Minister of Justice and Correctional Services Adv Tshililo Michael Masutha gave a broad political overview of matters affecting the two departments in his portfolio. After introductory comments around the rule of law and recent events including xenophobic violence and the defacing of statues, he addressed the achievements and challenges faced by the Departments since the present administration took office.
The achievements included the many interventions introduced under the Department of Justice in the fight against crime including pieces of legislation such as the Domestic Violence Act and establishment of entities such as the Asset Forfeiture Unit. A process of realigning the district court boundaries with municipal boundaries and to cater for the establishment of new High Courts has begun, which is expected to be completed in the next year.
While the identified challenges and concerns included a problem with the perception of the functioning of the criminal justice system generally and actual inefficiencies in the system which have inspired a review of the entire criminal justice system. Further, the challenges with filling vacancies, especially in the Department of Correctional Services, was highlighted as negatively affecting the delivery of services by the Departments.
Major themes of the Members’ comments included the infrastructure problems faced by both Departments and the progress in concluding a bilateral agreement with the Department of Public Works. To which the Minister responded that while there are certain achievements, the roll out of infrastructure projects, particularly maintenance, remains a concern and the Ministry has instructed the Departments to iron out the administrative issues in anticipation of high level political interaction. A second theme was the nature of the independence of the independent entities and resultant nature of their accountability within the programmatic structure of either Department, such as the National Prosecuting Authority and Judicial Inspectorate for Correctional Services. The Minister’s response was that while the entities are required to perform their statutory functions independently, there is at present no provision which provides for them to receive their own budgets or account independently. Therefore, until the practice of their accounting independently was formalised in law, the Ministry was hesitant to accept the status quo as it would be contrary to the rule of law.
Briefing by Minister of Justice and Correctional Services
Adv Tshililo Michael Masutha, Minister of Justice and Correctional Services, said he had tried to take into account the various issues raised by Members in various for a, including the regular questions put to Ministers. As he understood his brief for the meeting he was to give a political overview of the Department, particularly because the administrations of both Departments would present the details later. He said the meeting convenes at a crucial juncture in South African history, with democracy nearly having ‘come of age’ and the 60th anniversary of the march to the Union Buildings to present the Freedom Charter. The Freedom Charter to a large extent speaks to the content and orientation of the Constitution, in particular the Preamble and founding values which contain phrases almost verbatim to the Freedom Charter. This reminds us that the democracy we enjoy has a history, equally that South Africa has a historic mission to continue along the path which our forbearers put great effort into pursuing. As a country the National Development Plan (NDP) has been adopted, which provides a concrete plan and framework for the realisation of the goals articulated in the Constitution, Bill of Rights and Freedom Charter. Must therefore be mindful of these guiding documents in all that is done and in the goals pursued, in the context of any of the three arms of state.
Minister Masutha said South Africa has many achievements to celebrate. The socio-economic conditions of the people are better than when the ANC government took power in 1994. There is better access to justice, with the rights of people firmly entrenched in the Bill of Rights and these are protected by institutions over and above the courts, including Chapter 9 Institutions. Further measures such as the establishment of institutions such as legal aid to ensure that people who are not capable of enforcing their rights, have the aid of the state to do so. More achievements could be listed, but equally South Africa faces challenges. Particularly that not everyone has realised and enjoys all, but especially the socio-economic rights. There is still a long way to go towards full realisation. There are also current challenges, with some degree of social instability in pockets of society and our communities, specifically the “unfortunate” attacks on foreign nationals in Kwa-Zulu Natal and elsewhere. These challenges need to be grappled with and government cannot be oblivious to them. Lately, there has been public discourse around national heritage issues and the need to continue to encourage mutual cooperation across cultural and other identities within the country persists, to ensure a peaceful resolution to differences within society.
Minister Masutha said the Security and Stability Cluster is committed to advancing the rule of law and upholding constitutional values. It would encourage all South Africans to do so. South Africa would therefore have a legitimate state, based on the rule of law and constitutional values, which has created avenues through which to resolve societal challenges. These avenues and institutions need to be made full use of in this regard.
Minister Masutha turned to the Departments’ specific area of work. The past 11 months since the introduction of the new administration, has been characterised by a number of developments. Starting with the Department of Justice and Constitutional Development (DoJ), the 17th Constitutional Amendment Act has been introduced, supported by the Superior Courts Act. These Acts are aimed at transforming the system of the High Courts and ensuring an efficient, new administrative support system for the judiciary to enable it to effectively perform its function. These functions have now been spelled out in the Superior Courts Act. To this end there has been a formal transfer of the resources necessary to establish the newly designated Office of the Chief Justice (OCJ). The OCJ’s main purpose is to place the administration of the courts in the hands of the judiciary. The final step took effect this month, separating out the financial resources needed to support the judicial function, through the creation of a new vote: vote 22 Office of the Chief Justice. This money was delineated out of the total DOJ budget and specifically earmarked as the funds dedicated to this entity moving forward. This is a great move towards enabling the courts and judiciary perform their function. There are other institutional arrangements which must be examined going forward to see whether these are optimal for the efficiency of the discharge of those functions. For example the National Prosecuting Authority (NPA) is programme 4 under the strategic plan and related administrative instruments of DoJ, despite this there is a longstanding arrangement whereby the NPA submits its own Strategic Plans, Annual Performance Plans and reports to Parliament. This applies to entities such as Legal Aid South Africa, which is also a programme in the DoJ, but which fulfil a distinct statutory function.
Minister Masutha said similar concerns arise regarding the Department of Correctional Services (DCS). The Judicial Inspectorate for Correctional Services (JICS), which is responsible for inspecting the conditions of inmates and correctional facilities, also submits its own planning and reporting instruments to Parliament. However, it continues to form a focus area under the programming of the DCS. JICS discharges a statutory function which requires independence; however it continues to form part of the administration of the DCS. Going forward it needs to be clarified whether such entities will continue to independently report to Parliament, or whether they will be subsumed under the DCS’.
Minister Masutha said a number of milestones have been reached since the new administration came into office. These include the launch, in December 2014 at Diepsloot, of a programme aimed at rationalising the jurisdiction of district courts, with local government boundaries. This was partially aimed at doing away with the legacy of apartheid’s spatial legacy, where court’s jurisdiction was designed along the Bantustan system. This forced people to travel long distances to access justice, when they had courts within their geographical reach. This project was launched in Gauteng and the North West, to be concluded throughout the country next year. The construction of a new High Court in Limpopo is nearly completed and the High Court in Mpumalanga will soon be completed, leading to both provinces having their own High Court like the other provinces. To this end the Judicial Service Commission is currently sitting to appoint a new head for the High Court in Mpumalanga, who is to take charge of the establishment of this court. Minister Masutha had published a proclamation on 1 April 2015, seeking to rationalise the administrative boundaries of the district courts for the provinces of Gauteng and North West, to align these magisterial boundaries with the High Court boundaries created by the new High Court in Limpopo. So that on 1 August 2015 the High Court boundaries of the three provinces will be realigned with the newly rationalised magisterial boundaries. This realignment will be continued, until within the next year entire country has been covered. He believed this was a significant milestone, because it will not only have the effect of aligning courts with local government, but also ensure physical access to courts. As far as access to justice, access to Small Claims Courts has almost reached 100% coverage of each magisterial district. Small claims courts are a critical point of access to justice, because their services are free. In the areas where coverage is not in place, there are plans to expedite expansion.
Minister Masutha complemented LASA for its continued provision of legal services and continued performance regarding output and maintaining clean audits, which has been maintained for 12 years and is exemplary. Equally the NPA continues to improve its performance levels and is maintaining a clean audit. He was proud of the progress the DoJ has made in improving its overall administration. However, it is acknowledged that it still has a long way to go. There is infrastructure which is ailing, dilapidated and unsuitable for delivering effective justice to the people. Visiting various high courts across the country and interacting with the Heads of Court and judges to appreciate the challenges they face which will help aid the interventions of the DoJ. The visitation process is nearly completed and only two special courts remain: the Land Claims Court and the Competition Tribunal. The Supreme Court of Appeal has been visited and discussions with the Chief Justice to visit the Constitutional Court. A similar visit is intended for the lower courts. Similarly visits are planned to several NPA and LASA branches in the Provinces.
Minister Masutha believed that South Africa has come far in improving its legal system generally, whether it be in relation to institutional arrangements or the substantive laws which the justice system is to administer. Focusing specifically on the sector laws have been introduced, including the Asset Forfeiture Unit (AFU), money laundering legislation, the establishment of the financial intelligence centre. Although it is recognised that there are still instances where people have expressed doubt about the ability for the justice system to deal with the many challenges facing it. To restore public confidence a comprehensive review of both the civil and criminal justice systems are required. Communities continue to be frustrated by things such as the bail laws, which leads to situations where people feel people who should not receive bail are released. In particular, concerns have been expressed about the ability of our justice system to deal with violent crimes against women and children. He felt that as much as laws have been introduced to deal with these problems in recent history such as the Domestic Violence Act, more is required to restore public confidence. The Civil law also needs to be reviewed, because many people continue to not be able to enforce their rights either out of ignorance or a lack of resources. A number of measures need to put in place to ensure that regardless of peoples standing in society, that people continue to ensure the benefit of the progressive system of justice which is currently in place.
Minister Masutha said a review of the entire value chain of the justice system needs to be done, ranging from strategies to prevent crime, the role of police and NPA to ensure matters brought before court are litigation ready to maximise the prospect of conviction. Further, the corrections system could be improved, particularly the care and rehabilitation of inmates and the outcomes calculated to be achieved under the new system of corrections are indeed achieved. This would lead to a reduction in levels of recidivism and it is critical that the social reintegration of inmates is made a priority, to allow productive inmates to be released as productive members of society. The parole system needs improvement, through a re-visitation of the institutional arrangements, specifically how the records of information on inmates is kept during the currency of their incarceration. While a lot has been done to improve conditions for officials in correctional facilities; more remains to be done including improving healthcare facilities to manage the incidence of the contraction of communicable diseases. The medical parole system also needs to be looked at more closely, to reduce the number of natural deaths in prison. The processes which allow inmates to report their deterioration of health to such a point that it would justify their release. The composition and function of the Medical Parole Board is being reviewed to this end. The National Council for Correctional Services currently fulfils a dual role of advising the Department and Ministry on matters of policy, while also having to consider all parole applications for people serving life sentences. These institutions functioning on a part-time basis has led to a huge backlog, placing the capacity to deliver effectively under strain.
Minister Masutha on infrastructure issues for both Departments, said high level interactions are planned with the Ministry of Public Works, to unblock some of the challenges with maintenance programmes and development and roll-out of infrastructure. There are also human resource challenges, especially with regard to the DCS which stands at 40000 out of the declared establishment of 42000. There is a problem with vacancies, which need to filled in order to capacitate the various programmes within the DCS. Given that South Africa is a developmental state which all Departments need to play their role in, youth employment is critical and in everything that is done it is critical that employment and skill acquisition opportunities for youth are prioritised. More so because South Africa is a young nation, with youth constituting a significant percentage of the population. Therefore, not sufficiently focusing on their plight will be detrimental. The DCS can make a positive contribution to society, which will aid in changing society’s attitude towards inmates and government services. To this end there have been programmes of social outreach, such as the refurbishment of school furniture and infrastructure. These do not only assist in responding to some of the social challenges faced by communities, but also helps build up the image of the correctional services and engenders a positive attitude towards inmates. It also needs to be ensured that victims are given priority throughout the entire value chain of the cluster. As DCS the victim-offender dialogue programmes are being intensified, to ensure that victims have a say in the granting of parole in an on-going manner, rather than only at parolee hearings. Especially, as all crime results in victims and therefore they are a crucial stakeholder in any crime management system. He believed the stance taken by government in this regard is the correct one and has increased the active participation of victims in the DCS’ programmes.
In conclusion Minister Masutha said he did not intend to give an exhaustive list of all the planned interventions, as the representatives from the Departments would be better positioned to give such an account as they presented later in the week.
The Chairperson acknowledged the presence of the Deputy Minister for Correctional Services Mr Thabang Makwetia, the Director-General of the Department of Justice and Constitutional Development Ms Nonkululeko Sindane and the Acting National Commissioner of the Department of Correctional Services Mr Zach Modise.
Mr S Swart (ACDP) thanked Minister Masutha for raising both the challenges and highlights regarding the Departments. He also appreciated the raising of his concerns about xenophobia, which is something that all Members need to grapple with. He wanted to know about any further steps government was taking, while he was aware of the inter-ministerial committee the degree to which government was addressing the issue was still a concern and specifically to what extent community structures and faith based organisations were being involved. Secondly, on the defacing of the statues he understood government’s stance and agreed that lawlessness should be condemned, but he wanted to know how according to the NDP how is nation-building to be done around a joint heritage in this context. Budgetary constraints are obviously a main issue facing the Departments and Members must be aware of such challenges when they make recommendations, but he wanted to know whether the Minister had a bi-lateral agreement with the Minister of Finance regarding these budgetary issues. Similarly, whether there is a bi-lateral with the Department of Public Works. He had raised this the previous year and there had been general agreement about the need for such an agreement, an example of the need is the work on the South Gauteng High Court where the work is continually delayed. He would therefore like an indication of when this bi-lateral agreement would take place. On instability in the NPA, Hawks and South African Police Service (SAPS) and the impact that this has on the fight against corruption. The Hawks’ lieutenant Anwa Dramat and South African Revenue Service’s (SARS) head of anti-corruption Clifford Collings have been suspended and he asked what impact this would have on the Anti-Corruption Task Team which is headed by these two offices. Lastly, the Minister’s reference to a review of the criminal justice system is welcomed. Particularly, as the Statistician General had released a poll on dissatisfaction with the criminal justice system. He felt that this had been done in the past and to what degree have the areas which have already been outlined as faulty been improved, before embarking on a new review process.
The Chairperson noted that while the Hawks and SAPS are not within the mandate of the Committee she would allow the question.
Minister Masutha said the issue of xenophobia is a complex issue with several views on how to approach it and whether certain utterances fuel it rather than seek to abate it. He said the rule of law means that anyone who resorts to violence to articulate their grievances will only provoke confrontation with the law and the state has an obligation to enforce the rule of law. While political justifications and frustrations can be spoken about, as long as people resort to criminal behaviour to express their grievance, they can only invite the might of the law to bear upon them. He therefore encouraged society to resort to lawful means to advance their constitutional rights and the Bill of Rights protects people’s right to protest. The same applies to the defacing of statues and other heritage symbols and those political parties which encourage the voicing of grievances through the use of violence are very wrong. As a body politic, we must be firm, direct and assertive to say we should be the last to encourage society to use unlawful means and promote anarchy, which is simply wrong.
On the budget constraints, he said these will continue to be part of life, even with improvements in economic conditions and society. At present government has been instructed to live within their means and if anything to redirect and reprioritise. He was sure the two Departments would speak to their plans and specific efforts to do this. The interactions between the Ministry of Justice and Correctional Services and Ministers of the Finance, Public Works and even Public Service and Administration are long overdue. However, the view is that the functionaries of the Departments should interact first, iron out the issues and crystallise them, so that the political engagement is meaningful. Having been on visits to various courts, the Durban High Court had been found in a state of complete dilapidation. There had been an instruction that this court should be cleaned up and a clear maintenance programme presented within a month. During the JSC interviews the sole candidate for the judge presidency at the Durban High Court had confessed that when he returned from his stint at the Constitutional Court, he found that his windows had been cleaned for the first time in 15 years. He hoped that more had been done beyond the mere cleaning of windows. The whole area of infrastructure including maintenance and roll out, has been the subject of a request for a clear plan for how the situation is going to be turned around, which has been agreed to by either Department, the Department of Public Works and has National Treasury’s approval. His understanding is that National Treasury was not involved, because resources are allocated and it is more at the level of implementation level where funds have to be rolled over that Treasury has a role.
On the instability at the NPA, he said in his understanding is there has been criminal proceedings initiated against some deputies in the NPA which is a process that is presently unfolding. Further, there have been professional misconduct inquiries initiated by the General Council of the Bar and an inquiry initiated headed by a retired judge which came out with certain conclusions and recommendations. He felt he first had to be appraised of the developments of these processes, to see whether there are any particular outcomes which an inquiry initiated by the President may need to take account of. This is the reason why the DoJ has been so slow in initiating another enquiry among all the others and whether this was the right or wrong choice is to be seen and comments are welcome. This is a matter being looked at closely and will be taken further. There has been no intention to evade the issue, but it was felt that there was little value in piling up processes where there are already so many in respect of the same persons and issues. The inquiry has been announced by the President, the panel appointed and a team of evidence leaders appointed. This is a Presidential initiative and the Department’s responsibility is to provide whatever administrative support required.
Mr W Horn (DA) had a question about the newly created Vote 22: Office of the Chief Justice and the Committee will remember that when it visited the OCJ the previous year there had been an ongoing engagement between the Chief Justice and the Minister on the way forward for the OCJ. At that point the Chief Justice made it clear he was of the view that the end result of the evolutionary process would be that the OCJ would be put into a similar position to that of the Auditor General, negotiating directly with National Treasury on its budget and that it would be the ultimate development towards judicial independence. At that stage the Minister indicated that this would not necessarily be agreed to and that other options should be investigated. His question regarded the understanding by the Chief Justice that an agreement had been reached with the previous Minister and a memorandum of understanding had been signed to that effect. The Chief Justice’s view was that the Minister reneged on this agreement and Mr Horn wanted to know if there had been further meetings and whether the OCJ will ultimately be in the position of the Auditor General or whether it becoming a separate budget vote is the final stage. His second question related to the NPA and when the Committee had met with the Minister the previous year, when questioned about the issues around the National Director of Public Prosecutions (NDPP), the Minister had declined to answer as this was within the purview of the President. On 31 March 2015 Mr Mac Maharaj, Spokesperson for the Presidency, indicated that the President had been assured by the Minister that he is engaged with the issues in the NPA. There is to be an inquiry into the fitness to hold office of the NDPP, but the Deputy National Director of Public Prosecutions has been the subject of scathing comments by different judgements of the High Court. The question is whether the Minister has advised the President on any process to inquire into the fitness of the Deputy National Director of Public Prosecutions and if not, why not. His last question related to the appointment process for insolvency practitioners and the transformation of this industry which has been coming on for a while. However, in January 2015 the Minister’s policy has been rejected by the Western Cape High Court. Having read the judgment it seems to turn on the finding that the policy is really a set of regulations in the name of the policy and secondly, that the policy may indicate quotas rather than targets. At present there is much uncertainty in the insolvency practice and the question is where to now.
Minister Masutha said Budget Vote 22 is the culmination of a process initiated in 2010 if not before. At the outset the OCJ was provided with a limited administrative team, which was to enable the Chief Justice to effectively execute its role as leader of the judiciary. Since then there have been further developments which have seen the establishment of a new department, the OCJ, in 2010 by proclamation under the Public Service Act. The establishment of any government department envisages executive and administrative accountability, vested in the Cabinet member responsible and an accounting officer, respectively. Based on this model, the OCJ was established and the Secretary General was made the accounting officer in terms of the Public Service Act and Public Finance Management Act. While the Cabinet member responsible for the administration of justice was the executive authority. The Superior Courts Act delineated judicial functions and identified the OCJ as the entity to provide administrative support to the judiciary, in the execution of its judicial function. A system of conferral was established, where the executing authority would confer to the head of the judiciary the overall management of that entity, in circumstances where the actual role of providing administrative support is left to the joint responsibility of the Chief Justice as head of the judiciary and Secretary General of the OCJ. The Minister’s role was limited to executive accountability to Parliament and Cabinet, so that where the Constitution says Cabinet is accountable for the implementation of policy and legislation this continues to vest in the Minister of Justice. Where administrative accountability is referred to, then the Secretary General is the accounting officer. The determination of what the OCJ is supposed to do, is done by the Chief Justice together with the other heads of court. This follows the transfer of the administration of the judiciary to the OCJ and neither the Department nor the Ministry gets involved in the administration.
The alternative would be for the Constitution to provide for the judiciary to assume executive accountability for this and leading to accountability to the National Assembly. Anyone who assumes control over public funds, ultimately must account to the elected representatives of the public. Chapter 8 of the Constitution does not speak to accountability for the judiciary. Reference is made to the Auditor General which is founded in Chapter 9 of the Constitution. This Chapter requires it to be accountable and report to Parliament at least once a year. The question is whether the judiciary should be burdened with a similar responsibility and come before the National Assembly to account. If the model of the Auditor General, then the judiciary will have to come before a forum such as the present one and potentially have to go before the Standing Committee on Public Accounts. There is a proposal that such accountability be conducted through the Secretary General of the OCJ, but he is only the administrative head and is not an executive authority or a public office bearer. A colloquium is being proposed by the Ministry for the end of the year, where this issue should be ironed out along with other matters which over-all affect the justice system. The judiciary has presented its paper to the Ministry and the Ministry plans to make a proposal to Cabinet, whereupon the executive will be in a position to table its opinion at the colloquium. He referred to the position in Uganda where the judiciary receives its portion of the national budget and basically accounts to itself and debate on the issue. He felt that a basic democratic principle was that wherever someone is in control of public funds they must account for the use of such funds to the public; how this is done in the present case remains to be agreed upon.
On the insolvency appointment procedure and court case, the Minister said that the Department had wanted to come to Parliament to amend the relevant insolvency legislation, because the transformation of this industry needs to be put to bed. This was because the transformation of this industry, as with all industries, is beyond debate as the Constitution sanctions transformation. The understanding is that the case was lost on technical, rather than substantive issues. The judgement is now being scrutinised to see how to proceed. There is a skewedness in the way the profession is constituted and this cannot be left alone, because of the historic obligation to pursue economic transformation.
On JICS independence, the Ministry has instructed the Department to consult with JICS to ensure it is properly resourced and has the capacity to discharge its statutory mandate based in constitutional values. He believed JICS has an integral role to play under the Bill of Rights, regarding advancing the basic human rights of inmates in correctional facilities. Therefore there is much which has been agreed on around this issue. However, the rule of law must be upheld and there is no arrangement under the prescripts which provides for JICS to operate as a separate administrative entity and neither does the law which establishes JICS provide for this. Things cannot be done because of strong feelings, but must be done because that is what the law states. The founding provisions of the Constitution provides that anything which is outside the rule of law is invalid and if the Department were to act outside of the law the action would be invalid. If that direction is to be pursued and a separate entity created, then this would not be a problem. However, until this is done the law must be followed. Parliamentarians would not like to pass laws which are not adhered to, because this would be an undermining of their legislative authority. The same issue has been raised regarding the NPA and it has been reporting separately since the dawn of democracy. The NPA should be the first to know about the rule of law and the way it accounts should not be guided by what “feels better”, but by the law. If the NPA becomes a separate administrative entity, similar to the OCJ, then so be it. He agreed with the position of the Auditor General and if the Department receives a qualified audit on this basis then it would be correct, as it is acting outside the regulatory framework. If the frame work is to be changed, then the engagement must be had. There are several other entities which this applies to and the same could be said of Legal Aid South Africa, which to a large extent operates outside of the Department of Justice. The arrangements going forward need to be interrogated, so that the most appropriate institutional arrangements can be found.
Mr V Smith (ANC) he picked up on Mr Swart’s point that the Statistician General’s poll on public perception of the criminal justice system. What is worrying is that out of all the Departments involved in the criminal justice system, the DCS is certainly trusted the least. He said the Committee would interrogate the appropriateness of the performance plans and budget allocations when they are presented, but he was glad the Minister had raised the point. Secondly, the Minister had spoken to a change of heart in the DCS around JICS and he would like comment on how an independent body is supposed to be financially and administratively dependant on another entity. If this is the route followed are any changes to the current legislation envisaged, because this speaks to the understanding of independence and whether it excludes financial and administrative independence. Lastly, the Minister had correctly raised the point that the DCS needs to ‘up its game’. He would like to know the Minister’s view on the R1.8 billion of the DCS’ budget which goes to outsourcing in a security department, as he could not understand the reasoning behind such outsourcing security. He noted this includes R931million for Public Private Prisons (PPPs), which are subject to a contractual agreement, but if this is excluded then nearly R1 billion is spent on contractors and consultants. This theme had been raised by the President and the Committee and he felt a way needs to be found to empower the DCS, rather than outsource its business.
Minister Masutha said Mr Smith has already clarified that the PPPs are a historical expense, but his understanding was that these were meant to create a parallel system of corrections to challenge the public institutions. These really are a model for the public approach, to the extent that the new centre being constructed in the Northern Cape has been modelled on the approach of the PPPs with the same services and standardisation being followed. Therefore he felt that this initiative has provided something positive going forward and would influence infrastructure roll out in the future. He agreed that the issue of sub-contracting and outsourcing is a concern and this has been sharply raised by the Auditor General in several audit reports. However, he did not believe that partnerships with people outside government are necessarily always be negative. For example youth development requires space for youth with innovative ideas. Community partnerships are important to forge a public/private partnership. To straightjacket government into only dealing with the public sector, then the government may be constrained from pursuing the type of development agenda desired.
Ms S Shope-Sithole (ANC) said she had been a Member of the Committee in the fourth term, which had visited courts and the Committee had not been happy with the situation, particularly court security. She therefore wanted to know if there is anything being done to secure judges while they execute their duty.
Minister Masutha said when the Director-General presents the strategic plans to improve on conditions in court will cover court security and other infrastructure concerns such as maintenance. The incidents seen in recent months has certainly highlighted the concern. The same could be said of correctional centres, with the security facilities needing investigation. Particularly as staff in correctional centres risk life and limb and their overall wellbeing needs to be prioritised, to the point that when an incident happens is the DCS responsive enough to their human needs. An example is the issue of health benefits upon medical retirement, where he had received a complaint that these benefits have not been paid for the past 15 years. An instruction has therefore been issued that any matter outstanding more than three months must be escalated and the official responsible will have to explain how this happened. The Ministry will pursue this matter to the bottom to find out who is in fact responsible for ensuring such benefits are paid timeously. As this is an element of treating personnel better which will ultimately lead to better service
Ms M Mothapo (ANC) said the Minister had said in his overview that the vacancy rate stood at 7% and this is reflects the absence of scarce skills such as psychologists, doctors and social workers. This has a negative impact on the care programme under the DCS and she asked for the Ministers further comment, in light of the Lee judgment and the impact which the vacancy rate will have on the care programme. Secondly, on the rehabilitation programme, she said the Department of Basic Education has set requirements for educational programmes and she would like to know how many programmes are in compliance with these requirements. Further, what the DCS is doing to ensure compliance. Thirdly, regarding the construction of the High Court in Limpopo she said the Committee had conducted an oversight visit and while the construction had nearly been completed, there had been problems with parking facilities for the court. She felt it was the time to deal with this matter, because it will indirectly if not directly impact on access to justice.
Minister Masutha said the vacancy rate is a challenge, especially in corrections. The new retirement dispensation created the problem of people cashing out their pensions with the hope that they will be able to return to the service. This is costly, because the recruitment process costs money and time. On the parking space, the Department is currently in negotiations with the Municipality which owns the land in pursuit of a reasonable price for purchasing this land. This is a lesson in planning for the future, because it should not be the case that once a building is completed it is discovered that the municipal regulations require a certain amount of parking space. Where the land is owned by the very same municipality this makes negotiations for the purchase difficult. He felt the situation was almost resolved, but the Director-General is in a better position to provide recent details.
Mr B Bongo (ANC) said the overview by the Minister gave a general account of what is occurring in two Departments. An issue is that many people in prisons are young people, however the budget is not sufficiently dedicated to the social reintegration programme. He felt the budgetary focus should be on this programme. The Minister had also spoken about the review of the criminal justice system, as the Committee is concerned with radical transformation of this sector he would like a brief on the steps taken and plans in place to enable it to fast track this review. An aspect which the Minister had brought up which he felt was a progressive move was the victim-offender dialogue programme and he wanted to commend the Minister and Department on this. He also asked for the Minister’s comments on the audit outcomes, because the Committee has an interest in knowing what challenges face the Departments. On the OCJ, he felt the creation of a new vote is progressive and will help to ensure issues around the judiciary are resolved.
Minister Masutha said the DCS will have to come with a clear plan on how to maximise the opportunities for young people to enter into the service and recruitment plans need to be focused on this priority. Partly, by ensuring that the training programmes are encouraged with institutions of higher learning for example to attract young people. He believed that with proper marketing is also required. On the victim-offender dialogue programme, he agreed this is an achievement and the DoJ hopes to expand its coverage through things such as video conferences. Speaking about technology he highlighted the new integrated justice system, which seeks to integrate the services and information systems of the various partners in the justice cluster. This will help move the justice system into e-governance in earnest, eliminating some of the inefficiencies such as duplication, although the Director-General would be in a better position to give details. This is despite the Chief Justice having accused the DoJ of “hijacking” this idea from the OCJ. On audit outcomes, he said this is high on the agenda and an internal audit committee has finally been established within the DCS. A selection process has already been conducted for a new Chief Financial Officer and this was positive as the position had been filled in acting capacity. Further, interviews for a new National Director have been conducted. Similarly, in the DoJ Cabinet has approved the appointment of a new Deputy Director General for Constitutional Development, which will go to reduce the vacancy rate in senior management. Therefore the Departments are doing everything possible to fill vacancies in senior management, because it is recognised that it contributes to inefficiencies.
Mr M Maila (ANC) said he appreciated the establishment of various courts, both High and lower courts, but he was concerned about the issue raised by Mr Swart around delays in infrastructure. He encouraged the Department to guide the conclusion of bilateral agreements with the Department of Public Works, to avoid finger pointing. On the realignment of the magisterial boundaries with the municipal boundaries, he felt the DoJ was moving in the right direction and should be commended. A point of concern is the perception of an over-concentration on incarceration at the expense of the rehabilitation and care programmes which is demonstrated in the budget. Moving towards the NDP vision 2030, he would like to know whether the budget trends will change.
Minister Masutha agreed that on average two new courts have been established every year for the past two decades, however the infrastructure lag and the backlog in maintenance are significant. He noted that the age of the infrastructure does not necessarily indicate that it has reached the age of decommissioning. This is exhibited by the High Court in Bloemfontein, where he struggled to find cause for complaint among those populating it. Therefore, things can be done with old infrastructure to keep it in a good state of repair. Despite this he had spoken to the Durban High Court and heard about the Mthatha High Court and hoped that the Director-General would be able to elaborate on these efforts. He had requested the officials to work on these issues in anticipation of the bilateral summit with Public works, including how infrastructure for administration will be resolved. On the focus on incarceration versus rehabilitation and care, he believed there has been a lot of improvement. Having visited a number of facilities good work is being done. Equally, he had picked up that victim consultation is not being done, which leads to many parole applications for life sentence prisoners being denied which is unfair. Therefore, the Ministry has embarked on an effort to ensure that the case management of a prisoner upon initial detention are properly kept, detailing their activities and programmes participated in, so that their profile far in the future outlines how the inmate has responded. As proper record keeping is critical to achieving the goals of rehabilitation and correction required by the new dispensation.
On capacity, the Minister said that the Human Resource model, which deals with centre based versus non-centre based, is being revisited. To deal with human resource related issues including the second phase of the Occupational Specific Dispensation. The estimation is that 60 000 officials are required to properly run the correctional system in South Africa and currently there are approximately 40 000, while the establishment is 42 000. Certain critical skills need to be focused on, to deal with the psycho-social aspects of crime and ensure a new person is released from the correctional facility. There is a need to reduce over-crowding and the remand detention system is being reviewed by the new White Paper which addresses the inter-sectoral nature of remand detention. Remand detainees are people who are awaiting trial and this depends on case flow. This is now the responsibility of the judiciary will hopefully lead to speedy finalisation of cases to avoid people languishing in correctional facilities. If the approximately 40 000 remand detainees are removed, then the inmate population will be at 120 000 which is the existing capacity of the correctional facilities. The fact remains that remandees are a part of the system, meaning that diversion and other means of dealing with minor crimes also become critical. However, this cannot allow for injustice to stand and caution must be had when using extra-judicial means for dealing with crime. The restorative justice system needs to be relied on to remove petty crime from the system, which merely clogs the system. Proper classification is important, because crimes such as robbery should not be trivialised as it is a violent crime.
The Chairperson thanked the Minister for the overview and noted the improvement by the Department of Justice in its audit findings. Particularly, around third party funds and advice has been received from the Auditor General about how to deal with the problem which has historical roots. On issues of independence, drawing from the other comments, she said in the democratic dispensation it is accepted that entities must be independent, but fragmentation must be avoided as coordination becomes a problem. There have been comments about JICS’ independence and questions from the Auditor General about the NPA’s independence and why it reports separately given that it is a programme under the DoJ. An important consideration is how the Departments are responding to the national priorities, particularly the fight against unemployment and poverty, which may be the cause of societal problems such as the defacing of statues. It is important for the Committee to be shown how the Departments are assisting the country in managing these problems.
Minister Masutha apologised for the absence of Deputy Minister of Justice and Constitutional Development Mr John Jeffreys, who was representing South Africa in Quatar at a conference on criminal justice, where the country’s five year report is being presented. The opportunity has been seized to share the achievements of South Africa in this sphere with the world, particularly innovations introduced around crimes which affect the most vulnerable in society, such as domestic violence. He spoke to the issue of how the Departments are responding to the national priorities raised by the Chairperson, which is an important consideration across government. These priorities are articulated in the NDP and various other policy instruments. First, South Africa is a developmental state and it must respond to the socio-economic challenges. The focus must be the bulk of society and this is the youth, which carries the heaviest socio-economic burden. If one considers unemployment, youth is in the lead, similarly if one considers victims and perpetrators of violent crime this is the same. If the nation is to achieve its goal of moving from a developing into a developed country, then it must be ensured that youth are educated, properly raised and have the necessary skills to compete internationally.
Taking the justice sector, the Minister said that there is the challenge of transforming the legal profession which is invariably linked to the transformation of other aspects of the justice system such as the judiciary. It is critical that programmes are implemented to ensure that young people who choose careers in the broader legal profession have access to quality education and where possible financial support. Importantly upon qualification these people are able to enter the profession. Currently he has fourteen applications for silk or senior counsel status and all of these are from white males. This highlights that the issue of race, but also importantly the issue of gender transformation, which both need to be tackled head on in all sectors. At present the big law firms in the country are still completely white dominated. Therefore, lucrative work in the legal profession is still based on historical patterns of unequal distribution of access to opportunities. The Director-General of the DoJ will be able to relate the briefing patterns of the Department through the State Attorney, which has exceeded the 75% target for work going to historically disadvantaged people. However, in his interactions with the professionals in the courts this is not seen and there continue to be legal teams representing government or parastatals either being all white or all male. The previous month the Legal Practice Forum has been launched and nominations onto the Forum were invited. Only four out of nineteen nominations were women. This prompted him in the exercise of his power to appoint to ensure that the two appointments were women and these were in fact African women. He gave these women the opportunity to recommend the chairperson and deputy chairperson. These nominations were for a black male and a white male, he rejected recommendations and appointed one of the two black women as chairperson and the black male who had been nominated as deputy. This was to send the message that the Department is serious about transformation.
The Minister said that the Judicial Service Commission is currently sitting and transformation of the judiciary is being pursued, however for as long as women and black people are not elevated in the profession to receive not only lucrative but complex legal work, this will be an elusive goal. He did not want to go further into efforts into transformation, but there may have to be further amendments to the State Attorneys Act, for example. The created Office of Solicitor General provided leadership in state litigation and the provision of state legal services by ensuring there is someone powerful enough to drive transformation, by among other things improvement in briefing patterns. However, the efforts cannot be confined to state legal work and must tackle the transformation of private legal practice, using incentives and other strategies. The state litigation account needs to be consolidated, to ensure that government departments do not do their own thing, because successful legal professionals tend to become overwhelmed with work and government is usually the victim of this. The state has been losing a lot of cases for various reasons, but a lot can be improved by ensuring that the services procured by the state from private legal practitioners is decent. He agreed with the Chairperson’s stance on independence, because from who or what are the institutions being independent, as this can lead to fractionalisation. Therefore, there needs to be a differentiation between independence in the discharge of one’s legal obligations and administrative independence. This is demonstrated by the independence of the courts, even before the introduction of the OCJ. Similarly, Legal Aid South Africa has always operated independently under DoJ and no complaint has been received.
The Chairperson thanked the Minister for the comprehensive response and welcomed the idea of the colloquium to deal with the accountability of the OCJ and the nature of the separation of powers between the three arms of state. The Chairperson then declared the meeting adjourned.
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