The Committee heard performance reports from the National Prosecuting Authority (NPA) presentation, the Special Investigating Unit (SIU) and the Department of Justice and Constitutional Development. Several issues were raised repeatedly, including vacancy rates, the question of court language and the transformation of the justice system to accommodate principles of African law, and racial representativity of lawyers for state entities. Due to time constraints, responses to many questions had to be given in writing.
The new National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams, delivered the NPA's presentation. He discussed the changes to the responsibilities of his deputies and his confidence in their abilities to carry out their duties. He took the Committee through the performance of each of the NPA's five programmes: the National Prosecutions Service (NPS), which achieved 7 out of 10 performance indicators), the National Specialised Prosecutions Service (NSPS, 4 out of 8), the Asset Forfeiture Unit (AFU, 9 out of 10), the Office for Witness Protection (OWP, 2 out of 2), and Support Services (SS). Overall, the NPA achieved 77% of its targets in 2014/15, compared to 68% last year. He indicated that prosecution rate targets had been met or exceeded for most types of crime requiring ordinary prosecution, but that most of those requiring specialised prosecution had been below target. He drew attention to the 23.5% increase in the number of cases finalised through alternative dispute resolution methods (ADRMs). The AFU had performed exceptionally in 2014/15, exceeding its annual target by large margins in almost all areas. He indicated willingness to answer questions about the Freedom Under Law vs National Director of Public Prosecutions and Others case if necessary.
In the discussion, a dispute arose when Committee members and Adv Abrahams could not agree on whether a certain line of questioning regarding the appointment of Adv Nomgcobo Jiba was permissible. The Chairperson eventually ruled that it was impermissible, and the Democratic Alliance members walked out of the meeting in protest of the Chairperson's handling of the situation. There was not much time after this for questions. The specific form of assistance the Committee could give to the NPA was discussed, and the Committee expressed the hope that Adv Abrahams would be able to bring much-needed stability to the NPA.
The SIU presentation was delivered by its Acting Head and Chief Financial Officer. It covered the SIU's 2014/15 performance and gave an update on ongoing investigations. The SIU had struggled to set realistic performance targets, and while they achieved only four out of eight of their targets, there were several significant achievements which their targets had not measured. Moving on to the SIU's current investigations, major investigations involving the Department of Public Works and the Department of Rural Development and Land Reform were noted. SIU operational costs had increased overall by 66%, this was largely due to impairment of debt of state institutions. The SIU had received an unqualified audit with one emphasis of matter relating to the restatement of 2013/14 financial results.
It emerged during the discussion that there was an ongoing misunderstanding between the SIU and the NPA that resulted in fully-investigated cases presented to the NPA for prosecution being sent to the police for re-investigation, leading to massive delays. The Committee also asked for an update on the Nkandla matter.
The Committee was then addressed by the Minister and Deputy Minister of Justice, after which the Director-General presented the Department's Annual Report. The Minister's address was a bird's-eye view of activities in the department during 2014/15. He talked about senior management appointments, the reorganisation of judicial regions, the transformation of the justice system and the gender and racial representativity of the legal profession as a whole. The Minister reported that he would, in matters where he was a litigant, only be represented by black women, unless none were available, regardless of what is at stake or the complexity of the matter.
The Committee was concerned about apparent delays in the tabling of the Traditional Courts Bill, and the Deputy Minister gave them a comprehensive summary of the Ministry's legislation programme. They also discussed the troubled Third Party Fund, and the gap between people who qualified for legal aid and those who could afford to pay for legal services. The Chairperson raised the racial composition of the Land Claims Court. The Minister and Deputy Minister gave comprehensive responses to the question of the status of traditional courts.
The Director-General said that the department had received an unqualified audit for the third consecutive year. Where they had had findings, they were in agreement with the Auditor-General. She looked more closely at the Third Party Fund, an ongoing problem area. There had been steady improvements over the last five years, and the outlook was good. The department had met 78 out of 92 performance targets.
Issues of language were extensively discussed in the Committee's engagement.
National Prosecuting Authority (NPA) briefing on its Annual Report 2014/15
Adv Shaun Abrahams, new National Director of Public Prosecutions (NDPP), introduced his delegation, which included all four of his deputies, before delivering the presentation. He discussed the changes to the responsibilities of his deputies, which had been thoroughly discussed and were based on merit alone. He assigned responsibility for corporate services to Dr Silas Ramaite, moved Mr Willie Hofmeyr from the Asset Forfeiture Unit (which he had led since 2001) to the Legal Affairs division, replacing him with Adv Nomvula Mokhatla. Adv Nomgcobo Jiba was made responsible for the National Prosecutions Service. When he had taken office, the deputy national directors of public prosecutions were not involved in the key decision-making process of the NPA. He had also dissolved the position of chief executive officer (CEO), and reassigned the incumbent. Adv Abrahams took the Committee through the performance of each of the NPA's five programmes: the National Prosecutions Service (NPS, which achieved 7 out of 10 performance indicators), the National Specialised Prosecutions Service (NSPS, 4 out of 8), the Asset Forfeiture Unit (AFU, 9 out of 10), the Office for Witness Protection (OWP, 2 out of 2), and Support Services (SS). Overall, the NPA achieved 77% of its targets in 2014/15, compared to 68% last year.
Adv Abrahams then discussed prosecution rates, indicating that targets had been met or exceeded for most types of crime requiring ordinary prosecution, but that most of those requiring specialised prosecution had been below target. He drew attention to the 23.5% increase in the number of cases finalised through alternative dispute resolution methods (ADRMs). The AFU had performed exceptionally in 2014/15, exceeding its annual target by large margins in almost all areas. The OWP ensured that no witnesses on the witness protection program were threatened or harmed for the thirteenth consecutive year. He explained that minor amendments had been made to the NPA's prosecution policy. He mentioned some high-profile cases in which the NPA had been involved, and indicated that he would be willing to answer questions about the Freedom Under Law vs National Director of Public Prosecutions and Others case if necessary.
Dr Motshekga said that trials by media undermined the Constitution, and that they would not be trying anyone in the meeting. They would focus on what had been submitted. South Africa had been looking for leadership in the NPA, and he had been encouraged by the thoroughness and fairness with which Adv Abrahams appeared to have gone about assigning responsibilities to his deputies.
Mr W Horn (DA) questioned the assignment of responsibilities to Adv Jiba. He appreciated that the NPA had its own way of dealing with disciplinary matters, but how could he have overlooked the statements of the Durban High Court that one of her decisions to prosecute did not meet the barest minimum requirements, and of the Supreme Court of Appeal that her actions as acting national director of public prosecutions had tainted the image and integrity of the NPA. How could she have been chosen as head of prosecution services “on merit alone”? Should not her appointment be put on ice until all matters relating to her conduct had been finalised by the Bar Council and the courts?
Adv Abrahams said that the matter was currently the subject of court proceedings in which he was a respondent, which would limit his freedom to comment. He did point out that none of the statements reported by Mr Horn had declared Adv Jiba unfit or improper.
Mr Horn was very unsatisfied with this response. First, Adv Abrahams had expressed willingness to answer questions about the Freedom Under Law case. Second, he had said that Adv Jiba's appointment had been made on merit alone. That he was a respondent in court proceedings had not prevented him from taking the Committee and the public into confidence on the matter then. This was simply unacceptable.
Dr Motshekga warned that he would not allow anyone to be hounded. It was not the Committee's responsibility to decide on whether someone was fit and proper to hold office. Not everyone present had necessarily read the court papers referred to by Mr Horn.
Mr S Swart (ACDP) pleaded for the NDPP to help the Committee understand their processes, within the constraints of being a court respondent. It was necessary for the Committee to be able to exercise its oversight. The NPA's Annual Report for 2014/15 (admittedly signed off by the previous NDPP) dealt extensively with the matter of Adv Jiba's suitability for her position, with the then-NDPP strongly recommending disciplinary action, and yet no disciplinary action was taking place. The CEO had been heading investigations, and then the CEO's position was, on merit, removed. Could he see the perception that was being created? These issues were in the public domain, and such severe indictments needed to be responded to.
Dr Motshekga repeated his view that the Committee could not decide on Adv Jiba's fitness for office, so it would be futile even to engage in such a discussion. He said that it was not very significant that a single legal opinion had cast doubt on Adv Jiba's fitness. A thousand lawyers in a room could produce two thousand opinions on a matter.
Mr Swart objected that it was not just a legal opinion. He asked again for a comment from the NDPP on the perception that was created by his reassignments.
Dr Motshekga intervened, saying the NDPP was not obliged to respond.
Mr Swart considered this out of order.
Mr Horn added that the NDPP had opened up the discussion, spending twenty minutes discussing the assignments of his deputies. He had already pronounced on the merits of his assignments.
Mr B Bongo (ANC) raised a point of order, saying that the Chairperson had determined an order in which members would speak, and Mr Horn was now interrupting it and repeating himself.
Dr Motshekga sustained the point of order.
Mr Horn said that if the Chairperson was going to close down the discussion, the Democratic Alliance (DA) would withdraw from the meeting in protest.
Dr Motshekga insisted that he was defending the law, and not Adv Jiba. He invited Ms Mr Mothapo (ANC) to speak.
DA Committee members Mr Horn and Ms G Breytenbach withdrew from the meeting.
Ms Mothapo said that they would respect the sub-judice rule and not press the NDPP to respond. She was concerned that employment equity from a gender perspective was 11% below the national target of 50%. They were 0.5% below the target of 2% for people with disabilities. She was also concerned about the rising vacancy rate (14.4% up from 10.2%).
Mr Bongo and Ms C Pilane-Majake (ANC) shared her concern about the vacancy rate.
Adv Abrahams explained that there had been a delay in advertising posts. They were looking at streamlining the process of shortlisting and interviewing candidates.
Ms Mothapo noted that three employees were dismissed for misconduct, out of thirty who were charged. What had happened to the remaining twenty-seven?
Ms Mothapo commended the NPA on the use of ADRM, as a form of restorative justice, in line with the National Development Plan.
Mr Bongo asked what support the Committee could provide to the NPA.
Adv Abrahams said that they could help them with finances. He wanted to appoint a special director to head an organised crime unit, and a training structure to enhance the skills of prosecutors. For example, all prosecutors needed to understand asset forfeiture.
Mr Bongo asked if the NPA could comment on the Auditor-General's report, which had been presented to the Committee the day before, and had raised some issues of compliance.
Mr Bongo asked for a comment on the use of indigenous languages in litigation.
Mr Bongo was concerned that 70% of matters in court were postponed, many several times.
Mr L Mpumlwana (ANC) raised the problem of unscrupulous money-lenders, found especially in rural areas. He said that the police and prosecutors often seemed to be unaware that this was a criminal offence.
Mr Mpumlwana raised the question of the language of the courts. It was not fair for someone to be tried in a language that they did not understand. African languages should be used in court, and if necessary, proceedings could be translated into English for record purposes. He also doubted that there was a single prosecutor who knew sign language. This put deaf people at a significant disadvantage.
Mr Swart associated himself with the sentiments of the DA, but felt it was important to remain in the meeting. He objected to manner in which the dispute was handled, but respected the Chairperson's ruling.
Dr Motshekga said that democracy was designed to accommodate differences of opinion, and he appreciated that Mr Swart accepted this principle.
Mr Swart raised the issue of case-flow management. It was something that needed to be raised with the Chief Justice. He asked the NPA to comment on something that had come up in the previous day's meeting, where it seemed that the NPA blamed Legal Aid South Africa for poor court hours.
Mr Swart said that they supported the used of ADRMs, but that they needed stricter regulation.
Mr Swart asked the NPA to comment on court backlogs.
Ms Pilane-Majake referred to page 28 of the presentation, on the prosecution of government corruption. She was concerned about the perception that the government was, as a whole, corrupt, and commended the NPA for disclosing their information about it. They needed more detailed information, however.
Ms Pilane-Majake said that domestic violence and femicide were ongoing problems, and advocated for increased funding to Thuthuzela Care Centres.
Ms Pilane-Majake asked what the NPA's plan was for reducing the number of remand detainees in the prison system.
Dr Motshekga noted for the record that Ms Breytenbach had worked for the NPA, and that apparently she had misled her party about her role in creating chaos at the NPA.
Mr Swart objected strongly to this. If Mr Motshekga wanted to question the integrity of a Member, he needed to bring a substantive motion.
Dr Motshekga said that he only meant that, as a former employee of the NPA, Ms Breytenbach ought to have recused herself. In closing, he supported the NPA's request for additional finances, and asked for any outstanding questions to be answered in writing.
Special Investigating Unit (SIU) briefing on its Annual Report 2014/15
Mr Gerhard Visagie (Acting head, SIU) said he would stick to key issues in his presentation. As per the request at a previous meeting with the Committee, he would include some information on the SIU's current operations. He also discussed some of their key operational challenges, human resources and financial information.
Mr Visagie said that due to changes in legislation at the end of 2014, the SIU had not had any history to rely on in setting its performance targets. As it happened, they achieved four out of eight of their targets, although there were several significant achievements which their targets had not measured. Notable achievements included the potential value of cash and/or assets recoverable by the SIU of R844m (where the target had been R200m), and the actual value of cash and/or assets recovered of R145m (where the target had been R145m). The SIU handled only four civil matters during the year, although they were all large, complex affairs, including the Nkandla case. 171 matters had been referred to the NPA, and 3 769 instances of possible disciplinary action were reported to state institutions.
Moving on to the SIU's current investigations, Mr Visagie pointed out that they did not have quarterly targets, so he could not give precise performance information. He discussed major ongoing investigations involving the Department of Public Works and the Department of Rural Development and Land Reform. The report on the Midvaal Municipality case was complete and would be submitted to the President the following week.
Mr Visagie talked about some of the SIU's major operational challenges. One was a culture of non-payment among state institutions, which was being closely monitored. The availability of key specialists was another ongoing problem.
On the topic of human resources, Mr Visagie indicated that a number of key appointments had been made.
Ms Nthombi Mothibeli (Chief Financial Officer, SIU) then rounded off the SIU presentation with a brief overview of the Unit's finances. Travel costs had been cut significantly from the previous year, and while operational costs had increased overall by 66%, this was largely due to impairment of debt of state institutions, as mentioned by Mr Visagie. The SIU had received an unqualified audit with one emphasis of matter relating to the restatement of 2013/14 financial results. Irregular expenditure incurred in 2014/15 was R4.9m and fruitless and wasteful expenditure amounted to R64 836. The SIU had a large amount of outstanding debt, having raised invoices amounting to R226m and only collecting R51m.
Ms Breytenbach was concerned that, of the 171 referrals made to the NPA, 151 were sent to the police for further investigation. Did the SIU follow up on the cases referred to the NPA? The Bosasa matter, for instance, had been referred to the police almost six years ago and had still not been finalised.
Mr Visagie said that there was a misunderstanding between the former head of the SIU, Mr Vas Soni, and the then-NDPP over who was responsible for opening a docket with the police. This had now been resolved, and the SIU had taken responsibility for opening dockets. He had no answer to the question of why matters were taking so long, however. The SIU sought to hand over fully-investigated matters to the NPA, but in practice a lot of the investigation ended up being redone. From June, the Presidency had been receiving copies of all referrals.
Ms Breytenbach asked for an update on the Nkandla matter.
Mr Visagie said that there was one civil case against the architect, Mr Minenhle Makhanya, to the value of R155m, and a number of disciplinary matters had been referred to the Department of Public Works, who had dealt with a significant portion of them. The defendant in the civil case had not yet pleaded because they had requested further information, judgement on which point was to be delivered the following day.
Mr Bongo asked for details about the identities of the SIU's debtors.
Mr Visagie said that he could provide a full list in writing.
Mr Bongo was concerned about irregular expenditure in the SIU.
Mr Visagie defended the SIU, pointing out that irregular expenditure was a very small amount, compared to their overall expenditure. He agreed however that the ultimate goal was zero irregular expenditure.
Mr Bongo asked about the racial composition of the lawyers who regularly represented the SIU. Did the SIU make a point of offering opportunities to people from previously disadvantaged groups?
Dr Motshekga agreed. This was a very general issue and he suggested that the Committee require departments to submit a list of the lawyers they used.
Mr Visagie said that they made use of the Office of the State Attorney, and therefore did not choose the individual lawyers who handled their cases.
Mr Horn asked about the SIU's consequence management with regard to its irregular and fruitless and wasteful expenditure. How far had their investigations progressed?
Mr Horn said that unless a process of coordination could be established with someone in the Presidency, who issued the proclamations, the number of proclamations issued should not remain as one of the SIU's performance measures.
Mr Visagie explained that the SIU played a significant and active role in obtaining those proclamations, which is why it was used as a performance measure. Nevertheless, there was a school of thought within the SIU which believed it should be removed, and it would probably be discussed at the next strategic meeting.
Mr Horn said that the matter of re-investigation by the NPA was now a recurring problem. Had any negotiations taken place between the SIU and the NPA?
Mr Visagie explained that he thought the matter had been resolved, but the problem was persisting at ground level: prosecutors continued to insist on the police re-investigating the SIU's submissions. He would continue to discuss the matter with the new NDPP.
Mr Horn was concerned that fewer and fewer proclamations ended up in civil litigation. Could this be considered a trend? What were the reasons for it?
Ms Mothapo asked what criteria were used to decide when to submit a Final Presidential report.
Ms Pilane-Majake asked what, if anything, the SIU was doing to combat the perception that South Africa was a generally corrupt country.
Ms Pilane-Majake was concerned about the relatively high staff turnover.
Dr Motshekga thanked the SIU and asked for outstanding questions to be answered in writing.
Minister of Justice address on Department of Justice & Constitutional Development Annual Report Minister of Justice and Correctional Services, Adv Michael Masutha, commended the Committee for its hard work over the years. His address was a bird's-eye view of activities in the department during 2014/15. He began his address by detailing some of the new senior management appointments that had been made recently and would be made imminently in the department. A new chief financial officer (CFO) had brought much needed stability, and candidates for the Deputy Directors-General for Constitutional Development and Court Services would be interviewed soon. He welcomed the stability that the new NDPP had brought to the NPA, and noted the appointment of the new acting head of the SIU.
Turning to operational matters, the Minister said the Integrated Justice System (IJS) project would play a pivotal role in improving the functionality of the criminal justice system. The process of rationalising the district court jurisdiction boundaries had begun in Diepsloot and the Court-Annexed Mediation project had begun in Mafikeng, with the aim in the first case of making justice more physically available and in the second less adversarial. The construction of the High Court buildings in Limpopo and Mpumalanga was progressing well, and the registers had been sent to the Chief Justice to appoint staff. On a more negative note, he had been disappointed by the state of the Durban High Court on a recent visit. The CFO was working on a roll of outstanding Truth and Reconciliation Commission (TRC) recommendations, and he said that he would be able to come back with a report on the special dispensation for presidential pardons for political offenders. Sexual offences courts continued to be rolled out across the country, and this matter needed special attention. There was also a problem of gender representativity in the legal profession. There were only five black female senior counsel in the country, and only about 100 black female advocates. He had asked the Director-General to make this her special concern.
Mr Mpumlwana said that there was no sign language interpretation in any court. This prejudiced deaf people seeking justice. He raised the issue of language in court more generally. He asked the departmental delegation to imagine being tried in a court in Vietnam, in Vietnamese. This was what it was like for many South Africans, especially in rural areas, who did not know English.
Mr Bongo added his voice to Mr Mpumlwana's, saying that universities should include at least one compulsory course in an African language for all law graduates.
The Minister agreed that the language question was critical. He himself had witnessed travesties of justice resulting from information being lost in translation.
Mr Mpumlwana again raised how the African understanding of justice, which favoured mediation and reconciliation between victims and offenders (as opposed to extracting offenders from society), could be introduced into the courts.
Mr John Jeffery, Justice and Correctional Services Deputy Minister, said that Court-Annexed Mediation had been introduced in Gauteng and the North West.
Mr Bongo asked what had happened to the Traditional Courts Bill. They had been told that it would be presented to them in October or November this year.
Ms Mothapo was also frustrated with the slow pace of transformation in the matter of traditional courts. The Committee had deliberated on this issue for more than a year and a new bill was supposed to have been tabled in September 2015. It did not seem as if the Department was taking the matter very seriously.
The Minister said that the Deputy Minister was in charge of the legislation programme and should be able to give the Committee a detailed programme going forward. He explained that the previous Traditional Courts Bill had not been passed but that it had lapsed in the hands of the National Council of Provinces (NCOP) and therefore had to be re-introduced. There had also been substantive issues, mainly concerning its impact on women.
Mr Bongo was concerned about the manner in which the Office of the State Attorney gave out briefs. They needed to ensure that black and female senior counsel were given an equitable share of state legal work.
Mr Swart agreed that this issue was a challenge, but said that there was an even greater problem of state departments wasting money on legal action in matters that should be settled much earlier.
On the same point, Mr Horn asked how successful the mentorship programme within the Office of the State Attorney, which had been funded last year, had been.
The Minister reported that he would, in matters where he was a litigant, only be represented by black women, unless none were available, regardless of what is at stake or the complexity of the matter. He would not compel others to choose legal representation on demographic principles, however; in matters that may involve millions or billions of rands, they should be allowed to choose their own representation. He admitted that spurious litigation was a drain on the State Attorney's resources.
Mr Jeffery explained that a target of 76% of the value of briefs to previously disadvantaged individuals (black people and women) was met. The question was why this was not reflected in the composition of the Bar? The imminent appointment of the Solicitor-General was expected to improve things.
Ms Nonkululeko Sindane (Director-General, Department of Justice and Constitutional Development) said that there was a real issue with black legal professionals. It was a daily fight, because people wanted to choose their own legal counsel.
Mr Swart commended the Ministry for the trafficking legislation that had been passed on 8 August 2015. He suggested that infrastructural problems like those at the Durban High Court might need to be dealt with at a ministerial level between the Departments of Justice, Correctional Services and Public Works.
The Minister said that a meeting between the Minister of Public Works and himself was being scheduled.
Mr Swart asked when the Justice Administered Fund Bill would be introduced. This Bill would help the Third Party Fund, which had been struggling for so many years to obtain a clean audit.
Mr Jeffery said that the notice of intention to introduce the Bill was published the day before in the Government Gazette.
Mr Horn said that although the Auditor-General had given the Guardian's Fund a clean audit, it had raised a potential issue of ageing and redundant IT systems. He was concerned that it may not be able to maintain its clean audit if the Minister's commitment to upgrading it, was not met.
Ms Sindane admitted that this was a concern of the department.
Ms Mothapo raised the transformation of the legal profession in terms of the Legal Practice Act. She appreciated the formation of National Forum on the Legal Profession, and asked when its first report would be presented to parliament.
The Minister said that the report dealt mostly with preliminary organisational matters, such as the setting up of systems and structures, but he agreed that it should be presented to Parliament in any case. High legal costs was one matter that needed to be brought under control urgently.
Ms Mothapo asked for clarity on the process of aligning magisterial districts. So far it had only occurred in Gauteng and the North West Province.
Mr Jeffery replied it was being rolled out in Limpopo and Mpumalanga, and would then be rolled out to the other provinces.
Ms Pilane-Majake called for harsher sentences for crimes against women, and greater support for women in the legal profession.
Ms Sindane agreed, and said they would be engaging with the NPA to see what could be done.
Ms Pilane-Majake drew attention to a worrying gap between the upper limit of people who qualify for legal aid and the lower limit of those who can really afford to pay for legal services. The means test needed to be revised.
Mr Jeffery said that Legal Aid South Africa could do more if they had more money. He said that this middle income band was a major concern of the Legal Practice Bill. The South African Law Reform Commission has already started with an investigation into this matter.
Ms Pilane-Majake was worried about the perception that South Africa was a corrupt country.
Dr Motshekga asked for a radical transformation of the colonial legal establishment. He expressed the belief that the Ministry was up to the task, but worried that the Ministry did not take the resolutions of the Committee seriously enough and was shifting the goalposts. We should draw inspiration from countries like Botswana and Ghana. He was concerned that matters specifically concerning the indigenous people of South Africa continued to take second place. He also raised a concern about the racial composition of the Land Claims Court. Three of the five 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 was worried whether uneducated rural people, faced with such a non-representative panel, would lose confidence in the court. There was a risk that people would resort to extra-legal avenues of land redistribution.
The Minister agreed that there were challenges at the Land Claims Court. The problems went beyond the land claims court to the Land Claims Commission. He had met informally with the Minister of Rural Development and Land Reform who had admitted that something needed to be done.
In response to various questions about the transformation of the justice system, the Minister noted that the traditional courts were actually operating within the law at present, according to an article in the 1927 Black Administration Act that had not been repealed with the rest of the Act, although this arrangement was obviously far from ideal. The Constitution also recognised the legitimacy of indigenous African law; there was no question that they were part of South African law. They did not require legitimisation by parliamentary statute. What parliament needed to do was to regulate them better. Indigenous law had not yet been properly integrated into the justice system, and very little had been done to integrate principles and values from indigenous law into mainstream jurisprudence. Academic literature needed to be produced by people like Dr Motshekga showing how this integration could be achieved. Some activism may also be necessary. There could be a study tour to Botswana and Ghana, he suggested.
Mr Jeffery agreed with the Minister that the existence of the traditional courts was not dependent on the Traditional Courts Bill. Even without the article of the Black Administration Act, they would exist in terms of the Constitution and in some provinces in terms of legislation inherited from the former homelands. In some places, traditional courts were under the magistrate's courts (so that appeals against their rulings would be heard by a magistrate). The ministry did not support this practice, as the two courts were operating according to different legal systems. He assured the Committee that it was a priority, but pleaded for patience, observing that the Bill had been in parliament for seven years. The issue of gender was key; in some traditional courts, women were not even allowed to represent themselves.
In terms of the rest of the legislation programme, Mr Jeffery said that he had already mentioned the Justice Administered Fund Bill in response to Mr Swart. Then there was the Protected Disclosures Amendment Bill, which extended the definition of “employee” to include contract workers, which would probably come to the Committee in 2016. The Cybercrime and Cyber Security Bill had been opened for public comment and would also be tabled next year, and legislation on hate crimes would hopefully go to Cabinet soon. Amendments to the Debt Collector's Act had been opened for public comment, and so far there had been a negative reaction to the proposal that attorneys involved in debt collection should fall under the Council for Debt Collectors. There was legislation that would amend the Magistrates Act and High Court Act in response to concerns raised by the Desai judgement on emolument orders. There was also an International Arbitration Bill that had been on the table for some time.
Dr Motshekga said that the issue of gender was not a genuine issue in the Traditional Courts Bill. The Department of Traditional Affairs had failed to implement the Traditional Governance Act, which would have addressed the non-representation of women. He proposed a joint meeting to try and get that Act passed.
Director General presentation on the Department’s Annual Report
Ms Nonkululeko Sindane noted that a lot of the content had been covered by the discussion with the Minister and Deputy Minister.
Ms Sindane said that the debate about the transformation of the LLB curriculum needed to be reinvigorated. The was a committee consisting of the department, deans of law faculties, the Department of Higher Education and Legal Aid South Africa which would be sitting again next week where the language issue would be debated. She explained that some aspects of the transformation of the legal system should not be left to the National Forum, but that the department should take some initiative.
Ms Sindane said that the department had received an unqualified audit for the third consecutive year. Where they had had findings, they were in agreement with the Auditor-General. She looked more closely at the Third Party Fund, an ongoing problem area. There had been steady improvements over the last five years, and the outlook was good. They had decided not to migrate “contaminated” data from the present IT system into the new one until it had been thoroughly cleaned. This was their biggest challenge in achieving a clean audit of the Third Party Fund.
In terms of performance, Ms Sindane said that the department had met 78 out of 92 performance targets. She discussed some of the highlights and persistent challenges in each of the department’s five programmes, which were detailed extensively in the presentation document.
Mr Horn asked the department to comment on the Auditor-General's observation that some of their apparent financial gains were the result, in Mr Horn's view, of creative bookkeeping, insofar as had all expenses been paid by the end of the year, liabilities would have exceeded assets. Had they been overdrawn at the end of the year?
Ms Sindane denied that any creative bookkeeping had taken place. She explained how that impression could have been given.
Mr Horn noted that fruitless and wasteful expenditure had increased in 2014/15. How did the department deal with transgressors in this respect?
Mr Horn was concerned about long-standing vacancies, which the Auditor-General had said was due to the failure of management to prioritise them.
Ms Sindane replied that they did not have a dedicated budget for head-hunting. She said that most of them were influenced by the occupational specific dispensation process. They had given themselves six months to fix the problem.
Ms Breytenbach noted the absence of a breakdown of the backlog in district and regional courts. She asked if the department could report on this in future.
Ms Breytenbach said that the implementation of a national action plan on domestic violence was due in 2014/15, and asked if any progress had been made on this issue.
Mr Swart asked when the final report on the process of evaluation of Constitutional Court and Supreme Court of Appeal judgements would be available.
Mr Swart asked if there was a known reason for the drop in the number of new maintenance applications.
Ms Mothapo asked for draft policy on the use of all official languages in courts to be fast-tracked.
Ms Pilane-Majake was concerned that gains for gender equality were being lost, and asked whether the department could hold another women's indaba.
Dr Motshekga questioned whether the Independent Development Trust, an agency of the Department of Public Works with its own problems, was the appropriate agency to have been sub-contracted with compiling a report on the TRC. He also asked what criteria were used for selecting communities for rehabilitation. In Gauteng, Alexandra and Mamelodi had been selected, although the problems there were of a general socio-economic nature. They were not problems arising from the violence of apartheid. Should not places like Boipatong and Sharpeville have been higher priorities?
With regard to the LLB language curriculum issue, Dr Motshekga said that the pace of transformation should not be determined by the universities, and he doubted that they appreciated the urgency of the matter. He had never received any information about the deliberations of the committee referred to by the Director-General, and he believed that the Portfolio Committee, as democratically elected representatives of the people, should be part of it.
Ms Sindane said that her office had received a dictionary of isiZulu legal terms, and the writer wanted to do something similar for other languages. They were currently assessing the quality of the book. She agreed that universities were not representatives of the people. One of the reasons they were engaging with them was to ensure that their linguistics departments had the personnel required to meet the proposed language teaching requirements.
Dr Motshekga was not sure a dictionary would be particularly helpful. Even the historically black universities had African language departments which were threatened by closure. These departments should be encouraged to contribute. He went on, saying that the judicial training of traditional leaders needed to be streamlined. The actual training also had to be carefully designed, so that the trainers did not try to impose a Eurocentric approach with the result that the training amounted to teaching the traditional leaders to be Europeans.
The departmental delegation was asked to respond to any outstanding questions in writing and the meeting was adjourned.
- Special Investigations Unit on its 2014/15 Annual Report
- Special Investigations Unit 2014/15 Annual Report
- Department of Justice and Constitutional Development 2014/15 Annual Report
- Department of Justice and Constitutional Development on its 2014/15 Annual Report
- National Prosecuting Authority 2014/15 Annual Report
- National Prosecuting Authority on its 2014/15 Annual Report
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