Department of Justice and Constitutional Development 2018/19 Annual Performance Plan; with Minister and Deputy Ministers

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Justice and Correctional Services

18 April 2018
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development presented its 2018/19 Annual Performance Plan (APP) to the Committee, accompanied by the Minister and Deputy Minister. Minister Masutha updated the Committee on the challenges faced by the Department where overcrowding of prisons and resource constraints were pointedly raised. The Committee was also updated on the status of correctional facilities and challenges in constructing the Mpumalanga Court.

Concerns were raised by Members on the frequency of prison escapes which called for action from the Department.  Members highlighted the importance of those in prisoners making goods and providing services and in so doing creating self-sustenance given that the Department was facing challenges of infrastructure and financing. Members were keen to know when construction would be complete on the Mpumalanga court, while questions on the use of African languages in court was raised, release of ex political prisoners, legal advice to land claimants, implementation of the Legal Practice Council, conditions of the St Albans prison and filling of vacancies. Frivolous expenditure on numerous court cases of Former President Zuma were also flagged by members. Separation and lawfare between the Public Protector’s office and the Department was emphasised.

In its presentation, the Department made note of the numerous budgetary cuts it faced over the past years amounting to R4.8 billion as a result of cost containment measures. Cuts had serious implications on the Department’s programmes which were seemingly constrained. Among several other measures to improve efficiency, the Department established a human resource committee, a budget and operations review committee and an integrated planning committee to manage compensation, vacancies as well as reduce costs.

Members raised concerns over the delays in payment of suppliers and irregular expenditure relating to procurement. An update on the Department’s seven point plan, organogram, integrated justice strategy, Information Regulator, the Paralegal Draft Bill, policies on human trafficking and the backlog of court cases were also raised by Members.

Meeting report

Opening Remarks by Minister
Adv Michael Masutha, Minister of Justice and Correctional Services, began by acknowledging the struggle of clean audits and the effectiveness and efficiency of service delivery, which were important in placing the end user at the centre of the Department’s every effort. Resource constraints were among the Department’s greatest challenges while challenges of infrastructure required the Department to build new courts, expand existing ones and rehabilitate its correctional units. Delays in delivering infrastructure were however attributed to the Department of Public Works which was responsible for handling the Department’s infrastructure. There also existed challenges of procurement where responsibility lied with the accountability of politicians because of the high number of procurement problems at the centre of court proceedings. Procurement challenges were at the centre of modernising the Department’s system, which would enhance reliability, efficiency and accessibility to electronic services from judges and lawyers.

On the status of correctional facilities, challenges of overcrowding were the Department’s biggest problem as correctional facilities were 37% in excess of their capacity.120 000 inmates were serving their sentence in the 243 centres while an additional 46 000 on remand were awaiting trial. The Department had no control over the fluctuation in numbers of people in prison because it depended on the rate of crime. The 150% overcrowding policy in Pollsmoor, arrived at by the Saldana judgement, could not be achieved because of an increase in crime in the Western Cape. It was also not easy to transfer prisoners to other correctional facilities, because prisoners were sentenced in the area where the crime was committed. Solving this problem required changes in policy that favoured youth employment and education for black South Africans who reported the highest incidences of crime. The lives lost at St Albans, after a physical incident, was due to inadequate staff, protocols not being observed and compromised security infrastructure. Prison escapes were also due to lack of capacity and other lapses in the violation of security infrastructure, with reports of collusion with security officials. This was similar to the current escape of female inmates where allegations of sexual exploitation were made.

Challenges in constructing the Mpumalanga Court were caused by delays in the construction of an access road. Engagements had however been made with the municipality and the Department of Transport and Public Works to address the issue of the access road. On matters relating to security, it was the responsibility of the Department of Justice to ensure the system was responsive, efficient, and swift but challenges in security infrastructure contributed to the recent escapes in Pollsmoor and Johannesburg. 15 new security infrastructure projects were implemented but contractual disputes weakened implementation of such infrastructure. There were indeed challenges in the interface between Justice, Correctional Services and Public Works in relation to maintenance of infrastructure, while Legal Aid faced significant challenges in staffing that could affect functionality of courts.

Training and behavioural change programmes were implemented to ensure rehabilitation of inmates but challenges in the human resource environment, in terms of social workers and psychiatrists, was slowing down this process. The Department was also going to roll out the re-introduction of inmate labour for basic maintenance of infrastructure whilst also providing skills to inmates. In celebrating 100 years of Madiba, a showcase of his facial portrait that could be viewed topographically from a helicopter would be revealed to demonstrate transfer of skills to inmates in correctional centres.

Mr G Skosana (ANC) asked about prison escapes partly caused by security gaps due to inadequate staff - what was the Department doing to address this matter vis-a-vis financial constraints? What was the status of vacant positions at senior level nationally in relation to correctional services, and was there a plan to deal with these critical vacant positions? What process was followed to appoint the new commission? In the past four years, how many ex political prisoners were released? What was the backlog and plan going forward for such prisoners?

Mr L Mpumlwana (ANC) was concerned about the sensitivity of human resources in correctional services that could not be sacrificed. It was noted that correctional services had a big ‘head’ more than it had people on the ground where there was a greater need. Prisoners could make goods and services for the public to generate finances that would assist the Department in becoming self-sufficient while also addressing the problem of financial constraints. Was it possible for the Department to develop its own in-house labour from prisoners instead of waiting for Public Works to fix infrastructure? What was Treasury’s response to the Department of Justice, Correctional Services and Legal Aid on the reduction of funds?

Ms G Breytenbach (DA) raised concerns over the waste of taxpayers’ money for the cases of former President Zuma where R2 240 000 was spent. How did the Department pay for the cost of frivolous court action of the Former President against the National Prosecuting Authority (NPA)? Who did the quality control over what litigation would be approved for funding? Who also approved the spending of R3.2 million on questioning the powers of the Public Protector after the Nkandla Report and the R970 000 spent by the Information Regulator? What were the delays in finalising an establishment structure and was there a project plan to ensure these issues were addressed? R1.2 billion was spent on the Mpumalanga High Court for a project that had repeatedly been extended - what was the current situation and how was the lack of an access road going to be resolved? Had the Minister consulted with the Chief Justice on the pilot project of using indigenous languages in court? What was the status of this project? On the issue of land reform, what had the Department done in providing legal advice and representation for land claimants? Had the target to formalise the integrated criminal justice strategy by 31 March 2018 been met, and if not why not and what was the current status? Based on the previous remarks by the Deputy Minister of not having a systematic way of collecting and analysing data for trafficking and smuggling of minors, had the Minister approved a national policy framework to implement this Act and what was the current status of the Act? What was the progress on the implementation of the Legal Practice Council? The Committee visited the St Albans prison last year and found it to be an abomination because no human being deserved to be held in such conditions. What was done about the conditions of the prison and was there a plan to rectify this situation?

Mr W Horn (DA) sought clarity on issues surrounding the Integrated Criminal Justice system in relation to the seven point plan adopted by Cabinet. The Minister explained challenges facing the information aspect which was only one part of the plan - what was the progress on the other six? Was the Department taking a step back from the seven point plan, especially when billions was already spent? On the ICT aspect of the plan, how could the Department justify the limited progress observed amidst accelerated advancement in technology? Should South Africans simply accept that cyber criminals will take advantage of the situation because of the lack of progress from government? Limited progress in implementation of the Information Regulator created a problem for the rights of South Africans that the Regulator was supposed to protect. The report on the assessment of the impact of decisions on the Constitutional Court, that was released in November last year, cost in excess of R13 million. Now that the report was released, what was the way forward? Why had government policy on the administration court model of SA not been finalised in February 2018 as envisaged by the 2017/18 APP?

Ms M Mothapo (ANC) emphasised the need for the Department to do more than just warn the public on fraudulent people that went round seeking money as Special Investigating Unit representatives. In celebrating 100 years of Madiba, it would be better to take the issue of languages seriously by including them on the LLB curriculum. Had the Department consulted universities on how languages would be incorporated in the curriculum? Could the Department provide a full report on the use of indigenous languages in court proceedings? How far was the Department with the Paralegal Draft Bill in terms of time frames, terms of reference, implementation and completion thereof? What progress had the Committee made on the Truth Reconciliation Commission (TRC) recommendations on the repatriation of the mortal remains of MK soldiers? How far were the reports on St Albans prison after the Committee’s visit to the facility? Was consideration made to the facilities of the officers there? Given that the Mpumalanga court was 95% complete, what was its current progress, considering it should be complete by June 2018? On overcrowding, how far was the Department in implementation of the Saldana judgement given that correctional centres were 37% in excess of capacity? It was commendable that officers of the South African Police Services re-arrested criminals that escaped from prisons in Gauteng and KwaZulu-Natal. What had the Department done to prevent prison escapes that frequently occurred and how safe were officials and inmates? Could the Department update the Committee on the pending case of the IIMS (Inmate Information Management System) project and halfway house in Gauteng that was supposed to be named after the late councilor?   

Mr John Jeffery, Deputy Minister of Justice, told members that an Information Regulator was appointed. Draft regulations were published and workshops were conducted but delays in implementation were caused by disagreements between the Regulator and National Treasury on what category of the Public Finance Management Act (PMFA) the Regulator should be listed. Issues with the Department of Public Service and Administration (DPSA) on the structure of the Regulator also caused delays. The National Policy on trafficking of persons was not yet finalised but a draft was available. Problems arose in the collection of data as different departments collected different types of data. Workshops had however been conducted to rectify the problem and enabling the draft to soon be finalised. Budget cuts and vacancies also affected the Department’s performance as witnessed by delays in finalisation of the Paralegal Bill due to limited capacity. The Paralegal Bill was also funded by the Legal Practice Council, which was not yet finalized thereby causing delays in implementation. On matters relating to Legal Aid, the entity would provide more information when it appeared before the Committee. The Legal Practice Council should be up and running by 1 November 2018. By the end of March 2018, the national register for sex offenders had 28 440 cases. The rationalisation of magisterial districts had made progress as the Northern Cape came into effect on 1 April 2018, while maps for rationalisation of the Eastern Cape and KwaZulu-Natal were published last month with a request to comment by 15 May 2018. Change in jurisdiction from Gauteng to the North West in relation to the Tokwe area, Lekwa and Maltosana took effect on 18 April 2018.

Mr Thabang Makwetla, Deputy Minister, Correctional Services, said that the problem of overcrowding remained the Department’s biggest challenge, amidst the shortage of personnel in its correctional centres. Progress was made towards implementation of Judge Saldana’s order with regard to the release of monthly reports from the Department. In April 2017, Pollsmoor prison had also achieved the target of being below the 150% level as a significant number of inmates were moved from the Western Cape to Kimberley to reduce overcrowding. Complaints on the irregular spacing of meals for inmates due to shortages of staff were addressed. Offenders were also allocated time to exercise which they previously did not have while health hazards in relation to cleanliness were addressed. The availability of reading material remained a challenge as access to libraries and information was not addressed - the Deputy Minister was not sure where the Department stood on ensuring overcrowding remained below 150%, because of fluctuation in numbers. On the status of St Albans, where violence broke out, the poor relationship between officers and offenders stemmed from the lack of responsiveness of the area commissioner, but slight improvements had been witnessed. This was facilitated by the Department’s efforts to mobilise stakeholders within the community. Investigations into the current prison escapes were ongoing but preliminary investigations suggested that the human factor posed a challenge to security as it would not have been possible for inmates to escape without assistance of officers. Other than irregularity in the procurement of the IIMS system, the IIMS programme was faced with glitches in the rollout phase, which raised concerns about implementation of the programme within stipulated timelines

Minister Masutha, highlighted the importance of the Traditional Courts Bill in alternative dispute resolution mechanisms that were cheaper and accessible to the people. He reiterated that the escapes in prison were largely related to ill-discipline more than as a result of staff shortages. The Department did however call for consequence management. The Department had over 2 000 vacancies with 33 at Senior Management level amidst concerns of the Department’s recruitment of staff at lower levels. A process was established to monitor the process of recruitment which had squashed problems of nepotism, favouritism and corruption. The issue of political prisoners was complex because the granting of amnesty was based on meeting TRC standards. To this effect, 149 prisoners, of 2 000 considered to be deserving, could not be considered for pardon because a stalemate existed between the Department and Non-governmental Organisations (NGOs). Underlying issues that led to the court case between NGOs and the Department had however been looked into to explore different avenues that could be followed. Pardon was also not granted on the basis of whether one was a political prisoner or not but rather on the time served in prison, where those who had served 20 years were given priority. This created a backlog for prisoners that served 13 years and 6 months. On concerns of the organisation being top heavy, the structure of the Department would be reviewed after alignment of business processes, while the introduction of CCTV surveillance within facilities was going to be implemented to enhance security. Selling of produce for purposes of self-sufficiency was linked to capacity and resources. The Chief Justice made it clear that management of court proceedings was part of the judicial realm and questions on this matter had to be directed to him.

The Chairperson expressed concern on lawfare between the Public Protector’s office and the Department. The number of cases taken on review suggested there was no understanding of how the Pubic Protector’s office should relate to government. A review of the Act should therefore be attended to as soon as possible. The Committee was also aware of communities that took provincial governments to court for matters that could have been resolved politically but politicians sought services of the Office of the Public Protector to defend themselves against communities that did not have funding. The fund to support land claimants in rural areas was given to a law firm in Johannesburg which made rural lawyers feel left out and contributed to problems in the Land Claims Court. Why were judges not appointed to the Land Claims Court? It seemed as if the Court was marginalised. The Department’s concerns on funding could be addressed by the Foundation for Human Rights. Was the rationalising of boundaries participatory?

Deputy Minister Jeffery explained that the Public Protector being taken on review was a consequence of the Constitutional Court decision that the Public Protector’s remedial action was binding. The fund for land claims was from the Department of Rural Development and Land Reform. The Foundation for Human Rights was set up to take responsibility for European Union (EU) funds. It was not South African taxpayers’ money but funding from the EU. There was extensive consultation on rationaliaation of boundaries.

Minister Masutha told Members that budgetary cuts would be reviewed by Treasury in September 2018 during the adjustment of appropriations. On frivolous litigation costs of the former President, spending was the prerogative of the State Attorney and the Minister had no power to review decisions of the State according to the State Attorney’s Act.

The Chairperson acknowledged that while the Department of Rural Development and Land Reform was responsible for providing funds to land claimants but the State Attorney’s Office was subject to oversight from the Department. This was important in avoiding a situation where officials were defended by government for work they failed to do for communities.

Minister Masutha was in agreement with the Chairperson and confirmed the Department was looking to expand the mandate of legal aid consultation within the Department Rural Development and Land Reform to provide free legal services to communities on land claims. The Department of Justice would ensure communities were provided with legal resources by the state, to assert their right of restoration to the land they deserved.

Strategic Plan 2017/20 and 2018/19 Annual Performance Plan for the DOJ&CD
Ms Louraine Rossouw, Chief Financial Officer, summarised the Department’s presentation by highlighting the high amount of budgetary cuts over the past years which amounted to R4.8 billion. Further cuts would have serious implications on the Department’s programmes which were already faced by shortfalls in compensation amounting to R144 million for the NPA, R4 million for Legal Aid and R34 million for the Public Protector.

Other challenges facing the Department included infrastructure and accommodation costs, challenges in security infrastructure and cost of compliance to legislation. The Department was forced to spend on activities not related to its core function such as costs on staff education where officials were expected to attend the National School of Government. Challenges faced by business units related to responsiveness of the regulatory environment which was quite slow, due to bureaucratic procedures. More of the Department’s funds were also being earmarked, which reduced the amount of control it had on its budget.

Other than holding meetings with the Director General of National Treasury to address the Department’s financial constraints, other interventions included establishment of a human resource committee to manage compensation and critical positions, establishment of a budget and operations review committee to review business processes to reduce costs and establishment of an integrated planning committee to align departments. As part of these operations the Department reprioritised the R100 million shortfall in court operations to fund critical vacancies and to absorb the additional cut of R200 million in court services, it cut its regional budget allocation to match that of the previous financial year. It was however important to note that the 2018/19 budget had increased by 2% while inflation rates and salary increases were expected to increase by 6%.

Compensation costs in 2018/19 would increase more than the remunerated expenditure ceilings while accommodation costs were expected to be higher than the budgeted costs. Challenges in cost were also related to maintenance of infrastructure and renewal and investment in ICT. It was however important to note that cost containment measures had been in place from 2013.

Ms Mothapo asked the Department to explain why service providers were not paid within the stipulated 30 days. She also questioned why investigations on irregular expenditure relating to procurement and contract management in 2017/18 were not concluded. She requested the Department explain the instability in human resource caused by a lack of permanent structure for the supply chain and asset management unit.

Ms Breytenbach asked if the problem of High Court judges’ not receiving publications was resolved. The lack of access to publications had an impact on the whole criminal justice system.

Mr Horn asked for an update on the Department’s cost of suspension salary over the last year in relation to the Public Service Commission report of 2015, where the Department was among the top three for having long periods of suspension of its officials. Had the Department sorted out vacancies in procurement and supply chain which were critical in preventing corruption and maladministration? The organogram of the Department must be reassessed to identify positions of critical concern. Could the Department give an update of where it was with the seven point plan? It was critical for the Department to learn from previous mistakes on infrastructure projects to prevent them from recurring. How was the Department preventing a repeat of its mistakes in procurement for the future? It was good that consultations on transformation of state legal services started but a Solicitor General position approved by the Department did not yield the desired result because its salary bounds did not draw interest. A redesign of the Department’s organogram would probably solve the Department’s human resource challenges – he requested the Department shed light on consultations held in this regard.

Mr Skosana welcomed the Department’s pro-activeness in cost containment. How was the Department going to mitigate threats on the cutting of costs?

Mr Mpumlwana asked about the backlog of cases in court. Was it a question of lack of funds or magistrates? What was the progress of using African languages in court as constitutionally allowed? If Afrikaans was implemented in courts in the Western Cape, why had the use of African languages not been implemented?

Deputy Minister Jeffery confirmed that a lot of work was put into the seven point plan and a separate presentation would be organised to demonstrate how funds were spent. On the transformation of state legal services, draft legislation on setting up state legal services was in its advanced stages but had yet to be approved by Cabinet. The Department was also in the process of determining which government departments used attorneys, other than the State Attorney, and at what cost. Problems of infrastructure projects arising from Public Works were being addressed. On the question of languages in court, courts allowed anyone to testify in the language they prefered but English was the official language of the court. For proceedings held in other languages, cost of translation to English was pretty exorbitant.

Mr JB Skosana, DOJCD DDG Court Services, responded to the question of publications for the judiciary which was attributed to changes in the specification model of publications that were not met by the service provider and were not foreseen during awarding of the tender. Sensitivity of the matter was not taken lightly and was addressed with Treasury to find an alternative solution for a service provider that would meet the specifications of the new requirements of the court. The Mpumalanga High Court had currently achieved a 96% completion rate but had problems with the access road donated. The construction of an access road became complicated after construction began but a solution was being looked into because the project could not be abandoned. The Department had since learned donations must be understood before projects could be undertaken.

Ms Rossouw said that the delay in payment of suppliers was caused by a lack of invoices, missing vendor details, challenges in integration of systems between the Department and National Treasury during system upgrades and disputes. Irregular expenditure was caused by changes in the auditing approach by the Auditor General that required the Department to prove that vendors on the data base were not government officials. Problems arose with pensioners and interns who appeared on the system as service providers but were no longer government officials. Data analytics went back five years, as opposed to a year, when it audited the Department’s transactions which led to increases in expenditure. Expenditure on security was in its last stages of investigation. The Department requested to respond to human resource issues in writing but explained that it had opted to conduct transfers rather than suspensions, which resulted in a significant decrease in suspension salaries over the past year. On the mitigation of risks, risk assessments were conducted on activities where funds were going to be spent to determine the impact of spending. This also helped the Department highlight areas of concern to National Treasury.  

Mr Mpumlwana repeated his question on the progress of African languages being used in court which seemed not to have been understood by the Deputy Minister - were African languages being used in court and if not, why not? If interpretations were being done in Afrikaans, why was it difficult to do the same for African languages? The backlog of those in prison were inmates awaiting trial not progress of infrastructure - what was being done to solve the problem of backlogs and could the Committee get written report on the same?

The Chairperson asked about the committee of universities that was commissioned to deal with use of African languages in court. Could the Deputy Minister assist in enlightening the Committee on the progress of this report which took long to be produced?

Deputy Minister Jeffery reiterated that the Chief Justice and heads of court made a determination that English was the official language of the court. Any courts conducting trials in other languages had to be translated to English. Pilots in the North West region showed that high costs of translation would be incurred when other languages were used. Questions on court performance should be addressed to the Chief Justice.

The Chairperson disagreed with the Deputy Minister and asked the Department to engage with the Chief Justice to address the problem of language use.

Mr Mpumlwana wondered what was expensive to interpret into the records because the interpreter was always there. Why were proceedings not done in local language as was the case with the Afrikaans language?
The Chairperson explained that the Committee had a role to account for the people in the court by helping them understand court proceedings. In this regard, he asked the Department to intercede with the Judiciary or find another forum to deal with the matter.

The meeting was adjourned

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