Video: PC Justice 8 July 2020
Audio: DoJ&CD and NPA on Adjusted Budget & Revised Annual Performance Plan
Media Statement: Justice Portfolio Committee Welcomes Lower than Expected Budget Cuts at Department
The Committee held a virtual meeting with the Department of Justice and Constitutional Development and the National Prosecuting Authority on their adjusted budgets and revised annual performance plans for 2020/21. The Deputy Minister was in attendance.
The Department reported that the impact of the budget cuts (R416 million) have been less than anticipated. This will enable the Department to continue with business and put sustainable business measures in place so that services which are essential to providing access to justice and which also sustain livelihoods, are maintained. The Department highlighted the alternative measures currently investigated to contain COVID-19 and the unchanged earmarked allocation of R688m for the IJS and R40m for the ICJS.
The NPA informed the Committee that National Treasury had reduced the NPA budget by R150m. The entity highlighted that the original plan was to recruit 400 aspirant prosecutors, this plan was adjusted downward to 200. The NPA was however confident that it could recruit close to the 400 total nonetheless.
The Committee expressed concern around a number of areas. Gender-based violence (GBV) was of paramount concern as well as the recent escalation in the killing of children. The Committee also briefly had a discussion deciding to defer discussion on the Chief Justice’s recent comments on Israel. The status of the Thuthuzela Care Centres, the cost of the Zondo Commission, the planned reduction in recruiting aspirant prosecutors, the infrastructure plans, case backlogs, ICT and modernisation of the criminal justice sector, acting Magistrates failing to recuse thmeslves when there is a conflict of interest, and the readiness of the Judicial Matters Amendment Bill in general and in particular with relation to the expungement of record for COVID-19 regulation related admission of guilt fines was enquired after.
*Parts of the meeting could not be captured fully due to the poor audio quality.
Briefing by Department of Justice and Constitutional Development (DoJ&CD) on Adjustment Budget
Context of the Department’s Turn-Around Plan
Adv Jacob Skosana Acting Director-General, DoJ&CD, said that the impact of the budget cuts have been less than anticipated. This will enable the Department to continue with business and put sustainable business measures in place so that services which are essential to providing access to justice and which also sustain livelihoods, are maintained.
The Department sees a need to have strong leadership at senior management levels to steer it through the crises, and accordingly it has prioritized the filling of 49 such roles at a cost of R59 million.
New expenditure drivers owing to the management of the pandemic has proved to be a challenge which is putting a lot of strain on the budget —such as the cost of deep cleaning in the courts.
The DoJ&CD met with its executive committee and created a new protocol. This protocol aimed at firstly, classifying infrastructure into three categories. Based on the new risk adjusted plan, the Department hopes to sell the plan to entities in the justice environment so that it can share the extra costs coming with the new normal, so that the Department is able to manage. He disclosed that the national office of the DoJ&CD was exposed twice within the space of two weeks and the quotes that it received for deep cleaning were exorbitant. The ADG therefore, thought it important to note that a risk adjusted plan be developed to manage the costs.
Adv Shamila Batohi, National Director of Public Prosecutions (NDPP), NPA, interjected to ask the Chairperson whether she was the only one struggling to hear Adv Skosana’s presentation.
The Chairperson acknowledged the problem and said he thought it was being experienced by all members. He explained that the last time that he heard Adv. Skosana, he was speaking about the exorbitant cost of cleaning the Department’s offices and that it was very difficult to understand what was being said owing to the connectivity issues.
Adv Skosana said that the ICT staff in the boardroom were attempting to assist him.
He continued with the presentation. Part of business continuity measures is to sustain the courts so as not to keep them closed for long. It includes categorising buildings in terms of level of priority. If there are any infections in the courts, the DoJ&CD hopes to expedite deep cleaning so that it takes no more than a day to deep clean the court. It has also enabled some people to work from home as part of the protocol drawn up by all the stakeholders in the justice sector.
Emphasis on ICT and IJS projects
The onset of the COVID-19 has increased the need to invest in ICT. The emphasis on ICT has been a priority for the Minister, even before COVID-19. ICJS and IJS budgets have not been cut during the supplementary budgets. Not all entities within the justice sector have experienced budget cuts. Due to the closure of the courts during lockdown, the DOJ has saved a lot of money. Attempts have been made to be offset budget cuts with the savings that have been made.
Mr N Mthembu, Acting CFO, DoJ&CD, took over the briefing.
Department’s response to Economic Package
Slide 15 shows how much was anticipated to be cut and the final amount cut as split between the department’s entities. Most of the cuts were directed towards compensation of employees. The following slide shows the split between the Department and various entities.
Determination of unallocated savings
Initially, the Department expected to be cut by R1,7 billion; however, it was cut by R416 million. Accordingly, there has been a savings of about R1.3 billion. R334 million was budgeted for COVID-19 pressures, leaving about R984 million in unallocated savings.
Dr M Ndlozi (EFF) said he could not hear.
The Chairperson acknowledged this and asked Mr Mthembu to repeat his last few sentences.
Adv Batohi suggested that the camera of the DoJ&CD presenters be turned off to address any bandwidth issues.
The Chairperson asked all present to turn off their cameras, but the DoJ&CD did not turn off theirs, and the sound quality remained poor.
The Chairperson asked if the NPA could present, as he was concerned that there would be a number of interruptions owing to the technological issues being experienced by the DoJ&CD.
Briefing by the National Prosecuting Authority on Adjustment Budget
Adv Batohi said that the NPA engaged National Treasury (NT) on proposed budget cuts recognising that all departments needed to reprioritise in light of the economic pressure we are experiencing as a country. Recruitment remains critical to the success of NPA and the Goods and Services (G&S) budget allocation was fully committed. The original plan was to recruit 400 aspirant prosecutors, this plan was adjusted downward to 200. The NPA was able to reprioritise R150m from the Compensation of Employee (COE) budget allocation to fund the COVID-19 reprioritisation. NT reduced the NPA budget with an agreed amount of R150m
Expenditure performance—31 March 2020
Ms Hanika Van Zyl, Acting Chief Financial Officer (CFO), NPA, stated that by the end of the 2019/20 financial year, the NPA had a savings of R125 million. R62 million of this amount relates to compensation of employees as not all positions were filled and no recruitment were done. Additionally, the money was received late in the year, during the adjusted estimate budget process. The other R62 million relates to machinery and equipment; specifically, laptops which the NPA purchased in the 2019/20 financial year, however due to COVID-19, these were delivered and paid for in the current financial year.
NPA Response to Economic Surrender
The R115 million of the cut will come from the National Prosecutions Service (NPS). Asset forfeiture will be cut by R20 million and support services will be cut by R15 million. The cut is small for support services, because there is not a big compensation budget. However, the centralised goods and services falls within it. Tall of these cuts only relate to compensation of employees.
Budget vs Projected Expenditure for 2020/21
This slide covers a projection for the current financial year. Although the R150 million cut is already removed from the slide, there is still a saving of R75 366 million for compensation of employees, which the NPA will endeavour to use in the current financial year. The budget of for PPE and decontamination of the budget was initially forecasted as being low however, it has grown as decontamination needs to happen more frequently. It has also ringfenced R30 million within its budget in order to cater to future challenges which may arise in response to the pandemic.
COVID spending to date
Adv Karen van Rensburg, Acting Head of Administration, NPA, said the burning question is whether the cuts will impact the NPAs ability to deliver on its APP, which it has been given an extension to reassess the expenditure.
The budget cut will not impact on the NPA’s ability to deliver against the Annual Performance Plan as presented to the Portfolio Committee. However, the impact of the pandemic on the ability of the courts to operate optimally is resulting in a significant reduction in cases finalised. The NPA is working with partners in the CJS to reduce the impact, and to find innovative ways to ensure that the outcomes and outputs committed to will be effected. The NPA will present the Q1 performance information at the next briefing session scheduled for 3 August 2020
Adv Batohi said that when the NPA presented last year, 89% of the compensation budget was going to compensation of employees. This amount has been reduced to 81%, which is a more manageable amount. Plans to capacitate the NPA will be significantly improved as the proportion between good and services and the compensation budget is less than it was last year.
NDPP concluding remarks
Adv Batohi said that the impact of COVID-19 on the courts is significant and is increasing daily as there are various members of court staff and administrative staff who are affected. There is an NPA task team which is engaging with the DoJ&CD and the DPSA as the public service is affected. The NPA is finding that buildings need to be shut down more frequently and the costs of doing this are significant and will likely increase. She called for a clear plan and asked for assistance from the DoJ&CD and other government departments in considering what the best way to ensure that we are able to continue operations without putting certain operations at risk. The NPA, together with its colleagues in the Justice, Crime Prevention and Security Cluster (JCPS), is looking at ways to deliver on its APP objectives. She recalled that when they presented their five-year strategic plan, the NPA is taking a different approach this year and is focusing on achieving objectives not just relating to conviction rates, but which also make an impact. This means that it is trying to work closely with its colleagues in creating joint measures, primarily with South African Police Service (SAPS) and the Directorate for Priority Crime Investigation (DPCI), but also with Special Investigating Unit (SIU) and Financial Intelligence Centre (FIC) to make sure that it is able to achieve the goals set in the APP.
She thanked the Committee for the chance to present and said her team was ready to answer questions.
The Chairperson asked the DoJ& CD whether it was ready to continue with its presentation.
DoJ&CD presentation continued
Adv Skosana said that high priority areas will be deep cleaning with a quick turn-around time and divides the budgeted amount of R334 million according to priority, over the course of the year.
Budget adjustment impact on departmental programmes
The DoJ&CD indicated the proportions from which the R334 million was taken, per programme, with the biggest cut being in court services. Court services is the largest branch, with the largest head count for personnel expenditure. It has the greatest number of posts, the filling of which can be postponed whilst still having business continuity.
Recommendation and Conclusion
Adv Skosana one again said that the DoJ&CD is working together with the NPA and other entities in the justice sector, in order to manage the costs of COVID-19 pressures, deep cleaning being a big cost.
The Department asked the Portfolio Committee to:
Note and guide on the budget presentation
In particular to note-
-The budget cuts of R416 million and how the Department will absorb same in light of the reviewed Strategic Plan and APP
-Outcome to further change programmes allocations including additional allocations to State Capture Commission from realised savings
-Alternative measures currently investigated to contain COVID – 19 expenditure at reasonable levels
-The unchanged earmarked allocation of R688m for the IJS and R40m for the ICJS
Adv Skosana indicated that the DoJ&CD had moved away from a cash system as well as having online maintenance and Master’s Office services as part of its legacy projects.
Adv G Breytenbach (DA) said that maintenance and the Master’s office all becoming electronic sounds wonderful but she asked for more detail about how this will happen, when the integrated justice system has not been implemented. She asked how these wonderful ideas will get off of the ground. She noted that the backlog has increased exponentially since 2019, and even more so between March and May 2020 thanks to the criminalisation of the entire South African population as a result of the Disaster Management Act regulations. One of the plans to deal with this was extended court hours. She asked how these hours would be accommodated bearing in mind the budget cuts.
Adv Breytenbach addressed the NPA. She noted that the original plan was to recruit 400 aspirant prosecutors, but this plan was adjusted downward to 200 even though the NPA thinks it might be able to increase this number. She asked how it intends to deal with the reduction in cases finalised as a result of COVID-19 and the growing backlog. She asked if there is a plan in place to deal with the people who were given notices to appear in court for stepping on the beach, or collecting their children from the beach during the lockdown. She asked whether these matters have been dealt with and what is happening to those who have paid an admission of guilt. She said it cannot be that the whole population is criminalised because of regulations that are decidedly questionable. Finally, she asked whether the avenue of civil recovery of money stolen during state capture has been fully explored, and is the NPA advising other departments about this possibility as the burden of proof is much lower. The SIU could be used to a greater degree and she asked if this information is being circulated.
Mr W Horn (DA) said he was initially disturbed when the improvement in ICT was linked to the integrated justice system but this was clarified when Adv Skosana spoke to the legacy projects at the end of the presentation, when his input made more sense. He welcomed the fact that permanent AVR equipment is being invested in along with ICT. He urged that the Department similarly look into setting up the necessary systems to deal with appearances and postponements at both criminal and applications and motions at civil courts as this can also be a legacy project. This would allow for a more seamless process on virtual platforms. Regarding the cut in the infrastructure expenditure by R122 million, he expressed concern that for the last few years there has been underspending on the upgrading and maintenance of court infrastructure on the one hand, and based off of a presentation by the SIU, projects that were undertaken were not completed in time and the cost of completion almost doubled. He asked that further details on how the R122 million will be cut and what the impact will be, whether it would be in respect of new building programmes, or maintenance and upgrade of the courts.
Mr Horn addressed the NPA and said it makes sense to cut on the aspirant prosecutor’s programme, but taking into consideration the analysis shared by the NDPP after she took office relating to capacity; the programme is meant to be a critical component of strengthening the NPA in the medium term. He then asked how the cut from 400 to 200 will impact this strategy and for more information on what the knock-on effect will be, not this year, but in the years to come.
Adv S Swart (ACDP) reflected on the ADG’s comments that the cuts are far better than expected. He asked what happened with the savings and if the reduction in court services will impact the ability to reduce backlogs. He asked the Deputy Minister for an update on the sentences for admissions of guilt for arrests made under the Disaster Management Act. He said that the 28 bank accounts frozen for Unemployment Insurance Fund (UIF) fraud is amazing. The issue will be debated later that afternoon, but he did not think that the National Treasury appreciated that billions can be recovered from overseas, if the NPA and SIU are properly resourced. He asked if there is progress in looking into the Swift banking system and into ICT and artificial intelligence. Finally, he asked whether the Department has looked into the zero-based budgeting, going forward, as indicated by the Minister of Finance.
Adv H Mohamed (ANC) thanked the parties for very good presentations. He commended the Department that very good work is being done on the ground and in terms of how courts are working. He expressed concern about cuts in the aspirant prosecutor programme and asked whether efforts have been made to find external, international funding for the programme as it is not an operational programme so much as an empowering, human development programme. He was sure there would be a lot of interest in funding such a project. Regarding travel and fleet saving, he asked if there is co-ordination in fleet supply.
Adv Mohamed said there was nothing wrong with clerks and interpreters travelling with prosecutors, although he was aware that there are some who would have a problem with that. Regarding de-contamination, he recognised abuse by outside parties and suggested the need for a centrality of this operation. He was sure this was being done, but asked for confirmation.
He asked why the witness fee has not been transferred to the NPA and why it fell under the DoJ&CD.
He stated that top management is a priority in filling posts, but cutting the ground too much is also not a good idea. He suggested cutting more from middle management. On capital projects, he asked what the cumulative amount of savings is, which helps the COVID-19 cuts.
He asked what the budget for contingency plan is, as was needed in MojaPay, where suddenly the DoJ&CD had to cough out resources. Lastly, he also asked what progress has been made for judges who have asked for AVR at their particular High Courts.
Ms N Maseko-Jele (ANC) commended the good work done in the cutting of budgets and the presentations given. She was glad that the old Cape Bar legislation was being reviewed and expressed a desire to see this issue together with the establishment of a single judiciary system, be put in place going forward. These issues are important to realising the dream of the unitary rainbow nation. She asked if the Department has considered creating a team that can report on progress made on these matters, every time it comes before the Committee.
She welcomed the legacy programmes and found them encouraging. She said she was going to ask questions on maintenance, however the presentation answered this. She asked for more information on the plans which the DoJ&CD has on the Master’s office as there were reports of files missing and some being burnt. She asked how information will be recollected as some Master’s offices were destroyed in Johannesburg.
To the NPA, she agreed with her colleagues on the importance of not cutting budget for the Investigating Directorate. She commented that COVID-19 has ravaged the budget so much, but it has helped immensely in getting the best out of the NPA in terms of its planning and strategy. She emphasised that recuperating money has been left to the NPA, and the Committee continues to expect more from it. Finally, she commented on the day’s breaking news about a top advocate who has been moonlighting for government after having been disbarred, she found it very disturbing and asked whether the NPA was aware of the case.
Ms J Mofokeng (ANC) said that the matter of the advocate can be shelved for the time being as it relates to the concerns about acting magistrates who also have their own practices, leading to the situation where clients from their practices appear before them in court. More could be discussed, but the matters are related. She is concerned about budget cuts in infrastructure as there remain challenges of incomplete buildings. She had raised this concern last year relating to the Mamelodi building, which the community considers to be a hub of criminal activity. The situation needs to be addressed and a plan made for implementation post-COVID-19. She asked whether rules have been made regarding safety regulation at courts as COVID-19 will be present for some time.
She expressed concern about extended court hours, whilst there is only a little extra funding. She welcomed the cashless process, and said it was long overdue. Whilst this system is being implemented, it must be done bearing in mind why they are doing so. It should also be used as a monitoring mechanism as dirty money will be more easily monitored.
Regarding the NPA, she thought time needed to be granted to them as there will be a quarterly performance report coming out on 3 August 2020 and she looks forward to receiving an update on its progress. She asked for the report to be detailed. She expressed concern about regulation violations and state capture. On the issue of the integrated process for the Master’s Office, there needs to be a plan in the presentation, so that the Committee can gain a better understanding.
Ms W Newhoudt-Druchen (ANC) thanked the presenters. She had one question relating to the Thuthuzela Care Centres (TCCs). She asked if all of the TCCs have AVR equipment already, and if some do not, she asked whether the budget cuts will affect GBV interventions and the AVRs being installed.
Dr M Ndlozi (EFF) said that before he spoke to the presentations, he felt that the Committee and Parliament needs to take exception to the comments made by the Chief Justice in relation to Palestine and Israel. He requested that this Committee should express its exception so that the Chief Justice knows that Israel is in violation of many international laws.
Adv Swart raised a point of order, saying that he is casting aspersions on the Chief Justice, which is not permitted by the rules as aspersions cannot be cast on a person who is appointed by Parliament. He added that the issue is not relevant to the meeting.
Ms Mofokeng said that it may be because of Dr Ndlozi has not been present for some time, but t this matter is not relevant to the business on the day and the Office of the Chief Justice has its own day for discussion.
Adv Mohamed said although the members would all like to express themselves very strongly on the matter, it was not a discussion for today. The focus should be on the adjustment budget.
Mr Horn agreed with his colleagues said that it is unfair for Dr Ndlozi to try and blindside the Committee on a day when it has a very specific agenda item and when it his chance to address the presentations, have him try to force the Committee into a corner to adopt a position he would like it to adopt without the matter being properly ventilated. He proposed that the Committee stick strictly to the agenda item and if Dr Ndlozi wants the Committee to discuss the matter further with the Committee, he can write to the Chairperson so that a meeting with that agenda item can be scheduled.
Adv Breytenbach supported the submission of Mr Horn and the other members.
Ms Maseko-Jele also concurred.
The Chairperson reasoned that Dr Ndlozi was merely raising that a consideration be made and his party is within its rights to make a motion within Parliament for that issue to be debated. By merely requesting that a matter be discussed, it does not mean that Dr Ndlozi was casting aspersions. He confirmed that in terms of relevance for the day’s meeting called in terms of the Money Bills Amendment Procedures Act, the Committee should stick to the supplementary budget. In terms of casting aspersions, the Committee should focus on supplementary budget. However, it is well in order for his party to propose a motion in parliament or for him to propose that in the next meeting of the Committee or some other time, that the matter be discussed. He did not think that Dr Ndlozi was casting aspersions, however, if his party would like to raise the issue in the house, processes can be engaged with to do so.
Dr Ndlozi thought the ruling was fair and accepted the discussion to be postponed to a later date; however he felt it important to raise the concern, as no-one should be above the law. He would subject himself to deferral of the discussion to another day.
In respect of the presentation he noted that the DoJ&CD kept using the term ‘budget cuts.’ This is a misguided principle being used by Treasury, as austerity measures have never resulted in any economic development and growth anywhere in the world. These cuts are not necessary at all and will negatively impact on the Department’s ability to provide services. Relating to the backlog on cases, he considered it unfair to blame the regulations on COVID-19 Level Five as they were necessary to stop people from gathering. He said people who violated them must be accountable and emphasised that what the Committee should be asking is for more resources for those prosecutions to take place and to take place speedily. Since COVID-19 is going to be around for some time, there will be more violations which have to be dealt with speedily. Rather than criticising the regulations, government should release resources to combat those who are undermining regulations in the fight against the spread of COVID-19.
In the budget presented by the Minister of Finance, there was a glaring absence of GBV. On 17 June, the President made a commitment of R1.6 billion being applied to the speedy resolution of GBV cases. He asked where this money is, particularly the promise that that money would go to the speedy resolution of prosecutorial cases. He asked the Deputy Minister to answer although he thought it would be more relevant to get a response from the Minister. He asked what the DoJ&CD and the NPA are concretely going to do about both GBV and the killing of children, which has been escalating in the last few weeks. He asked for the Department to speak pragmatically about a strategic commitment, apart from laws to be changed, to address the matter. To the Department, he asked how much money was saved on accommodation and travel. He recalled ADGs statement that the State Capture Commission is receiving an additional allocation of R42 million; however he wanted to know how much has been spent by the Commission so far so the Committee can understand the context for the R42 million addition. Finally, he asked for clarity on what the ADG meant when he asked that the State Capture Commission wrap up its work so that the NPA can take over and prosecute. He was unclear as to whether the ADG was expressing his own view or whether the DoJ&CD had asked this of the Commission, or whether this was the view of government. In conclusion, he re-emphasised his belief that the budget cuts are misinformed as austerity will lead the country no-where, as it will negatively impact service delivery and will not lead to economic growth and development.
The Chairperson thanked Dr Ndlozi and continued where he left off in asking about the Zondo Commission. Firstly, he asked whether the DoJ&CD has tried to establish what the cost drivers of the Commission are and whether there were any cuts that could have been made. He said that everybody is tightening their belts and an institution cannot be funded without transparency in understanding the cost drivers of its operation, such that it is high. Secondly, he addressed the issue of the CaseLines system (a digital / electronic case management and litigation system). He understood that this is currently being implemented in Gauteng and asked when it will be rolled out to other provinces. He concluded his remarks by saying that the Department and NPA could respond and that the Deputy Minister could begin, should he so wish.
Deputy Minister John Jeffery, said he would speak at the end.
The Chairperson asked the Department and the NPA to respond.
Adv Skosana said that although he is presenting, his views come from the Executive Committee and management as a whole.
Integrated Justice System (IJS)
The Minister is going to Cabinet at the end of July to discus re-launching of the IJS programme. The meetings will canvas the changes needed in the space, what needs to be sustained from the past 20 years and what needs to be dumped. IJS has come to the forefront, in light of COVID-19. If it has not been done in 20 years and if it cannot be achieved under COVID-19 conditions, it is not worth being funded by next year’s money.
The programme to address this is slowly getting off the ground. As the Minister has said before when responding to the Committee, the greatest endeavour has been to bring the judiciary on board. In terms of the legal framework, the case management process, all the various parties need to be considered.
Court services branch cuts
Within this branch, the Doj&CD does not intend to cut at courts themselves, but in other less essential processes within the system. Within the court services, there are certain layers of operations and management, and using a bottom-up approach, it is targeting areas which impact the courts the least. In every court, there exist cash halls, where money is exchanged for bail, and the like. The DoJ&CD also plans to move away from a cash based system and the corollary cash in transit companies and implement a cashless system.
Fourth Industrial Revolution (4IR)
He agreed with Mr Horn that ICT needs to come into greater focus and that the circumstances have provided the opportunity to do so. COVID-19 has created the opportunity to create a more reliable virtual platform for its work. Modernisation is central to development in the future.
Projected savings are informed by what Department of Public Works (DPW) and the ADG have committed to spend in this financial year. Engagements continue as the building sector is on its knees in the current climate. The projected expenditure is R378 million. Instead of keeping money idling which can not be used, the DoJ&CD has suggested channelling the money to other uses.
He broke up due to connectivity issues and was not clear on the rest of this point.
He thanked Adv Mohamed for the suggestion of making cuts at middle management. The DoJ&CD can still do what it does with fewer hands.
Decontamination Chemicals have begun to be developed in national labs which will begin to obviate the costs of decontamination.
He apologised about the crisis on Moja pay, but viewed every challenge as an opportunity.
Cost drivers are the investigation and legal components. There is a team of investigators who spend about R18 million a month. Members of the legal team come in intervals to deal with very specific aspects. The money has run dry in the investigation aspect, as the R42 million is not sufficient.
This is the total amount earmarked for GBV across all government departments and the DoJ&CD has its own share.
State Capture spending
R700 million has been spent to date. For this financial year, the DoJ&CD has put aside R9.2 million.
This project has been piloted in Gauteng and part of the Western Cape. The project is under the Office of the Chief Justice is currently being piloted by Judge President Mlambo. The DoJ&CD has committed to supporting the project from a budget perspective; however, the system is being piloted so that it can be perfected before roll-out in other provinces.
The Chairperson asked how long the pilot ran for.
Adv Skosana said that the pilot began in March and he has been advised that it is expected to run till the end of the year. Expansion of the project is also dependent on lockdown progress and whether certain areas go down to Level 2.
The Chairperson asked if he was complete with his response.
Adv Skosana apologised for the larger parts of the response not being captured due to technological issues. He hoped that this would not be happening in the courts and that people would not be acquitted or convicted due to technological issues, and thanked the Committee for the opportunity to present.
Gender based violence
Adv Pierre Smith, Acting Special Director: Sexual Offences and Community Affairs, informed the Committee that there are no AVRs for the TCCs. The NPA is looking into a process called Court Audio-visual Solutions with the IJS and the DoJ&CD. This system would benefit victims who report at TCCs to deliver their testimonies from the TCCs and will be linked directly to any court in the country. It will also assist expert witnesses in the same regard. The process is intended to be phased in, and the goal is to have the process apply to all the sites, of which there are currently 55. There are no budget cuts in the GBV field or for the TCCs or any related project in this area. Notably, the NPA received an allocation for the establishment of six additional TCCs. The goal is to have five by March 2021, COVID-19 dependent. It is also in the process of filling vacancies at the 55 TCCs and is including advertisements for the 6 new sites. GBV is a priority area for the NPA, and will remain a priority matter as stated in the APP. Stakeholder management is a crucial aspect to their attempts to work collectively in addressing the plague of GBV.
As part of the victim-centric service focus of the NPA, children are a specific area which falls under the victim-centric service focus. At TCCs, on average, 55 to 57% of reported matters include children as victims. Training courses for prosecutors includes in its social context sensitivity training on how to deal with children as victims when they are to appear in a court environment.
Although Lockdown has increased the backlog challenge, for the months of April and May, there has also been a 47% decrease for the matters reported at TCCs. This may relate to challenges to report matters at a TCC due to movement restrictions, however it is significantly lower than the previous financial year for that time. In public awareness campaigns, children are also a specific focus on how the NPA and its stakeholders deal with atrocities, including the unfortunate killing of children. If there is a saving, it is looking to see how to assist in relate to sexual offences and backlog.
Child killing and backlog
Adv Batohi said the killing of children is a focus area, but when we have a society that kills children, it is something which the NPA as the reactive part of the justice cannot address. The police will address incidences, the NPA will prosecute and people will go to jail, but she asked what is in the moral fibre of a society that kills children. There is a process in place to address the negative impact of the increased backlog present before COVID-19. There are various role-players involved. However, the backlog problem has to be seen in light of the greater efficiency of the criminal justice system. Backlog has always been a problem, which is exacerbated now, by COVID-19. Stakeholders are considering various things as the ADG mentioned; including additional hours or courts sitting outside of normal hours, however it is a greater justice system problem; however backlog has always been a problem. The court system and the NPA need to work together, and hopefully the crisis helps them to address the broader issues in system efficiency and address the backlogs in the process.
The NDPP assured the Committee that although the NPA thought it had to reduce the amount by 50%, she believes that it may still be able recruit close to the 400 if not the full amount because it recognises the need to bring in fresh capacity at the entry level of the NPA. Regarding external funding, she agreed that it is a training and empowerment initiative. Last year the NPA was looking into external funding, but since it received an increase in the budget, it did not need to continue this pursuit. For now, the NPA can deal with the programme within its budget.
The strategy to deal with corruption is primarily two-pronged. On the one hand it has to hold accountable those who have plundered state resources whilst bearing in mind private sector corruption and secondly, to bring back the money. Both the civil recovery and asset forfeiture processes fall under the NPA. The work of the SIU, under Adv Mothibi, is a very important tool in the anti-corruption space in their dealings with civil recovery. The commencement of the work of the Special Tribunal is an important tool in this particular fight. In the asset forfeiture space, the NPA has been liaising with Adv Mothibi to see how it can use the Tribunal processes that relate to SIU investigations. She warned that asset forfeiture process in recent times did not escape the negative perception it has had in the past as the figures are still extremely disappointing. It speaks to various issues, including, resource, capacity and strategic leadership, which have been lacking in that space.
She said that she was pleased to have the newly appointed Deputy Director of the Asset Forfeiture Unit (AFU) Public prosecutions, Adv Ouma Rabaji- Rasethaba, present in the meeting. Since he started on 1 June 2020 he has been addressing concerns of strategic direction as well as capacitation within the AFU. Recruitment has not progressed as fast as the NPA would like, but a recruitment task team will be reporting every week on progress being made in key areas such as asset forfeiture and specialised commercial crimes courts. She was hopeful that if not in the next report due in three weeks’ time, certainly, there will be an upward trend in the following report. The NPA is also working on artificial intelligence and IT as this is crucial in fighting corruption through looking at money flow.
Corruption and COVID-19
UIF was a good example for very quick action. The NDPP reminded members that there is a dedicated body that has been established nationally, where the key entities in fighting COVID-19 Corruption are its main focus at the moment. It is financial intelligence driven and the various entities, such as the Financial Intelligence Centre and the DPCI as well as the detectives of SAPS, the SIU, SARS, the Auditor General's Office have been co-located at the national level and have been working very closely with regional structures, the DPPs offices particularly. This is an important intervention in dealing with COVID-19 intervention. The NPA hopes that the model will help them deal with corruption more broadly and at the Anti-Corruption Task Team (ACTT), outside of COVID-19 related corruption which is dealt with in the Fusion Centre.
This matter requires a lot of engagement between the DoJ&CD and the NPA. It is not a simple matter. The DoJ&CD has been set up to deal with it from an administrative point of view and there are budgetary implications. It is also important to look at this from a policy perspective and witnesses are not NPA witnesses, but are witnesses for the cause of justice. They represent complainants and victims. Therefore, it is the justice system which needs to support witnesses. Other concerns about the policy include whether the impression will be made that the NPA is paying witnesses. There may be instances of conflict of interest. It is a complex issue which needs both parties to engage on it in a way that enhances efficiency but does not compromise the witness fee system.
Corruption and the Zondo Commission
It has been laid bare how much it costs the Commission to enquire into state capture in the context of their mandate, and one can only imagine how much it will cost the NPA and other law enforcement measures in terms of skills and capacity to properly address the avalanche of work that will come out of the Zondo and other commissions of enquiry. At the moment, the investigative directorate is not the best model and capacitation has been a real challenge. Considering the cost of the Zondo Commission’s work, the ability of the Investigative Directorate needs to be considered moving forward in order that people are held accountable. The NPA is looking at the secondment model with the National Commissioner of Police. Regarding the questions asked about cost drivers in the Commission and it was indicated that legal services, investigative services and IT have been the main cost-drivers.
The NPA has also been engaging with the Commission to take over its IT systems and structures so that law enforcement broadly as well as the directorate can use their information. She asked for support from the Committee in assisting law enforcement and the directorate to access the systems as various of parties may try to take over the capabilities, though access is a different issue. She also noted the challenge of retaining skill and capabilities—both legal and investigative—from the Zondo Commission as the NPA cannot pay the rates and salaries that the experts were receiving at the Zondo Commission.
Set in time matter
There are representations in the NPA, and these are being considered, however this is all she can say on the matter.
She added that she was happy to add to anything if the Deputy Minister did not cover it.
The Chairperson said that the House sitting was moved to 3pm so this may mean there is less pressure.
Ms Newhoudt-Druchen confirmed this was true.
Deputy Minister’s response
These are attorneys who have their own practices and are sometimes appointed as acting Magistrates, in the same way that they are sometimes appointed as Acting Judges. This is usually done under the expectation that they give up their practice for that period. If there are cases where there is perceived conflict of interest, he would have thought that they would be asked to recuse themselves and if they do not, they should be reported. Magistrates should recuse themselves.
Expungement of records for COVID-19 admission of guilt fines
He expressed surprise at Adv Swart’s comments. The DoJ&CD has never said that prosecution for COVID-19 related offences would not be stopped. However, there is discussion about the expungement of records for COVID-19 admission of guilt fines. This has been worked on for some time and there is a provision in the next Judicial Matters Amendment Bill that will provide that most admission of guilt fines do not attract a criminal record. There will be retroactive effect on past and future admissions of guilt for COVID-19 fines. This is not about stopping prosecutions. This may be debateable but if you have a lockdown, it needs to be enforced and one way in which this is done is by creating crimes. A crime during the hard lockdown may differ from area to area but the law applies to everybody, therefore, just because you live in a leafy suburb and there is nobody on the streets, does not give you the right to walk your dogs, when everybody else is confined to a lockdown. The issue is simply around the criminal records for admission of guilt fines.
Dealing with the case backlogs is a priority but it is made more difficult by the increase in infections, and more so by COVID-19 being something of a moving target, with the science is now suggesting that it is more airborne than tactile. At the moment, the response to infections is sanitisation. Some literature is coming out whether this is necessary and constructive, however at the moments, where this happens in courts, courts have to shut down and those who came into contact with the COVID-19 positive individual have to quarantine, sometimes for up to 14 days, which impacts the ability of the courts to run. The DoJ&CD is engaging with the judiciary on this on a regular basis. He would be attending a meeting after this one with regional court presidents and this is one of the issues being discussed
GBV, femicide and child killing
GBV, sexual offences, femicide and murders of children are priorities for the Department and it is trying to ensure that the system operate as optimally as possible during this period.
The Chairperson asked if there were any follow up questions and Noted Mr Swart and Mr Ndlozi.
Adv Swart clarified that he asked this question following Adv. Rodney De Kock previously saying that within the NPAs domain, up to 25% of cases had been withdrawn. His question related to whether in terms of the Committee’s resolution, the DoJ&CD could have the Judicial Matters Amendment Bill before the end of July. He acknowledged that there is other important legislation coming up to do with GBV, but what his question was directed at was the admission of guilt fines for less serious offences.
Dr Ndlozi asked what will be done with the R9.2 million set aside in the DoJ&CD budget for addressing GBV. He then noted that the adjustment budget of the Finance Minister, does not make explicit mention of the R1.6 billion. If the amount exists within the adjustment budget, he asked for a concrete amount as to how much money has been given to the NPA as in the speech, the President made specific mention of strengthening prosecutorial capacity relating to GBV. Since the adjustment has seen a cut and not an increase, either the President was paying lip service and the DoJ&CD is protecting him, or he was talking about money which was already there and was not new, which in any case would have been misleading.
Deputy Minister’s response
He thanked Adv Swart for clarity and said that the Judicial Matters Amendment Bill is ready; however it is going through the important processes of various consultations. He does not think there is a chance of it being released before the end of the month. The issue which the committee would need to look at is whether we want to at this stage, lessen the impact of breaking a COVID-19 regulation, when we are trying to get people to physically distance. He asked if this was the right time to say that it is actually not as bad as you thought it was when you refused to abide by the regulations, and this is something to be looked at further.
The Deputy Minister suggested that a special sitting of this Committee be scheduled to deal with GBV, along with other departments. This would allow officials from other departments to also prepare.
The Chairperson said that he thought that was the last of the questions.
Dr Ndlozi said that he hoped that the ADG would be given an opportunity to respond about what R9.2 million set aside for GBV initiatives. As a point of clarity, he asked whether R18 million or R80 million is spent on investigations.
The Chairperson asked what the scale for paying senior and junior counsel is.
Adv Skosana clarified that the amount is R18 million spent on a monthly basis on expenses and that this includes both compensation and licences for equipment, etc.
R9.2 million set aside
This amount is to sustain sexual offences courts so that the judiciary and NPA can better able to process the matters in terms of a victim centred approach. The goal is to place an audio-visual link between the care centres and safety centres as it is unfair to keep accused in secure centres whilst persons affected in GBV cases have to commute in taxis with no support systems. This system is also in order to enhance a victim-centred approach. The R9.2 million is not the only budget set aside; it is being given over and above the budget already set aside.
Fees of counsel
Adv Skosana noted this to be a very important question. The budget request from the Commission was R240 million. The DoJ&CD sat down with the Commission and Treasury and he had refused to sign the budget. The thing that caught his eye was the legal fees. Here was a 5% escalation on what they were paid last year. He argued that no-one working for government is getting increased remuneration, from judges, and DGs. There was a deadlock until they revised the budget. Although some argued to keep the percentage, but decrease the numbers. That principle is wrong. When the economy is struggling, there cannot be an increase, and accordingly, there have been many discussions with the state attorney on the negotiated fee. The fees are staggering, but not one cent more than what has previously been received has been approved. In terms of time which they are being paid for, the state attorney is to verify these.
The Chairperson appreciated the refusal of the 5% increase but insisted on knowing the scale based on which legal fees were being paid. He asked why private sector buildings were used when there are government buildings and in general, where the money was going. Although Adv Skosana said that Adv Pretorius is the highest paid, this does not explain the scale being used for payments.
Adv Skosana insisted that the principal was wrong and undertook to respond to it in writing.
Ms Maseko-Jele asked the NPA what is wrong with the systems like the investigative directorate which are meant to help get through the difficult issues faced by government.
Adv Batohi said that this question also bothered her. In government, particularly investigation and prosecution, skills have been hollowed out in recent times. The DPCI, which should be the key feeder into the directorate also has a serious lack of skills in terms of the ability to investigate highly complex corruption cases. The situation in the NPA is similar with the result being that the highly complicated cases have not been prosecuted as there are few people with the requisite skills in the particular field of specialised commercial crimes. Capacity building is needed in this regard and is one of the challenges being faced in this sector. This links to the skills which exist in the Zondo commission, however, the NPA will not be able to pay both investigators and legal counsel for various reasons. It could cause various problems for private and public sector disparity in payments. Getting the skills needed is very important and getting the capacity is still being sought in government.
The Chairperson expressed the appreciation of the manner in which presentations and work is being undertaken. The Committee is pleased that the Chapter Nine institutions would not be affected by the budget cuts and this was also important to note. Other things needing to be dealt with include the need to have a follow up either with National Treasury or as Parliament to consider the R1.7 billion for addressing GBV, R9.8 million of which has been allocated to the DoJ&CD. He then asked where the rest of the money is and what programmes it has gone to. He said that these questions should be addressed as per suggestion made by the Deputy Minister. If money was given to the Department of Social Development, or Women, the Committee would like to know what programmes it is being applied to counteract GBV as the state of the nation is very concerning. The R9.8 million set aside for sexual offences courts does not account for what has been announced, therefore other departments should account.
Other work needing to be done is to prioritise the work of the asset forfeiture unit. Debt will continue to rise if there is no economic growth. Various studies, including one conducted by former President Thabo Mbeki, suggest that there are billions of Rands leaving the country. A lot of money is leaving the shores, and when compared with the money that is owed, he asked where the money is going.
He said that when the Committee deals with BRRR, he would like to know to what extent the NPA has been engaging with such reports as a lot of corruption in both the private and public sector is bleeding the economy to death. The unit needs to be prioritised and the benefit is that the standard is lower than the criminal standard. This should be a focus and the Committee is prepared to assist the NPA and considers this to be a conversation with National Treasury to gain more resources. This should be viewed as an investment in the country and its economy as investors do not want to invest in a lawless country so the rule of law is important. He asked what is being modernised because what may have been strategic for modernisation 20 years ago may not be strategic now. The Committee needs to schedule a discussion on the IJS so that if there is a need to modernise, they know what they want to achieve. In this discussion, stakeholders should be properly identified and stakeholders must have inputs. The Portfolio Committee and other Committees of Parliament should be amongst the stakeholders. The CaseLines system as part of the Integrated Justice System requires a focused timeline so that things can be measured. What cannot be measured and accounted for, has not been done, and it becomes a wasteful expenditure. He asked for a written response from the DoJ&CD on what action is being taken against Docu-File (this company held offsite storage of documents/files that the Department does not have space for (6 million files) Read court case. He wanted an update on whether there was any negligence around the destruction of documents what consequences there were for the company.
The Chairperson further stated that since the State Capture Commission’s work is coming to an end in March 2021, discussions should begin soon about arranging access to the systems being used by the Commission, so that the technology can serve the criminal justice system better. In general, as a nation, budgeting by departments and entities should not be done only for consumption but should include a serious cost-benefit analysis. The Committee was aware that the NPA was working under very difficult conditions; however, it has an ally in the Committee, in order that together they fight crime and corruption better. He thanked everyone and adjourned the meeting.
The Chairperson thanked everyone and adjourned the meeting.
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