A delegation from the Department of Justice and Constitutional Development (DoJ&CD), led by the Acting Minister of Justice, presented the Strategic Plan for 2017/20 and the Annual Performance Plan for 2017/18.
The Department’s challenges were mainly the inability to fill vacancies because of limits placed on the state wage bill, an inadequate infrastructure budget to address all service points, and inadequate security spending to secure persons and property. The delegation explained that the challenges of ring-fencing and capping of remuneration budgets included engagement with unions, and housing and medical aid subsidy increases. It lamented that 72% of the budget went to the compensation/salaries of employees.
Members made various observations and sought clarification on several issues. These included the long delays over land claims; entrustment of legal aid funds in private hands; more briefs for new lawyers; the constitutional democracy versus parliamentary democracy debate; the ambit of court judgments; the slow justice delivery in the context of legislation such as the Maintenance Act, the Trafficking in Persons Act, and the Contingency Fees Act. Other issues raised were the non-filling of vacancies in magistrates’ courts, amendments to the Legal Practice Act, information on the break-in to the Chief Justice’s office, an update on the cuts in the budget of Legal Aid South Africa, resuscitation of the Special Investigating Unit’s special tribunals, the inclusion of indigenous languages in the LLB curricula, and the training of court interpreters.
Some members condemned public speculation over the motives for the burglary in the Chief Justice’s office. A Member expressed concern over the slow pace of the Muslim Marriages Bill. Another questioned the effectiveness of the DoJ&CD, alleging that the criminal justice system was in crisis. He called for economic justice, a repeal of criminal records of persons convicted of non-violent crimes, and a repeal of apartheid and colonial era legislation. Another Member sought clarity over the changing nature of municipal boundaries, and lamented the superiority of the English language over other court languages, noting that language was crucial to transformation and the administration of justice.
Responding, the Department explained efforts to ensure adequate funding for Legal Aid SA, difficulties that had led to the backlog of 214 vacancies in the magistrates’ courts, reforms of the Legal Practice Act, the allocation of briefs, the increment in the value of funds for the Small Claims Court, and reasons for the strain on court interpreters. It described the challenges of ring-fencing and capping of remuneration budgets, barriers against the inclusion of indigenous languages in the LLB curricula, the nature and management of the break-in at the Chief Justice’s office, reasons for moving the salary structure of the Solicitor General outside the Public Service Act, and measures to repeal obsolete legislation. The Deputy Minister of Justice denied that the criminal justice system was in crisis, and provided reasons for delays in the administration of justice.
The Chairperson welcomed everyone, and called for a moment’s silence for the departed anti-apartheid activist, Ahmed Kathrada. He affirmed that the Committee was neither an appendage of the Executive arm of government, nor a representative of one political party. He expressed displeasure that a political party could demand that a representative of the executive be present at the Committee’s meeting. This demand, alongside pressure from the executive and the media, had led to the cancellation of the Committee’s meeting last week.
The Deputy Minister of Justice, Mr John Jeffery, responded that scheduling issues had been responsible for the request to postpone the meeting. He called for improved communication between Parliament and the Executive.
Mr W Horn (DA) expressed displeasure over the Chairperson’s refusal to accede to their meeting request.
The Chairperson reiterated his request for political parties not to request meetings through the media. He called on the delegation from the Department of Justice and Correctional Services to present.
Department of Justice and Constitutional Development (DoJ&CD): Presentation
Ms Faith Muthambi, Acting Minister of Justice, outlined the institutions supporting democracy. She disclosed that the Strategic Plan and Annual Performance Plan would guide the DoJ&CD in 2017. She disclosed that the Traditional Courts’ Bill was now before the Committee after a difficult journey through Parliament. The Department was reviewing the Hate Speech Bill. Vacancies were being filled in the Magistrates Court, while the Judicial Service Commission would meet next week to fill vacancies in the superior courts.
The Office of the Chief Justice had made great strides in supporting the judiciary. The National Prosecuting Authority was taking measures to improve the prosecution of sexual offences and empower investigations and prosecution of violent/organised crime. The DoJ&CD was tackling drug abuse, while the Special Investigating Unit (SIU) special tribunals were being resuscitated. Legal Aid South Africa, which had achieved a 15-year uninterrupted clean audit, was making concerted efforts to provide justice to indigent people.
The Chairperson conveyed the Committee’ good wishes to the ailing Minister. He said that the Committee’s concerns were covered in the Acting Minister’s report. He noted that land claims lodged as far back as 1998 had not been heard because the claimants lacked funds to process the claims. He suggested that legal aid funds be entrusted to Legal Aid South Africa instead of being entrusted to private hands.
Mr Horn asked the Acting Minister whether she could answer Members’ questions.
Mr Jeffery expressed the delegation’s willingness to answer non-political questions.
Ms M Pilane-Majake (ANC) commended the appointment of a woman to lead the superior court of appeal. She called for regular reports from the National Forum for Legal Practice.
Mr B Bongo (ANC) asked for more speed in the dispensation of cases in the Land Claims Court, and suggested an increase in the funds for legal aid. He called for more briefs for new lawyers, and commended the new Legal Practice Act. He suggested a conference to debate the relevance of constitutional democracy versus parliamentary democracy, noting overlaps in legislative and judicial functions.
Mr Horn observed that 75% of Parliament would need to vote before parliamentary democracy could be adopted. He said that the Law Reform Commission should be responsible for reviewing the constitutionality of legislation. The Integrated Justice System had been on the agenda for an unduly long time and needed to be evaluated within the broader framework of the criminal justice system. He expressed concern over the socio-economic transformation ability of court judgements. He requested an explanation over the non-filling of vacancies in Magistrates’ Courts, noting that the Acting Minister’s address had not provided this explanation. He sought clarity on amendments to the Legal Practice Act. Finally, he demanded for more information on the break-in to the Chief Justice’s office.
Mr S Swart (ACDP) sought clarity over the work of the Department of Public Works. He commended Legal Aid South Africa’s achievement of a 15-year unqualified audit, and asked for an update on its budget cuts. He also sought a progress report on the resuscitation of the SIU’s special tribunals.
Mr M Maila (ANC) asked for a progress report on the inclusion of indigenous languages in the LLB curricula. Given the dire consequences of misinterpretation, many court interpreters needed re-training. Noting that an accused person had been killed over the break-in to the Chief Justice’s office, he asked for a classification of this crime, condemning public speculation about the perpetrators and seeking remedial and preventative measures.
Ms M Mothapo (ANC) condemned Parliamentarians who were pointing fingers of blame over the burglary in the Chief Justice’s office, noting that the matter was in court and the judicial process must be respected. She expressed concern over the Muslim Marriages Bill, which ought to be given priority. She re-echoed Mr Maila’s concern that some court interpreters were ill-trained, and reiterated the importance of proper interpretation in the judicial process.
Mr N Matiase (EFF) said that the effectiveness of the DoJ&CD was largely dependent on the effectiveness of the Minister of Justice and Deputy Minister. He asked them to justify their existence, because the criminal justice system was in crisis. He gave the example of break-ins into offices and contradictory statements from the police hierarchy. He argued that the DoJ&CD ought to be catalysts for transformation. Given the evil nature of colonialism, what was the Department doing to repeal colonial and apartheid era legislation? How did it assess the effectiveness of legislation, and why was there a delay in repealing some legislation?
Mr Matiase asserted that the victims of crime were usually blacks. There was a need for economic justice and a repeal of criminal records for persons convicted of non-violent crimes. This would enable them to earn an honest living. Furthermore, the jurisprudence of the judiciary remained untransformed. He urged the ruling party to ensure an African revolution against the legacy of apartheid and colonialism.
The Acting Minister said that efforts would be made to ensure that Legal Aid SA got the requisite funds to perform its mandate.
Mr Jeffery explained the difficulties that had led to the backlog of 214 vacancies in the Magistrates Courts. These were notably the inability to interview candidates, and the locations of the vacancies. He explained that reforms of the Legal Practice Act needed coordination between several sections of the legal profession. Regarding the allocation of briefs, the target of allocating 75% to black practitioners was being met. The value of funds for the Small Claims Court had been increased from R12000 to R15000. He disclosed that he had met with the head of the SIU, noting that funding was crucial to the resuscitation of its special tribunals. Training of court interpreters was taken seriously, citing the example of training given by the Justice College. He explained that the large number of foreigners being tried in the courts puts a strain on court interpreters.
On the issue of indigenous languages, Mr Jeffery recalled that there used to be Latin, Afrikaans and English language requirements for the LLB. He explained that including indigenous languages in the LLB curricular would be challenging. While it was easy for the University of KwaZulu-Natal to offer Zulu, the same may not be said for universities like UCT, which had a varied student racial composition.
Regarding the break-in at the Chief Justice’s office, Mr Jeffery explained that the police did not want too much information to be disclosed. He remarked that figures were being bandied about, which may be less than what was stolen. Human resources data such as employment records had been affected by the theft of computers.
Mr Jeffery admitted that some legislation needed to be abolished or amended. He said technical amendments were best handled through a judicial matters bill. Sadly, the legislative process was slow. He disclosed that the Law Reform Commission had been tasked with identifying obsolete legislation for possible repeal.
The Muslim Marriages Bill had got stuck because of the need to obtain consensus on some issues from the Muslim community. One of these issues was the need for Muslim judges to adjudicate on divorce.
Mr Jeffery denied that the criminal justice system was in crisis. He argued that the administration of justice was difficult because of the varied personnel – police, social workers, medical personnel, etc – involved. He recalled that criminal records used to remain for life. The Criminal Procedure Act had later provided for some criminal records to be expunged after 10 years, and also made special provisions for juveniles. The problem was that some employers saw a criminal record as an absolute bar to employment.
The Chairperson reiterated Ms Mothapo’s call for the sub judice rule (caution regarding public statements about ongoing trials) to be respected in the burglary of the Chief Justice’s office.
Mr Zach Modise, National Commissioner, Department of Correctional Services, said that the constitutional versus parliamentary democracy debate was a political question that went beyond the DoJ&CD. He said that the founders of South Africa’s democracy had made a conscious choice which would require something remarkable to alter it.
Mr Modise explained that state attorneys were employed under the Public Service Act and its Regulations. The creation of the Solicitor General created the possibility of deviating from the salary stipulations of the Public Service Act. To attract qualified personnel, a decision had been made to emulate the NPA and move the salary structure of the Solicitor General outside the Public Service Act. The Department was trying to bring the litigation and law advisory functions of the Office of the State Law Adviser closer so that they could ‘cross-pollinate’ ideas.
Adv Gerhard Visagie, Head of the SIU, reported on the progress with the resuscitation of the SIU’s special tribunals.
The Chairperson said that the constitutional versus parliamentary democracy debate was not for the Committee to debate now. He noted that tyranny had been perpetrated under the apartheid version of parliamentary democracy. Accordingly, he highlighted the importance of judicial activism. He further noted a renaissance in the law, which flowed from calls for decolonisation of the law. The integrity of the judicial process needed to be protected by the DoJ&CD. He disclosed that the Community Law Centre at the University of the Western Cape, in conjunction with the Centre for Human Rights at the University of Pretoria, had invited the Committee to a symposium on land claims on 19 April 2017. He called for deliberations on the Traditional Courts Bill to be concluded as soon as possible.
Strategic Plan 2017/20 and Annual Performance Plan: Briefing
Mr Modise presented the DoJ&CD’s Strategic Plan for 2017/20 and the Annual Performance Plan (see attachments). He noted four thematic areas in the transformation plan:
A) Transformation in the legal profession;
B) Transformation in the state legal services;
C) Transformation in the criminal justice and restoration of public confidence;
D) Transformation in institutional oversight bodies.
He said that the DoJ&CD was experiencing the following challenges – an Inability to fill all posts because of limits placed on the state wage bill, an inadequate infrastructure budget to address all service points, and inadequate security spending to secure persons and property. To combat these challenges, the Department was embracing technology and undertaking realignment and optimisation of its organisation structure, to maximise its human resources. 72% of its budget went to the compensation/salary of employees. This situation needed to be addressed to free up money for programme implementation.
Mr Modise described the challenges of ring-fencing and capping of remuneration budgets. These challenges included engagement with unions, housing subsidy increases, and medical aid subsidy increases.
As part of efforts towards a transformed legal profession, the National Forum had completed and published a Code of Conduct to apply to all legal practitioners when the Legal Practice Council assumed office in 2018. Several timelines governed the transformation plan. Furthermore, efforts were under way to increase access to courts by historically marginalised communities. This was in furtherance of Chapter 12 of the National Development Plan (NDP) to build safer communities. The Department aimed at 70% satisfaction in access to justice services by 2019/2020.
Mr Modise said programmes to improve state litigation services included the introduction of specialised units (Alternative Dispute Resolution), training state attorneys, and promotion of trial advocacy.
Measures to restore public confidence in justice delivery included reducing the postponement of cases, converting 47 back-log courts into permanent courts, and monitoring the implementation of the criminal justice system.
Measures to ensure efficient and effective victim and witness support system were: adapting courtrooms in line with the sexual offences model; finalising child justice preliminary inquiries within 90 days; and implementing a victim-centric system.
Measures to ensure integrated family law services were: assisting children whose families were undergoing disputes; capacitating offices responsible for family law services; and improving the number of children who needed services.
Measures to ensure an efficient and effective civil justice system were: building a capable state in line with Chapter 13 of the NDP; increasing the number of courts providing court-annexed mediation; and improving efficiency of the civil justice system.
Ms Lebo Mphahlele-Ntsasa, Head of Strategy, Monitoring and Evaluation, DoJ&CD, explained the Department’s sustained agenda, which was based on several objectives. These were:
- Increased compliance with prescriptions to achieve and sustain an unqualified audit;
- Increased efficiency in the provision of services to the Master’s offices;
- Provision of quality legal advisory services that passed constitutional muster;
- Increased compliance with international obligations;
- Development of legislative instruments that were consistent with the Constitution;
- Promotion of broad-based knowledge and support for values of equality, human dignity, and corresponding responsibilities; and
- A functional integrated (electronic) criminal justice system to monitor performance.
Ms Louraine Rossouw, Chief Financial Officer (CFO), explained the financial situation of the DoJ&CD. She said that budget cuts had affected infrastructure and personnel. Court services got the major part of the budget. She affirmed that there had been increase in employee compensation, notably in respect of housing subsidies and medical aid.
The Chairperson advised staff members of the DoJ&CD to embrace technology and share offices in order to save costs. He said that too many offices were being established, even when they were unnecessary. He pointed out that the Foundation for Human Rights had been established by Nelson Mandela partly to support civil society and legal aid. Should the composition of the Foundation not be revisited to make it more representative and accountable?
Mr L Mpumlwana (ANC) expressed concern over the changing nature of municipal boundaries. He complained that the English language was superior to other languages in the courts, noting that language was crucial to transformation and the administration of justice.
The Chairperson suggested that Members should bring a Private Member’s Bill on the issues of boundaries and languages, rather than complaining without action.
Responding, the Acting Minister agreed that language was important for access to justice, and this would be examined by the Department.
The Chairperson suggested that departments of African languages should be created in universities.
Mr Jeffery said that the issue was not really the use of indigenous languages in the courts, but rather the language of record. This was because indigenous languages were used in the courts whenever requested by parties. Legislative changes would be needed before English could be changed as the language of record.
On the issue of municipal boundaries, he explained that municipalities were meant to be service delivery points. Justice administration personnel, such as social workers and psychologists, were guided by these boundaries.
Mr Mpumlwana reiterated his request for the Department to look beyond municipal boundaries.
The Chairperson asked the DoJ&CD to prepare a report on its pilot project in the North West, and to come up with recommendations.
Adv Jacob Skosana, Deputy DG, clarified that municipal boundaries were used as a guide and the DoJ&CD was not bound by them. The aim of these boundaries was to ensure that there was at least one court in each municipality.
Mr Horn asked the DoJ&CD to clarify the status of the Maintenance Act and the Prevention and Combating of Trafficking in Persons Act, 2013.
Mr Jeffery replied that several departments were involved in the implementation of aspects of the Trafficking Act. He promised to resolve the issues involved in the Act’s implementation.
Mr Bongo observed that many postponements of cases occurred on Mondays. He suggested that improved case scheduling could reduce this situation. He called for an examination into numerous petty offences in the courts and figures of inmates on remand. These offences, remands, and postponements contributed to the slow administration of justice.
A member of the delegation explained that many cases were postponed through the electronic remand and detain system, and not necessarily in the courts.
Mr Jeffery expressed concern over the high number of petty offences such as drunk driving in the courts. He said that minimum sentences contributed to overcrowding in prisons.
The Acting Minister said that the 200% overcrowding in prisons lay at the heart of the slow administration of justice. She promised that the DoJ&CD’s strategic report would address overcrowding.
The Chairperson suggested that law schools should implement compulsory community service for law students, to help reduce the number of petty offences in the courts. Parliament should implement this, as well as indigenous languages as part of the LLB curricula.
Mr Horn asked how the Department determined which posts were critical vacancies. He also queried over-expenditure, the cancellation of some programmes, and the challenge of budget maintenance. He sought clarity over efforts to combat ageing ICT services in the context of the integrated justice system, and the internal consequence management to deal with corruption in the Department. He observed that progress was still slow on capital projects. How did this slow progress affect over-expenditure? Given the value of Sexual Offences Courts, why was the Department downsizing these courts? He also sought clarity of the methodology being used to combat case backlogs, and on the compensation funds of the Truth and Reconciliation Commission. He requested an overhaul of insolvency practices in line with transformation initiatives, and an overhaul of the Contingency Fees Act.
The Chairperson advised Mr Jefferey to submit written reports in response to questions he could not answer at the meeting.
A member of the delegation explained that resource constraints influenced how the DoJ&CD determined which vacancies constituted critical posts.
Ms Ayesha Johaar, Acting Chief State Law Advisor, said that service points were priority areas for the DoJ&CD when determining critical post vacancies. She explained the four implementation phases for filling these vacancies.
Mr Skosana said that specialists were being assembled to handle infrastructure issues.
Mr Vusi Madonsela, Director General, DoJ&CD, said that various elements of the TRC fund had been met through collaboration with the Department of Higher Education and the Department of Human Settlements. These included individual payments, scholarships and housing. A report was ready for Parliament on this. The Department had removed non-transformational matters from its annual performance plans and moved them to its operational plans. These matters were available on request from the Committee.
Mr Jeffery explained the measures being implemented in the Sexual Offences Courts. These included private access and protected testimony. He disclosed that many backlog courts were staffed with acting magistrates. These magistrates had varying case completion rates and no one could dictate how they ran their courts. Mechanisms for dealing with insolvency claims were being addressed.
The meeting was adjourned.