Department Justice & Constitutional Development on its 2012/13 Annual Report: Day 2

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Justice and Correctional Services

09 October 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) continued with the Annual Report and budget briefing, from slide 83. The Department had started to monitor default judgment applications in 2011, when complaints were lodged, and had appointed a number of contract workers to fix the problems in the shorter term, but mitigation of risks in the longer term. Members asked if the Department had ascertained how many of the default judgments were opposed, and how many rescissions of judgment were granted. Members questioned the capacitating of the system, and noted progress in appointment of the Secretary-General and setting up systems and controls, although capacity must still be appointed. They wanted to know more on the role and status of Justice College, questioned the syllabus, particularly inclusion of customary law, and wanted to know if judicial officers were complying with training.

Specifics of performance in Programme 3, which provided legal and legislative services to government, were outlined. The Department outlined the progress with the opening of a paperless Master’s Office in Nelspruit. The Constitutional Development programme participated in public/private partnerships on the Constitutional Advocacy Programme, which enabled the Department to increase its footprint. Members questioned the funding and monitoring of work, and suggested that perhaps more structured monitoring was needed. Joint programmes were undertaken with the Governance and Administration Cluster to consider how to improve the workings of government and projects were described tracking implementation of the Promotion of Access to Information and Promotion of Administrative Justice legislation. Substantial time was spent discussing how State Litigation was to be improved, the efforts to upgrade the Offices of the State Attorney, the type of briefing arrangements, and how the Department attempted to promote and develop young, black and female legal practitioners. Members questioned whether there were briefing norms, how the Department would address a situation where senior counsel would not work with a suggested junior, how it ensured that there was quality of services, whether value for money was being achieved and whether the efforts to assist certain categories of practitioners were bearing fruit. They asked about targets, the meaning of “successful conclusion” of cases, and tracking of cases. Members questioned a recent judgment that had noted a disturbing trend of default judgments against the State, asked how this had happened and whether it had since been addressed, and called for a frank appraisal of the capacity and ability of the State Attorneys’ offices. The Chairperson noted that these discussions to a large extent supplemented media reports on the position of women practitioners and their challenges, and welcomed some of the Department’s initiatives and engagement with the profession. Questions were asked about the reach of the State Attorney, and whether it dealt with cases of State Owned Entities.

Statistics on expungements and petitions were tabled, and the challenges were noted as the volume of work and fact that one application might relate to several charges. Some challenges were noted in the State Law Advisory Services around estimation of targets and finalisation of translations with 55 days. The work of the International Legal Relations unit was briefly outlined, and Members asked about approval of requests, the level of cooperation, an any challenges. The Department then provided a table of legislation passed, that in the process, and that contemplated, and stressed that capacity constrained the speed at which legislation could be presented. Members asked for updates on the National Prosecuting Authority Amendment legislation, and asked if the problems related to consultation, roles or accountability. The Department conceded, in response to a Member’s questions, that it should have mentioned the Traditional Courts Bill. Members asked about the appointment of a service provider who would research and assess the impact of court decisions on the work of the Department, questioned the budget for this, asked if funding was available, and questioned the funding also for the two commissions of inquiry in which the Department was currently involved. They were interested in whether the problems around fraudulent court orders at the South Gauteng High Court had been resolved, asked about the progress on international legal relations and country reports, wondered if the African Court was in operation, and noted that the National Action Plan against Racism, Racial Discrimination, Xenophobia and Related Intolerance was being put up for public comment in the following month. One Member asked the Department to think about the impact of the “dark crimes” –those never reported.
 

Meeting report

Department Justice & Constitutional Development: Annual Report 2012/13, from slide 83
Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development, continued with the briefing on the 2012/13 Annual Report of the Department of Justice and Constitutional Development (the Department).

She referred Members to slide 83, on default judgments. She noted that the Department’s monitoring of default judgments started in 2011, after problems had been highlighted in the Gauteng court. She explained that in 2012/13, when complaints were first apparent about the process, the Department had employed contract workers to assist different courts, in default judgments and taxations. In both areas, there had been a turnaround of human capacity and outputs. It was focusing on mitigating risks associated with lack of training. 316 000 default judgment applications were lodged and concluded. In this year, for the first time, a target was specifically set, and in this year it was trying to work to the baseline. This was beginning to bring justice more speedily to plaintiffs.

In regard to taxations, the Department was achieving 69% of taxations within 14 days.

Mr S Holomisa (ANC) asked if the Department had considered reasons for opposition of the applications. He also asked about numbers of applications for rescission, and said the figures needed to be amplified with further details about opposition.

Ms Sindane confirmed that the Department was looking at these, and asked why people were not responding to summons when served. Some trends were being discussed with the Board of Sheriffs. Sometimes, service of summons was not in line with requirements. Parliament had recently approved amendments to the legislation on sheriffs and broader transformation was taking place, which included capacitation and education on court processes. The anecdotal evidence was that the defendant knew of the matters but was unable to do anything about the matters, or did not seek to defend the matter. In addition, defendants tended to move and were not able to be served with the process in person, but by pinning a summons to the door. In those cases, there was a trend for rescission applications.

Mr Holomisa asked if there were numerous applications for rescission.

Ms Sindane responded that there were, although no scientific studies had been undertaken. The Department had not distinguished where there had been poor service, and where rescissions were applied for, with consent of the plaintiff, because the debt had been settled. That distinction did need to be made in the future.

Ms C Pilane-Majake said that much closer monitoring may be needed in this area. Justice systems could be abused if the public did not know the law. She also noted that more thought had to be paid on how statistics were provided, and how to inform the public. The National Gambling Board (NGB) had programmes for compulsive gamblers, informing them of the problems, and the Department should take more active steps to stop abuse of the system and run information programmes.

Ms Sindane said that work had been done, in the Office of the Chief Justice (OCJ), since 2010, with secondment of some staff to prepare for capacitation of the OCJ. A service level agreement was signed, and there had been significant progress in some areas, although others remained behind schedule. The Secretary-General had been appointed, so the head of administration was in place. Systems and controls had been established, although others would only be addressed when finalised by other responsible authorities. The OCJ was to be granted its own vote. There had been discussions around appointment of its audit committee, internal audit and ICT infrastructure. 41% of the 148 funded positions were filled, against targets of 50%. Capacity to work on the systems was still needed – such as personnel to work the PERSAL systems, the BAS procurement system and the like. That should be finalised by the end of the month, with approval from the Chief Justice and Minister of Justice and Constitutional Development. Some officials would be transferred across from the Department to the OCJ, on the same levels, from 1 April 2014, when the vote was granted, even though there would be preparatory work done up to then.

The South African Judicial Education Institute (SAJEI) was legislated for some years back but had struggled to take off. The Chief Executive Officer had been appointed. Originally, it was anticipated that it would be headed by a retired judge, although it was later realised that administrative skills were more important for that post, although training should be done by judges. The SAJEI had done some work in collaboration with Justice College, and in future the magistrates, in particular, would be trained by SAJEI. Certain areas of essential training were listed.

The Chairperson asked about the role and status of Justice College.

Ms Sindane explained that Justice College had, to now, been training the judiciary, prosecutors, personnel from Legal Aid, and the Department, but also had international obligations, particularly in the SADC countries. The only component that it would lose to SAJEI would be the judiciary training. The Department felt, however, that Justice College should undertake two additional functions (when funds permitted). Firstly, it would become a centre of conversation and excellence, on processes such as bills, analysis and research into current issues, and secondly, it should start producing written material on the experiences of the Department and its journey, to have a repository of knowledge for the Department. The Department had also thought to change its training matrix, to ensure internal training that would improve the administration of the Department – for instance, to hold continuous training on default judgments, taxations, process, as well as the core business approach to improve access to justice, by training on specific legislation. Training on ICT had been offered in this year.

Mr Holomisa asked how many of the 1 956 people trained were magistrates and how many were judges. He also asked if they would be trained on customary law, which tied in to his request the previous day to have sight of the syllabus.

Ms Sindane said that the Department would provide a breakdown. The examples she had given of training on the Promotion of Access to Information Act and Sexual Offences Act were priority matters. In addition, judges and magistrates newly appointed would receive training on the context of being a judicial officer, planning, work expected and similar matters. Magistrates would need to be introduced to criminal or civil work, and as legislation was introduced, there would be more training on that development. The Chief Justice was responsible for developing the curriculum. She would have to check what exactly Justice College did do, but thought that there was no reason why it could not include customary law, if that was applied in the legal system. Full information would be obtained from the Chief Executive Officer, and a written response would be given.

Mr Holomisa asked to what extent the judicial officers cooperated on training.

Ms Sindane said that the training was clearly based on availability, but judges had been willing to attend training, unless they were required to attend to urgent matters. The uptake of training offered by the institutes was generally quite good, but the Department still needed to check if the international or the domestic training was given priority, and on the relative uptake, cost and perceptions of internal or external training. The Department had recommended that it may assist if the majority of the judiciary could be trained by a notable international trainer, but this would be up to the OCJ.

Mr Tsietsi Malema, Deputy Director General: Court Services, Department of Justice and Constitutional Development, noted that training was done collaboratively, between Justice College and SAJEI. Matters pertinent to members of the public were addressed. Practical issues posing problems would be covered as well.

Programme 3
Ms Sindane noted that the main purpose of Programme 3 was to provide legal and legislative services to government, supervise administration of deceased and insolvent estates and the Guardian’s Fund. It also prepared and promoted legislation and undertook research in support of this.

In the Master’s environment, Ms Sindane said that a new service point was opened in Nelspruit, and it had already registered 1 381 estates. Every file was registered on an electronic system, and a paperless system was in operation. The venue was inconvenient but was still accessible. The Master’s Office had referred 1 887 matters to Legal Aid with the request that it assist. Many of the small estates were linked to child-headed households, and assistance was given, including information on forms. Over 200 000 people accessed the website. The key focus was on building the systems, to ensure that systems could handle the traffic. There were mixed results in attempting to improve turnaround times. Overall, performance was around 80%. Specific targets were listed on slide 90 of the attached presentation.

The Constitutional Development programme had been running since about 2010, and a Chief Director had been appointed, responsible for human rights, although the Department was still struggling to fill the post of Deputy Director General. Numbers were listed, as well as activities relating to the Constitutional Advocacy Programme, a partnership with the European Union and Foundation for Human Rights, which had enabled the Department to increase its footprint. The Department wanted to arrange for a briefing on the programmes at a later time.

Mr Holomisa noted that community advice centres had complained of lack of funding. He asked where they should direct their queries.

Ms Sindane said that this type of work would fall under the Constitutional Advocacy programme. The Department itself did not fund directly, but it did fund through donor programmes, and it could take details and try to link the organisations to donors. The Foundation for Human Rights had resources dedicated for that purpose, although the funding was not unlimited. It had been recognised that Chapter 9 institutions would not reach everyone in the country. The process was managed by the Department of Public Service and Administration (DPSA).

Ms Pilane-Majake asked how the Department monitored the work done by the Foundation.

Ms Sindane responded that there was an informal process, in the sense that there were no structured monitoring processes. The Foundation was asked to present to Exco, visits would be conducted, and there would be participation by the Department. A donor funding unit in the Department looked at all funds received, attended to allocations, and tracked funding that was not paid through the Department, in relation to progress on programmes. The Constitutional Development branch interacted with the Foundation quite extensively, to try to pick up any synergies and areas of difference and avoid duplication. This would help the Department to assess whether the work was effective on the ground.

Ms Pilane-Majake thought there may be a need for more structured monitoring, which might also address Mr Holomisa’s concerns about areas that were not covered.

Mr Malema clarified that the areas being reported on in these slides were the key indicators within the Constitutional Development branch. The Court Services branch also met with the Foundation quarterly. The Department participated on its board, and ensured that there was proper governance.

Ms Sindane moved to the slides detailing implementation of the Promotion of Administrative Justice Act (PAJA). There had been joint programmes with the Governance and Administrative Cluster, to consider how to improve the workings of government. A joint project would cover PAJA implementation, and this had given the Department a window of opportunity to understand the practicalities of PAJA implementation, by government, on the ground. Four pilot projects were run, and a workflow analysis of five administrative decisions was undertaken. Those related to applications made, and decisions, and the work had gone well. The Department would report to the Committee on progress, once the reports had been finalised. Working groups were compiling reports to inform the Department how the PAJA needed to be implemented better. Information booklets were prepared, and examples would be provided to the Committee. The targets had been met, but the Department was aware that more needed to be done.

The Department had not achieved the targets for Promotion of Access to Information Act (PAIA), as it had not consistently managed to reach requestors of information. When people made applications for appeals, the records must be transcribed, and the Department had not managed to do this timeously. This impacted on the achievement of the target. In the current year, it wanted to turn the situation around and meet the deadlines.

Slide 94 related to State Litigation. In the 2012/13 financial year, 70% of the value of briefs were given to previously disadvantaged individuals (PDIs). Briefing of female counsel was at 19%. She noted a recent article in the media that female legal practitioners were not getting the same quality of briefs as their male counterparts. She was not sure that this was entirely inaccurate, but she did know that the strength of brief was generally matched to level of exposure and experience of the advocates, whether male or female. The Department conceded that to this extent, there was differentiation but believed it was rather linked to levels of experience. The Department had two approaches. In the first, it tried to partner junior and senior legal practitioners, to assist them in getting experience, and this had shown good results. In some areas within the profession, however, seniors had their own preferences for working with certain juniors. Secondly, it would be engaging with the profession and client departments to promote briefing of females.

She indicated that “successful conclusion” of the cases, as listed in the table, was regarded as getting a judgment favourable to the Department, or settling a matter with value-add. In some cases, there were limited prospects of success, and settlement would be negotiated at an earlier stage. The Department had allocated 70% of work (less than the target of 75%) to PDI advocates, and was investigating why it had not attained the target. Cases successfully concluded were at 30%, way below the target of 50%, and the Department was also looking into this. However, she hastened to say that it must not be assumed that this related to competence of the advocates handling the matters, but rather the preparation before instructions were issued. She had discussed this matter with the State Attorneys, and the colleagues in other departments, stressing the cost of fighting cases. Although the Department might later recover funding from the departments, it was responsible for funding up front. A project had been started with the Departments of Police (SAPS), Home Affairs, Health and Basic Education, tracking their cases. There was good cooperation with SAPS, and the State Attorneys were being asked to go through the cases carefully. The Department was tracking priority cases with large strategic outcomes, and Ms Sindane herself took an active stance, sitting with the State Attorneys and legal services to ensure that the cases were being properly handled.

Mr Holomisa asked for clarity on the percentage of successfully concluded cases. The target was listed as 50%, and he wanted to know if this implied that the Department was targeting winning only half the cases. He also called for more elaboration on the fees paid to PDI advocates. He understood that the intention was to grant them work and exposure, but wanted to know if there was transformation and value from the practitioners.

Ms Sindane said that there was value achieved in the personal development and growth of the legal practitioner. Ideally, they would provide better quality service as they became more experienced. Some advocates were already offering superb services, in specialist areas. The Department would be starting to track the service being provided. More attention was being given by the Department to ensure that papers were up to scratch.

Ms Kalay Pillay, Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, noted that the State did not calculate the targets against cases lodged, but those that went to court. Matters could be unsuccessful either because the case was poor on the facts, or because of basic preparation levels. Some constitutional matters had to be referred to court to support evolving jurisprudence, and there was a chance that these could go either way.
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Ms L Adams (COPE) asked which government departments had a tendency not to brief PDIs, and which tended to brief private Counsel. She enquired if there was a target for briefing female practitioners. She also wanted to know if there was a preference for briefing certain firms. She would prefer that smaller firms be given the work, but recognised that quality was important. She also asked if the Department had any criteria as to when senior or junior counsel should be briefed, and asked for more clarity on the statement that some were reluctant to work with others.

Ms Pillay explained that the Department would choose to brief smaller firms, to ensure sustainability and empowerment. Whether senior or junior counsel were appointed would depend on the Legal Services procedures in each department. For example, in the Department of Justice, if the Department was told that a particular senior counsel would only consent to take a brief if a particular junior was appointed, the instructions would not be given to that person. This was because the Department insisted that if there was a male senior counsel, the junior must be female. All junior counsel briefed by the Department of Justice were in fact female. She explained that the 18% and 19% figures for 2012 and 2013 were what had been achieved, not the targets. However, she also reminded the Committee that women were under-represented at the Bar. Internally, the Department sought to have at least 50% of women, and a briefing target for PDI advocates of 75%.

Ms Pillay agreed that the Department would need to look more closely at which departments were not briefing females, and who was using Counsel on retainers, and would send through a written report.

Ms Sindane added, in relation to retainers, that the Department discouraged use of retainers, although it was aware that this was still happening. The Department would refuse to appoint on retainer if asked to do so and had asked for some retainer contracts to be terminated.

Ms Adams noted a recent case, Tasima v Department of Transport, in which the judges had commented that, frequently and disturbingly, civil litigation by the State resulted in default judgments against the State. She asked if the default judgments were listed under finalised or lost cases. She was very worried about the allegation that in particular in the North Gauteng High Court, Pretoria, a number of state cases passed by default.

Ms Pillay said that the Tasima case was an exception, and the situation was not as bad as made out there. Measures had been put in place to resolve that. The Department was reporting on default judgments, but this was not listed as a specific target.

Ms Sindane wanted to put this case in context. The State Attorney in Pretoria lacked capacity, coupled with a substantial growth in work, and these offices had not grown at the same pace as other offices where the pace was dictated by legislative change. The office also faced the situation where numerous people retired and it was not possible to appoint people at the same level, so that there was a gap in capacity. There were also challenges around allocation of funds. The office simply became unsustainable. The Minister of Justice had published a document on transformation of state legal services, which was primarily aimed at addressing the issues raised by Ms Adams. Norms and standards were needed on how the State Attorney would work, training was required, and State Attorneys were needed who could do the work in court. The morale and visibility of the Office should improve. The Department had now provided administrative support capacity to the State Attorneys, although it was not yet adequate. Equipment shortages had been addressed. Additional funding was provided, and she would provide the figures of increased personnel. Interim mechanisms had been implemented whilst the bigger transformative agendas were being driven, to ensure better performance at the State Attorney. The Department had engaged with the Minister, and National Treasury, on the need for prioritised funding.

Ms Adams spoke to the finalisation and success rates, commenting that the numbers given in the Annual Report did not correlate with the presentation. If 570 cases had been won, 70% had been lost. She asked what amounts were involved in the cases lost.

Ms Lebogang Mphahelele-Ntsasa, Chief Director: Strategy, Department of Justice, apologised for any incorrect numbers and said that an erratum notice would be issued, and corrected figures would be provided. Separate reports would be sent through in relation to the amounts involved in the cases lost, which would also answer Mr Holomisa’s question about value suffered or gained.

Mr Holomisa wanted to know what the percentage of cases was where the State Attorney was the applicant.

Ms Sindane clarified that the values were usually established from contingent liability figures (in the cases not yet concluded) or amounts of damages recovered or awarded, plus costs, in the matters that were finalised. She noted that the SAPS matters tended to involve low monetary value, but there were a huge number of cases, largely to do with wrongful arrests. The Department of Home Affairs similarly had large numbers of cases, mostly relating to refusal of asylum applications. The number of cases would determine how many State Attorneys were needed in the system. It must also be recognised that they had a need to develop professionally, and that was the balance that the transformation agenda in State Legal Services hoped to achieve.

Ms Adams asked whether any of the State Attorneys’ offices were dysfunctional at the moment.

Ms Sindane said that the Johannesburg and Pretoria offices remained a risk, although this was much lower in the current year than in the past. There were some problems at Mthatha, but at least they were known and the Department was attempting to manage them. At any time, any office could move from being low to high risk, depending on the volumes of work and the numbers of personnel, and the risk assessment did not cast any aspersions upon their credibility. Ms Sindane said that she had worked with some “incredible brains” in the offices of the State Attorneys, but they were sometimes simply swamped by the quantities of work. The Department was aware that it had not managed to achieve an attractive working environment, which was conducive to good results. The Department wanted to turn matters around and to support private legal professionals, but also wanted to use the State Attorney wherever possible. She confirmed that written reports would be provided.

The Chairperson was glad that there had been engagement on this point. Significantly, during interviews at the Judicial Service Commission, five women were interviewed, of whom three were white and two were black, and each of them had commented independently on the difficulties still facing women in the legal profession. They were still generally expected to attend to family law work, and the “old boys’ network” was still very strong and ensured that women did not get briefs.

The Chairperson commented on the briefing patterns. The Minister of Home Affairs had said that this department was determined to win cases, and it was very difficult to stop a department from appointing the most senior and experienced Counsel. The main question was whether counsel should be allowed to dictate to the State who the junior should be. He felt that the State should have a policy requirement on briefing of specific categories of junior counsel. If these young professionals were not supported, they would be likely to leave the profession. The Chairperson was looking forward to the changes that would follow the appointment of the Solicitor General; whilst this would not happen for a while, ongoing efforts were needed in the lead up to that.

The Chairperson was very encouraged to hear that the Department was intending to engage with the legal profession on briefing of women. He would be very curious to hear the achievements in a year’s time, particularly in relation to the advocates’ profession. Arguments were frequently advanced of the need to achieve or retain merit, but he disliked the implication that women would be unable to show that merit. The profession would have to answer the questions around the number of women at the Bar. He noted that the messages being put out gave the strong impression that the legal profession was still not women-friendly.

The Chairperson asked if the Office of the State Attorney covered provincial and local government, and thought its services should be extended also to State Owned Entities. They often had very large cases which would go far to providing the kind of experience and exposure that women and young lawyers needed.

Ms Sindane said that the Office of the State Attorney did cover provincial and local government, and State Owned Enterprises, in theory, but the practice was rather different. If the State Attorney had not focused on offering services at these levels, then the practice had grown up, particularly in local government, where the State Attorney would be used in only some cases. More capacity building was needed before the whole office could work effectively and extend its services to all levels. This would have to be a progressive process, given the current capacity.

Ms Sindane agreed with the observation, not criticism, that the legal profession was slow to transform and stressed that hard work was needed to turn matters around. The Minister had consulted quite widely with the profession, both on the Legal Practice Bill and other matters. One of the reasons given for younger advocates migrating away from the Bar was that they were simply not getting work from government. The Department’s view was that although advocates did deserve to get work from government, they should, through that work, then be capacitated so that over the medium to long term, they would grow their own ability to attract other clients, and not be reliant on government. It would be interesting to see how rapidly this ideal could be reached, and how capacity would be grown in the State and profession.

Expungement
Ms Sindane continued with the briefing, and noted that the Department received huge numbers of applications for expungement of criminal records, and may be able to improve on the turnaround times once it had increased its human resource capacity. In 2011/12, the Department had received 7 576 cases, rising to 7 846 by 2012/13. Other than attending to the physical act of expunging records, she noted that the Department should be ensuring that people were able to get decent jobs, wherever they were. However, she noted that one of the main challenges was that those applying for expungement had not one, but multiple criminal records, and so the numbers of certificates issued was not a reflection of the number of matters involved. Some records might not be in time, and some records were not expungeable. There was a huge volume of work. She was encouraged to see and hear of the impact that expungement made to people’s lives and their ability to move ahead. The Department’s performance in this regard had improved.

She noted that there were 1 164 applications for pardons, of which 944 were finalised, and removed from the Department of Justice system to the level of the Office of the Presidency, where they would be finalised. The Department had been trying to reduce the backlogs that had built up over many years.

State Law Advisory Services were challenging. In 2010, the Department had recognised that the new accounting matrix required development of specific targets, which had not been done prior to that time. The lack of baseline information posed some challenges and the Department was not yet sure whether the targets were realistic, although most (as seen on slide 96) were met. There was a target for finalising all translations within 55 days, and more attention would need to be paid by the Chief State Law Adviser to meeting all the requirements of the Department of Arts and Culture. However, expertise had been developed and the Department was confident that it would meet, and surpass the targets.

The International Legal Relations unit had, in the past, focused on getting out extraditions within a reasonable period. In the past two years, trends were developing that would help the Department to assess whether the targets were achievable. Although the deadlines had not been met, the Department had done the necessary work to show an impact, and had received accolades from other countries.

Mr Holomisa asked how many of the requests for mutual legal assistance and extradition were approved.

Ms Sindane said that she would provide details of those declined. The majority were approved.

Mr Holomisa asked if the same kind of cooperation was being received as was given by South Africa.

Ms Sindane said that in the main, similar levels of cooperation had been offered and received. Some countries, however, tended to give the Department “the runaround” in specific areas. She gave the example that some had not repealed the death sentence, and when they requested extradition, they might not give assurances that the extradited person would not be subjected to capital punishment. However, where South Africa was seeking to extradite people to South Africa, there was generally good cooperation.

Ms Sindane was appreciative of the work of this Portfolio Committee on the Legal Practice Bill, which was not easy. She tabled the other legislation that had been developed (see slide 98 for details). She experienced her appreciation for the finalisation of the Superior Courts Bill and Constitution 17th Amendment Bill, and said that this had given impetus to the transformation of the judiciary. Sheer volumes of work in the Department had meant that not all the Bills could be finalised. Other work still in the process was listed on slide 99. She noted that development of legislation was always constrained by available capacity. The Department had intended to do a complete overhaul of the State Attorneys Act, but that had proven very difficult. It was now intending to amend this in only one respect, to get the appointment of the Solicitor-General through as a matter of urgency, and would then amend it again to revamp the whole system in the following year. The National Prosecuting Authority (NPA) Bill raised other issues, and more consultations were require with National Treasury.

Ms M Smuts (DA) asked what exactly the problems were. This question had been posed to the NPA, who advised that the Bill had already been returned to the Department in November. She wondered if the problems related to the sections requiring consultation, or if there were principle decisions.

Ms Sindane agreed that one of the problems was to do with consultation. Other issues related to understanding and accountability of the roles. There were concerns that the level for accountability, between National Director of Public Prosecutions and Chief Executive Officer would have to be clarified. There might also be concerns about the Chapter 9 institutions in relation to the NPA. There was also the question of whether the Director General of Department of Justice and Constitutional Development was involved. The main concerns did therefore related to reporting and accountability, and how to get the information reported in a manner that was credible and understandable. Some institutions were not achieving optimal outcomes. She was glad that the new National Director of Public Prosecutions had been appointed.

Ms Smuts wondered if there was, in fact, backtracking on decisions, and urged the Department to proceed along the previous path.

The Chairperson commented that Ms Smuts seemed to know more about the Bill than others.

Ms Smuts countered that all her information was gleaned from annual reports.

The Chairperson referred to the “Hate Speech” bill and asked whether the spoken word was being elevated above the physical offence, although the latter may be covered by other criminal offences. There must come a time when the action must be deemed to be a hate crime. Maybe that was the subject of debate for another forum.

Ms Sindane reported that the work of the South African Law Reform Commission had been delayed but it would be reviewing all work done by the previous Commission and would give guidance on how and when long-outstanding projects could be finalised. Work was ongoing within that Commission on the UN Convention on Rights of Persons with Disabilities.

She particularly thanked the Committee for having passed the amendments to the Sexual Offences legislation, and said that the amendments to the Sheriffs Act had ensured that more appointments could be made.

Mr Holomisa understood that some Bills had been tabled, and others were still with Cabinet. He specifically enquired what was being done on the Traditional Courts Bill, which was not mentioned in this briefing; he knew that it was before the NCOP but needed to know what the developments were.

The Chairperson commented that the Minister had also asked about the status of the Bill.

Ms Sindane apologised that this was not included in the list of bills. There was some good work done on this Bill, and it would emerge from the NCOP in due course.

Lists of subordinate legislation were also tabled, and Ms Sindane noted that this was vital for regulating procedure in judicial conduct tribunals.

In conclusion, Ms Sindane said that it was important to recognise where the Department had been in the past, and its current status. The Department had made significant strides in relation to the independence of the judiciary, transformation of State Legal Services and implementation of Sexual Offences Courts. More work was needed to implement the changes. It was particularly looking forward to the work of the Sexual Offences Courts and the work on the LGBTI community, but recognised that societal issues resulting in violence and offences against women would have to be driven by all levels of society. The Department believed that it had impacted positively on people that it served by improving efficiencies, particularly in the Master’s, maintenance, default judgment and taxation environments, and hoped to sustain them.

The Department wanted to assure the public that it was improving governance and that resources given by Parliament and other bodies would be utilised in a proper manner. The Department was grateful for the assistance and guidance of this Portfolio Committee. It also appreciated that the Department was given sufficient space to do its work. There were still a number of major issues to be resolved. The Department had been called to the Standing Committee on Appropriations to answer why it was not accounting within 30 days, and that committee had been appreciative of initiatives, but had asked that interventions be made faster. The Department would be monitoring this fortnightly. She repeated the challenges around under-funding for security, rates and taxes, leases and commissions of enquiry.

Finally, Ms Sindane wanted to express gratitude to the Minster, the former and new Deputy Ministers, as well as a number of other portfolio and select committees, the Chief Justice, the Prosecution Authority, Auditor General, Chapter 9 institutions and government departments and agencies. She stressed that the staff of the Department did not get sufficient recognition for the excellent work that they did and commented that there was fine capacity.

Ms Smuts asked about appointment of the service provider to assess the impact of the decisions of the courts on the future functioning of the Department. The Committee Researchers had highlighted the pro-poor orientation of the courts in other developmental states. She questioned the budget, noting that R2.5 million was budgeted previously, but it seemed that this figure had now leapt to R10 million.

Ms Sindane said that the appointment was made, but it had become clear that all the proposals were considerably in excess of the budget of R2.5 million. The Department had decided to reprioritize some funds from elsewhere to achieve this work. A written report would be provided on the outcome, including what had been said in the policy document around investigation into comparable jurisdictions.

Ms Smuts asked about the position for the Arms Deal and Marikana Commissions of Inquiry, and whether the Department would still be needing help from this Committee in calling for funding in the adjustment budget, and, if so, in what amounts.

Mr Johan Johnson, Chief Director: Third Party Funds, Department of Justice and Constitutional Development, said that R134 million had been promised to the Department and R3 million to the South African Human Rights Commission (SAHRC) for the part that it had played in the Marikana Commission. The Department would decide how to spread the R134 million across the two Commissions of Inquiry. He explained that R300 million had been set aside to deal with the Criminal Justice System review, but National Treasury had taken the decision that this could be allowed as an adjustment already, and it would be included in the Adjustments Appropriation Bill.

The Chairperson asked if this information should perhaps be conveyed to the public. There was a perception that the budget for the Marikana Commission had expired, and it would simply die, and it was necessary to allay people’s fears on that point.

Ms Sindane said that the position had remained unchanged, until she was informed by the Chief Director: Finance of some recent developments.

Ms Smuts asked what the “technical support” that was given to the Chapter 9 institutions comprised.

Ms Sindane explained that each year, when institutions had to submit their budgets, there were usually problems. The technical support provided essentially helped the institutions to submit the right document and in the right format and the term “technical areas” was used deliberately.

Ms Smuts asked whether fraudulent court orders were still being issued in the South Gauteng High Court.

Ms Sindane responded that she was not aware of any in the recent past. The Department had taken steps when first notified of the problem, had been managing the issue and believed it had been resolved. Any isolated cases would be dealt with decisively. Any officials implicated would be disciplined and arrested. There had been disciplinary actions pursued, although they were not necessarily for selling court orders, and one person had been convicted and sentenced to a period of imprisonment of six years. Other officials had also been prosecuted after many years.

Ms Pilane-Majake asked for more clarity on international legal relations. She would have liked to have heard about international human rights instruments, country reports and how agreements were being implemented.

Ms Sindane responded that in general, the Department was servicing instruments that had already been ratified. Others were prioritised. She started to list them, noting that the Convention on Elimination of All Forms of Racial Discrimination had been forwarded to the Department of Arts and Culture. She explained that there was a Cabinet decision that all international documents must be forwarded there, not for examination of content, but for standardisation of language.

Ms Pilane-Majake said that she had merely wanted to know how many had been ratified, how many were in the process and what the situation was with the country reports. She was concerned also with the costs.

Ms Sindane confirmed that there was progress, and tabled a slide listing the reports and where they were in the process. This document would be forwarded to Members. The African Charter on Human and Peoples Rights had attracted quite a bit of media attention and the Department would be tracking it. Cabinet had made certain recommendations on this Charter and adoption, which would allow South Africa to access the African Court, but certain suggestions for changes in the Cabinet Memorandum had been requested also.

Ms Pilane-Majake asked if the African Court was in operation.

Ms Sindane responded that in theory it should be in operation. It was physically in place, but in order for it to be properly functional, each Member State must give the necessary power to access the court. Some local judges were serving on the court. Citizens of various countries were yet to approach it for relief, and the Cabinet memorandum related to that area.

Ms Sindane added that the National Action Plan against Racism, Racial Discrimination, Xenophobia and Related Intolerance was being put up for public comment in the following month. Consultations had already been done with departments.

Prof L Ndabandaba (ANC) asked about the strategic government outcomes. One of the strategic goals of the Department was that all South Africans should be, and feel safe. He wondered how this noble idea was affected by the “dark figures” of crime – which he clarified were the cases not reported to the SAPS or coming before the courts, and thus not formally  recognised, although their impact was probably greater than crimes that did actually come to the courts. He posed the question as food for thought.

Ms Sindane responded that there were three initiatives to try to address the known problems. The Department had a policy framework focusing on the rebuilding of communities, revitalising schools, doing away with drugs, and protection of vulnerable people, which was quite all-encompassing. This would be used as the basis for Departmental education programmes on matters such as the need to report crime, and the Department was also trying to make systems more conducive for the reporting of crime. Sometimes, instead of reporting, communities may agree upon restorative processes, but problems could resurface if rehabilitation and grudges were not settled.

Another project, due to start in the new financial year, driven by the Department of Social Development, spoke to rebuilding of families. Criminals were part of a family, notwithstanding the fact that the family may have turned its collective back on the perpetrators, or could be covering up for them. The Department was, for instance, already doing a lot of social assistance work in Marikana, which was not strictly speaking within its portfolio, to ensure that communities would be more peaceful. 

Ms Pilane-Majake noted the areas where there was shortage of budget to do the work, and accepted that certain problems had been exacerbated by budget cuts. She asked at what point the Committee would be told of the cuts and when objectives might be introduced on specific areas.

Ms Pilane-Majake asked if cancellation of the private-public contracts had achieved savings.

Ms Pilane-Majake noted the Audit Action Plan, and said it was important that there was a focus, which was very important for monitoring purposes.

The morning session was adjourned.

 

Ms Sindane said that she did not believe that people should be too liberal in their legal representation. The Department should be conservative when appointing legal representatives to assist it in the Farlam Commission. The State Attorney would represent everyone and the Department would augment the capacity as and when required. Former Ministers and the Former President would be represented by counsel that was appointed by the state in the Arms Procurement Commission. The state would not pay Advocate Dali Mpofu from the funds that were earmarked for the Farlam Commission but it was awaiting the outcome of the court case. The Department did not have the mechanism to pay third parties, but could only pay representatives of the people who were employed by the state, parliamentarians and the judiciary and not those that were outside. Third parties could only apply for Legal Aid, that principle had nothing to do with Advocate Mpofu. If the case against the State by Advocate Mpofu transpired differently then the Department would react at that time.

A Member asked whether the state had ever paid for third party representation before.

Ms Sindane replied in the negative but added that she would have to verify this.

The Chairperson said that no one was on trial in the Marikana Commission; it was surprising when the miners were represented by a huge entourage of lawyers.

Mr Laurian Russouw, CFO, DOJ&CD, addressed an earlier question raised about the amount budgeted for the Integrated Justice System (IJS). R114 million was allocated to this programme for 2013. Fruitless and wasteful expenditure was reflected in the Departmental financial statements to the value of R 49 million. Some of it was related to people who did not show up at airports when they had to fly. An amount of R38 million was related to overcharging of legal fees in the State Attorney Office. The service provider was currently under investigation concerning this.

 

Mr Russouw highlighted that the challenges to the Department included the security infrastructure and personnel, municipal charges and staff to man the new courts. Those challenges were not immediate but the funds would be needed only in about two year’s time. Another challenge was the transformation of the State Legal Services e.g. capacitating the Office of the State Attorney. He added that a little bit of innovation could save the Department a lot of money.

Ms Sindane addressed the question about Family Law Assistance and said that all the positions had been filled and regions had been allocated. The Department was still working on the R20 million that was only approved in July 2013. The State Attorney’s office was the one single area that had problems financially, it really needed revamp and the record spoke for itself. The Department was unable to extend services to vulnerable groups beyond its capacity. There was a need to provide services to the Sexual Offences Courts and also provide a blueprint model for the courts. The security services was another area that had problems because the new courts needed security personnel. Security contracts were a biggest headache.

Mr Russouw said that Magistrates needed a variety of support personnel- 116 magistrate support personnel were needed. The magistrates’ salaries were funded but four people had to support one magistrate.

The Chairperson mentioned that the NPA had told the Committee that the Sexual Offences Courts were reinstated and required R789 million. Treasury had told the NPA it would only get R20 million. The Chairperson would see what it could do. He also touched on the fact that the Committee was still grappling with the new Budgetary Review and Recommendations Report. He said that up to 32 Committees had very little time to deal with budget requests and the Treasury had to deal with all of them.

Adv Adams commended the quick action by the court security and the SAPS for apprehending a person who shot a witness in front of the Western Cape High Court on the 9 October 2013.

The Chairperson said that the Department was faced with an enormous task with an inadequate budget. The country had to be grateful of the kind of work done because they only saw what happened in the courts.

The meeting was adjourned.

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