Minister for Justice and Correctional Services policy overview

Meeting report

The meeting had started late because of a miscommunication regarding the time of starting between the Department and the Committee.

Ministerial remarks
Advocate Michael Masutha tendered the apologies of his two deputies as they were addressing other Committees of Parliament. The justice value chain had committed itself to making justice fair, accessible, affordable and effective. Without addressing the transformation imperative, the DoJ would not be able to deliver justice to all South African citizens.

The budget for capital works in the current financial year was R819 750 000 in addition R33 611 000 had been allocated to upgrading of infrastructure whilst R31 848 000 had been allocated for maintenance. The allocations included budgets for magistrate’s courts, the Mpumalanga High Court whose progress was 96% complete. The DoJ was virtually at concluding stages for the procurement related to Durban High Court and the DoJ was engaging the Minister of Defence to release the adjacent land next to the court which would be needed for the expansion of that court precinct.

Director-Generals of DoJ and the Departments of Public Works (DPWs) were attending to delays in the completion to the access route linking the Mpumalanga High Court and the main road adjacent to the court.

Additional facilities to the Durban High Court would also be completed in the year under review. The DoJ would also complete four new magistrates’ courts at Bityi, Eastern Cape (EC), Port Shepstone, KwaZulu-Natal (KZN), Booysens, Gauteng and Plettenberg Bay, Western Cape (WC).

As at 27 December 2017, 176 magistrates had been appointed; of those 162 were generic black whilst 14 were white. 101 of the appointments were women. At May 31 2018, black judges constituted 167 out of 253 judges nationally.  That translated into 86 white judges; of whom 162 were males and 91 female judges.  The DoJ was also developing policy and legislative framework on community courts and optimal use of advice centres as additional mechanism to access to justice. The DoJ was pleased that the traditional courts bill was going through the processes of Parliament. The above-mentioned mechanisms including the court mediation services which were being piloted in 42 regional courts provided alternative forms of access to justice to also alleviate the burden on main stream courts. Mediation services also provided for the intervention of paralegals and mediators and those services would be extended to all regional courts across the country in the year under review.

The DoJ had initiated a comprehensive overhaul of the Magistrates Courts Act although amended already several times since promulgation in 1944 retained features of the apartheid era; the DoJ had tabled the Prevention and Combating of Hate Crimes and Speech Bill; the International Crimes Bill had also been introduced to Parliament in December 2017.  The envisaged new legislation would give courts the power to exercise extra territorial jurisdiction, to hear cases involving international committed beyond our national borders if the alleged perpetrator was a South African citizen or ordinarily resident in South Africa (SA). SA courts would also have jurisdiction to hear cases of crime committed against a South African or resident therefore outside of SA borders.

Improvement of public confidence in the criminal justice system and the DoJ was pursuing an integrated criminal justice strategy which would see fundamental amendments to the Criminal Procedure Act (CPA) of 1977 and other applicable laws to enhance protection of victims of crimes. Recent incidents of femicide and gender-based violence (GBV) against women and children pointed to a breakdown of the social fabric in SA society and the justice system had to act on those crimes swiftly, proportionately and decisively. The DoJ intended to review the length of minimum sentences for those particular crimes. Cabinet had passed an amendment to the CPA which would remove the prescription limit of 20 years on all other related sexual offences currently covered in section 18 of the CPA.  The DoJ would continue to operationalise sexual offences courts which were 75 in number to date and the DoJ had stepped up efforts to validate the database of the national register for sexual offenders. Simultaneously the DoJ was developing a fool proof system of reporting to eliminate inaccuracies. The DoJ believed that it would be inappropriate to bring that register into full operations with all its flaws as the risk would be violation of rights of those who possibly would have wrongly found their names in that register as that would open-up to the DoJ to all manner of liability which was undesirable. He accepted the criticism on the time it had taken for the legislation to be able clean-up the register as it had been nine years since promulgation.

The process of alignment of magisterial districts, high courts with jurisdictional boundaries with municipal and provincial boundaries was being finalised. Since the commencement of that project in 2014 the DoJ had established integrated and inclusive magisterial districts in six provinces; the roll-out to the EC, WC and KZN would be completed in the year under review.
 
Legal Aid SA (LASA) continued to receive its 16th consecutive unqualified audit opinion for the 2016/17 financial years (FY). As an example of innovation in service delivery LASA had established a social media presence on Facebook, Twitter and Instagram to communicate with the public. That success had been established on the backdrop of a budget deficit of R45.3 million in the previous FY and the deficit had been projected to rise to R92.8 million in the year under review. Minister Masutha had written to the Minister of Finance relating concerns about the shrinking of LASA’s budget which translated to LASA not being able to provide legal aid where it had a constitutional responsibility to do so. National Treasury (NA) had been steadfast that it would not be able to open the ceiling and would only consider the DoJ request when the Medium-Term Budget Policy Statement (MTBPS) had been issued. The DoJ had decided to look into its own coffers to see and to ensure that no court in SA would fail to sit because of such and other constraints. The sitting hours of courts had been a burning issue from all stakeholders in the justice sector as to why courts were not sitting. 

The National Prosecuting Authority (NPA) had obtained greater convictions at 96% in the regional courts, 91% at high courts and 80% at lower courts in the year under review. There were 179 convictions of Government officials charged with corruption or related offences involving amounts of more than R5 million.
The Asset Forfeiture Unit (AFU) had obtained freezing orders to the value of R1.85 billion relating to corruption where the amounts had ranged at more than R5 million. R242.8 million had been recorded for recoveries in terms of prevention of organised criminal acts. A significant percentage of those amounts had related to the R1.6 billion case on the McKinsey, Eskom matter where the NPA and AFU had managed to secure settlement orders to repay that amount.

During the 2017/18 FY the Special Investigation Unit (SIU) had recovered assets to the value of R33.5 million in its fight against maladministration and corruption in State institutions.  It had secured the setting aside of administrative decisions to the value of R779 million. The justice cluster was actively involved in a number of projects including the intervention in the North West (NW) and a number of Presidential proclamations had been made in relation to certain municipalities in that province; the DoJ was part of the task team set up by the President of SA on the political killings in KZN.

The Department of Correctional Services (DCS) formed part of the overall criminal justice system complementing SA’s national security system.  A fundamental objective of DCS was the rehabilitation of offenders through providing education and skills development for broader, personal and spiritual introspection. To date the DCS managed 218 fully fledged community corrections offices spread across all the nine provinces which provide services to the accused and offenders.  Those placed under community corrections were parolees, probationers and awaiting trial persons who were not to be kept in correctional facilities. At 21 March 2017, 69 271 persons had been registered under the system of community corrections. Of that number 51 785 were parolees, 16 178 were probationers and 1308 had been awaiting trial persons. Between May 2014 and June 2018, the DCS had released 25.8% life serving offenders on parole. Contrary to popular belief parole was not an automatic right because the fact that one would have served 20 years of a life sentence had no guarantee that one could get parole after having applied. Assessments had to be done on suitability based on various reports including psychosocial, risk profile and responsiveness to rehabilitation interventions. The Minister said he was being taken to court at least 20 times a week over the issue of parole in the DCS component by inmates unhappy with decisions not to grant parole or where inmates felt their applications had been delayed. Regarding the latter the DCS held a round table led by the National Council for Correctional Services (NCCS) to evaluate the parole system to determine whether the parole system was still relevant, efficient and to identify weaknesses in the system.
Since 2014 the DCS had raised the compliance level of inmates on parole or community correction from 86%- 98% meaning that DCS had realised significant reductions in non-compliance amongst those monitored on community corrections. The DCS proposed to commission a study to check how many people continued to re-offend after having left the corrections system so as to have authentic statistics and to dispel some of the myths about statistics which had no source of origin.

The continuous increase of offenders in recent years had exacerbated the challenge of overcrowding in correctional and remand detention facilities to bring them within acceptable levels. The DCS in that regard was reviewing and aligning its infrastructure plan in order to construct additional bed space, convert outmoded zinc and asbestos structures and to regain unused bed space, especially and in total 989 bed spaces would be added through the expansion of facilities in Tzaneen, Standerton, Estcourt, C-Max prison in Tshwane. Alternative funding models such as Public-Private Partnerships (PPPs) were being considered in that regard.

The challenges of austerity had put pressure on Government infrastructure for public service generally which included plans to expand capacity for both DoJ in the form of courts and DCS in the form of correctional facilities. The DoJ& CS was considering in-house capacitation as part of skills development for minor maintenance and construction projects; to that extent use of offender labour was being considered to help with some of the maintenance works. More complex engineering works of course would remain with DPW but the DoJ& CS believed that there was scope for it utilised offender labour and in the process give skills to offenders. One of the concerns that had come up had been the rate of re-absorption in to the world of work and two years ago a conference had been held to raise concerns and make suggestions about that. The Minister had requested the DoJ& CS to look at ways to reinforce and increase the rate of re-absorption into socio-economic life of former inmates. The figures had been concerning despite the skills that the DCS imparted.     
SA would launch the Nelson Mandela rules for treatment of prisoners in July 2018. The rules were a set of acknowledged minimum standards for the treatment of prisoners that the United Nations (UN) had committed themselves in December 2015.

Minister Masutha asked that he be released to join the National Assembly Committee on Justice if there were no questions needing his responses.

The Chairperson replied that although he had planned that he would allow the Committee a question and answer period after all the presentations, he would allow the Committee to engage the Minister before he could release him.

Advocate Vusi Madonsela, Director-General (DG), DoJ& CS, said that the Department’s chief of strategy would present the DoJ& CS Annual Performance Plan (APP).

Discussion
Mr G Michalakis (DA: Free State) stated the purpose of the criminal justice system of South Africa. He said the President only agreed after four years to effect an inquiry into state capture. Those that were implicated in state capture had to be brought to account, for that reason he could not understand why Mr Shaun Abrahams was still sitting next to Minister Masutha. The judgement delivered recently on the Vrede Dairy Farm project showed that the persons implicated could be found guilty at a future date which implied that NPA had dropped the ball as it had gone to court unprepared, and that had not been the first time. The public would not have enough confidence in the state and that harmed the criminal justice system in the country currently and would continue to do so in the future.  When would Government get rid of Mr Abrahams?

Currently in SA the correctional service was nothing short of a human rights crisis and he wanted to know what fundamental change the DoJ& CS had for rehabilitation because the system was failing prisoners as the purpose could not mainly be incarceration but rehabilitation.
The whole country was still puzzled that Mr Schabir Schaik was playing golf whilst being on parole and being on his death bed. Could the DoJ& CS put Mr Michalakis at ease regarding that prisoner because clearly, he had not been as sick as had been at the time of his parole being granted?

The Chairperson requested that Members be succinct and to the point. The DCS would come before the Committee on the 13 June 2018 therefore he was requesting questions related to that component of the Department be parked for that engagement. On the basis of the State Capture he believed that since a judicial commission of inquiry had been established the rules of the National Council of Provinces (NCOP) prescribed that once a matter was subject to such a process it became sub judice. It was up to Minister Masutha to decide on engaging the questions.

Ms B Engelbrecht (DA: Gauteng) noted that although the Minister had reported on additional bed spaces being in the pipeline the overcrowding at the DCS was at 50 000 people therefore she agreed with Mr Michalakis that the criminal justice system had to be reviewed because there were approximately 5000 remand date detainees, courts were clogged up, correctional facilities were overcrowded. She required an answer as to what radical solution the DoJ & CS had to solve the crisis.

Mr J Mohapi (ANC: Free State) said there had been allegations of racism reported to the South African Human Rights Commission (SAHRC) regarding two employees of the DoJ& CS which had referred to their colleagues as baboons and monkeys. Preliminary assessment had shown that there had been prima facie violation in terms of right to equality and human dignity. Regarding the integrity of the DoJ &CS what was the Minister comment in that matter?
Had the Minister of Justice consulted with the Office of the Chief Justice (OCJ) and heads of court regarding the use of indigenous languages in SA courts? If not why not: If so what had been the response?

In terms of the DoJ& CS MTBPS 2016/17 FY the Department had targeted recruiting 900 young people, 920 youth in the 2018/19 FY. If that recruitment had occurred where; had it happened? There had also been a report of non-payment of learner stipends by the DoJ& CS; what was the Minister’s comment on those allegations?

The Minister replied that pertaining to youth unemployment, the numbers and all related matters, he would request that DoJ &CS entities as they would be presenting their APPs to respond individually to concrete measures they had taken and their achievements to date regarding youth related matters. The concomitant need for fresh recruits as DoJ &CS officials progressed in their careers would always remain and against the austerity measures in place; the entities would certainly be able to elaborate on the risk of the DoJ& CS being unable to absorb the numbers the Department had originally committed itself to achieving.

The NPA and SIU heads were both present and could certainly respond to some of the issues regarding state capture and how effective the two entities had been in terms of consequence management in various areas of corruption. SA had passed an anticorruption law to deal with corruption in its entirety and where any tender had been issued irregularly in any of the entities that he was responsible for and such had been brought to his attention: such a matter was either before the SIU of before the courts. He invited the Committee to his office to check whether there was any proclamation destined for the President’s sight which would have been sitting there longer than two weeks. There could have been technical issues that delayed particular reports and had needed resolution but he encouraged anyone that had suspected corruption that was not a subject of a SIU investigation or an NPA investigation to bring those forward for prioritisation.

The DoJ was working closely in supporting Judge Zondo with kick starting the judicial inquiry on State Capture in a similar manner as the DoJ did with any presidential inquiry which was a DoJ mandate. To that extent the NPA had embarked on a project to revisit so called ‘cold cases’ as there were matters that predated democratic dispensation and before Mr Abrahams had been head of the NPA.

The DoJ &CS had challenges of overcrowding, court rolls being clogged; backlogged court proceedings and the DoJ& CS were trying to ensure to bring about efficiencies: and in that regard the CJ and heads of court were responsible through the National Efficiency Enhancement Committee (NEEC) which the Chief Justice chaired and the provincial versions of that structure as chaired by heads of court in the respective provinces. The CJ had been clear that as far as he was concerned the Minister of Justice had no business in accounting for the performance of courts as that was the CJs space as it was the judiciary space. To that extent the CJ had challenged Parliament in that regard and the Minister was encouraging the select Committee to engage the OCJ to clarify the kind of system that he had proposed of how to achieve accountability when it came to performance. To the extent that the DoJ was still responsible for the lower courts the Deputy Minister of Justice would oblige the Committee through responding to some of the issues there and to convey some of the concerns to the magistrate’s commission responsible for the magistracy in SA. The judicial Services Commission (JSC) was not only responsible for the appointment of judges but also held judges accountable for their conduct and the issue of non-performance amongst judges was a disciplinable offence hence there were a number of judges were currently before disciplinary structures of the JSC.  

In terms of Mr Schaik, the Minister had no knowledge of how the medical parole board (MPB) had been constituted and had operated; when the Minister had taken office and realised the weaknesses in the composition of the MPB he had found then he had decided in consultation with the Minister of Health to reconstitute the MPB. The problem with that previous MPB was that there had been no specialist doctors on the panel and had deferred matters that required specialist expertise. The Minister had rejected some of the findings of that MPB including the case of the departed Mr Clive Derby-Lewis and possibly that MPB had been right as the Minister had lost that case and Mr Derby-Lewis indeed passed on.  A similar occurrence had occurred with the departed former commissioner of police Mr Jacky Selebi, therefore there would remain exceptional cases. Even the Minister had been told by his cardiologist in May 2017 that with his heart operating at 18% he had been given a turnaround of two years as the chance was 50/50 that he would not make it. Any specific proposals that anyone wanted to make regarding Mr Schaik Minister Masutha would be accommodating if they were made in writing.

Regarding the alleged racism at the DoJ& CS in 2017 there had been a judge that had resigned because of racist utterances, therefore if it happened at that level amongst people who were supposed to be upholding the Constitution that obviated the depth of the scourge of the phenomenon in SA society. That prominent people perpetrated that phenomenon exhibited the true story of SA; that after two decades it could not be imagined that 300 years plus of colonial and racial society which SA emerged from would suddenly be wiped off but certainly the country had to soldier on as those issues would take time to resolve. The country had to refine its measures to deal with such matters as they appeared as there was a deep sexism problem and other –isms as well in SA which also needed to be addressed.

In terms of humane treatment of prisoners and having subscribed to Mandela rules and other national instruments; overcrowding and whether DoJ& CS would ever crack the 50 000 excesses more than 120 000 into the future: The DoJ& CS envisaged to roll out at least 18 000 additional bed spaces in the next 10 years. Overcrowding certainly seemed to be something that would remain for some time as the bulk of inmates were incarcerated for long term because of the violent and serious nature of the offences they committed. The Minister believed the solution to be decreasing the levels of serious crimes committed such as Cash-in Transit heist, gender-based violence, violence against children rearing their ugly heads again; those were societal issues that needed communities to resolve. The regional commissioner of the WC had reported to the Minister that since the Saldanha judgement there had been plus 4000 additional awaiting trial detainees in the WC alone. That upsurge in violent crimes could be attributed to the appalling socio-economic conditions that prevailed in Langa, Nyanga, Gugulethu, the Cape Flats and all the other coloured communities of Cape Town; society needed to address the underlying socio-economic drivers of crime. Until SA address poverty, youth unemployment, racially, historically based and influenced inequality and until all South Africans made it their business to change the material conditions within the country SA would continue having all its citizens at risk of serious and violent crimes. 

The Chairperson requested that the DoJ& CS to forward the youth employment statistics.


Strategic Plan 2017/20 And 2018/19 Annual Performance Plan (APP) for the DoJ& CD

Transformational Themes
Ms Lebo Mphahlele-Ntsasa, Chief Director (CD), Strategy Unit, DoJ& CS, said she would directly speak to the objectives of the DoJ& CD and she then read through the presentation.
  
Objective 1: Increased compliance with prescripts to achieve and sustain an unqualified audit opinion.
The DoJ& CD planned to revert back to its former status of unqualified audit opinion after it had received qualified audit opinions on both Vote Account and predetermined objectives for 2016/17 financial years.

The Chairperson requested the DG to circulate the DoJ& CS budget report as it had not been provided with the APP.

Ms T Wana (ANC: Eastern Cape) bemoaned the appalling conditions of the Mthatha regional court and magistrates’ courts in the towns surrounding Mthatha in the EC. What criteria did LASA use to offer legal assistance because she had been applying for assistance for the former abaThembu King Buyelekhaya Dalindyebo with no response?

She wanted to know how victims of crime were provided for in the plans of the DoJ& CS because she had heard nothing from the presentation about that.

What were the NPA’s tracking criteria of cases before it, in instances of violent crimes in rural areas?

What was the SIU protocol on crimes committed by immigrants and foreign internationals against citizens?
There seemed to be a disconnect of budget expenditure by the DoJ& CD versus the material conditions on the ground as experienced by citizens.

Advocate J Skosana, Court Services, Deputy-Director General (DDG), DoJ& CD, acknowledged the troubled state of South African courts. He said that any court the DoJ built still lacked a sustainable maintenance plan. To date courts did not have maintenance plans budgets and the DoJ had engaged the DPW on having those beyond completing of the construction of courts. DPW had been cooperative in terms of the delegations of authority and also giving tenants delegation to deal with some issues so that the DoJ could deal with some of its infrastructure issues without simply complaining to DPW about the state of buildings. The delegations allowed the DoJ to replace locks and other do-it-yourself (DIY) replacement functions. The state did have insurance for fire damage to buildings and that required allocation from the annual budget which was why when such occurrences emerged, it took many years to refurbish a burnt down structure like the Pretoria and Polokwane courts. There had been much improvement in the maintenance of new courts but renovations to old courts remained a challenge as some needed demolition and rebuilding anew. 

Ms Wana interjected that her point had been that the presentation contained nothing referring to a maintenance allocation or budget for courts. She reiterated that There seemed to be a disconnect of budget expenditure by the DoJ& CD versus the material conditions on the ground as experienced by citizens. Although she was not policing the responses but she had expected that although the Mthatha court was old, the matter had been reported to DPW and the conditions therein were quite unbearable.

The Chairperson replied that he understood was that the entire Government property portfolio was with the DPW: was that the case with courts as well? How did the DoJ integrate with DPW regarding maintenance?

Mr Mohapi added that in May 2017 the DoJ had reported to the Committee that R769 000 000 allocated for infrastructure; in October 2017 a virement had been done by the DoJ of R300 million and he required an elaboration on how those monies had been spent if the report to date was that courts were the responsibility of DPW?

Adv Skosana said the DoJ budgeted for construction and day-to-day maintenance of infrastructure. Of the responsibilities within DPW was planned maintenance as the DoJ operated within delegations because capital works were the mandate of DPW. the DoJ could only do improvements and repairs up to R100 000 as those were delegations set by DPW for all Departments of Government. Works that required more than R100 000 needed DPW approvals even if a Department had the money to do the work; additionally, there were those things that users of public infrastructure could not repair such as electrical faults, air conditioning, additional structures or expansions to buildings as well. There were monies that the DoJ paid to DPW called accommodation fees as courts were being rented to the DoJ by DPW and from those monies municipal services, maintenance and other matters which fell within the ambit of DPW were settled. That spoke to the issue of disrepair of some public buildings as the process outlined above had to be followed and the DoJ continued to write to DPW as the court repairs and maintenance had to be settled from the rental fees paid over by the DoJ. The DoJ had an itemised budget breakdown of all projects and allocations for each court across SA and would submit that written responses.

Advocate Andy Mothibi, SIU Head, replied that Ms Wana had been referring to global trends from the SIU’s presentation. The SIU reviewed global trends on corruption so that informed its strategies on what drove corruption globally and better enabled it to plan and strategise around domestic corruption.
Regarding involvement of foreign nationals in committing corruption acts, there was a framework that the SIU leveraged. If it were discovered that assets had left the country through corrupt means and could be traced there was mutual legal assistance which the SIU invoked. Furthermore, the SIU aimed to improve its recoveries as the Minister had already alluded to its track record, the only challenge was that when SIU litigated it queued with ordinary litigants which created a delay. However; SIU legislation provided for a special tribunal to deal with corruption matters and work to re-establish the tribunal at an advanced stage; and that measure the SIU hoped would improve recoveries.

The Chairperson said that although the NPA had prepared to present and since the presentation had been circulated he would limit the entity to responding to questions posed only because of the time pressures.

Advocate Shaun Abrahams, National Director of Public Prosecutions (NDPP), NPA, replied that everything that the NPA did was victim-centric as it had amongst its tools the alternative dispute mechanism where the accused and victim mediated and the matter would not go before the criminal justice system but of course, there would be compensation in some instances. The NPA finalised 146 090 such cases in 2017 and the NPA was planning to implement regulations to guard against that process being abused. There currently were 55 Thuthuzela care centres (TCCs) servicing victims of GBV and sex crimes and the NPA had received donor funding to roll-out an additional five more centres over the next three years.  The NPA had secured a 75% conviction rate in 2017 of the matters reported to the TCCs. The NPA had revisited the Truth and Reconciliation Commission (TRC) matters and had a missing person’s task team to trace the remains of persons that had disappeared during the period of the TRC. The NPA also led a task team that was to give effect to the Victim’s Charter through implementing a draft bill for the compensation of victims.   

Mr Sibongile Mzinyathi, Acting Deputy National Director of Public Prosecutions (ADNDPP), added that there was the court preparation officer programme where in all nine provinces there was a court preparation manager responsible for the management of court preparation officers. Court preparation officers were there to assist witnesses and victims during trial preparation and actual trial. The footprint of such officers was visible in sexual offences and child witnesses’ cases.
The NPA also collated ‘victim impact statements’ which was a document that once a perpetrator or accused had been found guilty of committing a certain offence the prosecutor was allowed to bring fourth evidence in aggravation of sentence. Impact statements could be completed by getting further testimonies from witnesses on the impact of the offence on the victim. The impact statement was currently a strategic focus of the NPA and was a target area which was monitored monthly and in several cases in the supreme court of appeal where the NPA had been taken to task by the supreme court of appeal judges about not using the impact statement more often and efficiently.

Advocate Madonsela said the DoJ was overhauling the CPA as it had generally been silent on the protection that victims needed.
It would not be appropriate perhaps for the details of the person indicated by Ms Wana to be discussed in the meeting but the DG would certainly accommodate sharing of the information after the meeting so that the matter could be followed up with the LASA.

The Chairperson thanked the DoJ &CS for coming before the Committee and the meeting was adjourned.