Justice Budget: input by Court Services, Master of High Court, Personnel & Communications Units

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Justice and Correctional Services

05 June 2003
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 June 2003
JUSTICE BUDGET: INPUT BY COURT SERVICES, MASTER OF HIGH COURT, PERSONNEL & COMMUNICATIONS UNITS

Chairperson: Adv J de Lange (ANC)

Documents handed out
Courts Services: Report
Programmes of the Business Unit 2003-2005
Court Services: Business Plan with Key Performance Indicators
Policy Guidelines on Accommodation
List of Identified 47 Equality Courts [email
info@pmg.org.za for document]
Memo on Establishment Expansion for 79 Posts [email
info@pmg.org.za for document]
Report on Master of the High Courts
Mveledziso Project, Guardian's Fund, Appointment of Liquidators progress report [Appendix 1]
Report on Guardian's Fund [Appendix 2]
Human Resource Unit report

SUMMARY
Briefings continued on Court Service as well as the Masters of the High Courts and the Guardian Fund. The Committee commended the Department for their priority spending on improvements in rural areas and black townships. They questioned the departmental plans to create 40 new magistrate posts, as they felt that the present personnel needed to be better utilised. The Chair described the proposed improvements of the courtroom functions through the Integrated Justice Court System.

The following issues were raised by the Committee about the Guardian's Fund:
- how exactly the Department arrived at the R78m reported deficit,
- the different roles of the Chief Master and the Managing Director in the Business Unit,
- the steps taken to address the reported theft and fraud cases in the Guardian's Fund,
- progress made in writing up all the books of the Guardian's Fund.

The main issue considered during the discussion on the Human Resource Unit was the measures put in place by the Department to resolve the current disciplinary cases.

MINUTES
Discussion
The Chair began the meeting by asking what the Department was doing with the R400m extra money received, and requested that they send him a written memo on this.

Mr Simon Jiyane, Managing Director: Court Services, referred to point 8 of the 2003 Budget, stating that R19m of the new money was being directed to broad areas of the Business Unit project. The money is also being allocated to Special Services and the protection of vulnerable groups. New management is being created, and it also covers the implementation of the Maintenance Act and the Child Justice Bill. R1 460 000 of the new money is aimed to be spent on the extension of the family court.

The Chair asked about the Sexual Offences Courts and the Domestic Violence Act.

Mr Jiyane responded that money is being spent on this court with respect to personnel. They planned on developing guidelines for the Domestic Violence Act, which they had set aside money to formalise. The guidelines will become binding on the magistrates in dealing with domestic violence.

The Chair asked why they were planning on spending so much money simply for guidelines.

Mr Jiyane responded that the money was targeted for workshops and people who assist in drafting the guidelines. There was no money allocated to appoint additional personnel.

Mr Jiyane noted that facilities and infrastructure support was the greatest area with significant improvement. They were able to spend their entire budget and had built a sizeable number of courts. They allocated R229m for the establishment of courts, R35m to upgrade infrastructure, and R50m to security facilities.

The Chair noted that last July the Committee was unhappy with their policy as not enough money was directed at townships.

Policy Guidelines on Accommodation
Mr Jiyane indicated the policy guidelines found on page 2 of Policy Guidelines on Accommodation.

The Chair stated that this was good policy, directed where it should be, although it took nine years to get to this point. He wondered how well it would work in practice.

Mr Jiyane then turned the Committee's attention to Major Capital Works Priority List in the document, which indicates the courts that are meant to be upgraded or built.

The Chair asked if the courts indicated had been finished, or if they were in the process of improvement.

Mr Jiyane responded that they were in the process of development. The document shows a list of Development in Rural Areas and Black Townships since 1997. This also demonstrates the achievements up until 2001.

The Chair stated that the progress was horrible, as all the projects listed were completed years ago. This demonstrated how they had fallen off the rails. He then asked what "In Construction" meant as a heading in the list.

Mr Jiyane responded that it meant new courts. There was a delay in the acquisition of land for some new courts, and as this process has now been completed, the number was actually higher than mentioned.

The Chair added that they should indicate the number under renovation. He also asked what budget was being spent to cover the major works in planning.

Mr Jiyane responded that it is was part of the R281m allocated for "Facilities and Infrastructure Support" as indicated under Court Services of the Budget Plan.

The Chair stated that next year they wished to see a list of all courts from this list that had been completed in rural and Black townships, so they could see their progress. He added that this progress was a major step, as it was the first time in nine years that such progress had been made.

Ms S Camerer (DA) asked when the construction would start.

Mr Jiyane described the process of Development. Each project begins in the planning phase, the R281m, included this phase of the project. The plans will be completed by financial year end.

The Chair said to the Committee that any questions regarding the detail of specific courts were to be addressed at latter time. He wished to cover the major policy issues.

Imam G Solomon (ANC) asked if the R281m included facilities and infrastructure support, or if this money came from Public Works. He noted that the money allocation seemed to be low for some large projects.

Mr Jiyane responded that the Capital Works Budget was now with the Department, and the maintenance was with Public Works.

Ms F Chohan-Kota (ANC) questioned how the Department decided where the courts were going to be, as in some areas there was a high concentration of courts, and other areas where there was a crisis, there were still no plans to build.

Mr Jiyane conceded that previous planning on major capital works were put into process well in advance, and it was not possible to change these plans. The document set out the criteria. They have allocated money over three years to some projects, therefore they could not address problems over one year, and so change had to happen incrementally. They might not all agree on the location of the courts, but they did have objective criteria.

Mr Pikoli, Director General, noted that a lot of courts needed to be upgraded. In most rural areas, the present-day courts were once schools and therefore had problems with security.

The Chair understood that change would take time, but added that this major shift in spending needed to continue for at least 3 years. They must be careful not to entrench the problems of the past with future plans. One major problem, is that some courts in townships or rural areas only do criminal matters. New facilities must be created to allow them to address other matters, as transportation costs can inhibit too many people.

Ms Camerer discussed the problems with regional courts and their performance. She thought the reason for this was insufficient magistrates and delays in legal aid. She asked how the Department proposed to handle the problem.

Imam Solomon noted that the Department is now in charge of the Capital budget. He wondered if there were any plans to provide mobile courts to remote areas, as this would be more cost effective.

The Chair said that this was not a courts issue, because you could not build courts in very remote places. However, the problem with periodical courts is that they just handle criminal matters. The mindset of the Department has to change with respect to this. He hoped that this shift would happen next year.

Ms Chohan-Kota, with respect to regional courts, commented on the Departments plans to create more posts for magistrates. There is a Magistrates Commission meeting set for one month's time to create 40 new posts. She questioned the necessity and wisdom of this for two reasons. First, the many magistrates have shown poor performance, and a low number of work hours and prosecutions. She asked if the posts that are to be created correlated with the courts with low work hours. Secondly, the posts are mainly to be filled by prosecutors, which would create a ripple effect in the system, resulting in a shortage of prosecutors.

Imam Solomon stated the major problem with the full implementation of the Maintenance Act, which hampers the prosecution process.

The Chair asked why the 40 new magistrates were not accounted for in the budget.

Mr Jiyane indicated that it was in the budget. This year a lot of resources were put towards dealing with the bottleneck in the court system. The creation of these posts was based on a 1998 departmental study looking at the needs of the regional courts. They need to address the problem of the workload in some regional courts. R23m was allocated to create permanent magistrate courts.

The Chair disagreed with this type of thinking that since they were not meeting their targets they needed more staff. He noted that many magistrates only worked 3 ½ hours a day, and that the problems were not in a shortage of staff. The magistrates are supposed to sit for 6 hours per day.

Mr Jiyane stated that the Committee had advised last year not to give additional staff where the work hours were low. The areas in which new posts are to be created are not related to this. For example, in the North-western Cape, they refused to add more posts until present staff were properly utilised, whereas in Gauteng, courts work long hours and need new posts. He concluded that the Committee should not be worried about these issues.

The Chair asked again for the budget on this, noting that Mr. Mackenzie had indicated a R70m deficit on staff yesterday.

Mr P Durand, Chief Director: Court Services, added that these were not all new posts as some were vacancies that needed to be filled.

Mr Jiyane requested the opportunity to provide this information at a later date. The Court Services budget was not unpacked item-by-item. Mr Mackenzie talked about a figure not yet finalised.

The Chair reiterated his concern about the decisions coming from the Department. He suggested that the Department Heads needed to go and visit these courts, as throwing more staff at the issue was misguided. He wished to see everything fully accounted for.

Mr Jiyane stated that before creating the posts, a work investigation was performed, which he suggested he could provide to the Committee.

Ms Chohan-Kota asked why they had not considered alternative low-cost solutions to improve efficiency.

Mr Jiyane said that on a positive note, the frustrations of the Committee would provide for a long-term plan. For example, the integrated case flow management system will address these problems in the long-term.

The Chair suggested that the problem was that the analysis was not done on a scientific level. They should analyse how many crimes are in an area, then work out how many magistrates are needed. Presently, it was just based on opinions or views taken from the magistrates.

Integrated Justice Court System
The Chair described the Integrated Justice Court System. In the present system the Dockets are first acquired by the SAP, then handed to the National Prosecuting Authority (NPA), where there are three posts to read to Docket and see what is missing. One that handles only murder and the other two handle all other matters. The Dockets are then handed to the Detective Unit of the police.

This system has major weaknesses:
- a vault should be created in at least all major courtrooms, so there is a place to store the Dockets. The present system causes many delays in waiting for dockets between the police and the courts. For example, if a witness is subpoenaed, the courts send the entire docket back to the police, who give it back three days before the trial. The docket should be kept in the vault and if the police need the docket to subpoena a witness, it should be returned a month before trial.
- the courts have no authority to apply pressure on the police to speed up the process. If a senior officer was employed by the courts to do this, they could be in charge of making sure the docket was ready and keep a diary to ensure the subpoena was in order.
- within the Statistical Department, the statistics are being collected, but they are not analysed.

He suggested that they needed a piece of legislation to that explained pre-trial services.

There is also a need to add a role for Legal Aid in each court. Every day there needs to be a magistrate, prosecutor and public defender for 6 hours in each courtroom. There should also be one or two court nags in each system. This model of a court should at least be applied to all bigger centres.

Imam Solomon noted that in some areas Business Against Crime (BAC) is presently playing a big role in the process.

The Chair indicated that in 10 or 15 major centres BAC had already offered their help. The biggest area that they were not on board with was Statistics.

Mr Landers asked if there was a limit to the number of remands.

The Chair stated that the reality was that if they changed the remand system, major criminals would be out on the streets. The process needs to be monitored, so those awaiting trial for 3 or 4 years can be identified. They can not change the remand issue, but they could create a safety belt, by creating provisions that provides for reporting.

Adv M. Masutha (ANC) noted that the Integrated Case Management System aimed to make it a rule that only in exceptional circumstances a remand would be granted.

The Chair stated that they must be careful not to make a rule that undermines the legislation.

Adv Masutha said that if someone stays in prison awaiting trial for longer than they would otherwise have stayed if convicted, this was an automatic injustice, and a mockery of the system. Some kind of provision should be provided to allow the release of these prisoners.

Imam Solomon asked if there was a method to determine under-utilisation of magistrates.

The Chair responded in the negative.

Adv Masutha added that there needed to be such a mechanism, in order to increase efficiency and capacity.

The Chair said that the problem was that in some courts the magistrate has been sitting since 1994. This was problematic as they start to develop bad practices such as employing their family members.

Mr Jiyane requested help from the members that sit on the Magistrate Commission to assist in the development of an objective system for performance and working hours.

The Chair expressed his opinion that the problem with the Commission was that it was dominated by magistrates who promoted their self-interest.

The Chair stated that except for the terrible decisions with respect to the 40 new posts, he was impressed on a whole in the direction of the Department. He suggested that it was miraculous and should be publicised. They should start building their good ideas into a blueprint of what a South African court should look like, and this should be standardised. He congratulated them on their work and noted that they deserved the R400m.

Masters of the High Court Unit
Mr Enver Daniels, Acting Head of the Unit, accompanied by Mr Kasumba and Mr Baloyi, stated that the Committee would be pleasantly surprised with their unit as they had concentrated on the problems that the Chair had identified.

He indicated that the 150 temporary units were part of the problem. These units need to be professionalised, so they can phase out the temporary ones. They have recently established 80 new posts. There are also some structural weaknesses within the unit, as they have made some mistakes regarding service to the poor. For example, they decentralised the Guardian Fund to Pretoria. He noted that this situation would have their immediate attention.

Mr Baloyi presented the recent changes to the Masters Office. They have a stronger management team. They presently have 18 vacant posts that are not filled.

The Chair asked if there was a budget to employ Master's Office staff.

Mr Baloyi responded that they had allocated R13m, R3m of which has already been spent.

Mr Daniels stated that the problems anticipated from the Moseneke case, have not materialised. The resources allocated to expand office service will likely not be needed this year.

The Chair added that at some point white people are going to realise that the change in the law regarding the Moseneke case, benefits them as well. Prosecutors can go to local magistrates and not send all of their documents to Grahamstown. He wondered if the Master's Office was planning on accommodating this.

Mr Daniels responded that they had no plans for this at the moment. He added that the Moseneke case deracialised something that should always have been.

Mr Baloyi stated that their workload had increased by 50% in the last year.

Mr Daniels expressed the need to employ people and noted the problems with the offices in the rural areas, where there are no storage places and the work is done manually.

Mr Baloyi, stated that the objectives and guidelines in the document on the Appointment of Liquidators will be as follows:
- to establish uniform procedures in the Masters Office for the appointment of liquidators and trustees;
- to promote consistency, fairness and transparency;
- to make the industry accessible to previously disadvantaged people; and
- to promote the image and confidence of the insolvency practitioners in the Master's division.

The Chair reminded the Department that that document has to be tabled in Parliament.

Guardian's Fund
Mr Kasumba stated that during 2002 the Guardian's Fund over-spent by about R80m, mostly on personnel expenditure. This is due chiefly to the vacant or unfilled posts that could not be filled because of the negotiations between government and the Department of Public Service and Administration. In 2003 the budget had increased from R71m to R111m. Yet this amount is not adequate for the Department to implement all its projects, especially the Moseneke judgment. The Department's action and business plans as indicated in the document entitled "Programmes of the Business Unit 2003-2005" actually project a deficit of about R78m, if the Department is unable to increase its capacity to the necessary level.

The Chair asked the Department to provide the Committee with a copy of these plans.

Mr Kasumba replied that the plans have not yet been finalised.

R78m deficit
The Chair questioned how the Department could then project a deficit of R78m if the plans on which the projections are based are not yet available.

Mr Kasumba explained that at the beginning of the planning process the Department plans to expand those operations, although a plan is not yet in place. From these initial stages the Department expects a deficit of R78m, if it wishes to bring the service to an acceptable level.

The Chair stated that Parliament has to be presented with a plan before it can consider approving a deficit, let alone one of R78m.

The Director General stated that some plan must have been put in place on which the figures are based.

The Chair stated that it appears as though the Department has arrived at the R78m deficit "in anticipation", because there is no blueprint.

Mr Daniels agreed with the DG. A number of figures supplied by the Department were in fact calculated on the basis of information supplied by the Master of the High Court in Pretoria, in response to the Moseneke application in the Constitutional Court. This judgment suggested a deluge and also that the Department would need a number of additional people to perform its functions. Mr Kasumba is saying that it is now apparent that that deluge has not materialised. It might yet materialise, but this seems highly unlikely.

In other words, the Department possibly has to go back to the drawing board. One of the factors that was taken into consideration in formulating this amount is that if the Department is to take over the whole of the function, including the traditional, customary and common law, there would then be this shortfall of some R78m. A plan would then have to be formulated to address this.

The Chair stated that he understands that the Department has anticipated a figure which has not materialised, and it may now never need that blueprint. In future the Department must never draft budgets without having a blueprint in place. This undermines the Unit's credibility. Mr Daniels has to interact with the South African Law Commission (SALC), so that the Department can understand the SALC proposals on the role of the Masters' Office with regard to customary estates.

The Chair asked for a breakdown of the all Masters Offices.

Mr Kasumba referred Members to Point 2.1 in the Report on the Guardian's Fund which contains the breakdown.

The Chair asked what percentage of the total budget allocated to each Masters Office constitutes personnel costs.

Mr Kasumba responded that this would probably be about 80%.

The Chair asked why the budget allocated to Durban and Port Elizabeth are so small.

Mr Kasumba replied that these are new Offices that are yet to be established. The other new Offices are Johannesburg and Polokwane.

The Chair asked Mr Kasumba to explain the "Expansion of establishments".

Mr Kasumba responded that the R33m has been earmarked for the project dealing with the implementation of the Moseneke judgment, which involves the expansion of current operations.

Mr Daniels added that the Department is opening four new Offices which will also have to be staffed. Provision also has to be made for the Moseneke judgment cases which will of necessity come to the Master's Office. The envisaged amount for this is R33m. These funds will involve setting up of an office, plus personnel, equipment, rental, stationery, telephones, electricity etc. He assured the Chair that all these amounts have been scientifically calculated.

The Chair asked Mr Daniels to provide the documentation for these calculations.

Mr Daniels agreed that it can be made available to the Committee in next week.

The Office of Chief Master
The Chair asked whether provision has been made for the position of Chief Master. If so, where will this person be located?

Mr Daniels replied that he has questioned the role of this Chief Master in relation to the person that heads the Master's division. He stated that his own thinking is that the Chief Master has to be the person that heads the Master's Unit, otherwise two different people will be created. More discussion on this aspect will probably be needed.

The Chair suggested that it was probably envisaged that the Chief Master would go through the ranks, and there would then be a chief that ensures that there is uniform application of the rules. The administration, on the other hand, would be accountable to the Chief Master. This is still necessary, because the problem is that "each one has become their own little god". The Chair stated that as he understands the legislation that creates the position of Chief Master, s/he would be at the apex of the Master's Office's pyramid, and it would get instructions directly from the Master's Unit. But the Chief Master will not sit in the Master's Unit. This is the way it should be. Where is the budget for the Chief Master?

Mr Daniels assured the Chair that there are funds in the budget for the Chief Master. The difficulty is that there is a General Manager for the coastal region and one for the inland region. Mr Daniels stated that, under his direct supervision, these General Managers have been intervening in all of the Master's Offices. They are even monitoring and giving direction in the appointment of liquidators. Thus these General Managers are already playing the role of almost a "super Master" in respect of those two regions. Mr Daniels stated that it is his considered view that because of the appointment of General Managers, the position of the Chief Master may have to be reconsidered.

The Chair contended that this amounted to fragmenting the system by having one for the inland and one for the coastal region. There should be one person that has a productivity contract with the DG, and there cannot be several administrators. The Chair stated that it appears that the Department is now saying that all the structures and measures that have been put in place by the enabling legislation now has to be undone. The Chair stated that he is totally opposed to the idea that a few people in a small business unit are going to try to run about ten officers. The business unit gives the backup and policy direction, but the main executing officer of these policies is the Chief Master. The two cannot be meshed into one.

Mr Daniels assured The Chair that this is not the case. There is no fragmentation, as there is one business unit functioning as such. Instead, the country has been divided into two distinct regions, with a reporting line that currently extends to Mr Daniels himself. Overall control is being exercised, and the General Manager reports to one person.

The DG assured The Chair that the Department has no intention of deviating from the law. The position of Chief Master is catered for, but it has become vacant. The position has since not been filled. The refilling of this post will now be considered. He agreed with The Chair that the law is clear that the Chief Master and the head of the business unit have to be two separate persons.

The Chair and Mr Daniels engaged in a lengthy discussion on the positions of the Chief Master and General Manager of the business unit, and whether this was discussed with this Committee during July 2002.

The DG stated that the Department would get back to the Committee on this.

Fraud and theft cases
Ms Camerer asked the Department to clarify the incidences of theft and fraud that has occurred in the Guardian's Fund, because this has only been obliquely referred to in the document.

Mr A Mckenzie, Department: CFO, responded that to date approximately 34 have been reported to the South African Police Service (SAPS), and about 74 are still under investigation. A total of seven investigators are working on these cases. The Department is awaiting the appointment of the Special Investigations Unit (SIU). A draft Presidential Proclamation has been drafted authorising the SIU to bolster investigations in 40 specifically named courts. The cases are not restricted to the Master's Office, but the majority of them do arise in the Master's Office.

The Chair asked whether those 34 persons are currently working, or whether they have been suspended.

Mr Mckenzie replied that some have been suspended, and others are still working within the Department.

The Chair stated that a document is needed that explains these disciplinary cases, by breaking them up into those that have resulted in suspensions, those that have not etc. It should also indicate exactly how much money is involved in each of the 34 reported cases.

The DG agreed to provide this information.

Reconciliation of Guardian's Fund books
The Chair asked Mr Mckenzie whether it is correct that all the books of all the Guardian's Funds have to be written up by August 2003.

Mr Mckenzie answered in the affirmative. He added that this relates to the monies in trust in the deposit accounts of the Magistrates Courts, and there is a distinction to be made between this money and the Guardian's Fund.

The Chair asked the Department to provide an update on the financial problems with the Guardian's Fund that it had lodged with this Committee during 2002. These seem to have appeared suddenly.

The DG responded that these problems have not disappeared. Upon closer inspection it appeared that the problems envisaged might not be as serious as initially thought. This is work in progress, and has not yet been verified.

The Chair requested the Department to explain the steps it is taking to resolve these problems, and when they will be sorted out.

Mr Daniels replied that these problems will be resolved by August 2003 at the latest, even if it means that the Department has "to move heaven and earth in the process". The books for the Cape Town, Pretoria, Grahamstown and Pietermaritzburg Offices have been balanced. A detailed investigation is being carried out into the affairs of the Mafikeng Office. These figures can be provided to Members. The trend emerging is that the situation is much better than originally thought. The Department did believe that there was a major crisis, and this was understandable because the books were not properly written up. The Department has since devoted a substantial amount of time and resources to establish what the clear picture is. In fact the Public Investment Commissioner (PIC) believes that there is a surplus in the Guardian's Fund , but no-one has been able to link that surplus to the actual beneficiaries. Yet the Department is reasonably satisfied that this alleged surplus does not apply to the Guardian's Fund.

The Department has also established some figures in certain Offices which it is fairly confident about, but which have to be independently verified. The Department is fairly confident that some of the problems that currently exist the in Guardian's Fund are some of the historical problems which the Department has inherited. Mr Kasumba will now computerise the system, as a matter of high priority. It has been found that in most of the Offices a manual card is being used, and this is highly unsatisfactory in this day and age. Mr Daniels stated that he is not sure whether this process will be finalised by August 2003, because it is a complex process.

Mr Daniels added that it has to be recorded that the Department acknowledges that there has been fraud in the Guardian's Fund, and all its current efforts are directed at eliminating that fraud completely.

Ms Camerer requested clarity on the R9m in shortages referred to in the Report on the Guardian's Fund, and whether Point 1.3.3 of the Report on the Guardian's Fund refers to lost funds.

Mr Daniels responded that he has personally done a very detailed examination of the R9m referred to. The shortfall actually amounts to R4,7m in round figures, and most of it arose historically. The Department has not been able to pay these funds because they have been lost, and due to this interest has accrued on these funds. It is for this reason that the Report on the Guardian's Fund indicates that in the Umtata Office, for example, the interest accrued has exceeded the capital amount. Mr Daniels stated that he has sent a memo to the DG informing him that this has to be resolved as a matter of urgency, because it is only a matter of time before the Department is sued. The total amount which the Department will then have to pay to the intended beneficiaries is R9,4m, for only the Umtata and Bisho Offices.

This shortage is due to several factors. The most common cause is that many over-payments were made as a result of the manual card system. This happens quite easily. The shortfall in the Pietermaritzburg Office is R1,3m, of which R845 000 was recovered. This leaves a balance of about R450 000. Here again the Department is satisfied that there was some fraud and negligence involved. The Pietermaritzburg Office is now reasonably under control. There are currently no shortages in the Cape Town or Grahamstown Offices, but the amounts in the Bisho and Umtata Offices have now been transferred to Grahamstown.

The Mafikeng Office is a problem because that Guardian's Fund has been transferred to Pretoria due to suspicions of fraud, and a detailed investigation is being conducted. The outcome of this investigation is uncertain. The Pretoria Office also has to be balanced and written up. Mr Daniels stated that he is fairly confident about these figures, because the Department has spent months working on them.

Mr Mckenzie clarified that by the end of August 2003 all the reports from the Guardian's Funds will be in, listing the outstanding debts. These amounts will then be compared to the funds in the bank. The complete writing up of all books for monies in trust will not ever be done. It goes back decades and simply cannot be written up.

The Chair stated that it is fine if the Department will be writing up the books for the records it currently has. He requested the Department to provide figures on the productivity of the Master's Offices.

Mr Daniels replied that this information can be provided to the Committee. His own view is that staff in the Master's Offices can work much harder than they currently are.

The Chair stated that a significant amount of money is tied up in the Master's Office, when it delays the payment of liquidation funds or estate pay-outs. The result is that this money cannot be put back into the economy. The Master's Office has to begin to sell its value, as well as its important role in the Department.

Constitutional Development Unit
The DG stated that he was not aware that this was on the agenda for today's meeting.

The Chair stated that the Report can simply be forwarded to the Committee at a later stage. The Chair stated that he simply wanted to know whether it has been set up already, what it has been doing etc.

Human Resources Unit
The Chair asked the Department to explain the mechanisms that the Department has put in place to resolve the 298 current disciplinary matters, as contained in the document.

Mr L Grootboom, Department: Key Accounts Chief Director, responded that the record of suspensions in the Department was looked at, as well as at the backlog for disciplinary actions. Mr Grootboom stated that he has voiced his displeasure at the situation, because he could not understand how this backlog could be possible. A plan has been put together to address this problem, and it is possible to provide Members with a document containing all the actions that have since been taken.

The Department believes that many of the suspensions are actually a cost to the Department. It does not make sense to suspend people for them only to remain at home, as though it is a paid vacation. Many of these suspensions have been analysed and the Department believes that a select number of the suspensions have to be lifted. The idea is to get the people to come to the office and do productive work, and "kill them on the job". By this it is meant that that process has to be resuscitated, and then fire them on the job.

The other trick is to go for precautionary transfers with some of the suspended people. If someone is involved in financial embezzlement, for example, that person has to be brought back to work and given a job that does not involve working with money. This person has to work, even if it is nonsensical work. The bottom line is that the person has to do work and get paid for that work done.

The Department has also discovered there has also been much managerial negligence in many of the misconduct cases investigated. This is due to the unfortunate perception that people occupying the senior management positions are immune to punishment. The position of the Department is that if a person has committed misconduct "under the eyes of that manager", the manager has to be punished as well. This process is underway.

The decision has also been taken to resuscitate the training of some of the State Law Advisors. These persons are legally trained at it does not therefore make sense for the Department to import labour law experts from outside the Department, at huge cost. They are currently undergoing training in Johannesburg under the South African Arbitration Foundation. These persons then have to enter into contracts with the Department in terms of which they agree to remain with the Department for a period of two after the training. This will ensure a broader pool of investigation officers.

The Chair asked just how large this pool is.

Mr Grootboom replied that it currently consists of about 40 officials. He stated further that the other element of the strategy is to create awareness. The Department has already started to put together an Employment Relations Quick Guide for all managers, which should be printed by Friday 13 June 2003. This will train those managers to "pin people down" when they commit misconduct, or even to anticipate potential misconduct.

The Chair asked whether the Department will be including a provision in the employment contract of these managers that they themselves have to handle disciplinary matters.

Mr Grootboom responded that the new performance contracts will include this provision. The bottom line is that managers "must not be very soft on misconduct". The other element is the "do's and don'ts Code of Conduct of Treatment" which has already been finalised. This will be circulated to all employees and will explain to them just what expected behaviour is needed from them within the Department. Employees will thus not be allowed to claim ignorance of the Department's policy. It is currently being printed.

It has to be emphasised that when an employee has committed misconduct, the Department does not have to wait for SAPS to finalise the matter. The trick is to put together the disciplinary machinery internally and to fire the person, but still pursue criminal liability when s/he has left the Department.

The Chair expressed his firm approval with Mr Grootbooms statements. He stated that he is a firm believer in "strong discipline with a soft hand". Strong discipline in the sense that people must know that they are gong to be disciplined and "soft hand" in that when they are disciplined they must not be destroyed, but they should instead be integrated. This is important. He stated that he is excited by Mr Grootboom's ideas and firmness, and it appears that the Department is very clear on the route it is taking. The Department has to make a concerted effort during 2003 to reduce the 298 pending disciplinary cases, and those cases involving suspensions have to be prioritised. He requested the Department to report back to this Committee in about six months on this, and stated that he is impressed by the progress made thus far.

The Chair sought clarity on the exact staff shortage in the Department.

Ms Camerer asked the Department to respond to a portion of the Report which states:

The Department is at present in the middle of a human resource audit. Preliminary results suggest that the Department is both under-resourced and relatively unskilled and therefore ill prepared to fulfill its mandate.

The DG stated that this is to be an oversight, because the matter had been resolved. This statement is not a clear reflection of the true picture.

Ms Ngwenya of the Department, added that the Department has just finalised the skills audit in terms of Resolution 7. It is currently in the analysis stage, because it did not have a system to put in place. The Department of Public Service and Administration has in fact requested that it be allowed to use the same system, so that it can match the skills profiles against the job profiles. This will indicate the gap between the two. Further information will only be available once that data has been considered.

The Chair asked Ms Ngwenya to indicate the areas in which the Department is missing major staff, which should actually be there.

Ms Ngwenya responded that there is a shortage, especially in the maintenance and administrative aspects.

The Chair asked the Department to provide the plan for the personnel breakdown of an ideal court. This has to be done via scientific analysis.

Ms Ngwenya replied that the Department is currently doing this.

The DG added that this is being done in accordance with Resolution 7 of 2002.

Conclusion by the Chairperson
The Chair stated that his overall impression is that the affairs of the Department are much better than they were during 2002. The financial structures are well on their way to being put in place properly, although there is much work to be done. Progress has also been made in the courts services unit, and it is putting the building blocks in place. The affairs of the Master's Office do seem to be improving, but the type of non-engaging reports given today do breed some cynicism. The biggest problem with the Master's Office is that the Chief Master cannot be made part of the Department, because the Master's Office cannot be run the Department. This crosses the lines of control and accountability. This will cause problems in due time. The human resource affairs are very impressive but there is still room for improvement, especially on the issue of suspensions.

The Department has been allocated R750m more this year, and everyone has to pull together to ensure it gets spent properly. It is also pleasing to note that the Department's executive committee is ensuring better co-ordination between the various units. This was a real cause of concern during 2002, and it is improving.

The challenge now is to translate these policy decisions downwards throughout the Department and the justice system. This has to be properly communicated. The Department has to be the purveyor of this information, because this is not currently getting to the people. The information that is filtered down and sanitised by the magistrates has to be corrected. The Department should also publicise the good work and its achievements in the media, perhaps via a monthly interview, so that the public can see the successes. This is a big step that has to be taken this year.

The meeting was adjourned.

Appendix 1: Mveledziso Project, Guardian's Fund and Appointment of Liquidators progress report

Attached is a service delivery report presented to the Justice Board, which highlights achievements in the Masters Offices. Besides information contained in the service delivery report, there are 3 projects which need to be highlighted:

MVELEDZISO PROJECT
MODERNISATION OF THE GUARDIANS FUND
THE APPOINTMENT OF LIQUIDATORS


MVELEDZISO PROJECT
This project addresses the consequences of the Moseneke Judgement where the Constitutional Court decided that the disparity in the supervision of the administration of deceased estates that existed between Intestate Black Estates and the Intestate Estates of other race groups is discriminatory and that the distinction is an affront to human dignity.

Rectifying the situation is no easy task since there is at present only ten (10) Masters' Offices in the country, and to determine that all estates should henceforth be reported at one of the Masters' Offices would defeat the principle of decentralized services to the public.

To maintain the current decentralised services available to the public at Magistrates Offices with regard to the reporting of estates, the Administration of Estates Act, 1965 has been amended to insert a section 2A.

In terms of this section the Minister may designate places within the area of jurisdiction of a Master as service points, where the powers are exercised and the duties are performed on behalf of the Master.

SERVICE POINTS
To this end the Masters' Business Unit decided to designate all Magistrates Offices as service points, and to designate at least one post per Magistrate's Office to perform the delegated functions under the Administration of Estates Act. A milestone for the Business Unit, Masters has been the creation of service points at Magistrates Offices, which has made the services of the Master more accessible to the public.

Officials attached to Court Services have been designated to act as agents acting on behalf of the Master: The Masters' Business Unit as well as Court Services: Business Unit are on the verge of signing a service level agreement in this regard.

The power to appoint a Masters' Representative is in terms of section 18(3) of the Administration of Estates Act 66 of 1965.

The National Office of the Business Unit negotiated with the Magistrates Commission who undertook to act as advisors to the designated officials during this period of transition.

Most 18(3) appointments, i.e. where value of estates is R50, 000 or less irrespective of race are dealt with at service points.

HOW TO MANUAL
To facilitate a uniform process the Masters' Business Unit decided to compile a Policy and Procedure Manual that should be followed at every service point throughout the country as from 05 December 2002. Where situations arose that are not provided for in the Manual, the designated official will contact the Masters Office under whose area of jurisdiction he or she resorts for assistance.

WORKLOAD
The feedback from Magistrates Offices and the respective Masters' Offices indicate that Nationally files have increased by since the implementation of the Moseneke judgement.

Due to an increased workload and vacancies, which are still vacant, the Business Unit has engaged temporary units until the posts have been filled.

TRAINING
Decentralized courses to train Magistrates Offices personnel as well as our personnel on the implementation of the Moseneke decision have been ongoing since January 2003.
The first course was conducted in Mmabatho, then Polokwane. Other courses were conducted in Justice College.

However in order to successfully implement the Moseneke Judgement countrywide the Master must train 500 new employees and the total costs for such training which entail course fees, books, travel, accommodation etc. will be approximately R2, 000,000,00 (R2million)


CONCLUSION
The success of any project is measured by whether it delivered the desired product in time and on budget. Based on these criteria the Moseneke project was a success.

NORM SUCCESS INDICATOR:

Budget The budget for this stage of the
Project is R 28 million
while the Business Unit spent
R


On time The Project was implemented
On 05 December 2002.

PRODUCT
The system of supervision of the administration of estates that is:

Not discriminatory. The supervision of all deceased
estates administered in terms
of the common law are now
treated exactly the same,
regardless of the race of the
deceased.

Accessible Before the project the Master
had ten service delivery points
across the country, now the
Master has the ten Masters'
Offices and has a service
point at each Magistrate's
Office (428), giving the Masters'
Business Unit 438 points of
access across the country.

Inexpensive Since existing structures were
used, the running costs of the
Department of Justice were not
increased. No additional posts
were created to deal with the
matter.

Efficient No complaints from the public
[Much less than anticipated].
Positive reports from
Assessors.


ACCOMMODATION

PRETORIA OFFICE: -

Accommodation for files which were previously stored in the passages has been secured in the basement of the same building.



UMTATA OFFICE
:-

The entire Umtata Masters' Office has moved to a new building. Personnel are now adequately accommodated.




PIETERMARITZBURG OFFICE
: -

Has found additional accommodation across the road and are occupying 1 floor of that building. However the workload has increased by 50% and this has even necessitated the Master to look for a much bigger building in the city to accommodate everyone in the Masters Office. The Department of Public Works is currently looking for alternative accommodation.

THOHOYANDOU OFFICE:-

The Master has now been allocated his own accommodation in that office
which suits his needs at the moment.

MMABATHO OFFICE:-

Currently the available office space cannot adequately accommodate the
entire staff as well as all the files and the Department of Public Works,
Mmabatho is looking for alternative accommodation.

THE APPOINTMENT OF LIQUIDATORS

a) INTRODUCTION: -

The Department of Justice and Constitutional Development aims to correct the imbalances that exist with the appointment of liquidators and trustees, so as to actively advance / empower previously disadvantaged people in line with the Government's policy in this regard.

To this end a discussion document on the development of the appointment of liquidators has been drafted and workshopped. The final document will be written and made available to all the Masters.

b) GUIDELINES OBJECTIVES:-
The objectives of the Guidelines are as follows:

To create a uniform procedure in all the Masters Offices for the appointment of liquidators and trustees and to promote consistency, fairness and transparency.
To make the industry accessible to the previously disadvantaged people, and
To promote the image and confidence of insolvency practitioners and the Masters Division.

The guidelines shall be used as the foundation for the movement to ensure consistency, fairness, transparency and the empowerment of previously disadvantaged people by advancing their appointment as liquidators and trustees.

MASTERS ROLE IN PROMOTING AFFIRMATIVE ACTION
In order to assist Masters of the High Court to exercise their discretion properly and to implement the Government's policy of economic empowerment of the previously disadvantaged individuals, and in order to be consistent, fair and transparent to all creditors the Master must for instance consider the following guidelines:

When exercising their discretion to appoint more than two liquidators, the Master of the High Court must exercise such discretion in favour of a person from the previously disadvantaged community.
The Master must use a roster system when making discretionary appointment in order to make sure that every person who is entitled to preferential treatment is given a chance.
When exercising his / her discretion in favour of people from previously disadvantaged communities, the Master of the High Court will take into account the qualifications, experience and or any other expertise which might be relevant.

The Master of the High Court must keep a record of the following.
Name and number of all insolvent estates.
Names of liquidators appointed.
Date of appointment
Amounts of security
Whether appointee is from a designated group (i.e. previously disadvantage)

MONOTORING MECHANISM
A monitoring mechanism will be developed and put into place in all the Masters Offices in order to ensure that the Master of the High Court implements the guidelines and the Government's economic empowerment policy.



Appendix 2: Guardians Fund Report

A. GENERAL
The Business Unit: Master of the High Court is currently undergoing radical changes to transform the unit in a manner that aligns the objectives of the unit to those of the Department.

Some of these changes which are intended to bring about improved service delivery include but not limited to the following:

1. THE GUARDIAN'S FUND
The Guardian's Fund was established in terms of the Administration of Estates Act (Act No 66 of 1965) to look after the financial interests of any minor, lunatic (mentally challenged), unborn heir or any person having an interest therein of any usufructuary, fiduciary or fideicommissary nature.

In order to perform this function in an manner that is Efficient and effective, the Business Unit supported by its business partners embarked on the following projects:

1.1 Conversion to Effective (Computerised) Systems
The programme: Master's Office Administration System (MOAS) which entails the computerisation of the Master's Offices throughout the country includes the Guardian's Fund, Master's Administration System for Estates, Trusts and Insolvencies (MASETI), as well as the Website, among others.

It is important to note that the various computerised systems being implemented are designed in such a way that they complement each other to bring about a revolution in information management that is geared to service delivery in the Master's Office industry. At present, phase one of three is near completion.

It is encouraging to report that much progress has been made in the following areas:

1.1.1 Pilot site - (Bloemfontein Office)
Bloemfontein Office was selected as the pilot site and is currently being prepared for piloting. The piloting is scheduled to take place in July 2003. It is important to note that the data capturers who captured data at the Pretoria Office are also involved with "data cleaning" at the pilot site to cause, among other things the standardization of data (operations) mentioned under item 1.1.3 below.

1.1.2 Data integrity
All data on the cards at the Pretoria Office has been capture on the take-on system. Many thanks go to the Masters and staff especially in the Guardian's Fund who have shown great enthusiasm and dedicated towards this process.

Standardization of operations in the Guradian's Fund
All Master's Offices are thanked for their support in an effort to standardize the Guardian's Fund operations as this will not only encourage uniformity within the Business Unit, but will also enhance financial reporting as a process.

1.1.4 The appointment of Super/ Chief users
A number of super and/ or chief users have now been appointed for each Master's office.

1.2 Staffing
Any system in place needs to be complemented by competent , motivated and above all loyal staff. This combination is likely to give rise to a high degree of data and information integrity.

The Inter-Departmental Task Team (IDTT) recently approved the filling of a number of vacant posts within the current establishment of the Business Unit: Master of the High Court.

1.3 Issues previously raised by the Office of the Auditor-General and SCOPA
1.3.1 Reconciliation of the PMG Accounts
In terms of an instruction from National Treasury dated 3rd July 1998, the PMG account of the South African Reserve Bank was phased out on 31st January 1999. This resulted in separate Current Accounts being opened with Commercial Banks with effect from 1st February 1999.

The Transvaal and Eastern Cape Funds however had outstanding balances in their PMG accounts at the date of transfer - financial year 2000/01 R3 982 416, and R2 268 respectively whilst 1999/00 - R4 021 362 and R11 644 respectively.

Progress to-date
Work-in-progress. A team was recently established and is currently reconciling these accounts.

1.3.2 Rationalisation/ Centralization of the Guardians Fund

The Rationalization of the Administration of Estates Act. This is in respect of the Administration of the Estate Laws Interim Rationalization Bill, 2001, which was passed by Parliament on 28th June 2001 to make the principal Act applicable through out South Africa, by extending the operation of the Act to the former TBVC states and by repealing the corresponding laws that were applicable at the time.

1.3.2.1 Coastal Areas
The Task Team responsible for the rationalization has just completed their tasks for coastal areas (Eastern Cape) and have identified shortages in the fund amounting to R9 460 674 as follows:


Office

Shortage

Capital

Interest

Total

Umtata

R 2 925 849

R 2 988 449

R 5 914 298

Bisho

R 1 810 764

R 1 735 612

R 3 546 376

TOTAL

R 4 736 613

R 4 724 061

R 9 460 674


The Grahamstown Office, where the regional fund is centralized, is awaiting a decision from Management at National Office to give direction regarding the deficit (shortages). This deficit is a constitutional matter and the DOJ&CD should make good this account as it would be unconstitutional by the Government to treat minors in the former TBVC states in a manner that prejudices these minors in comparison to their former RSA counterparts.

This is a very serious and urgent matter as the Grahamstown Office is undated with calls to pay-out moneys that have become claimable but cannot do so due to the uncertainty regarding the source of funding to off-set the deficit.

1.3.2.2 Inland Areas
The fund is in the process of being centralized at the Pretoria Office. The Task Team is currently dealing with the matters relating to the Mafikeng (Mmabatho) Office as well as Thohoyandou Office.

The capacity constraints facing the Business unit and the complexity of the matters of the former TBVC states are hampering progress.


1.3.3 Reconciliation of funds invested with the PIC
During the 2000/01 financial year the PIC confirmed the 2 investments with the PIC namely: the Guardians Fund Main Account => balance R837 199 (1999/00: R748 400) and the Guardians Fund Reserve Fund => balance R12 579 828 (1999/00: R9 321 161). These amounts had not been accounted for in the books of the Business unit: Master of the High Court.


Progress to-date
Meetings to resolve this matter are currently taking place between the Master's Business Unit , the Office of the CFO and the PIC as an on-going process.

1.3.4 SARS Account

Payments to the South African Revenue Services (SARS)
In terms of section 92 of the Administration of Estates Act, 1965, those moneys in the fund that have remained unclaimed by the persons entitled thereto, for a period of thirty (30) years from the date that such funds became legally claimable must be forfeited to the state and paid over to the SARS.


In addition to these moneys, there are other moneys such as commission and non-commission moneys relating, for instance, to liquidations etc collected on behalf of the state which are payable to the SARS.

Basis of qualification: Due to the ineffective accounting (manual) system in place, it was not possible to adequately identify all moneys payable to SARS.

Progress to-date
Work-in-progress. There are on-going discussions between the Business Unit: Master of the High Court and SARS. It was recently agreed that the process be postponed until the computerization of the Guardian's Fund has reached an advanced level which will provide an effective system of identify all such moneys payable to SARS.


GENERAL REVIEW OF THE STATE OF FINANCIAL AFFAIRS

Budget Analysis - 2003/04

ALLOCATION

AMOUNT

1

MD: Masters

808,000

2

Kimbseley

2,019,000

3

Bloemfontein

4,112,000

4

Pietermaritzburg

9,428,000

5

Mmabatho

2,283,000

6

Grahamstown

6,178,000

7

Bisho

750,000

8

Umtata

968,000

9

Pretoria

24,937,000

10

Cape Town

12,286,000

11

Administration - Nat Office

4,103,000

12

Durban

948,000

13

Port Elizabeth

948,000

14

Thohoyandou

1,606,000

15

Johannesburg

1,918,000

16

Expansion of establishments

33,025,000

TOTAL

106,317,000


Estimated value of the Guardian's Fund



Office Name

Financial Year

Percentage
Change (^)


Legend

2002

2003

Bloemfontein

147 424 571

179 880 931

22 %

Cape Town

173 640 201

201 827 956

16 %

Kimberley

37 154 082

40 858 075

10 %

Grahamstown

106 444 649

190 013 113

79 %

Pretoria

528 669 689

650 000 000

23 %

Mafikeng

-

150 000 000

100 %

Pietermaritzburg

452 917 945

550 000 000

21 %

Total

1 446 251 137

1 962 580 075

36 %

 



Legend

= The office's fund was balanced as at 31 march 2003.

= The balancing of the office's fund as at 31 March 2003
still in progress (the fig. is an estimate).


The fund at the 3 office which are still balancing is conservatively estimated as follows:


Office

Estimated Fund
As at 31 Mar 2003

Pretoria

650 000 000

Pietermaritzburg

550 000 000

Mafikeng

150 000 000

Total estimate

1 350 000 000


Based on the above estimate, the Guardian's Fund is in the region of R2bn at at 31 March 2003.

It is estimated that the Pretoria Office will balance their book during the second week of June 2003, whilst Pietermaritzburg is likely to balance by 10 July 2003.

The balancing of the Mafikeng books is also taking place in Pretoria where the Guardian's fund is centralised.

Conclusion:

I am excited about the positive changes taking place in the Guardian's Fund. The filling of vacant posts and the computerisation of the Guardian's Fund are key area geared for improved service delivery to millions of our people.

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