The Deputy Minister of Justice and Correctional Services led a delegation that gave the Committee a political overview of his Department. While praising the former administration for focusing on court expansion, especially in rural and marginalised areas, he said this administration’s focal point would be on modernisation and digitisation by exploiting the efficiencies of the Fourth Industrial Revolution. By doing this, money spent on physical storage of information would be eliminated. Among other promises, he said that the fight against corruption would be accelerated and a National Action Plan would be inaugurated to 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. Also in the offing would be a draft Land Court Bill that would strengthen adjudication of land restitution, expropriation of land and land distribution.
The Department of Justice and Constitutional Development (DoJCD) presented its Annual Performance Plan (APP) that included the objectives of increasing access to courts, decreasing court backlogs, increase the usage of the functionally integrated electronic Criminal Justice System (CJS) that enhanced public confidence in the system, and decrease state litigation. The budget briefing indicated that high cost drivers were building leases, travel and subsistence expenses as a result of inflationary increases, agency and support outsourced services due to the payment of investigators for the Commission of Inquiry into State Capture and legal services as a result of the legal cost expenditure in respect of commission of inquiry into State Capture, the South African Revenue Service (SARS) and the Public Envestment Corporation (PIC).
The Special Investigating Unit (SIU) said that in line with the tenets of its Act, it investigated the various matters referred to it and came to four main conclusions. When evidence was presented that pointed to wrongdoing by any officials of state, disciplinary measures were referred to the accounting officer/authority of such entity. The second outcome was when irregularities were found that required SIU to instigate civil litigation, and such cases were presented to the courts for adjudication. Thirdly, if evidence pointed to criminality, it was referred to the NPA. The last outcome was if, in the course of an investigation, inefficiencies were found in any Department, recommendations were made for systemic improvements. As presently enacted, the SIU had no teeth but could only follow up to see if its remedial actions had been implemented. Effort was being made to enhance its mandate so it could aid in the recovery of stolen money.
The Director of Public Prosecutions bemoaned the critical lack of capacity, personnel, resources and skills at the National Prosecuting Authority (NPA). Budget cuts in recent years had resulted in a 20% vacancy rate across the NPA, and this was much higher in specialised units such as the Specialised Commercial Crime Unit and the Asset Forfeiture Unit (AFU). She was pleased that the Department had made R38m available to get the NPA’s investigative directorate off the ground, and the reintroduction of the aspirant prosecutor programme that brought in qualified lawyers direct from the universities. A plan was afoot to ensure that the NPA had a separate budget vote to ensure its administrative, budgetary and accounting independence.
Committee Members wanted to know the NPA’s plans for overcoming its capacity constraints, as it was at the vanguard of preserving SA’s constitutional democracy. Others wanted be provided with NPA’s organogram in order to ascertain the extent of staff shortages it faced. They commented thatthe euphoria that had greeted the President’s appointments of the heads of the NPA and the Special Investigating Unit (SIU) would be short lived if the appointees could not clean up these entities as well as convince the people of the North West that they were doing a good job until they tackled the massive and rampart corruption that was occurring there. The high expenses on rentals consuming about 47% of the budget were also highlighted, at a time when there were unused state-owned government buildings everywhere, some of which were dilapidated and even hijacked.
The Chairperson welcomed the Deputy Minister and his team to the meeting. He hoped all Committee Members had received all the documents sent to them for this meeting, including the research analysis, the annual performance plan (APP) and the presentations to be made. Issues had been identified by Members emanating from the State of Nation Address (SONA), as well as the national development plan (NDP) to be focused on. In an overview of the APP and budget, the Committee would want more focus on provincial issues. Because of time constraints to pass the budgets, this meeting would also embrace outlines from the Special Investigating Unit (SIU) and the National Prosecutions Authority (NPA). The Minister had sent an apology regarding his inability to attend this meeting.
Overview by Deputy Minister
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, said the Department looked forward to a continuous period of constructive engagement with the Committee based on plans and priorities of government, while the Committee exercised it oversight functions to ensure full accountability to the country.
The Department was in a transitional phase towards a new Medium Term Strategic Framework (MTSF). The new MTSF would infuse the priorities that had been identified by South Africans during the recent robust electioneering season. These priorities had been succinctly and unambiguously outlined by the President in the recent SONA.
While previous administrations had undertaken the enormous task of expanding the courts’ footprint by building new courts, especially in rural and previously marginalised areas, the Department had already expressed the need to modernise the court system as part of the legacy of the Sixth Administration. One could not continue 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 could no longer spend millions of rands -- if not billions -- to pay for the physical storage of records kept on paper when some modern jurisdictions were digitising their records, or buy paper books when court judgments and publications could be accessed quickly and easily through technology, or send police and sheriffs to effect physical delivery of court processes when such could be efficiently done through the use of information communication technology (ICT). The modernisation and digitisation of the Department’s work would reduce the need for more space and its attendant cost of employing more staff to manage the manual process and paper.
The fight against corruption would be accelerated and strengthened, and there would be acceleration in the transformation of the office of the state attorney and the legal profession as a whole. There would be an expeditious acceleration in the enactment of key legislation that requires this Committee’s urgent attention. The legislative programme for the year would be shared with the Committee once approved by the Minister.
The National Action Plan (NAP) would 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 was intended to assist South Africa to meet its international treaty and regional obligations to combat racism, racial discrimination, xenophobia and related intolerance.
Legislation was a key function of the Department. Five bills submitted to the Fifth Parliament were still to be dealt with by the Sixth Parliament, and they include:
- The Traditional Courts Bill, which had been approved by the National Assembly (NA) and referred to the National Council of Provinces (NCOP) for consideration;
- The Cyber Crime Bill, which had been approved by the NA in November 2018 and was awaiting deliberation by the NCOP;
- The Prevention and Combating of Hate Crimes and Hate Speech Bill, which the NA’s Portfolio Committee on Justice and Correctional Services was currently deliberating;
- The State Liability Amendment Bill, which was being deliberated by the Portfolio Committee following the finalisation of public hearings on the Bill; and
- The Child Justice Amendment Bill, which had been approved by the NA in November 2018 and referred to the NCOP for deliberation.
In addition to these Bills, Mr Jeffery announced plans to present a draft Land Court Bill, which would strengthen the adjudication of land restitution, the expropriation of land and land distribution. The Ministry was in the process of consultation and would present the bill to the Committee after consultation with all key stakeholders.
Annual Performance Plan and Budget
Ms Lebo Mphahlele-Ntsasa, Head: Strategy, Monitoring and Evaluation, Department of Justice and Constitutional Development (DJCD), said she would go through the presentation with a special focus on areas of interest to the Committee. She cautioned that some of the performances to be discussed were still being audited, and the Department would come back at the end of the financial year to present the annual report of the Department. The Department’s vision was justice for all in South Africa
She said Objective 1 was for increased compliance with prescripts to achieve and sustain an unqualified audit opinion. The five-year strategic plan target was to achieve an unqualified without significant findings. In 2017/18, the Department had attained an unqualified audit without significant findings, and the estimated performance for 2018/19 was an unqualified audit without significant findings, and so were the targets for 2019-2022.
Objective 4 targeted an efficient and effective integrated criminal justice system that enhanced public confidence in the system. This would be measured by the backlog of criminal cases in lower courts. The target for 2019/2020 was 48 223, while the estimated performance for 2018/19 had been 49 208 against a forecast of 33 732. The increase had not been as a result of an increase of numbers per se, but the more enhanced capturing mechanisms now in use. To ensure that cases were speedily resolved, the Department had rolled out CCTV cameras, and they must work. Provincially, four were in use in Gauteng and three in KZN. A complete provincial list would be provided to the Committee in due course.
Objective 5 aimed at enhancing a victim-centric criminal justice system. The number of courts adapted in line with the sexual offences courts model in audited performance for 2017/18 was 17, and expected performance for 2018/19 was 14. The target for 2019/20 was 16.
Ms Mphahlele-Ntsasa said the APP for 2019/10 had been amended, with guidance from the Deputy Minister and the newly appointed Minister. With the guidance of the Minister, and in alignment with the new five-year plan of government, the Department would table its five-year plan and the APP for 2020/21 in February/March 2020. The Departmental planning season began in May of each year, and work was under way to engage branches on the draft five year-plan.
The main challenges to business units were:
- Competing mandates;
- Inadequacy of funding in government and National Treasury’s practice to refer the justice cluster to the DOJCD to achieve efficacy of funding allocation;
- Inability to cut further, without impacting on service delivery points;
- Inability to further absorb increases in cost of living increases beyond budgetary increases;
- Slow response time and lack of agility in general – for example, the process to approve amendments in job descriptions and severance packages;
- Slow processes in the alignment of resources in the justice value chain;
- Slow response time in the reorganisation of business for example, the State Attorney;
- Clarity of policy in terms of understanding the real impact on both the public and the operations of the justice value chain; and
- Determination of non-performing programmes and non-essential programmes.
High spending items for 2018/19, compared to 2017/18, included building leases, electricity and water, travel and subsistence allowances, outsourced services and legal costs. The increase in legal costs was due to the expenditure in respect of the Commissions of Inquiry into State Capture, South African Revenue Service (SARS) and the Public Investment Corporation (PIC).
Challenges in the Department which would be addressed this financial year would be the focus on new priority areas, such as the National Prosecution Authority (NPA) directorate, one-man stations, aspirant prosecutors, family advocates and regional support services. Other areas requiring attention included:
- Potential overspending on the compensation of employees – already at 8%;
- The reliability of aligned performance information on which management decisions were made;
- Potential unbundling of DOJCD functions and related costs;
- Inadequate alignment of resources of all the entities in relation to productivity information;
- Inadequate alignment of policies, strategy and procedures of all the entities;
- Delays in the finalisation of policies and operating models, e.g. language interpretation, virtual libraries, security services, accommodation standards, psychological evaluations, witness fees, building management of new courts, gardening and cleaning services in courts, gender-based violence (GBV) projects, community advice offices, TRC community rehabilitation projects, and Occupation Specific Dispensation (OSD) cost implications;
- Delays in creating a permanent staff establishment in critical areas -- ICT, supply chain management (SCM), asset management, internal control and Justice College;
- Impact of the commissions on the workload of the Department;
- Impact of the potential non-performance of the Department of Public Works (DPW) on the infrastructure rollout of the Department;
- Maintenance of infrastructure and the replacement of equipment;
- Inadequate demand management, SCM value chain and contract management;
- Inadequate resourcing of specialised procurement areas.
Ms Mphahlele-Ntsasa said the DOJCD, together with its entities, needed to explore possibilities of consolidating and aligning their support services in order to release financial resources to be redirected toward funding co-functions. Investment in automation needed to be increased in order to realise operational and cost efficiencies. All entities in the justice family had to continuously and jointly review their business processes in order to ensure alignment.
Special Investigative Directorate (SIU): Overview
Advocate Andy Mothibi, Head: Special Investigating Unit (SIU), restated the measures taken by the SIU to strengthen and implement the remedial action by state institutions. It had made inputs into the Minister’s speech regarding steps to strengthen enforcement of implementation of the SIU. There had been several proclamations by the President that strengthened the SIU within its mandate in relation to matters of serious maladministration, and malpractices including corruption in connection with the administration of state institutions and assets and public money. It also envisaged the establishment of special tribunals related to the investigating units that the President deemed fit to establish.
The SIU had been established in 1996 and as it investigated the various matters referred to it, it would come to four main conclusions. When evidence was presented that pointed to wrongdoing by any officials of state, disciplinary measures were referred to the accounting officer/authority of such entity. The second outcome was when irregularities were found that required SIU to instigate civil litigation, and such cases were presented to the courts for adjudication. Thirdly, if evidence pointed to criminality, it was referred to the NPA. The last outcome was if, in the course of an investigation, inefficiencies were found in any Department, recommendations were made for systemic improvements.
Some measures taken to strengthen remedial actions were that the legislation that established the SIU required it to refer such matters to the state institutions, but the SIU’s remedial actions were not binding. This was something that would be included in the envisaged amendments to the SIU Act with the assistance of Parliament, specifically this Committee. At the moment, the disciplinary actions referred to state institutions were left with the accounting officers/authority to implement. The only thing the SIU could do at the moment was to follow up to see if its remedial actions had been implemented and if not implemented, why?
With regard to disciplinary processes, the President had decided to release the report of all disciplinary processes, as any report issued by the SIU was copied to the President. On civil litigation, there had been recent developments which were very comforting. The path that was being followed now was the recovery of money and assets through the re-establishment of the special tribunal. The proclamation to this effect had been issued by the President in February, and SIU was working with the Justice Department to ensure it was functional once more.
National Director of Public Prosecutions (NDPP): Overview
Adv Shamila Batohi, National Director of Public Prosecutions, said that this was her first appearance before the Committee. To be better understood, the NPA had voluntarily sent its APP to Members of this Committee.
The situation with regard to the capacity of personnel, resources and skills for the NPA was dire. Budget cuts in recent years had resulted to 20-25% vacancies across the entity. The percentage was higher in specialised units such as the Specialised Commercial Crime Unit and the Asset Forfeiture Unit (AFU), where it stood at between 25 to 28%. The NPA had lost 600 prosecutors since 2015, and had not been able to recruit any new ones. These were key units that had serious capacity issues. Engagements were ongoing with the Minister and the Director General (DG) to address these issues. If budget cuts being implemented by Treasury are upheld, they would render the NPA incapable of delivering on its mandate. The obvious solution was to increase its budgetary allocation in this budget cycle and subsequently. There was an embargo on NPA recruitment at the moment -- the plan now was to prioritise positions at key NPA areas, such as in the GBV and specialised commercial crime units. Funding for the directorate to the tune of R38 million had been provided, and though this was not a lot of money, it would assist in starting up the operation. A bid had been made to get some money from the AFU. If the AFU was capacitated, more money would be forfeited to the fiscus.
The NPA was looking at increased management training, and not having any funding was making this difficult. Presently, 89% of the budget was for compensation for staff, leaving only 11% for staff training and other requirements. This meant that staff did not have the tools they needed to function properly. One positive was that the aspirant prosecutor programme, which brought in people from the universities, had been resuscitated on a zero cost basis. People working at the NPA and the Department of Justice who were not prosecutors, had also been brought into this programme as well. The Department had agreed to fund them for the next year, and this would have an impact in the courts and provinces. Ninety prosecutors would be co-opted into this programme and would start working in the district courts within the next month.
Skills in cyber crime were very low at the moment, and external support had been pledged. The Department and the DG were looking at how to access eternal support that complied with all the necessary regulations.
Steps for the NPA to have a separate budget vote had been on the agenda all along, and discussions were ongoing with the Minister and the DG. This would give the NPA administrative, budgetary and accounting independence. At the moment, the DG of the DOJ was the NPA’s accounting officer. If this went through, technical amendments to the NPA Act would be necessary.
Regarding progress on the implementation of Truth and Reconciliation Commission (TRC) recommendations, the recommendation was that persons who had been refused amnesty for apartheid crimes should be prosecuted. Over the years, the NPA had looked at cases were amnesty had been refused and not applied for. There were two cases presently enrolled in the High Court. João Rodrigues was one, where the former security officer was charged with the murder of Ahmed Timol in detention. In addition, there were over 100 other cases under investigation, and a review was been conducted in 300 others. In the Rodrigues case, where the applicant had asked a permanent stay of execution, the judge had refused the application, but had mentioned the following in the judgement:
- That the conduct of the relevant officials and others outside of the NPA at the time should be brought to the attention of the NPA for consideration, in particular to consider whether any actions in terms of Sec 4(1) the NPA Act was warranted.
- That there must be a public assurance from both the executive and the NPA that the kind of political interference that had occurred in the TRC would never happen again.
- That the NPA should indicate the measures, including checks and balances, which would be put into place to prevent a recurrence of these unacceptable breaches of the constitution.
There was currently an application for leave to appeal that judgment, and the outcome of that application was awaited. Meanwhile, the lawyers for the family had asked the Commission on state capture to investigate this matter, and separate calls had also been made for an investigation of these matters.
Mr E Mthethwa (ANC, KZN) wanted to know what plans the NPA had with regard to overcoming the capacity constraints plaguing the entity, knowing how important the entity was for SA’s democracy. How were the plans of the NPA having its own separate vote going to assist the Department? Could the Committee be provided with the NPA’s organogram in order to ascertain the extent of staff shortages it faced? He asked about the changes in the Department’s future budget growth, and asked if it could shed some light on what was meant by “negative growth in assets”?
Ms M Mmola (ANC, Mpumalanga) asked why the Department’s chief financial officer (CFO) was absent, knowing that the Committee would be dealing with its budget today. It was said that two officers were occupied in an acting capacity -- did it mean that these positions were vacant? If yes, when were they going to be filled? The NPA had said it did not have properly skilled persons in its cybercrime unit -- how did it plan to up-skill its staff in this area? When was the last time staff were were trained in cybercrime and security? The presentation had stated that the expected percentage of criminal cases postponed due to the unavailability of court administration staff in 2019/20 was 0.3%. What was meant by the unavailability of court administration staff? Why were the targets on the objective dealing with enhanced and integrated Family Law Services targeting 50-60% going forward, instead of 100%?
Mr T Dodovu (ANC, North West) said that the architects of SA’s constitution had placed this Department at the apex of the country’s aspirations. The preamble to the constitution states that the people of SA, acknowledging the injustices of the past, calls on the Department to ensure that there is justice in our society. This shows the importance of this Department, but one could not be but disappointed with what had happened here since morning. Coming here today was to do two things -- to be presented with the APP and to pass the Department’s budget. From the outset, this Department was not ready for this to take place. The critical duty of this Department was to restore public confidence on the country’s constitutional democracy, and one of these institutions was the NPA. Knowing what had transpired in the last few years, one would have expected the Department to work to restore public confidence by announcing the measures it would take to accomplish that. Listening to all the presentations made today, there was no sense as to how they intended to accomplish that.
Despite the euphoria following the President’s appointments of the heads of the NPA, the SIU and the like, the Department must know that they faced a herculean task to clean up these entities. They could not convince the people of North West that they were doing a good job until they tackled the massive and rampart corruption that happened there. Right now, North West was under administration in terms of section 100 of the constitution. So many cases had been reported to these entities, and they have convince the people of North West that they mean business. A typical example was Mr Motsamai, seated alongside, who had spent 28 years in prison but was released only two years ago. No reason had been advanced as to why he had not been released as a political prisoner -- and there were some still languishing in jail today.
Mr K Motsamai (EFF, Gauteng) was disappointed with this Department that every citizen was supposed to trust. What efforts had been made to root out corruption and maladministration in the Department of Correctional Services?
Ms Z Ncitha (ANC, Eastern Cape) wanted to know the Department’s audit outcomes in this financial year. It was using a lot of consultants. Departments and companies were often cautioned not to use consultants, but here it seemed as if it was encouraged in a department that was short-staffed. Was it not a negative thing to do, rather than recruiting staff with the requisite skills to do the job? The Department was complaining of budget cuts, yet it was under-spending on its budget, especially on infrastructure development, to the tune of R200 million. How could one reconcile this anomaly?
Ms T Modise (ANC, North West) was of the opinion that issues raised about North West should be taken seriously. What were the plans to deal with the mess inherited at the NPA, which also included four positions illegally appointed? What were the problems at the NPA’s Mafikeng office? What criteria were used to appoint the person acting as the director in that provincial office? Why was a deputy director with 18 to 20 years of service bypassed to appoint someone junior? Was this not a way to cause leadership instability?
Mr S Mfayela (IFP, North West) congratulated the newly appointed heads of the NPA and SIU, saying they could count on the support of this Committee if they were doing the right thing. The concern was that the Department was complaining about staff shortages that were affecting their efficiency, yet there was huge under-spending on personnel expenditure, which made no sense. Another issue was the expenses that went to rentals -- about 47% of the budget -- when there were state-owned unused government buildings everywhere, some of which were dilapidated and even hijacked. The Department must rid itself of this culture of building magistrates’ courts in the rural areas with no staff, which renders them just white elephants of no use to the communities. What were the monitoring mechanisms to ensure that courts were optimally utilised?
Mr I Sileku (DA, Western Cape) wanted to know why the audit outcomes of “qualified opinion with findings” which the Department received for two consecutive terms had not been mentioned as among the challenges that needed to be addressed. One did not expect to be provided with more funding when the funds provided were not properly managed. With all the commissions of inquiry going on, it was expected that they would all come up with recommendations, so what plans were in motion to cope with these? How many cases had been referred by SIU in the previous years and what was the success rate, and who monitors that? What were the reasons leading to the growth in compensation, and what measures were in place to curb and manage it?
The Chairperson said that certain question required specific responses, so they might not be answered to Members’ satisfaction. The NPA and SIU had not been expected to present their APP at this meeting. Policy matters that affect them might have to be kept on hold, and the Committee would invite them specifically on another day to present their APP and budget, and to answer to their questions. The Department could respond to the questions, since they have presented their APP and budget.
Deputy Minister Jeffery acknowledged that the harsh criticisms regarding the allocated meeting time had been noted, but said the Department had been sent specific questions the Members wanted to be responded to, which the Department had done. There would be more time to engage with the Committee, knowing that this was an election year.
On the questions on consultants, these had all been engaged for the various commissions, and not for the Department’s work. That had been for only a short time, and they were not permanently employed by the Department.
On under-spending, it had to be noted that the Department of Public Works were agents to the Department of Justice, and in cases where they were unable to spend all the money given to them because of the lack of capacity, it had to be looked at more broadly by government.
On the issue of political prisoners, the amnesty committee of the TRC would decide which cases were political, with a set of criteria. People applied there for amnesty, and some got it and some did not. The Mbeki special dispensation did not apply to those whose amnesty application had been refused.
On why the NPA want their own special directorate, he said it was the President that had appointed it and not the NPA wanting it. The Department would want examples of the courts that were not being properly utilised.
It had not been stated in the communications that the correctional services sector would be covered in today’s meeting. The concerns raised by Members could be passed on to them and when they were invited, they could be dealt with.
Mr Vusi Madonsela, DG: DO, responded that the Department had obtained a qualified audit opinion in the interim and was working hard to improve on that, but the process was still ongoing. When that was completed, the Department would know if there had been an improvement. Regarding the absence of the CFO at the meeting, when the letter stating the matters to deliberated was received, the impression was that it was not going to be a meeting involving an extensive deliberation on budget issues, because the issues to be discussed were stated. That had been a mistake on their part.
The Chairperson interjected to clarify that the meeting had been scheduled for the budget and APP to be presented, and that had obviously required the presence of a CFO. Though things could have been done better, no fingers should be pointed.
The DG responded that he was by no means pointing fingers, and that the Department took the blame for the non-appearance of the CFO. This would be corrected in future engagements.
Ms Mphahlele-Ntsasa clarified that the budget increases and decreases were based on what was spent in a financial year. The spending on capital assets had decreased in the last financial year because the Department’s relationship with the Independent Development Trust (IDT) as implementing agent had ended. The Department had been advised to work directly with the DPW and not the IDT going forward. The big driver in the compensation of employees had to do with dealings with Occupational Dispensation (OD), which involved lawyers in the Department. The negotiation for salary increases was always above 3% for senior staff, and in most cases were above 6% for OD, which had driven it higher than normal.
The delay in providing court administration staff had to do with procuring court interpreters and court recording staff.
On why litigation targets were low, family advocates normally brought parties together. For instance in divorce matters, both parties come together for the interest of the children, so it was not easy to set a target of 100% here. All targets set in the APP take in to context all the work that had to be done in that specific sector.
On how much was spent on legal services, in 2018/19 it was R1.82 billion. On the amount spent on rental and leased buildings, this was one area where the Department needed to work better with the DPW.
The DG further clarified the under-expenditure on the compensation of employees by stating that what tended to happen was that the impact of a projected budget cut in this sector meant that even when vacancies needed to be filled, it was not done because of the carry through costs. Since 2015, a lot of vacant positions had not been filled because many of them had been frozen. If money was allocated this year, the Department was not likely to have the money next year, so it would irresponsible in terms of the Public Finance Management Act (PFMA) to employ people on a permanent basis, knowing that there would be no money to pay them in the new year.
The Chairperson said that some of the issues raised by the Members would have to revisited, because not all issues had been dealt with today.
The meeting was adjourned.