The Minister of Justice and Constitutional Development made it clear that the Department must be made up of officials who care about justice and the wheels of justice must turn unhindered. He addressed his goal of dealing with corruption and that of turning the Office of the Attorney General into a modern law firm. He noted the assistance the Department of Justice and Constitutional Development (DoJCD) would give to the Fees Must Fall students who wanted to apply for criminal record expungement and said that this was not interfering with the judiciary and it was ultimately the President’s decision, the Ministry was only there to assist and advise, as allowed by the Constitution. He spoke about the challenges DoJCD faces, and mentioned the importance of digitisation, as well as integration of information systems.
Members asked about the Office of the State Attorney mismanagement and corruption; the contingent liability for R2.3 billion claims; the underspending on compensation of employees yet the high vacancy rate; problems with collection of debt from other department for SIU investigations; contract management; prioritising gender based violence and an update on the R1 billion to be reallocated to address gender based violence within the budget; the high vacancy rate linked to underspending in DoJCD, maintenance problems in the day to day running of courts, ineffective Master's Offices, the criminal case backlogs; not meeting targets, not having efficient systems in place, and slow response to the audit action plan.
Address by Minister Ronald Lamola
The report before you today is the last report of the fifth administration and also the last within the 25 years of our Constitutional democracy. As a department, we have come a long way and the journey started with luminaries Dullah Omar, right up to where my predecessor had left the important task of ensuring that our people have access to justice, constitutionalism and the rule of law which are enshrined in this great nation.
From the perspective of the Ministry, this annual report and the feedback received from the auditor general serve as a diagnostic report. We can choose to look at this annual report through the prism of performance, or we can choose to use this report as a base which outlines the systemic problems which curtail our department from being at the forefront of:
• Access to Justice for All;
• Transforming both the judiciary and the legal profession; and
• Promoting Constitutionalism and the rule of law through the entire sphere of society.
One of the challenges which has a direct impact on the performance of the department is the high vacancy rate we are seeing across the board. Now more than ever, the Justice Machinery needs skilled administrators to make our constitutional vision a reality. This is certainly a priority I intend to resolve before the next annual report is presented. All senior management posts must be filled, with exceptionally skilled people, who have the heart to serve South Africans.
Justice and Correctional Services Futuristic Plan
As I have said, this report must be viewed as the culmination of an era. There are strategic long-term questions which the Department has been tasked to address in a strategic planning workshop which will be convened by the Ministry in a couple of weeks.
Part of the strategic work requires us to take stock of important milestones such as ensuring that each province has a High Court. This has meant that justice is more accessible.
Someone in Sibasa who needs to effect a divorce is no longer required to drive six hours to Pretoria only to be told certain papers have not to be filled correctly.
But in that same vein, we are now required to ensure that our courts’ services evolve, our people need a justice system which is efficient and expeditious.
Digitization and Integration
For us to achieve these goals, digitization must be at the center of the justice system across the board. More especially the criminal justice system.
Admittedly, this a project which has not been implemented satisfactorily to date. As a result, the Ministry will make this a top priority.
We want South Africans from all walks of life to walk into courtrooms which are functional and well organized. Our courts must serve the people without any unnecessary delays.
Digitization is at the center of turning around the court administration. We want to deliver in terms of improving the experience of victims and witnesses.
This means supporting victims through the Criminal Justice System process and making fair and respectful treatment of victims and witnesses the norm.
We must digitize the Criminal Justice System so that we can streamline processes – this means police embracing digital tools and courtrooms becoming a beacon of digital working.
Our cases must be dealt with at the appropriate level and promptly, particularly in the magistrates’ and Superior Courts where better ways of working will make the system more efficient and effective.
Digitization of the Criminal Justice System is not the only action we will take. We need to improve the way the Criminal Justice System deals with specific crimes that require an enhanced response.
Sexual violence cannot continue unabated. Domestic violence and abuse ruins lives and shatters our women in our communities. To this end, ensuring that we overhaul the criminal procedure act, and other related legislation to ensure that we differentiate between sexual offences and gender-based violence crimes is an important milestone.
We also need to able to respond to cybercrime as emerging crime.
One of the things which can be gleaned from this performance is the fact that we are still struggling to integrate the work of the department of justice and constitutional development with that of the department of correctional services, police and other relevant departments.
This is despite our report stating that in the period between April 2016 and March 2019, over 1,6 million cases were electronically processed through the Integrated Justice System (IJS) between SAPS, NPA and the DoJ&CD.
These electronic information exchanges include associated docket ready notifications, docket requests, electronic charge sheets and electronic case outcome (postponement, date & reasons) integrations.
Available nationally, these integrations are connecting 1,144 police stations linked to 509 courts across all nine provinces and enable reporting of performance of the criminal justice system.
Efforts will continue to ensure that all other players, entities and departments within the criminal justice system are included in the IJS system.
We have not been able to observe the impact of these developments in the lived experience of South Africans. The ultimate measure of service delivery is its impact on people who use and need these services the most.
It is clear to me that the culture of integration in the departments does not exist and this is something that the Deputy Ministers and I will drive.
Transforming the Judiciary and Legal Professions
One of the most troubling divisions in the department which is in a dire condition is the Office of the State Attorney.
Government civil litigation if not handled well, can prove to be a major threat to country’s fiscal liability. Whilst we welcome the Special Investigative Unit’s investigation into the division, we realize that we cannot rely on that investigation alone to turn this division around.
As result, we are in the process of finalizing governance model that will ensure that the state attorney becomes a model law firm.
We will also conclude the state litigation strategy and clear Counsel Briefing Policy is finalized and the Tariff Policy and Mediation Policy is receiving urgent attention. We are looking at presenting this to cabinet in due course.
The high level of femicide and gender-based violence in our country remains a sore point and requires all of us to do our bit to curb this scourge.
Following the successful National Summit on Femicide and Gender-based Violence on November 2018, the Department will continue to lead in the implementation of initiatives flowing from this engagement.
Our people want to see a department that is responsive to this issue but most importantly, our nation wants to see proper plans to address the systemic problems in our processes that lead to secondary victimization.
The roll-out of sexual offences courts remains an important leg in assisting our quest to eradicate gender-based violence and femicide. An additional 15 courtrooms were adapted in line with the model of the sexual offences and this brought the total number of courtrooms adapted to 90.
We are planning a further 10 courtrooms in the current financial year. Dedicated sexual offences courts that were adapted in the previous financial year include Bredasdorp in the Western Cape, Postmansdorp in the Northern Cape, Thaba ‘Nchu in the Free State, and the current financial year Sibasa in Limpopo.
We are alive to the fact that the roll-out of these courts is not a silver bullet. Furthermore, whilst we are encouraged by the increase in convictions on sexual offences, we are careful not to use that as the only yardstick of performance.
We will be closing monitoring the number of matters which are enrolled on court rolls and the time it takes to finalize these matters.
Once the treasury process has been finalized, around the R 1 billion allocations to address the scourge of gender-based violence will ensure that we capacitate our Thutuzela Care Centres which are proving to be a critical part of our machinery in the fight against gender-based violence.
Governments Fight Against Corruption
The ultimate test of our resolve against corruption lies firmly in the ability of the criminal justice system to ensure those who have ploughed state coffers are held accountable in a court of law.
There is no doubt that this a priority of this administration, this also evidenced by the department’s assistance to the NPA. R102 million has been given to the NPA for it to do its work without fear or favour.
We have also made it possible for the NPA to solicit the services of a diverse group of counsels which vary in experience. We will continue to ensure that the NPA is capacitated.
We have also signed mutual legal assistance agreements and extradition treaties with various countries across the world to aid the work of the NPA. The wheels of justice must turn without any hindrance.
And as we have said, the interests of justice have no borders. We know that those who have looted our state have sophisticated networks in all the four corners of the world.
To resolve this issue, we need the co-operation of various law enforcement agencies across the globe.
The audit outcome for the DOJCD reveals the contradictory problems in the department. Whilst it is very satisfying to note the sustained clean audit results on the Guardian Fund, Third Party Funds and President Fund.
It is equally concerning that there is a new qualification on movable assets that was raised. The audit findings on performance information is a relatively new addition to the auditor general’s report and the feedback received is of tremendous value to the Department to improve its performance overall.
As we speak, the SIU special tribunal stands ready to recoup R 14.7 billion. The State Capture Commission will also be resourced adequately and perhaps most importantly, mechanisms have been put in place to ensure that its investigations flow into the work stream of the NPA.
A project plan for Audit Outcomes plan
I have asked the acting director-general and the team to present a project plan which will ensure that our audits outcomes drastically improve. This will be monitored by the Ministry.
With this in place, I am certain that before the end of this year, that will address the challenges that have led to the increases in irregular expenditure.
In the reported instances, the Department has requested forensic investigations from various external bodies to ensure that the challenges are clarified given the current environment.
This is an additional precautionary measure to ensure that where there are instances of irregular expenditure, we must establish that there was no corruption.
However, some of the findings raised relate to new interpretations that can only be resolved through communication with the National Treasury.
As far as consequence management is concerned, the department has to focus on two aspects, i.e. was the system not adequately designed or did an official not follow the process as per the designed system of internal control.
In the first instance, the systems are improved and in the last instance, appropriate progressive disciplinary action will be implemented. I will be personally tracking the implementation of consequence management.
We need an official who believes that Justice matters. Our officials must be willing at material times to make a difference for the public we serve. Our approach should be one which engenders us to citizens.
We must demonstrate that we value everyone who seeks our help. And ultimately, we must be able to demonstrate that we are building a government which listens; collaborates and acts towards a common purpose.
I would like to restate something I have stated in public. In my previous appearance before parliament, I was asked what type of assistance is available to fees must fall activists who have found themselves on the wrong side of the law.
In particular, I was asked whether the department could assist with Presidential pardons concerning this matter. I made it clear then that there is no blanket amnesty process. All of them will have to apply for assistance and upon this application, the department will duly assist.
This is the same offer we have extended to Khanya Cekeshe. Like other Fees Must Fall activists, he will be required to process required forms that he must fill and supply various information. I have since been advised that he has applied for leave to appeal, this effectively means that the application for a pardon cannot be entertained alongside the judicial process.
To inform our citizens of this process is not to undo the work of the prosecutor with a stroke of a pen. On the contrary, a pardon in our days is not a private act of grace from an individual happening to possess power, it is a part of the Constitutional scheme.
In conclusion, I would like to pay a special tribute to one of the contributors to the Constitution as we know it today. Adv Willie Hofmeyr leaves the Asset Forfeiture Unit after dedicating a great deal of his life to its work.
People like Adv Hofmeyr are simply irreplaceable, but our society needs to replicate them to take this Constitutional society forward. We thank the advocate for his distinguished and ethical service to the nation.
Also noted was the departure of Adv Silas Ramaite, Director of Public Prosecutions and Ms Vidhu Vedalankar, Legal Aid Board CEO.
Questions and comments for the Minister
The Chairperson thanked the Minister for commitment to oversee irregular expenses by the end of the year, and said that this meant that when he comes back to the Committee early next year after he gets back from the constituency then the Committee can get an update in how far they are in dealing with this problem of irregular expenses.
Ms N Maseko-Jele (ANC) thanked the Minister for the commitment and effort to turn DoJCD around. “I like your words when you say the wheels of justice must turn without hindrance,” she said, “We hope senior management officials heard you. Those that do not do their job must get the punishment they deserve".
Adv G Breytenbach (DA) said that when justice system cannot attend crime scenes because we do not have police vehicles and a young guy sets alight a police vehicle and you go on Twitter and say you will ensure he gets a presidential pardon and his record gets expunged, then how does that tie in to the goals you have stated here? We want justice to work and we want to help you but if your first reaction to burning state property is that "we expunge your record", then where is the accountability you speak so passionately of? Why is there accountability for some and not for all? What must South Africans do with that? Why should the NPA, the police, the judiciary take seriously your commitment to see to it that the looters who have plundered the state coffers, as you put it, are held to account when your reaction to this is that once that is done we will pardon them and expunge their record. What must we do with this reaction of yours? This is not how the criminal justice system works, there must be consequences.
Mr W Horn (DA) said that the Office of the State Attorney has a specific history of a downward spiral. He has heard them address tariffs and briefing patterns and mediation, and that is important. However, the chaos of Office of the State Attorney revolves around corruption which the SIU is addressing, management chaos and lack of quality legal services to the state. These issues must be addressed in an integrated manner or there will not be a turnaround there.
He was pleased to hear about the assignment of sexual offences courts. He asked for an update on when the sexual offences regulation will be gazetted as the end of this financial year is too slow.
R1 billion was allocated to deal with gender based violence. But if you look at what the President says it is a billion rand that has to be found in the current budget. How far are they in identifying and reprioritising funds to make up this R1 billion, as all we have at the moment is just talk and it is already a month later?
Mr Horn referred to the comments made on Twitter and said that unfortunately what the Minister is saying today is slightly different from what he announced on Twitter.
He asked to hear his views on the constitutional scheme of presidential pardons. The separation of powers is the golden thread running through it. If you want to assist people to apply for expungement, then Mr Horn suggested the Minister should go back to private practice. It is an authority the President has and it is highly inappropriate for the Minister to make these announcements. Mr Horn said that the Minister must simply say, if there is an application we will deal with it.
Adv T Mulaudzi (EFF) said that the justice system must be a single system that accounts to the Chief Justice. He appreciates the additional courtrooms DoJCD will add. He would appreciate a plan for each financial year in terms of adding courtrooms as there is a great shortage. For 25 years nothing was done to improve our courtrooms so please extend them and move some courts closer to the people. He asked for an intervention to appoint the Inspecting Judge for the Judicial Inspectorate for Correctional Services (JICS). He asked that the State Attorney briefing pattern cover mostly African legal practitioners by government. He appreciated the move on Fees Must Fall – your efforts are appreciated. He spoke to the Minister in his mother tongue.
Adv Breytenbach asked for the comments to be translated.
The Chairperson said that he was going to but he did not want to interrupt him. He told Adv Mulaudzi that there were no interpreters, so could he please keep to English.
Adv Mulaudzi interpreted it himself. He said the Minister's immediate reaction on Fees Must Fall should have been as now. The Minister should have done that earlier to help the poor student who was fighting for the students. That student admitted guilt so Fees Must Fall students must be released so that all students affected can be set free and it will be a lesson to them. Thank you Minister for that.
Mr Q Dyantyi (ANC) said the Committee appreciates the Minister's commitment that says it is not going to be business as usual. We hope what you put together a qualitative plan for 2020. We are looking for that foundation. We are going to have the eyes of a hawk in our oversight role of your department. We are unrelenting about this.
Ms W Newhoudt-Druchen (ANC), through her sign language interpreter, spoke about training for women, about gender equality, and said that she herself was personally concerned with all entities meet the 2% disability employment target. Two per cent is very little so it is important to at least reach this. Persons with disabilities must have access.
Deputy Minister John Jeffery replied about the draft Sexual Offences Courts Regulations. There has been a socio-economic impact assessment study on the Regulations. The Minister was been communicating formally with the Minister of Finance to inform him of the financial implications of the draft regulations, which will be submitted end November and gazetted by January 2020. The commencement of the regulations is done by the President and is set to be January 2020 also. Once that is done, it provides that the Minister can officially designate courts to be sexual offences courts. It will have to be a formal designation and courts must comply with the regulations. Sexual offences courts will be at the regional court level.
Minister Lamola replied that there is a high vacancy rate and they will re-advertise posts in the State Attorney Office to fill them. The model they want to achieve is that of a 21st century modern law firm. The way the Office is now, it was designed in the old days of apartheid and it needs a complete overhaul, to remodel it. On African and women representation, he thinks there has been some improvement. Briefing patterns are in favour of the black majority. With briefing patterns, the industry does not seem to feel the impact of the work and they will check on why this impact is not felt. How much was spent on black lawyers, how many black females and what type of briefs they are doing. This must be looked at.
The challenge is the reality is that some of the work comes from state owned entities. He will take it to Cabinet for discussion. Also, listed companies in the private sector are not coming to the party. Therefore we must speak of a legal charter, to have consensus with the private sector to contribute to transformation. The State Attorney is aware that the cake must be spread across the country for various practitioners.
On the single judiciary question raised by Adv Muluadzi, he hopes to finalise a move in that direction.
On diversity in senior management and the compliments from Members, we take it with good heart as we need the moral support as a Department. We must position DoJCD to respond to the country.
He did not think it was fair to equate Fees Must Fall to a broken criminal justice system. One cannot blame the challenges of society on one student. The Ministry did not interfere with the process. We allowed it to proceed. What we say is provided for in the Constitution. This House asked him what he is doing about Fees Must Fall. His response was that we can help with the application for presidential pardon and for the expungement of the legal record. This was started by his predecessor and he remains available to help the Fees Must Fall students.
There can be help that includes assistance with a presidential pardon. This was not a whim of his. This has always been there in the Department. DoJCD helps people who apply for presidential pardon. We consult the necessary stakeholders. We then decide if we support the application or if we do not support it. But we first get the necessary information and advise the President of our view. The President decides. It is not a fact accomplished. We remain available to assist the Fees Must Fall students with their application if they want us to help with expungement of criminal record after we have looked at all the facts to see if one qualifies or not. For the pardon, if we support, we recommend to the President. If we do not support, we do not take it further. If the student applied, we cannot run a parallel programme, we can only help if no other legal proceedings are running. So we do not undermine the judiciary in that context. This is an open process and it is open to anyone.
The Chair excused the Minister as he had to leave.
Department of Justice and Constitutional Development Annual Report 2018/19
Acting DoJCD Director General, Mr Jacob Skosana, introduced the team. They would look at the highlights. They had a mixed bag because there were some strengths and some challenges. In some areas they had not met performance expectations.
Ms Lebo Mphahlele-Ntsasa, Head of Strategy Planning, Monitoring and Evaluation, presented updates on policies on the National Policy Framework on Child Justice, the research project on the Impact of the Child Justice Act, review of the Domestic Violence Act, finalisation of the National Prevention Strategy against Femicide, implementation of the Truth And Reconciliation Commission recommendations for basic and higher education, the exhumations and reburials of the Missing Persons Task Team as well as community rehabilitation.
Overall, DoJCD had 101 performance indicators and 74 were achieved.
Key achievements for 2018/19 included:
• Alignment of Western Cape provincial and magisterial districts completed for easier access to justice.
• Three new Small Claims Courts were established to bring the number to 415.
• Monetary jurisdiction of Small Claims Courts was increased from R15 000 to R20 000 from 1 April 2019.
• A total of 15 dedicated Sexual Offences court rooms were re-established bringing total to 90.
• Paperless Estates Administration System rolled out to 27 magistrates courts bringing total to 278. This allows small estates to be processed at the nearest magistrates court.
• 48 magistrates courts linked to 23 correctional facilities through video. 17 271 criminal cases were remanded using this technology which is a 44% increase in its use where it is installed.
• Number of courts offering civil mediation was increased by 80 to 134.
• Court Recording Technology (CRT) implemented at 2 145 fixed courtrooms.
• MojaPay implemented in eight provinces so turnaround time to pay maintenance beneficiaries improved.
Challenges were identified as:
• Ongoing budget cuts meant DoJCD had to relook at priorities and fund the most pressing areas.
• Not all vacant posts could be filled.
• Office of the Chief State Law Advisor had difficulties filling posts due to the ongoing moratorium.
• It assisted with the establishment and management of the State Capture Commission and PIC Commission despite its limited human resources.
• Internal investigations in DoJCD due to State Capture Commission affidavits.
• Five of its ten top management posts were either vacant or had officials in acting capacity.
There are ongoing budget constraints and had to reduce the number of staff in contract posts. The approach was to do more with less. They identify critical posts and hire what they can. She admitted they were struggling to fill senior management posts, specifically senior specialised legal practitioners.
DoJCD obtained a qualified audit opinion in the last three years. Guardian Fund, President Fund and Criminal Asset Recovery Account (CARA) kept their clean audits. Third Party Funds improved from qualified to an unqualified audit.
The average growth of the budget is only 2% over the last three years. On the Department not spending its capital budget, it is working with Public Works to ensure we do not face this problem again with the capital budget. Accruals were paid in 30 days so we have done well there. Some of the above-inflation cost drivers are building leases, electricity and water, and security services. However, the average growth below 0% confirms the implementation of the cost containment measures . DoJCD was told by National Treasury that its budget will be cut again for 2019/20 by R900m.
She went through the performance indicators. Examples include:
• Criminal case backlog in the lower courts was 43 862 against a target of below 43 500.
• Due to ongoing data challenges at lower courts cases were not updated timeously on the Integrated Case Management System (ICMS). 4 245 unreturned criminal cases were reflected which was a significant decrease from the 18 000 the previous year.
• The Minister already mentioned the sexual offences courts. Closed circuit TV is a problem as they break down. In the sexual offences courts, procurement was addressed and 12 CCTV systems in regional courts were upgraded in line with the minimum standards of the sexual offices court model. CCTV enables witnesses to testify in a separate room if necessary. Going forward those cameras that are not working will be upgraded.
• DoJCD is developing a Femicide Watch dashboard to track all cases of femicide in line with UN guidelines: how it happens, to whom and under what conditions. This is in development.
• 19 688 cases on the National Register for Sexual Offences cases were ring-fenced for validation. However 4 199 of those cases verified were not included in the Register due to duplication or no court orders. Identified errors were referred to courts to verify the identified cases.
• 75 384 children were assisted through family advocate services.
• The role of the court annexed mediation is to facilitate early settlement of disputes and save costs. 80 sites for mediation were approved by the Minister. Regulations will be drafted so attorneys conduct community service as required by the Legal Practice Act to allow the public to receive free service.
• The construction of Booysens and Plettenberg Bay Magistrate Courts were completed. Mpumalanga High Court was not completed due to incomplete access road but it is now being used.
• The transformation of State Legal Services led to 41% of the 5 171 total briefs allocated to female counsel and 83% to previously disadvantaged people.
• The legal costs paid by the state and the claims against the state for medical negligence and unlawful arrest and detention were discussed in detail.
• International treaty obligations were not 100% compliant but the shortcomings relate to the finalisation of reports. The African Charter on Human and Peoples' Rights report was not submitted because of outstanding work by Department of Women. [A correction was made to the presentation and it was noted that the Convention against Torture report was completed].
• National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance was finalised and submitted to Cabinet.
• Eight departments/entities were connected to the Integrated Justice System exchange information.
Ms Lorraine Rossouw, DoJCD Chief Financial Officer, spoke to the audit outcomes and audit action plan.
Irregular Expenditure increased with R1.147 billion in 2018/19 and is either under investigation by the department or external forensic investigators. These expenditures were not identified as irregular by the Auditor General in the years when it was first incurred:
- Appointment of Counsel by the State Attorney R169.6 million.
- Unauthorised variation orders in constructing Mpumalanga and Limpopo High Court R366.4 million.
-Expansion of contract of maintenance of security infrastructure R394 million.
The Department is awaiting the feedback from external investigators before it can take action.
The unresolved audit action plan items that impacted on the audit outcomes relate to systemic challenges that require policy interventions particularly in the Office of the State Attorney, infrastructure governance and Integrated Criminal Justice Strategy (ICJS).
Other challenges relate to the significant budget cuts where core services were prioritized – impacting on support services such as asset management and performance information management in the regions. There are also systemic challenges that have to be resolved by National Treasury such as the moratorium on new IT systems while waiting for the Integrated Financial Management System (IFMS). Vetting of service providers on Central Supplier Database (CSD) by National Treasury will prevent findings on fraudulent declarations of interest in tender bidding processes. After noting the challenges, Ms Rossouw noted priority areas for intervention and progress on specific areas of the audit qualification (see document).
Acting Director General, Mr Jacob Skosana, concluded by saying that it is clear from the current challenges that the biggest intervention is the alignment of human resources with the budget. Budget cuts have meant that this needs to be realigned. Budget cuts led to contract employment being done away with. One has to look at the areas of priority in the core functions, and we are doing this incrementally. We have started with KZN and Western Cape and then are rolling out best practices to the provinces. It is a numbers game. You must put people where they are most required because of budget cuts. One cannot afford extra people where there is no need for them. There is no money coming in from the fiscus anytime soon.
The Chairperson said the last statement was interesting. Budget cuts are therefore forcing efficient allocation of resources and it meant there were no people sitting around doing nothing. If that is the case then they have dealt with a core problem. It was poor planning to have people doing nothing. The budget cuts might not be all bad if it is forcing the Department to apply itself more efficiently, as one cannot just throw money at the problem.
Adv H Mohamed (ANC) thanked the Department for a concise presentation. He welcomed the Minister’s input. He acknowledged the positives: they are very excited about the opening of the Legal Practice Council, the long awaited appointment of 176 magistrates; the opening of small claims courts to reach the poorest of poor on the ground and the action plan to combat of racism. Very well done.
The administration had to be in good shape otherwise the Department will not be able to deliver on its core mandate. The quicker we dispose of bad practice, the better we can be at moving forward.
He referred to a number of concerns. The AG pointed out the procurement irregularities and perhaps we need an update on where the Sizwe Ntsaluba Gobodo (SNG) report. There is the State Attorney investigation on page 175 that the Minister alluded to that is a concern. There was also emphasis on the contingent liability for the R2.3 billion claims that the DoJCD did not estimate on the likely claims. He asked for an explanation of the R112 million underspending for compensation of employees.
The South African Human Rights Commission (SAHRC) met with the Committee last week. They noted that the Section 32 Equality Review Committee is not as active. When the Committee asked about this, SAHRC referred them to the Department and so he asked about its status.
He asked for an update on the DDG for Constitutional Development. Where is that matter, has it been finalised? What is the status? This is another negative that had to be fast tracked, the quicker the better. He asked if it does not affect the output of the branch itself.
He referred the DoJCD audit and the problem with revenue management and the need for collection of debt. The Special Investigating Unit (SIU) also has challenges collecting fees owed to them from government departments and they do not get cooperation. Is the Department Accounting Officer involved with this? The SIU funding model is not yet complete but they do rely on those fees in the current funding model, which he knows is not ideal. He asked for clarity on this.
He noted contract management in the 2018/19 audit outcomes. There were instances of services procured without inviting competitive bids. Are those listed and was action taken or not?
He queried the operational performance and the reliability of the Office of the Attorney General. He asked for the number of criminal cases in the backlog.
He said the transformation appointment policy for insolvency practitioners in estates was last year declared unconstitutional and this affects a lot of people. Has DoJCD corrected this policy or are they relying on interim policy implemented by the Master's Office?
He asked for some reflection on spending in the Constitutional Development branch as this area is important for access to justice.
Ms Maseko-Jele referred to the NPA annual report presented the day before. The NPA gave a very damning report, especially about the increase in the backlog of cases. The community is losing faith in us. Your report implies there is a decrease in the case backlog. As we sit here in this meeting maybe two to three women have been killed according to the statistics. The Minister must note that the Auditor General audit report is putting forth a very bad picture about DoJCD and she commented on the discrepancies between that report and the DoJCD report. This tells us that officials are not taking these matters seriously.
AGSA has commented on the status of DoJCD which is very bad according to it. It is bad because DoJCD had a qualified audit. This means something wrong is happening in DoJCD that senior management is not getting right. AGSA put the blame for the poor audit outcome on the failure of management. DoJCD must examine itself and come up with drastic changes. To the Deputy Minister, she said that discrepancies exist such as the domestic violence statistics. There are lots of problems with maintenance, according to the AG the audited value was 73% on matters finalised but you have 82%. According to the AG, the number of criminal cases in the backlog roll in lower courts is a higher number than your report. Therefore we have to closely monitor the Department.
It was very concerning that irregular expenditure in DoJCD increased especially in supply chain management and procurement areas. The irregular expenditure dating back to 2017 has not been dealt with. DoJCD must be prepared to improve that. “It is bad, Chairperson,” she said.
On the eradication of gender based violence, DoJCD tabled a 2017/18 report on the implementation of the Criminal Law (Sexual Offences) Amendment Act. Fifth Parliament made a suggestion to engage on that report and we must make sure we sit down with DoJCD and have a briefing on that.
On the transformation of the legal profession, there must be a support for black legal practitioners, especially black women, for all those obstacles that persist. We must ensure our women have equal status to their male counterparts. It must become a department mission to ensure women are given the space. They have proved themselves but are not being given the opportunities.
In 2018/19 the Magistrate Commission only spent 70.6% of its budget. This underspending must not happen again. In the courts, the cases involving violence against women must be prioritised so their cases are not compromised. One cannot tolerate under expenditure in this area. In past years too, underspending has happened. DoJCD must ensure that next year when they come report that this irregular expenditure is a thing of the past. Senior management must ensure get their act together and correct this. It cannot be tolerated. People get huge salaries, the holiday must stop. We are a new committee. We not going to inherit what you have been doing all this time, we must stop here. We must get value for money.
Adv Breytenbach asked if DoJCD still has contracts with the Bosasa or African Global Group. What is status of those contracts and the value? There are a lot of acting appointments at Exco level. When will permanent appointments be made? How long have they been acting?
The SIU is dealing with the investigation into the irregularities in the Office of the State Attorney. The Department last mentioned that it needed R50 million for the investigation. She asked if they have the funds and asked about the status of the matter?
In the Pretoria High Court yesterday, the case on the implementation of Occupational Specific Dispensation was won. The Committee had been told that DoJCD does not have money to implement this for deputy directors of public prosecutions (DDPPs) and chief prosecutors. She asked how they intend to comply with this court order.
Mr Horn spoke about the irregular expenditure and the SIU investigation into Limpopo High Court. The history behind this indicated that the Committee previously asked DoJCD to oversee what Public Works and IDT do on behalf of DoJCD capital works. Assurances were given the project would be accelerated and they would stay in budget. But they spent double the allocated amount. He asked for an explanation and why expenditure was not mitigated, and if DoJCD was aware of the risks.
Mr Horn noted his fellow Member said it is a new Committee and we do not want to inherit old problems. However, if we compare last year’s annual report to this year it looks like a copy and paste exercise. There has been a slow response in implementing the audit action plan and stagnation in the audit outcome. Why must we believe this year audit action plan will be implemented if it is the same plan as last year?
He referred to the Chair’s comments that the budget cuts might have been a good thing. However, we were assured that essential positions would not be left unfilled if vacant. Now DoJCD is telling us that supply chain management vacancies remain unfilled.
Referring to the statistics on domestic violence, he said that the statistics stated that no warrants of arrest were issued. He understand if it was issued but not executed until the second complainant on the interim protection order was given a chance to be heard or if there was a further development. Is it a policy decision? If not, then how and when was it decided it will no longer be issued?
He asked about the court buildings that need maintenance and why the budgetary allowance was not spent.
Key target data was not being met. Outside help was sourced to finalise the national action plan and programme against xenophobic violence. He wanted progress on this. SAHRC blamed DoJCD for the lack of information and cooperation it needed to complete its xenophobia investigative report. We should not wait for another wave of xenophobic violence. One billion rand has to be found within the budget to deal with government's approach to violence aimed at the vulnerable. The President says the money is in the system and it has to be reprioritised. What is the achievement in identifying this money and reprioritising it?
Adv Mulaudzi asked about BBEEE compliance. The report stated that for contracts below R500 000 they awarded 66% to black owned companies, black youth (16.5%), and some to black women. In the same year contracts above R500 000, only 27% had black ownership. So the majority of contracts awarded to black persons was under R500 000. He also asked why no black women qualified.
On supply chain management, he asked why the head was not yet appointed. The CFO is doing this job since the head of supply chain was suspended.
He asked why they were comfortable with the underspending for three consecutive years.
How far were they in fixing Limpopo courts? Electricity is a problem there, the lift gets stuck, there are too many problems. He asked about remedial action. He also asked about fixing various problems on the construction site and how far this was.
The Master's Office had collapsed in this country. We have only three Master's Office working in the whole country. There are critical problems yet they underspend. Why in three years did they not have a fulltime head of the Master's Office.
Ms J Mofokeng (ANC) asked why there has been a delay in passing certain bills and when would they be passed. The Domestic Violence Act is still on review and nothing is happening. The DoJCD booklet on this issue is not in all languages, and its information is not accurate on the process to be followed. It does not correlate to the reality of what happens in court and police stations. There no court orders, there is a mess. She noted that they blamed the Department of Women for not finalising part of the report on the African Charter for Human and People’s Rights. She criticised them for pushing the blame onto DoW.
The courts must train magistrates on domestic violence and this Amendment Bill must be completed. Magistrates need to be vetted or trained as she has knowledge of a magistrate with a rape case.
Mr Dyantyi said that on its performance indicators, DoJCD seems to under plan its targets in order to overachieve. They need to fix that.
On Human Resources, on page 284 of the Annual Report, how many people were seconded for the commissions. He asked about the R400 million for contract staff and the 'periodical remuneration' of R21m. On page 288, he referred to State Legal Services unit which seemed to have a full staff establishment but yet the Department says they need more staff as they are in crisis. There is no value add. He asked if the people they hired added value. There is a high staff turnover so there seems to be a staff retention problem with 492 resignations. You appointed 3 advocates but 20 left. You are not a department of choice – why are people leaving? According to the stats, you have 30% vacancies in top management; he does not know how they manage. You have advertised the posts but there are no appointments. Senior management had the highest percentage of sick leave so who is leading the organisation?
They were failing to deal with the audit action plan. He noted there were consistent recurring audit findings and asked if the action plan was not working.
Deputy Minister Jeffery said it was important that they get the maximum benefit out of this process of oversight so the Department might have to respond in writing to some of the questions to provide accurate and detailed answers. It was the first time the performance indicator for female silks was used. The target was 40% for women and they went 1% over and for value of briefs for women, the value was less than the target. The availability of female silks makes it difficult as there are for fewer of them than men. On the arrest warrants, Deputy Minister Jeffery made the point that warrants of arrest were certainly issued for breaking the court order in domestic violence cases. This zero number of arrest warrants issued last year is under the section of cases removed from the roll and applies to the withdrawal of a case where people who did not show up in court. He does not have the figures; maybe they should be producing these figures.
On the national action plan, they are on schedule to implement it and he will meet with the SAHRC and raise what are their issues.
On the question of when the bills in Parliament will be completed, the Deputy Minister said that the bills are with Parliament, so you tell me. It is out of the Department's hands. National Assembly has some bills. The Minister has asked for all the bills to be revived except for the State Liability Bill. The NCOP was briefed this week on the Child Justice Bill and Cybercrimes Bill. On Hate Crimes and Hate Speech Bill, one may want to wait for Constitutional Court judgment to deal with matters of freedom of expression. There are two that the Committee needs to finalise urgently to meet constitutional court deadlines including the Judicial Matters Bill that was introduced yesterday.
On the behaviour of magistrates it is difficult when general complaints are raised. More details are needed. Let us look at mechanisms for a more accountable department and public service. There must be mechanisms where members of the public who feel they are not getting service have avenues to take that up. But with family law, family advocate and maintenance matters, the parties are emotional and so there are often complaints against the law, as a party will be aggrieved about the decision taken.
On the Domestic Violence Act review, that only came on the table after the Gender-Based Violence Summit last November. What has been under review for some time is the Maintenance Act which is with the Law Reform Commission.
On vacancies, the previous administration had said that top level positions should not be filled until after the election and the Sixth Administration came in. The position of Chief Master had been advertised but then DoJCD hit that block. Some vacancies are linked in with the restructure. Some positions are shortlisted. The State Attorney posts have been advertised. People were interviewed, but only one person was suitable for appointment, so they have to readvertise.
Mr Rodney Isaacs, Acting Chief Litigation Officer: State Attorney Services: DOJCD, replied that money was payable to SIU for services rendered. There are funds available for that investigation in the budget. They have been complying with performance indicators on briefing patterns. There are strenuous procedures in place to monitor and ensure that the State Attorney offices in the regions comply with briefing patterns, specifically women attorneys and counsel. He went through statistics of how many women DoJCD briefed in all the races. Total of women briefings is R255 954 000. This info is available. Grand total in briefings is 28% female and 72% male briefings.
The Chairperson requested more detailed answers in writing. Going forward they would monitor this.
Ms Tessie Bezuidenhout, Acting Chief Master: DOJCD, replied that they will meet with creditors and will give the Minister a draft policy by December and, depending on the end of the 2019/20 financial year outcome in March 2020, they can then present a proper policy. In reply to Adv Mulaudzi and Ms Mofokeng, she does not agree that all the Master's Offices are in disarray and do not function properly. A newspaper article had said things about the Cape Town office and the journalist made some damning statements. She acknowledges that three offices are a problem and they are addressing all complaints. Cape Town, Joburg and Pretoria are the problem offices. There are problems with the movement of files and such things. They have a task team and will have a turnaround strategy by 31 October.
The Acting Chief Master post is not vacant. She is acting Chief Master – it has been vacant since 2017. The Master post in Pretoria has been vacant since 2018 and has now been filled. That person is starting on 1 November 2019, in two weeks.
On the complaints about Master's Offices, we have 163 vacancies now due to the budget cuts on compensation of employees. There is a lot of work with 154 000 letters on deceased matters that we dealt with in 2018/19. We must work smarter with fewer people. The idea is automation and to digitise. There is resistance but we are going to implement to make it easier for the Master's Office to render service delivery.
Fiduciary Institute of Southern Africa (FISA) members deal with matters where there are bigger estates. For her, the Master's Office is there to look after the rights of the vulnerable. We have to address vulnerable mothers and children. It might not be as quick in assisting FISA members but she has taken it up with FISA. They must understand that we have to assist those in rural areas who do not have money to come every second day. She had asked FISA members to address all complaints to her directly. To date, she has not received a complaint from these.
The Acting DG, Mr Skosana, responded to HR matters. Seven senior management staff posts have since been filled from 1 April. He realises the comments made by Mr Dyantyi were qualitative in nature. Since he started as acting DG, he realised we have historical gap. There are a lot of level 3 posts that will move to level 4. Level 6 to 8 is where we have attrition as staff move on to greener pastures. Since my arrival, we have started with chain management process in all branches. The retention policy and the human resource development plan were approved this year. With interventions, we have started to turn the corner. We have been maintaining performance management. Out of 15 750 staff, the 492 resignations represents 0.03%. There is a 94% signed performance agreements for senior management (SMS) staff.
On the people they appoint, they have started with the Kirkpatrick model to look at first 6 months to how they are doing. They have started to correlate areas where we have qualifications and benchmarks which areas are doing well. It takes longer but in this financial year he is starting to get traction on that. He realises that outcomes are what the Committee really needs. For the other senior managers, we are advertising. You will see in the newspapers.
Ms Rossouw acknowledged the key qualifications of moveable tangible assets and contingent liabilities. Moveable tangible assets literally mean every moveable item such as a chair or a switch. The first problem with contingent liabilities was the completeness of the register and the estimates. They resolved most of this last year. But what was the AG concern was that we need to go back on a regular basis and estimate if it was still relevant. At the moment it is only individual cases that must be resolved. NPA deals with wrongful prosecution and that is easy to group and estimate but for Justice you must evaluate every case on its own merit. With the Auditor General, every year they fix something, then they move to something new. This year the AG discussed when it should be put on the register whether at the summons stage or at the letter stage where they state intention to sue. She said they need to address that aspect.
On the leave entitlement of magistrates, there is late recording of leave therefore the misstatements which need correction. The new leave cycle regulations kick in on 1 January and that will resolve challenges there.
On the audit finding on movable tangible assets, she said the staff worked very hard to resolve that. They had an intervention team but the problem was there was no structure in the regions. They got contract positions to resolve it but then in 2016/17 all contract positions were let go when the budget was cut. They now have started again from a national office perspective and motivated for contract positions to be determined as critical. We are dealing now with the positions in the provinces, which will solve our problem.
They must discuss with the Office of the Accountant General about the moratorium on the implementation of new systems. That is where they are stuck. She said they have no contracts with Bosasa or Global African and no one linked to them.
On BBEE compliance, the system was implemented very suddenly so their systems did not speak to that reporting system so subcontracting is not included here. They try to get black ownership in large contracts in the contract environment. It is very difficult for the department to generate suppliers. This has been raised with Treasury so they can get its assistance to develop suppliers. If the department develops suppliers how does a CFO decide to develop a supplier? Treasury as the lead department must take the lead. They hope to see an improvement. On targeting designated groups, the challenge is having someone dealing with the sourcing strategy as it needs a lot of research and assisting. They are aware of this shortcoming.
On the contract irregularities, she said all these contracts were audited throughout the years and the assurance providers did not declare them to be irregular. With the information coming forward now, in hindsight, these have been re-audited to establish if they are irregular, and that is why they are now having it investigated. On the investigation, they have forwarded the SIU investigation progress reports. Where SNG is concerned, this is something the Office of the DG will deal with. She is not personally involved. But they have received a statement of findings. They hope to report to the Committee on 15 November about that investigation.
On revenue management, Ms Rossouw said they have a real challenge to recover debt and legal fees. The Department of Health owes 61% of it. The challenge is the ability of that department to refund them. This does not come from their budget. This does not come from our budget unlike DPW because we are not an agent, we do not have a principal relationship. It is in a suspense account. But money has been paid by National Treasury. We have really tried to resolve it. However, she does not know how the Department of Health can repay them and not be in trouble with delivering their operations. The State Attorney's mandate is to defend government so it must defend. It is a huge challenge but they will find a solution.
Officials doing business with the state – yes, there were incidents in 2018/19, mainly in the Office of the Attorney General. They do an investigation on each one and they report on this to Public Service Commission. We have a system in place and are accountable. The main issue starts with the centralised database of service providers as officials should not be on that database. The AG is able to do data analytics on all the systems of government whereas the Department does not have this access which is our main challenge.
On underspending, they have moved funds and the Committee regards that as underspending. Due to the budget cuts, they had to adjust plans and had to realign budgets. But you have to look at the breakdown of the underspending. The State Capture Commission money was ring fenced meaning we cannot use those funds for something else; there was the establishment of the SARS Commission; there was the matter of the magistrates salaries. These are items over which the Department has no control. We have control over the budget vote and about R10m was unspent. We underspent R112m on compensation of employees. Of that R60 million were for posts at senior level that should have been filled that were not filled. It has to be understood that when budgets were cut, it is not linked to people. In this year it may seem you have funding; but if you fill the post, the next year budget will not have funding. We were prevented from spending that money on other items as Treasury regulations allow you to move money to salaries but you cannot move money away from salaries. Thus we were prevented from having any other solutions about the underspending.
On the SAHRC report, a DoJCD official replied they will send the details when they receive it from the relevant people. On p98 is a list of grants to 20 civil society organizations and community advice offices.
On the qualified finding on performance information, the first issue is timeous capturing of data. The AG requested access to the systems directly. The AG picked up the trend that capturing only happens after a lot of requests and follow up. There are challenges with performance data on preliminary inquiries and maintenance matters but they are putting measures in place so problems are dealt with at supervision level.
The second matter was system-related. For criminal cases postponed due to unavailability of court staff, the AG saw on the system that the data reports are issued only as of today. The system needs to ensure that you can backdate and report for an earlier date to ensure the backlog numbers come through the system. This is not difficult to address as we can request changes to the system to allow us to obtain the report that we need.
Acting Deputy Director General: Corporate Services, Mr Donald Mpholo, replied that they will submit a comprehensive report on the infrastructure reports. There is the devolution of day to day maintenance from Public Works that the courts are now responsible for this year. This talks to the R10 million mentioned by the Minister and the Public Works and Infrastructure Department to deal with challenges at high courts. This improves the turnaround time to address day to day maintenance. Court managers can handle day to day glitches and use service providers to deal with these instead of Public Works doing it. Public Works said matters such as lifts and air conditioning requiring engineers should be left to Public Works. They are engaging on those aspects and will come back to that. They had a meeting with Public Works to look at revised plan to construct the college, and the two year program. This will all be included in the report. The Pretoria High Court contractor has now been cancelled and procuring a substitute contactor is in place. With the backlog courts, Public Works does it on a fifty-fifty basis and manages the whole project. They have told Public Works if it cannot get people to do the work, DoJCD must look at an insourcing model and get in people with skills to come in to do the work.
The Mpumalanga Court access road contract has been finalised and the aim is for this to be finished in six months before the end of financial year. The Court will be opened on 6 November by the President. In Soweto, the municipality gave us land and that land is with Public Works so that procurement can unfold. On Durban High Court, we will be bringing a report which will be shared with Committee. The Limpopo Court was built over a spring that affects the foundation. This is part of the IDT process to see how the land was acquired and why the credibility of the site had not been checked out. The land was donated but it was a very expensive donation as we were given land which no one wants. We have learnt from that exercise. They written report will provide answers on other aspects of the questions.
On the OSD dispensation judgment that came out yesterday that has an impact on the NPA, the Department will have to study the impact of the judgment.
On the R1 billion allocation to eradicate gender based violence, a meeting has been arranged to look into allocation so that gender mainstreaming in the budget takes place. It is work in progress. We can provide a report also about allocation to other departments. We went on to detail items [inaudible].
On the questions on domestic violence – we will ensure that process takes into account the publication that was issued. This meeting has made them realise that we must have surety and validate anything we publish in the Annual Report. It is a lesson we to take forward to have full and credible information.
Mr Mpholo committed to return to the Committee and answer questions they have not fully answered and to address gaps that have been raised. They said they have been enriched and empowered by the debate.
The Deputy Minister explained the underspending on magistrate salaries over the past three years. There is a high vacancy rate. When a position is filled by an acting magistrate, they get only 70% of the salary of a person in the fulltime job. So therefore underspending happens when people are not fulltime. They will be paid more going forward. There were 210 positions advertised last year. The 210 chosen applications are with the Minister for decision and the intention is to appoint from 1 February. There are currently 165 vacancies, apart from the 210. We increased the compulsory retirement age from 65 to 70 so they can stay on if they want to. The number of prosecutors who want to be magistrates is quite high. There is a new system for the future in effect from 1 January. Previously, if the magistrates did not take their leave they could accumulate it and they must get paid out when they retire. We are now going to allow accumulation over three years and then if you do not use it, you lose it.
The Deputy Minister said that if Members feel questions have not been answered then submit these to the Department. We need a system to indicate what questions are still due for answers, and to see how to make this process more effective.
The Chairperson said that he is not convinced that this annual process does not need improvement. We must monitor and make them account throughout the year. Otherwise the Seventh Administration will have a problem with the Sixth Administration. The Committee must discuss how we can improve oversight over DoJCD. Some of the answers are about structure and processes. As public representatives, the Committee needs outcomes and impact. We have this backlog of questions unanswered. We need comprehensive interventions. We will go through committee minutes to see what has not been answered. We will communicate with DoJCD for additional information. We do need a new approach.
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