The Department of Justice and Constitutional Development (the Department) briefed the Committee on its strategic plan for 2015/20 and the budget allocation. The overall Medium Term Expenditure Framework budget allocation for 2015/16 was over R16.864 billion. This was a 2.5% year on year growth. Due to the current economic climate the Department had received a below inflationary rate increase in budget. This was a result of a cut in the previous MTEF indicative allocations.
Areas of spending pressures highlighted during the 2014 budget process included maintenance of security infrastructure; the introduction of paralegals into Regional and District Courts; the Small Claims Court re-engineering programme and the technical capacity within the Department to fast track projects to be implemented by the Department of Public Works. Areas were highlighted as possible hurdles that could affect the delivery of the strategic plan. These were that the state of courts were susceptible to fires, courts were at risk of service delivery protests and there was a dependency on other State departments to achieve some objectives.
Questions raised during the discussion period dealt with transformation and the enhancement of human rights, particularly the access to justice for the illiterate, women, children and people with disabilities. Members wanted to know who was responsible for compiling the country reports proving adherence to the various international treaties, and where these reports were made. One Member commented that it seemed that there was more focus on the rights of inmates in correctional centres than the rights of women, children and vulnerable groups.
The ANC also asked if there was going to be more of a focus on indigenous languages in the courts as this also hindered some peoples’ rights to access justice. Other issues raised were on the Legal Practice Bill and the Traditional Courts Bill. The ANC said it was not happy with the curriculum at universities which behaved like a law unto themselves. The inclusion of African law in the curriculum was proffered as one solution, as was also the suggestion that nobody be permitted to graduate without having at least one African language. The Department was criticised for failing to provide its concept paper on the Traditional Courts Bill and on community courts. The Chairperson said the delay in passing the Traditional Courts Bill had created undue pressure on the traditional courts and risked them being discredited. Questions were also raised when new bills dealing with paralegals and community-based paralegal support centres were likely to be introduced. Members also questioned what the status was of transformation and why it was not addressed in the presentation and wondered if the recent unrest was an indicator that the profession and the courts were not sufficiently transformed. The Department was asked whether there were any defined civic education programmes accessible to the people, and wondered why no Public Interest programme had been produced.
Members asked that the Department should address the placement of courts, since people were still having to travel far to have their matters heard. They wondered if the Small Claims Courts could not take some of the load off the Magistrate's Courts.
They commented that there were still complaints about discrepancy in pay between prosecutors and magistrates and asked whether the Occupation Specific Dispensation in the Courts had been sorted out. One Member noted specific complaints from parole officers, that judgments were not available online, and the Master's Office in Mtatha, and the question was asked whether Small Claims Courts might not operate from mobile offices. Some Small Claims Courts were criticised as not being user-friendly, and there was also a problem with accessibility of the Sheriffs' offices. The comment was made that new legislation to address cyber crime was most urgent, and the allocation for promoting the Constitution must be used most effectively. More details were requested on the Alternative Judicial Framework, the progress of the Integrated Justice System, the Truth and Reconciliation Commission, how many candidates the Department was employing from disadvantaged communities, and what was being achieved by established law firms. The Department was asked to submit written responses at the meeting on the following day.
Department of Justice and Constitutional Development Strategic Plan 2015 to 2020
Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development (the Department) noted that two days was set aside in the Committee programme for the presentation, and asked how much detail she should go into.
Mr L Mpumlwana (ANC) asked that the Department run through as fast as it could and maybe finish on the day.
Mr S Swart (ACDP) said he would have to leave by 4pm but was confident that the discussions would be concluded by the middle of the following day.
The Chairperson said the Department should take as long as it needed and urged that it not leave anything out that South Africans would want to hear.
Ms Sindane proceeded to the presentation (see attached document for full details).
She firstly outlined the mandates; mission and vision and then moved on to highlight the strategic goals.
Under the section dealing with implementation of key legislation, Ms Sindane discussed the Constitution 17th Amendment / Superior Courts Act, which had set out the steps for transfer of functions to the Office of the Chief Justice (OCJ). The implementation would make the Chief Justice (CJ) the Head of an independent judiciary. From 1 April 2015, the judiciary and identified support staff (approximately 2 240 in number) formally reported to the Office of the Chief Justice. The budget of R1.6 billion, primarily from Court Services, became the responsibility of that Office of the Chief Justice.
Ms Sindane indicated that the budget clearly took into account work needed by the Branch: Court Services but it had not taken in to account the budget cuts.
The status of the Legal Practice Act was also outlined. In terms of policies and related initiatives, a budget of R14.784 million had been approved for the transformation of state legal services for 2015/16.
The overall Medium Term Expenditure Framework budget allocation for 2015/16 was over R16.864 billion. This was a 2.5% year on year growth. Due to the current economic climate the Department had received a below-inflationary rate increase in budget. This was a result of a cut in the previous MTEF indicative allocations.
The breakdown of budget was described as follows: Remuneration, R74 million; Goods and Services, R95.2 million; Capital R29 million and Departmental agencies R70.5 million for the 2015/16 financial year.
Areas of spending pressures during the 2014 budget process were:
- Maintenance of security infrastructure in the developmental service;
- Introduction of paralegals in Regional and District Courts;
- Introduction of mediators, according to the Draft Rules on mediation, under the Magistrate's Court Act
- The Small Claims Court re-engineering programme;
- Technical capacity within the Department to fast track projects to be implemented by the Department of Public Works (DPW)
- The rollout of the protection of Personal Information Regulator.
Ms Sindane outlined three crucial risks that may affect the delivery of the strategic plan.
- The state of the courts and other facilities were susceptible to fires and other interruptions;
- Service delivery protests remained a risk, particularly when property was damaged
- Dependencies on partner departments and entities in the delivery of objectives such as the need to decrease cases on the Backlog Roll, the need to implement the 28 key performance indicators project for the Integrated Justice System (IJS), and infrastructure development, including ICT.
She indicated that some changes had been made. The strategic objectives in the Strategic Plan and the Annual Performance Plan were aligned with the National Development Plan and the Medium Term Strategic Framework. SMART indicators had been formulated for the strategic objectives, to enable evaluation at the end of the Medium Term Strategic Framework (MTSF) period. Budget had been made available to perform against the Plan, and in some instances allocations had been increased substantially, through reprioritisation of activities.
She noted that the Department would broadly continue to deliver on its legislative mandates, with a particular emphasis on certain issues, which were:
- implementing a plan to improve the Offices of State Attorneys
- building capacity, in the form of people and systems, to improve service delivery, with a particular focus on youth
- ensuring discipline within the Department
- fighting fraud and corruption.
The Chairperson made some observations before opening the floor to questions from Members. The Committee was not a talk shop or a consultative workshop where the views were irrelevant. Last year, it had made recommendations which were presented to the House. It was expected that when the Department returned it would also tell the Members what had it done or what it was doing with recommendations of 2014. The Committee had said during the last year that for 20 years government had been busy with the transformation of the judiciary, and that was going very well. This time, the Committee wanted to deal with the legal profession in its entirety.
Speaking to the Legal Practice Bill, Dr Motshekga said he was not happy with the curriculum at universities, where people seemed to "be performing at will". He felt that this was not acceptable. He questioned where, in the curriculum, was African law included and stressed that there must be a focus on all people getting access to justice.
The Traditional Courts Bill was something the whole country was waiting for. The failure to pass the Bill was putting undue pressure on traditional courts, which risked being discredited. Last year, the Committee was told there was a concept paper, but nothing further had been heard on it. He also noted that there was nothing in the presentation about Community Courts.
When Members had discussed the Legal Practice Bill the issue of paralegals had been raised, and at the time the Department had suggested that Members should not worry too much about it as a new Bill would be introduced to deal with this issue specifically. The same was true when they had raised questions about community-based paralegal support centres, so he was particularly disappointed to see nothing specific on those points.
The Chairperson also asked about the latest reports from the entities. What contribution were they making to the desired transformation and the enforcement of human rights? Last year, forms of racism were discussed, and he wondered where was the Department now in addressing that? The country was facing racism at schools and universities, there was religious intolerance and now there was xenophobia. These indicated that people did not understand the Constitution and the rights of people. This could be an indication that the Department’s project was non-existent.
When the issue of social justice was talked about; the concept of Ubuntu being unpacked might help people to better understand and internalise it.
The Chairperson was concerned that the presentation on Programme 4 had not made it clear that anything much was being done. It was not clear that there was a defined civic education programme that was accessible to the people. There was also not much indication that the Department was giving any real support to the structure which encompassed the best interests of children in the system.
He said he did not see a clear link between the Department and the people and questioned what impact had been made? The Committee had also emphasised the importance of Public Interest law last year. It did not appear anywhere in the presentation. The Committee had expected a costed programme of action.
The Chairperson also said that the Department had also spoken about international participation. There was, however, no mention of the African Charter on Human and People’s Rights and the African Commission on Rights, and whether those structures had any relationship with South Africa.
He said the Department had claimed that it was not true that legal practitioners did not get work from the Department. There was an article in the Cape Times titled ‘Advocates fight for transformation’. A person said he had been protesting for weeks and the protest would end at the end of the month. He also referred to a report from the Centre for Applied Legal Studies which said that briefs were still only going to the "mainline" firms or individuals. If the reports of the discussions did not directly relate to what people perceived or were seeing on the ground then it meant there was a gap between Parliament and the people, and there was a risk that the Committee would be regarded as irrelevant to the people’s causes.
Mr L Mpumlwana (ANC) said he was impressed generally on the whole about the work being done by the Department and he was pleased that there were "good brains" running the Department. He commented that it was trying to cover a lot of ground.
He suggested that the Department look at the proximity of the courts to the people, particularly in the rural areas, and the alignment with municipal boundaries. Sometimes people might have to pass right by one court to get to their designated district where their matters were to be heard.
Mr Mpumlwana asked the Department to elaborate on the difference between the Solicitor General and the Head of the National Prosecuting Authority.
Mr Mpumlwana asked for clarity on the roles of legal practitioners in court and asked who was responding for creating those roles, and amending them,n and where the responsibility for policy - and indeed what was a matter of policy - lay.
Mr Mpumlwana noted that some magistrates had been complaining that they were being paid less than prosecutors.
He congratulated the Department for trying to minimise the period of postponements, commenting that in the past some people had waited for five years to have their matters heard.
Mr Mpumlwana suggested that, in relation to the assistance for victims; perhaps the Department could consider working with the Department of Social Development to help the victims, particularly children.
Mr Mpumlwana questioned why government was employing lawyers internally, whose duty it was to employ other lawyers to run the cases, and saw this as a problem. He wondered if this did not create scope for corruption, commenting that although this was not a problem common to all lawyers, it might well apply to a few.
Mr Mpumlwana noted that he had recently received a complaint from a person whose shop and house were destroyed by the security police at time of the liberation. Nothing had been done. He had been to the Truth and Reconciliation Commission yet claimed that he had never been compensated in any way.
Mr Mpumlwana said that there was still a problem that related to the Department of Correctional Services also, that when people applied for parole, officials were having to look for the sentence and judgment, sometimes with huge delays. He wondered when the judgments could be automatically scanned in to the system.
Mr Mpumlwana noted that there had been complaints about the Masters Office in Mthatha. The first was from the Auditor-General, that noted that the state of building was that it was both old and it was unsafe. The second was that there was no storage space for old files. The third was that job evaluations were not done in in Bisho and Mthatha but were done in Port Elizabeth and Grahamstown. He asked for comment on this point.
Mr M Maila (ANC) said the Department had not highlighted transformation in the presentation, and he wondered if this was an indication that the Department felt it might have reached the desired level? His feelings were that this was not the case and there was still more to do.
Mr Maila said there had been mention of the appointment of a consultant to create a national forum. When this decision was reached, was it because of an assessment that officials did not have the capacity to do what they were appointed to do. In future, he felt that the appointment of consultants should lessen.
Mr Maila appreciated the vision to have a Small Claims Court in every municipality to increase access the justice, but pointed out that rural areas were very vast. He wondered if it might be possible to have one at the centre of a municipality and have another mobile court that went to the other areas.
Mr T Bongo (ANC) asked about cyber-crime. Government had to "move at the speed of a mirage jet" in coming up with legislation to address this. There was an allocation of R73 million for promoting the Constitution, he wanted to see more being done.
He asked for a turnaround strategy for the Masters Office. There were cases that lasted for two; three and five years.
Mr Bongo asked what the re-engineering of the Small Claims Courts entailed. He commented that it was quite possible that it could lift off a number of cases from other courts.
Mr Bongo wanted more details on the youth employment and youth programmes. Noting that there were a lot of law graduates in the country, he wondered how these programmes might address their employability. He also asked the Department to provide a clear breakdown of black males who had been given work. He commented that the country needed to create capacity to have more judges in the future and this had to be accelerated.
Ms C Pilane-Majake (ANC) said the Department’s mandate was very broad and efforts to implement it with the challenges was appreciated.
She said it had been indicated that the MTSF was in November. She was concerned that the Department was getting its budget now, but only planning later, when surely this should be done the other way around? The Committee did not get a proper opportunity to hear all the ideas and make the necessary adjustments.
Ms Pilane-Majake said there were some Small Claims Courts that were not user friendly. It was a process set in place that could be done by ordinary people who were literate, but it was much harder for those who were illiterate. She questioned whether this was something that the Department was looking into? She added that Sheriffs’ offices were also in some obscure places which were difficult to access.
She asked for more details on the Alternative Judicial Framework.
She commented that the Department looked like it was really trying hard on its youth programmes. However, she voiced concern that the IJS was being implemented so slowly and commented that she would like to see this being fast-tracked.
Ms Pilane-Majake urged that there should be a move to assisting more women with legal aid.
She agreed with previous commentators that there had been complaints about the Truth and Reconciliation Commission. It looked and felt like everything was in order, from the presentation, and she asked if indeed everything was resolved?
Ms Pilane-Majake asked about country reports. This had to do with a number of international human rights treaties. She asked how many there were, and who were the reports being made to in each case - the SADC, the AU or the UN.
Ms G Breytenbach (DA) asked how the Occupation Specific Dispensation was progressing and what the position was currently.
Mr Mpumlwana asked how far the Department was with African languages being used in courts. Justice would be served better if an African language was used.
The Chairperson said Parliament had agreed with President Jacob Zuma that transformation was needed in all Departments. He asked that this Department must convince Members that this was being done. He referred to Mr Mpumlwana’s question. If courts were functioning well on the surface, but consumers could not understand what the judges, magistrates and lawyers were saying, then one could not talk about access to justice. Language was critical. he wondered if perhaps the Committee needed to have a discussion about only granting law degrees to people who had at least one African indigenous language.
He wanted to know more about the established law firms, and candidates who had graduated getting work, and asked if the Department would be able to provide information on how many law clerks they had employed from disadvantaged communities.
The Department had presented how Legal Aid South Africa could pick up how many people were arrested so services could be provided immediately. However, there was nothing that specified what was being done for women, children and people with disabilities. Those were the vulnerable people. He stressed that although those arrested were of course protected by the Constitution, their rights could not supercede those of women, children and people with disabilities.
The Chairperson suggested that, seeing the Department had been making copious notes on the questions posed, it might be more useful for it to respond in writing. He suggested that the written replies should be submitted on the following day, and this might contribute to proceedings going forward.
The Chairperson agreed with other Members that the mandate of the Department was indeed broad. Any input and criticism by Members should be taken as a reminder that the Department could and should strive to do more.
The meeting was adjourned.
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