The Department of Justice and Constitutional Development (DoJ & CD) presented the Strategic Plan for 2015/20, Annual Performance Plan for 2016/17, and budget. The Department had been asked to focus on certain areas, and so the first part of the presentation covered the Policy on Traditional Courts, with a briefing on the current status and problem areas that had needed to be addressed in the new draft of the Traditional Courts Bill (TCB). Notable issues on which consensus was reached, after more consultation, were the participation of women in traditional courts (although there was no consensus on gender parity), flexibility of the TCB on jurisdictional boundaries, distinction between the civil and criminal jurisdiction of traditional courts, exclusion of legal representation, harmonisation of appeal/review mechanisms, accountability of traditional leaders, and need for a record of proceedings. Consensus was not reached on the nature of traditional courts, opting out of traditional court jurisdiction, powers of traditional leaders, and enforcement mechanisms of traditional courts. Members were appreciative of the presentation, both its scope and focus on areas that the Committee had particularly asked should be addressed. One view expressed that appeals should lie within traditional structures rather than to conventional courts. Some Members were concerned about the exclusion of lawyers from the TCB, but the point was also made that the main problem if they were to be included would be to get them properly trained. Members made the point, with brief historical examples, of how customary law had been distorted. There was a concern that a provision to allow people to opt out of traditional courts’ authority could undermine their legitimacy. One Member stressed the need to find a balance between the Bill of Rights and certain elements of customary law, while another suggested that Ubuntu should be the source of the values and rights in the Constitution. The Department was urged to hold awareness programmes on the provisions of the TCB. It was noted that the Bill would be submitted to Parliament shortly.
In a second presentation, the Department outlined the current status and timelines of the Policy on Paralegals, Prevention and Combating of Hate Crimes and Hate Speech, National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related incidences, Policy on Inclusion of Indigenous Languages in the LLB Curriculum, Policy on Implementation of Language of Record in the Courts, Policy Framework on the transformation of Magistrates Courts and the Lower Courts Bill, Policy on Community Courts, Policy Framework on the Alternative Court Administration (Court Agency Bill); and Policy Framework on Court Annexed Mediation. The Department would need sufficient time to consult and arrive at acceptable definition of racism; the Chairperson suggested that the Department should look into legislation on anti-Semitism.
There had been mixed progress on the inclusion of indigenous languages in the LLB Curriculum, and the DoJ&CD still needed to obtain the approval of the Department of Higher Education and Training, DoJ & CD spent over R457 million on court interpreters in the 2015/16 financial year. The Chairperson called for a workshop with civil society and government departments to tackle the triple challenge of poverty, unemployment, and inequality.
The Department then presented the Annual Performance Plan and Budget Allocation for 2016/17, saying that the DoJ&CD was still focusing on priority areas of good governance, clean audit, youth employment, and service turnaround in the State Attorney and maintenance services. Estimated budgets were outlined for the whole MTEF, and specifically for the Legal Practice Act and the Transformation of State Legal Services.
During the deliberations, the Chairperson emphasised that the Department should consider the fundamental African value of Ubuntu as the fountainhead for constitutional values in South Africa. Several Members questioned the Department on progress with capital works projects, and what they perceived as a reduction in the targets for various programmes including the National Prosecuting Authority. Members also asked for clarity on certain aspects of the Integrated Justice System
The Office of the Chief Justice presented the entity’s Annual Performance Plan and Strategic Plan. The presentation covered the three programmes of the newly created Department: Administration, Court Services and Judicial Education and Research. It listed the strategic objectives and key performance indicators under each programme, some of which had been adopted from the Department of Justice and Constitutional Development. The presentation also included an overview of the budget for the Office and strategic risks to its performance.
The Chairperson and some Members emphasised the importance of land reform for the effective functioning of our constitutional democracy and questioned the Office on its role in ensuring the efficiency of the Land Claims Court, given its performance indicator in this regard. Members again questioned why the Office was not pushing its targets as far as was possible and conversely that some of the Court performance targets seemed ambitious, particularly with regard to reserved judgements.
Members asked whether the moratorium on new employees in the public service would affect the operations of the Office.
The Special Investigating Unit indicated that due to the nature of its operations it was difficult for it to draft a normal Annual Performance Plan, because its workload was determined by the proclamations it received from the President. However, the Acting Head of the Unit had reworked the approach, leading to a new set of performance indicators that would better indicate the Unit’s performance. The presentation covered the Unit’s two programmes: Administration and Operations. Further, an overview of the budget that indicated the two revenue streams of the Unit: grants from National Treasury and payments from the state entities that the Unit investigates and charges for its services. Lastly, the presentation indicated the major strategic risks to the Unit’s performance.
Members asked why the Special Tribunal had not been established to deal with the litigation by the Unit and whether the impediments to cooperation between the Unit and relevant bodies such as the National Prosecuting Authority and the South African Police Service had been resolved and what the state of cooperation was at present.
Department of Justice and Constitutional Development Strategic Plan introduction
The Chairperson stated that the budget and plans should reflect the radical transformation the nation seeks to achieve, ensure justice for everyone, especially people in the rural areas, and aim to rehabilitate convicts.
Ms Nonkululeko Sindane, Director General, Department of Justice and Constitutional Development noted that her presentation of the Strategic Plan for 2015/20, Annual Performance Plan for 2016/17, and budget was informed by the meeting with Parliament and the Department (or DoJ & in February.
She noted that her presentation would focus on the following areas:
Policy on Traditional Courts
Traditional Courts Bill
Policy on Paralegals
Prevention and Combating of Hate Crimes and Hate Speech
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related incidences
Policy on Inclusion of Indigenous Languages in the LLB Curriculum
Policy on Implementation of Language of Record in the Courts
Policy Framework on the transformation of Magistrates Courts and the Lower Courts Bill
Policy on Community Courts
Policy Framework on the Alternative Court Administration (Court Agency Bill); and
Policy Framework on Court Annexed Mediation
She stated that the timelines of the strategy plan are realistic, although they are dependent on economic variables, notably depreciation of the rand.
Traditional Courts Bill
Advocate JB Skosana, Deputy Director: Court Services, DoJ&CD, noted that the Traditional Courts Bill (TCB) had not been passed when first introduced, because of concerns raised about the adequacy of consultations. There are 1 886 traditional courts in the country. The key outcome of dialogue on the TCB is that it must allow customary law to flourish, because it is a living law recognised by the Constitution. Consensus was reached on these issues:
Engagement of both government and civil society through the Reference Group
Participation of women in traditional courts, although there had been no consensus on gender parity
Recognition of levels of dispute resolution
Flexibility of the TCB on jurisdictional boundaries so courts can respond to people’s needs
Need to distinguish between the civil and criminal jurisdiction of traditional courts
Traditional courts should have wider scope than conventional courts because they can hear matters that may lack jurisdiction in conventional courts
Exclusion of legal representation
Corrective sanctions should be consistent with traditional values in order to avoid traditional leaders benefiting from compensation orders
Need to harmonise appeal/review mechanisms
Need to hold traditional leaders accountable in line with the Constitution
Provision for a record of proceedings to assist appeals.
There was lack of consensus on the nature of traditional courts, opting out of the traditional justice system, powers of traditional leaders, and enforcement mechanisms of traditional courts.
The draft bill is set to be finalised by 30 April 2016 and is due to be presented to Parliament by April/May 2016.
The Chairperson noted that Parliament respected the doctrine of separation of powers. He was pleased to see that the delegation had heeded the instructions of the Committee. He expressed concern over the principle of legal certainty in the TCB. He also stated that the Traditional Governance Framework Act distorted the hierarchy of power in traditional governance. Ordinarily, there should be no appeal from traditional courts because they are the ultimate authority in traditional matters.
Ms M Mothapo (ANC) was appreciative that the DoJ & CD was addressing the issues raised by the Committee. However, she expressed concern over the option of opting out of traditional courts’ authority because of the problems around legitimacy that this could cause. She stated that appeals should lie within traditional structures rather than to conventional courts, because judges in these courts do not understand customary law.
Mr B Bongo (ANC) also congratulated the DoJ & CD on a good presentation. He noted that the right to legal representation is a fundamental right and its exclusion from the TCB may be problematic.
Ms C Pilane-Majake (ANC) called for awareness programmes on the provisions of the TCB. She also requested that the DoJ & CD should collaborate with the Department of Cooperative Governance and Traditional Affairs (COGTA) because of the perception that traditional governance is not representative of women.
Mr L Mpumlwana (ANC) remarked that customary law and traditional courts had been distorted. Dispute resolution used to be based on the family, and used to be carried out in a collegial manner, with the extended family being the next step in dispute resolution. When the colonialists arrived, they chose the heads of families or other persons and appointed them chiefs and headmen, and they then exercised powers over other families. The colonial powers had also introduced prisons, criminal law, and other laws foreign to customary law. They removed traditional leaders they disliked and appointed unpopular/unwanted individuals over the people. This all created a legitimacy problem, as well as the dichotomy between official and living versions of customary law. The question remained - what is regarded as customary law and which version of it is to be applied? More research is still needed on cultural pluralism in varying areas and the impact of colonial rule in each area.
Mr W Horn (DA) stated that wisdom is needed to find a balance between the Bill of Rights and certain elements of customary/indigenous law, because there will always be tension between a body of laws that regulates individual rights and family or communal rights. He thought that more research was perhaps needed on the jurisdiction and opting out issues, including speaking to communities.
The Chairperson noted that social changes had altered the manner in which traditional justice is administered. He suggested that the concept of Ubuntu should be embedded into the Constitution as the source of all its values and rights. The issue of opting out should be dependent on recognised practice in communities. Appeals should lie within traditional systems, not to conventional courts. He added that introducing allowances for legal representation in traditional courts can be problematic because the teaching of indigenous law is optional in the universities, whereas the Roman-Dutch law is compulsory. The training of the lawyers who might appear in traditional courts is crucial. Also, legal presentation under the Roman-Dutch legal system is adversarial, unlike indigenous law.
The Chairperson echoed Mr Mpumlwana’s observations about customary law’s distortion. He said that unfortunately, customary law cannot be brought back to what it used to be. He noted that individual rights are not absolute because no person is an island. Individual rights are subject to group rights. Thus, a balance is needed in order to reach the situation where the TCB could proceed. He felt that the DoJ & CD would succeed in getting the TCB ready for parliamentary submission.
Adv Skosana stated that the TCB will be presented, together with a report that covers the concerns raised by Members. He cited Judge Albie Sach’s work on Ubuntu as an example of what the report can contain. He said that opting out must be balanced or weighed with opting in, to avoid a situation where individuals make selective use of the courts to suit their own motives.
He also pointed out that Chapter 12 of the Constitution recognises customary law and encourages the courts to develop it in line with the Bill of Rights. The implication of this is that if traditional courts fail to develop customary law or reverse its distortions, the Constitutional Court will do it for them. The Court would not be able to make an in-depth examination of living law itself, because it acts on materials before them.
The Chairperson noted that the DoJ & CD had fulfilled the brief from Parliament. He congratulated the Department for shifting its focus from the formal legal system to the indigenous system, remarking that customary law derives its legitimacy from the manner in which people will develop it to suit their needs. He restated that the Bill of Rights comes from our common humanity, not from any foreign legal system. He gave a short historical explanation of this, beginning from the first Bill of Rights in South Africa in 1923. He felt that there is no need to interpret human rights in South Africa from a Western perspective, saying that human rights principles are embedded in language and tradition. For this reason, he felt that it was important to study indigenous languages because they embody the people’s soul and sense of justice.
Ms Sindane outlined a list of bills and policies that were being prepared for implementation by the Department, setting out timelines for each (see attached presentation). These were:
- Policy on Paralegals
- Prevention and Combating of Hate Crimes and Hate Speech Bill
- National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related incidences
- Policy on Inclusion of Indigenous Languages in the LLB Curriculum
- Policy Framework on the transformation of Magistrates Courts and the Lower Courts Bill
- Policy on Community Courts
- Policy Framework on the Alternative Court Administration (Court Agency Bill)
- Policy Framework on Court Annexed Mediation
She made the point that the Department needed sufficient time to consult and arrive at an acceptable definition of racism.
The Chairperson suggested that the Department might get insight from legislation on anti-Semitism.
The Chairperson noted that donor agencies had funded NGOs to fight apartheid. The problem with the Lands Claim Courts is land dispositions, which is informed by the triple challenge of poverty, unemployment, and inequality. Civil society should tackle these challenges, which are capable of destroying the nation’s democratic ideals. Paralegals and the Foundation for Human Rights should spearhead these issues. He also felt that a workshop was needed on this, ideally with input from the Departments of Agriculture, Economic Development, Environmental Affairs, and Traditional Affairs. In traditional societies, land was closely related to religion, so an understanding of the traditions and cultures of indigenous communities is part of building a new cohesive society.
Ms Sindane stated that events in December 2015 have given momentum to the National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related incidences. A summit had been arranged on this, in September 2016 on this.
The Chairperson suggested a policy document with an executive summary on the NAP.
Ms Sindane reported that some universities were lagging behind in the inclusion of indigenous languages in the LLB Curriculum, but the University of KwaZulu Natal and others were ahead. The DoJ & CD had to go through the Department of Higher Education and Training (DHET) and universities to realise this policy.
The Chairperson remarked that the DoJ & CD should not be held hostage by the DHET in the realisation of indigenous languages in the LLB Curriculum.
Ms Sindane disclosed that the DoJ & CD spent over R457 million on court interpreters in the 2015/16 financial year. Using one of the official languages as the language of record would not significantly shift this cost, given the varied languages that still required interpretation in the courts. From an administrative standpoint, considerable resources are needed to train personnel in indigenous languages.
Annual performance plan and budget allocation 2016/17
Ms Lebogang Mphahlele-Ntsasa, Chief Director: Strategy, Monitoring and Evaluation, DOJ&CD presented the Annual Performance Plan (APP) and Budget Allocation for 2016/17.
Ms Mphahlele-Ntsasa stated that the key priorities of the DoJ & CD remained:
- Good governance and clean administration, resulting in no audit qualification
- Service turnaround in the State Attorney
- Service turnaround in maintenance services
- Youth employment opportunities
She presented estimated budgets for the Legal Practice Act, the Transformation of State Legal Services, and the MTEF (see attached presentation for details).
The morning session was adjourned
Briefing by Department of Justice and Constitutional Development continued…
Programme 2: Court Services
Ms Mphahlele-Ntsasa said Objective 7 is increased protection in the best interest of children and promotion of family cohesion through mediation services. Here the Chief Family Advocate will continue to increase the number of children who will be assisted through the family advocate intervention to 58 320 by the end of 5 years. Objective 8, access to justice for marginalised communities, here the Department of Justice and Constitutional Development (DOJCD or the Department) continues with the roll out of the small claims courts with 44 remaining. Further, continue with the implementation of the Superior Courts Act to ensure that every province has a high court, six over the next three financial years.
Programme 3: State Legal Services
Ms Mphahlele-Ntsasa, on increased efficiency in the provision of Masters services to all beneficiaries thereof, said a new target has been placed here to increase the number of cases handled by the offices of the Master of the High Court from 273 527 to 305 606. To improve management of litigation on behalf of the state to reduce litigation costs and transform the legal profession the DOJCD’s target of 76% for briefs to previously disadvantaged individuals will be maintained. Further, the process of appointing a Solicitor-General is underway, with the post having been advertised. The DOJCD’s plan for the re-integration of petty offenders into socio-economic environment is aimed at 70 000 offenders and involves doing expungement on time. Under the objective of increased compliance with international obligations by the Department, the DOJCD has identified all the country reports that are due and intends to track compliance with the obligations under the international instruments beyond reporting. Further, it plans to finalise six country reports and four ratifications. For the promotion of broad based knowledge about and support for values of fundamental human rights, the Department plans to increase awareness of constitutional rights from 54% in 2015/16 to 65% over the current Medium Term Strategic Framework (MTSF) period. With the TRC the Regulations on Community Rehabilitation will be finalised during 2016/17 financial year. The finalisation of regulations will enable the Department to implement the 18 community rehabilitation projects consulted on which there are targeted for completion over the next five years. To date 11 out of 18 communities are completed, with the remainder intended for this financial year. Further, the Minister officially launched the Gallows Exhumation Project on Wednesday, 23 March 2016 for the exhumation of 83 political prisoners.
Programme 4: National Prosecuting Authority (NPA)
Ms Mphahlele-Ntsasa said there are three strategic objectives under the NPA: increased successful prosecution, ensure that profit is removed from crime, and ensure threatened witnesses and related persons are successfully protected. The indicators for the first are the conviction rates in Regional, District and High Courts. This is to be met through targets including number of criminal cases finalised in lower courts through ADRM; conviction rate in sexual offences, complex commercial crimes, trio crimes, cyber crime and violent protests; and number of government officials convicted for corruption or offences related to corruption. The indicator for the second objective is the number of completed forfeiture cases and value of freezing orders. The targets here include: Value of freezing orders relating to corruption where the amount benefited per case is more than R5 million, value of recoveries relating to corruption where the amount benefited is more than R5 million, value of recoveries in terms of Prevention of Organised Crime Act.
Programme 5: Auxiliary Services
Mr Leseba said the Integrated Justice System (IJS) has seen three Departments successfully integrated. The DOJCD’s Integrated Case Management System (ICMS) has been integrated with the Case Management System (CAS) in over 1153 police stations, including detective services and military police stations. In the past weeks a massive roll out of the Electronic Case Management System (ECMS) was done connecting 509 courts to the footprint.
Mr Leseba moved on to what DOJCD still has to do. This included systems for the investigating officers’ diary to assist with collaboration between the South African Police Service (SAPS) and the NPA, to ensure digital communication between the investigating officer and prosecutor. Further areas were: automated feedback that brings the case outcome to relevant departments in the criminal justice system. The DOJCD is sending legal aid notifications from about 848 police stations communicating with justice centres across the country and is continuing to enhance the electronic legal aid application. The Integrated Inmate Management System in the Department of Correctional Services (DCS) has gone through proof of concept, solution requirements and procurement has gone through the tender award stage. The architecture design is underway and system development will commence soon. The Department of Social Development (DSD) deals with children in conflict with the law and the application and end-point development are complete. The DOJCD is negotiating with the State Information and Technology Agency (SITA) and Telkom for the necessary connectivity to the transversal hub.
Mr Leseba spoke to a slide that depicted how the IJS integration infrastructure works. It showed that at the centre was the transversal hub, the orchestrating layer that moves information between Departments. This defines the language that all Departments information is transmitted as and each Department has a translator for any relevant information in the criminal justice hub. The beginning of the value chain is the SAPS and docket information is available for relevant Departments, especially the NPA for prosecution decisions. The DOJCD can send case outcome information between the NPA and SAPS. Legal Aid South Africa (LASA) is connect with electronic legal aid notifications, indicating where and when an indigent person will appear in court so a legal aid representative can appear. The DOJD is working with the Department of Home Affairs (DHA) towards verifying the identities of known individuals, to allow biometric verification. A lot of progress has been made towards putting in place the base infrastructure and connecting necessary Departments. There are areas of backlog, leading to a lack of integration, but the DSD and DHA are on the way. The Office of the Chief Justice (OCJ) is still a grey area and when its role is defined it will be given an independent space in the IJS integration. A lot of work has been put in over the years under Ms Nonkululeko Sindane, Director General of the Department of Justice and Constitutional Development, is to move the IJS to where it is seeing the benefit of the investment over the year. The DOJCD is deploying electronic measures to make all Departments in the justice cluster ensure information is more and more available in a digital form.
The Chairperson said he was very scathing the previous day and he had felt the DOJCD had forgotten about the IJS. What has been presented is beyond expectation. Someone had said the weakness of this government is communication, there is a lot of good work happening and if Members do not even know, what about the broader public. A way of communicating more should be found, because this is a good story to tell.
The Chairperson said looking at page 10 dealing with the values, the DOJCD talks about commitment to constitutional values. However, these values have an evolutionary history and the idea of ubuntu is the fountainhead of constitutional values. He urged the Department to begin looking at ubuntu and mainstream it as the source of our values. Secondly, “if you read the strategy and tactics document of the governing party, because whether we like it or not the governing party is governed by its own policy documents” they state that the aim is “to create a non-racial, non-sexist, united, democratic and prosperous society in which the value of every citizen is measured by our common humanity”. In other words the value of every citizen must be measured by our ubuntu. Ubuntu provides the foundation for the society the ANC wants to create. Ubuntu in Afrikaans is “menslikheid”, in German it is “menschheit”, so ubuntu is a universal concept. It transcends race, class and gender, so South Africa does not have to run around the world looking for values, we have unifying values here. Talking about a culture of human rights is not enough; it should be a culture of human and people’s rights, because there are things like the African Charter of Human and People’s Rights. This raises the importance of the domestication of African human rights instruments. This also applies to the application of the rule of law in an African context, because we are saying South Africa is not an outpost of Europe. It is an African country, at the southernmost point of the continent. So, African values should not play second fiddle to any other.
The Chairperson turned to page 13 of the presentation; objective 4 is to promote constitutionalism and social justice towards social cohesion. To achieve this certain vehicles are required, such as community law centres, advice centres and paralegals within the communities that have the capacity to achieve these goals. If the Department gets money from the Foundation for Human Rights and capacitates these structures the goals will be more easily realised. On page 14, the Department speaks of the establishment of the Legal Practice Council. Unless he misunderstood the matter, it seems that the Department is postponing paralegals, because it does not have the budget. However, he did not think that the Legal Practice Council, a collective of professionals, should not dictate the pace of access to justice for our communities. Turning to page 22 and objective 16, we talk about equality, dignity and fundamental human rights, but this was too much English, because the starting point should be our common humanity or ubuntu. If this is the start, from there three values can be derived equality, freedom and fraternity. Conceptually a way of looking at this being our foundation should be found. Page 25: objective 10 deals with Masters services and he had heard of a case against the DOJ by insolvency practitioners “who were resisting transformation” and the Minister’s regulations. He asked how far that process had gone, because he felt the regulations were progressive and did not know whether the Department had abandoned the effort due to opposition. Page 34, on paralegals in district and regional courts. This is fine, but the Committee was also talking about paralegals in advice centres and community law clinics, so could this area be addressed. Further, the Committee is told that it produces unemployable law graduates, but law is a practical thing and what happened to the idea of community service for law students. If there is funding from the Foundation for Human Rights, can some it be channelled to universities to force them to have law clinics so that concurrently with their academic work law students get practical exposure. Law is sometimes taught as if it does not apply to human beings, but there are the humanities and we need a way of getting people to study law in a social way. On the employment of the youth, sometimes when the youth employment is spoken of the young people take it as a sign that they must leave school prematurely. We should also be emphasising their development, so that as they are exposed through things like internships and learnerships and not rush for permanent employment. On page 44, the question of the sexual offenders’ courts is important, but where do these sexual offences take place? It is in informal settlements where there are no access roads for ambulances or police vehicles. These problems therefore cannot be addressed through the formal system. This is why some of us think that if government prioritises community courts, inside the inaccessible places the communities will be able to handle the matters, thus empowering communities to deal with their own challenges. Regarding objective 16, Ms Sindane had addressed this, but there is reference to awareness of constitutional rights. Adv Ameermia, Commissioner: South African Human Rights Commission produced a paper where he was arguing that about 40% or less of the people have heard of the Constitution. The Committee should get hold of the discussion document and share it. He encouraged channelling some of the funding to create awareness about the Constitution, because the law must be certain, which means the law must be known.
Ms Mothapo was concerned about the performance of the NPA, especially with the downward trend in the targets. What steps did the NPA intend taking to address this concern? On infrastructure in the Department, previously the Committee was told that there would be infrastructure project management meetings and she asked for an update. Further, information on any resolutions taken at the meeting between the Minister of Justice and Correctional Services and the Minister of Public Works held on the 9 March. Also an update on whether the Polokwane High court was fully functional, including whether the parking challenges have been addressed. With Mpumalanga High Court she asked how far the project was given that the report indicated that it would be completed during 2016. The Committee had been informed that there would be a roll out of the Integrated Case Management System (ICMS) to courts and what was the progress. Lastly, she asked for an update on trilateral agreements between the DOJCD, Telkom and SITA and whether there are any delays.
Mr M Maila (ANC) said the report had revived his excitement about the IJS and the Department of Correctional Services coming into the picture encouraged him. He wanted clarity on the issue of police stations, because the DOJCD had indicated that there were about 850 regarding legal aid and elsewhere indicated something else about 1100 police stations. He also congratulated the DOJCD on the unqualified audit, and encouraged it to strive for a clean audit. On vetting of Senior Management Staff and other procurement staff, what is the turnaround time for vetting and how does it affect the Department’s priorities?
Mr Horn said the difficulty he had with the presentation was that it focused largely on the strategic plan, but looking at the Annual Performance Plan (APP) against the performance of last year then it does not make for such good reading. He did not know whether that was why the Department decided to focus more on its strategy. The DOJ must give the Committee convincing arguments about targets that were not met last year and have been changed. He specifically referred to the backlog of cases, because in September 2015 there were nearly 39000, the majority of which were in the Regional Courts. The target in the APP has now been shifted from 34000 to 31000. Particularly as when the Department was engaged in the BRRR it had given a firm commitment that it would be moving in the other direction. Further, the reduction in the target for freezing orders and also the establishment of sexual offences courts to only eight courts, which affects the National Development Plan priorities. It raises a question about the commitments given the previous day by the Minister that combating speciality crimes remains a firm focus of the Department. A question was raised the previous day, but not answered by the Minister. This was that Parliament did its part in crafting a new legislative framework for third party funds, but the target date for an unqualified audit has been moved outward yet again. That needs an answer and Members know about the two-pronged approach in the legislation and implementation of new systems. He noted that the Director General had said that she and the Minister “walk on eggshells” whenever they approach the issue of a judicially led court administration mode. There was supposed to be a colloquium of stakeholders at the end of 2015, but the Minister had informed the Committee that there is now ad hoc consultation and a policy position will be finalised after this on-going consultation. Is the issue of a judicial led court administration model to be determined by a policy? Because, it involves the “sacred principle of the separation of powers”. If it is agreed that the end result of the evolution of the separation of powers is that we should have a judicially led court administration, we must ask if this needs a policy formulation. If the principle is agreed to, then the only discussion should be on how implementation will happen. Capital projects have been raised, but he wanted to add his voice. Particularly given the economic environment. This brings forward the effect of delays, not only regarding service delivery, but cost overruns on budget and the detrimental effect on departmental budgets. The outlying years of the Medium Term Strategic Framework (MTEF) are seeing budget cuts or smaller than expected increases which will have an effect on the ability of the Department to deliver services. He had to remind the DOJ that if capital projects had been managed in a financially prudent way, that money could have been available. On IJS, while he agreed that the information and commitment seen today should be commended, the issue remains that looking at other reports of the Department, it must be questioned that the DOJ has now come to the realisation that implementation has been hampered by ICT infrastructure not being up to standard. This includes things like cables and so on. Nearly a billion has already been poured into this project and calls into question whether proper project management was applied here if simple things like cables have to be upgraded at offices before implementation can happen. While it is good news that the number of police stations and court buildings have been partially integrated, the question still remains when will the system be seen to function at the role players’ offices in the big metros. Only once the IJS is functional in the metros can it be said that there is an integrated system. The Minister had been “very cross” when he had said if you divide the cost of the few cases put through the system the previous year it amounts to millions of Rands per case. The Committee really needs tangible information on when people in at least the metros will benefit from the system. Lastly, on the long presentation on the legislative programme and policy reviews, in a country where there is at least a perception that we lose a lot of money through corruption it is unacceptable that the review of the Prevention and Combating of Corrupt Activities Act (Prevention of Corrupt Activities Act) has been pushed away, despite an initial target date of last year. Even though the Department has made a fresh commitment to reviewing the framework, if government is serious about combating corruption this is the type of things that must be prioritised.
Ms Pilane-Majake congratulated the DOJCD on the improvement and good work done over the years, as seen with the unqualified audit. An area that is impressive and has seen much development over the year is the space in which the judiciary operates and the standard of courts at present should be commended. On the Small Claims Courts, the distance between these courts and the offices of Sheriffs is a problem that was previously raised. She asked whether the Department had managed to look at it. The information the Committee had was that Small Claims Courts are in place, but the distance people must travel between them and the Sheriff’s offices were too great. Some of these were in areas that were only accessible to people who had cars and not to those using public transport. On international obligations, it was good to understand the level at which the DOJCD was trying to coordinate the responsibilities of all Departments, because it is a lot of work to have them submit reports towards compliance. At the same time, it is important for the Deparment to assess the information submitted, because going through the motions of ratifying instruments and submitting country reports is not as important as the results. This may compromise the work which South Africa is doing and is important to continuing to support our democracy. When talking of international obligations, the Department must not forget about regional instruments, because the focus tends to be on United Nations instruments. We are on the continent of Africa and it would be good for the Committee to get information about African Union instruments as this speaks to the idea of African countries complying with African requirements. On children in conflict with the law, she was concerned about how children who are drug addicts. Are there enough mechanisms to deal with this, without leaving it completely to the Department of Social Development (DSD)? It is a crisis facing the country and therefore government needs to galvanise its strategies to deal with the matter. How is the Department performing in this area and is it aware of this crisis? If government does not wage war against drugs, drugs will consume the leaders of tomorrow. The evaluation of judges was previously spoken about and how far has that project gone regarding transformation. The kinds of judgements produced today, should be clear that they are concerned with transformation of South African society. This applies to the legislation produced by Parliament, because it has intention and purpose. Members and the Department need to come to a point where they are able to evaluate the legislation, so that the outcomes of whatever process speak to the intention and purpose of the legislation.
The Chairperson said he felt there needs to be some realignment of how we do things. A legal system should be about moral and social values. Hindu and Muslim communities do not have “the problems faced by coloured and African children, because coloured and African children have been moved away from their traditional values”. The idea of moral regeneration could assist here, but he was concerned that moral regeneration was located in the wrong place at the Department of Arts and Culture (DOAC) and in the Presidency. He had been impressed in Limpopo, because the royal women had established a programme called “Youth Change!” These women transmit the values to the youth, which discourage drugs, alcohol and sexual promiscuity. This initiative is moral regeneration in practice, but because of moral degeneration there are social ills that transform into petty crimes and sexual offences. We focus on the symptoms of moral degeneration, but do not combat it itself. He therefore felt the approach should be changed, without the moral regeneration movement being taken away from the DOAC, but not allowing Departments to work in silos. The DOAC, DCS, DOJCD, DSD and Department of Cooperative Governance and Traditional Affairs (COGTA) should all come together and try to redefine what moral regeneration is. In June Government is going to spend money on a big meeting, inviting the President or Deputy President to talk to the country about moral regeneration. What concrete achievements have been made, because moral degeneration is deepening, meaning the current programme is not working? In honour of Former President Nelson Mandela, all the Departments and perhaps the Committee should come together to indicate what they are doing to combat moral degeneration. This applies even to the question of rehabilitation and reintegration of offenders, because you cannot rehabilitate someone and return them to a society where morals are dropping all the time. He urged the DOJCD to apply its mind and advise the Committee on how it can combat moral degeneration.
Mr Mpumlwana said the Department was improving all the time and noted the unqualified audit. On the remuneration of magistrates, there was a big gap between what state prosecutors and magistrates earn, with prosecutors earning more. There was also a very big gap between what magistrates and judges earn, especially given that the regional magistrate courts are dealing with a lot more cases. These gaps are unhealthy and how does the Department feel? Secondly, he understood there was some work being done to change the jurisdictional areas of courts, but when would this be implemented and what criteria are being used to decide? For example, some people have to travel to a magistrate court 25km outside Mthatha and was the Department consulting the local people about the rationalisation of court jurisdictions. Further, he would urge discussing the matter with the SAPS. Thirdly, he asked whether a policy was being produced to cater for the use of African languages in courts. If so, when would it be implemented and what progress has been made? On the allocation of resources to Masters’ Offices, he understood that in the old days in Bantustans there would be Masters Offices in certain areas only and they would be dealing with matters from very far away. Is the allocation of resources in line with the number of people a particular office will likely have to serve? When he looked at the Magistrates Commission he saw white males and because they deal with the behaviour of magistrates if there are no people representing a variety of communities, perhaps certain cultural things may not be understood. There is a problem with electricity supply at certain courts, such as Mthatha, which affects their functioning. Are there generators at these courts or could the Department ensure that there are generators so that these problems do not occur? On the progress or lack thereof with the Anti-Corruption Task Team in the Department, he understood that the DOJCD was trying to sweep out corruption, but how big is its broom? He asked this, because corruption was happening in certain areas, but he appreciated the Department trying to deal with this.
Ms Sindane said she noted the Chairperson’s input, but it does not necessarily require a response. On ubuntu, the Department has access to the historic documents and maybe it has to reconcile how to factor in the spirit of those documents into the Strategic Plan and APP. To Mr Horn, the differences in the targets is explained at the beginning of the Strategic Plan, where it is indicated which areas are changing. In broad terms, most of the targets that are new would not have baseline information and the DOJCD may perform well or badly, but would not be able to tell until a baseline is established. Normally, the Department would use a year or two to determine a baseline and then it starts targeting properly. In some instances, where Members think the Department has performed well, they are correct. However, there may be exceptional circumstances leading to that good performance. For example, during 2010 there were many more police officials and special courts, which would increase performance overall. In the succeeding years the Department’s performance would be seen to drop. Looking at last year’s backlog, one must ask what caused such a large backlog. A critical thing would have been the attacks on foreign nationals, which caused many cases to be shifted and in some cases courts were burnt. In the narrative part of the document, the DOJCD indicates these sorts of reasons and she would encourage Members to look at them. She was not suggesting that Members were wrong in their observations, but she was noting that Members should look at the targets in that context. On third party funds, the performance side is doing well and the Department is happy with that. People receive their money and it is generally on time, unless the system is down. The accounting aspect, as indicated previously, remains a challenge. The Department indicated the previous year that it was going to finalise the procurement of the system at a particular time. It was to have been designed and piloted in September 2015. The DOJCD procured the system, but it was not done on time. It was piloted at the end of the 2015/16 financial year, but that is policing and it needs to be applied across the board for at least a year, before it can be said that it is giving good results. In some areas the Department knows it work, but an entire year’s worth of data is required in order to remedy minor glitches. The system is there and the Department is beginning to catch up, but it cannot begin to change the results for this year. It is running two parallel systems, it is running the old platform as the main system, but the new system is also running. There will be some manual work that will have to be transferred, but most of it will happen automatically. The Department is not concerned about the targets for 2017/18 or 2018/19, because it has a system in place and it has been operating for the past quarter at some courts in the Northern Cape. Further, there were some banks that could not link to the system and this also prevented the Department having a full year’s data. This is why the target for an unqualified audit around third party funds has been pushed back. The Department appreciates Parliament’s assistance with the legislation it passed in this regard and without it even if the numbers had been there, the governance side would have been missing. By the end of the financial year, both the systems and the administrative side would be working. On the state attorneys, which also have third party funds from the notarial and conveyancing work. The Department has piloted the third party fund system in Kimberly and Mafokeng State Attorney’s office. The DOJCD is confident that in the coming years the audit outcomes will look good.
Mr Leseba said the ICMS was supposed to be deployed to certain courts and was supposed to be in line with the Electronic Case Management System (ECMS) and Electronic Charge Sheet deployment. Both have been deployed even beyond the planned sites to the 509 sites where the ICMS has a footprint. On the difference in number of police stations and those with legal aid integration, what makes legal aid deployment more complex is that a certain level of readiness has to be attained at a number of centres before physical deployment can be done. For example, to push an electronic legal aid application from a police station to a legal aid centre or court, both the police station and receiving centre have to be ready. In some areas the DOJCD has been unable to reach full alignment and this has led to the differences. These difficulties are due to funding constraints and difficulties in contracting with Telkom and SITA.
To Mr Horn’s point on the absence of cables and poor planning, this was not because of poor planning that at times infrastructure needs to be taken to certain areas before solutions are deployed. The infrastructure deployment itself is a very expensive exercise and with the funds available it is difficult to reach as broad a footprint as intended. The DOJCD is glad that it has covered Gauteng, but as the solutions are further developed the requirements on the infrastructure become different. There are some areas in the country where the broadband coverage does not allow deployment and it is beyond the Department and requires the entire country to invest in. This is why the reach into rural areas is limited, as much as the Department may want to increase its technological footprint in rural areas. The approach of the Department is to identify areas where the infrastructure already exists and deploy the solutions and where it is possible to upgrade telecommunications infrastructure.
Ms Sindane said the DOJCD has made good progress with the trilateral agreement between itself, Telkom and SITA. The Department and Telkom have signed the agreement, but there have been delays with SITA. It has been taken to the level of the CEO of SITA and it is expected that progress will be made. She warned that if the agreement were not concluded on time there would be massive repercussions for the Department’s business. This is because the two big solutions that are being put onto the system will run on a very poor network connection. The DOJCD is still hopeful that it will be able to reach agreement with SITA. The system to be loaded is extensive in its own right and will be loaded onto an already throttled network in the current regime. It is quite serious, but the Department is alive to the concerns.
Ms Pilane-Majake followed up saying this relates to the lack of broadband infrastructure.
Ms Sindane said the Department is only dealing with Telkom, because at present the service is being provided through SITA and the intention is to allow the Department to deal directly with Telkom through the trilateral agreement. At this stage it does not involve INTSACO, but it may in the medium to long term. It is something that management has not reflected upon and it go back and do so.
Dr Silas Ramaite, Deputy National Director of Public Prosecutions: Administration and Witness Protection National Prosecuting Authority, said the questions directed to the NPA related to the performance of the Asset Forfeiture Unit (AFU), but he wanted to give the context of the current NPA Strategic Plan. Members will notice that in the 2015/16 APP the NPA has adjusted its targets downward and kept them almost the same for the MTEF. The reason for that is that over the past three years, aside from the one that had just ended, the NPA’s performance had been improving. An issue that arose was the greater focus on the numbers and higher conviction rates. Earlier conviction rates were tagged on internationally acceptable conviction rates, which lay at around 80% of prosecuted cases. The 20% should be acquittals based on the fact that they were properly defended. The NPA noticed that its conviction rates were way above the 80% and its estimated performance for 2015/16 was 87% in High Courts, 88% in District Courts and the only exception was Regional Courts at about 70%. The same has been applied to the AFU and its estimated performance in completed forfeiture cases has gone down to 120 and the value of freezing orders is at R210 million. However, it is important to distinguish between freezing orders and forfeiture orders. Their argument is that they need to also count their freezing orders, but these do not matter as much until a forfeiture has been obtained.
Looking at the performance of the AFU in 2012/13 it was R376 million, the following year it decreased to R363 million and the estimate for the current year is R321 million. This shows a downward trend, but the anomaly comes in with the value of freezing orders in 2011/12 was R518 million and for 2014/15 it was R2 billion. This is not money which has been recovered, but despite this the amounts of actual forfeiture orders obtained over the past three years, excluding the current one, has been increasing from R302m, R319m and R363m. A concern was focusing too much on the numbers and losing sight of the quality of prosecutions and forfeitures. A challenge that the AFU constantly raises is that it is not in charge of what eventually will result in forfeiture orders and a number of cases take long periods to complete. For example, there has been a matter dragging on for five years, when a freezing order was obtained and at that time the NPA thought it was going to be a classic case which would bring money back.
Ms K Pillay, Deputy Director General: Legislative Development DOJCD, on why the Prevention of Corrupt Activities Act has not been included in the legislative programme, said there are a few other priority goals which appear on the programme. The Department is working on the amendments to the Prevention of Corrupt Activities Act, but to give attention to all the Bill in different areas it has to prioritise. The Protected Disclosures Act amendments have been served before the Committee and these are important amendments in the fight against corruption, because they protect whistle blowers. Also on the programme is the Cyber Crimes Bill, which is an important Bill.
Ms Mphahlele-Ntsasa, on why the presentation focused on the Strategic Plan and not the APP, said the DOJCD tried to limit the number of slides to put together. However, in the document tabled the pages of the APP and Strategic Plan are referenced. On the sexual offences courts, a note was put in the APP itself indicating that because of budget cuts they would not go ahead at the pace planned. This is further complicated by the fact that the layout of the courts will require more work than those before and will not be produced at the same rate.
Adv P Du Rand, Chief Director DOJCD, on the rationalisation of the magisterial districts and jurisdictional areas on High Courts, said the implementation of this project started in 2015 in Gauteng and North West, where it has been finalised. The role out to Limpopo and Mpumalanga followed, with the proclamations coming into force on 25 January 2016. With the rest of the provinces the DOJCD is trying to rationalise the jurisdictions of the courts so that people can access justice from where they live, thereby removing the challenges of travel, cost and time, because these deprive people of equal access to justice. Part of the good news is that the Limpopo Division of the High Court has started operations from January and this has brought a lot of relief to the people of Limpopo who previously had to travel long distances to access the services of a High Court in Pretoria. The next one to be dealt with is Mpumalanga and here there has been project site hand over. The project is 79% complete and one of the problems at present is an access road, which is receiving attention from all role-players including the Independent Development Trust. In every province a regional demarcation committee has been established, comprising all the relevant role-players in the Justice, Crime Prevention and Security Cluster (JCPS Cluster). These look at all relevant aspects including physical infrastructure availability. It is an inclusive body going beyond government to the communities and people involved with the Re-Demarcation Board. A lot of good work has been done with four provinces completed to some extent and the others to follow. Further, a list could be provided of all the infrastructure currently receiving attention for Members’ attention. In three specific places fire damage has been suffered at courts. Pretoria Magistrates Court has been started and is scheduled for completion in August 2016, the only snag is that some harmful substances were discovered, but that is being dealt with for proper safety. The Polokwane Magistrates Court’s drawings have been completed and are awaiting approval and that project will kick off. At Hailbrooke Magistrates Court the architect is already on site, it is being dealt with as part of the RAMP project and it will go out on tender later in the year.
On children in conflict in the law, this remains a focus area for the entire JCPS Cluster and here the DOJCD has been ensuring that these children are dealt with using an inquisitorial approach. Ms Sindane chairs a sectoral committee that deals with all the child justice issues on a monthly basis. There are also a number of provincial committees and through these efforts the Department has managed to reduce the number of children sitting in correctional facilities to about 100, where there used to be about 500. The specific elements such as the impact of drugs on children are being looked into and that is part of the Drug Master Plan that the Department is involved with alongside DSD and the rest of the JCPS Cluster. The JCPS Cluster through the NATS subcommittee meeting in March 2016 indicated that drugs would be a focus area, specifically with reference to children.
On the electricity shortages at some courts, the DOJCD was aware of the issues although it has improved. Generators have been placed at many of the bigger centres, but budget constraints have an obvious impact. Where there is the highest need the resources are allocated. On remuneration of magistrates and the gaps in pay, the Department is aware of the gaps, but there is a remuneration committee that deals with the remuneration of magistrates and it is an independent body that advises the Department. That committee knows of the gaps and has been receiving representations from magistrates at the regional court level who are raising that. On vetting, this is a cluster wide issue and challenges have been raised as much as possible. The forms have been distributed, but there is a backlog at the SAPS. It is being prioritised as much as possible, particularly with supply chain management officials. On the colloquium mentioned, there were plans to hold the colloquium but Chief Justice had different views. That is a conversation that was underway between the Chief Justice and the Minister on how to deal with those activities and progress would be reported in future. At present there were ad hoc consultations with the Chief Justice, but there would be consultations with other role-players.
On Small Claims Courts, he wanted to correct some statistics given previously. There had been increased performance since they went into the Strategy Unit. There are now 371 Small Claims Courts countrywide and only 32 remain to be proclaimed by gazette, with 4 already approved by the Deputy Minister. These 371 Small Claims Courts are supported by another 82 Small Claims Courts which have been proclaimed as additional places of sitting, which brings them as close as possible to communities. The DOJCD will continue to bring the services to communities that are not near a big city or town for direct access. When dealing with the establishment of these courts the Department is dealing with traditional leaders and community leaders in order to ensure word about these courts is spread and he felt it had been a success. The Board of Sheriffs has also been engaged, because it and the Small Claims Courts fall under the jurisdiction of the Deputy Minister. This relates to the placement of Sheriffs Offices towards ensuring better access and more information would be given later in the year on progress made.
On anti-corruption, the DOJCD is part of the JCPS Cluster activities relating to corruption and good progress is being made. The Specialised Commercial Task Force of the NPA is dealing with a range of cases and there has been an increase in the number of convictions of officials. On the assessment of impact of judgements of the Constitutional Court, these activities have been outsourced to the Human Sciences Research Council and the University of Forte Hare. This focuses on the lived experience of all South Africans, particularly regarding adjudication and implementation of socio-economic rights in the context of developmental state under the NDP. This report has been finalised and some final consultations with the NPA and Legal Aid Board of South Africa. On international instruments, it is agreed that the quality of reports needs to be checked and the JCPS Cluster has formed committees to deal with the improvement of these reports. The African regional instruments are focused on in particular and the Deputy Minister is leaving for Banjul the following day to deal with regional instruments.
The Chairperson said Banjul is the place where the African Charter of Human and Peoples Rights was signed. Further, that a legal team from China had requested to meet with the Committee and the Department should perhaps meet them as well, because the intent was to discuss children in conflict with the law. When children are born with foetal alcohol syndrome because their mothers were unaware they were pregnant at four months something is wrong with the values in society and therefore the focus should not just be the law. A value centred and driven society needs to be created. The report shows that the DOJCD knows where it has come from and where it is going. He hoped that the Department will get resources so that it can carry out its plans and congratulated the Director General for assembling such a good team.
Briefing by the Department of Justice and Constitutional Development on the Budget Vote
Ms Sindane said as much of this had been covered with the initial presentation she would not go through the entire presentation. The devaluation of the Rand continues to be a risk to the budget and for example because of the major shift in December 2015 the Department would have to pay R20 million on ICT in a few days, because they are imported. The wage settlement offers after the wage negotiations are way above inflation and therefore they create an impact immediately, which is not catered for in the budget. This impacts directly on the salary bill and means the Department will not be able to attract new people. Coupling this with the Occupation Service Dispensation (OSD) makes it much worse. As a result, the Department has a lot less people who are being paid a lot more, but the work is almost the same as what was being done before. Accommodation costs are increasing by 12% more than the allocation.
A big risk lies in security, because 165 courts are unsecured at present and this does not include offices. In those courts there are often State Attorney offices and Masters offices. If the Department were to request the support of the Committee for an increased allocation in any area, it would be for security. On languages used in courts, about R200 million would be required to deal with the urgent training which would be required. This is determined of the costs of the present local language interprets. The psychiatric observations done by the DOH are extensive, but they are absolutely necessary for the criminal justice system and most of the Court Services budget goes here. Travel and subsistence remains a cost driver, because certain parts of the Department are forced to go to international bodies and in general the travelling is done in economy class. On local trips the Department has been flying economy since 2010 and is not affected by the cost containment measures.
Once the paralegals and everyone else that was said should be trained have to do something once they have the skills, but the Department does not have the infrastructure to accommodate them. On the challenges with infrastructure, which would be detailed in a separate presentation, in most if not all construction work the Department is behind schedule. It has tried to ensure there are teams with the Department of Public Works (DPW), which are working on these projects, but for the foreseeable period it would persist. On rented premises, there is the problem of above inflation increases and on top of this there is electricity and water where the increases are far above inflation. With the budget increase being below inflation the DOJCD is already starting at a disadvantage. Salaries, accommodation and many other costs have increased above inflation, but the allocation has increased by less than inflation and that is the position of the Department.
The Chairperson said in this country there might be a problem of understanding infrastructure. In all cities there are government buildings that are not being used, which the paralegals could utilise. He had heard of several buildings in Pretoria which belonged to the DPW, but which were occupied by drug dealers or foreigners. The problem may be that DPW does not know where its properties are.
Ms Pilane-Majake on the infrastructure backlog, said while there had been concerns about the building of new courts there had previously been a complaint about dilapidated courts. Existing courts should also be receiving attention so that they can be up to standard. At the time the Supreme Court of Appeal was also complaining that its building was in disrepair, but this was corrected. On security, even the judges have complained at the South Gauteng High Court, but what has been done since then?
Ms Sindane said the building that the Chairperson was talking about was condemned, meaning that they are not fit for habitation. The Department of Labour inspectors condemn buildings and they have condemned a court building in the North West. It is something that can be looked at, although the Department of Justice does not need more buildings in the inner city. The Department has tried to procure some of the buildings where they were not condemned, so that it did not pay rent. On security, the situation is getting worse not because it is not focus, but due to resources. The rate on increases of salaries for guards is unaffordable with the Department’s budget. Secondly, the Department has a few grades of buildings and the ones that are built by it are easily secured given the ICT security is in place. The older buildings do not have that and the challenge is upgrading the infrastructure to keep up with the times. The third category is the buildings that have no people guarding them and no IT security infrastructure. The 155 courts are at the most risk and while the judges at the South Gauteng High Court may have raised complaints the Department has a wide range of places to secure and that court has received attention recently.
Briefing by the Office of the Chief Justice (OCJ)
Ms Memme Sejosengwe, Secretary General of the Office of the Chief Justice, said the OCJ has three strategic goals: efficient and effective administration of the OCJ, improved administrative and technical support to the judiciary, and ensure administration to the superior courts. The OCJ intends to support the judiciary in its contribution to Chapter 14 of the NDP, which deals with promoting accountability and fighting corruption by strengthening the judicial governance and the rule of law. Efforts will include: accelerating reforms to implement a judiciary- led court administration; ensuring an efficient court system and judicial accountability and by providing training to the judiciary through the South African Judicial Education Institute (SAJEI).
Programme 1: Administration
Ms Sejosengwe said here the first strategic objective was to capacitate the OCJ, which had an indicator of percentage of funded vacant posts filled and a target of 90% throughout the MTEF. Secondly, ensure good governance in the administration of the Department, with an indicator and target of unqualified audit outcome for the MTEF.
The key performance indicators (KPIs) and associated targets for this programme over the medium term included:
- Number of strategic and operational risk registers developed and updated: 8 for the entire period;
- Percentage of audit findings (internal and external) addressed: 80% in 2016/17 growing to 100% by 2018/19;
- ICT Master Systems Plan developed and implemented over the MTEF: 2016/17 implementation initiated, 2017/18 critical systems developed and piloted and 2018/19 roll out of critical systems.
The presentation included strategic goals, KPIs and targets broken down over the quarters of 2016/17.
Programme 2: Judicial Support and Court Administration
Ms Sejosengwe said the strategic goal relevant to this programme was to ensure the effective and efficient administration of the Superior Courts and Judicial Service Commission (JSC). This had two indicators: percentage of compliance with quasi-judicial targets and number of reports on judicial appointments and complaints produced. These had a five-year strategic target of 100% and 15 respectively.
The KPIs and associated targets for this programme over the medium term included:
- Number of Superior Courts performance monitoring reports produced: 5 throughout the period;
- Number of training workshops on case management conducted for Registrars, Statisticians and Clerks: 4 throughout the period;
- Percentage of default judgments finalised by Registrars: 65% in 2016/17 growing to 75% by 2018/19.
Programme 3: Judicial Education and Research
Ms Sejosengwe said the strategic objective here was to enhance judicial skills of serving and aspiring judicial officers to perform optimally. The indicator was number of judicial education courses conducted at 70 for 2016/17
The KPIs and associated targets for this programme over the medium term included:
- M and E framework for judicial education and training developed and implemented: M and E framework to be approved in 2016/17 and implemented in both 2017/18 and 2018/19.
- Percentage of legal advisory opinions on policy development and research services provided within 15 days of receipt: at 80% in 2016/17 and reaching 90% by 2018/19.
Ms Sejosengwe spoke to a table listing various performance indicators for programmes 2 and 3 and the targets associated for the medium term. These included:
- Percentage of cases finalised in the Constitutional Court and Supreme Court of Appeal: 80% for the medium term;
- Number of cases in the High Courts which are on the roll for more than 12 months: estimated for 2015/16 206, targeted for 156 in 2016/17 and dropping to 56 by 2018/19;
- Percentage of reserved judgments finalised in all Superior Courts: 70% for the medium term;
- Percentage of disclosures for newly appointed Judges’ Registerable Interests submitted within 30 days of appointment: 100% for the medium term.
Summary of Budget
Ms Sejosengwe turned to a summary of the budget saying the total adjusted appropriation for the OCJ in 2015/16 was R783.37 million and a further R873.74 million was a direct charge against the National Revenue Fund. The expenditure estimate for 2015/16 totalled R1.78 billion. Of this R864.99 million was an appropriation. Programme 1 had an allocation of R161.17 million, programme 2 R665.97 million and programme 3 was at R37.84 million. The direct charges totalled R920 million, of which R864.99 million constituted judges’ remuneration. The expenditure per classification for 2016/17 was R1.4 billion for compensation of employees (including judges’ remuneration) and R290.15 million. The purchase of capital assets and machinery and equipment both came in at R25.38 million.
Ms Sejosengwe said the key strategic risks for programme 1 were the transitional challenges as a result of transfer of functions from DOJCD to OCJ, the interventions were the development of a framework of engagement and service level agreements. Programme 2’s risks were inability to attract and retain skilled registrars and inadequate IT infrastructure and business operating systems. The respective interventions were continuous engagement on the review of OSD related challenges and Master System Plan development and IT infrastructure upgrades. The risk for programme 3 was inadequate resources to provide training to the aspiring and serving judicial officers, with the intervention being to develop an e-learning system, partner with relevant stakeholders and employ of judicial educators.
Ms Sejosengwe in conclusion said the Strategic Plan and APP of the OCJ for the 2016/17 has been formulated in consultation with the judiciary, the Minister of Justice and Correctional Services, National Treasury, Chief Justice and Judge Presidents, the Auditor General and Department of Planning Monitoring and Evaluation. These will be used to improve the outcomes and strategic objectives.
The Chairperson said the consultative meetings for the South African Judicial Education Institute (SAJEI) keep on being postponed, but he was aware that training has started even including traditional leaders. From interactions with the DOJCD he had learnt of the urgent need to transform the traditional, indigenous legal system. This includes legislation such as the Black Administration Act and Black Authority Acts. The transformation of the traditional legal system cannot be left behind, because what is said to be customary law is often remnants of the colonial system. This training could help address transformation, because when it comes to traditional leaders they should not be told what is the law, rather it must be a conversation. The books may say one thing, but it is the practices of the people that count.
Mr Horn said the jury is out on whether the OCJ as a new Department will be able to meet these targets. Members are aware that some of these targets are not necessarily determined by past experience. There are also documents that should have informed these targets, such as the judicial Norms and Standards. He would like to know if that indeed informed the targets. Further, what effect have the Judicial Norms and Standards and the provincial efficiency enhancement committees had on service delivery? A concern for the Chief Justice and Judge Presidents has been judgments reserved almost indefinitely. He noted the target in this regard, but he felt it was not that measurable for reserved judgements. There has been reference to the budget cuts and it would be good to hear from the OCJ on what effect these and the announced ceiling on the expansion of the personnel component of the public service will have on the role out of the OCJ, particularly regionally. Under the current legislative framework, the Chief Justice is also responsible for the lower courts and magistracy. Have any systems been put in place to ensure that role is fulfilled? He was unsure whether there were formal means for engagement between the Chief Justice and chairperson of the Magistrates Commission. The OCJ should have recently moved into its new offices and it would be good to hear if it materialised.
Mr Mpumlwana asked why some targets were not going to 100% where it seemed possible. Was this because the OCJ was new and therefore it did not have to go that far? Further, for what reason was the court in Grahamstown being retained, because it was close to both Port Elizabeth and King Williams Town? It should be investigated whether a more efficient adjustment could not be made. On the language used in courts, he had spoken to a judge recently and they had agreed that about 60% of cases are improperly judged because of language. The statement given to a police officer when a person is arrested will often be determinative of whether that person is found guilty, but often neither the arrested person nor the police office are first language English speakers. When is it likely that South Africa as an African country will be able to use African languages? The use of Afrikaans works very well in the Western Cape, but what about the rest of the High Courts. What is the OCJ’s timeframe for this and what is its policy on the matter? He understood that there were complications such as appeal records, but he wanted to put the issue to the OCJ.
Mr Maila said earlier a presentation was made by the DOJCD, which included information on the IJS. He could not locate the OCJ in that system and in his opinion this could work wonders for South Africa. What was the OCJ’s plan in this regard? Secondly, the OCJ as a new Department has started on good footing and he congratulated it. Thirdly, he understood there were still some functions to be transferred from the DOJCD and if so how fast would this be done. On the Land Claims Court, he wanted to know about the capacity of this court to process land claims. On the number of reports of judicial appointments and complaints, he wanted to know the rationale behind targeting 3 reports, while there are four quarters in a financial year.
Ms Mothapo, on the Land Claims Court, said this court is not doing enough, especially with claims by communities under traditional leadership. The targeted performance is 54% for 2016/17 and the delays encourage some individuals to occupy land. In most cases where land is claimed by communities, the regional land claims commissions or Land Claims Courts do not take it seriously. Communities require the best legal representation when dealing with the Land Claims Court and for poor, black communities that is not possible. Therefore, the capacity of this Court needs to be addressed. Secondly, on access of communities to the Competition Court, this court is generally only accessible to elites and there may be issues that communities would like to seek relief on. The OCJ through its advocacy programmes may not be informing communities adequately of this potential aid. When the OCJ was before the Committee the previous year there had been a concern about non-disclosure by a certain judge. Could the situation be explained given the target of 100% in this area? Further, on the budget of SAJEI at about R37.8 million, would this amount be sufficient for SAJEI to achieve its objectives. The OCJ intends to have courts in eight regions and this will require additional judicial officers. Therefore, training of these appointees will be required and has a sufficient budget been allocated.
Ms Pilane-Majake said she really wanted to support what Ms Mothapo had raised about the Land Claims Courts, because this is a critical issue for South Africa and in future the pace needs to be picked up. Otherwise a time will come when South Africans believe the ANC is just paying lip service to land reform. Further, did the OCJ have projects aimed at transformation given the history of the judicial system in South Africa? Given the newness of the OCJ, did it consciously look at how to aid transformation? She asked for the projects to be listed if possible. Previously the Committee had raised the issue of transformation of judgements, to ensure that judgements are not judgements of the past. Transformation is a project and it should not be forgotten, so that a better society can be created for all South Africans. Fraud cases were mentioned and what type of fraud cases is being referred to? She approved of the tracking of the performance in this regard, because clean governance is an objective of the government.
The Chairperson said the land question is at the heart of the problems facing this country. Land dispossession is the root of the triple challenge of poverty, unemployment and inequality. Crime resulted from poverty and unemployment; inequality resulted in racism. This means that whatever laws can be made to deal with crime prevention they will not succeed, unless we are able to address the land question. The fundamental human rights are undermined by the land question. The judicial system focuses on the lower and superior courts, but not on the courts that deal with social ills and petty crimes. These seem to be defined out of the system and he was specifically referring to community courts and traditional courts, which are close to the people. This leads to overcrowding in correctional centres and the inability of correctional centres to rehabilitate offenders. Another problem is that the Constitutional Court is developing jurisprudence around traditional communities. There is a judgement by Justice Moseneke which defines what a community is. However, because indigenous African law is not taught at universities, the definition of African communities has become tribal groupings some of which have chiefs and others which do not. Africa had empires long before Europe and in such an empire three spheres would be found: a collection of headmen, who fall under a king or queen and then a collective of kings and queens. However, because of the colonial system Europeans came here and said the only kings and queens are in London. Therefore, all the kings and queens in Africa became chiefs and some were made paramount chiefs. This is a distorted understanding of African communities. The result is that courts will operate on a distorted basis and when laws are to be amended this distortion will persist because of the jurisprudence. The transformation of the legal system should not leave behind the transformation of indigenous law and statutes in this arena. He was encouraged when he met with the Chief Justice, because the Chief Justice had been concerned that government had not been able to pass the Traditional Courts Bill. He thought that community courts would be very important, because in informal settlements there are no access roads for police vehicles or ambulances. At the end how do you prevent crime in a community that cannot be accessed by the police? Therefore, a holistic approach to these problems needs to be found. Recently, the President had said that the Land Claims Act was loaded against land claiming and are the courts not aware of this? If they are, are they deliberately misadministering justice leading to no progress in the restitution of land? He felt that what the President said amounts to policy and a Bill should be in preparation to amend the Land Claims Court. We can have ‘nice’ constitutional rights and a ‘nice’ Constitution, but at the end of the day if the land question is not resolved it will delegitimise our human rights culture. Particularly, people perceive that the human rights culture continues to work for the benefit of the previously advantaged. Therefore, it is in the interest of the Constitution and the legal system that these fundamental questions are addressed. This point was made clear to the DOJCD and if the land claims are not addressed there will be land invasions. If people have claimed land in 1998 and in 2016 they have not been told whether their claim is valid, they will invade that land, leading to their arrest. When they are then put on trial it will be for a crime that does not take into account their grievance. He encouraged the OCJ, when engaging with the DOJCD, to highlight these concerns and the difficult situation the OCJ will be put in. He had helped many communities in the Limpopo institute land claims in 1998, but today they remain where he had left off. No one can afford to pay a lawyer from 1998 to 2016. There are even political parties that openly advocate land invasion and a large percentage of the population is young. With these two factors, before long there will be a civil war. People will invade farms, the farmers will shoot at them and then eventually everyone will be shooting each other, because of a matter that was not properly addressed 20 years ago. This constitutional democracy and state can collapse if this matter is not addressed timeously.
Ms Sejosengwe on the land question, said this issue has been raised with the OCJ several times and this indicates the seriousness of the issue at hand. She had raised the matter with the DOCJD and its policy unit needs to jointly engage in this area. What has been agreed on is in line with what the Committee had previously proposed, which is to have a workshop with all the relevant stakeholders in this area. She had also brought this matter to the attention of the Chief Justice and he would in turn raise this with the Acting Judge President of the Land Claims Court. When the Minister met with the Judge President, she had indicated to them what was being raised by the Committee and the pressures on government around the issue of land restitution. It will be recalled that the process of amendment was taken to court by three land claimants and some NGOs that challenged the amendment process purely on lack of consultation. The OCJ will indicate to the Committee the programme for the consultative workshop and the consultations that have happened over the last few months. She would also be meeting the Director General of the Department of Land Affairs and Rural Development, because the Land Claims Commission falls within its mandate. The issues raised would be brought to their attention, so that the Commission can also think through these matters. It is a process which will be reported upon when the OCJ appears in the future, because as Members will appreciate this is not a matter which the OCJ can resolve on its own. She had asked the Acting Judge President of the Land Claims court to identify the issues around adjudication of these cases and would share the report with the Committee. One of the issues was that there are delays with the Land Claims Commission referring matters to the Court. Further, there are delays with access to legal representation for the claimants and there are other causes of parties not being ready. Her engagements with the Director General of the Department are intended to allow both Departments to jointly tackle the problems.
The Chairperson asked for the Committee to be sent the report from the Judge President. It is not good for the image of the court, if staff members are resigning because they claim to have been victimised. There was a press release that exposed some of the things going on and one of the most senior staff members resigned, because she said she was being victimised as people suspected she had exposed the problems at the court. He asked the OCJ to investigate this, because it will be a sad day when judicial officers victimise employees who they suspect have leaked information. He requested the minutes from the stakeholders meeting that Ms Sejosengwe and he had attended. Further, the Committee would like to be part of the workshop that was planned. Disgruntled employees had invited the Committee to go to the Land Claims Court to do oversight, but the Committee was mindful of being used for ulterior purposes.
Ms Sejosengwe, on the numbers and nature of fraud cases, said these were part of the anti-corruption efforts in the public service, monitored by the Public Service Commission, the OCJ also reports on these kinds of cases. Although she did not bring the exact statistics, these are generally cases such as government officials who use state vehicles claiming where they should not. Further, cases where an official is found to have remunerative work outside the public service without having obtained permission. The OCJ has a report with details and statistics, which would be shared with the Committee. These cases will not necessarily be from the OCJ, but the principle is that cases need to be investigated within 60 days and a report completed. On the SAJEI council meetings, these were postponed last time because there was no quorum. The head of SAJEI had communicated with the Chief Justice to call the meeting, so that the business of the council can move forward. On whether the SAJEI budget is sufficient, as part of moving into its new building the money spent on leasing will be reduced greatly. Further, when universities have venues to host training sessions these will be used, because conference facilities are a major cost driver for SAJEI. When the building is occupied, most of these costs will be cut out, releasing some funds to be directed towards the actual training. This is a matter that is being looked at to ensure that SAJEI is capable. She turned to whether the targets were being realistic given the lack of baselines and whether the Judicial Norms and Standards inform them. In the statistical table in the presentation, the 12 targets and indicators that relate to the work of the judiciary are based on norms and standards from 2014. The reserved judgements target is an issue, with the Deputy Minister questioning how 100% can be targeted. The OCJ’s response was that because this is the first year for the target, a baseline needs to be created, hence the use of 100%. On the budget cuts and the ceiling on new employees, the budget cuts would mainly affect the operationalisation of the Mpumalanga High Court. It has been agreed with National Treasury that as the adjustments done to compensation of employees were done late in the year it will be made sure that the OCJ would not be affected. The Chief Financial Officer would expand.
Mr C Coetzer, Acting Chief Financial Officer OCJ, said with the ceiling placed on compensation of employees, the budget presented to the Committee was in line with the allocation letter received from National Treasury. Any Department would like to have more and as Ms Sejosengwe indicated the cuts to compensation of employees for the outer years of the MTEF relates to the operationalisation of the Mpumalanga High Court. The OCJ made provision for the provincial centre and court employees who need to be appointed. What this means is that with the ceiling placed on the Department, the OCJ would not be able to operationalise the Mpumalanga High Court. National Treasury has indicated that the OCJ will need to resubmit its budget applications during the MTEC processes later in 2016. It would be safer to say what the impact will be after those discussions, having received indications from National Treasury. It also affects the implementation of the macro-structure of the OCJ, but for now it will be able to move quite some way in building capacity.
Ms Sejosengwe on the role of the OCJ regarding the magistracy, said the Magistrates Commission has not yet been transferred. However, the role of the Chief Justice over the judicial function is legislated. The OCJ has engaged with the DOJCD to indicate that the Superior Courts Act requires that there should be regulations to indicate how the role of the Chief Justice over the magistracy would work. Those regulations have not yet developed and the OCJ is pushing for them. The integration of the Magistrates Commission into the OCJ is related and is a matter that requires legislation. It will likely be dealt with as part of the transfer of the magistracy as a whole. This was raised with the Chief Justice, when he met with magistrates who inquired about the progress with the transfer to the OCJ. This lies with the Minister and the Minister indicated that the Magistrates Court Bill and the reforms around this area have been delegated to the Deputy Minister. A draft is underway and this Bill will unlock all the other aspects. However, through the Provincial Efficiency Enhancement Committees (PEECs) led by the various Judge Presidents, the role of the various Judge President over the magistrates has also been raised. For example, in the Free State High Court the Judge President held a provincial heads of courts conference where he sits with the head regional court magistrate and discusses matters on the judicial function. The OCJ is relying on the PEECs to help in this area, because the regulations may take very long. On the move to the OCJ’s new offices, the tenant installation was late, but the OCJ will be moving in on 29 April 2016.
On the court in Grahamstown, this is part of the conversation that happened during the rationalisation project and the Judge President and the DOJCD had engaged on whether Grahamstown should be changed as the seat of the court. At the centre of this is where the seat of the court should be, because it has traditionally been Grahamstown and whether this is still relevant for access to justice. It was decided to leave it where it is for now. She would raise the matter with the Chief Justice to raise with the Minister. On the language used in court, in most instances English remains the language of the court, as much as there are interpreters in the court. At the heart of the transformation issues is access to justice in your own language. This was an issue raised years ago by the heads of court with the then Minister. Two or three Judge Presidents wrote a report on how language transformation could be implemented.
The Chairperson asked that the Committee to receive a copy of that report.
Ms Sejosengwe said she would look for it, because it is a very old report. On the targets which are below 100%, the OCJ is not a Department which intends to under perform, but when it sets its targets it is mindful of the constraints it faces so that it does not over-promise and under-deliver. Further, while a target may be at 70% this does not constrain the Department from over-performing. In many of the areas the OCJ does not have baseline data and therefore it is trying to develop these, so that when the OCJ does a review of its targets this will be based on experience. On the IJS, the OCJ did receive an allocation for IJS, but when it came to implementation National Treasury’s view was that the OCJ was not engaging in integration. The OCJ argued that it was new and was still building ICT infrastructure.
The Chairperson asked that any further information to be sent in writing. South Africa has done well with the transformation of the judiciary, but it has interpreted transformation as the replacement of white people with black. That is not transformation or declining with the legacy of apartheid, because whether a judge is black or white this does not tell the whole story. The whole story is the jurisprudence and the content of judgements needs to be changed towards making colour irrelevant. The Strategy and Tactics documents of the ANC from 2007 state that South Africa is not an outpost of Europe it is an African country. What Africa can offer the world is systems with a human face, including a legal system with a human face. The central tenant of African religion is ubuntu and the documents of the ANC indicate that it wants to create a united, democratic, non-racial, non-sexist and prosperous society in which the value of every citizen is measured by their common humanity. This does not consist of our colour, but in humanness. However, in our transformation efforts we look at colour all the time and therefore it is no wonder people claim there is reverse-racism and the like. Therefore, he felt the concept of ubuntu, which is not tribal or ethnic, but universal should be the fountainhead of our human rights culture. When looking at transformation, we should look at substance and not just colour, because you can populate the courts with black people and this may lead to less transformative results. The content of the law needs to be informed by fundamental human values, which must be taught to all people.
Ms Pilane-Majake said in the OCJ’s transformation efforts, the country should be assisted by putting value into the intention and purpose of legislation, so that it speaks to these issues.
Briefing by the Special Investigating Unit (SIU)
Mr Gerhard Visagie, Acting Head Special Investigating Unit, said the SIU had previously indicated that an APP for the SIU is a very difficult, if not impossible thing. This is because the way it operates is that investigations are referred to it by presidential proclamation. The APP has to be submitted by January each year, but with the financial year starting in April the SIU will not necessarily know what it will be investigating that year. Therefore, its APP cannot be very accurate. At the end of the previous year this problem was faced again and therefore, it sat in strategic sessions in October 2015 and came up with a new APP for 2016. It used to have seven KPIs; three were dropped and replaced with six new ones, leaving 10 KPIs in total. These sessions also saw the creation of a new vision, mission and set of strategic objectives.
Mr Visagie said there are currently 30 investigations, covering 38 existing proclamations. In 22 instances, covering 27 proclamations the SIU is in the process of preparing reports for the Presidency. A particular proclamation does not necessarily entail a single investigation; they may lead to many. For example, with the proclamation dealing with DPW leases there were 2162 sub-investigations. The SIU has been informed at a recent meeting that four proclamations have been signed by the President and await publication in the government gazette. There are five more proclamations that have already gone through the DOJCD and the SIU awaits the proclamation. At a recent meeting with the Presidency it was indicated that the administrative difficulties that prevented these being speedily processed have been cleared up. There are a further nine motivations for proclamations which are being processed, going through the DOJCD to the Presidency.
Mr Visagie spoke to a table depicting the three strategic objectives and aligned indicators. The fist strategic objective was conduct quality forensic investigations. The first indicator here was the number of investigations closed out, which initially was at 200 sub-investigations and following engagements with National Treasury this has been increased to 800. The second KPI was number of reports submitted to the President, which were five. The second strategic objective was to facilitate or initiate appropriate remedial action. The KPIs were value of money or assets potentially recoverable at R240 million, actual value recovered at R140 million and value of potential loss prevented at R18 million. The two new KPIs, which the SIU believes will better, indicate its performance deal with civil litigation being used as a tool to fight corruption. These were: the value of contracts and/or administrative decisions/actions set aside or deemed invalid at R600 million and the value of matters in respect of which evidence was referred for the institution or opposition of civil proceedings (including arbitration or counter civil proceedings) at R1.2 billion. The SIU retained two of its old KPIs under strategic objective 3 in the number of referrals for disciplinary proceedings at 75 and the number of referrals to the NPA at 60. Lastly, the number of SIU members participating in joint operations or seconded to assist state institutions at 30.
Mr Visagie turned to the budget, saying the SIU is happy to say it is not coming to the Committee to ask for more money. Members would note that it has a dual funding system and it is thanks to the Committee that this is in place, because it was instrumental in amending the SIU Act. This enables it to now charge for its services. The SIU gets part of its money from a grant from National Treasury and part from billing the entities that it is investigating. The advantage of this is that it provides it with a level of scalability and can now undertake a lot more investigations, because the cost factor is neutral. If many proclamations are made and more investigations required it is fine, because it can charge the entities for that. The SIU’s total expenditure of R572.6 million for 2016/17 was divided into R208.1 million for administration and R364.6 for operations. The total revenue for 2016/17 was at R572.6 million, consisting of R185 million for sale of goods or services, R4.8 million from other income and R309.2 million transfers received.
On budget breakdown per programme, the administration programme is funded through the grant from National Treasury and other income, totalling R321.7 million. Goods and services here are the biggest cost driver at R168 million and secondly compensation of employees at R31.2 million. There was a R113.6 million surplus, which would be directed towards the operations programme. The operations programme was funded through the surplus and the revenue collected from sale of goods and services. The largest cost was compensation of employees at R338million and secondly goods and services at R26.5 million. The revenue is projected to grow from R572.6 million in 2016/17 to R 684.5 million in 2018/19, which is an average growth rate of 11.1% due to inflation.
The SIU currently has a staff complement of 528 permanent staff, 6 fixed term contract. Of this 419 are in operations and 115 are business support staff. He noted that 59% of the staff is African, 7% coloured, 11% Indian and 24% white, with 48% female.
Mr Visagie turned to strategic risks and mitigation factors, speaking only to one, which was the culture of non-payment by state institutions. The SIU finds state institutions are not quick to pay and in an environment of cooperative government it cannot take the institutions to court and has to follow all kinds of procedures. Towards mitigation the SIU has been monitoring cash flow and has been fortunate, but with the end of the financial year state institutions tend to pay more. The SIU has declared a project in house with National Treasury to ensure the machinery for payments is well oiled. Even if it would mean that some money would be taken off some of the institutions’ mid-year adjustments to be allocated to the SIU, which is an offer previously made by National Treasury.
Mr Horn said he had a number of issues relating to previous engagements with the SIU. The first being the conversation around the establishment of the special tribunal, which was envisioned for the near future, but seems to not be so any longer. Linked to that the relationship with the NPA, in the past the Committee had heard that at times the NPA would cause delays, even though in the opinion of the SIU it had provided it with a case ready docket. The NPA would then in a sense re-invent the wheel with regard to the case. He was informed that engagements would happen with the NPA, strategically targeted within the NPA towards coordination. He asked whether that has materialised and how it fits into the operations. On the recovery of costs, it is good to hear that substantial amounts were received in March and he would like to hear from which Departments or entities this was. Previously the big five non-payers were identified as the Masters Office, South African State Security Agency, the South African Post Office, SITA and DPW. It would be good to hear which of these had made good. Previously there was a drive to fill critical positions within the SIU such as forensic lawyers, IT specialists and the like and he asked for an update. There was to be a programme of bringing in young lawyers to develop capacity in house and it would be good to hear of progress. In this financially constrained environment, it seems from the budget that there is still a large provision for the use of consultants in the operations of the SIU and he would like the SIU’s take.
Mr Bongo thanked Mr Visagie for steering the SIU ship and for the absence of controversy as was previously seen. He asked for an update on relations and the extent of cooperation with the NPA and the State Security Services. Secondly, arising from the Auditor General’s report around the filling of vacancies and to what extent the SIU is complying with what was stated in that report. The legislation which the SIU had come to present to the Committee had been put forward as urgent, but where is it now?
Ms Pilane-Majake said she could see from the employment data that the SIU is concerned with gender transformation, but it would be important to see a disaggregation indicating at which level the women and black people were employed. The team before the Committee had five males and two females, but this was not equal representation. Looking at the strategic risks for the SIU, some of the mitigation efforts are not very clear. On proclamation inflow, the SIU indicates that it is identifying allegations and motivating for proclamations. With the vast number of allegations around how does the SIU identify which ones it will follow up? For example, there have been allegations of people going to the Deeds Registry to claim state assets for themselves and has the SIU come across information of this nature. That is a very serious allegation and an office of this nature should be able to follow up and get to the bottom of the matter. She wanted to know whether the SIU gets to hear the same sort of information that she did as a Member. On the compensation of employees, under the administration programme there are fluctuations and could this be explained. She also wanted an indication of whether consultant costs had gone down in the operations programme.
The Chairperson said the SIU depends on the proclamations and who gives the president the information required to produce these proclamations?
Mr Mpumlwana said the SIU seems to be having problems with getting cooperation, without the use of the law. What are the problems and how does the SIU attempt to resolve them? Further, what does the SIU do in a case where it is investigating the same matter as another institution, because this creates competition? Does the SIU vet people when they come on board? This is a sensitive space in which the SIU operates and he was concerned as to who does the vetting. Although the SIU indicates that it will give the Committee information on its operations in the future, it would be interesting to hear what the SIU has been doing, particularly given the lack of prosecutions deriving from investigations.
Mr Visagie said the SIU has previously indicated that it is within the purview of the President to establish a special tribunal, but perhaps it will only happen if the SIU specifically motivates for one and this has not been done. The SIU does not believe that the number of cases that the SIU is taking to court at present requires a special court, which is what the tribunal essentially is. At the moment the cases are dealt with on the normal court role, but it is something that is discussed regularly and will be on the agenda at the tipping point where it feels it can effectively motivate that it is more cost effective. On the relationship with the NPA, the SIU believes it has a good relationship with the NPA and it has improved in the past year. The difficulty was who was responsible for opening the case at the police station and there was a major difference of opinion between the then head of the NPA and then head of the SIU. This has been resolved and the SIU opens those cases at the police station. One problem still encountered is the time it takes for matters which the SIU refers to proceed and for it to receive feedback. Whenever it refers a court ready case to the NPA, it will send a copy of that referral to the Presidency, which then also follows up in the hope of inspiring urgency. The SIU also has a meeting planned with the NPA on this exact point and the SIU is trying to speed up this process. At present all referrals go to the office of the National Director of Public Prosecutions (NDPP) and the SIU would support a process where the referrals go to the relevant Directors of Public Prosecutions in the relevant region. The SIU is working well with the NPA, but it can improve and it is concerned about some referrals where no progress has been seen.
On the recovery of costs and the big five mentioned by Mr Horn, payments were received in March from SITA in the region of R33 million. Later in March a payment of R87 million was received from the DPW where the SIU does the bulk of its work. The South African Post Office has been met with and a comprehensive report was released to the Presidency and the SIU is working with them to implement its recommendations. However, in response to the SIU’s invoice the Post Office has pleaded poverty. The SIU Act does provide for entities that are unable to pay to approach National Treasury to pay, although National Treasury is never keen to do so. The SIU is therefore awaiting a response.
On critical positions, the SIU over the last year has filled a number of key positions and Ms Pilane-Majake will be happy to hear that African women filled most of those posts. Unfortunately, the CFO that was appointed has left and the SIU is facing difficulty in retaining chartered accountants. The SIU has advertised positions for senior lawyers and the interviews for a range of additional senior lawyers will take place in May 2016. Interviews for senior forensic accountants have already been completed and appointments have been made. On the mentorship programme for young forensic lawyers, there were already admitted attorneys working as forensic investigators who have now been appointed as forensic lawyers after successfully completing the programme. A similar programme is being set up for forensic accountants and a number of internal auditors have also been developed. On consultants, the SIU has no full time consultants and there were a large number at one stage. That stopped in about 2012/13 when consultants were not used to perform line functions in the SIU any longer. The SIU is still compelled to make use of practicing lawyers, because many of the cases taken to court are large cases, involving large sums of money and requiring experienced senior counsel to conduct. This is a skill that the SIU does not have in house and litigation is the only area where external people are used. The word consultant is a bit of a ‘swear word’ at the SIU and if it is used there is heavy resistance from organised labour. Sometimes professionals like architects or quantity surveyors are required and these are rather termed subject matter specialists, whose services are procured through supply chain management processes.
On the relationship with the NPA and SAPS, the SIU works closely with them aside from the referrals is the Anti-Corruption Task Team (ACTT). The ACTT, which is a major government initiative, is housed in the same building as the SIU. The NPA has a number of people sitting in the ACTT acting as members of the Asset Forfeiture Unit and ACTT members. He had himself been a member of the ACTT throughout the period, contributing to the work done by the NPA. In the same way the SIU works with the SAPS in the ACTT. The SIU has been one of the major contributors to the ACTT’s workload and a number of its members have been seconded to the ACTT. It works with the specialised commercial crimes unit from the SAPS and more so with the Hawks. The SIU is cognisant that in South Africa there is a multi-agency anti-corruption approach and it believes in cooperation.
Ms Z Nyati, Head of Business Intelligence SIU, on the Auditor General’s report and the new appointments, the SIU has taken the findings to heart and tries to address them. However, at times there are uncontrollable dynamics. The organisation structure that the SIU is working from was developed in 2009 and at times the strategy of the SIU changes, meaning structural requirements change. There may be positions in the structure which were relevant at the time, but are no longer so. This is the response given to the Auditor General, that positions will not be filled for filling position’s sake and it will only be done so where there is need. Every organisation needs to have an internal audit committee and those positions were filled. However, where there are technical positions and the strategy of the SIU may change the team has to apply its mind as to whether it will fill the positions. On the employment equity in the SIU, what was presented to the Committee followed the employment equity-reporting format required by the Department of Labour and at the end of February 2016 there were 23 senior management posts. Of these there were seven African people, four male and three female; four Indian people, two male and two female; and two coloured males.
Ms Pilane-Majake asked for the table to be sent to the Committee. Her interest was the level of the women employed at the SIU and what she heard was African women being emphasised. Beyond that a disaggregation along race could be done.
The Chairperson said he thought the aim was to create non-racial society.
Ms Nyati said that had been taken into account in the slide and of the 23 senior management posts seven were women.
Mr Visagie on how proclamations originate and get to the President, said in the 18 years that the SIU has existed there have only been two proclamations which did not originate in the SIU itself. All the others have followed a motivation process through the DOCJD and gone on from there. In practice the SIU receives complaints from the public, state entities themselves or entities like the Auditor General. The SIU tries to stay away from disgruntled employees and anonymous sources, because credible information has to be gathered to motivate an investigation to the President through the DOJCD. It analyses cases to see whether they fall within the ambit of its empowering Act and determines whether matters are serious enough for the SIU to get involved. In sum the SIU receives information from a variety of sources and where it feels there is cause to prepare a motivation for the DOJCD it does so. In the presentation he had referred to eight motivations with the DOJCD in the process of consideration.
To Ms Pilane-Majake, the SIU had had an investigation at the Deeds Registry and it was on-going. The SIU is following up on a number of allegations in that space and he was unsure how people were able to steal immovable property, but apparently it can happen. The Committee would be updated through its annual report. On compensation of staff, he had also noticed that the cost for the administration programme had gone down, but he did not have an answer at present.
Ms Pilane-Majake said her question had been dealing with the time when government had too many consultants and there were claims for bonuses, with the difference being seen now. This means that donor funding has been withdrawn and now it is accounting for what is left from Treasury. Thinking about it she had answered herself.
Mr Visagie on cooperation said it has been dealt with, such as with joint projects at the ACTT. Recently, a better working relationship has been established with the Office of the Public Protector and they have had a number of meetings towards not duplicating work.
Mr Mpumlwana asked if the SIU had found that it had received some work by proclamation and that the Public Protector was doing the same, would the SIU withdraw?
Mr Visagie said what happened in these cases is that the SIU was approached by the Public Protector who would indicate that they had received a request to do some work and asking whether the SIU was doing the same work. If the SIU indicates that they are doing so, then the Public Protector withdraws and the SIU has not stopped any investigation because the Public Protector was doing it. On vetting, here two processes need to be distinguished: screening and vetting. The SIU has a rather large internal integrity unit and before any member is appointed to the SIU they are properly screened. Everything is done, right down to lie detector tests. Further, there is a system of screening during employment, where employees are re-screened on a rotational basis. The SIU is reviewing its policy in this regard, because it was not in certain employees’ contracts and the intention is to make it compulsory for everyone in the organisation. Then there is vetting, which is the process conducted by the State Security Agency (SSA) and SIU members are going through their vetting processes in large numbers. He was vetted himself a year prior and received a top-secret clearance. What has been found in the past is that it is a really tedious process and the SSA is really slow. The State Security Agency is trying to prioritise the SIU members. The problem is if SIU is confiscating documents that are classified and the member does not have their clearance to even have access to the documents. The SIU is considering attempting to be authorised by SSA to do its own vetting, towards finding a way to fast track. The SIU is aware that vetting and screening are important in its area of work.
Ms Pilane-Majake said this is an area where the Committee could assist the SIU.
The Chairperson then declared the meeting adjourned.
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