Department of Justice and Constitutional Development on its 2015/16 Annual Report; Departmental First Quarter Performance Report

Meeting report

Mr Vusi Madonsela, Director-General (DG), Department of Justice and Constitutional Development DoJ&CD, introduced the delegation and said that the Department had flashed a few issues that it wanted to elaborate on emanating from the meeting with the Committee on 11 October 2016. Some of those matters related to timelines which the Chairperson had been concerned with in terms of policy matters and their finalisation.

Mr Madonsela said that Advocate Skosana would be taking the Committee through the presentation. He would however; be speaking on matters involving the Traditional Courts Bill, paralegals, community courts and the Lower Courts Bill before getting underway with the Annual report. 

History of the Traditional Courts Bill

Adv. JB Skosana, Deputy DG (DDG), Courts Services, DoJ&CD, said that copies of the presentation would be circulated as it had been prepared the previous night and they contained elaboration on the Action Plan of the DoJ&CD moving forward on the timelines.

He reminded the Committee that the Bill had lapsed with the fourth administration and there were current efforts to reintroduce the Bill. All the inputs from both Houses of Parliament had been taken to form the basis of engagements with Civil Society, Traditional leaders and the Department of Cooperative Governance and Traditional Affairs (Cogta) which had started in December 2015. Minister Michael Masutha had convened a policy dialogue on all those matters. A reference group had then been established to deal with the specific issues that come from the policy dialogue engagements so that these could then form the basis to introduce the Bill.

Progress on reintroduction of the Traditional Courts Bill

The Traditional Courts Bill had been put on the agenda of the Cabinet meeting of 20 October 2016. From there it would go before the DGs of the Justice, Crime Prevention and Security cluster on 8 November 2016. From there the Bill would go before a cabinet Committee on 17 November 2016 where the intention was that the Bill would go before a full Cabinet on 23 November 2016. The introduction of the Bill was earmarked for before 10 December 2016.  Minister Masutha’s desire was that the introduction occurs before the end of the campaign of no violence against women and children. There would be engagements with stakeholders and constituencies around that time to clarify issues which had historically created discomfort and contestation in that regard. Parallel that process, Minister Masutha had also set-aside a consultation schedule where he would continue to engage all structures affected by that Bill, so that whatever emanated from that would continue to enrich the processing of the Bill.  

A few things about the Traditional Courts Bill to be known is that it was not meant to transform customary law but setting up structures to assist transform customary law since the Constitution of South Africa  provided that customary as well as common law, had to be developed by the courts, traditional forums and all structures established constitutionally. The notion that traditional courts would be some form of customary law had been dispelled as traditional courts were a mechanism to further engage on a broader picture of the legal system.

The Bill additionally recognised traditional courts as courts of law, since the Constitution provided opportunity for Minister Masutha to create traditional courts by way of legislation. The traditional court would be different from the conventional court as it had its own jurisdiction, its own special proceedings and processes and the enforcement would be separate as well.

The Bill also preferred a progressive approach towards the equal participation of women; which had been a very sore point during public hearings. At the time the perception had been that the Bill increased the powers of traditional leaders whilst ignoring women.

The Bill also prescribed parameters for opting –in and out of the traditional law system which had also been a contested area. The traditional courts would not deal with any matter before the conventional court system. An individual could not opt-in and halfway want to opt-out of that system as matters possibly would not be proceeding in favour of the individual.       

There would also be effective enforcement mechanism which would be separate from the mechanisms of the conventional courts. That was where paralegals would come in and hopefully the Bill would unlock those functions which were outlawed by the constitution and some of the legislation in effect in SA. However; there would be no corporal punishment but it would enable implementation of restorative measures that were inherently originally from the traditional justice system.

The traditional courts would also allow for escalation of matters to higher institutions within the traditional justice system and their processes would be reviewed by conventional courts. 

The processing of the Bill had been championed by the DoJ&CD and Cogta. As a result, the interface between Deputy Ministers Obed Bapela and John Jeffrey would address issues of capacity; planning, budgeting and infrastructure so that by the time the Bill was introduced in Parliament it would indicate what DoJ&CD was responsible for and what Cogta was responsible for.

Mr S Swart (ACDP) interjected that DoJ&CD had a 90 page report to present to the Committee: could time restrictions for the meeting be observed as the briefing had not been scheduled for the legislation of DoJ&CD but for something else.

Adv. Skosana stated that the DoJ&CD had established a multi-sectoral structure which involved all the role players to create a platform on how to make better use of paralegals to deal  with the issues of accreditation and training thereof. Pending the legislative programme which was unfolding, the DoJ&CD would have a two-pronged approach: one was to use the paralegals going forward and hopefully the accreditation and training issues could be put to bed by end of November 2016 so that by the end of the 2016/17 Financial Year (FY), DoJ&CD would have formalised the use of paralegals in the justice system.

The DoJ&CD had started engaging the civil society sector and labour organisation as part of the Departmental study tour to Scotland where that country had what they called the Scottish Legal Aid Board (SLAB). The SLAB had an arrangement were paralegals engaged on matters suited to that sector in Scotland and Legal Aid South Africa (LASA) had accompanied the DoJ&CD on that tour. The Department would submit that report to the Committee by the end of March 2017 wherein included would be exploration of other matters regarding LASA.

Community Courts        

Adv. Skosana said that the DoJ&CD had noted the Committee’s concerns about this and was busy extrapolating the results of the pilot studies which had taken place in 2009. From that, the DoJ&CD sought to develop a broad discussion document based on the experiences from the pilots so that it could then know which areas of the law it had change for customary law. The DoJ&CD also wanted to include lessons from the traditional courts process as some of the institutional mechanism that would be unfolding in the traditional courts process would also find expression in the community courts perspective, as all those courts were where the opportunity to use the traditional justice system could be found.

Languages

Adv. Skosana said that multilingualism was a constitutional provision and the Department of Arts and Culture (DAC) had legislated how other languages could be advanced in government business. However; that Act did not go far in terms of courts and the Minister of DoJ&CD had to develop legislation that would address the use of languages in the court system. There had to be language transformation in terms of court proceedings which would allow judges, magistrates and prosecutors to speak in whatever language they wanted to. Additionally there had to be language transformation regarding court processes for example where an eviction order was given. It had to be published in a language understandable to the evictee. That process would assist DoJ&CD with identifying what needed to be changed in the in the system in terms of the legislative programmes that needed to be in place.

The first corrective measure was to repeal section 6 of the Magistrates Act, which provided that court proceedings would be conducted in Afrikaans and English as official languages. Whilst that had not been done to date, the DoJ&CD had created a section in the Rules Board for Courts of Law which would allow the devolution of rules to regulate processes and the benchmark was that the traditional courts Bill dealt with the issue of languages where people could serve papers to those courts in their language of preference. 

After repealing the section the DoJ&CD would put new rules for the Rules Board to be able to address flexibility of languages.

The DoJ&CD had recently been confronted with foreign language interpretation where non-nationals had demanded to be tried in their home languages. The Department had started casually employing some interpreters but as the issue had not been planned the DoJ&CD had ran out of budget for that programme. A policy which spoke to that effect had stipulated that every accused person had to be tried in the official language of the country of their origin. Secondly DOJ&CD planned to create a languages database where the language services would be drawn from; where the database had to provide for participation by South Africans who would have learnt a non-national language.  

The DoJ&CD had indicated that there was a need for progressive jurisprudence to be created in terms of SA law reform which was a recommendation from the research done by the Democracy, Governance and Service Delivery (DGSD) research programme of the Human Sciences Research Council (HSRC), together with its partner the Nelson R Mandela School of Law of the University of Fort Hare (UFH). That report was on its way to Cabinet but the DoJ&CD had identified other areas that needed to be flagged and guidance sought on. That would also assist with the whole Criminal justice reform where Minister Masutha’s desire was for the system to be more victim centred and the civil justice reform so that it moved away from the adversarial system of having to involve lawyers on matters that could be resolved in better ways civilly.

On Racism, the DoJ&CD would present a Bill to combat racism, racial discrimination and Xenophobia which was work already underway, as outlined in the National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (2016 – 2021) - Draft for public consultation.

Minister Masutha had arranged a follow-up meeting with Minister Gugile Nkwinti on the law that had been declared unconstitutional in relation to land restitution. The DoJ&CD planned to take the section which had been declared unconstitutional out of that Act and to process a separate Bill which would create a bench for the Land Claims court which would allow that court be staffed by individuals with the necessary skills and experience on land related matters.  Currently the law allowed for secondment of judges for hearing of land claims matters without there being a need for previous experience on said matters.

The Chairperson said that the report by Adv. Skosana had been an update the Committee had been long awaiting.  He then allowed the DG to present the annual report (AR).

Mr Madonsela said that the head of the strategy Department at DoJ&CD would take the Committee through the report and that some areas had been reflected on by Adv. Skosana.

Department of Justice and Constitutional Development on their 2015/16 Annual Report

Key areas of achievement

Ms Lebo Mphahlele-Ntsasa, Chief Director (CD) - Strategy, Monitoring and Evaluation, DoJ&CD, said that for the first time in SAs history all provinces had a high court. There were also 14 operating dedicated sexual offences courts.

The DoJ&CD had made inroads on its audio-visual remand system (AVR) and the number of cases that were being postponed due to DoJ&CDs administrative errors remained low. The DoJ&CD was quite proud of its Integrated Case Management System (ICMS), Electronic Case Management System (ECMS) and the Case Administration System (CAS) interface which allowed for only once-off capture of cases at South African Police Service SAPS. The information was then relayed through the Integrated Justice System (IJS) for access by the DoJ&CD and the National Prosecuting Authority's (NPA) efficiently.

DoJ&CD had achieved only 70% of its key performance indicators (KPIs) for the 2015/16 FY and the drop in performance had been due to introduction of objective indicators for the first time to the DoJ&CDs performance indicators

Programme 1: Administration

Ms Mphahlele-Ntsasa said that DoJ&CD had had a target of 90% to address internal and external percentage audit findings where the Department had achieved 81% to date.

The DoJ&CD had also not done baseline information service review in the 2015/16 FY where part of the challenge in implementing employment opportunities for the youth had been the crippling legal questions regarding youth and the existing codes for the Broad-Based Black Economic Empowerment (B-BBEE) where a portion of the year under review had been dedicated to getting a legal opinion of how to reconcile those before implementation.

The DoJ&CD had managed to undertake a baseline survey on corruption however; the percentage of forensic investigations undertaken was 91% achieved instead of the planned 92%. The Department had also recorded 228 cases of fraud and corruption which were finalised in the year under review.

She said that the DoJ&CD had significantly improved on its Promotion of Access to Information Amendment Act, 2002 (PAIA) requests. 

Programme 2: Court Services

Ms Mphahlele-Ntsasa said that the DoJ&CD had an objective indicator on the number of penal cases on the backlog roll where the target had been to have 112500 criminal cases on that roll. The Department had managed 47 000 cases on that roll.  The increase therein could be attributed to the change in how the Department measured its performance.

Usually the DoJ&CD had measured the first appearance as appearance at the magistrate courts so that transfer of a case to higher court would mean a new appearance date. In the year under review the norms and standards of the judiciary had changed those measurements to successively count from the magisterial appearance of a case going forward. That had then increased the number of cases on the backlog roll.

Programme 3: State Legal Services

She said that the DoJ&CD had been doing a lot of modernisation around the increase of efficiencies in the delivery of services of the Master of the High Court. The impact of that was measured by the number of visits to the Master’s Web portal. Additionally the majority of the work of the Master of the High Court was dealing with deceased estates of small estates. And the performance measure there was that DoJ&CD had to finish the letters of appointments within 15 days where the target had been 95%. The Department had managed 92% in that regard.

Ms Mphahlele-Ntsasa said that Percentage of savings on damages claimed had been a new target for the DoJ&CD since it made savings as the letter of demands were actually higher than what people wanted.

The DoJ&CD had gone beyond its planned 77% target on the percentage legal briefs awarded to previously disadvantaged individuals. The Department had targeted to reach 80% in issuing certificates regarding the expungement of offences within three months of receipt. However; it had only reached 77% because there had been a major increase in volume on expungement as could be seen in the report. In the 2014/15 FY there had been 11 000 expungements received compared to 17 000 in the year under review.

The DoJ&CD had also not finished in time the country reports it had planned to do however; it had finished the Committee On The Elimination Of Racial Discrimination (CERD) report in the first quarter of the 2016/17 FY. The United Nations (UN) had also moved the deadline for the industrial Periodic Review Report to April 2017.

The Department also had not done well in International Legal Relations in the 2015/16 FY because there had been a migration of key officials to the office of the Chief Justice (OCJ) but the Department was in the final stages of making those replacement appointments.

The DoJ&CD had been affected adversely by the two previous election periods in terms of completing needs analysis on the Truth and Reconciliation Commissions (TRCs) recommendations except on education assistance where there had been 1205 applications for the year under review where 315 had been identified for higher education assistance and 318 had been identified for secondary and primary school assistance respectively.

The Department had also identified the remains of 10 former Mkhonto weSizwe (MK) members.

Programme 5: Number of KPIs on the Integrated Criminal Justice System

Ms Mphahlele-Ntsasa said that the Department had intended that the system development process for 18 of its KPIs would have been completed by the end of the 2015/16 FY however, the DoJ&CD had managed 14 of its KPIs because of known issues within the Correctional Services component regarding procurement. There had also been readiness issues on the social development side therein, but this had been dealt with and the target had been moved into the new FY where progress had been made.

The DoJ&CD had also targeted to postpone 12 000 cases on the AVR but it had managed 11 000 postponements.

The DoJ&CD noted its favourable audit outcomes except for the Third Party Funds (TPF) and the budget vote.

Discussion

The Chairperson thanked the DoJ&CDs delegation for having affirmed young women as they outnumbered the men before the Committee on the day and said Ms Mphahlele-Ntsasa always disadvantaged the Committee by pre-emptively explaining the challenges of the DoJ&CD without having been asked first. 

Mr S Swart (ACDP) said one of the challenges was that the Committee had received hard copies of the report that morning which of course was not the DoJ&CDs fault therefore he was pleading that in future documents be circulated timeously. He asked if the DoJ&CD could elaborate a bit more on why its performance targets achievement had decreased.

Mr Swart said the Committee was aware that on 29 June 2016 there had been three DoJ&CD officials who had been arrested on corruption related offences at the office of the State Attorney in Pretoria. In August again it had been reported that there was a senior procurement official who was being investigated for a R24 million irregular tender concerning supply office equipment. Could the DoJ&CD speak to those; and whether there were anymore investigations underway? Where the 14 dedicated sexual offences courts a target for the 2015/16 FY? There was concern though about the increase in the backlog roll could the Department elaborate on that as well. Had the appointment of the attorney-general been finalised?

Ms G Breytenbach (DA) wanted to know at what capacity the Limpopo High Court was functioning; what the current challenges were and, in particular, if it was fully staffed regarding the NPA component? She also asked what the causes were for the trebling of fruitless and wasteful expenditure, what corrective measures had been put in place for that and in particular what punitive measures had been instituted against the officials responsible for that phenomenon.

Ms Breytenbach was concerned about the decline in the operational performance of the DoJ&CD.  She also wanted to know what the determination of Occupation Specific Dispensation (OSD) in the Senior Management Staff (SMS) component of the NPA was. Finally, she asked how many case dockets had been loaded onto the ICMS and how many cases had been successfully finalised.

Ms C Pilane-Majake (ANC) said the Committee would probably have to allocate sometime for a proper report to be presented on all the matters which Adv. Skosana had given an overview on. Certainly those matters had to be deliberated so that timelines would be attached to when the Committee expected those matters to have been implemented. She said part of liberating a people was to allow them to express themselves in their languages of origin. Freedom of expression was not only about speaking clearly but expression which was comfortable, intelligible and was with the intended tones to convey a particular message. Miscommunication happened probably because half of the people in SA expressed themselves in their second or third language. She further appreciated the strides the DoJ&CD had made on the traditional courts bill especially the inclusion of Cogta on the processing of that bill. 

On the migration of key personnel from the International Legal Relations (ILR) to the OCJ, had there been any key challenges at the ILR? Had they been attended to effectively? Could the DoJ&CD also speak to the progress in the process of transferring magistrates to the OCJ?

Could the DoJ&CD also indicate broadly all the International Human Rights Conventions and Treaties SA had ratified to date and whether the country was managing in complying with those?

Ms Pilane-Majake said that corruption continued to plague SA; the backgrounds of the individuals who defrauded the State had to be given when reporting because the impression created was that corruption happened in particular political parties in SA or particular sectors without any empirical evidence.

She was not certain that the DoJ&CD had purposely left out speaking over the performance of the Public Protector’s Office (PP) and the South African Human Rights Commission (SAHRC).

Finally, she asked if the DoJ&CD still leasing buildings.

Mr W Horn (DA) noted that the target for a full rollout of the ICMS still remained 2018/19 FY and that the budgeted amounts were being spent. Was the 2018/19 FY a realistic target, because if one reviewed the report on the limited pilot projects the target seemed quite stretched?

Whilst the DoJ&CD had explained the new way of calculating the number of case on the criminal backlog roll, it would be helpful to hear what the total on that roll would have been if the old indicator or target would have remained because it had also been reported that the DoJ&CD had been hampered by a reduction in productive court hours.

The Auditor-General South Africa (AGSA) had stated that even though the DoJ&CD had an unqualified audit the occurrence of repeat findings over a number of years lead to deterioration in audit findings for Departments and entities. Though the DoJ&CD had reported that it stretched targets in addressing audit findings and that it had an 81% intervention rate in terms of the 2014/15 audit findings: had all 81% of said interventions been successful?

There had been four repeat findings over a number of years; first being the material misstatement on the financial statements of the DoJ&CD where AGSA seemed to be frowning upon such more and more. The second repeat finding had been compliance with key legislation and despite what DoJ&CD had reported that it had improved its consequence management AGSA had maintained there still remained not enough effective steps to prevent irregular expenditure at the DoJ&CD. 

Lastly was the payment of creditors within 30 days was also a repeat finding with the 2014/15 FY being where the DoJ&CD disputed the Committee on the matter that had the Department paid everyone by the end of the FY there have been an overdraft: in the 2015/16 FY the DoJ&CD had just reported that indeed there had been an overdraft.

Mr Horn expressed concern about the tendency of departments to defer payments at year-end to balance their books.  What amount had been deferred by DoJ&CD if there had been any? It had also been reported by the Department of Planning, Monitoring and Evaluation (DPME) that it had found 1088 invoices older than 30 days at the DoJ&CD between April and June 2016. What was the DoJ&CDs action plan in that regard?

Mr Horn said that possibly the ad hoc way magistrates were appointed in the country was not working as the Magistrates Commission met quarterly and then there would be an appointments Committee which put hundreds of hours of work once the shortlist had been done. Despite all that the DoJ&CD did not seem to turn a corner in the vacancy rate of magistrates. Did the DoJ&CD have any plan to establish a full time appointments Committee?

Mr Horn also bemoaned the lack of leadership at the State Legal Services with the outstanding appointment of the attorney-general. It had been reported that 176 positions had been filled at the State-attorney’s office in the 2015/16 FY when in 2014/15 FY the vacancy rate had been reported as 17%; most puzzling the rate had increased to 25% at the same office for 2015/16. Despite the filling of vacancies other vacancies seemed to have occurred. There was also a report that the vacancy rate at that office for attorneys had been 30% in the 2014/15 FY but there were no corresponding numbers for the 2015/16 FY. Were the appointments at the attorney-general for attorney’s or support staff?

The DoJ&CD had also reported that it would engage the Department of Public Service and Administration (DPSA) to unfreeze senior attorney positions at the state-attorney’s office as an investigation into challenges therein; had revealed that juniorisation amongst the ranks was amongst the causes of the challenges. Had that happen and to what extent had that process unfolded?

It seemed that the infrastructure programme of the DoJ&CD was still hampered as the Mpumalanga High Court was two years behind completion schedule because of problems with an access road. The current delay related to Mbombela Municipality realising that there would need to be an upgrade to the water and electricity supply of the building. The South Gauteng High Court extensions had also been five years behind schedule and the Port Elizabeth High Court was a year behind schedule as well. The Department of Correctional Services (DCS) component of DoJ&CD had reported that apart from having decided to give the Department of Public Works (DPW) the management of such projects it would also appoint its own project managers for such works. As much as there were challenges with DPW, what steps was DoJ&CD contemplating in similarity to DCS.

The Chairperson recalled that the Committee was represented in the Magistrate’s Commission. What possibly needed to happen was for the Committee’s representative to report back to the Committee and recommend accordingly so that the Committee would not have to wait for the DoJ&CD to submit a report in that regard.

Ms Pilane-Majake concurred with the Chairperson that all Committee members sitting in commissions of the judiciary whilst monitoring such structures had to then report back to the Committee.

The Chairperson reported that the Judicial Services Commission (JSC) had been deliberating the ill-discipline of certain judges.

Ms M Mothapo (ANC) commended the Department’s repeat unqualified report with emphasis on matters. She concurred with Ms Pilane-Majeke’s proposal that the Committee find time for Adv. Skosana to speak broadly to the matters he had presented on earlier. Indeed vacancies of magistrates and state attorney’s were definitely out of sync with the allowed DPSA vacancy rate benchmarking.

She said that when doing oversight in her constituency, she had received complaints that the Sheriff around Mankweng Municipality had not been performing his or her legislated duties accordingly. She had received a letter where a community had complained to the Sheriff Board with the Board not responding at all. She was requesting the DoJ&CD to look into that as it appeared that the Sheriff Board was not there to serve the needs of the poor. There had also been the constitutional jurisprudence project that had cost around R10.3 million where the Committee had been told that the final report of that work would be tabled on the 31 March 2015. What was the progress regarding that?

The Chairperson said he knew that the head of the Sheriff’s Board who had also been a CD at Cogta and with the DGs permission the Committee could interact with that individual to get more information.

Ms Pilane-Majake said the previous complaint around that Board was where it located its sheriffs’ offices; they were not accessible to citizens as they were connected to the small claims court. At the small claims court people had to process their own subpoenas

Ms Louraine Rossouw, Chief Financial Officer (CFO), DoJ&CD, replied that its finances were like statistics in that they could be read with multiple lenses. The DoJ&CD underspending in terms of its vote appropriation had been R8 million and regarding its statutory appropriation for magistrates had been R108.9 million. If one raised that together with the potential of overspending or whether DoJ&CD had paid its accruals; that then raised an accounting issue as the DoJ&CD was not on accruals based accounting.  Accruals based accounting meant one would deduct the previous year’s commitments which had been paid and add the new commitments which were not the intention. The challenges at DoJ&CD were its agency services. The DoJ&CD had total assets of R 139 million and its total liabilities were R823 million which was still not overspending from the way that the Committee had perceived the financials.

Audit findings

Ms Rossouw said that the major findings against the DoJ&CD were material misstatements which had been corrected on contingent liabilities. Because the DoJ&CD had been concerned about its contingent liabilities it had audited the entire financial year itself whereas AGSA found the material mistake on the contingent liabilities of a previous year.

The Department’s bank overdraft was due to legal costs from the recovery from other departments which was also an issue the Committee had raised. The Committee had to recall however; that the DoJ&CD conducted all payments for all other government departments, therefore it would pay the service provider and then recover the money from other departments. The challenge had been auctioning those recoveries from other departments. The DoJ&CD had four major customers where its outstanding amounts for legal bills as at 31 March 2016 to recover from other Departments had been around R125 million. The major customers were the Departments of Health (DoH) and the South African Police Services (SAPS). SAPS paid consistently about R45 million in recoveries but the challenge was with regional DoHs like the Eastern Cape which was mostly responsible for DoJ&CD accruals. If the DoJ&CD could recover said monies it could perform better.  

DoJ&CD had performed better in the reduction of its Human Resource (HR) management and reduction in City debt payments findings.

She said that the DoJ&CD had not deferred payments that had been older than 30 days. Deferments would have been for payments that the Department knew had to be paid within the 30 days limit however; that was done with the knowledge that at the beginning of the following FY DoJ&CD systems closed for about a month to adjust for all the new requirements. That system had been in place for years and what also had to be noted that the DoJ&CD did not have regional systems integration like the Department of Basic Education (DBE).

Focus Areas

The DoJ&CD had been experiencing problems with the centralised supply chain database in improving the 30 days payment limit to suppliers for the 2015/16 FY. The Committee would notice a decline in that regard but by the 2016/17 FY there was hope for improvement. Ms Rossouw said the DoJ&CD could not interface with the Central Supplier Database (CSD) initially and only about two months later did National Treasury realise that there had been a bug in its systems. There had been an additional glitch where suppliers trading names were different from their registered names.

Regarding the prevention of irregular, fruitless and wasteful expenditure: some of the above issues with the CSD would affect that but other matters the DoJ&CD would grapple with. Additionally, since DoJ&CD was still un-integrated; issues which would be managed by the CSD would still be managed by people. The Committee also had to be cognisant that at some stage there would be a cost-benefit decision where the question would be what cost the DoJ&CD could incur to prevent something from happening. That would also speak to whether the DoJ&CD had not been spending more on controls than what it had to be saving.

The Guardian Fund

The DoJ&CD had an accumulated surplus of R956 million where the findings by AGSA that the major risk area was the DoJ&CDs system in that regard. The DoJ&CD was considering aligning that with its TPF system. There had been some magistrates who had declared that future maintenance payment be paid into the guardian fund where the DoJ&CD was still grappling with that however; there was no enabling legislation for that to occur.

The President Fund

The DoJ&CD had had a once-off emphasis of matter related to the Public Investment Company (PIC) revaluing the Fund but DoJ&CD had corrected that in the 2016/17 FY.

Third Party Fund

The DoJ&CD had turned the corner with the TPF and the Department was focusing on addressing the present, the past and the future simultaneously. In the present the DoJ&CD was managing to deal with matters correctly so that it could start to trust the figures in the 2016/17 FY. In terms of the past, the DoJ&CD was busy with the ring-fenced amounts.

Cost containment

Ms Rossouw said that though the DoJ&CD had implemented such measures it had had to do public awareness programme on the National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance and had therefore been travelling countrywide. It had also been conducting public awareness on the Constitution of the country and Lesbian, Gay, Bisexual, Trans, and/or Intersex (LGBTI) issues. 

56% of the DoJ&CDs total budget went into remuneration which was fair from Ms Rossouws perspective as the DoJ&CD was a service driven Department.

Budget Challenges

The capping on governments wage bill meant that DoJ&CD could not spend more money on remuneration where the Department was concerned about its expenditure on court services and the NPA.

The DoJ&CD had planned that if it considered the carry through effect between FYs it would still be coping as expenditure would be at R86.6 million between the 2015/16 and 2016/17 FYs. After adjusting that number it had predicted that it would then start experiencing problems only in the 2017/18 FY. However on review programme 4-the NPA; which had had a R60 million shortfall in terms of the initial prediction. The entity had indicated that it was hoping to bring that down to R45 million. That still meant the DoJ&CD would be overspending on compensation of employees. Fewer people were voluntarily separating from the DoJ&CD.

Ms Rossouw said that the reconciliation for the fruitless and wasteful expenditure of R1, 2 million from the R484 000 was part of the cases that were currently under investigation. She gave an analogy that the amounts related to what were called ‘no shows’ in terms of travelling. Previously one could change their travel ticket without any additional cost but airlines had changed policies to charge administrative costs to changes to airfare tickets. The DoJ&CD currently recorded those no shows to determine how it could have better managed to avert those administration penalties on an individual basis.

Mr Madonsela said that the position of Solicitor-General had not been filled. The panel considering candidates for the position had found the quality of applicants not to be satisfactory, which had then made the DoJ&CD to review its approach on how to go about filling the post. The review had found that the reason the vacancy had not attracted the type of calibre of candidates had been how the package had been offered. The Minster had then taken the view that the DoJ&CD had to raise the level of the salary, which then took the salary package of the Solicitor-General out of the ambit of the Public Service Act. The most senior person appointed in terms of the Public Service Act was the DG, which was a level 16 post. The DoJ&CD was currently considering amendments to the State Attorney’s Act which would introduce matters pertaining to the regulation of the remuneration and terms and conditions of employment outside the Public Service Act in order to attract candidates of the right calibre.

Reference had been to three justice officials who were employed in the State Attorney’s office being arrested by the Hawks sometime in 2016. At that time the DoJ&CD had already prepared internal disciplinary processes but after consultation with the Hawks, those processes had been halted until such time the Hawks had completed their investigations. Currently a criminal prosecution was underway though Mr Madonsela was not aware when those officials would appear before the court. That information would be requested from the relevant institutions and be shared with the Committee. As part of the DoJ&CDs internal disciplinary processes, the officials had been removed from the State Attorney’s office as part of the Department’s precautionary transfer; to ensure there was no evidence tempering and disturbance of potential witnesses within the State Attorney’s office.  The DoJ&CD had consciously decided not to suspend anyone with full pay; rather have precautionary transfer so that people could continue to earn money through working.                                                               

Regarding the CD-supply chain; disciplinary proceedings were underway and charges had been laid: Once those matters were finalised the outcomes would be shared with the Committee. Mr Madonsela could not say however; that there were other cases wherein the CD-supply chain could be implicated though there were instances  that had been reported which had culminated in the disciplinary proceedings.

Mr Madonsela said the Department took to heart the suggestion of profiling individuals implicated in corruption but would carefully check what the limits of such profiling would be considering the sensitivities of the fact that implications were based on allegations did not mean automatic guilt.

Mr Romeo Adams, DDG-Corporate Services, DoJ&CD, added that the Department’s forensic audit unit received various tip-offs either from the Presidential hotline, e-mails from employees or organised labour. As soon as those matters were received investigations were undertaken which sometimes lead to disciplinary processes as alluded to by the DG.

In terms of the OSD for the SMS component at the NPA, Mr Adams asked to respectfully defer the matter to the NPA as it was going to present its own annual report after the DoJ&CD.

The OSD had taken some SMS posts out of the SMS dispensation and then put those in the OSD dispensation. What had happened especially in the heads of office in the State Attorney was that the DoJ&CD had done a review with DPSA on those posts specifically. The review had concluded that it could be necessary for the DoJ&CD to revert back to the SMS dispensation because the majority of the work could be at a managerial position instead of a specialised production function which came from those head of offices. Consequently the posts had been advertised and the DoJ&CD was in the recruitment processes for the filling of heads offices in the State Attorney office.

In terms of the176 posts which had been filled, the Department acknowledged that as soon as a supervisory managerial vacancy became filled there was a likely hood that someone already in the system could then be promoted to that managerial supervisory post.  The 176 then had become higher compared to the initial vacancy target since the lower posts would have been also filled, though they would have not been considered in the target setting for vacancies.

Regarding the question on which posts were legal compared to administrative, the DoJ&CD requested to be allowed to respond in writing so that the specifics of each office, what the number of posts had been and the breakdown of administrative versus legal could also be included in that response.

Though the vacancy rate from the SMS posts was relatively high the overall vacancy rate of the DoJ&CD of 8.7% was far below the benchmark in the public service, which was 10%.

After completing the review of the trajectory of remuneration of employee’s posts, the CFO had put an exercise in place where a task team would assess which of the currently vacant posts across the DoJ&CD were critical for core service delivery; which were supervisory or managerial and which were support or SMS posts. The task team had met a few times and was meeting weekly to complete the assessment. The bias of the work was towards the service delivery posts that would be the courts, the office of the State Attorney, the Masters Office and the office of the Chief State Law advisor.  The Department would not neglect its head office but the thinking was that if there were going to be challenges in terms of compensation the DoJ&CDs service delivery points had to be a priority so that there could be a court manager, a Digital Court Recording System (DCRS) clerk and someone assisting clients directly rather than have someone looking at whether Mr Adams’ support post at national had to be filled.

Additionally the DoJ&CD was looking to change its norms a bit at the National Office so that it could be able to create more capacity at a service point by making the funding available specifically.

Because of natural attrition the DoJ&CD accepted that there would always be vacancies and what was important was for regional DoJ&CD HR officials to be capacitated and supported to fill vacancies of service points in the shortest time periods. The DoJ&CDs filling average was also below the average of six months as it had recorded three to four months to fill vacancies each time a post became available. 

Adv. Skosana replied that indeed there would have been changes to the backlogs if the norms had not been changed. The backlogs had been with the DoJ&CD from the time of the crisis which had remained non-finalised after Probability (P). That had been with a view to distinguish those matters that had been withdrawn even before the start of proceedings. However; if inclusion was for all matters into one period, that had the potential to confuse other matters which were matters that had been diverted or withdrawn which would fall into that category of backlogs even if they were not in the system.  In the intervention the judiciary had set-up, the emphasis had been on six months cases which had remained on the roll without distinguishing where the P had been taken. Those areas were where the difference would have a different output but the detail would be provided.

There was a commitment which said that all officials within the justice cluster had to have a uniform measure for performance. It could not be that hours, months or weeks were used in different scenarios and that policy would be part of the business plan which the DoJ&CD was working on.

The OCJ would report to the Committee on the Limpopo High Court in terms of the admissions staff, but what had enabled that court to be up and running from the 26 January 2016 was that the process of establishing that capacity had started long before the proclamation of that court. There had been a permanent circuit, registrars and interpreters that had been stationed there before the proclamation of that court.  All that had remained had to be the facilitation of a process of judicial establishment. The court consisted of nine judges - one Judge President (JP), one Deputy Judge President (DJP) and seven judges. The Limpopo High Court was bigger than its Northern Cape and North West division counterparts. The Legal Aid and the National Director on Public Prosecution (NDPP) already had personnel at that court.

In terms of the progress in the process of transferring magistrates administration to the OCJ, Adv. Skosana said that the Superior Courts Act, 2013 (Act No. 10 of 2013) and the Magistrates' Courts Amendment Act, 1993 [No. 120 of 1993] did not allow the transfer of courts as they were independent institutions. The transfer was of the administrative staff related to the courts. The administrative processes of the higher courts were channelled through the OCJ and for the regional and district courts the entity was the DoJ&CD.

What had to be transferred first was the administration for magistrates. The plan was that the magistracy in terms of complaints would be processed at the OCJ and that was the first phase of the envisaged transfer. That magistrate’s court administration transfer was depended on the Lower Courts Bill which would start at the end of November in terms of consultation.

There were still minor gaps in terms of the OCJ transfer of staff but the steering Committee between the DG and the secretary-general of the OCJ had been revised where there were structures that dealt specifically with those gaps.

The DoJ&CD still leased about 115 buildings to the tune of R414 924 in the 2015/16 FY. The DoJ&CD was discussing with DPW to avoid having five buildings around one centre operating different aspects of the DoJ&CD in terms of the Infrastructure for the national office. 

In 2013, former Minister of Justice, Mr Jeff Radebe had created 113 new magisterial posts above the already existing magistrates. The posts had been increased from their usual 1900 to 2000 plus. The country was heading towards the 2014 general elections, the Magistrates Commission could not sit to process those appointments because of the shortage of members and then there was an escalation where the vacancies added up to 313 vacancies.  As the commission was battling with that backlog other vacancies were emerging. The Commission would possibly have to find time to sit more regularly than the JSC because if it sat once a year that would not help.

The Deputy Minister (DM) had delegated functions to deal with the sheriffs.  Appointments and jurisdiction of sheriffs were amongst those functions, and there were historical factors related to the profession. One was that sheriffs were not required to establish offices by law. The idea therefore was that there needed to be a reform to the law to compel sheriffs to have offices.

Indeed the DoJ&CD had received the report on the assessment of the jurisprudence of the Supreme Court of Appeal (SCA) and the Constitutional Court (ConCourt) in November December 2015 from the UFH and the HSRC however there were some gaps in the report, which the DoJ&CD had wanted the researchers to go back and review before it was tabled to Cabinet.

Ms Gabriella La Foy, DDG-Constitutional Development, DoJ&CD, said in the short time she had been with her portfolio; the challenges faced in terms of treaties’ and conventions related to vacancies in SMS in International Legal Relations Unit. There were also skills shortages in the International Law area generally and also regarding report writing as those reports had to be drafted in a particular way. To address all, a strategy would have to be put in place to focus on recruitment of key posts and the training of existing staff on report writing and to address the backlog of outstanding reports to the regional and international buildings. Additionally, that strategy would have to address future domestic compliance and international reporting. She was aware though it had not been reported in the presentation that the DM had led two delegations to present the country’s reports on the International Covenant on Civil and Political Rights (ICCPR) and the report to the African Union (AU). She had accompanied the DM to present the country report on the International Convention on the Elimination of All Forms of Racial Discrimination. The AU had granted SA an extension on one outstanding report to the regional body.

Ms Pilane-Majake said the DoJ&CD had to look at the financial implications of all the treaties the country had ratified, so that the Committee and the country were alive to those, to avoid finding SA overcommitted and being unable to comply. What was the status regarding the AU peer-review mechanism?

Ms Mphahlele-Ntsasa replied that in terms of how many cases the DoJ&CD had logged onto the Integrated Justice System (IJS) transversal; the Department was not performing optimally though the system was up and running. She asked that she be allowed to respond with the detail of that question in writing.

There had been largely two reasons why the DoJ&CD had declined in its overall performance; for the first time the DoJ&CD was talking about impact indicators which had not been there previously. The second reason was the the vacancies in the constitutional development area where a new DDG had been appointed since, and people were being appointed to the International Legal Relations unit as well. There were also quite a few targets where the differentials were between a target of 92% had not been met the underachievement would have been 91%. The previous year’s target would be found to have been 88%, which would then indicate that performance had increased from the previous year.

Adv. Skosana addressed the Mpumalanga High Court matter and said that the DoJ&CD had taken the point of the need to create capacity in project management so as to avoid what had occurred there. The engineers report had indicated that the main supplier for bulk services would be drawn from +/-200 metres only to find that the supply would not be sufficient for that type of court. Therefore the bulk supply eventually was drawn from 500 metres which had delayed scheduled completion of the work by four months. All those delays had enforced the rational to create that capacity within the DoJ&CD such that regional offices were being capacitated to have a director’s post which was initially used for court operations, which would be thenceforth used to recruit someone with the necessary skills in facilities management. That would ensure all facilities projects in all provinces would have someone with basic knowledge of the facilities environment and could advise and interface with DPW. The delivery target for the completion of the work at the Mpumalanga High Court was end of June 2017.

The Chairperson said the Committee was satisfied with how the DoJ&CD had been managing its finances and performance overall but it had to be borne in mind that accounting was not on the basis of the money given to the DoJ&CD but about a nation building project. If research showed that less than 40% of the population understood the constitution where the expectation by government was for a society to abide by a constitution it had not read or understood; that raised the question of whether an injustice was not being perpetrated on society. How much of the constitution was going into schools or work places in terms of constitutional literacy? Why had South Africans not accessed the avenues to further internalise and understand constitutional democracy?

The Committee emphasized the criminalisation of racism but the DoJ&CD kept referring to hate speech. Those were not equivalent concepts because he believed that criminalisation of racism had to be at the heart of the work the government wanted to do because without rooting out racism the project would not go anywhere.

There were advice centers, paralegals and traditional leaders within communities that could be trained and resourced to do the work of constitutional literacy within communities

The Foundation for Human Rights (FHR) had been founded to assist in that quest but who set the agenda for the FHR as the Chairperson had heard it had recently run a moot court at the Constitutional Hill; something which universities did regularly. There were people who had lost land in the 1998 Land claims which could not afford prolonged litigation. The DoJ&CD had to set an agenda for the FHR; it could not be that South African resources belonged to a Non-Governmental Organisation (NGO) that set the agenda itself.  All the chapter nine institutions were focused on tracing, chasing and getting people arrested when they had educational programmes on human rights education. How much money was actually spent on human rights education?

The Chairperson had received a report from the Vhembe district of a 102 years army veteran who had claimed land and chieftaincy without any resolution. He had since collapsed and suffered a stroke from the illegal occupation of his land he had witnessed. The Chairperson had arranged to get the veteran to Polokwane for brain scanning.  

The Chairperson had recently attended the land claims court where he had been told that there was a legal firm in Johannesburg that had the responsibility of compiling who could defend land claimants. The old prejudice of briefing white lawyers of course emerged therein as the majority of the counsels were white. If all the rural claimants were losing claim every decade the perception was created that the white lawyers were colluding with the courts. In the service of justice the DoJ&CD had to look at who decided who could do what when it related to land claims.

The Committee had been engaged by Justice Dunstan Mlambo on how to unblock some of the blockages in the land claims court and it had been agreed that he could workshop LASA, DoJ&CD, Department of Rural Development and Land Reform (DRDLR) and Cogta since sometimes there was no impact from all the mentioned departments because of working in silos. He appreciated that since the DG had taken office the DoJ&CD had prioritised transformation and that it would not be business as usual under his leadership.

The DG appreciated the interaction with the Committee and the two instances where the DoJ&CD would submit written responses, especially statistical information. He wondered since the DoJ&CD had been requested to present the first quarter performance which had been circulated to members, the Committee would allow that.

The Chairperson said the meeting was for the whole day the DoJ&CD could proceed.

The DG acknowledged the NDPPs presence and handed over to Ms Mphahlele-Ntsasa.

Departmental First Quarter Performance Report- Portfolio Committee of Justice and Correctional Services

Performance Overview-key highlights

Ms Mphahlele-Ntsasa summarised the presentation starting at slide 6 because of time constraints.

Programme 2 Performance

• Percentage of requests for default judgments dealt with by the clerk of the court within 14 working days of receipt (district courts).

She said that the indicator had not been met in quarter 1 and would still be unmet in quarter 2 and the DoJ&CD was trying to implement new processes to ensure it moved on the achievement of the indicator, including being aware of the court judgement regarding default judgements.

Programme 3 Performance

• Percentage of beneficiaries in receipt of services within 40 days from receipt of all required documents (Guardian’s Fund).

The DoJ&CD was struggling with the guardians fund as it was supposed to pay within 40 days 92% of the beneficiaries where it was only achieving 71%. The intervention to assist n that regard was as reported in the presentation but the fund would still be underperforming in quarter 2 as well.

• Number of legislative instruments submitted to the Minister for approval.

She said that the DoJ&CD would meet the target in quarter 2

The DG said that what would become apparent during its quarter 2 performance report to the Committee was that most of what would not have been achieved in quarter 1 would have been achieved in quarter 2. By quarter 4 the DoJ&CD was confident it would have caught-up with everything.

Mr B Bongo (ANC) said the Committee had to congratulate the DoJ&CD for the stability it had reached in SMS appointments and that they seemed to be on the same page with the Committee.

The Chairperson said the meeting would move into a different venue for the NPA briefing and the proceedings were paused in the interim.

The meeting was adjourned.