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JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
3 June 2004
DEPARTMENT STRATEGIC PLAN: BRIEFING BY MINISTER
Chairperson: Ms F Chohan-Kota (ANC)
Briefing by Minister on Vision for Department
The new Minister's briefing outlined the challenges that faced the Department, the plans regarding the dispensation of justice, the progress made by the National Prosecuting Authority, the Department's efforts to address gender issues and the management of funds it held in trust.
During the discussion Members sought clarity on the Department's plans to complete the restructuring process of the Department, the progress made on the establishing of the Ministerial Co-ordinating Committee setup by Section 31 of the National Prosecuting Act, the need to integrate the different units operating within the Department and the recurring problem with the failure to implement legislation that had been passed years earlier. The Minister was asked to comment on the expected relationship between the Parliamentary Committee and the Department, the Department's plans to provide access to justice to the poorest of the poor, the plans for the establishment of a Victim's Charter and whether the Department planned to revisit the interim rationalisation of the High Court. The Superior Courts Bill and the Legal Practice Bill were mentioned as being high priority.
Introduction by Chairperson
The Chair congratulated the Minister and Deputy Minister on their appointments. She stated that the appointment of a woman Minister to a very male dominated Department was especially welcomed.
Briefing by Minister
Ms Brigitte Mabandla, Minister of Justice and Constitutional Affairs, addressed the Committee on the challenges that faced the Department such as:
â€¢ Reducing case backlogs and transforming court systems and processes
â€¢ Extending access to justice to the poorest and most remote areas
â€¢ Re-engineering the maintenance system and the effective implementation of the Domestic Violence Act
â€¢ Increasing capacity among Justice personnel in order to effect service delivery excellence, in line with the principles of Batho Pele (People First)
She also dealt with progress made by the National Prosecuting Authority (NPA), the Department's efforts to address gender issues and the management of funds held in trust.
The Chair said that it was very gratifying that the Minister's presentation placed much emphasis on the consolidation of the Department's achievements. The Department faced the same kind of challenged that faced any large corporate organisation, such as better utilisation of resources and more strategic alignment between planning and financial resources. She had always perceived the Department to consist of a number of different silos that operated completely independent of each other, and this made the integration very challenging indeed.
The Minister replied that she agreed with the Chair. She had realised after her discussion with the business units that they operated almost in totally isolation of each other. This had a bearing on the quality of outputs, efficiency in the system and impacted on operational matters. The Department would be addressing this matter.
However, with regard to the Department's report that was currently before Parliament, it must be remembered that the government has created institutions that do not exist in other countries and it has succeeded in linking them efficiently. This was all done in an effort to strengthen constitutionalism in South Africa and to bring about new values, because it was the new value system that would ensure stability.
The Minister was confident in the processes that were taking place in Parliament and that the country would come out stronger with the new norms and standards that would influence the way in which the institutions that have been put in place would operate.
The Deputy Minister, Adv J de Lange, stated that it was important to set high standards but cautioned against the setting of unrealistic standards. In this sense the Chair's comments regarding consolidation were so important because government now has to ensure that the achievements be acknowledged, celebrated and built on. The problem areas would then have to be identified and addressed. He assured Members that he has learnt, since becoming Deputy Minister, that there is much to be proud of in the Department. One of the problems was that the breakdown was always accentuated, and that then became the collapse of the system. It was not viewed as something that could be remedied, as should be the proper approach.
He agreed with the Chair that one of the two biggest problems was the fragmentation within the Department. In one sense working like a business structure has its merits and attractions, but the problem was that governments just did not operate that way. In fact many businesses themselves did not operate that way because if they operate in silos they would experience problems. The Department has planned to address the problem by beginning with the top management structures, because a solid, unfragmented top leadership structure was needed before the same could be expected from the rest of the organisation. This was the aim of the Department.
He stated that the Minister had informed the Department that it intended to have a hands-on approach, and the issue would not be that the Ministry was unaware of a problem in a specific area. The Ministry should know about all the activities of the Department and should be able to respond to such problems. The Department was thus attending to this matter and it was hoped that improvements would be seen soon.
The Chair commented that the Department had been seized with the issue of restructuring in every sense of the word since 1994. The problem was that it appeared to be an ongoing situation, and it appeared that the minute an initiative encountered any problems it would be scrapped completely and a totally new initiative would then be introduced. This has led to an ongoing sense of insecurity and ultimately in a lack of consolidation. This appeared to be one of the key challenges facing the Department.
The Minister responded that it may well be that the Department would embark on a final restructuring initiative. This would not be a scrapping of problems as referred to by the Chair but would be an effort by the Department to deal conclusively with the problems. The Committee should question the Department on this matter because the Ministry had instructed it to devise ways to bring about more efficiency and coherence between the programmes.
The Deputy Minister added that this was a very complicated issue. The Chair was correct in stating that continual restructuring resulted in the top management of the Department concerning itself primarily with policy issues, and losing touch with the day-to-day working of the Department and the problems. The restructuring process thus has to come to an end very soon, and the Ministry was fully committed to this. An important role would be played by the Superior Courts Bill which dealt with the restructuring of the South African courts system, and until that Bill was finalized and until it introduced the new dispensation there would clearly have to be alignments.
The same would occur in the Masters Office via the creation of a Chief Master, although it would not involve as much restructuring. This would allow uniformity in the offices. There was new thinking regarding litigation, but the Department's plans for restructuring in this area would be revealed at a later stage. There was also much restructuring in the finance directorate of the Department. This restructuring process was largely complete but, as indicated by the Minister, the fine tuning that would have to take place between the court services directorate and the finance directorate still needed work.
He encouraged the Committee to embark on study tours to the Department quite soon so as to assist the Department in identifying the problem areas and to offer viable solutions to bring the restructuring process to an end, so that a further process does not then have to be engaged one year down the line.
The Chair stated that the problem with the implementation of legislation remained an ongoing concern to the Committee, as well as the costing of legislation. The Committee has always been presented with legislation and told it must be passed as a matter or urgency. It would then work really hard on prioritising it and once it passed, there would still be implementation problems two or three years down the line. The development of a costing and planning unit around legislative initiatives proved to be another challenge to the Department.
The Minister replied that the Department planned to develop a turnaround strategy on the issues of costing and finance, and this should be properly discussed with the Department.
The Chair noted that over the last three years the Department has not submitted its Annual Report within the stipulated timeframes. It was understood that this was not always the Department's fault, but remained something that should be addressed.
The Minister responded that this should be discussed with the Department.
The Chair pointed out that the recent Public Protector's report indicated that its review of Section 31 of the National Prosecuting Act showed that the Ministerial Co-ordinating Committee set up by that section has not yet been implemented. She requested the Minister and Deputy Minister to comment on that.
The Minister replied that this matter was being attended to. A preliminary meeting had been held and probably over the next ten days a full report would be released to the public on the Department's plans on this matter.
The Deputy Minister added that both these structures fell under the ambit of the Justice Ministry and it would thus have to give guidance on these matters. At the end of the day, as stated by the Minister, those structures must be strengthened and the parameters under which they operate must be understood more clearly. The manner in which this was conducted was very important, and it would be a measure of the country's democracy.
Ms S Camerer (DA) congratulated both the Minister and Deputy Minister on their appointments. She asked whether the Ministerial Co-ordinating Committee would be considering any legislative amendments to ensure that the mandates these two institutions were quite clear. There appeared to be a danger of the NPA and Public Protector operating in a mutually damaging manner.
The Minister responded that there would be very useful information that would assist the Department in looking either administratively or legally at improving collaboration or clarifying the mandates of the various institutions. The Department was currently in the process of defining the terms of reference of the Co-Ordinating Committee. Its introduction, together with its mandate, would be announced in due course.
The Deputy Minister added that it must be remembered that the Co-Ordinating Committee was established under Section 31 of the National Prosecuting Act for the NPA, which dealt with its relationship with other law enforcement agencies. It was the case in every country that had several law enforcement agencies that there was tension in those areas in which their mandates overlapped. The aim of the Section 31 Committee was to create a ministerial framework that would be able to deal with such disputes. This case was however different, because the Public Protector was not a law enforcement agency but was a separate constitutional structure.
He agreed with the Minister that this matter should not be pre-empted before it ran its course, but the Department would be considering the parameters of the legal mandates of the institutions. This would not necessarily result in legislative amendments, but rather more a question of talking through issues and avoiding misunderstandings.
Ms Camerer stated that she was delighted at the success of the Community Court at Hatfield, and asked the Minister to explain how this court operated differently from the magistrates court that operated in the same area, for example.
The Deputy Minister replied that that court was a very interesting concept. It was aimed for areas such as Hatfield, Hillbrow and the Durban and Cape Town Waterfront that have heavy night traffic in areas that are awake all night long. The Hatfield Court was a permanent 24 hour court so that the perpetrators of the petty crimes that made people's lives a misery, such as stolen bags, would then be taken to that court on the night of the incident. It would thus not be introduced anywhere but needed to be in areas with a nightlife.
Mr J Jeffery (ANC) stated that the Strategic Plan Framework indicated that an oversight function would only be expected from Cabinet, and requested the Minister to provide Members with the assurance that it would expect Parliament as well to perform this oversight role. He requested the Minister to comment on the expected relationship between the Committee and the Department with regard to the oversight function.
The Minister responded that the Committee was clearly the first oversight body, and the healthy relationship enjoyed between the Committee and the Department in the past would continue. The Deputy Minister himself was very passionate about Parliament's oversight role, and the recommendations received by the Committee would be taken very seriously.
The Deputy Minister added that the Department has had numerous interactions amongst the various units, but the one area which it has not yet examined was the unit that dealt with oversight. The issue of just how exactly the oversight function fitted into the strategic plan of the Department would be considered, and the version of the Strategic Plan Framework referred to by Mr Jeffery was merely provisional and was not the final product. He stated that the Minister had a long history of interaction and consultation and he himself was "totally and utterly wedded to the parliamentary process" particularly this Committee.
The one thing that should be changed and which the Deputy Minister did not do during his period as chair of the Portfolio Committee was to create much more formal links between the Committee and the Department which would take the oversight work of the Committee further. Perhaps future meetings between the Committee and the Department should deal both with an examination of the broader workings and aspects of the Department, as well as with the specific areas of concern. This would ensure a much more direct interaction with the Department.
Imam G Solomon (ANC) stated that he was concerned that extremely high targets were being set and that an enormous amount was being expected from the various structures in the Department who themselves had limited resources. This seemed especially so in the case of the court services unit, which was probably the most important function of the Department.
The Minister replied that she agreed with Imam Solomon. The tone of the President's State of the Nation Address was very business-like and focused on consolidation. It emphasized that government would not able to effect real service delivery by focusing exclusively on policies and restructuring. This issue should be canvassed in greater detail with the Department itself.
The Deputy Minister agreed with Imam Solomon and stated that this was an issue the Minister had raised very sharply. On the one hand it was good to create these specialised structures but on the other hand it did create problems, and unevenesses and unequal distribution of resources. The Minister had stated firmly that this matter must be addressed.
Mr C Burgess (ID) stated that the Minister's briefing indicated that one of the key challenges that faced the Department was extending access to justice to the poorest of the poor and to those in the remote areas. The problem was that there was a lack of financial assistance to those people who really needed justice and legal representation, and asked whether the Department had devised any plans to address this problem. There have been a case in which people had been evicted and lost their house simply because they did not have the necessary finances to secure legal representation.
The Minister responded that the Department would probably have to consider the introduction of legislation that would reduce poverty, as economic laws such as the Companies Act would probably have to be honed to ameliorate the conditions in which South Africans live. The Small Claims Court would be of importance here as it could be an enabling instrument for people to engage in economic activity. This went beyond the issue of ensuring access to legal aid for the poor, but also to a consideration of the combined systems in society that increased poverty and what could be done to undo that. This would be discussed further with Mr Simon Jiyane, head of the Department's Court Services Unit.
The Deputy Minister added that if one looked at the court case Mr Burgess was referring to, none of the parties had done anything wrong as they were merely doing what the legal system allowed. The Minister was saying that a gear change was needed because there were areas in which the legal system was geared against the poor. The Deputy Minister stated that a perfect example would be the case in which a judgment was given again him last year without his ever hearing a word about it from the courts. The procedures involved must be examined and it must be impossible, for example, for a judgment to be served against an individual without them hearing a thing about it beforehand. The case referred to by Mr Burgess in which a house worth R17 000 could be attached to extinguish a debt of R250 had happened as the legal system allowed that. This was clearly biased and created problems.
The Constitutional Court would clearly address these issues. The Department has constituted a group of people to look that this matter and, once concrete suggestions have been tabled, the Committee would be addressed on the issue. The issue of "poor persons' law" and how they were affected was a very important issue to the Department. The legal aid system was of course the first line of defence, and it was one of the miraculous improvements since 1994. The reality of the matter was however money and the lack thereof. The Constitution stated that every person that faced a substantial prejudice must be given legal representation. At the moment as legal aid services were rolled out, they were geared towards criminal law and criminal perpetrators, because there was a constitutional imperative to do so. It was for that reason that the vast majority of money would go in that direction. It was hoped that in time this would stabilise and the creation of more legal assistance clinics would go to civil work, and this would be prioritised in those areas in which it affected the poorest of the poor. It was an area that had been neglected.
He stated that the Minister was very passionate about allocating more resources to the Small Claims Court, because it was at that level that people were most affected. The Committee's interaction on this matter would be welcomed.
Mr G Magwanishe (ANC) appealed to the Department to consider not only internal restructuring but also external restructuring, or restructuring of the legal profession as a whole. A resolution was passed in 1994 which called for a single unified legal profession, but that had not yet been finalised. This must be addressed as a matter of urgency as it would ensure a constant pool of people to be appointed to the judiciary.
The Deputy Minister responded that the Legal Practice Bill was being taken very seriously because, as correctly stated by Mr Magwanishe, the process had taken far too long. He stated that the Bill had been drafted and he and the Minister would soon be interacting with the Committee on the Bill and process it as quickly as possible. It was probably the highest legislative priority after the Superior Courts Bill.
Ms Camerer stated that many complaints were received during the Committee's study tours regarding the lack of interpreters, and asked the Minister to explain the Department's plans to address this concern.
The Minister replied that she had no knowledge of the problem with interpreters. She stated that she was fascinated by the concept of courts in prisons. She would talk to Mr Jiyane about the matter as it was a very interesting concept and may be the answer to some of the Department's problems.
The Deputy Minister added that there were a host of problems with interpretation services in terms of structure, discipline etc. and they were one of the problems that held up court functioning. It was a matter that the Department was looking at, especially via the new restructuring in the Kwazulu-Natal province.
The Chair asked the Minister to briefly comment on the plans for the establishment of a Victims Charter and how it would assist in the overall crime fighting system.
The Minister responded that a Victim's Charter was needed as it would indicate that this was a caring society. Her recollection was that people had unrealistic expectations of what this would mean, because they considered it an instrument for victims to access financial assistance or compensation because of their loss or injury. Any such approach which had serious implications for State resources would be cautioned against, because it would be rejected. The Committee should play a leading role in driving this matter forward.
The Deputy Minister added that he agreed with the Minister. The issue of the Victim's Fund was referred to the South African Law Commission, and its report would have to be considered. This, together with issues of broader service delivery would have to be looked at holistically. The criminal justice system always received most of the focus and there the rights of the accused took the foreground, but clearly victims would also have to be considered.
The Chair stated that during one of the Committee visits it found a court that was situated in a prison, which had phenomenally long court hours. The reason for this was obvious because there were none of the usual delays with the transporting of prisoners for example. The Department should look at implementing this in future and building courts close to prisons.
The Deputy Minister replied that the Committee had never conducted follow-up visits to the three cities, and he had been suggesting to the Minister that the Ministry conduct the same type of oversight visits with the executive. Recommendations were made particularly regarding the restructuring of the Integrated Justice System, especially in Port Elizabeth. There were thus a whole host of suggestions that would have to be followed up.
Ms Mahlawe (ANC) requested the Minister to revisit the Interim Rationalisation of the High Courts.
The Deputy Minister responded that he was aware that there was great unhappiness in the southern part of Kwazulu-Natal because the courts in that region were now run from Durban or Pietermaritzberg, whereas they used to be run from the Eastern Cape. The Eastern Cape rationalisation, which was approved by Parliament, has not yet taken place. He reminded Members that this was just an interim arrangement and the final arrangement would have to be forged in the Superior Courts Bill. The problem with that Bill was that the jurisdiction was not clearly spelt out but was rather vague, and stated that the drafters were then requested to spell it out clearly. A consultation process would then have to be undertaken to arrive at the best possible way to take things forward. It would be difficult to now undo the Interim Rationalisation Act, and Mr Jiyane would then have to consult the southern part of Kwazulu-Natal and hear what the problems are.
Concluding remarks by Chairperson
The Chair assured the Minister that the criticisms and areas of concern raised by the Committee were done in the spirit of co-operation, and were aimed solely at ensuring a South African justice system to be proud of. The Committee was aware of the good parts of the justice system and it was very keen to see an improvement in the areas that remained a challenge. She assured the Minister and Deputy Minister of the Committee's support in all the Department's initiatives.
The meeting was adjourned.