Department of Justice APP; Criminal Procedure Amendment Bill: briefing; Legal Aid Regulations, with Minister and Deputy Minister

Meeting report

The Chairperson acknowledged the presence of Mr Michael Masutha, Minister: Department of Justice and Correctional services (DCS), Mr John Jeffery, Deputy Minister: Department of Justice and Constitutional Development (DoJ&CD), and Mr Vusi Madonsela, Director General (DG): DoJ&CD, to the meeting. He invited the Minister to give a political overview to the Committee.

Minister’s Political Overview:

The Minister said that he had delivered the Budget Votes for Justice and Correctional Services, and for the Office of the Chief Justice, on 17 and 18 May, where he had outlined the programmes for the 2017/18 financial year. He highlighted the achievements of the entities under the oversight of the Department.

The Department’s presentation would showcase the progress made so far on the medium term strategic framework (MTSF) and the challenges confronted during the period. The strategic plan would indicate what remained to be done in the remaining term of the administration and the Annual Performance Plan (APP) also indicated what the Department was committed to do towards the overall objectives in the next 12 months, beginning from April 2017.

The strategic plan had been developed in the light of the global unfavourable economic conditions. The areas of concern were the complete overhaul of the criminal justice system, the Integrated Justice system (IJS) and its alignment to the democratic order, the slow pace of the modernisation of core processes through the Integrated Justice System (IJS), and the lack of adequate coordination throughout the Criminal Justice System (CJS) and the Justice, Crime Prevention and Security (JCPS) cluster.

In March 2017, the Department had presented to the Cabinet the plan for the re-engineering of the CJS, to be headed by the DG’s Forum of the JCPS cluster, and this had been approved on 29 March. The Integrated Criminal Justice System (ICJS) presented an opportunity to review the 1996 National Crime Prevention Strategy (NCPS) and the Cabinet’s 2008 seven-point plan informed by the National Development Plan (NDP) and emerging challenges that the CJS continued to be faced with.

The project seeks to ensure that it prioritises on the people, by elevating the victims and the role of society through the involvement of business, the religious sector and civil society. The strategy would be in place by 2018. The Committee had expressed concerns over the increase in the backlog of cases from 29 480 in 2014/15, to 47 324 in 2015/16, and the effect it had on overcrowding at correctional facilities. The Department of Correctional Services had an action plan to address the situation in the remand and detention centres.

The Department was working together with the JCPS cluster to continuously monitor the status of the backlogs in the CJS. Various measures had been put in place to assist in improving the efficiency of the courts and a reduction in the case backlog. Additional capacity had been provided at the lower court level through the establishment of 47 backlog courts, based on contract appointments, of which 17 would be converted into permanent courts over this MTEF period. Currently, all outstanding cases were also being monitored in conjunction with the DCS, the National Prosecuting Authority (NPA) and Legal Aid South Africa (LASA), with progress reports being given to all stakeholders for monitoring and prioritisation.

The latest annual statistics from the NPA and the DCS indicate improved performance, with more cases being finalized, and the overcrowding in remand and detention centers being reduced. The ICJS approach would help improve synergy and coordination of all the activities. Efforts were being made to ensure a resilient anti-corruption system through the Anti-Corruption Task Team (ACTT), which was constituted with about 14 institutions and departments such as the DoJ&CD, the NPA and the Special Investigating Unit (SIU). It also served as a technical structure for the Anti-Corruption Inter-Ministerial Committee (ACIMC) that was established by the President in June 2014.

The ICJS’s objective was the strengthening of cooperation and integration of law enforcement agencies towards the realisation of the strategic objective of the NDP. Its implementation would contribute to the creation of safer communities and a resilient anti-corruption criminal justice system, which would result in the realization of Outcome Three -- that all people in South Africa were, and felt, safe.

As mandated by the NDP, which had been implemented into the MTSF 2014/19 under Outcome Three, the JCPS cluster had prioritised a review of government’s anti-corruption policy framework. To this end, the ACIMC had directed the ACTT to develop the national anti-corruption strategy and implementation plan for South Africa, and this had been launched by the ACIMC on 14 May 2017 as part of the first phase of the process. The second phase would culminate with the consolidation of all inputs received from all sectors of society.

The DoJ&CD had established a national inter-departmental National Action Plan (NAP) steering committee to ensure that the process of developing a draft NAP to combat racism, xenophobia and related intolerances, was consultative and inclusive. Consultations had been conducted with local government, civil society and other stakeholders in the development of the NAP. The implementation of NAP was projected to begin in 2018/19, with certain elements of the NAP being implanted through the Hate Crimes and Hate Speech Bill that was published for public comment last year.

The constitution provided for the detention of people who had been arrested for alleged offences and released only if the interests of justice permitted. In the application of this law, courts were obliged to determine whether the interests of justice permitted release, since communities complained that many criminals were too easily released on bail and thereby undermined confidence in the CJS. There was a need to maintain a balance between keeping people in detention and the challenge of overcrowding.

The current accommodation capacity in correctional centres and the current numbers require that alternatives to remand detention and custodial sentences should be explored. Various initiatives were being considered, including legislative and policy initiatives to re-engineer the process of the CJS value chain so as to reduce overcrowding. This included an overhaul of the Criminal Procedure Act as well as the alignment of the policies and legislative amendments with the constitution’s obligations. Legislative amendments were being considered for an automatic review of bail terms after a period of six months.

However, offenders who were eligible for bail were negligible compared to the increasing numbers of those who were ineligible due to the nature of the crimes they had committed, and the bulk of the persons incarcerated. It was recommended that people who could not afford bail be reduced in the correctional facilities so as to reduce overcrowding.

There was also a need to strengthen judicial accountability, especially in view of the delays in finalising complaints against judicial officers. An evaluation of the effectiveness and efficiency of the current legislative framework was necessary in order to assess the necessary interventions. This process would include the alignment of complaints-handling mechanism of the Magistrates’ Commission to that of the Judicial Services Commission. It would also address some of the challenges experienced insofar as magistrates were concerned.

The 2017/18 APP would be implemented with financial challenges and a budget shortfall of R45 million. Over the MTF period, LASA would have a budget shortfall of R201 million, which would impact staffing and recruitment levels. Service delivery was being monitored so as to improve alignment between supply and demand. There would be a reduction in services which would be tracked and reported. It had been agreed that there was a need to distribute the Department’s human capacity across the value chain to ensure there was adequate capacity in areas relating to the core mandate.

 

DoJ&CD Annual Performance Plan

Director General Vusi Madonsela said the Department’s strategic plan was divided into two parts. The first area focused on the transformational agenda of the Department, identifying areas of focus for the transformation of the legal profession and the mechanisms for access to justice for all, the state’s legal services and the criminal justice system, to restore public confidence and also to restore oversight of institutional arrangements. The second part of the strategic plan, the sustained agenda, was derived from various pieces of legislation that the Department administered in its normal course of operation.

Ms Lebo Mphahlele-Ntsasa, Chief Director: Strategy, Monitoring & Evaluation, DoJ&CD, said the presentation entailed the Department’s constitutional and legislative mandate. In the previous year, the Department had revised its mission, vision and values so as to align them with the mandate. This had been aimed at the deployment of people, resources and technologies to deliver good governance, people-centered services that were reliable and efficient through the CJS, cost-effective state legal services and the promotion of constitutional human rights and commitment to international legal relations.

The Department’s annual strategic plan and APP had also been tailored to provide transformation of the legal profession and mechanisms of access to justice, the transformation of the state legal service, the transformation of the CJS and restoring public confidence and promote entity oversight and institutional arrangements.

There had been progress in the administrative objectives described in the APP, which were now being implemented through the departmental operational plan. The Department faced challenges such as prolonged vacancies in key posts due to budget constraints, and inadequate infrastructure budgets due to underfunding.

Because of the above challenges, the Department had realigned its structure and objectives for optimal performance and maximization of the available resources. It would continue to find technological solutions so as to save on costs, and would also engage the justice college to provide the necessary training to personnel. It would also be optimising its infrastructure planning so as to provide a support structure for other departmental activities.

The Department’s financial performance was still growing in single digits -- for 2017/18 there was a projected growth rate of 5%, with compensation of employees taking up the majority of the budget, since the Department was labour intensive, as a service industry.

Following discussions with the Bargaining Council, the housing subsidies had increased, impacting on the Department’s funding challenges. The Occupation Specific Dispensations (OSDs) were also not part of the senior management service (SMS) level, and so increases had been negotiated outside the SMS and the unexpected increases added pressure on the remuneration budget. There was also a shortfall in the infrastructure budget, which as a result meant a postponement of planned projects.

The transformation agenda would begin with the transformation of the legal profession. The Department had already formed a national forum in preparation of the new legal practice council to be established by February 2018.

Objective Five was related to access to the courts, which would align the ministerial aspects with the municipal boundaries by building courts, and aligning high courts with the provincial branches. There had been notable progress in the construction of the buildings in Limpopo and Mpumalanga. The Department also ran a client service where it engages the people in order to assess whether it had improved access to justice.

Regarding transformation of state legal services, the formation of the Solicitor General post would make the incumbent the head of the legal firm of choice for the state, and thereby also make the state attorneys the firm of choice. There needed to be policies in place to address the rising cost of legal services and increase the capacity within the state attorney ranks. The Department should try to increase the number of settled cases and appear in court itself without using outside counsel in order to reduce the costs.

Transformation of the Criminal Justice System was linked to the NDP’s objective of building safer communities. The Department’s APP monitors the case postponements to ensure that there are as few cases as possible being postponed due to administrative delays. It would be converting the case backlog courts into permanent courts, and would ensure that the CJS, after approval by the Cabinet, was implemented.

The Department had a new objective relating to victim support. This involved a shift in approach in concentrating on the crime, and would seek to see that victims were supported through a victim support strategy, among other programmes. For example, about 58 sexual offences court rooms had been completed in the first phase of the programme. All childrens’ cases would also be fast tracked within the stipulated service standards.

The family law services’ objective would ensure that all its activities were in compliance with the legislation, and many of the outstanding cases would be finalised within the preset standards. The Department’s objective was to enhance the civil justice system through the provision of mediation services in order to remove most of the cases from the court rolls and reduce costs for the state attorneys, among others. Taxation of finalised civil matters would also be improved to provide better efficiency in service delivery.

The number of civil cases disposed through mediation would be increased to 70% in 2018/19 through an increase in the number of courts that provide for court-annexed mediation. The transformation of the legal justice system would also evaluate new ways in which the CJS could be made more relevant to the society. This would be achieved through the finalisation of the lower courts policy and making the administration model in line with the constitution by ensuing full administrative rights.

Regarding the entity oversight and institutional arrangements, there had been progress reported in the coordination of the entities and departments that report to the Minister. However, the Department would establish a unit to have an oversight function over these entities.

Adv Jacob Skosana, DDG: Court Services, DoJ&CD, said that on 29 March 2017, the Cabinet had approved a framework which would address new emerging issues. It would form a new CJS value chain informed by the constitution and legislation, and would look at business re-engineering as part of the broader licensing programme, since most of the systems being used in the courts were still based on the old systems and needed reforms to make them more relevant.

The role of the judiciary within the ongoing legal reform would address issues relating to sentencing by courts in order to enhance uniformity on all matters appearing before the courts, and strengthen the response to emerging challenges.

There would be training on the IJS programme to ensure optimal use of the technology involved and the efficient and effective implementation of the system. The Cabinet had approved a seven-point plan to enhance the participation of the provinces and local government in the CJS, and decentralize the administrative structure from the national level. This would ensure that the people got to state their views on issues relating to the CJS, and how those issues were responded to.

The reform of the CJS, as an essential element to the economic development of the country, would be evaluated to establish how it contributed to economic growth. There was a need for the creation of a unique identifier for persons in the IJS system. This would ensure the integration of all databases and eliminate duplication of roles or confusion by ensuring that the persons who got arrested were the same persons who were arraigned in court and were thereafter detained in correctional centers. It would also have a case management system, in the JCPS cluster system, which would enhance the integrity of statistics relating to the number of cases in the courts, and relay this information to various stakeholders.

The Department was mindful of the increase in the number of backlog cases and was monitoring their finalisation by the courts through capacity building and increasing the number of backlog courts to 47. In the 2016/17 financial year, the courts had so far finalised 16 472 cases. There had also been National Executive Committees (NECs) established, from which the provincial efficiency enhancement committees dealt with issues that emanated from the courts.

There was a need to see how the anti-corruption system contributed to the NDP imperatives. The ACTT had appeared before Standing Committee on Public Accounts (SCOPA) and discussed these contributions, and concerns had been expressed that the courts appeared too lenient on corruption cases, despite the gains made so far.

Regarding bail and overcrowding, there was an ongoing review of the various structures, to address the various challenges identified. It had been observed that the over a period of 50 years, the centres’ population had increased by 114%. Through various interventions and initiatives, accommodation issues had been reduced significantly. Such interventions included all the accused being brought back to court every six months to reevaluate the situation of people who had been convicted for minor offences and could not pay bail, provisions related to ensuring that the seven-day bail period was not abused, legal aid for the accused so as to assist them in making bail applications or bail appeals, depending on the merits, or a review of the bail amounts, among others.

Mr Madonsela said that further information on the Minister’s presentation regarding to the National Development Plan would be forwarded to the Committee.

Ms Danaline Franzman, Acting DDG and Chief Director: Social Justice and Participatory Democracy, DOJ&CD, said that the Department’s response to combating racism, racial discrimination, xenophobia and other related intolerance, was part of the social cohesion plan in line with Chapter 15 of the NDP, which was coordinated by the Department of Arts and Culture as the lead department. The draft framework for combating racism had been approved by Cabinet in December 2015, followed by intensive public consultation. There would be an implementation plan developed in order to include the government, civil society and the media, among other stakeholders.

The Department was actively supporting the anti-xenophobia initiatives, with six campaigns conducted in the past financial year. This had been achieved through a partnership with the Foundation for Human Rights as the implementing agency, under the social economic programme, and the justice for all programme funded by the European Union (EU). These programmes had entailed social media campaigns and community radio programmes, where 65 radio stations had been engaged and about 1.4 million listeners reached. This had been aimed towards changing the behaviour and attitude of the people towards immigrants.

Despite progress having been made, the DoJ had experienced challenges due to lack of funding and lack of integration among the departments. The Department would prioritise on conducting constitutional awareness and rights campaigns, however, developing relevant legislative instruments and policy interventions to foster constitutional values and tolerance on racial diversity, non-racialism and sexism, to develop and implement the National Action Plan and create awareness of it.

Discussion

Mr J Mthethwa (ANC, Kwazulu-Natal) congratulated the Department on the work it was doing, especially on aligning the magisterial districts with the municipality boundaries. He enquired on how the introduction of the mediation process would decrease the backlog of cases in courts, since dissatisfied litigants may still approach the courts in the event mediation failed.

Ms G Manopole (ANC, Limpopo) noted that the system would be linked to the South African Police Service (SAPS) and enquired whether the cases with interim protection orders or with warrants of arrest would be linked to the system. Would the protection orders be captured in the system, since people tended to lose their documentation?

Mr M Monakedi (ANC, Limpopo) enquired whether the Department’s objective of promoting constitutionalism, human rights and a commitment to international and regional relations was part of the its APP, and whether it had a budget. He expressed concern regarding the budget cuts and noted that this may affect the stability of the CJS. The Department should engage with the National Treasury to ensure an enhancement of confidence in the system. There had been cases of insecurity, with the office of the chief justice being broken into, and he enquired about the measures the Department was taking, despite its financial constraints, to enhance security. He welcomed its plan to trying and integrate the administrative capacities of the CJS with the provinces, and asked how exactly the provinces could participate so as to enhance the system.

Mr M Mhlanga (ANC, Mpumalanga) commented that the construction of the high court in Mpumalanga had been finished and the court was about to be opened. He requested that, as delegates from the provinces, the Members should be invited to host the opening of the court, as it played a vital role in their mandate.

The Chairperson enquired about the progress made in the Department in relation to gender, as an objective for the transformation of the legal profession. To what extent had the case backlog been improved? What timeframes were in place to ensure that the backlog was eliminated, and what amount of human resource capacity was being allocated to the project? How would the Department describe the functioning of the sexual offences courts, and had it done any evaluation on the challenges victims may be experiencing in the courts?

With regard to the integrated planning system, he asked about the challenges the Department was experiencing in working together to ensure the effectiveness of the model. On the national plan to combat racism and xenophobia and related intolerance, he enquired whether there was a specialised budget allocated for this, and whether there were other role players to contribute to its effectiveness.

Deputy Minister Jeffery said that the alignment of boundaries for the North-West, Gauteng, Limpopo, and Mpumalanga provinces had been completed, and next would be KZN, Free State, the Western Cape and then Northern Cape. He commented that the alignment may not be 100% in municipalities where residents did not have good access to the courts, and the community would be allowed to go where they had better access.

Adv Skosana said that the investigations, recommendations and publishing of the new ministerial districts with regard to the alignment of boundaries, had been done in the Free State and Northern Cape,. The Minister would consult with the JSC and get ministerial approval before the boundaries were implemented. Stakeholders were also expected to submit reports on their readiness for the alignment of their services to the new system. There were initiatives to build new courts in every municipality in order to enhance access to justice for the people.

Mediation happened mainly outside the legislative framework, since there were no legislative rules to govern it. The nature of some cases in the CJS, such as rape and murder, could not be subjected to mediation. However, some parties opted to have an informal and amicable settlement of disputes outside courts.

The Deputy Minister noted that parties who opted for mediation reserved their right to go to court in the event that the mediation failed.

Mr Madonsela, referring to the backlog of cases, said there had been a slow change since the rate of cases being finalised was lower than those which were entering the system, hence the rationale for institutionalising backlog courts into the system.

The Deputy Minister said that new magistrates had been appointed, with others being short-listed for interviews to fill the vacancies. The sexual offences courts would have specialised facilities to allow victims not to be in the same room as the accused. There was also an inter-departmental committee that was overseeing the implementation of the Sexual Offences Act.

Mr Mhlanga enquired whether there had been any noticeable progress in the Department’s engagement with the unions

Mr Madonsela said that the issues relating to the budget cuts had been taken up with the Department of Public Works and the National Treasury, and had also been raised in the Director Generals’ Forum and was being addressed at a central level.

Draft Regulations: Legal Aid South Africa Act, 2014

Ms Loraine Rossouw, Chief Financial Officer (CFO), DoJ&CD, said that the Legal Aid South Africa Act had come into operation on 1 March 2015 to repeal the previous outdated Act. The procedures for legal aid were currently set out in the Legal Aid Guide issued by LASA under the previously repealed Act. As a transitional arrangement, the new Act provides that the Legal Aid Guide and Manual would remain in effect until it was withdrawn or replaced by regulations in terms of the new Act.

Under the new Act, the Guide and the Manual had to be published within 24 days after the commencement of the Act. However, this timeline had never been met due to the procedural technicalities it had required in the preparation and regulation of the Act. A legal opinion had been sought, and the office of the chief state law advisor had stated that the Guide fell away after February 2017. However, Parliament should be approached and requested to finalise the matter as soon as circumstances permitted.

The new Act obligated the Minister to make regulations which Parliament would approve before Gazettement. The Legal Aid Board was mandated to compile a legal aid manual relating to procedures and systems, methods, requirements and criteria for the accreditation of private legal practitioners who rendered a service to LASA, among others.

Before the draft regulations are approved by LASA, they are sent to stakeholders for commenting and public participation. However not many comments are received since the regulations, as read with the manual, do not change the current position as provided for in terms of the Legal Aid Guide issued in 2014.

The regulations were intended to provide policy guidance in relation to the provision of legal aid. The regulations have 39 provisions. Key highlights of the regulations are the provision for matters which qualify for legal aid, self-incrimination by witnesses, legal aid in extradition matters, and criteria for granting legal aid in civil matters, among others. It also provides that legal aid would not be granted where there was no substantial benefit to be acquired.

Discussion

The Chairperson said that Regulation 8 relating to the provision of legal aid for land matters, provided that the government should provide funding. He enquired whether this had been discussed with the departments, and whether necessary measures had been put in place to ensure proper implementation.

Mr Monakedi enquired why there was a need for the regulations, as the Legal Aid Manual had been in operation for a while now.

The Deputy Minister noted that the Department of Rural Development and Land Reform (DRDLR) ran their own programme on legal assistance. However, they had come to prefer the outsourcing of legal assistance through tendering.

Mr Madonsela said that the Department had had a meeting with the Land Claims Commission and had expressed interest in working with LASA and providing the necessary legal aid funding.

Mr Patrick Hundermark, Chief Legal Executive (CFO), Legal Aid South Africa (LASA) noted that there was a current contract in place for the Land right management facility which deals with 5 different aspects including legal representation. The planning process was still on going and the current contract with the private firm would be coming to an end on 30th June.

The chairperson requested whether the members would like to adopt the Report now or during the next meeting.

Mr M Monakedi (NCOP, Limpopo) proposed that the adoption be postponed to the next meeting

Deputy minister requested that the committee adopts the report in the meeting as they were limited to only accepting or rejecting it.

Mr P Hundesmark, Chief Legal Executive, (LASA) said there was a need to define the status of the regulation and establish whether it bound the courts or not. Its approval and gazettement would make it a secondary legislation, and would make it binding.

The report was adopted without amendments.

Consideration Committee Minutes

The minutes of the Committee’s meetings on 15 March, 23 March, 10 May and 24 May were adopted without amendment.

The meeting was adjourned.