatest threat to the realisation of government priorities.

Within the justice sector, the NDP spearheaded the joint programmes of the JCPS cluster department, law enforcement agencies and the judiciary, all geared towards the achievement of the five goals in the NDP: strengthening the criminal justice system, strengthening judicial governance and the rule of law, promotion of access to justice, promoting the role of the judiciary in a developmental South African state and investment in our economy. The Department indicated that in intensifying the fight against corruption, an announcement regarding the naming and shaming of perpetrators convicted of corruption was to be made in April 2013.

The presentation highlighted the Department’s concern about the upsurge of reported cases of rape, sexual offences and other violent crimes against women and children. It was important to establish whether this upsurge reflected an increase in the crimes or in the reporting. Victims needed to be encouraged to come forward and report these incidents for the law to take its course. Progress had been made with the re-establishment of the Sexual Offences Courts. The details of these courts were to be announced soon with the beginning of the 2013/14 financial year. There was ongoing discussions with the Office of the Chief Justice, the South African Judicial Education Institute and Regional Court Presidents, aimed at strengthening social context training for judicial officers.

The Department would approach the Committee with draft legislation aimed at transforming the magistracy and other Bills including the amendment of the State Attorney’s Act to provide for the appointment of a Solicitor-General. The Department planned to increase the monetary jurisdictions of the Magistrate’s Court. Similarly, consideration was to be given to the increase of the jurisdiction of Civil Regional Courts. These increases were to be announced after consultation with stakeholders.

The budget cuts posed serious challenges that may affect the performance of the Department and Courts, particularly with regard to security and damaged courthouses caused by fires at Pretoria, Inkanyezi and Polokwane Magistrate Courts.

Discussion on Presentation by Minister Radebe
Mr Jeffery remarked that while it was recognised that the challenges related to the Truth and Reconciliation Commission (TRC) regulations were multi-ministerial, the deadlines which the Department had committed to had still not been met. He urged that these be finalised.

Minister Radebe responded that the delay was occasioned by the interface with other government departments. Hence the process had taken an inordinate amount of time; however, the process was nearing the end.

Dr Khotso De Wee, Chief Operating Officer, added that there had been great improvement. A year ago the Department had reported to the Committee that there were 875 outstanding TRC cases, now there were only 62 cases, 49 in KwaZulu Natal and 12 in the Western Cape. The Department had done all it could with regard to the Regulations and consultation with other departments. The Minister had consulted with the Minister of Basic and Higher Education, for consent so the Regulations could be presented to Cabinet for ratification. The only concerns left to be addressed were from the Minister of Finance and the Department was awaiting his feedback. Furthermore, of the eighteen targeted communities for rehabilitation, two had kicked off: Alexandra and Mamelodi. The only challenge was that consultations were slow because a variety of stakeholders had to be consulted. The Department was working towards improving this.

Minister Radebe added that he accepted the view that there must be community projects to address traumatised communities as a form of societal healing.

Mr Jeffery stated that with regard to the proposed budget cuts, it was worrisome that this might lead to a non-functional judiciary. It was worthwhile considering cuts to capital expenditure instead.

Minister Radebe stated that the Department accepted the Cabinet’s collective decision-making on budget cuts and the cut to the NPA was not occasioned by the Department. Further, the Department of Public Works was responsible for capital expenditure programmes. With the myriad of challenges which the Department of Public Works faced, in some instances no work had been done, so it had been easy to cut its budget. Hence the decision to cut capital expenditure lay out of the Department’s purview.

Ms Smuts referred to the Witness Protection programme, saying information had it that certain amounts were allocated to the programme but the National Prosecuting Authority, without consultation, had diverted the funds to lessen its overspending burden. What was the Department’s reaction to this?

Ms Smuts requested that the Minister gave the Committee further insight about the financial challenges at the NPA, the Occupation Specific Dispensation (OSD) and the performance assessment of Senior Management within the Department.

Minister Radebe replied that the NPA had been paid.

Dr De Wee added that the OSD programme had posed certain challenges including the exclusion of some categories of legally qualified officials who were excluded from the dispensation and had in turn challenged the exclusion and the creation of inequities. The main beneficiaries were long-serving staff. A meeting had been arranged with the Director General of Public Service and Administration to raise these concerns and sort them out. There was no crisis with the performance assessment of Senior Managers. There had been some delays but a committee had been set up to process outstanding assessments and money had been allocated for all outstanding assessments.

Ms Smuts asked if there was a real financial crisis looming at the NPA and in the Department in respect of monies owed to civil servants.

Mr Johan Johnson, Acting Chief Financial Officer, responded that the problem related more to implementation of job evaluation results and particular core decisions that were taken and implemented. Problems of upgrading lower level staff put a strain on the budget and there was a need for caution not to overspend or encourage unauthorized spending. The Department was assisting the NPA within the confines of the Public Finance Management Act to help create savings within the NPA’s budget that could assist in its financial challenges. Although the Department’s personnel budget was under strain, the vacancy rates translated into savings and these helped to meet other financial burdens.

Ms Smuts remarked on the description of the ‘ideal judge’ proposed in the NDP and opined that it was a ridiculous description. It was hoped this description would be ignored and a more realistic ideal adopted by the Department.

Minister Radebe replied that the Department accepted the NDP and its policies. The description of an ideal judge was not an ideological perspective, but to the Department it was a judge capable of interpreting the Constitution in a manner which advanced democracy.

Ms Smuts asked what calibre of persons were invited to conduct the training on social context for judges.

Deputy Minister Andries Nel replied that it was a cause for celebration that the South African Judicial Education Institute had gotten off the ground. More than 1200 judges and magistrates had received formal training in the last year. The training also extended to sexual and gender based violence and social context training. Details on the qualifications of training personnel would be forwarded to the Committee at a later date. It was however necessary to note that it was not within the Department’s power to dictate to the institute the content of judicial training.

Ms Smuts asked for the personal views of the Minister on the constitutional amendment for the process of appointment of the National Director of Public Prosecutions (NDPP). Section 179 of the Constitution placed the responsibility of the appointment on the President. In 2008, former President Motlanthe had recommended that an alternative to this appointment procedure be considered. Ms Smut was of the opinion that Parliament be vested with the powers to appoint the NDPP.

Minister Radebe responded that “this was imminent”. The Constitution was clear on who was vested with powers to appoint. The Minister stated he needed to reflect more on former President Motlanthe’s opinion before commenting further.

Ms Schafer asked what the Minister meant by “this was imminent”.

Minister Radebe replied that he could add no more to the answer already given.

Mr S Swart (ACDP) noted that it seemed there were deeper financial issues beyond the severe budget constraints imposed on the Department and requested the Minister’s comments.

Mr Johnson responded that the Department was optimistic in its outlook and had put measures in place to ensure it got a clean audit for the current financial year.

Mr Swart stated that the Minister of Finance had explained that in the fight against corruption, the Special Investigating Unit (SIU) had estimated that it saved South Africa approximately R30 billion yearly in its fight against corruption. If more resources were dedicated to the SIU, it followed that the fight against corruption would be more effective and in effect the earnings of the State increased. However, the contrary was evident. Compared to other units, the SIU had a decreasing budget over the medium term and this was of concern. What was the Minister’s view on this?

Minister Radebe responded that beyond Treasury’s allocation to the SIU, government entities also made contributions to the SIU when requesting investigations. Thus, only the Treasury allocation was affected by the cuts.

Mr Johnson added that it was not possible to suspend certain services but there was a need to reconsider certain infrastructure programs and reprioritise the issue of the burnt courts. Further, Treasury had made a once-off injection into the SIU to help it deal with situations where it could not recoup funds from departments because of a lacuna in the regulations.

Mr Jeffery remarked that the lacuna had been corrected; hence the SIU was now able to recoup those funds.

Ms Schafer asked the Minister what was meant by “reaffirming the authority of the state” in the second slide of the presentation.

Minister Radebe responded that the phrase referred to the need to curb the violence during public protests. While public demonstrations were well within the constitutional rights of citizens, they must be held without violating the rights of other citizens or destruction of public property. Hence, there was a need to reaffirm the authority of the State by charging violators in court.

Ms Schafer expressed the Committee’s concern about the delay in appointing a new head of the SIU and asked what factors had been responsible for the delay. She expressed concern with regard to recent blunders by the South African Police Service (SAPS) in the collection of evidence at crime scenes of sexual offenders which in turn led to failure to convict. She asked if the Department was in consultation with SAPS about this.

Deputy Minister Nel responded that the Department was in consultation with SAPS to correct the situation through training of the police, emphasis on recruitment qualifications and proper training and equipping of medical officers and forensic laboratories. Further, the DNA legislation was at a very advanced stage and the police should present it to Cabinet in the near future.

Minister Radebe questioned why the Bill was not with the Committee.

The Chairperson added that the Committee had received no progress report about the DNA Bill and felt strongly that the Bill should have already been presented to the Committee for consideration.

Mr Jeffery reminded the Committee about the history of the Bill. It was initially an amendment to the Criminal Procedure Act (CPA). The first version of the Bill was directed by the Committee to an Ad Hoc Committee set up for that purpose as the Committee had been too busy to consider the Bill. The second version of the Bill was referred to the Police Portfolio Committee. The Bill dealt in the main with evidentiary measures in court and should be considered by this Committee. However, this hinged on which Minister introduced the Bill to Parliament.

Deputy Minister Nel responded that the Department noted the concerns about the Bill being presented to this Committee for consideration. The Department would determine the best route to introduce the Bill to Parliament.

The Chairperson noted that while the workload of the Committee was acknowledged, it was important that the Committee was consulted before legislation which should ordinarily come before it was shifted to other committees. Ad hoc committees did not necessarily work out as they ought to.

Mr Jeffery added with regard to the delay in the establishment of the sexual offences courts, the former Chief Justice had indicated that magistrates were reluctant to sit on such courts as they found it traumatising. Magistrates were not the only officers involved in the sexual offences justice system and should not be singled out.

Ms Schafer added that DNA Bill had been split into two bills mainly due to the human rights issues regarding obtaining of fingerprints. The concern was however beyond passing the legislation but more about its implementation. There was a need to train the police on how to secure crime scenes.
Minister Radebe stated that he accepted the observations of Mr Jeffery.

Ms Schafer asked what role the proposed Solicitor General was to play and why the creation of the office was necessary.

Minister Radebe replied that the Department had furnished the Committee with details of its plans to transform legal services of the State at a previous meeting. It had been explained that the role of the Solicitor General was to create a similar dispensation to that of the Director of Public Prosecutions (DPP) on behalf of the state for civil cases.

Ms Schafer questioned whether the Department had carried out any investigations about the court house fires and if any suspects had been identified.

Minister Radebe replied that no suspects had been identified yet.

Prof L Ndabandaba (ANC) remarked that victims of rape were not always eager to come forward and research by criminologists indicated that victims were afraid of further attacks and this deterred them from reporting the rape. It was necessary to work harder at educating the public about reporting rape cases.

Minister Radebe replied that the remarks by Prof Ndabandaba were well received. It was a joint effort by all to ensure proper education and support for rape victims.

Adv L Adams (COPE) remarked that the President and officers in the administration must speak with one voice. She asked if it was worth putting in place measures to ensure the transformation of the justice system when statements contradicting this purpose had been accredited to the President.

Minister Radebe replied that he could not answer the question as he was unable to speak on behalf of the President.

Adv Adams referred to the dropped 2006 corruption charges against the President and questioned whether this did not create an impression that all were not equal before the law.

Adv Adams referred to recent cases of police brutality brought to light by the media and asked whether the Department was of the view that the police were really assisting in the prevention of crime.

Minister Radebe replied that all policemen involved in the most recent case of police brutality on a Mozambican foreigner had been arrested and charged.

Adv Adams asked whether it was worth allocating funds for the transformation of the criminal justice system considering previous statements by the President that African problems be dealt with in an African way and not the white man’s way.

Minister Radebe replied that while he could not speak on behalf of the President. The Department could make further presentations to the Committee especially with regard to the transformation of the criminal justice system.

The Chairperson welcomed the suggestion and Ms Schafer requested that the presentation include the plans for the roll out of the Sexual Offences Courts.

Ms Adams requested a direct answer from the Minister- yes or no, was the President supporting the Department?

Minister Radebe responded in the affirmative. The President gave his full support to the programmes of the Department and was in fact the head of the NJCS.

Mr Jeffery referred to the newly appointed Head of the Office of the Chief Justice and asked if this was the proper channel to relate with the Office of the Chief Justice on the implementation of programmes.

The Chairperson stated that the Committee was considering inviting the newly appointed Secretary General for an interactive session with the Committee.

Minister Radebe supported the suggestion and added that the Department provided support and was in consultation with the Office of the Chief Justice and other Heads of Courts with regard to models of court administration. It was hoped this consultation process would result in legislation.

Ms Smuts noted that the administration of justice in KwaZulu Natal was worrisome. The NPA dropped charges even when a prima facie case was established. How often did the Minister use his powers under Section 36 of the Constitution to request reports on the prosecutorial decisions of the NPA.

Minister Radebe replied that his style was more ‘hands-on’ rather than ‘hands-in’, however from time to time reports were requested from the NPA.

The Chairperson thanked the Minister, Deputy Minister and other delegates from the Department for their attendance.

In further deliberations, the Chairperson informed members that the Minister had written to the Committee requesting it engage with the NPA on its budget.

Ms Smuts questioned if the requested engagement was different from the normal engagement on its strategic plan. If this was the case, it would be more effective to have it closer to the strategic plan briefing.

Mr Jeffery suggested that the Chairperson engage with the Acting Head of the NPA on whether the request was for a different briefing from the briefing on its strategic plan. If a separate briefing was requested, it was not necessary that a large NPA contingent be present at the briefing in order to cut costs.

The Chairperson committed to discussing this with the head of NPA and relating the feedback to Members.

Chairperson’s Feedback on other matters
The Chairperson informed Members that the South African Human Rights Commission had written to the Speaker of the House expressing disappointment about the lack of progress with the request for an additional grant of R37.35 million requested for its budget - which the Committee had recommended as part of its BRRR. It appeared that Treasury had approved only about R6 million and the Committee might have to consider how this year’s budget accommodated the request. The letter had been irate and threatened to turn down requests to attend meetings before the Committee.

The Chairperson noted the lacuna on sentencing guidelines in the Sexual Offences Bill. Perhaps it was helpful to refer to the Criminal Procedure Act for sentencing for the time being and let the next Parliament enact the guidelines.

Mr J Jeffery (ANC) suggested that the Committee considered the implementation and followed up from the last hearings it held. The bigger issues could be dealt with by the next Parliament, but the actual implementation of the Bill, as well as the Child Justice Bill should be addressed by this Committee. Civil society should be involved in the hearings.

Mr S Swart (ACDP) remarked that with the recent widespread outcry about rape and sexual offences, it was essential the Bill was concluded. Until the Constitutional Court ruled otherwise, the Bill remained constitutional. Minimum sentences were constitutional and it was important the Bill reflected minimum sentences for certain sexual offences to ensure sexual offenders did not get off too lightly, thereby sending the wrong signal to society.

Mr Jeffery raised concern about whether sexual offenders should qualify for parole. There was need for the Committee to interact with the Department of Correctional Services to understand the stance of the Parole Board on this.

Ms M Smuts (DA) advised that the Committee bore in mind the time constraints as the current year was a short parliamentary year and the Committee had started deliberations on the Legal Practice Bill already. How practical was it to also consider the Sexual Offences Bill at this point?

The Chairperson replied that the Committee must fulfil its mandate and complete the tasks it had before it and Members must adopt this approach. The problem with the Child Justice Bill was that the first hearing was a disaster and those who attended were not necessarily the stakeholders the Committee needed to hear from. It had become important to organise another hearing.

Ms D Schafer (DA) stated that while she shared Ms Smuts concern about time constraints, with the recent outcry about sexual offences, it had become crucial that the Committee considered the Sexual Offences and Child Justice Bills.

Mr J Sibanyoni (ANC) added that it had become very important that the Committee considered both Bills. Sexual offences seemed to have escalated in recent times and this was a cause for concern.

The Chairperson thanked all in attendance and the meeting was adjourned.