A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 June 2003
JUSTICE BUDGET: INPUT BY MINISTER AND DIRECTOR GENERAL
Chairperson: Adv J. de Lange
Documents Handed Out:
Executive Summary: Report to Portfolio Committee June 2003
Justice Strategic Framework [email email@example.com for document]
Note on Implementation of Legislation mandated by the Constitution
Report on E-Justice Programme
Legislative Programme of Department
Report on Legislative & Constitutional Development Unit
Constitutional Development Directorate programme
SA Law Reform Commission research programme
TRC: Reparations (See Appendix)
Present from Department of Justice and Constitutional Development:
Penuel Maduna, Minister
Cheryl Gillward, Deputy Minister
Vusi Pikoli, Director-General
Alan Mackenzie, Chief Financial Officer
Mbuyiseli Deliwe, Chief Director (Strategic Planning and Management)
Kalyani Pillay, General Manager Information System Management Unit
Deon Rudman, Deputy Director-General (Legislation)
Simon Jiyane, Deputy Director-General (Court Services)
Llewellyn Loxton, Regional Financial Manager: Western Cape
The Minister provided an extensive overview of the state of the Justice Department. This was followed by input from the Director General. Issues raised by the Committee included:
- release of awaiting trial prisoners unable to pay bail
- progress of Section 49 of the Criminal Procedure Act
- magistrate independence as well as specialisation in the special courts
- minimum sentencing causing magistrate discontent
- the overwhelming number of court appeals
- SA court recess periods being far too long
- poor case management by prosecuting authorities
- transformation issues
- court security
- awaiting trial children
- misappropriation of fund in the Master's Office
- influence of interest groups on SALC Reports
- use of outside agencies to draft Bills and Regulations
- ability of the Child Justice Bill to be implemented
The Minister, Mr P Maduna, went through the Executive Summary document the Department had prepared. He commented that he was pleased with the work of the Department and was proud to report that it had just been drawn to his attention that the United States Department of Justice had cited the South African Department of Justice to be one of the best in the world. The Minster was happy to ascribe this success to the calibre of some personnel in the Department who were able to achieve remarkable results from very limited resources.
He said he had faced resistance, however, from people who argued the Department was dysfunctional. But the long term results of the various changes they had made were now beginning to come to fruition.
There had been a major paradigm shift in Court Services with a drive to decentralise matters to the "coal face". This was to resolve the problems which stemmed from the fact that management decisions were taken from too remote a place. This decentralisation was being supplemented by the growing "professionalisation" of Court Services staff.
Many judges had complained that their productivity would be enhanced if they had a better support system. It was not necessary that they all got their own researcher, but they all expressed a need for some additional help. This made sense as it would increase the speed in the delivery of Judgements.
The Department was implementing joint strategies to tackle case backlogs and a booklet had been produced to assist with this.
Facilitating Access to Justice for all Persons
Much interesting work taking place in this area. The Minister was happy to be involved with the opening of 31 courts specifically dealing with sexual offences. The President had said that these would be further rolled-out. Of the 31, seven were funded by the private sector with Vodacom being particularly supportive - providing both money and equipment.
The Department had also opened Courts where none had previously existed. The Court in Khayelitsha, just opened by the President, was the second largest in the country.
The Family Courts were to be expanded to all major centres. There was also a reduction in the backlog of Child Maintenance cases.
The implementation of the 'Equality Act' was being fast-tracked with the 16 June 2003 being earmarked as the date when the remaining sections of the Act will receive Presidential Assent. The Child Justice Bill should be implemented next year.
Many of the Department's buildings were in a poor state, but there were insufficient funds to rectify them all at once. However, what could be done was being done.
The Chair intervened asking why there had been a figure of R40 million underspent in last year's budget relating to the funds available to renovate Departmental property?
The Minister said this may have related to the then outstanding work in Grahamstown but that all the money had been spent this year. The Minister also said that, whilst he did not want to be seen to criticise other Departments, judges did not build or paint buildings. Therefore, the pace of renovation was delayed by factors out of the Department's control.
There was also an intention to roll-out the specialised Courts dealing with complex commercial cases which was a very exciting development. One of these new courts had a success rate of 94-95% and, as the standard of proof was so great in these courts, this was a fantastic result. The Minister also stressed that gone were the days when the Prosecutor would treat the police officers with disdain. Now they all had to work as a team to prepare and marshal the evidence. This was leading to much improved results and assisted with the roll-out of these courts.
Now the Courts do not simply have computers, they also have personnel trained in how to maximise the benefit of the technology. At present half the courts were linked to Jutastat.
Integrated Justice System
Integrating the delivery of justice was reducing previous tensions within the cluster and the results were impressive.
The Chair mentioned that when the Committee undertook their recent field trips they were very impressed with how the system worked in Port Elizabeth, but that it was a different matter entirely in Johannesburg, Durban and Pretoria.
The Minister said that the large courts had poor productivity for a variety of reasons, but in part it was due to poor interpersonal relations between the Court's staff. He said he was mentioning this in public because people were often voicing criticism of the system when the problems actually stemmed from two or three people pushing personal agendas.
The Chair assured the Minister that the Committee backed any attempt to root out such de-stabilising influences.
The Minister said that many of the personnel problems stemmed from a lack of good leadership in management roles. In many case employees were not given any yardstick against which their productivity was to be measured. If a yardstick did not exist, then it was difficult to hold people accountable. However, with the decentralisation of management, people had a line manager overseeing their work for the first time. This was having wonderful results and communication vacuums were being removed. He stressed that the Department could not afford to retain people who were not performing their job and/or causing problems for others.
He pointed out that the national average of Court sitting time had risen to an impressive five and a half hours per day which had increased from the figure of two and a half to three hours a few years ago. Justice was a service department, so if people were not willing to "serve" then they had to go. The huge increase had been achieved through implementing better management strategies and not through covert intelligence or any other means. Staff were being sacked for lack of productivity and the Minster was dealing harshly with their appeals against dismissal. He felt certain his position would be verified if any of the staff raised unfair dismissal claims against the Department.
The Minister said there is no reason why anyone should shake and cower from a Judge or a prosecutor. Overbearing-ness was being dealt with through training and other means. It was important that all accused had their dignity maintained by the system, despite the nature of the crime they were accused of.
The Minister said there was a great deal of exciting work being carried out in this area but he did not go into any detail.
Re Aga Boswa
The "We are Rebuilding" Project is driving the implementation of the Department's main goals. A pilot project was currently in trial in Durban with positive results already visible.
The Minister explained that the Department was currently undertaking work on the re-alignment of the Magisterial Boundaries.
The Chair asked the Minister to clarify what the boundaries were to be based on.
The Minister said that the re-drawing of local council boundaries had to be taken into account where their change had substantial and it was leading to problems for residents of these areas.
The Chair said that the Committee wanted to stress that the changes must not take account of Magistrate's self-interest, for example, in Mpumalanga only the Magistrates, not the Department, gave feedback on the proposals. This was having the effect of Magistrates carving a more attractive niche for themselves with the poorest Black areas being marginalized. There had been no scientific evidence gathering (number of cases per magistrate), and the proposals seemed to suit only a few strong-willed magistrates.
The Minister assured the Chair that it was a very detailed process which would not go beyond this technical stage without Cabinet and the Portfolio Committee's input due to their wealth of experience. It was part of human nature to attempt to cocoon oneself but that magistrate's self interest would be able to be filtered out by good leadership when the final decisions were made. The Minister particularly stressed that none of the crudities of the Apartheid past would be maintained.
Rationalisation of Courts
The structure of the courts system is now neater and the Minister stressed to the assembled Press that they make sure that they use the appropriate terms when reporting on court issues and personnel. They were also bringing the separate courts (Competition/Labour, etc) into the system.
The Minister highlighted the example of the Land Claims Court which had initially been set up on a five year mandate. There was a proposal that this mandate be extended for a further two years but the Department, after considering all the factors, had decided not to. Instead, the judges were interviewed by the Judicial Services Commission and appointed as judges of the High Court who were able to convene as the Land Claims Court, under the auspices of the High Court, when an appropriate case was due to be heard.
He also went on to talk about the Labour Court and the Labour Appeal Court which he said contained an anomaly as they were both headed by the same person. This meant that, technically, the head of the Labour Appeal Court could hear on appeal an issue which he had decided on in the lower court. The Constitution states that the Supreme Court of Appeal and the Constitutional Court are the highest Courts in the land. Some people argued that the Labour Appeal Court being the highest court for labour matters could be rectified by making a constitutional amendment. The Minister said that this was a bizarre notion as it was tantamount to saying that the Constitution was unconstitutional! The issue was to be resolved by making the Labour Appeal Court a division of the Supreme Court of Appeal headed by the Deputy. The Competition Court is now to be rationalised along similar aims.
The aim is to have a seat of the High Court in each Province, with two Seats in some Provinces. However, at the moment there were still some cases where this was not yet established and people wishing to use the service had a distance to travel.
The Chair clarified that this meant that High Courts were being set up in areas under a transitional Seat. The Minister agreed that this was the case in Nelspruit, for example.
Judges were complaining that in some areas they do not get access to a varied enough case load to develop their skills to the full. The Department was delighted that judges were vocalising their frustration in this way because it showed their ambition and drive. The plan was to extend the civil jurisdiction to Regional Courts and Judge Kriegler had kindly agreed to oversee this work following his retirement from the Constitutional Court. The Portfolio Committee will be called upon to deal with the extension in time.
With regard to the transformation of the Bench, the Minister said the Deputy General would be able to provide the necessary figures, however, in 1994 there had been one black judge (Mohammed) and one female judge who was just about to retire. The numbers were now becoming exciting. From the 214 judges in South Africa, 72 of them were black and 23 women. Of the 23 women, 11 of these were black female judges. The success of this must be judged against the many limiting factors. Firstly, judges are drawn from a very small group and the Bar is not producing sufficient people in sufficient quantity. There is also a socialising problem in that briefs were not being used as a proactive transformative tool. If black and female advocates did not receive public exposure then they would not prosper under the system and so would not be considered for the Bench.
The Minster wished to praise the many people who worked for free in the Court system, for example in the Small Claims Court. He said one must never lose sight of the fact that the people who work in Justice achieve impressive results from very scarce resources.
The Minister was pleased to point out to the Chair that there had been a full spend on Capital Costs in this financial year and this had included the delivery of new courts in areas where there previously had been none. However, only just over 200 courts could be considered as secure from a security perspective. This issue required attention.
South African Law Reform Commission
The Chair said he had noticed a worrying trend in the functioning of the Law Reform Commission in that its committees were now packed with interest groups. This made the Reports produced very sensitive to serving the particular needs of the interest group to the exclusion of the Government. Ultimately this wasted a great deal of money as the draft Bills stemming from the Reports had to be completely reworked when they arrived in Parliament. This led to problems of its own, as then Parliament appeared to be insensitive to the expectations raised by the interest groups so Parliament and Government seemed to be failing to deliver.
The Minister said he was happy to agree that some of the Reports contained personal bias and would convey the Chair's concerns to the Law Commission.
The Master's Office
The Minister said that the Master's Office rarely received public attention but that it must be recognised that a great deal of positive work was being undertaken which enjoyed the full support of the staff. There were also many positive steps being taken to advance women and black employees. Good financial controls were being put into place. The major responsibility for this transformation had been left to the Deputy Minister and she would talk about this herself later.
Mr Swart (African Christian Democratic Party) asked the Minister to give an indication of the progress of Section 49 of the Criminal Procedure Act.
The Minister said he had approached the President on many occasions regarding the complaint that the requisite police training had not taken place. Every time the Government tried to implement the section, the police complained that they were not ready.
The Chair interjected saying that it was important the Committee asked this question as the Committee would be told next week that this was the only Court decision the Department had failed to implement. However, he did defend the Minister by saying that he had seen the many letters written by the Minister on the issue which were, nevertheless, blocked by the Police.
Mr Swart asked where the jurisdiction lay on the issue of releasing awaiting trial prisoners if they were only in prison because they were unable to meet bail conditions due to poverty. Correctional Services believed it was the responsibility of Justice.
The Minister said he could not understand where the confusion lay and put the problems down to a lack of leadership and accountability. He said that Judge Fagan had made good recommendations and that prosecutors should look at better court practice. But he stressed that administrative release of prisoners was not a good idea because there was a real possibility that this could be seen as interference with the independence of the courts. The Department had tried to introduce a fascinating pre-trial determination procedure to show how much bail an individual could afford, but this had encountered resistance in many quarters so it had not been rolled out.
The Chair wondered if perhaps legislation was needed to ensure initiatives like this were implemented properly. The Minister and the Director General agreed.
Ms Chohan-Kota (ANC) asked about the staffing of the Sexual Offences Courts. Whilst the Minster was right to be proud of the Courts, she asked him to consider the role of the Presiding Officer. From her experience sitting on the Magistrates' appointment committee, the magistrates did not accept that these specialist courts need specialist personnel. There was also a problem with the rapid turnover of Presiding Officers in the courts because magistrates simply did not want to work there. She said that for many magistrates "independence" has come to mean something other than "impartiality". She had a document which she would make available to the Minister where magistrates were trying to push independence to ridiculous extremes.
The Minister said that whilst there may be problems with resistance to working in these Courts there were still many people in the existing 31 who were excited about their work and their roles. He also gave the example of the new Marine Resources Courts were people were clambering to be appointed even though this would expose them to the danger of being targeted by organised crime syndicates.
The Director-General added that there was very interesting work being carried out on the ability of non-specialist magistrates to process forensic evidence. The Magistrate's Commission was a seriously dysfunctional body and the biggest hindrance to transformation lay there. There was also a problem with how short-sighted the profession was with regard to outside help. For example, in Melbourne, the Family Courts make very great use of psychological assistance - with excellent results.
The Chair said that the problem lay with Departmental reluctance to stand up for itself against these false claims that their independence was being threatened. No magistrate or judge had ever accused the Minister or himself of trying to influence them in a court case. But the appointment process was refusing to acknowledge the need for specialisation of personal when you create specialised courts. The Department had to give leadership in this area. There were even occasions where magistrates had been offered pro bono advice to assist them but that they had rejected it by alleging it was a threat to their independence.
Dr Delport (DA) said that he felt Magistrates confused issues of "independence" with issues of "self-determination".
The Minster took note of all these criticisms but said it was important not to be too gloomy about these matters. He reminded them that the training to get them ready for the introduction of the Equality Act had been strenuously resisted but now that it had been undertaken the magistrates were very pleased they had received it. It was important to remember that the first step in achieving a paradigm shift was making people believe the paradigm shift could be achieved!
M Camerer (DA) thanked the Minister for the comprehensive report. The Committee had been on site visits recently and that, whilst the report looked wonderful, the Committee's experience suggested that the courts were falling far short of what he had outlined. She asked him why some very important issues were not tackled by the report. She gave three examples (1) minimum sentencing which was causing much discontent; (2) the overwhelming number of Appeals; and (3) the issue of awaiting trial prisoners.
The Minister said that overall the situation had greatly improved but that there were still some stragglers and danger spots. He conceded that the situation in Johannesburg was a problem to be dealt with.
With regard to the backlog of Appeals, he said that members of the legal profession were helping to deal with them.
The Chair asked if the problem was not exacerbated by the issue of court recess periods being far too long as South Africa was out of sync with the rest of the world with the length of these periods.
The Minister said that it was wrong to refer to these periods as "recesses" as they were simply periods where the judge did not sit in court, but that too many judges were using them as extended holiday breaks.
The Chair noted that there was a problem with bad case management on the part of the prosecuting authorities. Often the case was not sent to the appropriate court to be heard.
The Minister said that Judicial Officers do not control where the cases are to be heard, it is the role of the Prosecutor to do this. He agreed that poor management in this area led to many problems.
The Minister also complained that often staff attitude will get in the way of institutional change. He recounted the tale of a woman who works in the Master's Office. Legislation governing liquidations made it clear that when a liquidation is to go ahead certain people (i.e. SARS) must be notified. The woman said that she would carry out some of the requirements, but not all of them. After a long process where many people where treated to their detriment, she eventually said that she had misunderstood the nature of the law. But it had been clear from an analysis of the situation that she was simply trying to thwart the system because she was on a power rush.
Complaints regarding minimum sentencing were ideologically biased as judges were unhappy that they had lost some power. The Minister became animated when he spoke of racism and sexism within the Justice Department which he labelled a "mental illness".
The Minister said that if Judge Cameron believed the current regime was neo-Nazi then why was he still a serving judge? The Minister said that during Apartheid he had never worked even as a Bantustan clerk because he believed the apartheid regime to be utterly without redeeming features. If, as Cameron claimed, the Government had produced a regime reminiscent of Hitler's Germany then the struggle had been for nothing. The Chair and the Minister pointed out that Judge Cameron's comments showed that he did not even read the Constitutional Court's judgements because Van Rooyen said that a Judge must not state a public position on a political matter. He asked, what the Judiciary were going to do to ensure their own members abided by Constitutional Court rulings? The Chair said that it was important to remember that the Portfolio Committee had passed the law, so it was important for them to show leadership.
With regard to awaiting trial prisoners, the Minister noted that there had been only one release from Pollsmoor. It seemed bureaucracy was bogging the process down. A proposed amendment was to be made which left the decision up to the Prison Governor.
Adv Masutha (ANC) drew the Minister back to his comments on racism within the Department and said that during the Committee's study trips to Johannesburg, they found that the situation was completely out of hand with members of staff trying to force the Portfolio Committee to tape the meetings they were holding in order to use the tapes to sue each other.
With regard to the language policy in Courts, he noted in Worcester that the only language used in the court is Afrikaans. A black female employee there was told that she had no role to play as she spoke Xhosa, not Afrikaans. The justification from the court for this stance was that everyone in Worcester spoke Afrikaans, but the residents of the nearby township all spoke Xhosa. Rather than use this woman as an asset in that she was the only Xhosa speaking employee, and get her a translator to deal with other members of the public (as they were required to do) they had simply chosen to exclude her.
There were also occasions in some courts, for example in George, where the witnesses, defence lawyers, prosecutors and clerks all spoke Afrikaans because it was their first language, but the Black Magistrate needed an interpreter because they only spoke another language.
The Minister said that the interpretation service had always left much to be desired. He also challenged assertions such as those made by the Court in Worcester with regard to the number of people speaking certain languages. For example, the majority of the residents of the Free State did not speak any Afrikaans.
An ANC member raised the issue of court security. He said that a female judge in Johannesburg had been threatened. Due to lack of resources in Police Services, private companies were being employed to provide security staff, or Departmental staff were making up the gaps. However, there seemed to be no co-ordination between them. The police appeared to be washing their hands of court security but if the protection of the country's courts was not seen as a primary function for the national police force, then what was?
The Minister said that the Department was aware of the problem and was working towards a common understanding with the other cluster members that security was not a primary function of Justice, so the responsibility could not lie solely with them.
Dr Delport (DA) said he would like to raise an issue which he intended to raise later in the public debate which related to the spirit of the Constitution and the matrix from which it was derived. He said his comments would be concerned with the transformative aspect of it which had an effect on appointment processes and transfers, sport, religion in schools and a host of other issues. He said that South Africa was now moving towards the crunch point where the right decisions needed to be made to really achieve a "Rainbow Nation".
The Minister said in these situations he quotes his old Grandmother's doctor who said, a bad doctor will say that an injection won't be painful, but a good doctor will say this injection will hurt but it will be for your long term benefit. He said that there were so many things wrong with the natio,n that not to tackle them, would be a dereliction of duty.
Mr Solomon (ANC) returned to the subject of awaiting trial prisoners and said that during a site visit to see young offenders the children had been asked if they had met their legally aided representatives. The children said they had not met anyone, yet these representatives go into court and make decisions on behalf of the children. Another member who had also been on the site visit said that when they asked for all the awaiting trial children to be brought to see the Committee members they had been amazed by the number of them.
The Minister said this was a huge issue which related to Departments other than simply Justice. However, he would ask the Director-General to deal with the Legal Aid Department. He said that many of the practioners were overworked and this led to problems.
Mr Solomon (ANC) also asked about a universal approach to the Administration of Estates and said that in many cases money had been plundered by people in the Master's Office leading to a deficiency of funds so the payments to creditors and beneficiaries could not be made. What was the Department's position on this matter?
The Minister said that the Deputy General would look into the matter but that it would seem that where the Department had been entrusted with the estate and monies were lost, then the Department would need to reimburse the people who lost out.
The Director-General said that the new Business Head had carried out site visits. Figures relating to the number of cases and funds misappropriated are being inflated for a variety of reasons. The figures seem to suggest that many of the pre-1994 problems are yet to be resolved. The Minister was to meet with the Auditor General this afternoon to have the situation fully explained. He assured the Committee that the Minister had prioritised the issue and a very clear picture was being compiled.
Mr Swart (ACDP) said he was very impressed by the Integrated Justice System in Port Elizabeth. He asked if it was working as effectively in all the other areas? The Chair said that the Committee were able to give input on potential improvements. The Minister said that there were 26 sites in total and that overall it was a success story. However, some areas had slight shortcomings which were in the process of being addressed.
Ms Chohan-Kota (ANC) said she was also particularly impressed by Port Elizabeth but she was a bit concerned by the initiative headed by Judge Kriegler as there was a possibility of creating a self-disparaging profession. Magistrates got into a comfort zone when they found an area of work which they enjoyed and the Magistrate's Commission had done nothing to encourage the creation of well-rounded magistrates. Selecting a few to develop and promote to the Bench will create more problems in the long run.
The Minister said he was mindful of her concerns but that it was important to recognise that Judge Kriegler would not be able to train vast sways of magistrates, nor would any of the trainees be guaranteed a High Court appointment.
The Minister also said that he personally thought that the Justice College should be transferred to Judicial Services as it was bizarre that the Judiciary was not responsible for its own training. He felt that to make this their duty may make them more self-critical and proactive.
Ms Camerer said that for the last three years there had been plans to phase out the Regional structures. Why had it not happened yet? The Minister said that the phase-out programme had begun and would be finalised by March 2005. He said the delay was unavoidable because the Regional Courts had already commenced work on some things which needed to run to completion.
The Chair said he wished to make the Committee's views on the Child Justice Bill clear and that he was speaking for them all. He realised that the Department had prioritised the implementation of the Bill and the Director General had taken personal responsibility for it. However, the Committee felt that the system was in no way ready to implement it. He gave the small example of the release today of 31 children from a Grahamstown prison where they had been held for four years which were against the court orders. The Committee felt that when the initiative failed, as it was bound to, the blame would all be left at Justice's door. He said that he could not find any piece of legislation which placed the responsibility on any Department or agency for child welfare and education for children held in custody. The situation was extremely depressing.
The Chair closed the meeting by thanking the Minister for such an enormous overview.
The Chair opened the session by commenting that in some areas of the Department one could see that there was a clear understanding of where things needed to be going but in other areas, individuals were causing problems. It was important that this was not seen to be symptomatic.
Director General on Justice Strategic Framework
Organisation of Office
Mr V Pikoli noted that his Office had been reorganised in order to implement the Minister's plans. He felt that in the past the work of the Office had been governed by the system, and this had to change. The Internal Audit had been brought closer to the Director General's Office but this had not led to a damaging of its independence. Its reports were addressed to the Director General, but functionally it answers to the Audit Committee.
This fell somewhere within Corporate Services but had no clear identity. This is now being tackled and the issues it will deal with include physical security, cash in transit, information security, etc.
Strategy, Policy and Operations
The Director General introduced the Committee to his new Chief Director of Strategy, Policy and Operations, Mbuyiseli Deliwe. Mr Deliwe had been appointed to strengthen the team and was responsible for drawing up the strategic plan which would ensure that the Department's and the cluster's priorities were congruent and consistent across the three Departments.
Information Systems Management Unit
This Unit had a huge task in that it had to determine inter-dependences within stakeholders. It was also seeking to establish direct links with the Human Rights Commission, the Commission for Gender Equality and the Public Protector.
The Chair said that he found it difficult to understand the format of the report as the listing of areas seemed arbitrary and all over the place. He also wondered why the Master's Office and the Civil System were not mentioned. He suggested that it might be made more "user friendly". The Director General and the Chief Director agreed to look at this.
The Director General said that the disciplinary hearings for misconduct had not been supplied to the Committee as it was still in the process of being compiled. Instead he intended to give an overview.
In 1999 the Department had publicly stated that there were 480 cases outstanding. However, the accurate figure was over 500. To date there are 298 cases outstanding and prosecutions have been pursued throughout the country with the highest number of cases being in the Eastern Cape. There were, on average, 300 cases finalised in the last three years. In the same period about 85 people had been dismissed.
The Chair asked the Director General to submit a concise report to the Committee. He specifically asked about financial misconduct.
The Director General said that the Auditor General's report had thrown up 2000 allegations. The Department had been handling these in a fragmented way which was now being addressed. Of the 2000, 150 may have been as a result of criminal intent. To date, 47 cases have been reported to SAPS for investigation. 34 cases have been withdrawn as there was no substantive evidence.
The Chair asked for clarification that the strategy was to send as many cases as possible to the courts. The Director General said it was, but that it should be borne in mind that many of those accused had been suspended on full pay. The Department decided to reinstate some people even though charges were still hanging over them.
Implementation of Legislation
The Director General referred the Committee to the document entitled "Note on Implementation of Legislation Mandated by the Constitution". He did not wish to sound apologetic, but the contents of this would show why setting up a strategic planning unit was necessary. He said the overriding aim was to ensure the "Justice Footprint" made its mark. However, implementation was always a sore point.
Promotion of Access to Information Act
The Chair noted that six members of the Committee had attended a workshop held by the Human Rights Commission. The Committee feel the Department has gone overboard on the amendments to the Regulations. When the Act was passed there was also a long Resolution passed with it which suggested that Section 51 should not be brought into effect unless certain exemptions (such as small businesses) were exempted. This was not done. He asked the Director General to please take note of this.
The Director General outlined the fact that the Rules Board which is mentioned in the Act is not yet in place. However, discussions are on-going with the Judge who will be the Chair of the Board as to likely Board Members.
Promotion of Equality and Prevention of Unfair Discrimination Act
The Department is aiming to have 47 Equality Courts in place by 16 June 2003 and a small team in the Department is focusing on this. In excess of 700 magistrates had been trained to sit on these courts. Now a proper alignment of the courts was needed in the hope that the whole country could be reached.
The Director General also said that they were looking at making a provision for the Presiding Officer to refer the matter to an alternative forum.
The Chair said this sounded bizarre. However, Adv Masutha (ANC) said that this sounded similar to the provisions in the Employment Equity Act relating to "reasonable accommodation" which allowed for the Court to refer any employment law issue to the Labour Courts to ensure congruence in this are of the law.
The Director General said the Department was looking at effective mechanisms to deal with this.
The Chair complained that this would simply result in magistrates passing off work they should be carrying out, onto someone else.
The Director General said that the Human Rights Commission had been asked to draft the Regulations.
The Chair asked him to stop using outside agencies to draft Bills and Regulations as it always caused problems as the result was a biased document favouring the position of the agency and that it did not work practically as these people had no understanding of how government works.
The Director General said that there was an overseeing committee set up to ensure that the legislation was working effectively.
The Chair told him to sack the overseeing committee as Parliament oversaw legislation, so no one else was needed.
The Chair questioned why the project required an R8million budget? The Director General said that it was to ensure there was adequate administrative support and for the printing of new forms, etc. The Chair said that it was too much as there was no new expense.
The Director General said that every piece of legislation put a strain on the Court. The Department had a business plan outlining the costs which he would make available to the Committee.
Promotion of National Unity and Reconciliation Act
The Director General said he would not talk for long on issues relating to the Truth and Reconciliation Committee (TRC) as the Speaker had just announced that a Joint Committee had been set up which met for the first time today.
The Chair asked what role the Director General saw for the Department.
Mr Pikoli said the Department would be called upon to draft the Regulations.
The Director General said that an amendment may be proposed to allow for the President's Fund to make payments to communities rather than individuals.
In answer to the Chair stating that the President's speech gave an indication that further legislation would be required, a representative of the Department said that there had been no indication to date that they were to be asked to carry out such a task.
The Chair asked where was the evidence the TRC had amassed?
The Director General said that there had been a huge operation transporting it from Cape Town to Pretoria.
The Chair asked Mr Mackenzie, CFO, if the TRC had reported on any figures.
Mr Mackenzie said not, because TRC Amnesty head, Mr Coetzee, and the Government had not yet agreed on a reasonable sum of remuneration for him to carry out that task. The Director General said he had not seen the Amnesty Report either.
The Chair said that it was unacceptable that people who had an obligation to make annual reports to Parliament were not doing so unless they were paid extra money.
Ms Camerer (DA) said that she had a letter from the Department which said that the Department of Justice took ultimate responsibility over Court Security and that a Directorate had been established to deal with this. She asked when this had been set up. She also asked how the Department's assertion that security was the responsibility of Justice could be reconciled with the Minister's comments from that morning that security had to be laid at the feet of the police because security was not one of the Department's core functions? She added that there were complaints that the private security companies employed did not always supply properly vetted security staff.
Adv Masutha (ANC) raised concerns about the level of expertise of the private security firms' personnel in Courts. A security guard in Gauteng had virtually pleaded with the Committee to help get him training. He added the Provincial Head of Police in Gauteng had stated that court security lay solely with Justice.
The Director General that security had been neglected in the Department so they had set up the Directorate last year to raise its profile. It functioned at Court level in order to link with Court Services. This process led the Department to outsource some functions of security.
Ms Camerer engaged the Director General on the number of courts which he believed to be secure and what the level of security was.
The Director General replied that there were about 200 courts which could be described as secure, the rest, he hoped, had at least hand-held metal detectors.
An ANC member also asked that something be done with regard to the security of the Court cash halls, as he did not understand why robbers targeted banks when the Court cash halls were so wide open.
The Chair asked the Director General to prepare a report on the level of security in each Court.
Mr Solomon said that there were an additional R50 million in the 02/03 Budget to provide additional Court security. He asked what had become of this money?
The Chair asked that when new Courts are being designed, the Department must ensure that vaults were built in to ensure that court papers could be retained at Courts. The current practice that dockets were held by SAPS and only returned to Court three days before the trial date was unacceptable as it left no room to manoeuvre if there was a problem with the availability of a witness, etc.
Ms Chohan-Kota said that there was also a problem with the delay between the drawing up of the plans and the commencement of the building programme in that, sometimes, the environment surrounding the court had changed considerably with no adaptation being made to the plans to take account of this.
Ms Chohan-Kota raised with the Director General the magistrates' complaint that Court orderlies disrespected them, would not take instructions from magistrates and were often simply never around when they were supposed to be.
The Director General agreed that there was a problem with management in this area.
Ms Camerer asked whether the TRC archives were properly secure and if members of the public had access to them.
The Director General said there was an on-going process to make this possible.
Adv Masutha (ANC) asked the Director General where the Department stood on the issue of backdating the pay of suspended employees whose cases had been dropped, and whether disciplinary hearings were going ahead while a matter was sub judice. The Chair said that there was a Resolution of the Public Service Commission relating to this and asked the Director General to look it up.
The Director General undertook to provide the Annexures to which the Budget for 2003 included references but which had not been attached to the documents.
The Chair asked the Director General how he felt his Office was operating after the restructuring? The Director General said that the strategic plan was really helping everyone to focus. There were regular meetings with the heads of the Units and, whilst there were still some interpersonal problems, he was getting to the bottom of them.
The Chair said that the Director General had to go to Johannesburg and Pretoria courts and clear out the troublemaking personnel. He said that the Minister appeared to agree with this sentiment from his comments that morning.
The Director General reminded the Chair that he did not have the same powers as previous Directors General.
The Chair said that it was an embarrassment that the Johannesburg Courts were staffed by the personnel there. He also said that magistrates who were refusing to hear cases on the basis that there was a prescribed sentence attached to the crime must be disciplined.
The Chair closed the meeting.
1. The interim reparation phase has been completed except for approximately
1000victims who could not be traced both by the TRC and ourselves. We have
paid interim reparation to 17 040 victims to the value of R49,8 million.
2. The final report, volumes 6 and 7 of the TRC together with the recommendations
of the President was tabled in Parliament on 15 April 2003. In accordance with
section 27 of the Promotion of National Unity and reconciliation Act a joint
committee of parliament shall make a final recommendation which
recommendation when approved by Parliament will enable the President to make
regulations. We are awaiting for this phase to be completed.
3. Thereafter the Legislative Development Directorate of the Department will
develop the regulations. These regulations will specify the conditions in terms of
which final reparation will be disbursed.
4. In the interim the President's fund is corresponding with victims to whom interim
reparation was paid to submit banking details afresh so that payments of final
reparation can commence immediately after the regulations appear in the
5. As at 15 May 2003, the amount available in the Presidents Fund for reparation is
This article was published on page 2 of The Mercury on June 02, 2003
Apartheid reparations committee to start work
A special parliamentary committee to finalise reparations to apartheid victims and process new legislation on immunity for perpetrators is to be formally constituted on Monday.
Speaker Frene Ginwala said she had been given the names of 19 members of the National Assembly and nine of the national council of provinces who would make up an ad hoc committee on reparations.
The committee would take the work of the Truth and Reconciliation Commission further.
On April 15, after a debate on the final TRC report, Ginwala announced that parliament would set up a committee in terms of the Promotion of National Unity and Reconciliation Act, which guided the TRC process.
'We intend to process these payments as a matter of urgency'
"This committee will take matters further and specifically consider recommendations with regard to reparations for victims as required by the legislation," she said.
Speaking at the joint sitting, President Thabo Mbeki said each of the approximately 22 000 victims or families of victims who had appeared before the commission would receive a once-off grant of R30 000.
"We intend to process these payments as a matter of urgency, during the current financial year," said Mbeki.
One of the first problems the committee could face is a submission against Mbeki's reparations proposals by victims' representative groups, Khulumani and Jubilee.
The groups are suing foreign banks and companies for their co-operation with the apartheid state.
Miranda Malele, Jubilee's national co-ordinator, said both groups had stated in their submission that the R30 000 is inadequate and had "rejected the president's offer of a one-off payment".
Justice ministry spokesperson Paul Setsetse said a draft bill on reparations previously in the pipe-line was superseded by Mbeki's announcement and would no longer be referred to parliament.
The committee was also likely to deal with another draft bill being prepared by the justice department on the immunity process for perpetrators who had failed to co-operate with the TRC.
Mbeki said the government had decided against a general amnesty because it would fly in the face of the TRC's efforts to establish accountability.
"Yet we also have to deal with the reality that many of the participants in the conflict of the past did not take part in the TRC process," he said.
The indemnity process, like the TRC's amnesty process, would require full disclosure of crimes committed. However, unlike the TRC's amnesty, immunity did not take away victims' rights to sue the perpetrators in civil cases.
Setsetse said while the immunity bill was almost finalised, the department was looking at a way to provide incentives for people to come forward.
"We want to ensure that when people come forward with information they do not incriminate themselves", he said.
"And they won't come forward without any fear if there are no incentives."
Included on the committee was the chairperson of the justice committee, Johnny de Lange, of the African National Congress, and Democratic Party spokesperson on human rights, Dene Smuts.
"This committee will take matters further and specifically consider recommendations with regard to reparations for victims as required by the legislation," she said.