The Department of Justice and Correctional Services presentation on its Annual Report noted it had undertaken a comprehensive list of policy updates and several Bills were making their way through Parliament. The Criminal Matters Amendment Act had been put into operation from 1 June 2016 and targeted copper and other metal thieves and syndicates, and would also reach rhino poachers.
The Information Regulator had been appointed. 34 new Small Claims Courts had been established but the Committee raised a concern about the location of the sheriffs’ offices and the accessibility of those offices by people who brought claims to the Small Claims Courts. 11 dedicated Sexual Offences Court Rooms had been established by the Department in accordance with the Sexual Offences Courts Model and provinces were rolling out additional Sexual Offences Court Rooms. Implementation of the MojaPay System, designed, inter alia, to facilitate maintenance payments, had successfully been implemented in the Northern Cape, North West and the Free State. The Master’s Own Verification System Information System (MOVIT) had been implemented to facilitate justice processes and the Paperless Estates Administration System (PEAS) had been successfully rolled out and was being used in the 15 Master’s Offices as well as at 206 service points. Progress had been made in implementing the Truth and Reconciliation Commission recommendations in that the remains of 18 freedom fighters had been handed over to their families.
The Integrated Justice Strategy (IJS) transversal hub, in which millions of Rand had been invested, was achieving successes in integrating electronic systems. 595 481 court cases had been processed on the IJS case management system that worked seamlessly across the South African Police Service, the National Prosecuting Authority and the Department of Justice in the period under review. The newly developed J7 Warrant of Detention could move directly from DoJ&CD to Correctional Services electronically. One of the greatest innovations was in the Department of Social Development which had implemented a mobile case management application that could be used by social workers across the country in respect of children who were in conflict with the law. The provincial competency of Social Development would have meant heavy infrastructure development but the mobile link had made it both affordable and accessible.
The Department had received a qualified audit opinion based on non-disclosure of capital work in progress on infrastructure, and performance information where the validity and accuracy of the National Register of Sexual Offences database was problematic. The Department was also carrying claims against the State of R1.6 billion - half of which had been incurred by the South African Police Service and the Department of Health.
Members raised questions about progress in the transformation of the State Legal Services, particularly in the light of the fact that the position of the Solicitor-General had not been filled, pending re-structuring. Huge backlogs in court cases remained a problem. The value for money of the Integrated Justice Strategy IT system was queried.
Members raised the Mutual Legal Assistance Treaty with the United Kingdom and the treaties with the United Arab Emirates which had been presented before the Departmental Developmental Committee in January and in March 2017 but had not been finalised. However, in March 2017, a Double Taxation Treaty had been entered into with the United Arab Emirates. There was considered opinion, even by government officials, that it was a bizarre tax treaty that would benefit the high-income residents of Dubai, which brought the Guptas to mind. Why was that treaty entered into so quickly when the extradition treaty was not yet finalised. The entire matter raised a lot of questions.
Some Members expressed disappointment with the Department which had to step up and justify its existence. The Restitution of Land Rights Amendment Act which had been designed to fast track land claims was undergoing amendment following the Constitutional Court judgement, but the Department had noted that there were weaknesses and challenges in respect of the Land Claims Court. The question of multilingualism in courts was about transformation of the legal system and one indigenous language should be prioritised to the status of the language of record in court and the business in government. A request was made that the National Register of Sexual Offenders be presented to the Committee. Questions were asked about several bills that were delayed.
Department of Justice and Constitutional Development (DoJ&CD) 2016/17 Annual Report
Ms Lorraine Rossouw, DoJ&CD CFO, offered apologies for the Director General, Mr Vusi Madonsela, who was unwell. She informed the Committee that she was leading the Departmental team.
Ms Lebo Mphahlele-Ntsasa, DoJ&CD Chief Director of Strategy, Monitoring and Evaluation, made a presentation on the DoJ&CD Annual Report. The Department had undertaken a comprehensive list of policy updates and several Bills were making their way through Parliament. The Criminal Matters Amendment Act, 2015, had been put into operation with effect from 1 June 2016. The Act targeted copper and other metal thieves and syndicates, and would also reach rhino poachers.
Key areas of achievement included the appointment of the Information Regulator as well as several Commissioners. Divisions of High Courts were aligned with provincial boundaries in North West and Gauteng, and magisterial districts were aligned to municipal boundaries in the Northern Cape and the Free State. 34 new Small Claims Courts had been established. To date, 405 Small Claims Courts had been proclaimed. 11 dedicated Sexual Offences Court Rooms were established in accordance with the Sexual Offences Courts Model. Implementation of the MojaPay System implementation had begun in Northern Cape, North West and the Free State. The Master’s Own Verification System Information System (MOVIT) had been implemented in the 15 Master’s Offices as well as 183 Magistrates Courts. The Paperless Estates Administration System (PEAS) had been successfully rolled out and was being used in the 15 Master’s Offices as well as in 206 service points.
Progress had been made in implementing the Truth and Reconciliation Commission recommendations in that the remains of 18 freedom fighters had been handed over to their families. 1 104 beneficiaries had received assistance to attend either Basic Education or Higher Education and R30 000 was paid to each of 17 398 TRC identified victims.
The old Audio-Visual Remand System equipment had been replaced with new technically advanced systems in 39 sites. Case integration between SAPS, NPA and DoJ&CD was enhanced by the Integrated Justice Strategy (IJS) transversal hub. 595 481 cases had been processed using the system. System utilisation challenges had been addressed with the recording of first court appearances improving from 55% of the courts to 90% of courts. The highest number of cases recorded in a day was on 8 March 2017 when 3 510 cases were recorded. An advanced Court Recording and Transcription (CRT) solution had been successfully implemented across the nine regions.
The Department had received a qualified audit opinion on the Vote Account based on non-disclosure of capital work in progress on infrastructure, and Performance Information where the validity and accuracy of the National Register of Sexual Offences database was problematic. Remedial action had been planned and was being undertaken in both cases. Except for Third Party Funds, all other funds sustained clean audits over five years. Third Party Funds received a qualified report for 2016/17 because of prior year corresponding figures.
The Department of Justice achieved 89 of the 105 planned targets in the Annual Performance Plan of 2016/17. The performance translated to 85% of targets being achieved.
Under Programme 1: Administration, all targets were completed except for the percentage of forensic investigations finalised where 90% was achieved instead of the planned 93%. 241 the alleged cases of fraud and corruption were recorded and of these 216 were finalised. The target could not be met due to complex matters that needed to be outsourced. In Programme 2: Court Services, all targets were met. In Programme 3: State Legal Services, nine of the 41 targets were not met. Of particular significance, was the fact that four ratifications of conventions and protocols were not ratified. The bilateral agreements with the United Kingdom for Mutual Legal Assistance and treaties with the United Arab Emirates were not concluded. Only 113 out of 169 valid requests for extradition and mutual legal assistance in criminal matters met the target and were processed within 25 days.
Ms Lorraine Rossouw, DoJ&CD CFO, presented the financial report. The Guardians Fund had received an unqualified audit opinion. The Fund had total assets of R12.1 billion and payments to beneficiaries amounted to R1.414 billion. The President’s Fund received a clean audit. Payments were made from the fund for individual reparations, exhumation and reburial, Higher Education and Basic Education. The Third Party Funds (TPF) Portfolio was unqualified and ring-fenced amounts had been reduced from R46.6 million to R16.3 million. The audit outcome for the Department was a qualification as information had not been available from the Department of Public Works. The CFO noted that the disclosure requirements for departments would be amended in the current year. There was an Emphasis of Matter due to significant uncertainties on the contingent liability of R7.1 billion claims against the Department for which no provision had been created. Other matters included contingent liabilities and commitments relating to supply chain management (SCM) contracts and the filling of critical vacant posts. Problems with the Centralised Supplier Database (CSD) and the upgrade of IT infrastructure created challenges with the 30-day payment requirement for invoices. Procurement and contract management was a challenge because of non-submission of declarations by bidders. There was a bank overdraft and claims against the State of R1.4 billion (half of which required contribution by SAPS and the Department of Health). There was some disagreement with the Auditor General about consequence management. The deployment of four mobile units was considered fruitless and wasteful expenditure. Irregular expenditure was a result of R29 million being added to the register for investigation, although the Department believed that R15 million of the amount was not irregular. An audit action plan was in place. Challenges included budget cuts leading to the operational budget being moved to Compensation, ICT and IJS justice-related projects and infrastructure. Vacancies not filled since September 2016 had impacted on oversight control.
Mr W Horn (DA) appreciated the comprehensive explanation of the qualified audit opinion. He hoped that the Auditor General would focus on infrastructure delays which led to time and money overruns. He asked if that would contribute to improved management of capital projects. While he understood that it was difficult to determine if bidders were employed by the State, contracts awarded to bidders in the employment of the State was irregular as 81 of the bidders had not submitted a declaration. That was different from the Department not being able to identify which suppliers worked for the State. Such a failure was fraud.
He said the 30-day payment issue was a worry for the Committee. Previously the Committee had been informed that the Department had introduced a tracking system. Why had that tracking system not prevented the increased non-compliance? On the Integrated Justice Strategy (IJS), what tangible progress had been attained in comparison to the vast amount of taxpayers’ money spent? Could the Department provide some milestones for the IJS and explain how it was going to be managed in the future? The Auditor General would focus on that in years to come. The Committee did not want the IJS to lead to audit challenges in the future.
Huge court backlogs remained a problem. Backlog cases had increased at the time when a new formula had been used. Had the same formula been used in 2016/17 and, if so, was there a real decline? The Committee required more than a snapshot to obtain an understanding of the functioning of the system. There was no differentiation in the Annual Report between the backlogs at the different levels of the court system. Specific indicators were required such as median of days and cases longest on the roll, for the Committee to determine the degree of failure of the criminal justice system.
In terms of the judiciary-led Court Administration model, there was an inter-Ministerial Committee headed by the Deputy President. The only information that the Committee had was that there was a meeting between the Deputy President and the Chief Justice. Could the Committee get an indication of the way forward? It had been an ongoing issue. The optimal functioning of both the Department and the Courts had to be sorted out. There was no further movement on reports on the assessment of the decisions on the Constitutional Court, the Supreme Court and the Court of Appeal.
Mr Horn referred to the DoJ&CD legislative programme and noted that the Maintenance Amendment Act had its second birthday in September but there was still no sign of the enabling Regulations. When could the regulations be expected, if ever? In respect of the Sexual Offences Court, when would the second phase be implemented? Had the targets been reached for the National Sexual Offenders Register? Was the unit functioning? A report from the African Committee for Experts on the Rights of the Child had questioned whether the unit to deal with the Sexual Offenders Register was functioning. Had the re-evaluation of critical posts affected that unit? What was the staffing complement of the unit and how many unfilled positions were there? The scourge of sexual violence and violence against children had to be combated. On the flipside, if the Register did not function, those who could legally apply to have their names removed from the Register, would not be able to do so.
Adv G Breytenbach (DA) wanted to know more about the Renaissance Project. The terms of reference and management project framework should have been completed by the end of September. How far was it? What progress had been made on the Technical Task Team to be chaired by the Director General? How would that team interact with the Inter-Ministerial Committee? On the transformation of the State Legal Services, the position of the Solicitor-General had not been filled pending re-structuring which was to have been completed by the end of 2016/17. What progress had there been? In the First Quarter Report of 2017/18, the DG had informed the Committee that a project manager had been appointed to oversee the process. In July 2017, the Minister had appointed the CEO of Legal Aid South Africa to assist with the transformation of the State Legal Services. What progress had been made?
Mr S Swart (ACDP) commended the Department on the improvement in meeting performance targets, although the qualified audit was problematic. He focused on the reasons for the Solicitor General not being appointed. He understood that there was a proposed Amendment to the State Attorney’s Act. When would that come into being because that Act had been passed some years previously to facilitate the State Solicitor’s Office? Was the R1.06 billion legal costs from all state departments and, if so, had that been recovered? It was a significant amount. He noted that there was a reduction in damages terms and was pleased to see that because people tended to inflate claims and settle for far less. How many cases had been lost and what was the cost of that? Was there sufficient funding for the appointment of staff in the Information Regulator’s Office? At the end of the previous financial year, the Department was in overdraft. Was the Department in overdraft in 2016/17? If so, what was the amount?
Mr Swart raised the matter of foreign international treaties. The Mutual Legal Assistance Treaty with the United Kingdom and the treaties with the United Arab Emirates (UAE) had been presented before the Departmental Developmental Committee in January and in March. The extradition treaty was to have been finalised in the second round of negotiations. However, in March a Double Taxation Treaty had been entered into with the UAE. Some people had commented that it was a bizarre tax treaty that would benefit the high-income residents of Dubai. And immediately the Guptas came to mind. Why was that treaty entered into so quickly when the extradition treaty was not yet finalised? It raised a lot of questions. The issue was also being considered in the Standing Committee on Finance. Even government officials were saying that the tax treaty went against all international tax standards. If one had a three-year residency permit in Dubai, then one was exempted from all taxation in South Africa. Several members of the Gupta family and Duduzane Zuma had obtained those three-year residency permits. That treaty had been entered into which would benefit them and yet South Africa had no extradition treaty with UAE. There seemed to be a delay in the extradition treaty. He wanted a comment on that and he wanted that matter to receive urgent attention. He would be speaking to the Minister about it.
Mr N Matiase (EFF) expressed his disappointment with DOJ&CD. He felt that there was no point in engagement with Department as it was simply an endless academic process which yielded no concrete results for the concerns Members raised with the Department. The Department came to the Committee simply for the sake of appearance. The Department had to step up and justify its existence. There was no need for such a department if it did not perform. The Department had regressed in audit performance and compliance to supply chain management. Was it because of a declining culture of adherence to compliance and legislation and regulations or was it declining good governance? He would not blame the Department if it was a result of both as there was, generally, a complete lack of adherence to good governance. It was disappointing that a department mandated to oversee justice and constitutional development and adherence to the rule of law was doing so badly.
Mr Matiase said the Restitution of Land Rights Amendment Act which had been designed to fast track land claims was undergoing amendment following the Constitutional Court judgement, but the Department had noted that there were weaknesses and challenges in respect of the Land Claims Court. The two challenges were that judges would no longer be required to have specialised knowledge about adjudicating land claims and, secondly, that judges would have to divide and share their little time between adjudicating and deciding over land claims matters, and court work. There would be no judges assigned exclusively to the Land Claims Court. Were there plans in place to deal with the lack of capacity in the Land Claims Court? It was about restoration of both land and dignity of those who had been dispossessed of land and denied the right to dignity and heritage.
Mr Matiase said the whole question of multilingualism in the court system was about the transformation objective of the legal system. Perhaps the Department did not know which language to prioritise. One indigenous language should be prioritised to the status of the language of record in court and the business in government should be isiZulu and a pilot project should extend for ten years. The Department had to dedicate resources for that project. It had to start from somewhere and move elsewhere. If Swahili could be a language of court proceedings and business, so should South Africa’s languages. Government had failed to make such policy statements so he was making a policy statement. The Department’s mandate was clear and it no longer needed to be confused about which language to prioritise.
Mr Matiase said the Sexual Offences Court had to be addressed. The National Register of Sexual Offenders should be presented to the Committee at the next meeting. Sexual offenders should be named and shamed. He appreciated the survey to be undertaken on the usefulness of the Sexual Offences Court and requested a database of cases that had been processed, separated according to the different target groups identified in the policy framework.
Ms M Mothapo (ANC) commended the Department for obtaining clean audits in the Funds and suggested that the Mojapay be taken over to other provinces as it was appearing to be effective. She was concerned about under expenditure related to magistrates’ vacancy rates and other related issues, such as the non-filling of positions. The regression by the Department in the audit report was a concern. The timelines for consequence management was serious. Non-compliance in the payment of creditors within 30 days was problematic and had to be addressed. She noted, in response to the transformation of the legal system discussion, that in the Western Cape High Court, Afrikaans was used throughout the day and everyone understood what was going on. Why were local African languages not used in the courts? In Limpopo, why was Tshivenda not used in the Thohoyandou High Court? The Department had to make justice accessible to the communities. She noted that Minister Mbalula had made Sport and Recreation so sexy. The Department had to make courts sexy. It would be sexy to use local languages in court and people would want to go to court. She requested a comment on the transformation of the Legal Services. How far were the plans for a national conference on multilingualism? How far were the TRC draft regulations for medical and housing? How far was the policy development for the transformation of the legal system?
Ms Mothapo remarked that there was a high rate of unemployment. If magistrates were appointed, vacancies for prosecutors would become available and thus create employment. Internships and learnerships provided opportunities for youth but they were not sustainable, so why could they not have something sustainable for all the unemployed law graduates who were loitering? She asked about the Prevention and Combating of Trafficking in Persons Act which had not fully commenced. The Lower Courts Bill and the Bill on the Regulation of Paralegals were long overdue. The Muslim Marriages Bill had been to court but it was time for the Department to address it. In 1998, the Recognition of Customary Marriages Act came into being but the Department seemed to be dragging its feet, although she knew that the Department would hide behind the litigation process. In general, she could see that the Department was improving.
The Chairperson complemented Ms Ntsase who was doing a very good job. Judicial governance and Court administration processes were moving very slowly. When were they handing it over to the Office of the Chief Justice (OCJ)? The process needed to be fast -tracked. A good job had been done with commencement of the Criminal Procedure Amendment Act as there had long been a problem with copper theft. SAPS was still complaining about needed legislation so are other departments aware that the legislation had enacted? Did the Department send out circulars to make other departments aware of legislation that had been passed? SAPS had to be informed of the change in legislation. The increase in Small Claims Courts was appreciated but what about Sheriff’s offices? The location of many of the Sheriff’s offices was not appropriate and accessible to the public. They were often located far from the centre of town or the courts. She requested a report in writing on where Sheriff’s offices were located.
The Chairperson said that cases in the Maintenance Courts were being completed faster but there was still a problem with defaulters in child maintenance. Men should be apprehended at the country’s borders if they owed maintenance. Some complainants were given so little money for maintenance that it was equivalent to the bus fare to get to court. She requested a report in writing on the amount of money given to complainants to raise their children.
The Chairperson said the Department had to assist in coming up with a better strategy to avoid the mass of litigation. The Department of Health had an Ombudsman and it was hoping that it would reduce litigation. Would the Department be in a position to look at the matter globally and present a report as to the best way of dealing with the matter?
She agreed with Mr Swart that there was a problem with the taxation treaty with UAE and wanted the Committee to be informed of such treaties. There were a lot of bi-laterals, but were they monitored? A bi-lateral had an objective but were they monitored to ensure maximum benefit from the bi-laterals? She wanted bi-laterals monitored.
She asked how the Committee could engage with some of the institutions and Boards which fell under the Department? The Committee had been working on the Legal Practice Amendment Bill and the Committee had not even heard of the Legal Practice Forum which should have presented to the Committee to pave the way for the new Bill. If the Department did not monitor them, the Committee had no information about those entities. What did the Board of Sheriffs do? The Committee only got to engage with the Magistrates Commission when they presented recommendations. The Committee was never given reports on the Judicial Service Commission (JSC). All of those entities were in one Vote and to monitor the Vote, the Committee had to monitor all entities. The Chairperson requested a report in writing on all the entities in DoJ&CD. The Chairperson asked if the Department was referring to the old NEP or was it a new one? At what intervals did the Department do its vetting? The lack of checks on declarations of interests by bidders suggested that the Department was not doing regular vetting.
In terms of violence against women and children, she asked if the sentences sent the right message and whether sentences were a deterrent against crime. It was important that the Committee looked at court outcomes. There had to a be a system that allowed the Committee to evaluate court outcomes annually so that the country could determine whether the outcomes were dealing effectively with crime and the courts were helping the country to steer its vision. How did other countries do it successfully? The anchor points for any international treaty should be the Department of Justice. Only two were successfully reported on. That was nothing compared to the number of treaties signed by the country and to which the country had obligations. She did not know if they were the United Nations treaties but the most important treaties were those with the African Union as they dealt with the context in which the country operated. The Chairperson also asked for further information about the contingent liabilities.
Mr Horn asked about the Regulations for the Prevention and Combating of Trafficking in Persons Act.
The CFO thanked the Committee for its input and guidance. The Auditor General’s processes looking into infrastructure would not add any value to the Department as the main problem was that infrastructure was centralised in the Department of Public Works. How the Department of Justice was managing infrastructure was related to its own processes and not to the matter the Auditor General identified. DoJ&CD was bringing in its own monitoring system to try to address the infrastructure challenges. The Auditor General’s Disclosure Note would have no influence whatsoever. On contracts awarded to state employees, the quotations were for small amounts and sometimes they went under the radar until the data analytics system of the Auditor General picked them up. DoJ&CD was considering fraud charges.
The CFO explained in greater detail about the tracking system. Suppliers had had to register on the new database. It was a new process but the old system remained. When the Department had tried to effect payments, the payments would not go through as the new and the old systems did not speak to one another. The Department had eventually to bring in a new payment process. The Department had had to prove to National Treasury that there was a systemic problem before it was permitted to use another system of payment. The payments were then made via sundry payments but there had been a delay. The Department had had the same problem when National Treasury had upgraded its system.
Legal fees amounted to R1.04 billion by the end of the financial year. The overdraft was R895 million because of the underspending on the salaries of magistrates. At 31 August, claims against the State stood at R1,1 billion so the levels remained the same. Recovery was at the same level. SAPS paid regularly but had owed R277 million at the end of the financial year. As one payment was made, so new legal expenses accumulated. The Department of Health in the Eastern Cape had legal expenses of R197 million and in Gauteng legal fees were R184 million. The Department of Health in the Eastern Cape usually paid at the beginning of the financial year but then ran out of money. DoJ&CD had engaged with National Treasury about the matter. There had been minister-to-minister discussions and a Cabinet Memo was intended to address the problem. She noted that the Land Claims Court was technically the responsibility of the Department of Land Affairs and the Chief Justice. The questions needed to be directed to them.
The budget for the Information Regulator was sufficient until the entity had developed its own plan and submitted a budget as it would operate independently of the Department. DOJ&CD had allocated three people to assist them and it had funds to appoint its own staff.
Mr Horn asked if the idea going forward was that the Regulator was going to report directly to National Treasury or via the Department.
The CFO replied that the Regulator would be treated as an independent entity of the Department but would engage directly with National Treasury on its budget.
Integrated Justice Strategy Board response
Mr Godfrey Leseba, IJS Board chairperson, replied to the question about tangible results from investment in the IJS program. He said 595 481 cases had been processed on the IJS case management system in 2016/17. By 30 September 2017, the number had grown to 836 231 which meant that they were really seeing the results of the system. When they started integrating the case management system across SAPS, National Prosecuting Authority and the Department of Justice, they had expanded the footprint from a zero base to 99 police stations and about 20 courts. However, now there were 1 144 police sites linked to 470 courts, serving the NPA and the Department of Justice in the Lower Courts.
For the integration to happen, each department had to enhance its own systems to ensure integration. Work also had to be done on the Transversal Hub so that the communication messages could move from one point to another. Two departments were behind with integration – the Department of Social Development and the Department of Correctional Services. IJS had established the prerequisites for both departments. Correctional Services would be connecting the Integrated Inmate Management System which had been deployed to a correctional facility in Pretoria as the first site. The newly developed J7 Warrant of Detention integration, could move directly from DoJ&CD to Correctional Services electronically. Information flowed directly and electronically from the courts to Correctional Services. As the projects progressed, that would be expanded.
One of the greatest innovations was put in place in the Department of Social Development. That was a mobile case management application that could be used by social workers across the country in respect of children who were in conflict with the law. The provincial competency of Social Development would have meant heavy infrastructure development but the mobile link had made it both affordable and accessible. North West and Limpopo were already onboard and Eastern Cape was beginning to use the application. The application was proof of concept and the application could be run on a tablet which each provincial department had to provide and which was inexpensive. However, there were still many challenges. Five key priorities were person management; case management; business intelligence to measure performance; SAPS integration of its own services; and the enhancement by Home Affairs of its fingerprint system. In the field of business intelligence, IJS was doing very well and was past the halfway mark. 18 key performance indicators (KPIs) had been included in the system. Case management systems were good. Person management integration was more complex and was lagging. The system had created a unique person identifier but there needed to be investment by SAPS so that all cases could be linked. The system would empower the prosecutors to better oppose bail applications. IJS had to enhance the Home Affairs fingerprints system so that SAPS could identify people by their fingerprints. Thus two critical pieces of the puzzle to address were: SAPS integration of its own services, and the enhancement by Home Affairs of its fingerprint system which would also include fingerprints of foreigners and other non-nationals.
Ms Mothapo asked what the 18 KPIs were and asked about the OCJ integration.
The Acting Chairperson suggested that the IT system could assist by identifying a caller’s exact location when reporting a crime. She was worried that Home affairs did not have a comprehensive fingerprint system.
Mr Leseba responded that the 28 KPIs approved by Cabinet would be made available in writing. The system measured activities so that targets could be reported on. For example, when someone called 1011, the time until assistance arrived at the scene was measured. Those numbers were aggregated at different levels. All of the KPIs needed adjustment. Different systems were being used to join the dots. The Office of the Chief Justice was a grey area. OCJ was a member of the IJS Board but the Board would determine when and how the process would unfold. He appreciated the suggestion on the use of GPS when someone reported a crime but pointed out that IJS was also developing apps for reporting crime. The Court Scheduler was another mobile app on which IJS was currently working. It would be accessible to everyone from prosecutors to witnesses so that they could be kept updated on the progress of a court case and about future dates for a court case.
Ms Mphahlele-Ntsasa explained that the case backlog had been ongoing for some time but the number was coming down. There had been changes to the process of capturing data and the date of the first appearance in court now remained the first date, regardless of whether the case was moved to another court or not. Ensuring that had caused the figures of backlog cases to rise. Secondly, the integration of IJS had taken place and the capturing of details was no longer done by the Department of Justice but by SAPS so some cases had not been updated on the system. The re-demarcation process which, in some cases, changed the alignment of courts and police stations had also led to the lack of capturing of details. Those issues had been addressed and the number of backlog cases should continue to go down. Case finalisation was no longer reported by DoJ&CD as case finalisation was done by OCJ. Case outcomes would be reported by the National Prosecuting Authority.
Court Services response
Mr Tsietsi Malema, Acting DDG: Court Services, indicated that DOJ&CD would work with OCJ and NPA to present statistics on the disposal rates of the courts to the Committee to give a sense of the performance of the courts at the various levels. The data was available. It was just a case of packaging the data so that it could be presented. On sexual offences courts, 17 sites would be modified. The targets were managed at national level but the regions had to add on other sites in line with the nationally managed sites. The report therefore only focused on the national targets but, in fact, far more courts were being adapted for handling sexual offences.
The functional structure to support the Registrar of the National Register on Sexual Offenders was in place. Contractors had been appointed to assist with the capturing of the data. Data capture had not yet been finalised. Data verification was done at court level. At regional level, a quality assurance check took place. That was collaboration between national and regional systems. Checks had to be completed to ensure that only the appropriate persons were included on the register. The Department was in the process of cleaning up. The clearance certificates had not been issued because of lack of staff and needing to work with SAPS. By the end of the current financial year, clearance certificates should be issued.
Multilingualism was a contested matter. The Chief Justice had pronounced on how he would like to see the matter working. The Minister was looking into it and the Department was aware that multilingualism was a key driver of transformation and they were aware of constitutional rights. DoJ&CD had a policy on multilingualism. They had look at statistics to determine which languages should be used in each of the provinces. The Department was awaiting guidance from the Minister. They might consider using the dominant language in each area. The Indigenous Languages Project pilot had been conducted in the North West, where everyone was using Tswana but problems had arisen. Some people in DoJ&CD were comfortable in the language but DoJ&CD was not comfortable in using an indigenous language as a legal language in court as court officials and legal persons, as well as the accused and witnesses all had to be comfortable with the language.
The Victims Survey would be conducted together with Statistics SA as that department was more proficient at surveys and had the necessary capacity. The Minister wanted to bring the victims of crime to the centre of the system so that DOJ&CD was not seen to focus only on the criminals. They had started with victims of sexual offences but would like to go beyond those crimes. When a person went to court, that person should not be subjected to secondary victimisation.
The matter of the Magistrates Commission would be taken up with the Secretary of the Magistrates Commission and the Department would develop KPIs for magistrates. The recording, analysis and collation thereof would provide valuable information for the Committee. The recruitment of magistrates had been centralised. That had provided consistencies, but also delays. On policy matters, he would provide a response in writing as he would need details from the Director General and the Deputy President about the teams that had been set up. He would provide details of the Forum, and the outcome of the assessment of courts, what value was obtained, about the Legal Practice Act, and so on.
The Small Claims Courts process was almost completed in all districts. The sheriffs were mostly located near the courts so that they could not charge litigants for excessive distances. They had been instructed to set up an office in each district. If a sheriff worked for two courts, the sheriff had to have an office in both districts and could only charge for services according to the distance from the Magistrates Court in district. The issue was, in fact, the costs of using the sheriffs. The Deputy Minister was looking at the costs of the Sheriffs to assist claimants in the small claims courts as often the money that they obtain simply went to pay the sheriff’s costs. The Minister was considering giving powers to court officials or to the police to serve those processes in order to ease the burden on people going to small claims courts. The training of clerks was ongoing.
On maintenance defaulters, DOJ&CD was working on a strategy as well as interim relief while the case was ongoing. When making an application, the applicant could make a request for interim funding to feed the children and so on. That would force the respondents to go to court as the amount of maintenance might be increased to include the interim payment. The Members of the Portfolio Committee could assist in dispensing information about the amendments. As far as the quantum was concerned, it was based on the means test according to the amount earned by the respondent but it seemed that magistrates were not hearing the women’s complaints and were often siding with the respondents. Consideration was being given to moving the proceedings to court so that such matters should be heard in public.
The DoJ&CD had a close working relationship with the Board of Sheriffs. Its reports were presented to the Department and the Department would be happy to present the report. Alternatively, the Committee could invite them to attend meetings with DoJ&CD when it reported to the Committee. Sheriffs had modern systems and did not break down doors. A lot of women had been appointed as sheriffs.
The Chairperson suggested that the Department provided a list indicating the location of sheriff’s offices. As the Committee continued to get complaints about sheriff offices located in industrial areas, the Committee needed information about the location of offices before it could reassure complainants. The DoJ&CD had to avoid setting up systems that became too difficult to maintain and therefore became futile. The Committee was pleased to see that a Maintenance Defaulters System was being set up as no one had seemed to be interested for a long time, not even in the border control aspect. The Chairperson suggested the Canadian model be investigated as no one could leave that country if he or she owed maintenance costs.
Mr Horn noted that a number of questions had not yet been answered and the Committee was running out of time. Mr Swart asked if the Committee would be sitting beyond 13:00 as he really needed a response to his question about the international treaties.
Ms Mothapo asked what had happened to the integration of the Child Protection Register and the Sexual Offences Register which had been intended to avoid duplication of costs.
Adv L Mpumlwana (ANC) was worried about the rate of transformation in the Department. The law had been used to oppress people in the past and therefore had a stigma and had to be remedied. The use of indigenous languages facilitated justice. The emphasis seemed to be on recording and not on justice. Policemen were writing in a language that was not their home language and therefore often not well recorded, whereas, if it was written in a home language, the case would be well explained and the court would understand exactly what had occurred. Justice was not for magistrates and prosecutors. In the Western Cape, it worked well because everyone understood Afrikaans. But it did not work like that for the African languages. In the past, one had to pass Latin before one could pass legal exams and he did not understand why the same should not be applicable to African languages. Africans should not become second class citizens in their own country.
Mr Malema, Acting DDG: Court Services, said that the comments and guidance of the Committee had been noted and would be taken into consideration as DoJ&CD progressed with its work. He would give written feedback about the integration of the two registers as he needed to get an update from the relevant Chief Director. A committee had been set up between Social Development and SAPS and the Register had been discussed, but he needed the latest information. The inclusion of African languages in the LLB degree would be considered in order to make languages accessible.
Ms Susan Masapu, Acting Chief State Legal Advisor, replied that the international agreements were not like the normal agreements but between the government of South Africa and another country or international organisation. In the agreements would be an article dealing with the relevant authority which would be a Department responsible for such matters. With mutual legal assistance and extradition, the processes were managed by the Department of Justice. All international agreements were stored in the Department of International Relations and Co-operation (DIRCO). Regardless of which Department was involved in facilitating the agreement, DIRCO was the repository of all international agreements. Section 231 of the Constitution enabled agreements with other countries. Sections 231(1) enabled multi-lateral agreements, Bi-lateral agreement and agreements with serious financial implications were classified under Section 231(2) or Section 231(3). Section 231(2) agreements required approval of the National Council of Provinces and the National Assembly to deposit an instrument of ratification so that everyone knew that South Africa had entered into an agreement. Section 231(3) agreements were not of major political significance and had no financial implications and did not affect the law. They had to be tabled before Parliament within a reasonable period of time so that the treaty was known to have been signed. On the question of the agreement with UAE and what was delaying the extradition treatment, she handed over to the DDG.
Ms Kalay Pillay, DDG: Legislative Development, explained that the Department was responsible for mutual assistance treaties. The treaty with Egypt, referred to in the APP targets, had been signed and was operational. The treaty with UAE was awaiting acceptance of the exclusion of torture, cruelty and inhumane treatment clauses. Reference was made to the Botswana case where the person could not be extradited without an agreement from Botswana that he would not be subject to the death penalty.
Mr Swart asked how long the Department had to wait to finalise the extradition treaty. His concern was that the tax agreement had been entered into with the UAE. That was a very irregular agreement. Even government experts had said that it was a strange agreement that benefitted only residents of UAE and those who were leaving South Africa to benefit from that tax treaty. However, if people left SA to evade the courts in relation to State Capture, there was no extradition treaty for anyone to be returned. The document had been discussed in January and March and there had been no further movement. The delay in signing the treaty could be seen to benefit people who would be leaving the country to evade prosecution. Furthermore, SARS would not be able to claim tax from people who left the country. That was his concern. He had enough information to take his investigation further as normally both treaties would have been handled together and it was strange that they had not been handled together. He would raise the question when the NPA appeared before the Committee.
The Chairperson asked the Department to follow processes and to send treaties to Parliament for approval so that it did not come out in the way it had done as mentioned by Mr Swart, which suggested that processes had been deliberately delayed and which the Committee was not aware of.
Ms Masapu stated that the Constitution and the decisions of the Constitutional Court constituted the Department’s Bible and there was always difficulty in getting agreement to extradition treaties with countries that had the death penalty as South Africa had to get agreement that, if a South African were extradited, he or she would not be subject to the death penalty, or, if the death sentence were imposed, it would not be executed.
The Chairperson was worried about the whole issue with International Relations because the treaties that were human rights treaties, were about justice. It’s became problematic when the Department of Justice distanced itself from the human rights issues. That matter would have to be followed up in the future.
Mr Romeo Adams, DDG: Corporate Services, replied about learnerships and internships. In the first quarter of 2017/18, the Department had had 1 322 learnerships, some of which lasted longer than one year. The Department had determined which posts were critical. Where posts could only be advertised internally, those in internships or learnerships had been given the opportunity to apply for the posts. The posts had been advertised in the Department of Justice only so that those persons did not have to compete with applicants from other departments or from the general public. The posts had been advertised in August and appointment letters would be signed by the end of the week.
Mr Adams replied that capacity for the Information Regulator had been facilitated when the Information Regulator had identified four individuals in the Department for secondment, including a Chief Director who was to act as CEO for the Information Regulator. Legal capacity had been provided, as well two administrative staff members.
Mr Adams replied on the question of employees doing business with the State, saying that vetting was done at various levels and included declarations of directorships, sponsorships etc. The integrity manager had to see whether a person who applied to work outside the Department had previously done, or was currently doing, business with the state. He noted that a screening process was part of the bid system and was valid only for that bid. The screening process also took cognisance of the directors of the supplier.
Written answers were required in two weeks.
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