Department of Justice and Constitutional Development on Quarter 1 performance

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Justice and Correctional Services

22 August 2017
Chairperson: Ms M Mothapo (ANC) [Acting]
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Meeting Summary

A delegation from the Department of Justice and Constitutional Development (DOJCD) reported on its first quarter performance. The report showed that it achieved 43 of the 60 indicators that constitute its targets for the first quarter, giving it an overall success of 72%. Its primary challenge is budget cuts, which hamper operational effectiveness by limiting its ability to fill vacancies.

Members expressed concern about the effect of budget cuts on the DOJCD’s operational effectiveness. They complained about lack of transformation in the justice system, notably the inequitable distribution of briefs to previously disadvantaged counsel and the slow pace of review of English as the language of record. They asked the delegation to explain the role of the DOJCD in the immunity granted to Mrs Grace Mugabe over the assault of a young woman. A member sought clarity on the status of a study on the socioeconomic impact of decisions of the Supreme Court of Appeal and the Constitutional Court, while another queried the effectiveness of justice delivery, given the perceptions of women’s safety and high rate of crimes. The Committee distanced itself from a member’s attempt to justify Ms Mugabe’s assault as a culturally acceptable disciplinary measure.

Mr Vusi Madonsela, Director General of the DOJCD, responded that the DOJCD was not a party to the legal advice leading to the granting of Ms Mugabe’s diplomatic immunity. He explained salary disparity between prosecutors and magistrates, underspending on some programmes, and the DOJCD’s measures on transformation, filling of critical vacancies, and reduction of litigation costs.

Meeting report

DOJCD First Quarter Performance Report
Mr Vusi Madonsela, Director General of the DOJCD introduced his delegation: Lebogang Mphahlele-Nsasa, Chief Director: Strategy, Monitoring and Evaluation; Loraine Rossouw, Chief Financial Officer; Mohube Phahlane, Acting Chief Litigation Officer; Kalay Pillay, Deputy Director General: Legislative Development; Pieter du Rand, Chief Director: Court Services; Romeo Adams, Deputy Director General: Corporate Services. He called on Ms Mphahlele-Nsasa to present.

Ms Mphahlele-Nsasa reported that the DOJCD achieved 43 of the 60 indicators that constitute its target for the first quarter, giving it an overall success of 72%. The notable aspects of the report programmes are:

Programme 1: Administration
R381 million was expended on this programme against a budget of R2.129 billion. There was underspending on accommodation charges due to a disputed invoice, which is expected to be paid in August.

Programme 2: Court services
Expenditure for court services is R1.124 billion against a budget of R6.277 billion. A total of 238 cases from an outstanding roll of 131 701 cases were postponed due to unavailability of court administration staff. Needs assessments were conducted with regions that have backlog courts. Two sexual offences court rooms were established at Madadeni Regional Court. 1356 child justice preliminary inquiries cases were recorded and finalised within 90% of their first-time appearance. 10 803 maintenance cases were finalised within 90 days of service of court process. 3 446 of 27 395 non-litigation matters related to family law were finalised. Progress is being made in court building projects in Port Shepstone and Mpumalanga. Research is progressing, notably on the Russian and Brazilian models of court administration

Programme 3: State Legal Services
A total of 34 783 letters of administration in deceased persons’ estates were issued, of which 33 438 appointments were issued within 15 days of receiving all required documents. 11 002 beneficiaries of Guardian’s Fund were serviced, of which 10 776 received services within 40 days of lodging all required documents. 1 995 certificates of appointments in bankruptcy matters were issued.

The DOJCD briefed counsel to the value of R208 315 907.52, of which the sum of R166 079 771.90 was paid to previously disadvantaged counsel. 1 594 briefs and 593 were allocated to female counsel, translating to 37% performance.

• 81 litigation cases were presented at the high court and 79 were finalised in favour of the state.
• 146 legal opinions were finalised, 138 of them within 40 days of receipt of the instruction. 23 preliminary opinions were finalised, 23 of them within 40 days.
• 49 suggested Bills, Regulations and Proclamations were finalised, 48 within 40 days. 51 international agreements and accompanying legal opinions were finalised, 51 within 30 days. 7 draft Bills were approved by Cabinet within 40 days. 36 translations were finalised, 31 within 55 days from the date of instruction.
• 16 requests for extradition and mutual legal assistance in criminal matters were finalised, 12 within 25 days.
• 9 legislative instruments were submitted to the Minister for approval.
• 8 research papers were submitted to the South African Law Reform Commission for approval.
• 5 court rules were completed and submitted to the Rules Board.
• 12 socioeconomic impact assessment reports and exemption applications were submitted to the DPME for certification.

Programme 4: Auxiliary and Associated Services
The expenditure for the sub-programme of justice modernisation within auxiliary and associated services is R139 million against a budget of R900 million.

Ms Loraine Rossouw, Chief Financial Officer, identified the DOJCD’s primary challenge as budget cuts. She disclosed that the DOJCD’s budget was slashed, which affected the compensation of employees. Owing to budget cuts, only 37% of vacancies have been filled.

Ms M Mothapo (ANC), Acting Chairperson, expressed concern about the effect of budget cuts on the effectiveness of court services.

Mr M Maila (ANC) welcomed the report and commended the DOJCD. Nevertheless, he asked about the nature of disputes that led to underspending in court services, especially the Magistrate’s Commission. He noted a complaint from previously disadvantaged legal practitioners regarding the skewed nature of briefing, a situation that reflects racial and gender inequality. He asked the DOJCD to explain its actions in remedying unequal briefing.

Mr Maila further noted that Ms Grace Mugabe was recently granted immunity from prosecution, thereby raising perceptions of bias in the administration of justice. Perceptions of bias impact negatively on access to justice. He asked the DOJCD if it was part of the process leading to granting her immunity, and what awareness it has raised on access to justice for the masses.

Mr S Swart (ACDP) expressed concern about the budget cuts. He sought clarification on the operational effectiveness of the High Courts in Limpopo and Mpumalanga, the appointment of a permanent Solicitor General, the litigating appearance of state attorneys in the High Courts, and the immunity granted to Ms Grace Mugabe. How does the DOJCD reduce litigation costs? For example, should litigation arise over the immunity granted to Ms Mugabe, would State Law Advisers be required to brief the Minister despite strained resources and poor prospect of defending the granting of immunity?

Mr Swart expressed disappointment that the delegation did not report on the performance of the National Prosecuting Authority (NPA).

Mr W Horn (DA) commended the DOJCD for exceeding the majority of its targets. However, he noted the Committee’s difficulty of assessing courts’ performance due to the removal of some performance indicators. Who suggests Bills, Regulations, and Proclamations? What informs the manner courts are adapted in line with the sexual offences model? Given that over R10 million was spent on a study of the socioeconomic transformation impact of decisions from the two highest courts in South Africa, what is the status of the report on the study? What does it mean to move monies from the operational budget to the compensation budget and what impact would this movement have on service delivery?

Prof C Msimang (IFP) commended the DOJCD. He reiterated the Members’ concern about the high cost of litigation, noting that some municipalities have been forced to withdraw cases of corruption against officials because of high cost of litigation. This is counter-productive to justice delivery. Why is the percentage of family law backlog cases 13% against a target of 55%? Could this low figure be caused by unfilled vacancies? Also, is justice delivery, specifically administrative support to the courts, effective in view of insecurity in society, especially perceptions of women’s safety and high rates of carjacking?

Mr L Mpumlwana (ANC) noted the poor alignment of courts with municipal boundaries, especially the old native reserves. He insisted that justice should be taken to people, not the other way around. For example, some Master’s Offices lack accommodation and personnel. Again, many prisons are overcrowded. Can the DOJCD not explore minimum sentencing options to reduce overcrowding?

Mr Mpumlwana observed that there is a lack of transformation in the South African justice system. He accused South Africa’s justice system of resembling the English legal system and of still being colonised. He lamented that indigenous African values are not evident in the courts. For example, traditional African justice system thrives on communalism and mediation, unlike the individualism model favoured by the English justice system. Given these observations, how is the DOJCD dealing with transformation?

Mr Mpumlwana further noted that Ms Mugabe’s alleged assault may be explained as a disciplinary measure under African customary law. If an African parent returned at 2am and caught his child in bed with a girl, s/he would discipline the child in line with African culture.

Mr Swart raised objection over Mr Mpumlwana’s justification of assault against women on grounds of culture.

The Chairperson urged Mr Mpumlwana to conclude his comments.

Mr Mpumlwana reiterated his opinion that parents may discipline their children if they catch them engaging in inappropriate behaviour. Africans are being forced to embrace European values and disregard African values. This situation is a transformation issue which needs to be remedied.

Mr Mpumlwana asked why English is still the language of record in the courts despite the problems it causes to people’s access to justice. He also asked the DOJCD why magistrates are paid less than prosecutors.

Mr N Matiase (EFF) asked the DOJCD why it did not report on the activities of the NPA. He noted that there are several problems in the NPA. For example, while prosecuting a case in court, a prosecutor once received instructions from the Director of the NPA regarding the continuance of the case.

Mr Matiase asked in the context of the Mugabe saga, does the DOJCD exercise oversight on the legal advice received by the executive? Is there a statute that forbids public officials from abusing taxpayers’ money? Why are vast sums spent on litigating trivial matters, for example the outsourcing of record management? Finally, how much of the 85% allocated to the NPA is spent on compensation of employees?

The Acting Chairperson, Ms Mothapo, remarked that no culture allows the ‘beating of women’ or the placement of women in inferior positions. There are traditional ways of handling disciplinary issues like the Mugabe situation. She affirmed that gender issues are taken seriously by the government. For example, the Deputy Minister of Higher Education was recently forced to resign over an alleged assault. Regarding Ms Mugabe’s diplomatic immunity, she advised the DOJCD to respond only in so far as its response does not compromise its relationship with the Department of International Relations.

Ms Mothapo expressed displeasure over the manner briefs are allocated to previously disadvantaged lawyers, especially women. She remarked that the issue of English as the language of record is not being reviewed expeditiously. She asked the DOJCD to clarify the review, as well as progress on the inclusion of indigenous languages in the LLB curriculum. She noted that programme expenditure should be at least 25% per quarter in each programme. Finally, she expressed concern about the security of judicial officials and structural defects in the Limpopo High Court buildings.

Mr Madonsela declined to comment on the appropriateness of Ms Mugabe’s actions vis-à-vis African cultural practices.

Mr Romeo Adams, Deputy Director General: Corporate Services, explained the status of unfilled vacancies in the DOJCD. There were 670 exits from the DOJCD due to reasons such as retirements and resignations. Critical posts are prioritised in the transfers of personnel from one unit to the other. Currently, there are over 800 contract positions in the DOJCD. Since August 2016, posts have not been filled due to ongoing administrative processes. Regarding the 1 700 vacancies, budget cuts prevent the DOJCD from filling them. Presently, only critical posts are prioritised. By 30 September, letters of appointment will be issued to candidates to fill some vacancies.

Mr Adams replied that salary disparities are difficult to breach because the processes and legal regulations for the salaries of magistrates and public prosecutors are different.

Mr Madonsela stated that the Minister of Justice has appointed a project manager to oversee the objective of transformation in the DOJCD. In line with this objective, the Minister has halted the filling of the position of Solicitor General, pending restructuring in the Office of the state legal advisory and litigation services. He said that statistics on counsel briefing patterns reveal satisfactory progress on increased inclusion of previously disadvantaged groups. However, concerns remain over briefs from state-owned enterprises, which are reluctant to commit themselves to the same transformation briefing patterns of the state legal services. Also, local governments must contribute in the transformation of the briefing of disadvantaged lawyers because transformation is a comprehensive process.

Mr Madonsela stated that the DOJCD was not a party to the legal advice leading to Ms Mugabe’s diplomatic immunity. This fact, together with the prospect of litigation on the immunity granting, hinders the DOJCD from commenting on the issue. However, generally, when a victim fails to secure a conviction, s/he may still pursue a civil claim to recover damages which s/he may have suffered.

Mr Madonsela stated that the DOJCD strives to reduce litigation costs and it is guided by prospects of success, legal certainty, and costs. If a department insists on taking a matter to court despite contrary legal advice, the attention of the Auditor-General is drawn to the legal cost of the matter. An intervention is now necessary to regulate how the legal profession charges the state for legal services. The DOJCD has developed a fee parameter. Currently, the legal profession sets its own fees. The fee parameter seeks to counter this autonomy as state law advisors will use it to navigate legal fees.

Mr Madonsela acknowledged that there are structural defects in the High Court buildings in Limpopo. This is the responsibility of the construction companies concerned, for which Court Services has oversight. In Mpumalanga, the High Court building is 95% completed. Water and electricity are operational there. However, the biggest issue is access roads into the court, for which the DOJCD is taking remedial action.

On the socioeconomic impact of South Africa’s two highest courts, the Office of the Chief Justice (OCJ) is mandated to regulate the performance of the apex courts. The OCJ is therefore best suited to respond to queries on the socioeconomic impact of the Supreme Court of Appeal and the Constitutional Court. Mr Madonsela explained that the word ‘court’ is used in two senses: the judicial officer and the court building. There is also a difference between court administration and judicial functions. The magistracy, including judicial functions, is linked to the OCJ. He remarked that in a similar manner, the NPA may not be able to comment on non-litigation aspects of court performance.

Mr Madonsela affirmed that the Office of the State Law Adviser is responsible for Bills, Regulations, and Proclamations. There is a witness protection service, which aims for the safety and welfare of witnesses, especially in corruption cases. The issue of bringing justice to the people is in line with the goals of the DOJCD. For example, there are bus coaches in Mamelodi to bring litigants to court in Pretoria.

He noted that the issue of decolonising the judiciary is a matter for debate at a different forum. However, the Chief Justice has declared that the language of record will remain English language. The DOJCD will continue to provide interpretation services, while managing the difficulties created by language translations. Translation has huge budgetary implications, since not all languages are selected for the provision of interpretation services. For example, in 2016, the sum of R52 million was spent on foreign language interpreters.

Mr Madonsela disclosed that Deputy Minister John Jeffery is intervening on the salary disparity between prosecutors and magistrates. He stated that the DOJCD is only responsible for administrative staff of the NPA, who are appointed in terms of the Public Service Act. Accordingly, the DOJCD is unable to comment on the effectiveness of prosecutors in the NPA.

He confessed that it is difficult for the DOJCD to spend at least 25% in each programme per quarter. Some expenditures rise and fall irregularly. Even though the DOJCD did not plan to spend only 15% on the Magistrate’s Commission, it anticipates this figure will rise in the second quarter. On the poor state of infrastructure in some court buildings, there is an agreement between the Department of Public Works and the DOJCD on maintenance. The DOJCD is merely responsible for maintenance of infrastructure relating to breakages.

Given time constraints, the Acting Chairperson said that if there are any further requests for clarification, these could be made to the Department in writing. She reiterated that the Committee does not condone the beating of women, thanked the delegation, and adjourned the meeting.


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