Minister of Justice and Correctional Services, Ronald Lamola, gave a political overview of his department. National Director of Public Prosecutions and the Deputy Minister were also part of the delegation. The Minister focused on the Department’s key priorities strengthening the fight against corruption; modernisation and digitisation of the justice system and courts, acceleration of the transformation of the Office of the State Attorney and legal profession and the expeditious enactment of key legislation. He was pleased that the Department had made R37m available to get the NPA’s Investigative Directorate off the ground to commence its task to probe state capture cases and also announced his plans to present Parliament with a draft Land Court Bill.
Committee members welcomed the transformative rhetoric of the Minister’s overview and the move towards digitisation but also expressed concern about funding for the Investigative Directorate, overcrowding at correctional facilities and the costs of unnecessary state litigation. The Chairperson commented that the Committee would have liked to hear more about the Bosasa matter.
The Department of Justice and Constitutional Development presented its Annual Performance Plan that included the objectives of increasing access to courts, decreasing court backlogs, increased usage of the functional integrated electronic Criminal Justice System (CJS) to monitor the performance of the Criminal Justice System, and decreasing state litigation.
The briefing on the Department budget noted the high cost drivers: compensation of employees, leasing of buildings, computer services, operating leases, and property payments, totalling R14.66 billion of a total budget of R19.27 billion. Nonetheless, the Department was grateful for the international donor assistance which is used to manage the Sexual Offences Courts. The Department highlighted that budget cuts had caused increased threats to witnesses due to the reduction of protection services; compromised levels of security provisioning in courts and department’s buildings; a sluggish eradication of backlog cases and non-appointment of key positions. It confirmed a R440 million underspend in 2018/19 which it did not consider alarming as it represented only three percent of the total budget.
Committee members remarked that the Department did not provide enough background information when providing figures and percentages. These were listed without further explanation which made it difficult to properly gauge the state of affairs. Other concerns included the stagnant 5% decrease in state litigation costs, the state of the Master’s Offices, the status of the sexual offences registry and the backlogs plaguing courts.
Political Overview of Department by the Minister
Minister of Justice and Correctional Services, Ronald Lamola, said the Department is in a transitional phase towards a new Medium-Term Strategic Framework (MTSF). The new MTSF will incorporate the priority areas identified by President Ramaphosa in his recent State of the Nation Address and will play a significant role as the Department carries out its mandate.
There are three departments and 10 statutory bodies comprising this portfolio all of which have vital mandates. Of these entities, the National Prosecuting Authority, Legal Aid South Africa and the Special Investigating Unit will present their separate Annual Performance Plans. The work of the other entities and statutory bodies, such as the Asset Forfeiture Unit (AFU), Information Regulator, SIU Special Tribunal, South African Law Reform Commission, South African Board for Sheriffs, Rules Board for Courts of Law, Council for Debt Collectors, Judicial Inspectorate, National Council for Correctional Services, Legal Practice Council and Provincial Councils and the South African Judicial Education Institute is incorporated into the APPs of their line function department. Therefore, the Minister gave a reflection only of the APPs of the entities required to present their plans to the Committee on 3 July 2019.
He noted the importance of July which marks the birth of world icon, Nelson Mandela. In honour of the immense contribution made by Nelson Mandela, the United Nations adopted the “Mandela Rules” which are the Revised Standard Minimum Rules for the Treatment of Prisoners. These Rules provide a set of universally acknowledged minimum standards for the treatment of inmates. The Department’s mission in honour of Madiba is to translate these Rules into a reality for all inmates in the 243 correctional centres countrywide.
In giving effect to its legislative and policy mandate, over the medium-term, the Department will prioritise providing appropriate services for safe, secure and humane detention in correctional centres and remand detention facilities by providing needs-based rehabilitation programmes and interventions to sentenced offenders and reintegrating offenders into communities. The Department has embarked on projects which are aimed at equipping inmates with agricultural skills and training in the cultivation of vegetables, meat, chicken, fruit and milk production. Subsequently 3 307 inmates have opted for agriculture as a career of choice.
Given current trends, the percentage of sentenced offenders in correctional programmes is expected to remain at 80%. The number of inmates stood at 162 875 as at 31 March 2019 against the bed spaces of 118 572 which translates to a 37% level of overcrowding. Overcrowding will remain a reality as the Department cannot refuse to detain inmates as section 165(5) of the Constitution provides that an order or decision issued by a court binds all applicable persons and organs of State.
The Minister acknowledged that the Department is aware that overcrowding continues to undermine the creation and maintenance of a safe and secure environment for inmates and personnel at the coalface of service delivery as well as delivering efficient and effective rehabilitation. The management of the inmate population requires an integrated approach which takes into consideration external factors that indirectly and directly drive the population levels. These factors include criminal tendencies in society; increased focus on implementing effective measures to combat and prosecute crime, the unemployment rate, the economic climate of the country, impeding legislation such as mandatory minimum sentences with limited investment on building an efficient and an effective non-custodial system. While the latter will require buy-in from the community at large, it is a critical option for exploration considering the socio-economic status of the country.
The Correctional Services Act, which is 13 years old, requires a review, given new developments in fields such as restorative justice, child justice, rehabilitation and social reintegration and victim empowerment. The scenes at the St Albans Correctional Centre which caught the imagination of many South Africans demands that correctional centres are transformed from being havens of drug and gang syndicates into proper rehabilitation centres. There is a need to locate law reform across the entire portfolio.
Minister Lamola praised the Department of Correctional Services (DCS) for demonstrating character and courage when it had to in-source provision of nutrition to inmates within six weeks, in its 26 kitchens which were serviced by African Global Operations (AGO), formerly known as Bosasa. AGO’s contract was terminated in March 2019 and it is a courageous reflection as inmates are now preparing their own meals and no major challenges have been reported. The kitchens continue to function optimally, and inmates are benefiting from skills attainment.
The insourcing of food services for inmates has opened doors for local businesses to supply perishable and non-perishables food items to DCS. Hence a concerted effort is being made to boost small businesses which generally battle to attract customers and maintain profitability, which often hinges on access to markets. By stimulating the inclusion of local enterprises, where correctional centres are located, this will have a ripple effect on job creation through the development of small, medium and micro-enterprises as well as the advancement of designated groups such as youth and women.
The Minister then focused on the Department of Justice and Constitutional Development which derives its mandate largely from Chapter 8 of the Constitution titled “Courts and Administration of Justice” and a maze of legislation on the administration of justice. The Department tentacles spread across various chapters of the Constitution in the Bill of Rights. Specific provisions of the Bill of Rights include section 9 on Equality; Section 12 on Freedom and Security of the person; Section 14 on Privacy; Section 28 on Children; Section 32 on Access to Information; Section 33 on Just Administrative Action; Section 34 on Access to Courts; and Section 35 on “Arrested, Detained and Accused Persons”. There are several laws administered by the Department which flow from these constitutional provisions, aimed at advancing and sustaining constitutionalism and the rule of law. Its mandate extends to the traditional courts which are established in terms of Chapter 13 of the Constitution. Therefore, the mandate of the department is vast and wide.
Given the vast and wide mandate, Minister Lamola highlighted what he believed to be key priorities of the Department and its entities - strengthening the fight against corruption; the modernisation of the criminal and civil justice system and the courts, an acceleration of the transformation of the state attorney and legal profession and the expeditious enactment of key legislation that require this Committee’s urgent attention.
The Department’s Annual Performance Plan for 2019/20 and that of its entities lay a foundation on which the Sixth Administration may begin its work.
In the prosecution space, the President has revamped the National Prosecuting Authority, giving the institution a new lease of life to redeem the tarnished image of its past. The appointment of Adv Shamila Batohi at the helm of this important institution followed by the appointment of an Investigative Directorate has restored hope in the fight against crime and corruption. The Department has made the necessary funds available for the Investigative Directorate to commence with its tasks. The Investigative Directorate will pursue all matters emanating from the SARS Commission of Inquiry, the PIC Commission of Inquiry and Commission of Inquiry into Allegations of State Capture.
Parallel to the work of the Investigative Directorate is the work of the Special Investigating Unit, which has been strengthened through the establishment of the Special Tribunal. This Tribunal will soon commence with the task of clawing back the moneys lost through corruption and other illicit flows. The required regulations for the Tribunal to commence have been finalised and sent to Special Tribunal Head, Judge Makhanya, for his comments and they will be gazetted soon. Both Adv Batohi and SIU Head, Adv Mothibi, will share the programmes and plans they have put in place to accomplish the targets they have set in their APPs.
Other important work that will receive priority is the transformation of state attorneys and the legal profession at large. The Minister has been appraised of the project, spearheaded by former Minister Masutha, and its culmination into the draft State Legal Services Bill and confirmed that he would reflect further on this work during the upcoming budget debate.
The Minister confirmed having met with the Legal Practice Council and being briefed on its work to transform the legal sector. Both the Minister and Legal Practice Council agreed that the finalisation of the Legal Services Charter and the acceleration of the transformation of the criteria for conferring senior counsel status to eligible practitioners should be top priorities. The Charter should assist with unlocking opportunities for Black and women practitioners to access legal work in the corporate private sector including banks, state owned entities, big conglomerates and companies. The full implementation of the Legal Practice Act will open the law market which has been the preserve of the select few.
Whilst the previous administrations have undertaken an enormous task in expanding the courts’ footprint by building new courts, especially in rural and previously marginalised areas, the Minister expressed the need to modernise the court system as part of the legacy of the Sixth Administration. It is impractical to function under the business processes defined by the Criminal Procedure Act of 1977 which does not exploit the efficiencies of the Fourth Industrial Revolution. We cannot in this time and age spend millions, if not billions, of rands to: pay for physical storage of records kept on paper when modern jurisdictions are digitising their records; buy paper books when court judgments and publications can be accessed quickly and easily through technology and send police and sheriffs to effect physical delivery of court processes when such can be efficiently done through the use of information communication technology. Modernisation and digitisation will reduce the need for more space and its attendant cost of employing more staff to manage the manual process and paper.
The Department is determined to improve the quality of justice especially in the eradication of gender-based violence. The Minister therefore committed the Department to ensuring the full implementation of the Declaration of the Summit on Gender Violence, which the President hosted during the 5th Administration. The Sexual Offences Courts must be geared towards the immediate reduction of the scourge of gender-based violence and sexual offences with an aim toward its complete eradication in a decade’s time.
The DOJ&CD is part of the Justice, Crime Prevention and Security cluster and works jointly with other government departments and entities towards improvements within the criminal justice system. One of the key initiatives is the development of the Integrated Criminal Justice System, which allows seamless sharing of crime-related information between different entities. By the end of 2018/19, at least 1.6 million electronic messages per month were exchanged via this platform. The increased usage of systems and sharing of data has been most encouraging.
He commended Legal Aid SA for their work, having taken on more than 426 000 new matters, finalising over 420 000 and assisting with legal advice in over 305 000 matters in 2017/18.
The National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance has been finalised and was approved by Cabinet on 27 February 2019. The Durban Declaration and Programme of Action adopted by the United Nations’ World Conference against Racism urges States to establish and implement national policies and action plans to combat racism, racial discrimination, xenophobia and related intolerances, including their gender-based manifestations. The NAP is not intended to replace existing laws and policies, but rather to be complementary to existing legislation, policies and programmes which address equality, equity and discrimination.
The National Action Plan will provide mechanisms for documenting and monitoring on-going incidents of racism, racial discrimination, xenophobia and related intolerances including establishing a rapid response team, reporting directly to government and broader society, serving as a barometer measuring the extent of the incidents, the circumstances which allow for their continuation and the provision of tools to address them. Further, the NAP is intended to assist South Africa to meet its international treaty and regional obligations in terms of combating racism, racial discrimination, xenophobia and related intolerance.
Legislation is a key function of the Department. Five Bills submitted to the Fifth Parliament are still to be dealt with by the Sixth Parliament and include:
- The Traditional Courts Bill was approved by the National Assembly and referred to the National Council of Provinces for consideration;
- The Cyber Crime Bill was approved by the National Assembly in November 2018 and is awaiting deliberation by the National Council of Provinces;
- The Prevention and Combating of Hate Crimes and Hate Speech Bill which the National Assembly’s Portfolio Committee on Justice and Correctional Services is currently deliberating;
- The State Liability Amendment Bill which is being deliberated by the Portfolio Committee following the finalisation of public hearings on the Bill, and
- The Child Justice Amendment Bill was approved by the National Assembly in November 2018 and was referred to the National Council of Provinces for deliberation.
In addition to these Bills, the Minister announced his plans to present a draft Land Court Bill which would strengthen adjudication of land restitution, expropriation of land and land distribution The Ministry is in the process of consultation and will present the Bill to the Committee after consultation with all key stakeholders.
He highlighted the need to engage the Chief Justice on the range of initiatives postulated in the Annual Performance Plan of the Office of the Chief Justice. He will elaborate further on this, including the government’s commitment to finalise the judicial and court administration model, during the budget debate of the Office of the Chief Justice (OCJ).
The Minister concluded by wishing the Committee well in its deliberations over the following days and asked for Members reflections and views on his political overview.
Adv G Breytenbach (DA) said she was deeply concerned about the funding of the NPA’s Investigative Directorate. These types of investigations entail a lot of money because it requires skills such as forensic accounting which are not always readily available. If the Directorate does not have an adequate budget, then even if 20 Batohis and Cronjes are appointed nothing will get done. However, she was happy with the appointment of Batohi and Cronje. She requested that some investigations emanating from the State Capture Commission be brought forward because South Africans would appreciate seeing that action is being taken.
She raised further concerns about the Justice College which she felt has fallen into disrepair and requested clarity on its current status and plans going forward.
In response, Deputy Minister John Jeffrey explained that the Justice College is used to train magistrates and judges. Magistrate training was then removed from the Justice College ambit because of the need to have independent judicial officers. Judicial independence is questioned when judicial officers are trained by the Executive. There is a school of governance which could potentially provide the training. Nonetheless, the Department wishes to continue the Justice College.
Adv T Mulaudzi (EFF) expressed his satisfaction with the drive towards modernising the management and storage of documents. He also highlighted that all judges in the Land Claims Court are acting judges and requested clarification on the way forward, specifically wanting to know for how long these judges would be acting judges.
In response, the Minister explained that these judges are seconded from other courts. There is a need to have permanent judges but due to various difficulties since the enactment of the Restitution of Land Rights Act, the Department will have to consider the matter further before reverting to the Committee.
Mr W Horn (DA) noted that substantial amounts of money had been paid to Bosasa without any value in return, before he directed attention to the overcrowding in correctional facilities. Five years ago, the Department indicated that 6000 additional bed spaces were being built however fewer than 1000 bed spaces were created. This was due partly to contractors not being able to meet certain requirements and or being liquidated. To date there is still an overcrowding issue.
He noted a decline in court hours and an increase in court backlogs with no department or entity taking ownership of this trend. He asked for clarity on how this trend could be monitored and addressed given that the Office of the Chief Justice, who previously reported on court hours and backlog, removed this from their reporting.
Mr Horn asked for more detail on upcoming bills, specifically whether the Cyber Security Bill will be brought to Parliament after having been separated from the Cyber Crimes Bill.
In response, the Deputy Minister said that there are bills which will be revived such as the ‘Customary Law’ Bill, despite some complications, that will be tabled soon. He did not provide further information because the Minister would provide more detail on legislation in his upcoming budget speech.
Mr S Swart (ACDP) told the Minister that when he had previously raised state capture and corruption there were sniggers from some of the Committee Members. As political representatives there is pressure on the Committee to show that progress has been made. The public knows that funds are being put into investigations daily, yet no concrete feedback is given to the public. While prima facie evidence of wrongdoings exists, there is no need to wait for the Zondo Commission to finish its task before proceeding with prosecution.
He was also concerned about non-compliance with Constitutional Court rulings against Parliament. The Executive has not brought the relevant Amendment Bills to Parliament and the latter is being refused extension by the Constitutional Court. Although the rulings are against Parliament, it cannot proceed because it is waiting on the Executive to cooperate.
The Deputy Minister replied that the 18-month period provided by the Constitutional Court is too short for the Department to carry out substantive work on the legislation.
Mr Swart raised concern about the unnecessary cost of state litigation. Delictual cases, pertaining to medical negligence, the South African Police Service (SAPS) and the Road Accident Fund which should be settled, are unnecessary expenditure.
The Deputy Minister agreed that many matters which could be settled earlier are settled at the last minute on the doorstep of the court but highlighted the 5% reduction in the State’s litigation costs which he viewed as a step in the right direction. The Department would also promote the alternative dispute resolution mechanism to address unnecessary litigation.
In amplification of this, Mr Rodney Isaacs, Acting Chief Litigation Officer, said that the DOJ&CD is considering early settlement strategies. It intends to commence with cases which usually take two to three years to get a court trial date. The Department’s Mediation Policy has been approved by the Minister and will appear before Cabinet soon. The Policy aims to ensure that litigation becomes an alternate dispute resolution process instead of the default option. Ideally, fewer matters would go to trial.
Mr M Hendricks (Al Jama-ah) said that his political party is concerned about the lack of funding of Chapter 9 Institutions and the number of parole applications the Minister has not yet signed off on. Given that some of these prisoners are political and social activists he urged the Minister to complete them by 18 July 2019, in the spirit of Mandela Day.
The Deputy Minister confirmed that there are only two Chapter Nine Institutions which fall under the budget of the Department: the Public Protector and the South African Human Rights Commission. These institutions motivate to Treasury (not the Department) for the amounts they need. “Justice is not necessarily linked to the amount of money an institution receives”, he added
On the parole applications, the Minister confirmed receiving 300 parole applications, each of which require five to seven hours to consider. The application documents contain all the information of the inmate from arrest to date and as many inmates have been in prison for 10 to 15 years, their documents are copious. There also needs to be a detailed consideration of the inmate’s skills because once released, they should be able to find employment. In the interim he had considered 70 applications and will endeavour to complete the rest by 18 July 2019.
Mr X Nqola (ANC) indicated that the Minister did not refer to the public’s lack of faith in the justice system. Rape victims, especially older women, do not believe that the State will prosecute the matter to completion.
The Deputy Minister agreed with Mr Nqola and added that it is of great concern (especially in East London) that persons arrested on Friday are released on Monday morning after the case against them is simply withdrawn.
Mr Nqola commended the Minister about raising transformation but wanted to know more about the overcrowding at correctional facilities. Does DCS budget according to the number of inmates or the capacity of the correction facility? What is the Department’s plan to curb overcrowding?
The Deputy Minister referred to the 16 099 inmates serving life imprisonment which has been prescribed as a minimum sentence. Minimum sentences for certain crimes need to be reconsidered due to the overcrowding at correctional facilities.
Mr Nqola requested more statistics on the capacity of the NPA to prosecute matters. Of interest to him was whether matters were not prosecuted due to the limited number of prosecutors or the lack of quality of the prosecutors. Having witnessed prosecutors losing cases due to insufficient evidence, he believed that the quality of prosecutors should be questioned.
The Deputy Minister confirmed that the Department has monthly reports detailing which advocates receive briefs, their details and the subject matter of the case. The Department will try to make this transparent to the Committee in future.
Mr Isaacs confirmed that the amount of litigation exceeds the legal professionals at the State’s disposal. State attorneys can appear in the high court to save costs but cannot do so because of their workload. Given this, it is imperative to develop strategies to administer litigation. Such strategies include early settlement and alternate dispute resolution.
Adv N Mohamed (ANC) said that the ANC welcomes the transformative rhetoric of the Minister and supports the move towards the digitisation of the legal system. He requested information on foreign language interpreters, specifically whether there was a policy governing interpreters.
The Deputy Minister replied that the Department needs to consider this in more detail before developing a policy. People are entitled to be tried in a language they understand and not necessarily a language of their choice. There was a recent incident where a Zimbabwean was discharged after no Shona interpreter was available despite his having worked at Spur for eight years and communicating with customers in English. The Department would also have to consider whether it is necessary for the interpreter to be physically present at court or whether they could ‘connect’ via technology.
Adv Mohamed stated that the administrative model of the OCJ is the executive’s responsibility.
The Deputy Minister responded that South Africa has a single judiciary and that the judiciary is the function of judges. However, the issue of court administration has not been resolved. Administration of the judiciary is multifaceted and numerous factors must be considered. This includes, amongst others, whether judges should manage court interpreters and admin staff.
The Chairperson thanked the Minister for his political overview but commented that the Committee would have liked to hear more about the Bosasa matter.
Department of Justice and Constitutional Development (DOJ&CD) APP 2019/20
Ms Lebo Mphalele-Ntsasa, Chief Director: Strategy, Monitoring and Evaluation, spoke to the objectives of the Department’s four key programmes: Administration, Court Services, State Legal Services, Auxiliary Services.
In the Administrative programme, three key objectives were increased compliance with prescripts to achieve and sustain an unqualified audit opinion; increased number of public bodies compliant with the Promotion of Access to Information Act (PAIA) and the improvement in administrative capacity to deliver services. She highlighted that non-compliance with PAIA provisions often meant that prisoners had to be released as the Department could not access key documents.
In the Court Services Programme, key objectives were an efficient and effective integrated criminal and civil justice system as well as victim and witness support system, enhanced Family Law services, increased access to courts by historically marginalised communities, and transformation of the judicial system.
She noted that DOJ&CD aims to decrease the criminal case backlog from 49 208 to less than 48 223 and to decrease the percentage of criminal cases postponed due to unavailability of court administration staff. Further, the Department would call for the repositioning of the Justice College.
The Department aims to increase the number of children benefitting from Family Law services from 22 500 children aided in 2017/18 to 25 000 children.
To increase access to courts by historically marginalised communities, six new court buildings will be completed by 2020. DOJ&CD aims to increase civil cases successfully mediated from 60% to 65% by 2020.
In 2017/18 two transformational policies were approved. DOJ&CD aims to have another three approved in 2019/2020. A Policy Framework on the choice of language in court proceedings must be submitted to the Minister by 31 March 2020
In the State Legal Services Programme, nine key objectives were identified:
- increased access to Masters’ Offices services;
- transformation of State Legal Services,
- reduced state legal costs,
- the provision of quality state legal advisory services that pass constitutional muster,
- increased compliance with international treaty obligations by the Department,
- development of legislative instruments that are certified and consistent with the Constitution;
- the promotion of broad-based knowledge on and support for values of equality, human dignity and fundamental human rights and corresponding responsibilities
- combating racism, racial discrimination, xenophobia and related intolerance; and
- implementing TRC recommendations as approved by Parliament for purpose of contributing to healing the wounds of the past and restoring human dignity.
DOJ&CD aimed to increase the number of briefs given to previously disadvantaged advocates, settle more matters to avoid unnecessary litigation costs, and finalise legal opinions within 40 days from date of instruction.
In the Auxiliary Service Programme, the main aim is to ensure that there is an increased usage of the functional integrated electronic Criminal Justice System (CJS) to monitor the performance of the Criminal Justice System.
Department of Justice and Constitutional Development (DOJ&CD) budget
Ms Louraine Rossouw, DOJ&CD Chief Financial Officer, said a key challenge faced by DOJ&CD is the competing mandates such as the NPA and the Masters’ Offices especially when funding is limited. It is difficult to cut budgets in certain areas without impacting on service delivery. Further, the increase in new priority areas such as the NPA Investigative Directorate, One Man Stations, Aspirant Prosecutor Programme, Family Advocate, and Regional Support Services raises additional challenges for the Department.
High cost drivers of the department are compensation of employees, leasing of building structures, computer services, operating leases, and property payments, totalling R14 557 237 000 of a total budget of R19 264 964 000. Nonetheless, the Department was grateful for the international donor assistance which is used to manage the Sexual Offences Courts.
Ms Rossouw noted that existing budget cuts have caused: increased threats to witnesses due to the reduction of protection services; compromised levels of security provisioning in courts and department’s buildings; a sluggish eradication of backlog cases and non-appointment of key positions such as prosecutors, court interpreters, maintenance officers, estate administrators and administrative staff providing corporate services such as finance, human resources and IT.
Despite this she acknowledged that it underspent R 444 million of its previous budget but explained that it was not particularly alarming given that R440 million is on three percent of the total budget. The Department underspent R10 088 000 on Goods and Services, R 1 023 000 on SASSETA, R138 811 000 on the State Capture Commission, R14 619 000 on the SARS Commission and R168 153 000 on Magistrates Salaries.
She concluded by motivating that investment in automation be increased to realise operational and cost efficiencies and urged all entities in the Justice family to review their business processes to ensure alignment
Mr Horn asked what definition or process the Department uses to determine if a case is on the backlog roll because the number of cases on the backlog roll increases yearly.
In response, DOJ&CD Director General, Mr Vusi Madonsela, conceded that the backlogs require more attention but these remain within the ambit of the Chief Justice and the Judge President.
The Deputy Minister added that in Newcastle there is a great backlog at the Regional Magistrate Court but no backlog in the District Court. However, it is a matter which deserves more attention. Magistrates are required to be in court for four and a half hours, but this figure is not reached. Some magistrates sit for two hours while others sit for six or seven hours.
Mr Horn noted that on 2 July 2019, the Police Portfolio Committee said that they would be giving a significant amount of money to the Department of Justice.
Ms Rossouw explained that a significant amount of money was allocated to SAPS but there was no movement on that money. After various submissions by the Department of Justice, it was agreed that the money would be transferred to the Department.
Mr Horn questioned what the Integrated Justice System programme is doing to benefit operations, the NPA and Correctional Services.
Mr Horn noted that in October 2018, the Information Regulator had spoken about its frustration with the Department and commented on the latter’s lack of co-operation. He asked if there was any update about the Department’s interaction with the Information Regulator.
Ms Rossouw confirmed that new appointments have been made within the top structure of the Information Regulator. She replied that, having met with the new SAPS CFO, she is confident that there will be better interaction amongst the departments.
Mr Horn asked for clarity on the Department’s plans to act on the findings of the report on the socio-economic impact of Supreme Court of Appeal and Constitutional Court judgements.
Mr Horn noted that the Department did not provide information on how it plans to address the unintended consequences of amalgamating the sexual offence registries. For example, minors found guilty of sexual offences would be included in the amalgamated registry as real time sex offenders.
The Deputy Minister replied that the registry is not yet implementable and that its implementation should be completely reconsidered. Only persons convicted of sexual offences against children and disabled persons will be placed on the registry. Unfortunately, “normal” rape cases will not appear on the registry. Only person working with disabled persons and children will be required to check the registry. An additional complication is that after several years a person can be removed from the registry. The main question is whether this registry is necessary because any employer can go to SAPS to determine if a prospective employee has a criminal record. The information of the sexual offences registry will be confidential which is counterintuitive considering that employers can go to SAPS for this information. It would be better if the registry followed the American model where the sexual offences record is made public. These are some of the policy issues that must be considered before the registry can come into operation.
Adv Breytenbach expressed her satisfaction with the Department’s plan to promote the retention of the Justice College. As the Aspirant Prosecutor Programme would be reintroduced, she asked about the Department’s retention strategy to keep the prosecutors in the employ of the NPA. Often the prosecutors are poached once they have a few years of experience. The vacancy rate in the Department is 20% which she believes to be a serious problem. It is especially concerning when there is a high vacancy rate in units such as the specialised commercial crimes courts because it affects corruption fighting.
The Director General explained that the DOJ&CD Director General is only the accounting officer of the NPA while the National Director of Public Prosecutions (NDPP) manages the institution as per the NPA Act. While the Department can help the NPA, it cannot overstep and lead the NPA. The NPA would be better placed to answer questions such as retention strategies and vacancy rates.
Adv Breytenbach urged the Department to address the “collapsed” Masters’ Offices which are rife with bribery.
Ms Theresia Bezuidenhout, Acting Chief Master of the High Court, replied that it was harsh to say that the Masters’ Offices have collapsed. Monthly reports indicate that the Offices perform above 95% in key performance areas. A recent report indicated that the Masters’ Offices dealt with 350 000 matters of which there was only a three percent complaint rate. Whilst noting that bribery is rife, she is pushing for automation to assist in decreasing the incidence of bribery. However, the fight against bribery requires effort from all stakeholders. If people do not offer bribes, then the problem will be eradicated.
Adv Breytenbach, Mr Swart, and Adv Mulaudzi all noted that the Department’s use of percentages and figures was inadequate. The percentages used in the Department presentation, specifically on audit performance, were unhelpful. No background information was given to understand the figures and percentages. Similarly, the Department refers to a 97% reduction in medical negligence but does not state what the percentage is of.
Mr Rodney Isaacs explained that claims against the state are inflated. For example, if a claim is worth less than R15 million the plaintiff will claim R30 million instead. The final amount paid would be 97% less than what was originally claimed. However, given the size of the administration, he conceded that the Department needs to recheck the statistics provided to the Committee.
The lack of clear information by the Department was highlighted by Adv Mulaudzi. He noted that the Department’s tables utilise percentages while some columns contain dashes. It is unclear what the dashes represent. The Department also refers to a reduction in claims but does not provide the monetary values in rands. There are references to bilateral agreements with two countries but no indication of which two countries. There were numerous references to donors, but no mention of the amount received from the donors.
Ms Rossouw advised that she will submit a report to the Committee specifically on donors but noted, in the interim, that donors do not always provide money. Donors sometimes provide technical assistance by seconding their researchers.
The Director General acknowledged the comments about the unclear percentages and lack of background information. He confirmed that his team would provide written responses on key figures in the presentation and to any question that remains unanswered.
Adv Mulaudzi questioned the Department’s progress with the Traditional Courts Bill which he believes would reduce the backlog in courts.
The Director General confirmed that the Bill is only at the halfway mark in Parliament because each province must give a mandate and hearings need to be held in each province. He added that Traditional Courts would not hear sexual offences matters and traditional leaders would not be trained by the executive.
Adv Mulaudzi asked about the measures put in place by the Department to assist illiterate persons using the electronic justice system.
Ms Bezuidenhout explained that although it is an automated system it is not like e-filing. Members of the public do not need a computer, nor do they need to be literate to utilise the system because there are staff members at magistrate courts who will assist the public.
Adv Mulaudzi highlighted his dissatisfaction with the 5% reduction in legal fees because it had remained stagnant at 5%for more than three years. He also noted that during the Fifth Administration, prosecutors and judges complained about the electronic criminal justice system, especially that it did not assist them.
Adv Mulaudzi said the Department spends in excess of R1 billion on leasing building and he asked if it would not be cheaper for the Department to build its own buildings.
Mr Swart focused on the importance of cost saving. Commissions are part of the President’s budget which the Department can claim back. When DOJ&CD wins a legal matter, it is entitled to costs but does not receive these nor does it claim back the money it should when paying advocates on behalf of other departments.
He noted that the Eastern Cape Department of Health is briefing private attorneys and this is wasteful expenditure, especially when there are capable state attorneys.
Mr Swart explained that the Committee is also able to motivate for a budget shift so there is no need to always “remain in the hands of Treasury”.
The Director General replied that entities associated with the Department are not funded by the Department. Before entities receive money, the Treasury has already allocated the money. Whilst there are limited instances where the Department can retransfer money to different projects, this does not give the Department Treasury-like powers.
Ms N Maseko-Jele (ANC) asked about the Department’s plans to educate the community on what transpires within the justice system. The Department indicated that new courts were being built but had not elaborated on the Department’s plans to maintain the new courts.
Adv Jacob Skosana, DOJ&CD Deputy Director General: Court Services, noted that courts face numerous challenges due to aging infrastructure. Ensuring sustainable maintenance is problematic. Some things are just left to rot, especially the air-conditioning systems, windows and drains which is a matter for Public Works. The Department is trying to get the Expanded Public Works Programme to step in and help with daily maintenance.
Ms Maseko-Jele noted that the Sexual Offences Courts are largely funded by international aid which she found alarming. DOJ&CD should have a contingency budget in place in the event of decreased international aid.
The Chairperson agreed that it is alarming that a critical part of the system is being funded by foreign donors. It is likely that funding will be decreased because donors will not invest in a legal system that is collapsing. When donors note that the Aspirant Prosecutor Programme has been suspended for many years then a negative impression of the legal system is created.
Adv Mohamed asked about peoples’ experience with court-annexed mediation. He asked whether it was cost effective, how it is funded, what the policy for court-annexed mediation is and whether it is sustainable.
There was no indication of security costs in the Department’s presentation. He was particularly interested in security costs as in his experience contracts are renewed just before the end date because contractors failed to meet obligations.
Ms Rossouw replied that there is no prescript against renewing contracts nor is poor performance against the law. Nonetheless, the Department, implements a supply chain process. Every bid over R50 million is referred to Treasury. This referral adds four months to the entire process. Contractors are also informed 18 months in advance before their contract expires and reporting is implemented at all procurement stages.
Adv Mohamed noted that witness fees fall within the Department’s discretionary budget. Paying witnesses is inevitable. He asked for clarity on what the Department means by discretion because they do not have discretion when it comes to paying witness fees.
Mr Q Dyanti (ANC) appealed to the Department to present in a manner which does not assume that the Committee Members were part of the Fifth Parliament.
The Director General confirmed that in future his team would not take any matter for granted.
Mr Dyanti raised his concerns about the lack of interdepartmental collaboration. For example, the Department referred to the need for more foreign interpreters given the influx of foreigners while the Department of Home Affairs is trying to reduce the number of foreigners. It is imperative that departments liaise with each other.
The Director General agreed there have been instances of lack of collaboration especially with the Anti-Corruption Task Team who failed to attend collaborative meetings. However, there has been increased engagements and awareness of the importance of collaboration at cluster levels since the Sixth Administration.
Mr Dyanti remarked that the Office of the State Attorney is dysfunctional but the Committee has not received any remedial plans. He found it “odd” that one of the Department’s objective is to have an unqualified audit. Like Adv Mulaudzi, he also expressed concern with the stagnant 5% reduction in legal fees and was concerned about the 68% decrease in witness fees. Witnesses are vital in the fight against corruption and it is alarming to see a decrease in witness fees.
Mr Nqola requested that the Department help build a better Legal Aid.
The Director General reiterated that Legal Aid is an independent body with its own management board. The Department is happy to assist Legal Aid but cannot overstep its limits and manage Legal Aid. A recent survey indicated that Legal Aid South Africa is performing well. An overwhelming majority of LLB graduates indicated that they want to complete their articles of clerkship at Legal Aid.
Given the time constraints, the Director General confirmed that unanswered questions and issues relating to the percentages presented would receive responses in writing from his team.
The Chairperson thanked all for their attendance and concluded the meeting.
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.