GBV Bills: Department response to public submissions; DoJ&CD 2019/20 Annual Report, with Deputy Minister

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Justice and Correctional Services

18 November 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services

2019/20 Annual Reports

In this virtual meeting, the Department of Justice and Constitutional Development Services gave a presentation on its 2019/20 Annual Report with a particular emphasis on the audit outcome and subsequent audit action plan.

The Department reported that it had received a qualified audit opinion on the Vote Account and Performance Information.  The audit report concluded that movable tangible capital assets to the value of R181 million could not be located during the verification processes and material impairments of R1.7 billion were reported due to outstanding balances owed by client departments for legal fees.  The Department had underspend approximately R757 million of its budget allocation and recorded a cumulative R1.6 billion in irregular expenditure at the end of the 2019/20 financial year.

The Department achieved 57 of the 112 planned targets in the Annual Performance Plan of 2019/20. The performance translated to 51% of targets being achieved. Programme 1: Administration was the worst performing and only achieved 18% of the annual targets. Programme 5: Auxiliary Services scored the best with 67%.

A clean audit was sustained for the Guardian’s, Criminal Assets Recovery Account. CARA, President’s and Third-Party Fund’s.

The Department has undertaken various actions since receiving the Audit Outcome. These include five workshops during which interventions constituting the Audit Turnaround Plan were developed. Some of the interventions include the development of an electronic contingent liability register, establishment of an oversight structure comprising senior managers to monitor progress and the inclusion of responsibility of payment in 30 days in performance agreements of all officials. To address irregular expenditure, the DoJ&CD aims to capacitate the Contract Management Unit which has not had a senior manager for many years.  An oversight Committee will be established to guide consequence management.  

The Committee expressed disappointment in the Department’s declining performance. Members asked why the Department has continued to show slow response to improving key controls and addressing recurring challenges.  What plans does the Department have in place to recover funds owed by client departments?  The Chairperson said the nature of the challenges presented by the Department are typical of a newly established department. The Committee was unanimous that the presentation lacked concrete details on how the Department intends to address its deficiencies and left Members with very little confidence.

The Department also discussed proposed amendments to the Domestic Violence Amendment Bill. The working document highlighted possible amendments to be considered by the Committee and additional proposals made by the Department. An extensive discussion was had concerning the definition of “mental illness”. Members agreed that further research needs to be done in this particular area. Additional proposals will be made by the Department to accommodate concerns raised by Members. Due to time pressures and the rising of the House, the Committee concluded that it is unlikely to finalise discussions on the Bills in the current year. This would allow officials enough time to do research, particularly in the areas which may have Constitutional implications.

The Committee is currently preparing to enter a consultative process for the appointment of members of the National Council for Correctional Services. Members requested the Department to provide summaries of all applicants and the CVs of all shortlisted candidates in order to engage substantially.

Meeting report

Remarks by Deputy Minister
To give context to the presentation to follow, Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, reported that the Department is responsible for the running of approximately 2283 court rooms in 748 court houses. Over the years, the Department has succeeded in bringing access to justice closer to the people. New seats have been proclaimed for regional courts allowing every regional court to have civil jurisdiction.  This decision will come into effect on 1 December 2020. In addition to national courts, the DoJ&CD has regional offices in all province employing a total of 15 840 public servants throughout the country.

He reported that COVID-19 has had a severe impact on court operations and the Department. Six magistrates, three prosecutors, 17 administrative staff and two Sheriffs have passed on due to the pandemic. The increase in COVID-19 cases in Nelson Mandela Bay has also put more pressure on the Department.
The presentation will highlight the various audit outcomes, intervention plans and budgetary aspects. Deputy Minister Jeffery said the DoJ&CD is acutely aware of the performance challenges it is faced with, some of which were raised in a previous engagement with the Committee. The DoJ&CD is currently implementing a rescue plan to address these issues. The Department aims to maintain momentum in areas where it was able to meet its targets, namely, the modernization and digitization of courts. Notable strides have also been made towards enhancing access to justice and service delivery. In areas where performance was satisfactory, the DoJ&CD missed its targets by small margins. The Department will provide explanations and will elaborate on its plans for improvement in areas where performance was not satisfactory. 

Following a previous engagement with the Committee, the DoJ&CD held a three-day strategic session addressing areas of poor performance, challenges, and an overall departmental turnaround plan. Both the Minister and Deputy Minister were present. The Department is acutely aware of the factors impacting its performance. Amongst these are a lack of a permanent Director General, vacancies at senior management levels, disciplinary cases against four senior management members, budget constraints and the impact of the COVID-19 pandemic. These issues were not raised in defence, rather as challenges that need to be mitigated. A root cause analysis of all factors impacting performance was done and an implementable rescue plan was developed, this will be shared with the Committee. Senior management has committed to take accountability and to lead firmly in addressing the Department’s unsatisfactory performance. Weekly monitoring will be done on the areas highlighted in the rescue plan. Another important aspect will be ensuring that performance agreements are in alignment with organisational performance as set out in the audit outcomes. In the 2020/21 financial year, the Department is particularly focusing on improving its performance; monthly and quarterly monitoring has been put in place for this purpose. An improvement has already been noted in Quarter 1. The Department has strengthened its internal audit, planning, monitoring and evaluation unit to ensure that areas of underperformance are quickly identified for early intervention. The DoJ&CD needs to ensure that standard operating procedures are applied consistently across all service points. It is currently in the process of realigning its macrostructure which it believes will improve its effectiveness.

Vacancies continue to be a major impediment for the Department. Critical posts are being reprioritised to expedite recruitment processes; the Committee will be updated on progress in this area. The process of appointing a permanent Director-General is almost complete. Interviews were held and a memorandum was submitted for consideration to the Department of Public Service Administration (DPSA), following which it will be reviewed by Cabinet. Advocate Martin Mafojane was appointed as the Chief Master and assumed his duties at the beginning of November.

A crucial area highlighted by the Auditor-General is collaboration. Working in silos is common within the DoJ&CD and throughout government. To address this, the Department has established a Multi-Stakeholder Forum which meets regularly to optimize court performance.

The impact and presence of COVID-19 will require the Department to continue thinking out of the box in order to provide services in an ever-changing world. Minister Lamola will provide more details on the Department’s performance in an upcoming meeting.

The Department remains cognisant of Chairperson’s statement that when performance is concerned these are not merely targets or numbers, but the lives of the South African people. A failure to meet targets is betraying the people whether this is a beneficiary of the Guardian’s fund, a survivor of sexual violence or a parent going through a divorce. These are not targets, but real people who are more vulnerable now due to COVID-19.  The DoJ&CD cannot fail the South African people. The Ministry remains confident that with the help of the Committee, the situation can be turned around and the Department can live up to the ideal of accessible justice for all.

Presentation by the Department of Justice and Constitutional Development

Ms Kalay Pillay, Acting-Director General, DoJ&CD, made the presentation on the Department’s 2019/202 Annual Report with particular focus on the Audit Outcome.

Audit Outcome & Action Plan

A clean audit was sustained for the Guardian’s, Criminal Assets Recovery Account. CARA, President’s and Third-Party Fund’s. The Department received a qualified audit opinion on the Vote Account and Performance Information.

Basis for audit outcome:
Contingent liabilities: inadequate internal control to ensure completeness of and accurate estimate of claims against the state
Inadequate record systems for reliable performance information in Programme 3 State Legal Services
Movable tangible capital assets to the value of R181 402 000 that could not be located during the verification processes
Material impairments of R1 723 035 000 (2019: R875 075 000) were reported due to outstanding balances from client departments

The Department has undertaken various actions since receiving the Audit Outcome. These include five workshops during which interventions constituting the Audit Turnaround Plan were developed. Some of the interventions include the development of an electronic contingent liability register, establishment of an oversight structure comprising senior managers to monitor progress and the inclusion of responsibility of payment in 30 days in performance agreements of all officials. To address irregular expenditure, the DoJ&CD aims to capacitate the Contract Management Unit which has not had a senior manager for many years.  An oversight Committee will be established to guide consequence management.  

The Department achieved 57 of the 112 (51%) planned targets. The Rescue Plan is currently being implemented.

Budgetary Performance
Mr Nhlanhla Mthembu, Acting Chief Financial Officer (CFO), DoJ&CD reported a total expenditure of approximately R20 billion which represents 98% of the appropriation.

Of the R757 million underspent, R63 million was due to delays in the delivery of NPA computer equipment due to shipment restrictions in March 2020. R23 million was underspent due to the DPWI’s underperformance on infrastructure projects while R143 million was underspent due to Magistrate salaries that were funded without posts being filled.

Mr Mthembu highlighted that the DoJ&CD unfortunately has no control over expenditure in these areas, however, their performance has significant implications for the Department’s expenditure performance. For example, the DoJ&CD depends on the Magistrates Commission to ensure that positions are filled, if not, vacancies impact total expenditure. 

The Department achieved 57 of the 112 planned targets in the Annual Performance Plan of 2019/20. The performance translated to 51% of targets being achieved. Programme 1: Administration was the worst performing and only achieved 18% of the annual targets. Programme 5: Auxiliary Services scored the best with 67%.

At the end of the 2019/20 financial year, the Department had a cumulative R1.6 billion in irregular expenditure. In the 2018/19 financial year, irregular expenditure was over R900 million. Although the Department still recorded irregular expenditure, the year-on-year trend shows improved performance. However, the DoJ&CD is still not happy about this issue.

The Department has identified several priority cases for investigation. Over ten cases are currently with Labour Relations for consequence management. One of the cases relate to non-compliance of service providers who bided for a security guard contract, approximately R451 million relates to this. The Department engaged with National Treasury seeking condonement as the certificates submitted by the service providers during the bidding process were fraudulent. The DoJ&CD reported that during the bid adjudication, the certificates appeared to be authentic, however, the Auditor-General had later concluded that they were not. The Department attempted to cancel the contracts and was taken to court by the service providers. The court ruled that it was too late for the Department to cancel the contract and mediation was recommended. National Treasury also could not condone the amount. The DoJ&CD has re-engaged Treasury to further discuss this matter, therefore, no consequence management has been implemented.

The Department has identified irregular expenditure in the appointment of legal services; however, it has not concluded which individuals should be held accountable. Ultimately, consequence management has not been implemented in this area. Disciplinary action is currently underway against Ms Lorraine Rossouw, Chief Financial Officer, DoJ&CD who is implicated in the extension of a security maintenance contract which the Department did not have the dedication to approve. In another case, the DoJ&CD failed to implement consequence management against an employee who resigned before a disciplinary process was started.

(See Presentation)


Adv G Breytenbach (DA) asked why the Department’s legal service fees keep increasing and what plans have been put in place to address this. Why has the Department continued to show slow response to improving key controls and addressing risk areas? These are recurring challenges, therefore, when and how will they be addressed? Why has the DoJ&CD not resolved its governance challenges with the NPA? This is an important area to focus on.

The Department has suspended Ms Lorraine Rossouw and Mr Sanjay Singh in relation to the security contract. The two officials were expected to appear before a disciplinary inquiry within 60 days, has this happened? If not, why has this process not been completed and when will it be finalised?  She asked the Department to provide further explanation on why it had incurred R5.43 million in irregular expenditure. The State Attorney and Masters Office are vital offices for the citizens of South Africa, yet they are in total disarray, why have they been allowed to continue in this state of decay? She asked why the Committee has still not received the report on the security contract despite making numerous requests.

Mr W Horn (DA) expressed disappointment in the Department’s presentation. He asked the Department to provide detailed information on the status of case backlogs and the plan to address this issue. Up to now, the Committee has only heard about talks about talks, in order to fulfil its oversight mandate, it needs substantive information rather than the DoJ&CD insisting that issues are “receiving attention”.  

The integrated case management system is an example of one of the DoJ&CD’s recurring challenges which it insists it is addressing, yet there is no tangible evidence of progress. Once again, the Department has blamed partner departments for a lack of progress; however, the reality is the DoJ&CD is the lead department.  If there is a continuous underperformance by partner departments, surely these responsibilities must be removed and taken over by the DoJ&CD if it is serious about developing an integrated management system. It is simply not good enough to say this issue is receiving attention, the Committee demands a concrete action plan.

Although the Department insists that it has recorded less irregular expenditure than in previous years, the majority of this relates to the security contract and procurement of legal services. These two contracts are a recurring issue because they are still in place. Despite the Auditor-General’s adverse findings and National Treasury rejecting condonement, the DoJ&CD has wilfully refused to undertake any consequence management. 

Year after year the Committee has advised the DoJ&CD to pursue other avenues to implement its built programme given the recurring challenges with the Independent Development Trust (IDT).  A formal process must be adopted to divorce from implementing agencies that continue to impact performance.  The insolvency policy is one of the best examples of why the DoJ&CD’s performance is staggering.  On the 2 December 2016, the policy was declared unconstitutional. Four years later the DoJ&CD, is reporting that it is in the final stages of re-engineering the policy. This is more or less the same information given at two previous briefings. What progress has been made? Unless the Department improves its efficiency in addressing matter like this, it will never improve. The same can be said with the DoJ&CD’s struggle to obtain good outcomes. The report does not give much assurance that adverse findings concerning asset management and contingent liabilities will be resolved within a year. It is crucial for the Committee to demand more information on the Department’s internal audit function. In previous engagements, the Department reported that the internal audit function was assisting towards improved outcomes, yet there was no audit committee in place for the majority of the financial year. The Committee has explicitly emphasised how critical audit committees are to the Department’s improvement. While one wants to give the Department the benefit of the doubt, the presentation has not instilled much confidence.

Mr X Nqola (ANC) said the Committee needs a full day to address the Department’s challenges because things are not looking good following the presentation. The DoJ&CD reported that it had held five workshops to develop an Audit Turnaround Plan. Were the five workshops necessary given the current constrained fiscal environment and the Department’s stance that funds must be directed to areas of critical importance?

The Committee has observed that certain officials have been within the Department for many years but have failed to assist in implementing a successful turn-around strategy. Although Deputy Minister Jeffery reported that the process of appointing a permanent Director General is underway, no specific detail was given on how far this process is from finalisation. Of equal importance is the appointment of an Audit Committee. Again, the Department reported that this is currently underway. Given the audit outcomes, it is critical that this process is finalised. Can the DoJ&CD provide specific timelines on the progress that has been made?
Another issue is the R181 million in unverified movable assets. What was the cause of this and does the Department have a competent asset register? Has the Department identified anyone implicated in this matter and if so, what consequence management has been pursued? Lastly, the DoJ&CD has failed to collect R400 million in legal fees from client departments. What is the plan to recover these funds?

Dr W Newhoudt-Druchen (ANC) expressed concern in the Department’s audit outcomes and finances. On slide 58 of the presentation, the DoJ&CD reported overachievement of its target relating to previously disadvantaged individuals (PDIs). However, in the following slide it shows under achievement of the percentage rand value of briefs allocated to PDIs.  How does this match with the overachievement reported in the previous slide?

The Department reported that it only adapted 13 out of a targeted 16 courts in line with the Sexual Offences Court Model as per the Presidential Summit Declaration against Gender-based Violence (GBV) and Femicide. It is crucial for these courts to be running properly in order for the GBV Bills and the National Register of Sexual Offences (NRSO) to be successful. How will the Department ensure that the GBV Bills are implemented well?

One out of three targets relating to combating racial issues was achieved. Racial issues are currently escalating, specifically in schools in the Western Cape. How will the DoJ&CD help in eliminating racial discrimination in the country?

The budget presentation highlighted that a service provider was not on the Central Supplier Database (CSD) and the National Treasury database. The Department is therefore implying that it is not its fault, therefore whose fault is it, National Treasury’s? Is there no other way for the Department to verify service providers or does it solely rely on National Treasury? What measures are in place to ensure that this does not happen again?

She asked how the job evaluation process could possibly be impacting the filling of vacancies when none are being done as a result of posts not being filled.

Ms M Mofokeng (ANC) asked about the 23% vacancy rate. The DoJ&CD reported that a number of members are leaving the audit committee due to retirement. Does the Department have a succession plan to ensure a stable committee?

She welcomed Chief Master, Adv Mafojane and acknowledged that he is inheriting numerous challenges. The Committee hopes he will assist in addressing.

On slides 53 to 55, the Department details the number of appointment letters issued in deceased estates within 15 days. However, it does not state how many queries it receives from these transactions and ultimately, only illustrates compliance. The truth is people are unhappy with the Masters Office and oftentimes letters are issued without proper consultations. Language is also a significant barrier in an Office that is supposed to serve the people. Why has the DoJ&CD not spoken about the challenges in the Masters Office?
The audit finding concerning the R181 million in unverified movable assets is worrisome. How is the Department investigating this matter? Payments in 30 days is still a challenge given there is no audit committee providing guidance.  She was surprised that the service provider awarded the security guard contract has not been blacklisted on the CSD and National Treasury databases despite the Auditor-General concluding the company had provided fraudulent certificates.

The Department has indicated that its dependency on DPWI to implement its infrastructure programme has impacted its performance however, it has failed to give details on possible solutions. She asked if the Department has a stakeholder manager to oversee TRC and Community Rehabilitation projects as it failed to meet targets in these areas.

The Chairperson requested that the Department provide the judgement on the security guard contract in order for MPs to understand what the real issues were. The way they were summarised in the presentation did not give much clarity. Why did the Department not pursue a criminal case because fraud was committed? The Acting CFO seems to be suggesting that consequence management could not be pursued against implicated officials because they resigned from the Department. However, other avenues could have been pursued to recover funds. Why does the DoJ&CD only rely on disciplinary action when the law gives an array of consequence management it can pursue?  

He suggested that the Deputy Minister and Acting DG should review all of the presentations the Department has given before the Committee since 1999 and listen to the responses it has given. Some of the recurring issues are of the nature of a new department yet the DoJ&CD has been around since 1994. Is the Committee going to spend the next five years discussing the same operational issues? If so, what are senior managers being paid for?  One would expect that issues should reach a logical conclusion given the availability of senior management staff.  The presentations are a complete waste of the Committee’s time. MPs should be dealing with issues of real impact for the people, yet the reports show that there is no way that South Africans can expect proper services especially from the Masters Office. The Department can be compared to how Kaizer Chiefs play with no intention of winning towards the end of the season, just complying and ticking boxes. Why should the Committee have confidence that the Department will do what it has promised?

Deputy Minister Jeffery noted the Committee’s concerns and reiterated that the Ministry is aware of the challenges faced by the Department.

Case backlogs
There are currently various committees such as the National Efficiency Enhancement Committee and the Provincial Efficiency Enhancement Committee (PEEC) which are dealing with this matter. The DOJ&CD is not directly involved in this due to judiciary concerns around executive interference. However, the Department has established an additional structure, the Court Optimization Committee which meets on a monthly basis to deal specifically with issues at the Magistrate Courts. This Committee comprises of key stakeholders from the Regional Court President’s Forum, the Chief Magistrate’s Court Forum, senior officials and regional heads from the Department, a delegation from the NPA, Correctional Services, the Department of Social Development and South African Police Service (SAPS).  

Each court is expected to prioritise cases, unfortunately, progress has been impacted by COVID-19 restrictions and reduced staff numbers as infections have increased.

Appointment of Director-General   
The Deputy Minister said he thought the progress update he had given was quite specific. Interviews for the post have been completed and a recommendation has been made to the DPSA with a list of preferred candidates. Following which, the process will be taken to Cabinet.  Admittedly, there have been serious delays with the filling of vacancies.

Sexual Offences Courts
Thirteen out of the targeted 16 courts were fitted, this is disappointing and is a problem, however, it was the only target relating to sexual offences that was unmet although there are problems with the NRSO. The Committee will deliberate on the which system, the NRSO or the SAPS criminal records is more appropriate. He was confident that what is planned in the GBV Bills will be successfully implemented.

Relationship with DPWI
Deputy Minister Jeffery explained that DoJ&CD began a relationship with the IDT in the hopes that it would yield better performance than DPWI. At times, the issues with DPWI are with contractors as is the case at a Magistrate’s Court in Port Shepstone where the contractor failed to meet a project completion deadline, ultimately going under business rescue. Unsuccessful attempts were made to complete construction while under business rescue, the project will now be put under tender for completion. DPWI anticipates that this will be costlier than building from scratch.

The Committee had previously raised concern over the DoJ&CD assuming some of the maintenance responsibilities of DPWI. This is a discussion government needs to have.

Ms Pillay said following the Quarter 4 performance briefing, senior managers had reflected on the Committee’s statements and what needs to be done to turnaround the Department. The Department takes the Committee’s comments seriously and considers these as a crucial in improving its performance.

Audit Committee & Audit Action Plan
The DoJ&CD has had the same audit Committee for several years. There have been requests to advertise for positions for a new audit committee for a three-year term. These adverts have been publicised and the DoJ&CD is in the process of reviewing CVs in order to ensure the Committee’s stability.

The Audit Action Plan was conceived based on the AG’s finding. Therefore, it is fully operational and looks at the specific weaknesses and interventions and measures required. The audit action plan is development through a consultative process to ensure buy-in from senior managers who are responsible for monitoring implementation.

Sexual Offences Courts
Ms Pillay responded that the Department had a target of establishing 14 sexual offences court and achieved 13 in the previous financial year. This brings the Department to a total of 108 sexual offence courts. The DoJ&CD is certain that it is ready to implement the GBV Bills. In addition, there are plans to establish several other courts.

Suspension of CFO and Chief Director of Supply Chain Management
The DoJ&CD sat for a hearing on 12 and 13 October 2020 following the previous engagement with the Committee. A total of six witnesses are yet to be cross examined, four of which are internal and two are external. The matter has been scheduled for 24-26 November and 8 -11 December.

Job evaluations
On 8 September 2020, DPSA issued a secular stating that the work enabled evaluation system had been suspended and that internal measures needed to be taken instead. The Department was also informed that any post that has been vacant for over 60 months must be evaluated prior to advertising. However, the Department is allowed to do benchmarking for positions which are transversal and have similar functions across departments.  The DoJ&CD is doing its best to expediate recruitment processes to fill current vacancies, specifically for those which have been vacant for under 60 months.

The Chairperson interjected and asked if the Department currently has posts which have been vacant for 60 months which is 5 years.  Are there still vacancies that need to be filled after 5 years?

Ms Pillay clarified that the Public Service Regulations require that a job evaluation must be done within a 60-month period prior to an advertisement being published.

Case Backlogs
Adv JB Skosana, DDG: Court Services, DoJ&CD, emphasised that the Minister would elaborate further on case backlog plans which are currently being implemented. The DoJ&CD has been able to expedite the procurement of IT systems, the establishment of case monitoring teams and has shortened the turnaround time for fixing any system glitches.  These are some of the factors that will contribute towards the improved functioning of the courts. Additionally, a committee has been established to facilitate communication across stakeholders such as the NPA and SAPS.

Adv Skosana highlighted that the challenges with DPWI are not unique to the DoJ&CD but are evident across all partner departments. The two departments have had continuous engagement on what ought to be done to improve the state of the building environment throughout government. DPWI has acknowledged that it needs legal guidance on what to anticipate should contractors fail to deliver on the agreed timeline or should they go under business rescue. The DoJ&CD has started developing in-source strategies to address infrastructure and court maintenance challenges, these include the use of individuals on parole and engineers drawn from other departments.

The Chairperson commented that this is the type of innovation that the Committee wants to see. The Department should report on real outcomes and impact which can be rolled out across the country. Public servants are not employed to merely tick boxes for compliance but also for their ingenuity.

Adv Skosana assured MPs that the Department would continue finding innovative solutions to its challenges rather than relying solely on DPWI. Another innovation is the delegation to establish an independent database to maintain the courts and the development of capacity to perform routine tasks such as roofing and painting. The reason the Department has chosen to pursue these measures is because only 20% of the R700 million budget for infrastructure has been used.

The Chairperson suggested that the DoJ&CD engage with the Department of Public Enterprises to consult about artisans which have been trained by State Owned Enterprises (SOEs) such as Eskom and Transnet. The training received by these artisans exceeds that of individuals trained by technical colleges. He encouraged the Department to continue employing innovative interventions.

Increasing legal fees
Mr Fhedzisani Pandelani, Acting- Solicitor General, DoJ&CD, noted Adv Breytenbach’s concern over the increase in legal fees. The Department is its worst enemy because it punched above its waistline when the APPs were developed. This was triggered by a matter emanating from the South Gauteng High Court which was opportunistic. A Mr Chauke made a claim of R20 billion against the State. The reason this claim was deemed opportunistic is because it was not based on facts or law, therefore, the matter was dismissed. However, the Department should not have categorised this as a success because when the APPs were revised it gave a false impression that the Department is able to reduce the capital payment of the State.  This is why the DoJ&CD has missed its target by approximately 160%. This case is just one example of potentially numerous opportunistic cases.

Irregular expenditure
Mr Pandelani responded that most, if not all issues relating to irregular expenditure, can be attributed to the six-year delay in the proclamation of the State Attorney’s Amendment Act. Legislation amending the Act came into operation on 2 February 2020 which allowed the appointment of 13 Heads of Offices across the country. The nerve centre for state legal services should reside with the Office of the Solicitor General who is responsible for overseeing the optimal performance within these offices. The DoJ&CD is in a tug of war with client departments which have shown very little cooperation, leaving state attorneys to their own devices primarily because of lack of leadership. As indicated to the Committee, nine of the 13 heads of offices should be appointed. Issues such as job evaluations should not arise in this space. The remaining four offices should have their own heads of offices as stipulated by the Act. Client departments do not engage with the State Attorney while they still have money. The Act unequivocally states that the coordination and management of all litigation that the state is involved in should be done by the State Attorney. There ought to be polices governing this space, however, the absence in the past is now inhibiting the DoJ&CD’s influence over this area. Three policies are currently being finalised and should be submitted to the Minister by the end of the month. Two other critical policies should be presented to Cabinet and tabled to Parliament by the 1 March 2021. The Department hopes that by then, it will have interacted with the necessary stakeholders to turnaround the current state of irregular expenditure.

Previously disadvantage individuals
As noted by Dr Newhoudt-Druchen slide 58 on its own does not provide a full picture of the work done by the Department regarding PDIs. The presentation gives the assumption that the Department is resorting to quantity as opposed to quality. PDIs are not paid on the same day that they are briefed. Therefore, the impact of the policy is only realised once invoices are submitted.  The rand value cannot be overachieved on a specific day because invoices are not available at the time that PDIs are appointed, it will only reflect a retrospective picture before PDIs were briefed.

Vacancy rates
Mr Pandelani replied that the State Attorney’s cannot have a lack of leadership because accountability resides with Heads of Offices. When directives are issued, one cannot look to Deputy State Attorneys, lower-level employees or Acting positions for the degree of accountability necessary.

Female legal practitioners
Unfortunately, the majority of female legal practitioners and PDIs are concentrated in affluent provinces. When an audit is done, it is cross cutting and does not provide insight on the capacitation of female practitioners in a specific province. The DoJ&CD has not capacitated female practitioners in provinces such as Limpopo, ultimately resulting in them moving to provinces such as Gauteng. One of the Department’s aims is to capacitate female practitioners across provinces.

Ms Pillay replied that a policy was submitted to the Office of the Director General for submission to the Minister during September 2020. However, she requested Chief Master Mafojane to review the document as many elements from the previous judgements were missing, therefore the document had to be sent back for reworking. Slight amendments are yet to be done and further detail can be provided in writing.

The Chairperson thanked Mr Pandelani for his inputs and said the Committee would schedule a meeting to engage specifically with him in the future. The Committee also expects a full report from the Department within 20 days.

Presentation on the Domestic Violence Amendment Bill

Mr Sarel Robbertse, Senior State Law Advisor, DoJ&CD, gave a presentation on the revisions to be made to the Domestic Violence Bill following the previous engagement detailing proposals made during public hearings. The working document highlighted possible amendments to be considered by the Committee and additional proposals made by the Department.

Mr Robbertse walked the Committee through a clause-by-clause review of all technical revisions and definitions being proposed by the DoJ&CD.  

The Committee agreed to reflect on one proposal at a time before proceeding to the next.

(See Presentation)


Clause 2 (e)
Adv Breytenbach said she preferred Proposal 1 relating to “damage to property” (p6 working document).

Ms Mofokeng said she prefers Proposal 2 relating to “damage to property” (p7 working document). She indicated that she is happy with proposed omissions as highlighted in this proposal.

The Chairperson said that the discussion was still a brainstorming session to allow Members the opportunity to review each proposal. However, further deliberation would still be required moving forward.

Clause 2(g)

The Chairperson asked if the Department was restricting the definition of disability to mental illness as it pertains to section 2A and 2B of the Bill (p8 working document).

Mr Robbertse replied that the definition relates to a mental illness or a severe or profound mental disability. The Mental Health Care Act, 2002, defines a severe or profound intellectual disability as a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care. This definition is wider than just a mental illness.

Dr Newhoudt-Druchen said that if the definition for mental illness is left as it currently is, it will present a huge problem for that specific community. A person like her who has a disability would fall under this definition. This definition therefore needs more clarity. What is currently defined in the working document does not appear in the Mental Health Care Act, 2002. There is a mental disability and a person with a mental illness, these are two separate things which have varying degrees of severity.  This can either be a person who cannot communicate and make decisions for themselves or a person with a mental illness who can make decisions for themselves who perhaps has schizophrenia for example. The current definition needs to be more specific. She asked why there was a request not to widen the definition during public hearings. How are people who are deaf and have never learned sign language accommodated? What about people who are of sound mind but cannot speak verbally to express themselves accommodated? More research needs to be done in this area. The United Nations (UN) Convention on the Rights of Persons with Disabilities states that disability is an evolving concept which cannot be nailed down. The National Director of DeafSA said that the word sensory is fine but tends to get ignored by people on the ground. More research needs to be done on the current definition and it cannot be left as is.

Ms Mofokeng agreed with Dr Newhoudt-Druchen who understands the situation in a different manner than other members.

The Chairperson asked Mr Robbertse to develop an additional proposal that accommodates the contributions made by Dr Newhoudt-Druchen.

Mr Robbertse said a new option would be created. He pointed out that disability only applies to adult persons, older persons and children are covered in section 2A and 2B. The wide definition was criticised by various commentators. A sensory impairment may render a person incapable of performing certain acts which another adult person can. This will be taken into account along with the UN criteria.

Clause 2(i)

Ms Mofokeng agreed with the general observation that “harm should form part of the definition of domestic violence” (p10 working document). The word harm caters for many behaviours which can be psychological or in the form of harassment.

Clause 2(w)

Ms Mofokeng recommended that the Committee discusses the issue of “shame” (p19 working document) further as this is not something that should be removed.

Clause 4

Ms Mofokeng asked the DoJ&CD to clarify if the complainant and the abuser will be arrested at the scene of an incident of domestic violence if both parties have used physical violence, even if it was self-defence on the part of the victim (p23-24 working document).

Mr Nqola agreed that the concerns expressed by SAPS were ambiguous.

Dr Newhoudt-Druchen raised the same concerns as Ms Mofokeng. The Committee needs to clarify SAPS’s concerns because they currently imply that the victim will be arrested as well.

Mr Horn added that the Committee needs to consider this clause carefully because sometimes a victim acting in self-defence may be impacted by such a provision. The reality is that even if a police officer has reasonable grounds to believe that a person has committed an act of physical violence, this will only be determined after the fact. The Committee needs to ensure that there are no unintended consequences or an expectation for SAPS to act in a way where there is no room for common sense. He said this is a complex matter which makes him uncomfortable as it is currently worded.

The Chairperson asked Mr Robbertse to consider MPs’ comments to draft an additional proposal.

Clause 6

Ms Mofokeng said more work needs to be done concerning the “application for protection order” (p26 working document). Not a lot of people know the process required for applying for a protection order and go to the police station where they are turned away and told to go to the courts. She recommended adding a clause which requires the police to ensure that people are assisted through filing manual forms and/or are taken to court. The Department needs to consider people in communities where there are limited resources like access to electronic devices and filing and courts. Mamelodi is an example where there are two police stations but no accessible courts. Women become discouraged when they are turned away from police stations and in some cases, may not have money to go to the courts.

The Chairperson referenced Flagstaff, Eastern Cape where the courts are over 50 kilometres away from the village. The issue raised by Ms Mofokeng is valid and requires more attention. The Department and Committee cannot be developing legislation for urban areas only, legislation must be cognoscente of inequalities and must respond to the needs of those who have resources and those who do not.

Mr Nqola agreed with both Ms Mofokeng and the Chairperson. Although GBV is an issue that affects those in both affluent and rural communities, incidents are less reported in remote areas with fewer resources.

Dr Newhoudt-Druchen said Ms Mofokeng referred to those who do not have access to electronic devices. However, equal attention needs to be paid to people who have electronic devices but do not know where to access electronic forms. How will access and awareness be covered across all communities?

Ms Mofokeng clarified that she was not only talking about electronic devices, the manual filing process must be maintained to accommodate individuals who do not have devices. Secondly, in most cases in rural areas, people often approach the church to report cases of abuse hence the issue of spiritual abuse. The Department needs to consider making forms available to church Ministers in an effort to assist police officers.

Clause 7

Ms Mofokeng raised concern on the condition stipulating that documents relating to an interim protection order must be served “by hand, at the physical address for service specified in the application; or electronically at the address or number specified in the application, provided that where the complainant and respondent share the same residence, service must be effected by hand on the respondent personally” (p30-31 working document). She said that this may be dangerous and has caused harm in households where the complainant and respondent still live together. Some people do not understand the Domestic Violence Act and need to be educated. This particular section needs to be replaced.

The Chairperson said the Committee would allow Mr Robbertse and the team from the DoJ&CD an opportunity to incorporate MPs’ commentary into the proposed amendments. Following which, the Committee will begin a clause-by-clause review to make final decisions on the Bill. He thanked the Department for a job well done and said the Committee has a good document it can work on. However, it is crucial to allow Mr Robbertse enough time to do research on the issues raised by Members. The Committee will have to agree on a suitable date for Mr Robbertse to return. A date will also have to be scheduled for Ms Barbara Loots, the Parliamentary Legal Adviser, to finalise a project plan detailing legal opinions on the Bills. Lastly, the Committee will have to schedule preliminary discussions concerning the National Council for Correctional Services. The law stipulates that four or more members of the council must be appointed in consultation with the Committee. The Committee will have to discuss how it envisages its role in the appointment process.  Members will also have to decide on the program for the following week because as it stands, it has been rendered irrelevant due to outstanding matters.

Project Plan
Ms Loots reported that she had spent three days doing an overview of one of the five issues highlighted by the Committee in the last engagement and had consulted with her manager. Under normal circumstances, it takes approximately seven working days to formulate an opinion on one specific area. This includes time taken for a senior adviser to review the opinion. Unfortunately, this approach will not work due to the tight deadline the Committee is under. However, it is crucial to ensure that the final product is of substantive value and aids the Committee in making a final decision.  In the best scenario, the project plan will be completed in 10 working days. This will only relate to the Sexual Offences Amendment Bill and the Criminal Related Matters Amendment Bill.

The Chairperson said the Committee would be addressing the BRRR in the week to come, following which, Parliament would be adjourning. Therefore, it is highly unlikely that the Committee will be able to finish working on the Bills in two weeks’ time if it wants to produce a result that will withstand any potential Constitutional challenges. It is important to allow officials enough time to do research, particularly in the areas which may have Constitutional implications. There will be no point passing a poorly drafted Bill.

Mr Nqola asked Ms Loots to confirm when the 10-working day period starts.

Ms Loots replied that the 10 days would start from the day of the meeting. She is aware that the Chairperson has urged officials to be as thorough as possible in their research.

Adv Breytenbach said that the Committee should not put pressure on Ms Loots to complete such a complex task in 10 days if it’s unlikely that Committee will finalise these issues prior to the rising of the House. If the Committee will not be dealing with the Bills in the next two weeks, Members should allow Ms Loots enough time to do a sufficient job. It is unfair to put Ms Loots under that amount of pressure.   

The Chairperson said that even if Ms Loots were to deliver the project plan in 10 days, this does not mean the Committee will be done finalising the Bills. Members will still perform a clause-by-clause review of the Bills. Therefore, it is impossible to conclude on the Bills before the House rises.  

Ms Mofokeng agreed with Adv Breytenbach not to put pressure on Ms Loots. She requested for the Committee Secretary to look at the projected schedule for January to see when the Committee will resume. It is clear that the work will not be completed before the end of the year.  

The Committee agreed that the same courtesy should be extended to Mr Robbertse to allow him enough time to research properly.

The Chairperson suggested that the final week be used to receive reports from the Department of Police, the NPA and the Department of Health with regards to the Eastern Cape. The Committee still has an outstanding meeting with the Director-General of the Department of Communications. The Department of Communications had previously told the Committee it could not respond to questions because it had other matters to handle. This is unacceptable.  The Committee must respect officials for the work they do, however, Parliament must also be respected. It is important for the Director-General to appear to explain what happened. A programme detailing what will be done until the rising of the House will be finalised and distributed to Members by Friday, 20 November.

Ms Mofokeng asked if the issue of the eNCA and women who had been abused would be included in the week’s agenda.

The Chairperson responded that the Committee was awaiting a report from SAPS and the NPA concerning this matter.  He encouraged Mr Robbertse and Ms Loots to take their time to do the necessary research on the issues highlighted.

He asked Deputy Minister Jeffery to give a briefing on the National Council for Correctional Services and how the process will be managed considering the Committee only has two weeks remaining before adjourning.
Deputy-Minister Jeffery responded that this is in fact a matter for Correctional Services, which Deputy Minister Holomisa would be better suited to address. However, based on his understanding, summaries of the CVs will be sent to Members. The selection of names has to be in consultation with the Committee. The positions for community representatives have been advertised. Although this is a consultation and not a joint process, the Minister wants the process to be as participatory as possible. There are no objections to providing summaries and copies of the CVs of applicants and nominees to the Committee.

The Chairperson asked if the Committee would be getting the summaries of all applicants or only those who have been shortlisted and how will the process be managed to ensure meaningful consultation.

Deputy Minister Jeffery replied that this would be up to the Committee. Approximately over 100 applications were received for the four council positions. The legal requirement is for appointments to be made in consultation with Parliament. The Committee is therefore at will to determine what it needs. At minimum, the Minister would provide names of potential appointees and the Committee would either agree or disagree. However, the Committee may want to be more involved and see an inclusive list of all applicants down to shortlisted candidates-this is all to the Committee’s discretion.

Adv Breytenbach suggested that the Committee should be reasonably involved and should request electronic summaries of all of applicants and CVs of all shortlisted candidates.

Dr Newhoudt-Druchen asked the secretariat to provide information on what process was followed in the past. Has the council ever reported to the Committee?  This would shed light for newer Committee members like herself.

Ms Mofokeng asked Adv Breytenbach to detail some of the challenges experienced in previous years.

Adv Breytenbach said she does not recall the Committee ever being involved to the extent currently being suggested. She suggested the Committee plots its own course as agreed on.

The Chairperson concluded that the Department should provide all electronic CVs by Friday, 20 November. The Committee will thereafter require a meeting with the Minister to discuss the particulars of shortlisted candidates. The Committee wants to ensure it abides by the law and finalises this matter timeously.

Deputy Minister Jeffery agreed to relay the Committee’s requests to the Minister and Deputy-Minister Holomisa.

Closing remarks

The Chairperson noted that the meeting was previously scheduled to reconvene at 18:00 in anticipation that discussions on the Bill would have taken longer. However, the Committee was able to address each item on the agenda in time.

The Chairperson thanked Members, support staff and the Department for their attendance and commitment during the engagement. He assured officials from the DoJ&CD that the Committee respects them as individuals however, Members are unhappy with the overall performance of the Department. Both the Department and Committee owe it to the South African people to serve them as best as possible in their respective capacities.  He thanked PMG and all who had joined the Parliamentary stream.

The meeting was adjourned.



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