Department of Justice and Constitutional Development 1st Quarter 2015/16 performance

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Justice and Correctional Services

02 September 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development said the key highlights for the First Quarter of 2015/16 included: the extension of its services at municipal buildings in Hermanus, George and Stellenbosch which became additional seats for magistrates courts; a total of 44 988 criminal court cases were finalised through alternative dispute resolution mechanisms at lower courts; 50 operational Thuthuzela Care Centres provided services in line with the verification criteria; the recovery of R84.4 million in terms of the Prevention of Organised Crime Act. Challenges for the Department included: continued underspending on infrastructure; inability to attract suitable candidates with specialised skills in the labour market; underperformance on software development for the Integrated Justice System (IJS) and Criminal Justice System Review (CJSR) projects as a result of the State Information Technology Agency (SITA); vacancies in senior management posts such as Deputy Director General: Constitutional Development and Chief Director: Facilities Management; and challenges with the investigating capacity on certain cases in the South African Police Force lead to difficulties achieving prosecutorial targets. Overall the Department achieved 51 of 68 key performance indicators (KPIs) reported on, the bulk being in Programme 3 State Legal Services (seven out of 16 indicators not achieved) and Programme 4 National Prosecuting Authority (seven out of 21 KPIs not achieved). Under Programme 2: Court Services all nine KPIs were achieved.

Ms Nonkululeko Sindane, Director General Department of Justice and Constitutional Development, then spoke to some matters which were not included in the Report, including the restructuring of the National Prosecuting Authority (NPA), including the placement of Dr Silas Ramaite, NPA Deputy National Director of Public Prosecutions, as head of corporate services. Further, that the reporting of the NPA, aside from reporting on prosecutorial functions, has been integrated with that of the Department following warnings from the Auditor-General. Work has been ongoing on those areas which the Committee had previously raised on the Department’s strategic documents including the Traditional Courts Policy Framework and the Traditional Courts Bill; the importance of paralegals; the finalisation of the Superior Courts and Lower Courts regulatory frameworks. These were however long term projects which the Department would come before the Committee to report on, but at present the work was going on behind the scenes.

The discussion saw Members focus on matters which were not reported on specifically in the Quarterly Report, including the progress with the Traditional Courts Bill, the state of the paralegal profession, the problems with the Integrated Justice System and Criminal Justice System Review and the areas of underperformance by the National Prosecuting Authority.

The Department’s responses noted that the Traditional Courts Bill was not undergoing further policy development, rather the historical information on the Bill was being compiled in anticipation of tabling in Parliament to ensure the previous pitfalls were avoided. While there were some problems with the organisations representing the paralegal profession, legislation was being drafted to regulate the industry. On the problems with the Integrated Justice System and other information technology projects, while planning approval by National Treasury had taken place late in the year, which compounded the problems with SITA invoicing the Department late, the development of the systems was underway, contrary to what was indicated by the underspending in the programme. On the NPA, there were complexities involved in cases of organised crime and corruption involving R5 million or more and the well-resourced accused could exploit these complexities.

Other discussion topics included the slow pace of transformation in the legal sector, the importance of briefing patterns by government, work done by the Legal Practice Forum following the promulgation of the Legal Practice Act in February 2015, the status of Chapter Nine Institutions and the need to have more consistent reporting by institutions, particularly the Public Protector, including the potential for the governing legislation to be amended.

Meeting report

Briefing on the Departmental First Quarter Performance Report
Ms Nonkululeko Sindane, Director General: Department of Justice and Constitutional Development (DOJCD), said in line with the Department’s empowerment objectives it has decided to allow Ms Lebogang Mphahlele-Ntsasa, DOJCD Chief Director: Strategy, Monitoring and Evaluation, to lead the presentation.

Ms Mphahlele-Ntsasa noted the Department’s four strategic goals: an efficient, effective and development orientated administration, improved administration support to the justice system enabling efficient resolution of cases, provision of quality legal services that strengthen capacity to the state, promote constitutionalism and social justice to contribute to social cohesion, and improved prosecution services.

Ms Mphahlele-Ntsasa said the key highlights for the Department included: the extension of its services at municipal buildings in Hermanus, George and Stellenbosch which became additional seats for magistrates courts; a total of 44 988 criminal court cases were finalised through alternative dispute resolution mechanisms at lower courts; 50 operational Thuthuzela Care Centres provided services in line with the verification criteria; and the recovery of R84.4 million in terms of the Prevention of Organised Crime Act.

Ms Mphahlele-Ntsasa said the challenges for the Department included: continued underspending on infrastructure; inability to attract suitable candidates with specialised skills in the labour market; underperformance on software development for the Integrated Justice System (IJS) and Criminal Justice System Review (CJSR) projects as a result of the State Information Technology Agency (SITA); vacancies in senior management posts such as Deputy Director General Constitutional Development and Chief Director Facilities Management; and challenges with the investigating capacity regarding certain cases in the South African Police Force lead to difficulties achieving prosecutorial targets.

Ms Mphahlele-Ntsasa said overall the Department achieved 51 of 68 key performance indicators (KPIs) reported on, the bulk being in Programmes 3 and 4 State Legal Services and National Prosecuting Authority. Of the 16 indicators under State Legal Services, seven were not achieved. Under the National Prosecuting Authority there were 21 KPIs of which seven were not achieved. Under Programme 2: Court Services all nine KPIs were achieved.

Programme 1: Administration
Ms Mphahlele-Ntsasa said the programme had a total budget of R1.9 billion, while expenditure at the end of the quarter was at R200.6 million. The reason for this is that spending on office accommodation is not where it ought to be. Partially because the Department is determining the invoices which it ought to pay and further because of challenges in dealing with the Department of Public Works (DPW). An area of underperformance was in the number of audit projects completed by Internal Audit. Which had a target of 71, but an output of 41. This is due to the unplanned audit which had to be completed before the audit by the Auditor General, but it is expected to have been corrected by the end of the second quarter.

Programme 2: Court Services
Ms Mphahlele-Ntsasa said the expenditure for the first quarter was on track, with R1.3 billion of the total R5.5 billion budget spent. This translates to a 23% spend, which is in line with expectations for the first quarter. There were no areas of underperformance for this programme

Programme 3: State Legal Services
Ms Mphahlele-Ntsasa said the expenditure here was at 21% of the total allocation of R1 billion, but the only area where spending is lagging under this programme is Constitutional Development which only spent 11% of its budget. This was due to the vacant posts in that directorate, however the DOJCD is working towards filling the posts and spending should normalise once that is done.        

Ms Mphahlele-Ntsasa moved on to the areas of underperformance for the programme:
- the percentage of letters of appointment issued in deceased estates within 15 days from the receipt of all documentation which relates to the Masters Office had a target of 95%, but an output of 93%.
- the percentage of beneficiaries in receipt of services within 40 days from receipt of all required documents for Guardian’s Fund applications had a target of 92%, but an output of 89%.
These two problems located in the Masters Office are due to teething problems in the implementation of electronic and paperless processing. However, plans are in place to improve performance.
- percentage of certificates of appointment issued in all bankruptcy matters within 10 days from receipt of all required documents had a target of 87%, with an output of 86%.
- percentage of liquidation and distribution accounts in bankruptcy matters examined within 15 days from receipt of all required documents had a target of 96% and an output of 95%. The variance was small and therefore the Department was not too concerned about the targets not being met.
- the number of people reached through awareness campaigns on popularising socio-economic rights had a target of 1.15 million, with an output of 462 590.
- number of municipalities which participated in National Action Plan Dialogues had a target of 20, but only two have been achieved. The Department was confident that despite the slow start the financial year’s target would be reached. advocacy has been an area where the Department has managed to meet its targets without too much difficulty.
- needs analysis completed in TRC listed communities had a target of 1, but had an output of 0. This was due to delays in engagements requested by the identified community, but this had been scheduled.

Programme 4: National Prosecuting Authority
Ms Mphahlele-Ntsasa said the total budget for this programme was R3.3 billion, with expenditure for the first quarter at R811.9 million which is 24%. She wanted to note some achievements for the programme, as it is of interest to the public. Regarding cybercrime, which has been an area where convictions have been difficult to secure, the target for the quarter was 74% and the National Prosecuting Authority (NPA) had a conviction rate of 96%/ Further, the number of government officials convicted of corruption had a target of 22 and 30 convictions have been achieved. Lastly, the amount of money recovered from government officials involved in fraud and corruption had a target of R36000 and R269103 has been recovered.

Ms Mphahlele-Ntsasa then moved on to the areas of underperformance:
- Under number of criminal court cases finalised with a verdict in the lower courts, the target for the quarter was 81 624, however only 77 772 were finalised.
- For conviction rate in organised crime had a target of 90%, with an output of 87.7%.
The issues here included a reduction in the inflow of cases and court utilisation impacting negatively. Further, the complexity of organised crime cases and the reliability of witnesses impact on the conviction rate.
- Conviction rate for complex commercial crimes had a target of 93% (232), with an output of 91.6% (197).
- Number of persons convicted of corruption or offences related to corruption where the amount benefited is more than R5 million had a target of 5, but no convictions were achieved. The underperformance relates to the complexity of the matters and delays in the court cases, because the accused persons in these cases have the means to employ various delay tactics.
- Percentage of cases reported at a TCC that is referred to a court for prosecution had a target of 51% and the output was 42.6%. A substantial number of non-arrest dockets contributed to underperformance, but the NPA plans to engage stakeholders to address performance.
- Percentage of witnesses and related persons that walked off the witness protection programme had a target of 0%, but 0.4% (two people) walked off without informing the NPA.

Programme 5: Auxiliary and Associated Services
Ms Mphahlele-Ntsasa said there was underspending under this programme. The budget was R976.4 million and only 5% was spent in the first quarter. The underspending was due to slow progress with the implementation of the IJS and CJSR projects, with the late submission of invoices by SITA.

Ms Mphahlele-Ntsasa said the Department is meant to ensure that its Integrated Case Management System (ICMS) are integrated with the IJS. The target for the quarter was 12%, but there was no performance. Unfortunately this programme has been delayed somewhat in quarter one, due to issues with developing the third party funds system. The Department is confident that by the end of the financial year the performance will be corrected. The number of criminal cases postponed via the audio visual remand system was targeted for 3000 and the output for the quarter was 2101. This is important for the Department, because it means that remand detainees do not have to be transported to court. There were problems of underutilisation and with the system itself, however the Department continues to engage with stakeholders towards the required performance by the end of the financial year.

In conclusion Ms Mphahlele-Ntsasa said the Department holds performance executive committees to track performance against the Annual Performance Plan. The Department hopes that through these efforts it will be able to present a good Annual Report.

Ms Sindane said for the first time the DOJCD is reporting without the Office of the Chief Justice (OCJ), except in areas of shared responsibility. Further, she wanted to report to Parliament that Justice Skweyiya had died and as issues develop within the family she was sure the Chairperson and the Committee would be informed of the arrangements. Secondly, given the fact that the current National Prosecuting Authority Act makes the NPA part of the DOJCD, aside from the prosecutorial services. The NPA therefore reported under the DOJCD’s budget vote, although separately. Partly because of historical reasons and further, because the NPA’s financial administration was experiencing problems. The NPA has improved and it is now more practical to combine some elements of reporting. What will not happen is for the DOJCD to deal with the responsibilities of the National Director of Public Prosecutions to come to Parliament in their own capacity to present the NPA’s strategy and related issues. Another development is the restructuring which has happened within the NPA in the recent past and she would not speak to this aside from indicating how it has impacted the DOJCD. Dr Silas Ramaite, Deputy National Director of Public Prosecutions NPA, has been tasked with being responsible for the Corporate Services aspect of the NPA and in this regard he has delegations from herself to deal with the prosecutorial support functions for the NPA. He was therefore present to give a voice to the implementation of the NPA’s corporate services strategy and align the NPA’s expenditure with that of the DOJCD, towards combining the Annual Reports of the Department and NPA. These were two major governance developments in the year to date, but to sincerely round off the report she said the Department generally performs around the same levels at this point in the financial year. However, the performance may have been stunted by the abovementioned changes. Hopefully, in the next few quarters the matters would be consolidated and performance be at the required level by year end.

Ms Sindane said there is specific attention being paid to the state attorney’s briefing patterns throughout government and briefings are being conducted across government on how to approach the state attorneys for whatever support may be needed. The Department would like to come to the House in the future to share these developments in detail. Further, when the Department had been before the Committee to present its strategic documents a specific concerns were raised around the Traditional Courts Policy Framework and the Traditional Courts Bill; the importance of paralegals; the finalisation of the Superior Courts and Lower Courts regulatory frameworks. These are long term projects which the Department will come before the Committee to report on, but at present the work is going on behind the scenes. Once the projects have gone through the internal governance structures the Department will be able to report on the specifics. She said this to ensure Members did not think the concerns were ignored because they were not in the present report.

Discussion
The Chairperson said he felt the report was well put together and confidently presented, but the issues raised may lead one to think that the Department is usurping the powers of Parliament; as the Department initiates legislation which is processed through Parliament. However, there is nothing stopping Parliament from initiating legislation. Parliament represents the majority of the people in the country, who are affected by traditional courts which are operating outside the law and the Constitution. It has been raised with the Department’s principals that Members do not agree with the need for a concept paper or that the Bill should waste any more time in government, because Members are convinced that the people who are opposed to that Bill have never been to a rural area, do not speak the language and have never been to any traditional court. The people of the country cannot be held hostage by intellectuals seated in the big cities. Members therefore requested that the Bill be tabled in Parliament, so that it can be the business of Parliament. Then if there is a need for further consultation Parliament will deal with it. On the question of paralegals, many conferences have been held regarding the issue, but he found that progress is being impeded by the paralegal organisations themselves which are caught up in their own differences. However, the paralegal profession is not there to serve the interests of these organisations, but the needs of the people for access to justice. He warned that in the following year everyone will be concerned with local government elections and then soon after other elections, which may lead to little being achieved in the upcoming term. The time at hand therefore must be used to speed up processes. He was concerned that Ms Sindane had not referred to the Insolvency Act regulations and asked for a update.

Ms Sindane said the concerns about the approach of the Department are noted and this will be addressed. On the Insolvency legislation and regulations, Members would recall that there had been litigation against the new insolvency policy which was to guide legislation. Unfortunately, the Department lost the case and the Supreme Court of Appeal has been approached. The point of difference was the difference in the understanding of previously disadvantaged individuals and BEE regarding the Insolvency Act. Therefore, the Department has had to go back to the drawing board in light of the appeal decision. The Department is not reworking the entire insolvency policy or regulations and only the affected aspects would be receiving attention. However, the work on the ground is on-going and a lot has been done towards vetting the insolvency practitioners. With new mechanisms being introduced to evaluate the people who must form part of the panels. This has been done and everyone who wanted to be involved had to reregister to consolidate the database. The Department had aimed to be rolling out the policy by the end of April 2015, but with the limitation it had to look into the court decision and see how it can go about implementing some of the things directed.

Adv Jacob Skosana, Chief Director: Judicial Policy Directorate DOJCD, said the Departments have brought the need to table legislation on the Traditional Courts Bill, along with the required timeframes. He wanted to allay the fears of the House, because the process being undertaken is not a policy formulation process. It is not a discussion document, rather it looks at the history of the legislation to ensure it is viewed in the context of what has happened already. It is felt that this information would enrich the process of engagement of the Bill, to ensure it is not held back unnecessarily.

The Chairperson asked what the timeframes mentioned are.

Adv Skosana said following the interaction between the Chairperson and the Minister the Department has been instructed to introduce the Bill before the end of the year. The Department is not reengaging with the policy process, the Bill is being drafted. However, the Minister wants to present a narrative of the history to the House and Cabinet, to ensure that the same traps are not fallen into again.

The Chairperson thanked Adv Skosana for the information, because at times if Members are not informed they tend to think things are not happening.

Ms C Pilane-Majake (ANC) on law making processes, said it is important that when the Department deals with amendments that it should brief the Committee on why the amendments are being made. To ensure Members are not just confronted with a Bill, but understand the need for the amendments. On the quarterly report itself, she wanted to know if other entities such as the South African Human Rights were taken into consideration. Mindful of these institutions’ constitutional independence, but their budget falls within the DOJCD’s budget. It is therefore important for them to indicate where they are with spending. She was worried by the continued underperforming regarding software development as this was across the board in the Department and the Department of Correctional Services. Particularly, as there are efforts which are not coming to fruition, because of the underperformances regarding software. The IJs programme is underperforming and she recalled that the previous year the budget was not spent. The problems need to be put under a magnifying glass, to determine where the issues lie. The Magistrates Commission has underperformed by 15% and she asked for clarity on what this was caused by. She also had a concern about the large number of vacancies which the Magistrates Commission had, because she believed they had something like 300 vacancies. The Thuthuzela Care Centres’ performance is at 42.6% and she had gone past one recently, causing her to wonder whether they are being properly taken care of. She wanted to know who was directly responsible for them within the Department and whether they were getting attention. Further, why would people walk off the witness protection programme in such a crime riddled country? The two instances should be reviewed to learn what went wrong and whether the people continued to be witnesses after the walk off.

Mr W Horn (DA) said aside from what Ms Pilane-Majake had mentioned about software, another “recurring nightmare” when the Department is before the Committee is infrastructure underspending. Perhaps as the Department keeps reporting it, the Committee should keep indicating that it is not good enough. On page 24 of the presentation mention is made of corrective actions being put in place where necessary and the question must be asked what actions have been put in place. As SITA and DPW are consistently cited as the source of irritation, but solutions are really what is sought. On page 18 of the briefings, it is indicated how many criminal court cases were finalised with a verdict which was underperformed on. While the Auditor General may have a big focus on targets, perhaps a better way to look at the matter is how many cases entered the system. Therefore, he asked for information as to what caused the underperformance and whether delays or postponements lie at the root of the problem. If so then the Efficiency Enhancement Committees reported on by the Office of the Chief justice are not performing well. Regarding the 87.7% conviction rate in organised crime, as the Department rightly indicates that these are complex cases he would like to know what the number of cases handled were. Further, he asked for the same regarding the cases dealing with corruption or offences related to corruption where the amount benefited is more than R5 million. In the past there has been underperformance regrind this KPI, but all of a sudden there is overachievement in one quarter. Lastly, the restructuring of the NPA spoken of by the Director General and the fact that it has had an impact on the performance of the Department and possibly the NPA. He wanted to know how much the Department was involved in the restructuring process. This is a difficult situation, but is Dr Ramaite who is a doctor of law, senior counsel and has headed up specialised prosecutorial units is best utilised as the head of corporate services.

Ms M Mothapo (ANC) thanked the Department for bringing such a strong delegation, 80% of whom were women. On the Traditional Courts Bill, said the process has been dragging on for some time and traditional communities are angry about delays. Further, they are saying that Parliament does not want to pass the Bill. Therefore, she personally pleaded with Adv Skosana’s directorate to speed up the production of the Bill. If the Bill were to be before the Committee by November, that would at least be something. She wanted to emphasise that at present sections 12 and 20 of the Black Administration Act were in force, when traditional courts summon community members who subsequently refuse to appear they are in a very difficult position. Therefore, the process must be expedited so that traditional communities may have access to justice. As mentioned by Ms Pilane-Majake there was a high vacancy rate within the magistracy and the last time it was said that positions for magistrates were advertised. She therefore, wanted an update on how far the Department was at present. Further, the scarce skills such as interpreters and language practitioners vacancy rate has increased. There has been an allocation of R76 million to the NPA for the IJS and CJS review projects. However, in the first quarter it has not been spent. Further, with the modernisation of the Department’s systems there was a budget of R976.4 million and yet only 5% was spent in the first quarter.

The Chairperson said the Committee consists of Members from different parties, some of which will be going to their national general conferences before long. The question of transformation in various sectors has become a huge problem. He feared that without addressing transformation quickly the government’s good work may be overshadowed by politics, because politicians would focus only on one or two things, rubbishing the rest. For example he had met some advocates from the Cape Bar and the picture which they paint suggests that there are problems with the transformation of the legal profession. He had seen a press release which says these are problems in the bar councils. If this is so how is it affecting not only the handful of black advocates, but the students at university. He therefore felt that the Department should be called upon to look into this matter, because what has been done so far is to allow people in charge of certain institutions to have veto powers over their transformation. Yet transformation is a constitutional imperative and people cannot be begged to transform, when the Constitution mandates it. He was aware that even before 1994 there were countries willing to train young South Africans and perhaps this should be pursued, because he did not understand how a country with 33 universities could not produce enough people to fill these vacant posts. This must be due to “gatekeepers” somewhere and therefore ways around them need to be found.

Dr Silas Ramaite, Deputy National Director of Public Prosecutions NPA, assured Mr Horn that he was still a career prosecutor. Fortunately, he had come to accept that he was one who was unlikely to spend more than 80% of their time not in court, but providing strategic direction to prosecutors. On the Thuthuzela Care Centres (TCCs), the responsibility lies with the Sexual Offences and Committee Affairs Unit to establish them and ensure they comply with the minimum standards. However, once they are established it becomes the joint responsibility of the South African Police Service (SAPS), the Department of Health and Department of Social Services. Managing this relationship is where the problem lies once the TCCs are established. Obviously, efforts are made to ensure that the minimum standards are maintained. On the problem of non-arrest dockets are produced at TCCs, this is when a crime is reported and yet no arrest is made, while the victim has been processed by the TCC. The opening of a docket cannot be waited for as the victim must be at the TCC as soon as possible. This is a gap which is being addressed with the SAPS and other stakeholders. On the walk offs from the witness protection programme, the Office does not provide 24 hour security and is only provided when necessary as determined by the protectors themselves. The walk offs are not by the witnesses themselves, they are in the main relatives or related persons of the witness. In such instances it is difficult to control the movements of such a person. Once a related person is listed as a protected witness, they are treated as such regardless of the fact that they are not a witness in the case. On the number of cases finalised with a verdict in the lower courts and the overall inflow of cases, this information can be provided. The reality is that in this quarter there were simply not as many cases received by the NPA as they should have, although this does not mean that the cases are not there. Rather, there were not many which were trial ready. However, in the following quarters the picture would be clearer. On the role of the national efficiency enhancing committees regarding court utilisation, this problem was not across the board and rather it is at certain centres. The provincial efficiency enhancing committees are engaged with this. It is not only confined to the prosecutors, it also includes the SAPS or presiding officers. Therefore, there are attempts to ensure that there is at least one person from each role player in charge with the enrolment, running and finalisation of cases. On the organised crime cases, the question is not only of the complexity of the cases, rather this compounds the problem. A number of these cases take long to investigate, whilst they are already enrolled. Therefore, at the national office a more dedicated component will be present to oversee the running of the larger organised crime cases. On the corruption cases involving amounts of more than R5 million, the annual target was 20. While the quarterly target is 5, unfortunately there were not enough cases ready to be enrolled. Hopefully, throughout the rest of the year the target will be made up. The slow flow of cases is in itself a problem, because this makes it difficult to achieve the annual targets.

Adv Skosana said he has taken note of what Ms Mothapo has said about the Traditional Courts Bill and the Director General has been putting pressure on the team to meet the November deadline. He hoped that what the Committee receives will be worth the time, so that the process is not stifled again. This is why all angles are being covered, including the research support required by the Committee. An aspect which was not raised during the preliminary process is that people have deliberately not highlighted that the current system is dysfunctional and this creates problems for ordinary communities. Secondly, regarding the vacancies with the Magistrates Commission there had been a meeting recently to discuss these issues regarding capacity. The vacancy rate has been brought on by the fact that for the first time the Minister created 117 positions for magistrates and before that the Commission was running with a vacancy rate of about 50. A policy decision was taken to centralise all their appointments to a single point, due to the challenges faced with the large numbers of applicants for posts all over the country. Currently, the Commission has interviewed more than 300 people for 187 positions and recommendations have been made to the Minister, with decisions to be made before the end of September. There was one aspect which the Commission elaborated on, which is that the law as it stands requires magistrates to have undergone training prescribed by the South Africa Judicial Education Institute (SAJEI). Therefore, money has been put aside to allow SAJEI to run these programmes concurrently. R10 million has been put aside from Court Services for this extraordinary programme. Therefore, the newly appointed persons, who ought to make great inroads towards transformation, will be trained from the first of November and ready to start in their courts by January 2016. As the process to appoint these magistrates has taken two years, there have been 126 vacancies which occurred on the side-line over the period. These will go out for advertisement so that the process of filling these posts can begin. Once the 187 posts have been filled, with the ongoing processes regarding the 126, then a clear plan can look into capacity challenges and the creation of posts informed by the project on the rationalisation of magistrates’ courts. Linked to this there is work towards capacitating the Magistrates Commission secretariat. The Department has put real effort into this parallel process.

Ms Pilane-Majake said it has been indicated that SAJEI will be training soon, which is good. However, will the vetting process for all these magistrates be completed by November when they are appointed?

Adv Skosana said part of the strategy to manage time, with each vacancy between three and five people are recommended for appointment. The Department took the people who had undergone the interview process first and begun to vet them while other interviews continued. So that by the Magistrates Commission puts forward its recommendations, the Department is halfway through the work as it were. On the training of the interpreters, this was a shared responsibility between the DOJCD and OCJ. It has therefore been put into the service level agreement with Justice College and in the meetings with the new head of Justice College it was recommended that these programmes be put in place. There has already been a concern raised that it does not help if magistrates are trained, if the other actors in the court environment are ignored. Lastly, on the transformation of the legal profession the House should prepare itself for a discussion soon. The Legal Practice Act which established the national forum on the legal profession came into operation from 1 February 2015 and the Act requires the Minister to submit a report every six months on the work of the forum and the progress towards transforming the profession. The first report has come and the Minister has met with them, because he wanted to be addressed on how the plans and actions will achieve real transformation. Hence there are clear points which the report must address, so that there can be clear issues which the Minister must speak to regarding the transformation of the sector. One point was that the Minister wanted to know what happened to the Legal Service Charter and there were commitments to transfer skills and equity to black firms, but nothing happened. Another process, was how to skill women and other previously disadvantaged persons in niche areas in the legal sector. Linked to this the Minister intends to run a process to target certain practitioners for exchange programmes to pick up these skills. So that when vacancies occur on the bench there is confidence that the people to be appointed are going to be able to handle these issues. The Supreme Court of Appeal up until now has not replaced the skills of Judge Harms around corporate law. This will cause the Judge President to have Judge Harms act as a judge. Unless there is training in these identified areas to fill the gaps and help with transformation this will continue. The Minister says this should be part of the focus of the Forum and this is why they were given resources, to push for real transformation and improve the quality of the previously disadvantaged professionals. The Minister will meet with the Forum around 23 September and thereafter brief the Committee. The Committee may even want to request the presence of the Forum, so that it can tell South Africa what it is doing with the transformation of this industry.

The Chairperson asked if the Director General meets with the Department of Land Affairs and Rural Development, because looking at a criticism against the Traditional Courts Bill which is that it oppresses women. This can be understandable, because the traditional councils are made up of men and you cannot unlink traditional councils and traditional courts. This means that women will be excluded, but the Traditional Leadership and Governance Framework Act makes provision for the transformation of these structures. Therefore, if they are indeed transformed then automatically women will participate. This Act is not being implemented and he would suggest meeting with that Department and the Committee has a joint meeting with the Portfolio Committee which it reports to, to address this matter. He felt this should be a matter of extreme urgency. When the Legal Practice Bill was dealt with, there was a question of community service and the impression got there was that this was optional, depending on the institution to make it compulsory. There was also the question of indigenous languages being part of legal curricula, because there are problems with having a legal profession which does not understand the language of the people it serves. He thought that the matter of the curriculum should be put on the agenda, so that the locally dominant language is put in as a requirement. Students should not get a law degree, unless they have passed one of the indigenous language. Further, community service should be a requirement as unless one works among the communities they will not be able to understand them. These are matters which should not be put for the future, because professors cannot be allowed to determine the pace of transformation for their convenience. In the 1990s there was a forum to address racism and in the fourth Parliament there were proposals to restructure it, but he had not heard what it has been achieving. There is also the National Plan to Combat Racism, but the South African Human Rights Commission has to go and investigate racism in universities. “If you investigate it, you will find it”, because the students are not being taught the Constitution. Would it not be more productive to use that forum to create dialogue and educate the students, because people who do not know each other and have not grown up together being put in the same institution will create racial tensions. This can be best addressed through education, rather than investigation. He asked for the Department to come back and inform the Committee on what the forum is doing.

Mr B Bongo (ANC) said while the presentation as good, he did not see the issues which the Committee emphasised in the BRRR recommendations. Part of what is being raised presently is part of that report. The matter of paralegals is one which should be concluded with legislation before the term is over. Therefore, a report is needed on these aspects. On the language issues, when will the point be reached that people can litigate in Ndebele or Zulu. How should these issues be infused into the vision for 2030? On the traditional courts, the Committee is the legislature and needs the Department to provide options and solutions towards what is sought to be achieved. Aside from the need to elevate the issues, the Department is doing well.

Ms Pilane-Majake said there has been a great improvement between where the Department was a few years ago and where it is now. One area which was also a challenge was third party funds and no information has been received in this regard. Her earlier question about how the entities within the DOJCD’s budget vote were doing has not been answered and if this information was not available presently it could be provided later. She noted was pleased that the NPA was present, because their reporting was going to lead to a qualification by the Auditor General and it is hoped that this process flows easily, to ensure compliance. As the NPA is present, there is a concern about the number of cases finalised as this impacts heavily on the number of remand detainees. This does not seem to be improving, despite the interventions which are purported to be in place. The NPA needs to indicate what it has done as an entity to improve the situation, which costs the country a lot of money as there are people in the correctional sentences who are not definitely supposed to be there. The budget of the Department of Correctional Services is R20 billion and we must work hard to bring that figure down and this can only happen if areas such as remand detainees are addressed. On the Legal Practice Bill, it is disappointing to hear that there were members of the profession protesting outside of Parliament. When dealing with the Legal Practice Bill one could see the world opening for the legal fraternity and this must be realised. This will assist, because half the tensions in South Africa are based on the slow pace of transformation and this is not happening as there is no legislation which is capable of bringing about transformation. Recently there has been an announcement from certain sectors that they will be supporting ukuthalwa and this should be investigated for its legality. Sometimes things are done in the name of culture, but anything which violates the Constitution is invalid. She asked for guidance to be given before this becomes a crisis. South Africa supports culture and tradition, as long as it is within the parameters of the law.

The Chairperson said Ms Pilane-Majake raised interesting questions, because constitutions around the world operate in the context of the histories and cultures of the people they govern. Our Constitution recognises the institution of traditional leadership and traditional law, but a law is made which allows individuals to mobilise and lobby for the return of their land, despite the land having been lost by the relevant traditional leader and community. This creates two centres of power, sowing the seeds of confrontation and conflict, which may lead to violence. There is now a court judgement regarding the Bagkatla Fela traditional community and while the courts have the right to make the decision, Parliament has the right to make the law. If it feels that the decision will lead to a bloodbath, should the legislature not try to look at the source of the problem. This is not a matter which the courts can finalise. At present the virginity testing is an issue and he had attended a meeting in Kwa-Zulu Natal which was attended by women from the rural areas whose view was that despite whatever the Constitution and the government say they would continue doing it, because the Constitution has never given birth to children. It can be said that the Constitution will be applied, but do we want to be at war with the people? The alternative is to educate the people, but if this is not done and it is simply said that the Constitution does not allow this, then the situation is not being helped. He therefore felt more needs to be done to educate the people on the Constitution and their feedback gotten on the matters. With Members having mentioned the slow pace of transformation, he asked whether it is possible for the Department to present updates where there is litigation. For example the previous day the Deputy President indicated that an appeal was noted regarding the impeachment matter, but it is a problem that many Members do not know what this appeal is about. It would therefore be useful for the Department to keep Parliament up to speed, so they can inform the people. Lastly, he wondered whether the Committee has to wait for the Minister to meet with the Legal Practice Forum, or can the Department forward the report to the Committee. So that it can begin grappling with it, which would allow meaningful engagement when the Minister presents the report.

Ms Sindane noted that the Department had not finished answering the first round of questions and there is work happening in these areas. The next time the Department came before the Committee, it would bring an additional document which covers these matters. On the underperformance regarding ICMS, it is true that if one looks at the expenditure on the ICMS it looks like it is underperforming, because the invoices have not come through to be serviced. However, the development regarding the ICMS is happening and she was comfortable with the level of progress regarding the ICMS, particularly regarding the integration efforts. The process entails a plan being developed each year for submission to National Treasury on the overall ICMS under the IJS. The plans are looked at by National Treasury for approval and this year is only the second time this process has been embarked on. The process has not gelled quite yet, but the Department begun with the plans for the following year already to ensure they are submitted on time. Part of the under-expenditure was due to this, because aspects were only approved late in the year, leading to delayed implementation. Regarding infrastructure, she admitted that there are big problems with infrastructure, but in as much as DPW and the DOJCD cannot find each other on several issues they have been able to achieve some good. She assured the Committee that there was better cooperation at present, however it is in the historically problematic areas where breakthroughs have not been made. She was in Nelspruit the previous week and the progress is going well, but these are some of things which Parliament can have as a legacy. On paralegals, the Department wants to institutionalise the profession and the previous week it was presented with part of how the profession was to function under the legislation which the Department is already working on. There is some work happening and while there are difficulties with some of the organisations the Department would not be delayed too much by that. The intention is that when the legislation comes to Parliament it is not kicked out, because the key stakeholder has major issues with it. The Department is also looking at innovations around the work of paralegals, because one aspect is them doing community work but people cannot survive on this work and at some point someone must pay for it. Therefore, the DOJCD is looking at how this can be paid for so that people do not train to be paralegals simply to do unpaid work. She apologised, because the intention was not for Parliament to feel that the Department was usurping its role.

The Chairperson clarified that he meant that matters should not lead to that perception, but this was not the case at present.

Ms Sindane continued saying that the Department was consulted on the restructuring of the NPA. She had individually had meetings with the National Director of Public Prosecutions and the Minister, therefore the Department was aware of some of the developments towards the NPA focussing on its core business of prosecutions, rather than administration. On the NPA expenditure of R76 million on IJS integration, the Department was working on integrating the NPA with the rest of the Justice, Crime Prevention and Security cluster. The NPA therefore is subject to the same under-expenditure which affected the rest of the IJS projects, but work is going on with infrastructure having been bought. Having said that there is one risk which applies more broadly than the DOJCD, that the network is not catching up with the pace of systems development and roll out. This is an area of concern and there are certain Cabinet decisions which she could not disclose that were moving in the right direction, because the network needs to move with speed. The two key systems being worked on are the third party fund system to be piloted in September. A system has just been procured called the Court Recording system, to replace the old digital court recording system. A lot of work has gone into this before it is seen in practice, but hard work is going into improving the court recording systems in general. As developments progress, the DOJCD is looking at being able to capture indigenous languages first hand to address concerns of litigating in vernacular languages. The horizon in view is where the Department leads in its own right systems for justice which are comparable to anywhere in the world. On transformation of the legal profession, to start at a micro level the briefing patterns in government at least in so far as counsel is concerned, pending development of the systems to capture the attorneys briefed, show that the exposure which women have been getting is not great. This is supported by the fact that there is only a small number of women at the various bars. There is a charge that the number remains so small, because the work government is giving this small number of women is not being given more work. Perhaps the Department should take responsibility for this. However, the briefing patterns are proportionate to the numbers of people at any particular bar. Any work which the DOJCD does is focussed towards black and female practitioners, although some white practitioners are briefed. This is a reflection of how briefing is done more broadly in government. Going forward statistics will be given for each bar council, to give the Committee an informed view of how many women are at each bar and how the work is being distributed. Where she as the head of the Department takes full responsibility, there are some areas of work where it should have been stronger in pushing back certain Departments’ demands for specific counsel. Looking at males, many African males are being briefed and the statistics at present indicate this. The difficulty is not that many briefs are being directed towards African males, the difficulty lies in the same African males being briefed. This comes from people wanting to work with people who they are familiar with and who have produced good results in the past and this is simple human nature. She has taken this issue to colleagues to ask them not to demand the same counsel be briefed. The failure alleged, must be accepted because there could have been wider pool of people being briefed under the 43% of briefs directed towards African males. The same applies to white males and more could be done. Analysis of these numbers have been done and areas of potential improvement have been identified, however the consolidated statistics still indicate that more black people are being briefed.

The Chairperson said there is a perception that more black people may be being briefed, but the type of matters they are briefed on are not complex or important matters. Government does not want to lose cases, but is there no way to ensure that the juniors assisting the high profile counsel are women or black so that in the process these people can be trained.

Ms Sindane said this is correct; however part of the exercise behind the scenes the Department wants to report on not only the number of cases briefed on, but also the specific cases briefed on.  In the Constitutional Court, one or two African people are used, but white people still tend to be preferred by government generally. While the numbers may look good, government is still attacked for not briefing black people in matters going to the Constitutional Court. Having unpacked the detail of the statistics, the Department is able to plan interventions. She had a meeting with her colleagues in the Forum of South African Director Generals (FOSAD) and had a FOSAD lekgotla to address these specific concerns. On senior counsel being made to use specific juniors, counsel generally have their own juniors who they are working with and they come as a package. There is something good in this, with them being aware of each other’s competencies and capabilities and this should be encouraged. However, this closes the opportunity for someone else to be brought into a matter. For example, in a recent case which was discussed in the House the previous day she had to insist that an inexperienced junior be part of the case. It should not be the responsibility of herself as the accounting officer, because she was not involved in the day to day briefing. What has now been done is that a list of such junior counsel has been compiled, so that it can be ensured that whenever there is need for a junior one of these people can be exposed to the preparation of the document and see counsel argue the matter in court. On 21 and 22 September a meeting will be held with the heads of all provincial offices, so that this practice can be formalised in a policy. On the Khoi and San, this is an issue which the DOJCD has worked with the relevant Departments, but some of the requests being made go to the heart of the Constitution and South Africa’s international obligations. The DOJCD is not the lead department, but it is working together with COPTA to support them in dealing with the first nation status conversation. From where they sit they should be putting forward something for discussion and she would leave it at that, because the DOJCD is not the right Department to answer. On land restitution and the impact on traditional councils and courts, one of the things the Department and the director general of Traditional Affairs is that the traditional courts should not be looked at in isolation of the total package of the overall governance in traditional communities. The Traditional Courts Bill should be viewed as part of the overall governance, which includes the traditional councils. Looking at it in this way, it can be seen that traditional councils must be transformed in such a way that they are sensitive to women’s’ issues and partly populated by women. As these are some of the people who will be drawn upon to staff the traditional courts. Through research has also been done on the historical schools of thought in traditional courts and how what is relevant can be pooled into the work at hand. This is not a matter which is being ignored, but the difficulty is that on each matter which the Members have raised the Department needs time to brief the Committee with the level of detail required. Finally, on the tensions and constitutionality on Ukuthalwa she was willing to say that one of the things that the Chairperson bemoans is that not enough education is being done on the Constitution and she conceded this point. One of the challenges is the capacity in the Department to do this, given the limitations which the Chapter Nine Institutions face. The Department has said that it wishes to go to all the various municipalities, not excluding traditional communities, to train people on their rights. Responsibilities and how to access the institutions which will help them access their rights. She noted that she chairs the steering committee on the implementation National Action Plan on Racism, Xenophobia and Related Intolerances. This committee has been re-established and is spending the next few months taking the product to Cabinet, so that it can be taken out to the communities to do training and this is why in the Quarterly Report only two sessions have been done. This should be taken not only to communities, but structures such as NEDLAC, because the National Action Plan is not only a government instrument and all institutions should take it out to communities.

Ms Louraine Rossouw, Chief Financial Officer DOJCD, said on oversight over the various entities under the budget vote of the DOJCD, the Department is fulfilling its oversight functions on all its institutions except the Public Protector. There are close discussions with the South African Human Rights Commission, Special Investigating Unit (SIU) and Legal Aid Board and they are on track with their spending and that the challenges are being discussed meetings. The oversight over the Public Protector is being worked on and as this is oversight under the Public Finance Management Act, this is on a quarterly basis. Therefore, the transfer of information is being worked on towards the Department fulfilling its legal obligations in this regard. However, she was aware that the Public Protector submits its information directly to the Minister and National Treasury. On the third party funds, the Committee is aware of the challenges in this regard and she believed the DOJCD was on the verge of a breakthrough, but it is always darkest before dawn. The challenges partly relate to the system and suddenly in the system transactions are duplicated hundreds or thousands of times and no one is able to indicate why this is happening. In accounting there are two legs to the transaction the debit and credit, but the system will only reflect one side of the transaction. This is why the Director General mentioned the implantation of the third party fund system. Once this is implemented, the DOJCD will try to programmatically and systematically ring-fence problematic transactions. From a governance point of view the Third Party Fund Bill was discussed the previous day and the Department is confident that it will go through in the present financial year which will give the Department the authority to deal with these funds.

Ms Pilane-Majake asked which Committee is discussing the Third Party Fund Bill.

Ms Sindane replied that it went to the JCPS Cluster Directors General committee and is on its way to Cabinet. She then clarified that she had omitted speaking about the Department informing Parliament on the need to amend certain legislation and this would be taken on board, because she was under the impression that before Bills are introduced there is some form of sensitisation. In the past the Bills would be taken to the study groups and if there were any further ways in which the Committee would like this to occur, it would be welcomed by the Department. She took it that this comment came out of the amendment to the SIU and the Department would try to do it differently next time.

Mr Bongo said on the Public Protector, the Department should look at a way in which these entities are managed generally as there needs to be proper oversight. He felt the Public Protector needed even more attention, particularly in the way in which it was reporting. He had come across a report which stated that a relationship between two people was “bizarre” and the use of language by an administrative body was important. He encouraged the Director General to bring the entities together and discuss how things such as reporting were to be done. Because administrative bodies cannot use loose terms or political terms, as an administrative solution is supposed to be brought forward.

Ms Pilane-Majake added that this should be done without disturbing their independence. When the Director General had spoken about modernisation and information technology, she had not heard about the problems with offsite storage and she hoped that it has been sorted out so that there are no physical files which are to be moved.

The Chairperson said the Committee may be concerned with the Public Protector unfairly at times and the Public Protector Act is badly drafted, so perhaps the Department needs to look into this law. It seems that the reporting is not compulsory and if one deals with sensitive matters, which may be of national interest and the entity is to report once a year or as requested, these matters which need the consideration of Parliament may not come before Members. Further, there are disparate court decisions with the Supreme Court of Appeal saying that the Public Protector is different from other ombuds institutions, because it can initiate investigations. Then there is the Western Cape High Court Decision, which is not acceptable “to some people and yet it has not been overruled”. Then there are the SABC and Home Affairs court cases, but where are these matters. This means that there is no certainty on the interpretation of the Constitution itself and the Department should internally source a legal opinion on what the Constitution means, because Parliament is put in a difficult situation of being seen as against the Public Protector which it is meant to defend. If the law is not clear then the institutions will speak past each other. For example it is being said that Parliament does not want to give the Public Protector money, because she took decisions which Parliament does not like, but it is not for Members to like or dislike these decision. Chapter Nine Institutions should be independent and do their work without fear or favour, but Parliament needs to be assisted by the Department doing its oversight work. The idea of having a template should be considered and he emphasised that the Committee supports all Chapter Nine Institutions to exist and carry out their work, but the lines of communication must be clear.

Ms Pilane-Majake added it must also be clear whether their decisions are binding or not and how to handle decisions after reports have been submitted.

The Chairperson said the issues have been exhausted, but it will be useful to elevate certain matters so that there is a programme of action to address these matters. He appreciated the amount of work being put in and the Department coming before the Committee with a clear idea of how to proceed.

Ms Sindane said the offsite storage work is underway and the paperless system was spoken of earlier and to the extent that the Department has been able to work in a paperless fashion, particularly in the Masters Office, significant progress has been made. Since last year the Masters Office has not opened new paper files and everything is now done electronically. The historical files are still physical and therefore offsite storage is still required. In the courts, the administration is being digitised. However, as mentioned as this process unfolds unless the systems have capacity the migration of information digitally will be impeded. This is being worked on and it is intended that it will move from being outsourced to being within the Department and with cloud storage these possibilities are expanding. While viruses pose a threat, this is modern day South Africa and the biggest challenge is physical space at court buildings. Therefore, other options must be investigated.

The Chairperson then declared the meeting adjourned.

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