During the course of a lengthy engagement, the Committee was briefed by Auditor-General South Africa on the Department of Justice and the Department of Correctional Services 2014/15 audit outcomes. The Minister of Justice, Adv Michael Masutha, delivered an unscheduled address, after which Legal Aid South Africa and the Office of the Chief Justice presented their Annual Reports.
The Auditor-General's representatives said that the overall picture in both departments was of a stagnation in audit performance, which in most cases were acceptable but not outstanding. In the various programmes of the Department of Justice, the causes of poor audit performance were discussed. The two most pervasive root causes were the lack of consequences for transgressions and failures (particularly where there were repeat offenders), and slow, superficial response to the root causes of poor audit outcomes.
The most important change in the Department of Correctional Services audit for 2014/15 was that, instead of being qualified for assets (as they had been for the last five years), this year they had been qualified for contingent liabilities. The most common root causes of poor audit performance were instabilities or vacancies in key positions, key officials lacking appropriate competencies (problems which persisted from the previous year) and most importantly, lack of consequences for poor performance. There was a marked increase in irregular expenditure (R150m, up from R40m in 2013/14) and fruitless and wasteful expenditure (R27m, up from R1m in 2013/14). The Minister later explained that the latter related to a single contract, and that the money was in the process of being recovered. A new chief financial officer had been appointed in April 2015 and he had performed very well since then.
Members of the Committee were concerned about the poor audit performance of the Third Party Fund and the Public Protector. They were told that it would probably be several years before the Third Party Fund could return an unqualified audit, and it would depend on how it managed the transition to a new IT system. In the case of the Public Protector, Committee members struggled to agree on what the real problem was. The Auditor-General's representative explained that the main problems seemed to be with compliance and internal auditing. The Chairperson noted that they had struggled to get the Public Protector herself to report to the committee. It emerged during the discussion of the Department of Correctional Services audit that there was a major problem of information gathering. The Committee was concerned about the large increases in irregular and fruitless and wasteful expenditure, especially since eighty percent of it was not picked up by the internal audit. Members also questioned the regional breakdown of the Department's administration, which followed apartheid borders.
The Minister of Justice gave a wide-ranging address on the Department of Correctional Services plans and challenges. He talked about the problem of staff vacancies, and announced that all the positions at the department's head office were occupied, notably the National Commissioner and CFO. He agreed that the borders of the administrative regions had to be reviewed. The department had embarked on a process to track long-term remand detainees and identify the factors delaying their cases. The department was in the process of reducing its reliance on consultants in the IT space. The Minister explained that savings on salaries for unfilled positions were redirected to goods and services.
Members questioned some of the figures given by the Department. In particular, they asked for clarity on the R27m of fruitless and wasteful expenditure identified by the Auditor-General. Amongst other things, they discussed the Department's infrastructure challenges, and the origin of the qualified audit on contingent liabilities.
The Committee then heard from Legal Aid South Africa, who announced their fourteenth unqualified audit. They heard that there had been a 1% decrease in the number of matters handled by Legal Aid South Africa, driven by a decrease in the number of civil matters they had taken on. Special mention was made of matters involving children. Their marketing campaign was mentioned, which was intended to address a lingering perception that their services are of an inferior quality. The success of the organisation was attributed to the balance they achieved between the board of directors and the executive management team.
The Committee was full of praise for Legal Aid, to the extent that the Chairperson joked that they had failed in their duty to provide robust oversight. They discussed the root cause of court backlogs, the use of English as the only language of court, and the transformation of the justice system to incorporate elements of African jurisprudence, among other things.
Lastly, the Committee was briefed by the Office of the Chief Justice on their performance in the first quarter of 2015/16. The briefing consisted of a summary of the general and financial performance of each of the OCJ's programmes and sub-programmes, followed by an adjustment budget.
Once more, the Committee discussed the root cause of court backlogs, the language question and the question of the transformation of the justice system. They were concerned about the capacity of the South African Judicial Education Institute. The Chairperson raised the racial composition of the judges in the Land Claims Court, and worried about its effect on the legitimacy of the court in the eyes of rural people.
Briefing by Auditor-General of South Africa (AGSA) on the Department of Justice
Ms Corne Myburgh (Business Executive, AGSA) said that there had been a general stagnation in audit outcomes in the justice portfolio, with no change from last year in the number of clean and unqualified audits. She then handed over to Mr Yusuf Essack (Senior Manager, AGSA) to deliver the presentation.
Mr Essack explained that the purpose of the presentation was to reflect on the audit outcomes for 2014/15 and to provide some insight to the Committee toward the preparation of their budgetary review and recommendation report (BRRR). He confirmed that the overall picture was one of stagnation: as in previous years, the President's Fund, Guardian's Fund and Legal Aid South Africa (LASA) had received the most favourable audits; the Department of Justice (DoJ), the Special Investigations Unit (SIU), the Human Rights Commission (SAHRC) and the Public Protector (PPSA) had received moderately favourable audits, and the Third Party Fund had received a less favourable audit. Each entity's audit performance was evaluated in six focus areas: (1) quality of submitted financial statements, (2) quality of submitted performance reports, (3) compliance with legislation, (4) financial health, (5) human resource management and (6) information technology (IT). Mr Essack discussed the root causes of poor performance where it occurred. The two most pervasive causes of poor performance were the lack of consequences for transgressions and failures (particularly where there were repeat offenders), and slow, superficial response to the root causes of poor audit outcomes. The entities had become comfortable with unqualified audits, and were not making a great enough effort to obtain completely clean audits. Action plans need to be more specific, address the root cause of audit findings and be carried out throughout the year and senior management needed to take greater responsibility.
The commitments to an audit action plan made by the previous Minister of Justice and reconfirmed by the present Minister had seen some progress. Quarterly reporting had improved, but the IT systems committed to had not yet been rolled out. A system to handle the Third Party Fund had been procured and was in the pilot phase. It was expected to be operating in all courts by the 2016/17 financial year.
Lastly, Mr Essack discussed the South African Board for Sheriffs, a Section 4(3) entity. It had received an unqualified audit with no findings. He explained that it did not really have to comply with the Public Finance Management Act (PFMA), but that it was in talks with National Treasury about whether its positioning was appropriate.
Mr S Swart (ACDP) asked what the Committee could do to ensure audit outcomes were addressed throughout the year. Was the Auditor-General able to play a role in this?
Mr Essack said that AGSA did engage quarterly with all entities. PPSA had outsourced its internal audit, and there had been a leadership change, which may have been a contributing factor in their problems.
Mr Swart asked about when the Auditor-General expected the Third Party Fund to obtain a clean audit, given that the new IT system was to be rolled out soon.
Mr Essack explained that it would depend to some extent on how the migration was handled, and specifically whether to run the systems in parallel for a time, processing new transactions in the new system and letting the old system “die a natural death” as it becomes necessary for fewer and fewer transactions, or to extract the essential data from the old system, ring-fence what cannot be accounted for and import the accountable data into the new system. The first would mean another two or three years before a clean audit could be obtained. The second would lead to a quicker improvement in the audit outcome but would be a massive undertaking.
Mr Swart asked for clarity on the status of the Board of Sheriffs. Were they obliged to send their financial statements to AGSA or did they just do it out of courtesy? How would its accountability improve if it were to fall under the PFMA?
Mr Essack explained that it was only obliged to send its audit results to the AGSA. He said that the dynamics of the entity would change if it were to be listed under the PFMA. As it stands, it was audited privately according to the criteria of the auditing firm. In practice, this usually meant that supply-chain management and performance were not necessarily closely monitored. If it came to be listed, performance information would become mandatory and its supply-chain management policies would have to align with Treasury guidelines. However, meeting full compliance could have serious financial implications for such a small entity.
Mr W Horn (DA) asked whether the Deputy Minister's recently reported intention to implement a system to make maintenance payments payable directly to beneficiaries was part of the new system.
Mr Essack said that direct payment was the ideal solution.
Mr Horn asked whether the irregular expenditure of LASA, although a relatively small amount, was related to a single incident or several separate incidents, given that LASA was regarded as a model of good governance.
Mr Essack said that there were only two incidents where the tax clearance certificates and documents from the service providers were not in order.
Mr Horn asked about the PPSA's accumulated deficits of previous years. If it continued to have a surplus, as it had done in 2014/15, how long would it be before the deficit was erased?
Mr Essack said that it was difficult to estimate. They needed a proper financial plan to accumulate savings.
Mr Horn asked whether, in the light of the DoJ's apparently precarious financial position, the long-standing vacancies were a measure to save money on the salary bill.
Ms G Breytenbach (DA) said that saving money in this way was a common practice in the National Prosecuting Authority (NPA). What was AGSA's view of this practice?
Mr Essack said that it was difficult for them to comment, but suggested that perhaps with the move of the OCJ, there would be restructuring and reassignment taking place. He added that Treasury took a strong view, that long-standing vacancies indicated a non-essential position.
Mr Horn asked what Parliament could do to ensure there were consequences for poor audit performance.
Mr Essack explained that the PFMA empowered the accounting officer to implement consequence management. The problem was not a policy or control problem but a behavioural one. Individual employment contracts had to take audit findings into account, not just the overall audit outcome.
Ms G Breytenbach (DA) asked whether the DoJ had the capacity to deal with their financial governance in the manner AGSA suggested. If not, how would they address their problem? Why had they taken over the corporate governance liability of the NPA if they were already struggling?
Mr Essack said that the capacity was there, but it was not evenly distributed across the country.
Ms C Pilane-Majake (ANC) agreed that the lack of consequences was a serious problem. She expressed hope that there would be improvement in the Third Party Fund. She asked whether insourcing internal audits was wise from the perspective of risk management.
Mr Essack said that insourcing was the most appropriate model for a department as big as Justice, because it needed continual internal auditing. But for smaller entities, outsourcing was more financially appropriate.
Ms M Mothapo (ANC) asked whether the PPSA was technically insolvent. She was concerned about the many areas in which it had not complied with legislation.
Mr B Bongo (ANC) worried about the irregular expenditure at the PPSA, given the high moral ground it was expected to occupy. What should Parliament do?
Ms Mothapo pointed out that poorly performing municipalities could be placed under administration. Could the PPSA not be put under administration?
Mr Swart doubted that this would be legally possible.
Mr Essack also did not think it would be possible.
Mr Motshekga called on the Committee not to conflate issues, and reminded them that it was not a party-political matter. He asked what the problem at the PPSA was, if it was neither capacity nor skills. He expressed a general concern that they were being asked to fund entities whose liabilities exceeded their assets.
Mr Swart shared the concerns about the PPSA, but noted that its irregular expenditure has actually decreased, whereas as that of LASA, for example, had increased. It was not irregular expenditure that was the problem at the PPSA.
Ms Breytenbach added that the DoJ's irregular expenditure was considerably higher than the PPSA's.
Ms Pilane-Majake suggested that they needed better insight into the reasons for the problems at the PPSA, beginning with the historical deficit.
Mr Essack agreed. He suggested that case-load might simply be very high. He noted that the main problems seemed to be with compliance and internal auditing. He reminded the Committee that the PPSA reported directly to Parliament.
Mr Motshekga noted that the Public Protector herself had not been available to meet with the Committee, making it difficult for them to help. It was not enough just to talk to the accounting officer, because the problem may have to do with operations.
Mr Bongo suggested that they might need to dispatch a team to the PPSA, to find out what intervention they might be able to do.
Mr Essack suggested that such a team should include a representative of National Treasury, but it was outside of AGSA's mandate to get involved at that level, although they would gladly provide information.
Auditor-General of South Africa (AGSA) on the Department of Correctional Services
Mr Abrie Adendorff (Senior Executive, AGSA) said that the Department of Correctional Services (DCS) was simpler than the DoJ, having no public entities or other attachments. The most important change in the DCS audit for 2014/15 was that, instead of being qualified for assets (as they had been for the last five years), this year they had been qualified for contingent liabilities. This was principally due to the lack of a register of contingent liabilities, so the AGSA was unable to obtain the necessary data. There were also still some problems with assets, which had been discussed with DCS management, and widespread late payment of accounts was also a concern.
Mr Adendorff summarised the results of the DCS audit in terms of the same six areas as in the DoJ audit (see above): (1) financial statements had required several corrections, and there was a need for intervention, (2) performance reports had been incomplete, (3) in terms of compliance with legislation, supply-chain management had been a problem, (4) financial health had deteriorated, (5) there were several senior management positions that had been filled with acting staff for a long time, and (6) little progress had been made in IT systems. The most common root causes for problems were instabilities or vacancies in key positions, key officials lacking appropriate competencies (problems which persisted from the previous year) and most importantly, lack of consequences for poor performance.
Mr Adendorff said that the problem affecting performance reports was at ground level. The people collecting the information did not realise how important it was. He noted that the DCS had some very large contracts, such as that to supply prison food. The National Commissioner had committed to addressing the problem of staff being on suspension with full pay for long periods. While there was no unauthorised expenditure, there was a marked increase in irregular expenditure (R150m, up from R40m in 2013/14) and fruitless and wasteful expenditure (R27m, up from R1m in 2013/14), pointing to a need for consequence management and sanctions for those responsible. He suggested that the Committee monitor the DCS on a quarterly basis and follow up assiduously. A new chief financial officer (CFO), Mr Nicodemus Ligege, had been appointed in April 2015, however, and he had performed very well since then.
Mr Motshekga was pleased to hear the new CFO was returning good results. He asked how problems arising from the devolution of powers should be dealt with, with particular reference to the information collection problems described by Mr Adendorff.
Mr Adendorff said that wardens were responsible for collecting information about inmates, and that perhaps their training was failing to impress upon them how important it was for the information to be accurate. Regional commissioners also had to take more responsibility.
Mr Horn asked whether the lack of required competencies mentioned as a root cause of poor audit performance referred to this problem or to financial management, and what remedial action was recommended.
Mr Adendorff said that it referred to both. There were many financial management posts that were being filled by acting staff who were not necessarily qualified for the post.
With reference to the unqualified assets and qualified contingent liabilities, Mr Swart asked whether there had been an improvement overall.
Mr Adendorff said that there had been.
Mr Swart was concerned about the large increases in irregular and fruitless and wasteful expenditure, especially since eighty percent of it was not picked up by the internal audit.
Mr Horn asked whether the supply chain management problems were pervasive and systemic across all regions, or were there perhaps just two or three contracts that were causing the problem.
Mr Adendorff said that building contracts were the most problematic. He suggested engaging project management experts.
Mr Horn asked whether the timely payment of creditors would have pushed the department into overdraft or resulted in their liabilities exceeding their assets.
Ms Michelle Magerman (Accountant, AGSA) replied that if they had paid all their invoices by March they would have incurred some unauthorised expenditure, but they were neither insolvent nor overdrawn.
Mr Bongo drew attention to the fact that the DCS was still administered according to apartheid regional borders, so that the North West Province, Limpopo and Mpumalanga were all administered as one region. This created a big challenge. These regions should be aligned with the provinces.
Mr Adendorff agreed that it was a problem, but said that the Committee should discuss this with the minister and the department.
Ms Pilane-Majake again questioned the wisdom of insourcing internal audits.
Mr Adendorff pointed out that the disadvantage of outsourcing the internal audit was that the auditor was not necessarily well acquainted with the business of the Department.
Ms Pilane-Majake said that internal audit departments then needed to be well capacitated.
Address by the Minister about Correctional Services
Minister of Justice and Correctional Services, Adv Michael Masutha, began by acknowledging the presence of Deputy Minister of Correctional Services Mr Thabang Makwetla and National Commissioner Mr Zach Modise. With reference to the recent High Court judgement denying parole to Ferdi Barnard and Mr Adendorff's remarks about the problems in information gathering at ground level, he talked about the importance of detailed histories of long-term prisoners in the consideration of their parole applications. It was not only a matter of compliance, but it had a tangible effect on the lives of offenders. He talked about the problem of vacancies, and announced that all the positions at the department's head office were occupied, notably the National Commissioner and CFO. There were still significant challenges at the regional level, however. He also responded to the discussion about the borders of the regional offices. The rationale had been in terms of population proportion, but he conceded that it needed to be reviewed. He said that a corresponding review was taking place in the courts, and that dedicated High Courts for Limpopo and Mpumalanga were currently being built. It would make sense for these two structures to coincide geographically. The department had embarked on a process to track long-term remand detainees and identify the factors delaying their cases. With respect to fruitless and wasteful expenditure, the department was in talks with the State Information Technology Agency (SITA) to recover the R27m that had been alluded to in the AGSA report. There were also investigations, one independent and one by the Public Protector, into the R296.7m electronic monitoring system contract. The department was in the process of reducing its reliance on consultants in the IT space, although the procedure for changing the payment structures to accommodate permanent replacements was complex, involving both National Treasury and the Department of Public Works. The Minister explained that savings on salaries for unfilled positions were redirected to goods and services, although this did not mean that the department was not committed to addressing its staff vacancy issues.
Mr V Smith (ANC) drew attention to some apparent inconsistencies in the figures supplied by DCS on reprioritisation of funds. Page 28 of the document indicated a figure of R614m saved through staff vacancies. Page 24 indicated a figure of R90m underspent due to vacancies which, added to the reprioritisations described on pages 30 and 32 of R121m, R56.7m and R55.6m, did not add up to R614m.
Mr Nicodemus Ligege, DOJCS CFO, explained that the figure of R614m was calculated from a base of R13.315bn, which was the adjusted appropriation, and was not presented in the presentation. He referred Mr Smith to page 111 of the Annual Report.
Mr Smith shared the Minister's concern about spending on consultants, and asked if the process of reducing the department's reliance could not be fast-tracked. The department had made a commitment to the Standing Committee on Public Accounts (SCOPA) that several expensive contracts would be concluded by the end of October. The reliance on consultants was particularly worrying in the light of the underspending on permanent staff.
Mr Modise explained that a delay in advertising permanent posts had had a domino effect, necessitating a re-evaluation of the time-frame for concluding those contracts.
Mr Horn asked for clarity on the R27m being claimed back from SITA. Why was the money paid if it was not owed? Is there a dispute? If it was due to an official's mistake, had any disciplinary action been taken?
The Minister replied that according to his understanding of the matter, the department was in a position to recover the money that had been paid to SITA at its own convenience, given that SITA was a government agency.
Mr Horn said that the need for additional bed space had been identified and budgeted for many years ago. There had been little progress, and AGSA had said that there was a problem with contract management in the department. The Committee needed concrete assurance that something different was going to be done this time.
Mr Modise admitted that they had challenges, but added that some contractors for bed space expansions had been liquidated, resulting in them not finishing the work.
The Minister added that they had had experiences where unscrupulous contractors simply pocketed up-front fees and then declared insolvency. This practice had to be rooted out.
Mr Swart referred to AGSA's observation that while the DCS had received an unqualified opinion on its assets register, the opinion on contingent liabilities was now qualified. Why had this now become an issue, when it had not been a problem in the past?
The Minister explained that the department routinely faced hundreds of legal suits of various kinds. He was not sure that it was actually a new problem, however.
Mr Swart was concerned about the sharp increase in irregular expenditure. What steps were being taken in this regard?
Mr Ligege referred to pages 161 and 163 of the Annual Report, explaining that a large portion of the total related to a single matter that was under investigation.
Ms Breytenbach asked what the current vacancy rate at senior management level was.
The Minister said that all the top senior positions at the national office were occupied, and that the challenges at regional level were being addressed.
A DCS delegate explained that there were just over 30 vacant positions out of a total of 215 senior management positions. They had compiled a shortlist of 22 candidates, and would be holding a job fair next month.
Ms Breytenbach asked about the 49 escaped prisoners reported in the Annual Report. What was the rate of re-arrest and what were the findings regarding investigations into the escapes?
Mr Modise said that 37 of the 49 had been re-arrested, and the investigations had revealed that there had been negligence on the part of staff. Action would be taken against them.
Ms Breytenbach asked for figures on the number of inmates with mental illnesses in the system.
The Minister said that this problem had recently been brought to his attention. The Department of Health also had problems in this regard, and DCS was currently carrying the whole burden. He had spoken to the Minister of Health during Cabinet Committee interactions about the possibility of a bilateral arrangement to address all health-related issues in the prison system.
Mr Modise said there were approximately 3300 inmates with mental health issues.
Ms Pilane-Majake reported AGSA's suggestion that employee contracts needed to be linked to actual performance, and said that internal auditing needed to be vigorously pursued if audit outcomes were to rise above stagnation.
Mr Bongo agreed with other members that the qualified opinion on contingent liabilities and inadequate contract management were serious problems, and said that they may be having an effect on the DCS's ability to pay invoices on time, leading to fruitless and wasteful expenditure.
Ms Mothapo asked for an update on overcrowding in prisons, which stood at 32%.
The Minister admitted that there was a problem, but that the number of remand detainees, a major contributor to overcrowding could be reduced, if necessary, by reviewing the whole criminal justice regime so that people were not detained for long periods for extremely minor offences. Someone who has stolen a sweet, for example, should not be detained.
Ms Mothapo asked for an explanation for the increase in disciplinary cases from 80 to 210.
Mr Motshekga said that the continued grouping of the North West, Limpopo and Mpumalanga provinces into a single administrative region was unsustainable and had the potential to drag down the whole national office. He called on the Minister to accelerate the review of the administrative regions. He also encouraged the department to continue its fight against corruption within its ranks and among contractors. The whole image of government could be damaged by the actions of a few rotten apples.
Legal Aid South Africa (LASA) on its 2014/15 performance
Judge Dunstan Mlambo (Board Chairperson, LASA) introduced his large delegation and indicated that they would share presenting duties. He said that this was the third year of their 2012-15 strategic plan period, and that in 2014/15 they had met more than 90% of their business plan targets, staying within budget. They had begun on a strategic plan for 2015-20. According to legislation, their mandate going forward included an obligation to provide legal information and education. He reminded the Committee of a recent DoJ study which had revealed very low levels of knowledge about the Constitution. He then handed over to the LASA CEO.
Ms Vidhu Vedalankar (CEO, LASA) announced that LASA had received its fourteenth unqualified audit, resulting in an award from AGSA. She indicated that there had been a 1% decrease in the number of matters handled by LASA. This had been driven by a decrease in the number of civil matters they had taken on. They had created an online tracking system which they hoped would help reduce the number of long-term remand detainees.
Mr Brian Nair (National Operations Executive, LASA) said that 88% of LASA's work was in criminal matters, with the remaining 12% in civil matters. He gave a breakdown of LASA's operations for the previous year, in terms of the different types of legal matters handled (criminal and civil), types of crimes and court coverage at district, regional and High Court levels. He made special mention of matters involving children, noting that although not required to by law, they had assisted over 3000 children with preliminary enquiry matters. They were currently doing research into this area. There had been an overall decrease in matters involving children, which he attributed to the Child Justice Act. He discussed some examples of LASA's impact litigation, such as the ongoing class action against Anglo-American.
Mr Jerry Makokoane (Chief Operations Officer, LASA) gave a summary of their civil legal aid, especially about their visibility and operations in sparsely populated and rural areas. He discussed their HR situation, noting that 94% of positions were occupied, and staff turnover was relatively low at 6%. He confirmed that employment equity had improved.
Ms Rebecca Hlabatau (CFO, LASA) gave a summary of LASA's financial management strategies in 2014/15, stressing their prudence. She also mentioned their marketing campaign, which was intended to address a lingering perception that their services are of an inferior quality and had appeared in six official languages.
Mr Yousuf Vawda (Deputy Board Chairperson, LASA) discussed LASA's governance, their performance with reference to the strategic plan, and the challenges they had faced in 2014/15. He attributed the success of the organisation to the balance they achieved between the board of directors and the executive management team. One of the challenges they had faced was the high demand for assistance in civil matters, which had exceeded the capacity of their staff. The lack of relief capacity had hampered their ability to fulfil their mandate. Unfunded mandates, notably the Marikana Commission, had also placed a heavy demand on their resources.
Judge Mlambo confirmed that funding for relief capacity would have a significant positive impact. He said that although the Constitutional Court dismissed the appeal in the Marikana matter, LASA had achieved its objective of clarifying that the funding of commissions of enquiry was not actually its responsibility.
Mr Motshekga said that the priority given to criminal over civil matters arose after World War Two. In South Africa there was the additional problem that the people had been dispossessed of the land and its resources by apartheid, leading to the triple problem of poverty, unemployment and inequality. These problems would not be addressed until the land problem was addressed, but people were not getting access to the land claims court. There was a risk, he said, that in their frustration, people would come to see the courts as irrelevant and resort to land invasions. Should not LASA try to balance civil and criminal matters?
Judge Mlambo said that land claims were currently handled by a different department. LASA had shown, though, that if their in-house model was used, the cost of land claims would come down dramatically. He recalled that 10-12 years ago, the Portfolio Committee had expressed the opinion that LASA should not be handling any civil matters, and that therefore progress towards a balance was being made.
Mr Motshekga suggested that a joint meeting between Judge Mlambo, the Minister of Justice and the Minister of Land Affairs should be arranged to discuss a better solution.
Ms Mothapo congratulated LASA for their 14th unqualified audit, but asked whether LASA had any plans for meeting the performance targets in 2015/16 that had been missed in 2014/15.
Ms Vedalankar assured him that they understood what had gone wrong last year, and had firm plans to meet the targets in the next.
Mr Horn observed with concern that LASA had not managed to reduce its court backlog.
Ms Breytenbach said that the NPA had, in their Annual Report, held LASA partly responsible for poor court hours, and asked LASA to comment on this allegation.
Judge Mlambo was disappointed that the NPA was blaming LASA. In his experience, it was judicial officer unavailability that caused bottlenecks and delays.
Mr Motshekga agreed and said that he had heard the same thing from a very senior public prosecutor.
Mr L Mpumlwana (ANC) questioned the exclusive use of English as the language of the courts. Was LASA ready for the use of African languages in court, and if not, what were their plans?
Mr Bongo agreed that indigenous languages needed to be allowed in litigation. The insistence on using English sometimes led to absurd situations, where for example a Ndebele defendant, represented by a Ndebele lawyer before a Ndebele judge would be using English.
Judge Mlambo said the language question was controversial. It had been discussed in Kwazulu-Natal recently, and the problem had been that if a matter went to appeal, what language would the record be in? This problem could be addressed using simultaneous transcription. At his own court in Pretoria, there were interests wanting to bring Afrikaans into the courts, and it would be interesting to hear what the Department of Justice would say about this. The current situation made the legal process very expensive.
Mr Mpumlwana asked whether LASA had any use for paralegals.
Mr Mpumlwana asked which six official languages had been used for the marketing materials. He also asked how far LASA was going to reach out to deaf and blind people.
Mr Mpumlwana asked how the Committee could help LASA meet its challenges in 2015/16.
Mr Mpumlwana asked whether LASA had any influence on the courts to hand down a non-custodial sentence. This was important given the overcrowding in our prisons.
Mr Mpumlwana said that the African legal system placed an emphasis on mediation, trying to make peace between the families of victim and offender. This contrasted with the European system, according to which offenders are extracted from society. Mr Mpumlwana asked whether LASA had any influence on the gradual transformation the judicial systems for the benefit of the majority. He conceded that their might me legal barriers in the way of this process.
Judge Mlambo agreed that our legal system was Eurocentric, and had been for a very long time. He had been at an international conference in Accra, however, where he had been ridiculed when he discussed how Rwanda's Gacaca courts had allowed it to move on quickly following the genocide. He was also not sure how much LASA could do on its own.
Mr Mpumlwana asked about the perception that LASA lawyers offered an inferior service, or might side with the prosecutor. How could it be countered?
Judge Mlambo believed that this perception was dwindling. He observed that this perception existed internationally.
Mr Bongo asked LASA to come up with a serious proposal about relief staff, so that the Committee could take it forward.
Mr Swart commended LASA on its financial management in the face of budget cuts, and asked whether they would be able to compensate for the cuts from their cash reserves again, as they had done in 2014/15.
Mr Swart asked how LASA measured the quality of its service, and how it chose its impact legislation cases.
Ms Pilane-Majake asked about LASA's 186 civil society partners. Were they committed to transformation, especially with regard to women? Did LASA have partnerships with state institutions, such as the Public Protector for example?
Ms Pilane-Majake asked about LASA's progress in helping to address the problem of remand detainees.
Ms Pilane-Majake asked where LASA's cash reserves came from. If they had underspent in the previous year, that money would have had to go back to Treasury. Did they have a special arrangement with Treasury?
Ms Pilane-Majake asked how LASA's means test worked. There was a risk that it could exclude a large swathe of the population who nevertheless could not afford conventional legal fees.
Mr Motshekga agreed that the language question was especially important, given that LASA was responsible for public interest law. It needed to be put on the transformation agenda. He was broadly sympathetic to all of LASA's responses, and said that they had made a good case for additional funding in 2015/16. He asked LASA to answer remaining unanswered questions in writing.
Office of the Chief Justice (OCJ) on its 1st Quarter 2015/16 performance
Ms Memme Sejosengwe (Secretary-General, OCJ) began by introducing her delegation before presenting the document. It consisted of a summary of the general and financial performance of each of the OCJ's programmes and sub-programmes, followed by an adjustment budget. She explained that there was not an annual report for 2014/15 because the OCJ had only received its own budget vote in April 2015.
Ms Sejosengwe went through each of the three programmes: Administration (which had achieved six out of eleven performance targets), Judicial Support and Court Administration (ten out of fifteen) and Judicial Education and Research (two out of three). She presented a breakdown of each programme, indicating more precisely where the successes and failures were, the reasons for failures, and the actions planned to address the failures. She went through each of the programmes' finances, indicating that Judicial Support and Court Administration had been 2.6% over budget, while the other two had been well under budget. Finally, Ms Sejosengwe discussed the budget adjustments that had been requested and those granted, in response to differences between projected and actual costs.
Ms Pilane-Majake asked whether in future presentations the OCJ could provide statistics about the number and types of court cases countrywide. She asked if the budget adjustment had been done in terms of the Public Finance Management Act.
Ms Sejosengwe asked if she could return at a later date with this information.
Ms Breytenbach was concerned about the fact that only 71% of fraud cases were being investigated within 60 days.
Mr Horn echoed Ms Breytenbach's concern, while acknowledging that in a new department, some teething problems were to be expected. He asked how performance targets were set, especially those in Programme 2 involving a certain number of cases to be completed. Were they realistic?
Ms Sejosengwe explained that the OCJ did not have historical data on which to base their targets. She said they would be reviewed in forthcoming years.
Mr Nathi Mncube (Chief Director for Court Administration, OCJ) said that it was a concern shared by the OCJ and judges themselves, but they were working on it.
Mr Horn questioned whether the South African Judicial Education Institute (SAJEI) would have the capacity to deal with the large number of recently appointed magistrates.
Ms Sejosengwe said that they had approached Treasury for additional funds but had not received any. Cost-saving measures had been explored, such as finding cheaper venues, as premises were the biggest expense.
Mr Mpumlwana drew attention to the allegation that the unavailability of judicial officers was the principal reason for court backlogs. Could the OCJ comment on this? If it is true, what were they doing to address it?
Ms Sejosengwe said that in most courts, the workload had increase disproportionately to the increase in the number of available judicial officers.
Mr Mpumlwana again raised the controversial issue of court language. Was it in line with the Constitution that English was the sole language of the courts? It was leading to miscarriages of justice. He also said that he had never seen a sign language interpreter in the High Court.
Ms Sejosengwe had heard judges echo Mr Mpumlwana's concerns. Court language was a matter of policy dealt with by the DoJ. The DoJ was discussing it, but the matter was currently unresolved. There had been problems with terminology.
Mr Motshekga did not think terminology was a real problem. Whatever the court interpreters were using, those were the terms.
Mr Mpumlwana again raised the issue of judicial transformation. What was the OCJ doing?
Ms Sejosengwe promised to raise this with the Chief Justice.
Ms Mothapo was concerned that the Land Claims Court were not delivering justice to rural communities. She asked for detailed information about rural land claims.
Ms Sejosengwe asked if she could return at a later date with this information.
Mr Motshekga said that three of the five Land Claims Court judges were black, two of whom were leaving in November 2015. Without doubting the white judges' ability to apply the law and deliver fair judgements, he questioned whether uneducated rural people, faced with such a non-representative panel, would have confidence in the court. There was a risk that people would resort to extra-legal avenues of land redistribution. He stressed that the language question was essentially a question of access to justice, and the OCJ should not wait for the Minister to implement the Constitution. There also needed to be a conference on judicial transformation.
Mr Motshekga thanked the presenters, and the meeting was adjourned.
- Department of Correctional Services; Legal Aid South Africa; Office of the Chief Justice on their 2014/2015 Annual Reports; Audit outcomes by Auditor-General am
- Department of Correctional Services; Legal Aid South Africa; Office of the Chief Justice on their 2014/2015 Annual Reports; Audit outcomes by Auditor-General pm
- Legal Aid South Africa Media statement
- Presentation of Office of the Chief Justice Quarterly Performance Report, Q1 of 2015/16
- Audit outcomes of Department of Correctional Services: AGSA briefing
- Audit outcomes of Department of Justice and Correctional Services: AGSA briefing
- Legal Aid South Africa 2014/15 Annual Report
- Presentation on Legal Aid South Africa's Annual Report for 2014/15
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.