The Department of Justice and Constitutional Development (DoJ) firstly answered questions asked on the previous day about the Programme 1, under broad categories. Answers were given on the Truth and Reconciliation Commission matters, the off-site storage and corruption in the office of the Registrar at South Gauteng Court. The progress on Bills was described, and the DoJ noted that it was intending to introduce a Judicial Matters Amendment Bill, that would deal with designation of sexual offences courts, training of magistrates on Promotion of Access to Information Act (PAIA), and the new Solicitor-General provisions. Members questioned if it would not be preferable to consider bringing a Committee Bill to allow for sexual offences courts to be designated urgently, but also agreed that the DoJ could in fact proceed with these even without the legislation, following the past practice. The Committee also said it would be necessary to bring a Committee Bill to effect Constitutional amendments so that only the Minister of Justice could table legislation that affected any courts. Further questions were addressed relating to the salary dispensation for Deputy Masters, the sites and operation of the Guardian’s Fund offices and why ICMS no longer appeared. The DoJ also expanded on previous comments about the number of possible sexual offences courts, noting that the DoJ would recommend to the Minister that 57 be designated, of which 46 already met requirements. DoJ also agreed with Members that the fastest possible way to expedite this legislation should be found. Further details were provided on the work on Child Justice Centres and the possible merger of the Registers on Child Protection and Sexual Offenders. Questions on demarcations, alignment of court and municipal demarcations, and Sheriff’s Offices were answered, but Members urged the DoJ also to look into ethical practices, and location of offices of the sheriffs. Members asked further questions on the number of vacancies at senior management, the number of staff assigned to the Sexual Offences Register and sexual offences matters, and it was noted that the appointment process for the Chief Financial Officer was ongoing. Clarity was given on the process for the DoJ’s revised tender for assessment of the impact of the decisions of the Constitutional Court and Supreme Court of Appeal. Members noted that the Secretary General of the Office of the Chief Justice should be visited, and that she would be invited to meet with the Committee, and a DA Member urged that the Committee must look carefully into whether sufficient budget was allocated to this office.
The DoJ then continued with its Strategic Plan presentation, on Programme 2: Court Services. The key focus areas were case backlogs, finalising family cases, quasi-judicial matters and reintroduction of the dedicated sexual offences courts. Tables were given on backlogs, and it was noted that although the Office of the Family Advocate was to receive more investment, this would not address the shortage of social workers at the Department of Social Development (DSD). The reduced targets were affected by the limited capacity to handle matters. The DoJ was now also measuring the delivery on quasi-judicial services such as taxations and default judgments. A schedule was given on completion of new courts, and DoJ said it aimed to take courts to every municipality long-term, but was reprioritising where they were most needed. DoJ recorded its appreciation for the Small Claims Courts commissioners and staff. Vulnerable Groups were dealt with under lower court services, and some of the statistics and efforts in this field were highlighted for maintenance, in particular, mediation, Third Party Funds and improvements to the payment processes that should reduce corruption substantially. DoJ and the DSD were working on integrating the Registers of Child and Sexual Offenders. The programmes in partnership with the Foundation for Human Rights were emphasised. Members asked about how performance on the Promotion of Access to Information and Promotion of Administrative Justice Acts was measured, wondered if the DoJ was not duplicating some programmes of the South African Human Rights Commission, asked about the backlogs and wondered if sexual offences backlog cases would receive priority. One Member said the continuing and rolling backlogs suggested that more permanent courts were needed, and the Committee reminded the DoJ of its previous suggestions that new building programmes be put in abeyance to concentrate on maintenance. The DoJ’s priorities and programmes were highlighted. The Committee also questioned whether disciplinary action would be taken against magistrates on “go-slow” and asked that DoJ explain the increases in magistrates’ salaries to the magistrates, who had received increases considerably in excess of other public service employees. Members asked how many maintenance officers there were, noting a huge vacancy rate, and said that this was an indicator that OSD was simply not working, an issue that must be taken up with the Department of Public Service. Progress on naming and shaming of maintenance defaulters was questioned, and the collaboration between DoJ and neighbouring countries in getting them to pay was noted. A Member asked to what extent the tolls in Gauteng and plans of SANRAL would impact on the work of the courts, as there would be substantial cases against non-payers. The criteria for One-Stop Child Justice Centres, and spending at the Supreme Court of Appeal were also questioned. Further details were given of the department’s plans for the designation of sexual offences courts, with a listing, and Members reiterated suggestions that some should run as circuit courts and that the geographical needs, in particular at Bushbuckridge, must be considered. The DoJ was asked to consult with more NGOs, particularly Shugmisa, who worked with these issues on the ground.
Programme 3: State Legal Services had been briefly outlined on the previous day, with the plans for the establishment of the new Office of Solicitor-General. The DoJ also expanded on its policy for briefing of Counsel, promoting specialist practitioners, and improvements to litigation, across the state in general, to save costs, and encouraging alternative dispute resolution. The introduction of the Legal Practice Bill, Anti-Torture Bill and SAHRC Amendment Bill were highlighted. The Protection from Harassment Bill would come into operation on 27 April. The DoJ planned to develop nine bills and six rules in this period. A Master’s Office, using paperless systems, was to be introduced in Nelspruit. DoJ was also building solid relationships with the Chapter 9 institutions and partners from the public service, civil society, the judiciary and Parliament. The tabling of peer reviews in Geneva, and subsequent programme to ensure that views of Chapter 9 institutions were sought, were detailed. Members followed up on the DNA legislation, the Law Reform Commission appointments, and said there should be a policy for briefing to address transformation needs. They questioned the relationship and responsibilities of the DoJ and Department of Women, Children and People with Disabilities in regard to international instrument country reports.
The budget was then presented, by way of tables, pie charts and graphs showing movement in programme achievements. The increased allocations and the budget cuts were described in detail, programme by programme, and by entities. The average increase in DoJ’s budget between 2013 and 2016 would be around 6.8%, with the majority going to court services, the CJS revamp and the Thuthuzela Centres. The new court building contributed jobs in local communities. The Represented Political Parties Fund was to move across to the Department of Home Affairs and there would also be shifts of budget and functions to the Office of the Chief Justice. Ideally, the DoJ wanted to move to the position where Vulnerable Groups received its own budget, and further priority. The new sub-programme of Constitutional Development was noted. The NPA still formed part of the vote, although it ran independently of the DoJ, and would receive around R3 billion. The DoJ was concerned about the increases in leases, rates and services, which were running up a deficit against the allocations, and noted that although it had managed to pay more accounts on time, there was likely to be a problem if there were any more budget cuts. The DoJ was obliged to fund the costs of the Commissions of Inquiry. The Committee would recommend in its report, that it should be refunded. Another of the Committee’s recommendations related to the undesirability of the current situation where, although DoJ was allocated some money for minor maintenance at courts, it was not privy to what amount was allocated to maintenance of its buildings by the DPW, and was therefore unable to plan. Members noted that the SIU was now receiving lesser allocations because it was allowed to recover costs, agreed that Vulnerable Groups should be listed as a separate line item, asked if the Office for Witness Protection would move, and raised questions on spending at the courts, which would need to be clarified. They also questioned the provincial allocations for courts and suggested that they should take account of demographic spread.
Department of Justice & Constitutional Development: Strategic & Annual Plan 2013: Day 2
The Chairperson noted that the Minister had appeared on Morning Live that morning, although he had missed the transmission.
Answers to Questions posed on Programme 1 on 17 April
Truth and Reconciliation Commission
Dr Khotso de Wee, Chief Operations Officer, Department of Justice and Constitutional Development, answered questions on the TRC. The figures in the presentation noted that there were about 40 people whose claims still remained to be settled, but he noted that he had now received an update on that and there were now 34 people with claims outstanding, of whom 23 were beneficiaries who needed still to be traced. He said that on the previous day there had been no mention of two beneficiaries who had been approached but who had refused to accept reparations as they did not want to be declared victims.
The second point concerned the TRC regulations. The Ministers of Basic and Higher Education had confirmed in writing that they were happy with the regulations and the only outstanding issue was with the Minister of Health. The Minster of Finance had said that the model proposed should be converted so that the TRC beneficiaries, of whom there were very few, would get free medical treatment. The officials that he had met with to discuss the issues were not yet properly mandated and he would be approaching them again to confirm the discussions. Two of the regulations were effectively finalised and the Department of Justice and Constitutional Development (DoJ or the Department) was thus left with only one outstanding. Once the Minister of Finance had agreed to use the President’s Fund, the President must sign off on that and a date of commencement would be decided upon, for publication in the Government Gazette.
The Chairperson asked if the regulations would have to be tabled in Parliament.
Dr de Wee said that they did not.
In relation to the community rehabilitation, the DoJ indicated last year that 18 communities were involved. The DoJ had started dealing with Mamelodi, who had yet to make a decision on what it wanted, and Alexandra, whose community had decided that it wanted a memorial park.
There had been some resistance from civil society in relation to the process, including a criticism that DoJ should open up the list. One organisation said that several thousand people had been left out of the process. However, he noted that the DoJ mandate was confined to those 65 000 people who had applied, and no more. He reminded the Committee that in any event resources were limited and not really sufficient to handle what was already in the pipeline.
The second major point of difference was around implementation of community rehabilitation. The Coalition on Traditional Justice had complained about the way that DoJ was doing this, claiming that it was disbursing funds in communities without proper regulations, and claiming also that DoJ was distributing money to municipalities. Dr de Wee noted that if the DoJ was to formalise regulations, it would have to do a Needs Analysis, consulting with the various communities. There were no costs being defrayed from National Treasury, via the President’s Fund, as the DoJ's own vote was being used. In addition, Dr de Wee assured the Committee that no money was being distributed to any municipalities.
Members had on the previous day commented that the DoJ had been too slow in the past in tracing beneficiaries, and with hindsight he conceded that this was so. Initially, the DoJ had used tracing agents but this had not worked, and only when it started doing the tracing in-house, through the regional offices, did matters speed up. DoJ had used the radio as a means to advertise. He pointed out, however, that the drop from 835 outstanding claims, down to 440, and now to 35, was due the sterling efforts of the task team and regional offices, as well as encouragement from this Committee and the Minister.
Dr de Wee noted that when the Committee had visited the South Gauteng High Court, and had seen the problems with off-site storage at the time, this was due to the fact that the DoJ was battling at the time to pay service providers, which had included these service providers, who had then failed to pay the owner of the storage warehouse. Another major weakness at the time was that staff had not been vigilant in checking all details when the files were transferred to storage. Both problems had since been eliminated, and there were no more reports that courts failed to receive files when requested. The system of off-site storage had been rolled out in seven courts, and it was working well. In the Western Cape, the system was most advanced, largely because of the attitude of management there. The Committee would be invited to view the site. The Director General had recently approved extension of this project to the Durban High Court and the Labour Court.
Corruption in the office of the Registrar, South Gauteng
Dr de Wee noted that there was an investigation ongoing, which also involved the Special Investigating Unit (SIU) but he did not yet have a report.
Ms D Schäfer noted that there should be a follow up with the SIU, because this institution was experiencing some problems. Her main concern was that the corruption was ongoing, and false court orders continuing to be issued.
Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development, said that SIU was handling a lot of investigations. One particular investigation, covering two regions, had been commissioned, in relation to the Guardian's Fund. When these allegations were made, she had personally requested that this matter be prioritised and had met with the Head of the Court, specifically tabling the letter from the judge who had raised it. Subsequently, Dr de Wee had held further meetings and the SIU was brought in to try to introduce speciality in investigating. Much had happened, although the formal report was still outstanding. There had been delays, but these were not through lack of attention to the matter, but were rather linked to the workload of the SIU. The SIU was challenged by limited staff capacity, but was now looking at appointing additional staff, using Criminal Asset Recovery funding to advance matters in the interim.
Ms Schäfer asked if the official alleged to have committed the offences was still working at the court.
Ms Sindane said that she could not answer the question; she did not know who that official was.
The Chairperson said that the Committee was worried about the programme, and its main concern was how soon the Committee could be presented with section 76 Bills, to allow sufficient time also to the NCOP to complete its processes.
Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice and Constitutional Development, noted that questions had been asked around the Solicitor General, Promotion of Access to Information Act (PAIA) offences and the sexual offences courts. There was also a suggestion that a Bill be introduced quickly to set up courts specialising in sexual offences. He noted that all this was being dealt with by a draft, that had already been prepared, of a Judicial Matters Amendment Bill, which would include the amendments relating to the Solicitor General, PAIA and specialist courts to deal with sexual offences (however these were finally named), as well as the de-linking of the South African Judicial Education Institute (SAJEI) from DoJ to the Office of the Chief Justice (OCJ). They were technical amendments that should not be problematic to get through Parliament.
He expanded that the PAIA matters originated from a question asked at this Committee whether the Department would amend the sections of PAIA dealing with training of magistrates. The draft provisions currently said that the head of an administrative region (Chief Magistrates) must designate an officer to deal with PAIA related issues. The Minister designated the district courts to deal with those matters, and the Chief Magistrate would designate individuals, but could only do so if the magistrate (full or additional) had been trained. The Director General would have to keep lists of the magistrates designated. The Chief Justice, in consultation with the Magistrate's Commission, must develop a curriculum, and implement training courses, and the Minister would have to report to Parliament on the content and implementation of the courses.
He pointed out that these kind of provisions did not only appear in PAIA, and so there would be amendments also to the Promotion of Administrative Justice Act (PAJA) and Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The last amendments were enacted in 2002, and in 2010 the regional courts also got civil jurisdiction. At the moment, PAIA hearings related only to the district courts, but the Regional Courts had requested that jurisdiction should be extended also to those courts. The amendment transferred responsibility for training to the Office of the Chief Justice. The amendments had been sent to the Magistrates’ Commission and Office of the Chief Justice for comment and the Department aimed to move ahead with them as soon as possible. However, Mr Bassett noted that the DoJ had considered the question of whether the development of content of the training courses, their implementation and the tabling of reports on PAIA training should not rather be a function vested in the SAJEI, rather than the OCJ, given that SAJEI had to report to Parliament each year in any event on its activities.
Other amendments in the current draft would give powers to the Minister to designate courts as sexual offences courts, in a similar way to the PAIA designations. He said this provision would read to the effect that the Minister, after consultation with the Chief Justice, may designate any High or Magistrate's Court (although most would be regional court cases) to deal with sexual offences, and make the necessary regulations. This section would not be interpreted as precluding any other court from dealing with sexual offences matters.
He then referred to the proposed amendments on the Office of Solicitor General. The current State Attorneys Act dated back to 1957, and the structure was also quite strange, because the Minister of Justice may appoint as State Attorney a person admitted and entitled to practice as an attorney, to be in charge of the Pretoria office, but also could establish branches with heads of those branches. However, there was no direct provision that stated who was, overall, in charge of the state attorneys. The way the office was structured and the way the Act was written was problematic, and it was intended therefore to create an overall head, possibly to be called the Solicitor General, who would be the executive officer exercising supervision over the main office and any branch. The functions, powers and duties may include determining policy, coordination and management of litigation, briefing of counsel, and initiating, defending and opposing matters, including alternative dispute resolution and arbitration and policy standards. That was similar to what had been done with the Office of the Chief Master.
Finally, Mr Bassett also noted that another Judicial Matters Amendment Bill was being introduced, which had about 48 clauses, but this had still to go to Cabinet.
Ms Schäfer wondered if there were not sufficient magistrates who were prepared to undertake the training, especially on sexual offences, and wondered if this should not perhaps be made compulsory. She would note this at the meeting of the Magistrate's Commission on the following day.
Mr Jeffery repeated his suggestion that it might be useful to introduce a circuit court arrangement for the sexual offences court, so that the specialist courts could travel into the jurisdiction of another magistrate's court, particularly rural areas, to extend the reach.
Mr Jeffery said that he was not sure whether the amendments should come from this Committee; his main concern was that magistrates were not trained. He was particularly cautious that untrained magistrates could adjudicate on PAIA and PAJA disputes, as well as in the equality courts.
The Chairperson assured him that the amendment would require magistrates to be trained.
Mr Jeffery also questioned the extension of the jurisdiction to regional courts. He wondered how there would be a distinction drawn between a PAIA or equality matter that should be heard in a district or regional court. It was necessary to ensure that there was still easy access for resolving disputes.
Mr S Swart (ACDP) said that the concern with the sexual offences courts was around the delays. Mr Swart wondered if it would not be better to pass one quick bill, perhaps even as a Committee bill, to deal with that matter. Other magistrates’ court were apparently still doing sexual offences work, and he wondered why then it was necessary to actually designate the courts, rather than going back to the situation where certain courts simply did the work as a matter of practice. He still believed that there was a need to fast-track legislation.
Mr Bassett noted the comments on the circuit courts, and compulsory training and said that both aspects would be considered.
He too had questioned the designation aspects, but apparently there had been challenges in the courts. In the past, this had indeed been dealt with on an administrative basis, and this meant that the DoJ could even start implementing specialist courts, pending the legislation being passed. He welcomed Mr Jeffery's views and agreed that the inclusion of regional courts for PEPUDA and PAIA matters could lead to forum-shopping, as most cases were unlikely to be distinguishable on a monetary value. The DoJ had also raised that question and he would report back on it.
Mr Jeffery agreed with Mr Swart that it may be necessary to look at setting up sexual offences courts either by way of a Committee Bill or as a separate bill. The concerns resulting from the 17th Constitution Amendment Bill made it necessary that in due course, an amendment should be passed so that only the Minister of Justice may effect amendments relating to courts, and he thought that this must be processed as a Committee Bill. The meeting around the Labour Relations Amendment Bill clauses dealing with the Labour Courts further supported this point.
Mr Bassett concluded that the likely Section 76 bills were the Legal Practitioners Bill and the Public Protector Amendment Bill, but that all other legislation would be tabled as section 75 bills.
Mr Lester Basson, Chief Master, Master’s Office, noted that the DoJ was under the same constraints as other departments in relation to Occupation Specific Dispensation (OSD) matters and was following suit in negotiations with the Public Service. The Deputy Masters were on a lower grading than other members of the Public Service, but that was being attended to with other processes. He could not yet say when it was likely to be resolved.
Mr Donald Mpholo, Chief Director, Department of Justice and Constitutional Development, also expanded n the question around Deputy Masters, and said that the change in occupational class for Deputy Masters was a problem because it was done at public service bargaining level, but the DoJ had asked for reopening of the discussion because it led to disparities. The OSD was based on experience, and that was a problem. A person at Senior Management level, with 5 years experience, was often asked to supervise someone else with 20 years experience. A meeting was planned for February with Department of Public Service and Administration, but now DoJ was asking that the Department of Health model be considered, where everybody would be subject to OSD. That should address the historical challenges.
Guardian's Fund centralisation
Mr Basson said that he had circulated a pamphlet to Members on how to access the Guardian's Fund. It could be accessed at 29 places. The DoJ was exercising a firm hand on corruption and there must be proper compliance with safeguards. A claimant could go to one of the 29 offices to do the paperwork, but would then be paid by electronic fund transfers (EFTs)
He assured Members that the Master was looking at services in Bushbuckridge, but had noted non-availability of funding and staff. It was hoped to place a full-time member in that area to process matters. The sites for the offices were decided according to the volume of work handled, but this would be attended to shortly.
Mr Basson noted that this item was indeed mentioned in the last strategic plan, but not in the current one, because this process was at its end stages, and was due to go live on 10 June. It was a job that had been completed.
Mr Johan Johnson, Acting Chief Financial Officer, Department of Justice and Constitutional Development, responded to questions dealing with budget issues. On the funding for Protection of Personal Information matters, he noted that R3.4 million over the next three years had been set aside.
In relation to procurement of laptops, the DoJ had a target for replacement of 1 874 out-of-warranty laptops, to 154 judges, with the rest being for magistrates. Some had been replaced already and the rest would be done in the fist quarter.
Mr Johnson then responded that funding of Thuthuzela centres came from National Treasury (NT), via the National Prosecuting Authority (NPA) If appropriate frameworks were concluded on support, with NT guidance, this could facilitate assistance being given to NGOs, depending on whether this was in the mandate of the DoJ. The facilities were there, but the line function needed to be concluded with the stakeholders.
In relation to questions on court infrastructure, he noted that the Estimates of National Expenditure document (see attached document) set out the infrastructure plan, for each of the courts, for a seven year period. He would deal with these later in the day.
Asset management and laptops
Ms Sindane responded to points raised about management of assets and noted that DoJ updated its asset register regularly, but a slightly different mechanism was being used for distribution of laptops to judges over whom the DoJ did not have control. The OCJ would be recording those laptops in its asset management system. In relation to disposal of assets, she noted that IT equipment had to be disposed of in a particular way, so a specific disposal policy had been adopted for IT, requiring a recycling company to be used. Each region had an asset disposal committee, which was mandated to dispose of assets no longer needed.
Training and support for sexual offences courts and merger of Registers
Mr Tsetse Malema, Acting Deputy Director General, Department of Justice and Constitutional Development, said that there would be a broader pool of training offered, including psycho-social support, for those working in the sexual offences courts, to enable people to cope.
He noted, following up on issues briefly raised on the previous day, that the DoJ and Department of Social Development (DSD) had agreed in principle that the Child Protection Register and Register on Sexual Offenders should be merged, to create one common register that would fall under the responsibility of the DSD. The systems and infrastructure, however, needed to be investigated and aligned and the two departments were working on this.
Mr Malema also dealt with the questions relating to the number of entries in the current Register of Sexual Offenders and said that there were some problems with the data that had been reported upon, but the data was now being received from the South African Police Service (SAPS) and it was being disaggregated per province. The Register also noted cases from outside South Africa, including Zambia, Swaziland and Lesotho. Once staff had been appointed, they would visit the courts, extract that historical data and upload it on to the system. This had been tested in the Pretoria Magistrate's Court to try to assess how long it would take.
Mr Malema also expanded on the questions around the dedicated sexual offences courts. Originally, the DoJ had assessed that there could be 42 courts, but then on further investigation had also included courts that would require only minimal adjustments to meet the criteria, which brought the number up to 57. The report on this had not yet been approved by the Minister, but that was the number that DoJ was proposing should be set up. He agreed with the earlier comments that the fastest and easiest way to process the legislation to designate those courts should be followed.
One-Stop Child Justice Centres
Mr Malema reported that two One Stop Child Justice centres were operational. The DoJ was presently working on developing criteria and guidelines on those to try to increase the numbers.
Mr Jeffery reminded the DoJ of his request on the previous day to be provided with a list of the 46 current and 57 planned courts that could be designated as sexual offences courts. He also reminded DoJ that he needed the criteria, by that afternoon, for designation of a sexual offences court.
Mr Jeffery was pleased that the DoJ was looking into criteria for the One Stop Child Justice Centres, but did not understand why they were placed in Bloemfontein and Port Elizabeth, and then other more remote centres, instead of focusing on the metros, where surely the majority of child offenders were found. If there was one Centre per metro, they could cover a number of magisterial districts.
Ms Schäfer asked how many people were appointed for the capturing of information for the Register.
Mr Malema replied that eleven people were appointed. There were other Assistant Director and secretarial posts that had been advertised.
Demarcation and Sheriffs Office issues
Mr Jacob Skosana, Chief Director: Policy, Department of Justice and Constitutional Development, answered questions around the demarcation of municipalities and how this linked to the court boundaries and the setting up of Sheriffs’ Offices. The Demarcation Board and Office of the Surveyor General were important institutions that ensured the drawing of maps at a central point. It was necessary to understand the areas and get the alignment right, in terms of the point-to-point description. He reminded Members that the Constitution 12th Amendment Act had been delayed because of tedious processes around demarcations. Cases could be thrown out if they were brought in the wrong forum. The DoJ hoped to have a court for every municipality, and he noted that it was necessary to align the courts and municipalities, particularly insofar as the coordination of service delivery was concerned. Even if courts were located outside the municipality, they must be afforded the right jurisdiction. There should also be alignment of Sheriffs’ Offices, something assisted by the recent amendments to the Sheriffs Act. Mr Skosana pointed out that sheriffs ran as a private enterprise. However, in some districts nobody was prepared to set up an office, in view of the numerous administrative requirements and the fact that it was not sustainable to run an office there. The alignment process, being done through the Board for Sheriffs and the Rules Board, would ensure that other designated officials could be appointed to do the work in these instances, and would publish the names of the sheriffs. It was possible that sheriffs from adjacent places may be asked to serve process, although he pointed out that there was a problem at the moment because the fees were calculated on the distance from the nearest court to the parties’ residences, not the Sheriff’s Office to residences.
The Chairperson noted that there were still concerns around distances. The Municipal Demarcation Board was constantly re-demarcating and this created a problem if the courts' demarcation was not aligned.
Mr Skosana said that the Demarcation Board and the provinces’ boundaries were used as guidelines, and that DoJ would align as far as practicable, and where it did not hinder access to justice. For instance the Minister may declare a portion of a settlement as falling under a certain court, even if it was outside the municipal boundaries.
Ms C Pilane-Majake (ANC) thanked the DoJ for the clarification but said that this was still a contentious matter and the Committee perhaps should facilitate restructuring. She said that ethical practices in the offices also should be checked, because there had been reports of the sheriffs attempting to interrogate the people on whom they were serving process. Furthermore, she repeated her concern that some offices were apparently located in warehouses or other places where people were apprehensive to visit, and this did not promote access to justice. She appreciated the fact that state officials may be appointed to serve process where necessary.
Mr Jeffery thought that the problem was not so much the physical boundaries as the non-alignment of other government services, particularly social workers. There were, for instance, social workers based in Richmond, but if there was a foster care grant application in Hopewell, Richmond, the matter had to be heard in the Pietermaritzburg court. He noted that it was necessary to ensure good interaction and communication with DSD. The Trafficking Bill might provide an opportunity for further discussion.
Mr Skosana told the meeting that Regional Coordination Committees had been established in each region, pulling together various stakeholders.
Ms Schäfer said that she had raised this at the Magistrate's Commission. The demarcations were essentially done to change the old apartheid land boundaries. It was not necessary that when municipal boundaries changed, the magisterial boundaries also should change. She noted her concern that the court at Plettenberg Bay, a periodical court, had been shut down recently because the district had never been declared.
Mr Skosana agreed that demarcations were used as a basis, but broader access to justice was taken into account. Chapter 8 of the National Development Plan dealt with spatial disconnect in the past, and included these aspects.
Mr Donald Mpholo, Chief Director, Department of Justice and Constitutional Development, noted that there were 195 posts at managerial level, of which 33 were vacant and 162 were filled, resulting in a vacancy rate of 17%.
Mr Malema gave the figures for personnel working on sexual offences, who were placed in the Vulnerable Groups unit, under Victim Support and Specialised Services. Within Specialist Services, there was a Director, Deputy Director, two administrative officers and a clerk. However, the Register’s office also had a Director, two Assistant Directors, one administrative officer and four data capturers. The DoJ was looking at the way that the Vulnerable Groups unit was constituted, and, particularly in view of recent increases and challenges around sexual offences there was a need to properly capacitate this unit.
Ms Sindane noted that the post had been advertised, and short listing had been done and it was hoped that the appointment would be permanent. On the last occasion, the DoJ had not succeeded in filling the post.
Allegations against official in Gauteng
Ms Sindane said that she had previously reported that the matter raised by Ms Smuts on the previous day had been reported to the official’s superior officer, but there had been no progress. She had requested Adv Rudman not specifically to investigate, but to consolidate the various reports that had been made against the same official. That process was concluded, and Adv Rudman drew a report. During this process, Ms Sindane had also been dealing with another person. The process with the Regional Head had reached the stage of exchange of documents, and she was not yet sure of the deadlines, but the matter was in hand.
Assessments of impact of decisions of Supreme Court of Appeal and Constitutional Court
Ms Sindane noted that Members had raised questions on how the DoJ was dealing with the project assessing the impact of decisions of the Supreme Court of Appeal and Constitutional Court. Perhaps the way she had worded this on the previous day had not been clear enough. She wanted to give a little more background to the matter, before directly answering the questions.
She noted that the DoJ had published a document, in which it noted that it wanted to assess – not review – the decision of the courts, and section d(ii) outlined the critical assessment of the way in which the Executive branch of government had implemented the Courts’ decisions. Essentially, DoJ was looking into what the Constitutional Court and Supreme Court of Appeal had ruled over the years, and how the DoJ was faring in doing what the Constitutional Court thought it should be doing. The context was that all information would inform how the DoJ then positioned its Constitutional Development branch, to push the issues further, and to deal with Chapter 3 of the Constitution and the inter-governmental levels. DoJ anticipated also that the information would be fed into the 20-year review.
Ms Sindane then wanted to clarify what she had meant to say in relation to the tendering process. The DoJ had published a tender. However, instead of receiving numerous tenders, people tended to tender by way of blocs, so in fact very few tenders were received. The adjudication process was to be done by experts. These experts advised that the DoJ should make some adjustments to the document, and this was done. This was what she meant by saying that DoJ was working with certain groups. The view was expressed that even the changes made to the document would actually not give very much different results if the matter were to be put out to a completely new tender. For this reason, the DoJ returned to all those who had previously tendered, noting the changes, and asked them if they would make the same proposals on the revised document, and they were also provided with another document that which was not circulated at the time of the original tender process. The DoJ was hoping that this process would happen in June, as those original tenderers were still working on their new proposals.
Ms M Smuts (DA) questioned what document was handed to those tendering.
Ms Sindane answered that it was another document that was not previously handed out.
Ms Sindane then said that on the previous day she had made reference to negative results from the tender, and was also asked what she meant by the tender “going beyond expectations”. Without going through all the details of the tender process, she said that the “negativity” related to the DoJ’s disappointment that so few tenders were received, as also the timelines provided. This was the reason why the evaluation team had then asked that the tender should go beyond the original specifications, by revising the document.
Ms Smuts asked if the re-drawn document that was now provided to the tenderers could be shown to Parliament.
Ms Sindane said that the procurement processes demanded confidentiality until the process was closed, but after that, it may be considered. Whilst she would be reluctant to give a ruling on the legality, she nonetheless strongly requested that the process be allowed to run its course before documents were circulated.
Ms Schäfer thought that if the tender document was being reissued, it was probably not confidential.
Ms Sindane explained that she had not said it was confidential. However, she would prefer that the process be protected, and she reiterated her caution that it should not be made public.
Mr Jeffery asked if his question on the relationship between the Secretary-General and this Committee had been addressed. He wondered if the Secretary General of the OCJ would be part of the budget process.
Ms Sindane responded that the Secretary General had recently been appointed and assumed office. It would be necessary for her in the future to attend Committee meetings. When Ms Sindane had received the notice from this Committee she had forgotten to invite the Secretary General, but that person had in any event indicated that because Dr De Wee had acted in that post for a time, she would not attend. In future, however, she must attend as a separate representative for the OCJ.
The Chairperson pointed out that she should not be part of the DoJ delegation because she was not part of the Department. She would be included as part of the budgetary discussions, in the same way as the NPA and others were.
Other Members agreed that she should be invited. Ms Smuts suggested that perhaps the Committee should call on her, as this was a new institution.
The Chairperson noted that the Management Committee had agreed that this should be part of the Committee's oversight work, but it was necessary to plan properly, and include some magistrate's courts. There would be a visit to the Constitutional Court and the OCJ, which was in Fox Street, Johannesburg.
He noted that the Secretary General would be invited, and that if she wished she could call upon Dr de Wee for assistance and support, in view of his secondment to the post pending her appointment.
Ms Schäfer said that the Committee would have to look into whether sufficient budget had been allocated to the OCJ.
Sexual Offences National Policy Framework
Mr Jeffery asked about the Sexual Offences National Policy Framework. Ms Sindane said it had been tabled but civil society groups had claimed they had not seen it. It was established that it had formed part of anther document. He suggested that, to avoid miscommunication, the DoJ needed to work with civil society more proactively.
Ms Schäfer said that she had a copy of the Framework, and had mentioned this during the meeting with Shukumisa.
Continuation of briefing on the Strategic Plan
Programme 2: Court Services
Ms Sindane noted that the purpose of Programme 2 was to facilitate the resolution of criminal, civil and family law disputes by providing accessible efficient and quality administrative support. The first goal related to case finalisation and service delivery. The key focus areas would be case backlogs, finalising family cases, quasi-judicial matters and reintroduction of the dedicated sexual offences courts.
She tabled, from inception to the present, a summary of how the DoJ had progressed with finalising backlogs, reminding the Committee that these figures had not yet been audited. Over the past few years, particular attention had been paid to addressing backlogs. She praised the work of case flow management systems, but indicated that for many people the costs of pursuing litigation still prevented a number of cases being brought.
The DoJ decided that it was necessary to re-direct investment to ensure that the Office of the Family Advocate (OFA) could be better capacitated. Performance of this office had been low; although there was a 100% target of mediating children of unmarried fathers, only 22% were finalised. There was a need to review the existing secondary legislation and allocate funding to properly resource this office. Several provinces had only one office, with only three to four staff, despite the vast distances they had to cover. The OFA had been adversely affected by the Jurisdiction of Regional Court Amendment Act of 2008 and implementation of OSD, and there was a problem in attracting social workers. Reprioritisation of funding would not address all the problems. The targets had been adjusted, to deal with the lower capacity, although it was hoped that over time more people would be attracted and the targets could then rise again to the required level.
Quasi-judicial services had not previously been measured, but the DoJ had, last year, started to assess how long it took, for instance, for the Clerk of the Court to issue default judgments and for the taxation services, cognisant of the fact that access to justice was measured not just by the judgment of the court, but the processes that ensured that a litigant received satisfaction. There were improvements in case registers, to get a better-supported performance report. DoJ was attempting to ensure that all cases were finalised within the stipulated time frame. There had been complaints in the past that the Clerks of Court were not given sufficient capacity, but this had been addressed. There had been a 15% decrease in the unopposed taxation targets.
In relation to access to justice, she noted the completion of courts, in 2012, in Katlehong, Ntuzuma (due for occupation in May 2013) and Gelvandale. The DoJ was working hard to ensure that all services would on stream to allow the courts to become fully operational. The South Gauteng and Polokwane High Court were proceeding, but their work overruns and revision of completion dates were presented (see attached document). The DoJ aimed to take courts to where they were needed, and finally to establish them in all municipalities. It had to recognise the lack of space in many of its courts and it was also trying to relieve pressure on them. She had discussed Small Claims Courts previously, which had assisted the DoJ in unlocking claims of under R12 000. She thanked the partners for assisting and funding, and also expressed her gratitude to the commissioners. In rural areas, however, it was very difficult to find female commissioners, particularly since the courts ran predominantly at night.
Ms Sindane dealt with the protection of Vulnerable Groups. In relation to maintenance, a four year turnaround plan had started in the 2011/12 year. Business process re-engineering (lean management) had been done, as a pilot, in nine sites. Many maintenance officers had been appointed and trained, in line with a commitment to this Committee. The EFT payments took about four days to effect. Braille to accommodate people with sight disabilities was piloted in two schools in Limpopo. Mediation services were introduced. The DoJ was attempting to treat everyone with the necessary dignity. Signage had been increased and audio-visual services prepared for information screens. The DoJ wanted to reach a point where the services would be self-sustaining.
In relation to third party funds (TPF), 310 courts had been decentralised for purposes of EFT services. About 159 000 payments, or 85%, were made directly to beneficiaries, and payment turnaround times were reduced to within 48 hours of allocations by courts. This system was used to pay 92% of beneficiaries of the Guardian's Fund, which should lessen cheque fraud. However, there was still a problem with electricity supply in some areas, and the DoJ was looking to alternative systems. Annual Financial Statements for three targeted financial years (2009 to 2012) on the Third Party Funds (TPF) were prepared and submitted to the Auditor-General (AG). The improved accounting for TPF would bring the transparency desired, and address the perception that the DoJ was unaware of certain “pockets” of work. Whilst she accepted that there had been fraud and corruption, this was not as bad as feared, and DoJ would in future be closing the loopholes through better controls and disciplinary processes.
The National Register for Sexual Offences and the dedicated sexual offences courts had been briefly covered on the previous day, and in the responses given earlier that morning, and she did not go through the slides on these in detail.
Ms Sindane noted that DoJ had a partnership with the Foundation for Human Rights. Over the last year, it had reached 2.7 million people with constitutional rights programmes, 60 grants were given to civil society organisations to support human rights programmes, six workshops were run on hate crimes and the National Action Plan, ten initiatives supported Women's Rights and eight public policy dialogues had been held on human rights issues.
Mr Jeffery asked how the PAIA and PAJA performance was measured.
Ms Lebo Mphahelele-Ntsasa reported that page 92 of the Annual Performance Plan spoke to compliance by the DoJ. The measurement was whether there had been compliance with the turnaround times. The aim was that all public entities must be surveyed to find out if they were complying with the PAIA.
Mr Jeffery questioned why the DoJ was doing this as it seemed to be a duplication of the responsibility that was vested in the South African Human Rights Commission (SAHRC), which would in future be taken over by the Information Regulator. He was pleased to note the compliance with DoJ’s own targets.
Ms Sindane recalled that some piece of legislation also placed an obligation on the DoJ but she would double-check on this. However, DoJ in any event was tasked, by the Government and Administration Cluster, under Government Outcome 12, to indicate the level of compliance by government with the constitutionally-mandated legislation.
The Chairperson suggested that the Cluster should be getting those reports from SAHRC.
Mr Jeffery said that in the previous year, the figures for backlog cases had been quoted, but these were not given in this year, which made it difficult to do a comparison. Last year, the number of backlog courts had also been increasing, but they now seemed to be decreasing, and he enquired about the future of the project.
Ms Schäfer pointed out the despite the long functioning of the backlog courts, the backlogs still existed and this seemed to be an indicator of the need for permanent courts. She questioned the progress and the views on these, although she accepted that budget may be part of the problem.
Mr Malema said that backlogs and numbers of courts were linked, and pointed out that this was a rolling system; as soon as some were finalised, others would be added. It seemed that the backlog cases would remain until the throughput of cases was higher.
Ms Schäfer said her point was that this seemed to indicate that more permanent courts were needed.
Ms L Adams (COPE) asked if there were statistics on the number of sexual offences cases in the backlogs and whether they would be prioritised.
Mr Malema agreed with Ms Schäfer and said that this point was linked to questions around building of new courts (discussed below). In future, given the prevalence of sexual offences matters, these would be prioritised in the backlog cases also.
Mr Skosana added that the Magistrate's Commission had made recommendations about the appointments of judicial officers to backlog courts. It was necessary to factor in what the creation of posts and infrastructure would include.
Mr Jeffery repeated his question that the numbers of backlogs be presented.
Ms Mphahlele-Ntsasa reported that the output was almost 30 000 cases completed.
Mr Jeffery was worried that the actual backlog was still 34 000, and he thought that the DoJ should have the target of clearing the same number of cases, rather than allowing it to go any higher.
The Chairperson said that at some point the Committee needed to engage with the Public Service Commission reports and look at what was causing the backlogs. Some of the matters highlighted there could well be addressed.
Mr Jeffery suggested that the backlogs were probably primarily in the district courts.
The Chairperson said that the backlog was practically an “industry” and could not be allowed to rise all the time. Substantial discussion was needed on this point.
Mr Jeffery then added that the go slow by magistrates may increase the backlog. He was not aware that they were permitted to go on a go-slow and he wondered if disciplinary action would result.
Mr Jeffery also noted that he now had a list of the increases given to magistrates. In 2005, they were included under the Commission, and received a 36% increase. In 2008 they got a 47% increase, although the judges did get considerably more. He thought that perhaps the DoJ needed to do more to explain how these were calculated, and pointed out that the magistrates’ bodies were perhaps under some misapprehensions and he had suggested to them that DoJ needed to explain the apparent discrepancies. He pointed out that the magistrates’ salaries had risen from R243 000 in 2003, to R708 000 today, something that certainly did not apply to other public servants.
Mr Jeffery noted that last year the Committee had raised questions around the condition of courts, and the press over the weekend had also reported on some concerns. He was aware that there were budgetary problems, but reminded the DoJ that this Committee had previously questioned whether the DoJ should not rather look at curtailing the building programme, because there seemed little point in building new courts that could not be furnished or maintained. He also noted that the Department of Public Works (DPW) was involved. There were some changes; Gelvandale court, for instance, was supposed to have been completed in 2006, but was not listed last year, and this year there seemed to be more new projects named.
Ms Pilane Majake also expressed her worries around the huge challenge in maintaining the courts and stressed that DoJ should be looking to offering quality service, rather than a proliferation of courts that were poorly run.
Ms Sindane wanted to clarify how the National Development Plan (NDP) fed into the work of the DoJ. The Presidential Infrastructure Coordinating Committee was trying to fast-track building of infrastructure. The DoJ, as well as other departments, now had to list all its infrastructure projects, and this list was tabled on the previous day. That was done both to assess capacity and to ensure that plans were being implemented on time. It was hoped that this would result in a lot more progress. This would also allow the DoJ to quantify the number of jobs and construction jobs that it was creating. Certain commitments had already been made to communities, although the finalisation dates had been shifted. The DoJ would thus have to continue with some projects, and could not simply abandon them, but it would also give priority to projects that would allow the courts to operate properly, before starting the building of new courts. This would also allow the DoJ then move to building courts.
Ms Sindane pointed out that although DoJ had money for maintenance it was not even sufficient for making courts accessible to the disabled. The largest chunk of the budget was being spent on leases. Ideally, the DoJ had wanted to build a Justice Precinct in Pretoria, because currently it occupied five buildings in the city centre, at high rental. This would involve a high initial cost but substantial savings in the long term. The refurbishment was discussed at the Heads of Courts meeting, and she agreed that substantial refurbishment was needed. However, it must be noted that the infrastructure of high courts was substantially better than many of the magistrate's courts, which required substantial rebuilding. Whilst the DoJ was aware that it had to give equal weight to all courts, and to offer the same level of dignity to all users of courts, management was faced with making choices on prioritisation. Officials in the regions had a small budget to attend to lights and similar repairs permitted by DPW, but it would not include water reticulation and wiring. Leases were eating up a large chunk of the budget that should ideally be used for maintenance.
Mr Johnson said that he could give a more holistic view later on the budget for repairs and maintenance.
Mr Jeffery asked what the interaction was with the South African Human Rights Commission (SAHRC) on promotion of constitutional rights. He asked this question every year of both the DoJ and the SAHRC, and whilst he accepted that the SAHRC was a Chapter 9 institution, it was necessary to avoid duplication. He wondered if there was improvement on coordination.
Ms Sindane responded that there was quite a good relationship with the SAHRC, and the two bodies shared some programmes. However, in relation to the advocacy work being done by each, she could not answer the question directly, although they did engage in similar events. The Foundation would interact also with the SAHRC. She would check specifically what advocacy work was being done and report back. A study was presented by the Foundation for Human Rights showing that there was a great need still just to make people aware of the Constitution. DoJ believed that the work was not yet sufficient to meet the needs, but agreed also that it would be undesirable to duplicate the work.
Ms Schäfer wanted to know how many maintenance officers there were. She was encouraged by what was said about maintenance issues, but noted that she still received numerous complaints.
Mr Malema said that this information would be provided. Later, he reported that there were 131 posts filled and 85 vacant, and said this may be due to problems around OSD, which tended to put new appointees at the bottom of the salary scale. Similar problems arose in filling posts for the Registrar, where the salaries were not competitive with what potential applicants would receive elsewhere.
Ms Schäfer pointed out that OSD was simply not working and something needed to be done to correct it. The Department of Public Services needed to address the issues and decide why it was not working as it was supposed to. This was happening across a number of sectors.
Ms Sindane responded that OSD helped to retain staff, so it reduced new intakes. Over the next few years, there would be problems at middle management, because those entering took too long to achieve middle management status by the time their more senior offices had retired.
Mr Swart said that he had heard in the past of naming and shaming maintenance defaulters and enquired if this was a project being done by the DoJ.
Mr Malema said that a workshop was held to develop policy, at the end of the last year, and he would report back on how far this had progressed.
Ms Pilane-Majake said she had previously suggested that tracking of defaulters needed more attention and she had suggested that Department of Home Affairs should be asked to give clearance to defaulters before allowing them to travel outside the country.
Mr Malema said that DoJ would collaborate to ensure that those living in the country were not missed.
Ms Sindane added that the DoJ had collaboration with most of the neighbouring countries to assist with collection of maintenance where the defaulters may live in another country. Within DoJ, the Office of International Relations served the processes (as these were not served by the Sheriff) and there were arrangements to address maintenance. In Kempton Park, most beneficiaries were being paid maintenance directly, and not through the court, and that was encouraging. Many more courts were trying to make similar arrangements and make them an order of court. However, the DoJ was aware that it needed to find an alternative, and quicker solution, than that used in the past, using maintenance investigators to do the investigation, to help them trigger automatic payments.
Mr Swart wondered to what extent the addition of toll gates and SANRAL’s projects in Gauteng and other provinces would result in additional fines of those who did not pay their tolls, and how this would impact upon the already-stretched criminal courts. He had raised this previously at the Portfolio Committee on Transport, and enquired what pressure this would place on court services.
Mr Skosana said that the Department of Transport had requested the DoJ to consider if it was possible for the Minister to convene a special court in the district to deal with e-tolling infringements, and this would be discussed again on 23 April. The Magistrate's Court Act already allowed for this. It was possible that one motorist might amass several fines by travelling through various toll points, and this must also be taken into consideration. It would be useful to create a dedicated court to deal with all infringements.
Ms Sindane said that the DoJ had also raised concerns about the issues. She felt it was important to set out the context. Legislation was required urgently on e-tolling, and a political decision had essentially already been taken. The matter had been referred to the JCPS Cluster, which had discussed capacity, on the ground, of traffic officers and the availability of courts infrastructure and systems, but DoJ was given the impression that it simply had to make things work.
Ms C Pilane-Majake (ANC) believed that one shortcoming on the reporting was that the jobs created in the new courts should also have been given. Part of the planning should also consider the posts created; and to ensure that the structure was not too top-heavy.
Ms Sindane welcomed this observation and said that this information would be shown in future reports. She also referred to the statement on jobs given earlier, when discussing the infrastructure projects.
Ms Pilane-Majake noted that some other institutions were assisting in schools, and she wondered if any measures to be introduced by the DoJ on maintenance were duplicating what already existed. She asked what banks the DoJ was working with.
Mr Johnson said that 220 payments were made directly to people's bank accounts and this was creating more efficiency in the turnaround times. The interest earned was less than bank charges, so effectively the DoJ was paying bank charges. If it was possible to get maintenance defaulters to pay directly to their former spouses or partners, then 220 000 people could be taken out of the system. DoJ was doing a lot of advocacy work around this and there was engagement with the judiciary to try to take maintenance out of the court system. In relation to maintenance, DoJ had considered whether it could move to using other financial vehicles, but at the moment it was dealing with the four major banking institutions.
Ms Adams questioned why there was no indicator for building One Stop Child Justice Centres, and asked when and how the DoJ would be measuring implementation of the Child Justice Act.
Mr Malema said that the criteria for establishing the Centres was being done.
Ms Adams asked about the spending on the Supreme Court of Appeal and questioned if that was on track, as there were concerns last year on lack of spending.
Mr Johnson said that he had not heard any complaints in this year. 4 000 desktops had been procured across the country and the same comment would apply for the laptops. Books over R500 000 had been procured and he and Judge Willis had worked on the list for procurement. He would continue with this engagement to support the Supreme Court of Appeal.
Ms Sindane pointed out in the previous year there had been problems with air-conditioning but this was apparently now sorted out.
Prof L Ndabandaba (ANC) asked if there was cooperation between Family Advocates and social workers in addressing child issues.
Ms Sindane confirmed that they did work together, but there was a regrettable shortage of social workers in some areas. The two departments were trying to address the problems. The DOJ and DSD had a very close relationship on issues of children, and elderly people, and they did meet regularly. The DSD was hindered by capacity issues. Any challenges were brought to the table and the two Ministers were prepared to give guidance.
Mr Jeffery noted the chart on page 40 on project costs and asked that these be explained in more detail later. Some of the projects appeared to be far too expensive. The Durban Periodical Court was supposed to be completed, but he enquired why spending was still reflected in the following years. It may be that matters were not completed properly, but in this case the contractor should make good.
Mr J Sibanyone (ANC) asked for the official name of the court in Katlehong.
Mr Skosana said that Katlehong was different from Palmridge (the old Alberton court).
Mr Jeffery noted, after lunch, that he (and some other Committee Members only) had now been provided with the list of Sexual Offences Courts but asked that the DoJ take the Committee through it.
Mr Malema said that originally, the number of 42 was given. This was a progressive process, and this figure was later revised by DoJ to 46. The calculations were then done on what courts could fairly easily be modified, for instance by putting in one-way mirrors and so forth. The number kept changing as the Department assessed what could be done, but it had eventually reached the number of 57. The estimated costs were listed, to reach a figure that at the moment DoJ could not afford, but the point of the exercise was rather to assess what each court had. This was a progressive process and it would take a number of years to reach the ideal model.
Mr Jeffery asked if the 46 listed were those courts that had capacity, rather than being selected according to the needs. Given that there would also be training and support needed, including psycho-social support for the victims (which also assisted in preparing them to testify), it may be necessary for the DoJ to consider needs. Dundee, for instance, was a small court, and unless it would be running as a circuit, it may be better to prioritise bigger areas, such as Richards Bay. In Pietermaritzburg the old magistrate's court had apparently been converted to a new sexual offences court, and this probably did not cost too much. He reiterated that it would be useful to run the courts as circuit courts.
Mr Malema said that the DoJ had decided that smaller rural areas must also get access, but took the point about the geographical spread.
Mr Jeffery pointed out that the Northern Cape had two courts, which were relatively close to each other.
Ms S Shope-Sithole (ANC) pleaded with the DoJ to consider Bushbuckridge, which had been shifted from one province to another. Since 1994, despite being called a Presidential nodal point, it had really suffered from lack of services. It experienced some of the highest sexual offences problems, and therefore should be prioritised.
The Chairperson suggested, and Members agreed, that it would not do any harm to recommend to DoJ that it should consult with Shugumisa, who did very good work on the ground. The NGOs were not being kept in the picture, although they dealt with matters on the ground, and they wanted to make input.
Ms Pilane-Majake reminded the Committee that this organisation had been asked if it had contacted the Department, and had responded that it had initiated contact with the Deputy Minister.
Ms Pilane-Majake asked for progress on projects mentioned last year. She thought the establishment of a Justice Precinct was good and suggested that the example of the Department of Trade and Industry could be followed.
Programme 3: State Legal Services
Ms Sindane noted that many issues had been covered in earlier discussions. This programme provided legal and legislative services to organs of state, supervised the administration of deceased and insolvent estates, liquidation of juristic persons, registration of trusts, and the Guardian's Fund.
She set out the legislative highlights from the past year (see attached presentation). The Department had introduced the Legal Practice Bill, Anti Torture Bill, and SAHRC Amendment Bill. It had implemented the Criminal Law (Forensic Procedures Amendment Act) dealing with fingerprints. The Protection from Harassment Bill was gazetted for implementation on 27 April 2013. The DoJ planned to develop nine bills and six rules.
The DoJ was establishing a Master’s Service Office in Nelspruit, which would process matters electronically through the Paperless Estate Administration System (PEAS). The office would share facilities with the Office of the Family Advocate in Nelspruit. She noted again that 92% of payments made to Guardian's Fund beneficiaries was done via EFT.
The Litigation and Legal Services Unit was likely to be most affected by the restructuring of the State Attorney services. The objective of this, as already outlined, was to ensure strategic management of state litigation. Neither government, nor even the DoJ itself, had coordinated this properly in the past. At the moment, there were numerous state attorneys, but many were not even doing court work, but were outsourcing it to private attorneys or advocates. In busier regions there was a hybrid system, but the DoJ wanted to have a common ground established as to what could be outsourced as it was hugely expensive. The cost of litigating in government must be better managed. Government departments preferred to use specific private practitioners, which affected numbers on transformation. It also wanted to entrench alternative dispute resolution (ADR). It was easier, perhaps, to focus on the backlog cases because of the CJS Review, but it must be noted that there were many civil backlog cases as well. DoJ wanted to settle cases that would not result in any new jurisprudence, such as motor vehicle accidents, which could better be handled through ADR. Even where departments did not have a plausible defence, matters were often being defended and dragged out, ending up being settled at the doors of the court, or were being lost because the cases were just not winnable. Allocation of briefs to Counsel would be aligned, to try to create a specialist set of practitioners experienced in state litigation. It was necessary also to boost confidence in the State Attorneys themselves, with improved administration processes to try to free up their time to appear in court. There were historical problems that led to the current situation, which would be addressed.
She repeated that an institution called the Solicitor-General would be appointed, to be in charge of norms and standards, and accountable for the implementation of the State's litigation strategy.
Over the past three years or so, the DoJ had been setting targets for briefs given to previously disadvantaged individuals, and this year this was increased to 75%. She had met with a number of private practitioners who were still complaining that they had never been given a government brief. DoJ would be focusing on ADR, aimed to increase the percentage of successful cases, and ensure that advice was given timeously, and met stipulated quality standards. The Office of the Chief State Law Advisor continued to provide legal advice at national and other levels.
Ms Sindane concluded that 2013 would be a year in which the DoJ would focus on people. It was continuing its investment in ICT as an enabler to good service delivery, and was also concentrating on improving financial management and accountability. Relationships with the Chapter 9 institutions had been improved, and the SAHRC's concerns on drafting of international treaties had been resolved. It would be unrelenting in its efforts to support human rights and the rights of vulnerable groups, would prioritise Master's and Maintenance services, and build solid relationships with partners from the public service, civil society, the judiciary, NPA, Parliament and donors.
She noted that on the previous day a question had been asked as to how the DoJ dealt with international protocols and treaties. In the previous year, it had tabled a Peer Review Report in Geneva, which was well received. That was then fed back to the Chapter 9 institutions, with whom there had been limited consultation prior to the tabling. After that, a formal programme was set up to ensure that their views were obtained on documents to be presented to Cabinet. An extension of time had been requested on the Country Reports on Civil and Political Rights, and that would go through the next Cabinet cycle. The National Action Plan on Racism, the Civil and Political Rights, and the follow-up report on Convention of All Forms of Discrimination there were several other reports that had been outstanding for several years, and the DoJ was trying to deal with those as well, sometimes combining some of the reports to try to get over the backlog.
The Chairperson asked about legislation dealing with DNA, because the Minister had promised to follow up on that last year. He asked if this was still in the pipeline.
Mr Bassett said that the concern at the time was whether this Committee or the Portfolio Committee on Police should deal with the legislation. SAPS had been drafting the legislation and the Portfolio Committee on Police had undertaken an overseas study tour. The Minister would be taking up concerns with the Minister of Police. The Bill had apparently been presented to Cabinet today, but NPA and DoJ would be involved in implementation.
Mr Jeffery said that he had understood that this Bill was not simply an amendment to the Criminal Procedure Acts (CPA) but to a number of other legislative enactments falling under SAPS. He thought that the Speaker should order conferral between the two committees.
The Chairperson noted that the question of which was the appropriate Committee to handle this was one of the first questions posed by the Minister.
Ms Smuts said that the Minister and Deputy Minister had also raised the question, only weeks ago, why the Bill had left this Committee. The Bill did deal with a number of human rights matters.
Mr Bassett said that a small portion of the Bill related to the CPA, but there were substantial amendments to at least three other pieces of legislation falling under SAPS. The DoJ had set out the concerns of this Committee already, and the possibility of committees conferring, but that was a decision of Parliament.
Ms Smuts wondered if it might not be possible to separate out the DNA sections into a CPA Amendment Bill, rather than conferring.
Mr Jeffery thought that it was not desirable for the committees to deal with the matter jointly. Perhaps this Committee could tell the Portfolio Committee on Police that it would handle the CPA amendments, and hold public hearings on those aspects separately.
Mr Jeffery hoped that the DoJ would be advertising and educating the Department on the Protection from Harassment Bill.
Mr Jeffery asked about the Law Reform Commission and when it would be appointed.
Ms Sindane said that there was some progress on this.
Mr Jeffery said that the Minister had written quite a comprehensive letter but the DoJ must monitor.
Mr Jeffery appreciated that there would be an improvement with the appointment of the Solicitor General, but said the 75% targets for briefs were calculated on a monetary value. The concern remained as to what exactly the policy was. Briefing of practitioners should be used to promote those from previously disadvantaged groups, particularly African people, and he said that the demographics must be considered in context. It was also a question of how the young Counsel were being used; they should be given some bread-and butter matters to allow them to develop experience. He was concerned that Senior Counsel might be appointed by the State, but the extent of involvement and training of the Junior Counsel was limited because this was not made a condition of the brief. Far more could be done to develop the advocates’ profession, and he was worried that this was not happening.
Ms Sindane understood the concerns and said that the DoJ’s work was geared to trying to achieve those aims. The DoJ was trying to do a breakdown, as it had realised, particularly in Western Cape, that few African advocates were being briefed. The issues around training and experience had also been of concern although the DoJ did ask for partnerships with specific categories of juniors being appointed. There was ongoing engagement on how to determine experience, and the role that Senior Counsel, whether black or white, would play. She was happy to engage separately on this area of work in future.
Ms Shope-Sithole asked for an explanation of the difference between the Chief State Law Advisor, and State Attorneys, and whether they worked together.
Ms Sindane said that the primary responsibilities of the Office of the Chief State Law Advisor were to advise on draft Bills, protocols and so on. This office did not do court work, although it may be called to court to explain, as witnesses. The State Attorney was employed to do nothing other than state litigation work, either directly or by issuing instructions to private attorneys to attend courts. Their institutional arrangements were regulated under the State Attorneys Act.
Ms Pilane-Majake thanked the Chairperson for the response on international instruments. However, as she understood it, responsibility for international instruments relating to women and children fell under the Department of Women, Children and People with Disabilities (DWCPD). Some reports had been outstanding for years and she said that there was no clarity on who was responsible for them.
Ms Smuts noted the outstanding international reports, but asked why the National Action Plan, which was quite different from the others, was noted here.
Ms Sindane said that the DWCPD was moving through a number of reports, some related to the Convention of All Forms of Discrimination against Women. That Department, however, did not do work in communities and societies as it was supposed to monitor how the whole of government would implement issues of women and children. The DoJ and Chapter 9 bodies would do the projects and pass on the information. The responsibilities were initially split because the DWCPD was set up in 2009 only, and many of the reports still fell to DoJ because of the human rights elements. In the past year the regime had improved. That was the reason why the National Action Plan fell to the DOJ, because it covered issues of discrimination, racial intolerance, homophobia and so forth. The National Action Plan was developed in answer to international obligations.
Ms Smuts and Ms Pilane-Majake had a short debate on the purpose and result of the conference that led to the National Action Plan.
Estimates of National Expenditure 2013 presentation
Mr Johan Johnson, Acting Chief Financial Officer, Department of Justice and Constitutional Development, tabled the document setting out the Estimates of National Expenditure (ENE). (See this document for all detailed figures) DoJ had to take account of the guidance from the Ministerial Committee on the Budget and National Treasury. Consideration must be given to the domestic economic outlook and fiscal constraints and shift to capital spending, which created jobs.
There were budget cuts in the past and this year. The DOJ had achieved 99% expenditure in 2012/13. Between 2009/10 the budget increased about 10.5%, mainly for infrastructure. From 2012/13 to 2015 the increase would average 6.8% and there would be continuous improvement of services, new courts, and modernisation of services.
There were R610 million addition budget cuts. An amount of R535.4 million in 2013/14, rising to R1 billion by 2015/16, would be put to CJS revamp and Thuthuzela Centres, and empowering public entities and constitutional entities.
The increases for infrastructure were set to increase at an average annual rate of 19.4%. He described the new courts in KZN. The Polokwane High Court should be completed in 2014/15, at a cost of R560 million. There was about R1 billion in court facilities but it must be noted that all the building programmes did create jobs in local communities.
The growth percentage over the next years was shown. It was driven mostly by the increased allocations in 2013/14 for the Criminal Justice Revamp (CJR).
Mr Johnson tabled the baseline adjustments for 2013/14 to 2015/16, detailing all increases. He noted that although DoJ was worried on how exactly it would absorb the cuts on goods and services, it was pleased with the increases in allocations for the CJS and CJR, which would boost court capabilities tremendously. He also specifically outlined the increases for Legal Aid South Africa and noted that SIU was not receiving increased allocations. The Office of the Public Protector would receive around R6 million extra, which should allow it to appoint 12 investigators, and the South African Human Rights Commission would also get increases to improve capacity.
Mr Johnson noted that the Represented Political Parties Fund would move across to the Department of Home Affairs and thanked the Committee for enabling this.
Mr Johnson tabled the budgetary breakdown by programme, noting that the largest allocations would be for Court Services and the NPA. He tabled graphs on the growth showing the trend of the largest increases to court services. Allocations per economic classification were set out in slide 10. R2.5 billion was allocated to salaries of judges and magistrates, an average increase of 7.2%, which was a challenge because the overall increase was only 6.8%. The OSD had been a major problem in the past. Transfer payments to entities also showed substantial growth.
He then tabled the figures for each programme (slides 12 onwards). Under Court Services, some of the programmes would move to the OCJ. He noted that Vulnerable Groups was presently “hidden” and perhaps these services needed to be brought to the fore, instead of being included under lower courts. About 61% of spending was directed to lower courts, but 93% of all spending was directed at court level. In relation to the State Legal Services, he noted the new sub-programme of Constitutional Development and the Master's Office still took the greatest part of the budget.
The NPA was still part of the vote, although it was not under the DoJ, and the largest amount, R2 billion out of the total R3 billion budget for the NPA, was spent on National Prosecution Services. The Office of Witness Protection would receive R159 million. He set out a pie-chart for the budget for specialised prosecutions, and noted that this was increasing, on average, by 12%.
The allocation for entities under Programme 5: Auxiliary and Associated Services, was tabled, showing the budgets for the SAHRC (a 9% increase), SIU (an increase, followed by substantial decreases), Legal Aid (about 7%), the Public Protector (8%), the Justice Modernisation, the President’s Fund and the Represented Political Parties Fund (to be shifted to the Department of Home Affairs). The R300 million for CJ Revamp was part of the justice modernisation programme. The regional budget allocations were set out, and he indicated that these were influenced by the number of courts and personnel. He also noted that in order to assist the SIU with funding, the DoJ had transferred savings from the NPA to it, and had authorise the use of funding from the Criminal Asset Recovery Account.
The property management slide indicated that the average increases in leases was 5%, municipal services 7% and the DoJ was therefore continuously building up a deficit. The DoJ had paid everything due to DPW, or the local authorities, due to stricter management of the accounts. In relation to facilities management, the first allocation was to day-to day maintenance, them to rehabilitation (RAMP), then upgrading and buildings . The regions were permitted to fix the small problems but ideally DoJ would like to have a general facilities manager at every court. He noted that, in addition to the DoJ maintenance budget, the Department of Public Works (DPW) also had a budget for planned maintenance although it was not known to DoJ. The DoJ could do a little with its R30 million, but DPW had responsibility to do far more. Some of the questions that the Committee had raised related to timeous allocation of funding by the DPW.
He noted that the budget made provision for appointment of judges and magistrates, with R37 million allocated for their operational costs. For Vulnerable Groups, DoJ made R99 million available for a number of services. It funded children and older persons, trafficking victims and offered support to victims of domestic violence. He pointed out that he would ideally like to see Vulnerable Groups getting its own allocation as a separate sub-programme, for sexual offences, child justice and maintenance.
Mr Johnson said that with the establishment of the OCJ, some questions would still need to be resolved as to which office would take responsibility for support of case flow management, and library services, facilities and property management should also be shifted to this office, as DoJ should not be paying for a separate entity. Salaries of judges and gratuities were about R780 million. About R1.3 billion had to be moved to the OCJ, and the negotiations for this had still to be concluded. However, DoJ would continue to handle these until the OCJ was able to produce its own financial statements and annual report.
Mr Johnson said that he also wanted to point out that in previous years, the Committee had been quite critical that service providers were not being paid in time. At the start of the financial year, R406 million of accounts were unpaid and aged over 30 days, compared to the previous year, when R800 million had been outstanding. By the end of the 2012/13 year, the DoJ had brought this down even further to around R190 million, and of this about R82 million related to security matters, which had since been paid, whilst the others also included contested amounts that DoJ would not pay until it was satisfied. Better budget management was being applied. The DoJ was committed to paying all service providers on time.
Mr Jeffery said that he understood the SIU would be getting less money because of the Amendment Act recently passed that enabled it to raise more funds, which it had not been able to do since the Eskom judgment.
Mr Jeffery asked if the Farlam and Seriti Commissions of Inquiry were not reflected because they were being paid for and then recovered.
Mr Johnson said that the DoJ had to fund the two commissions from its baseline. The figures were R17 million in the last year, and possibly another R40 million for the Arms Deal commission. He was worried about escalation of those costs. An adjustment budget would have to be presented to National Treasury, and DoJ would be exploring that. DoJ would generate savings wherever it could.
Mr Jeffery noted that the Secretary General would need to report in due course on that separate budget.
Ms Shope-Sithole asked for clarity on the vulnerable groups included in the lower courts. She agreed that these figures should be separately stated. Government had identified inequality and poverty as two of the main problems and she would like to see them highlighted specifically.
Mr Johnson responded that work was needed with NT, and DoJ was working on the separate budget line item.
Ms Smuts said that this would answer concerns of civil society that not sufficient priority was being given to this.
Ms Smuts asked about the Office for Witness Protection, which she believed should fall under DoJ altogether, and asked why there appeared to be difficulties in moving it.
Ms Sindane heard the concerns that Witness Protection should fall under the DoJ but said that this programme operated very differently from others in the DoJ. There had been engagement with the Minister on the issue and she was aware that DoJ would have to start planning now to take over the programme at a future date. The governance of the programme was currently running under systems developed specifically by the NPA, which the DoJ did not have and at the moment the DoJ certainly did not have capacity to take it over. Whilst she accounted for the programme broadly as part of the NPA accounting, it was not possible to take it over physically.
Mr Johnson then referred to a question posed earlier in the day by Mr Jeffery, on the infrastructure spending table, and said that the tables provided, particularly for the courts, seemed to show some problems with the infrastructure spending amounts. He noted that some of this might be as a result of extracting only some years’ figures from a huge infrastructure schedule, and assured Members there was nothing mischievous. He confirmed that the figure was R2.6 billion. The various projects might refer to a number of costs, including design costs, and DoJ would continuously update these lists. For instance, the initial estimates for the Polokwane Court had changed when new needs emerged after planning, and this would have to be included.
Mr Jeffery said that he could understand where the problems came in, but he wanted to query the column showing “Total Project Costs”. The Ashton Periodical Court, on page 1, had been handed over, at a cost of R9.4 million, but the projected expenditure for the next financial years would total nearly R69 million, and he questioned why so much was spent on a court that would not sit continuously. Something seemed to be wrong with that court. He stressed the need to check and re-check all figures presented. He was also concerned with buildings that were handed over, but costs still reflected, and suggested that DoJ needed to revert to the Committee with further explanations.
Ms Sindane was disappointed if there was an error in the numbers, which she assured Members had been checked, but it would be cleared up for the record.
Mr Jeffery suggested that tabling an erratum would be sufficient.
Mr Jeffery was alarmed by Mr Johnson’s statement that DoJ was not aware of the DPW’s planned maintenance schedule, which meant that DoJ was not in a position to plan properly itself. The House must get a report from both the DoJ and DPW, to resolve the issues. This point was also linked to contested DPW claims. Those points would need to be highlighted in the Committee's report.
Mr Jeffery was also disturbed by the report that DoJ was obliged to fund the Commissions of Inquiry, and quipped that when COPE and the DA called for such commissions, they should be aware that DoJ was expected to pay. He thought that this Committee should recommend that the DoJ should be refunded the costs for commissions, and that was another point that needed to be put into the Committee’s report.
Mr Jeffery wondered why DPW should be responsible for maintenance of lifts and other similar matters as it would surely make more sense for the regional offices to get budgets to deal with these.
Mr Jeffery was worried about the provincial allocations; although he realised that they were linked to the numbers of courts, they did not appear to be consistent with population.
Mr Johnson noted that 80% of provincial allocations were personnel-driven. It was necessary to look at whether the courts were equitably resourced. Some provinces did not have high courts, such as Mpumalanga, and some did not have specialised courts, and that was affecting the allocations. He would like to get a per capita cost or even a number of cases processed cost for judges, but this was not used. The costs were also very different in, for instance, Johannesburg and Northern Cape, and that was also linked t the distances. He could try to do an adjustment based on population but he would also have to factor it the distances and differences between metropolitan and provincial areas.
Dr Khotso de Wee, Chief Operating Officer, DoJ, added that a survey of the last three financial years indicated consistent cuts by NT, and the DoJ was in fact receiving less than other departments. If there were further costs the DoJ would find it difficult to meet the real costs of demands on the services.
Ms Shope-Sithole said that some provinces did not have specialised courts, and wondered when they would be introduced, in line with transformation.
Mr Johnson noted that several years ago there were Family Courts in some provinces. That programme, however, had come to an end, and the Court Services Programme would have to explain why that was so. The broad strategy seemed to be to move to having general courts. It was also linked to budget. He could only report on the current structural arrangements.
Ms Sindane said that there was not a direct answer to the question on specialisation, but the DoJ may need to look further into that. Generally speaking, specialist courts were located in areas where there was substantial volume of certain types of issues, and that was why some provinces did not get those courts. The question was now whether there was the volume to justify it. The establishment of courts in Nelspruit and Limpopo meant that there would be adjustments in budget, and although Gauteng would no longer be dealing with cases from those areas, it would be difficult to drop the current allocations for Gauteng, because it was already extremely stretched.
Ms Sindane commented in general on budget issues. She said that there had been inconsistent growth in some programmes compared to others. Everyone had grown in terms of training and other matters, and when there was transformation in the way the programmes grew, the lines of allocation would also have to start moving.
Ms Sindane said that if R140 million was removed from the budget, by being directed to the Commissions of Inquiry, it would actually affect the services that the DoJ ought to be delivering. There had been several cuts in relation to staff, who were not being offered the same kinds of perks that they might have been in the past, and this had a knock-on effect when they realised that colleagues in other departments were still getting those benefits, such as better staff functions, or flying business class, and that was one of the reasons for the staff attrition. That was a reality, and it was not linked to management being unfeeling or uncaring.
The Chairperson expressed thanks to the whole team from the DoJ, and assured the Department of the Committee’s continuing support.
The meeting was adjourned.
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