Department of Justice & Constitutional Development, Office of Chief Justice 2nd and 3rd quarter 2015 performance reports

Meeting report

Office of Chief Justice (OCJ) 2nd and 3rd quarter 2015 performance reports  
Ms Memme Sejosengwe, Secretary General, Office of the Chief Justice, began with an overview of the OCJ’s Quarter 2 performance (Q2). There are 35 indicators in 2015/16. Of the 32 targets set for reporting in Q2, 19 (59%) were achieved and 13 (41%) were not achieved. Of the 34 targets set for reporting in Q3, 22 (65%) were achieved and 12 (35%) were not achieved. There was an improvement of 22% in Judicial Support and Court Administration programmes, while Administration and Judicial Education and Research programmes fell by 7% and 34% respectively.

Reasons for performance decline in the Administration programme were given as  unfilled critical posts, untrained officials, unimplemented activities, un-investigated fraud cases, and invoices not paid within 30 days.

Reasons for performance increase in the Judicial Support and Court Administration programmes included the achievement of targets for the Supreme Court of Appeal, (which was not met in Q2) and achievement of targets in the Specialised Courts. However, some factors hamper performance. These include capacity constraints in developing the Customer Service Improvement Tool, increased jurisdiction challenges in the Constitutional Court (CC), and delays in finalisation of cases due to dependence on other stakeholders in the justice system in the High Courts and Specialised Courts.
 
Reasons for performance increase in the Judicial Education and Research programme are postponement of scheduled courses and a judge’s failure to disclose Registrable Interests as required. The judge has been reported to the Judicial Service Commission (JSC).

Ms Louraine Rossouw, Chief Financial Officer, Department of Justice and Constitutional Development gave the financial report. She noted that R742 million was budgeted for Quarters 2 and 3. The sum of R180.479 million was budgeted for Q2, of which R127.921 was spent. R187.049 million was budgeted for Q3, but R217.398 million was spent. Reasons for the variance in expenditure included  IT related costs, invoices not received, telephone bills wrongly sent to the Department, outstanding invoices for judicial training, and erroneous journal entries.  

Ms Sejosengwe explained the institutional challenges of the OCJ. These were office accommodation, inadequate IT systems, the need for capacitation of the OCJ at the senior management level, and lack of institutional independence (as the OCJ was still reliant upon the Department of Justice and Constitutional Development (DoJ & CD) for IT and Human Resources needs.


Discussion
The Chairperson remarked that the Secretary-General should be bold in expressing her challenges without creating the impression of dependence on external factors.

Mr W Horn (DA) remarked that the judiciary is trusted and held in high regard in South Africa. Given that the OCJ is a new body, there is a need to guard against erosion of trust in the judiciary. There are problems of governance in South Africa, and so the public would look to the judiciary for guidance, and even punishment. The lack of investigation into internal fraud cases, as cited in the report and payments not made within 30 days are examples of issues that could, ultimately, threaten the efficiency of the OCJ. It will be important to address them, as an audit of the OCJ is due shortly. He asked that these issues must be sorted out urgently in the next quarter.

Mr Horn queried the decline in court performance, especially the CC. He requested that the next report should not be confined to percentages, but should include the number of days that judgements are reserved. This is because of complaints that some judgements are reserved ad infinitum.

Mr S Swart (ACDP) requested a visit to the CC as a matter of courtesy. He remarked that the reduction in judicial education and research by 33%, due to postponement of scheduled courses, was significant. He requested clarity on this and on constraints facing the OCJ, notably institutional independence, accommodation, e-filing, and e-recording. He also enquired about steps being taken to address them.

Ms C Pilane-Majake (ANC) recognised that challenges always exist in new start-ups, but wondered why there were HR capacity constraints. She expressed concern over the sensitive issue of a judge’s failure to disclose interest and the huge sums spent in the training of judicial officers. She would advocate cost-effectiveness measures. She wondered why there were many vacant positions for magistrates, given that there are so many unemployed law graduates.

Ms Sejosengwe responded that the OCJ had adopted measures for cost-effectiveness. The OCJ blamed communication breakdown for the failure to hold judicial training and expressed a hope this would be addressed in the next quarter. She promised to address the Committee’s concerns. An internal audit department had been created and it was to be separated from the Risk Management Unit. There would be a director for HR, with effect from March 2016. The sharing of resources between the OCJ and the DoJ & CD is being managed. Work is being done on ensuring better accommodation. Information will be provided in the next quarter on the number of reserved judgements at the CC.

The Chairperson remarked that the OCJ will not be judged on external factors. He demanded an explanation as to why one judge’s failure to disclose interest could have such a massive impact on a sub-programme performance. He demanded to know how the OCJ intends to address its challenges.

Mr B Bongo (ANC) requested quicker attendance to cases, more staffing, and clearer articulation of the OCJ’s challenges, so that the Committee could know how to assist.

Another Member expressed concern over insecurity.

The Chairperson asked the OCJ to address the evaluation of judgements. He also asked why the OCJ uses hotels when there were many law faculties that could rather host OCJ events. He wondered why Parliament was not involved in OCJ meetings and echoed Mr Bongo’s concerns over the ‘bottlenecks’ affecting the OCJ’s efficiency. He again suggested that the OCJ be bold in expressing its challenges so that Members could know how they could assist.

Mr M Maila (ANC) expressed concern over performance dissonance between management and ‘other divisions.’

Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development,  explained that research into evaluation of judgements was being finalised. Following a meeting in late 2015, the issue would be submitted to Cabinet, and then Parliament.

Dr G Moshoeu, Chief Executive Officer, SA Judicial Education Institute, stated that the OCJ had interacted with universities and other departments on hosting training. The problem was that there were large numbers – for instance 154 magistrates – which meant that many of the universities could not accommodate this. Law professors are used as facilitators for judicial trainings.

Ms Pilane-Majake demanded to know why the Justice College Building was being used “as a taxi rank” instead of being used for training.

The Chairperson asked about the training of traditional leaders.

Ms Sejosengwe said she could not comment on the training of traditional leaders because of lack of information. She stated that the Justice College was established primarily to train judicial officers. When judicial training was taken over by the South African Judicial Education Institute (SAJEI), Justice College’s focus was shifted to international engagements, local court functions, and administration/governance. She acknowledged that the College had an abandoned building, which needed serious refurbishment. The College was then shifted to a building in UNISA on a contract basis for five years, and was subsequently moved to a building in the city.

The Chairperson said that there was a perception that the Land Claims Court (LCC) is neglected and that its demographics are wrong, because the majority of land claimants are black Africans, whereas majority of the judges are from minority groups and were seen as playing expensive sports such as golf with mainly white lawyers. He stated that the LCC will “build or sink this country” because people could boycott the courts and take the law into their hands, and this could develop into an unfortunate culture. He said that the current Land Restitution legislation did not favour claimants, and the LCC needed transformation. Lawyers representing claimants were generally poorly prepared. He expressed concern over the implications of this perception on the image of the judiciary and the fact that the current report made no mention of these problems. He asserted that since 2012, the LCC “has gone astray”. There is more emphasis on financial compensation than land restitution. This has negative implications for future generations, given that land disposition is a major contributor to poverty and inequality. He felt that there was an urgent need to visit the LCC, to try to address its transformation.  He requested what the OCJ was doing about racial imbalance in the LCC and repeated that the Restitution of Land Rights Act needed urgent amendment. He thought that Parliament must be activist in driving transformation.

Mr Swart acknowledged the critical importance of the LCC, but cautioned against criticising the racial balance in the LCC, which could be perceived as undermining its legitimacy. He also cautioned that Members should not be requesting the OCJ to comment on policy issues such as the amendment of legislation.

Ms Pilane-Majake agreed with Mr Swart that it would be useful to visit the LCC and CC.

Department of Justice and Constitutional Development (DOJ&CD) on 2nd and 3rd Quarter 2015 Performance
Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development, took the Committee through the presentation on the performance of the Department, programme by programme.

Programme 1 – Administration
Ms Sindane explained that R1.873 billion was budgeted for the period ending on 31 December 2015, of which R1.219 billion was spent. The underspending occurred because of outstanding payments for office accommodation, which would be paid in the 4th quarter.

A working group comprising of the Deputy Ministers of Justice and Constitutional Development, Traditional Affairs, representatives from government, traditional leaders, and civil society would meet on 26 February 2016 on the Traditional Courts Bill.

The main challenge facing the Paralegals Policy and Bill was funding, given that the current paralegals are largely volunteers and will not generate enough income.

A task team on inclusion of indigenous languages in the LLB curriculum was set up in 2013. It held a meeting on 20 January 2016 and decided the DoJ & CD should engage with the Departments of Higher Education and Basic Education. The University of Kwa-Zulu Natal has made isiZulu compulsory for this course.

A plan on a language policy in the justice service centres and the courts will be submitted to Parliament by the end of the 2015/16 financial year. A policy on Language of Record in the courts is yet to be finalised.  

A report on Court-Annexed Mediation has been prepared by the Ministerial Advisory Committee and a workshop will discuss this in the 4th quarter.

A provisional draft of the Lower Courts Bill will be prepared in the 2016/17 financial year.

A second report of the Legal Practice Forum on the legal profession is due for submission in the 4th quarter.

The National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) was tabled before Cabinet in the 3rd quarter. Cabinet granted approval for public consultations and the first meeting occurred in January 2016.

An advertisement for a Solicitor-General will be published in February 2016. Policies on briefing counsel, fee parameters, and the state litigation policy are being developed.

Ms Sindane described some of the highlights of service delivery, which included: launch of Small Claims courts in two communities in Mpumalanga and Limpopo, the Durban and Atlantis Sexual Offences courts, and the hosting of the Women in Legal Profession dialogue.

She noted that there was a target to hold 214 audit projects in Q3, but 181 audit projects were completed by the Internal Audit unit. Delay in extension of contracts for trainees hampered the achievement of set targets.

Of the target of 800 appointees to internship and learner-ship programmes, only 18 were met. No percentage was available on procurement spent on youth development.

There was a target of 42 fraud and corruption staff awareness workshops set for Q3, but only 34 were met.

Of the target of 75% forensic investigations, 87% were finalised.

Programme 2 – Court services
Programme expenditure is R4.043 billion, out of a budget of R5.579 billion.
She described the percentage achievement of the following targets:

Of the target of 3%, 0.17% of criminal cases were postponed due to unavailability of court administration staff.

Of the target of 55%, 90% of maintenance matters were finalised within 90 days.

Of the target of 100%, 100% of convictions were recorded electronically on the National Register for Sex Offenders (NRSO).

Of the target of 30%, 67% of non-litigation matters were finalised …

Programme 3 – State Legal Services
R712.3 million was spent out of the budget of R1.046 billion. The shortfall happened because of vacant posts.

In Q3, 30 420 letters of administration for deceased estates were issued, of which 27 825 were issued within 15 days of receipt of all required documents. Delays were caused by network downtime. 12 959 liquidation and distribution accounts in large estates were examined, and 11 999 were done within 15 days of receipt of all required documents.

12 084 beneficiaries of the Guardian’s Fund received services and 11 862 services were provided within 40 days. 3 010 certificates of appointment were issued and 2 824 were issued within 10 days of receipt.

2 039 liquidation and distribution accounts in bankruptcy matters were examined and 1 937 were done within 15 days of receipt. 9 358 Letters of Authority were issued in trusts and 7 898 were issued within 14 days of receipt. 27 751 new deceased estates were registered.

The sum of R183 167 767 was paid to counsel in the State Attorney’s office. 416 litigation matters were finalised. 172 positions were filled; but the target of training seven mangers was not met.

4 031 applications for expungements of criminal records were finalised; and of these, 2 956 were finalised within three months.

17 valid requests for extradition and mutual legal assistance were processed within 25 days.

23 legislative instruments were submitted to the Minister and 20 research papers were submitted to the South African Law Reform Commission. 11 amendments to court rules/forms were completed.

Five civic awareness campaigns reached 4.8 million people; 15 dialogues were held with relevant stakeholders, and 51 grants were awarded to civil society organisations.

0% success was recorded against the target of four completed needs analysis in four TRC listed communities.

Programme 4 – National Prosecuting Authority
R3.3 billion was allocated for Programme 4, of which R2.5 billion was spent.

114 884 cases were targeted in the lower courts through alternative dispute resolution mechanism (ADRM), of which 111 476 were finalised. The target of 78 359 in cases with verdicts fell short by 4 484. Although the target (of 36 525) in cases finalised in the lower courts through ADRM was exceeded by 1 076, a performance decline of 5 688 and 7 387 was recorded as compared to the 2nd and 3rd quarters. However, conviction rates in the High, Regional, and District courts improved.

Conviction rates were at 88%, and these fell short of the 90% target because of the complexity of organised crime and inability to predict the credibility of witnesses. A conviction rate of 71% was recorded in sexual offences, an improvement on the 2nd quarter and in comparison to the target of 68%. A conviction rate of 80% in trio crimes was recorded against the target of 85%. The conviction rate of violent protests and industrial actions was 7% below the target of 74%.

The conviction rate in complex commercial crimes is 2% more than the target of 93%.

Two persons were convicted or corruption/related offences against the target of five, while 27 government officials were convicted, exceeding the conviction target of 21.

Cybercrime recorded a conviction rate of 97% against the target of 74%.

Programme 5 – Auxiliary and Associated Services
Expenditure for Justice Modernisation amounted to R448.4 million against a budget of R901.4 million. This was the result of slow progress in the implementation of Criminal Justice System / Integrated Justice System (CJS/IJS) arising from delays in procurement processes and late submission of invoices by State Information Technology Agency (SITA).

Conclusion
The DoJ & CD recorded a performance of 61% in the Q3, compared to a performance of 67% in the 2nd quarter.

Discussion
The Chairperson expressed concern over the implementation of the Paralegals Policy. He stated that lawyers may be unwilling to fund the project because they see paralegals as competitors. He wondered whether seeking funding from business people might be a viable option. There were access to justice implications if the policy did not proceed.

Ms Sindane replied that the Chairperson’s observation of the Parliamentary mandate was correct. She stated that lawyers had in fact not, so far, hampered the paralegals project. The key obstacle is the Legal Practice Act.

The Chairperson responded that Parliament had oversight over the Legal Practice Act and could amend it if it was an obstacle. He stated that letting this matter ride for two years was too long, as it impacted on the important issue of access to justice. He had received an invitation from a civil society group to go to Scotland for a conference on paralegals. This was unfortunate because Parliament should drive the paralegal project. In any case, he opined that the country needed to find African solutions to African problems.

The Chairperson remarked that the duty of Parliament was not really to monitor consultations or works in progress, although most of the presentation had focused on this. He complained that the Forum against Racism is not functioning, although racism posed a threat to the gains of reconciliation in South Africa. Both government and Parliament had been marginalised on campaigns against racism. Xenophobia is a lesser threat than racism. Elected representatives stand a better chance of tackling racism than other government officials.  

Ms M Mothapo (ANC) stated that the delay in the promulgation of the Traditional Courts Bill is tantamount to denying access to justice to rural communities. She complained that the issue of indigenous languages policy was moving “at a snail’s pace”.

The Chairperson wondered why the people responsible for this issue are not brought before Parliament. He remarked that law faculties are presided over by people with little interest in indigenous languages.

Mr Bongo remarked that the non-regulation of churches posed a threat to social cohesion because of the nefarious activities that went on in some of them. He requested clarity on issues of transformation, the uniform approach to the indigenous language policy, and clear timeline of activities.

Mr Swart responded that the issue of religion was not on the agenda and properly belonged to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, but this did not imply that the issue was not relevant.

The Chairperson stated that, as public representatives, Parliament had a duty to address the sensitive issue of unregulated churches, even if it was not on the agenda.

Ms Sindane promised to look into the issue of the numerous consultations. She also promised to provide the timeline requested by Mr Bongo and acknowledged the need to avoid a piecemeal approach to indigenous languages. She pointed out that the DoJ & CD drives the NAP on racism. It had developed a policy on discrimination and racism as part of the Social Cohesion Project. This policy was now before Cabinet. There are also plans for awareness campaigns on racism and xenophobia in nine municipalities. Plans are under way to criminalise hate speech. There was money for constitutional development, but only part of that was earmarked to address racism. She acknowledged frustrations regarding the Traditional Courts Bill and promised to take this up, but did stress that there was a need for very wide consultations to ensure expression of broad opinion before the Bill comes to Parliament.

The Chairperson noted that nobody in the meeting appeared to be recording Ms Sindane’s responses, which he felt could hinder future agenda setting, monitoring and evaluation.

Ms Pilane-Majake noted that the TCB and the Paralegals Project had lingered on for too long and must be resolved soon. The issue with the Paralegals Project seems to revolve around the question of who was considered to be a paralegal. The issue with the Traditional Courts Bill was the perception that it disfavoured women. The core issues that constitute stumbling blocks need to be identified rather than engaging in endless consultations. One piece of legislation can deal with racism, xenophobia, homophobia, and all other intolerances.

The Chairperson stated that a deadline of June is needed for these issues to be resolved to ensure that the Bill would be dealt with this year. A new agenda of action for 2016 is needed, rather than debates. MPs are available for this through their constituency offices.

A Member requested clarity on some expenditure.

Ms Pilane-Majake enquired about progress on the work of the Foundation for Human Rights

The Chairperson remarked that internship interview questions sounded like something only staff were able to answer, and this hampers historically disadvantaged blacks. He requested explanation on the mode of recruitment of young black law graduates and the capacity of lawyers who were appearing before the LCC. There was a perception that a particular white-controlled firm determined the lawyers that appear before the LCC. He requested a meeting with those responsible for TRC matters, as well as the Board of the Foundation for Human Rights (FHR). The mandate of the FHR has changed, and the intentions and conditionality of their major donor, the EU, needs to be addressed.

Ms Pilane-Majake queried the low conviction rates for serious crimes and violent protests.

The Chairperson queried again the slow progress on the Traditional Courts Bill. He also mentioned slow progress on the Paralegals Project, which he said was straining the efficiency of the judiciary. He called for legislation to be presented, before Parliament goes on recess in May, failing which Parliament will, on its own, adopt legislation.

Ms Mothapo wondered why women are disfavoured in job creation.

Ms Sindane responded that capacity is a crucial issue for the DoJ & CD’s performance, given that many State Attorney entrants are at junior level. She assured the Committee  that the DoJ & CD is engaging with the FHR on issues of human rights. The EU’s funding to the FHR is based on proposals submitted. Bilateral agreements are being reviewed to address the issue of people fleeing to South Africa after committing crimes.

She noted that the DoJ & CD will investigate questions asked during internship interviews. However, she herself was unaware of any bias in these questions. Two key issues involved in the appointment of young black lawyers are limited funds and few employment opportunities after the two-year internship. This will be re-examined.

The complaints raised about the LCC will be investigated and a report submitted.

She confirmed that the low conviction rate for serious crimes was of concern. The core reason is unwillingness to give evidence, on the part of arresting officers, and inefficient CCTVs. Violent protests are threats to state security.

She said that she would provide the litigation strategy to show how women are protected. Consultations were presently winding up on this issue.

The Chairperson noted that issues of access to justice, indigenous language, the Traditional Courts Bill, and other matters were all raised and questioned on the last occasion that the DOJ&CD came to report to Parliament. It would not be good if the Director General were to return again without having quite substantial reports on the progress made. Her report was well taken but he wanted to reiterate that action is now needed.

The meeting was adjourned.