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JUSTICE PORTFOLIO COMMITTEE
22 September 1999
Documents handed out:
Report: Efficiency of the courts
[Executive summary attached to the end of these minutes]
The Minister of Justice Mr P Maduna complained about the lack of proper management in the courts and in the Department. He lashed out at the three and a half months leave a year which judges are entitled to as being too much and as contributing directly to the paralysis of the system. He described the Legal Aid system as very expensive and a "major headache." The Deputy Minister Ms C Gillwald called for the establishment of justice centers and the use of para-legals. She expressed hope that this will be cheap and reach the poor especially in the rural areas.
The Minister of Justice Mr P Maduna apologised for taking long before he could brief the Committee. He attributed the delay to a number of issues including his recent visit to the United States of America. "We need the Portfolio Committee more than it needs us," promised the Minister. He went on to say that without the Department, the members of Parliament and the public working together the problems faced would not be solved. He appealed to members to co-operate even though they come from different parties. "Let us work together," he said.
The Minister complained about lack of proper management in the courts and in the Department. He said that regular meetings are held on Mondays in the Department and he commended the attitude of the staff who in these meetings are beginning to come forward to offer their expertise and show greater responsibility.
In illustrating lack of management control, the Minister gave as an example the 1999/2000 budget. He had had an opportunity of checking whether everything on the budget list is a priority. He discovered that there are demands for more furniture. Yet on making enquiries he discovered that there are areas like the Northern Province, which have more than enough furniture stored in warehouses. "So if you see many furniture removal trucks on the roads, you must know that we are moving the furniture from the warehouses to where it is needed," exclaimed Minister Maduna. The Minister commended those business people who have noticed the Department grappling with difficult issues and have since offered their assistance.
Functioning of the Courts
"The courts must remain our main focus. We are looking at the proper utilisation of scarce resources by the courts. We also have to look at the way they function." In addition to the problems faced by the courts resulting in shorter working hours, other Departments contribute to causing some of these problems. He gave the example of prisoners being brought late to court, which has a direct impact on courts starting late.
Much time is wasted because judges are on recess. The Western Cape regional office was asked to do an audit of what happens when a judge is on recess. It was discovered that their secretaries are also on recess. The Minister said there should not be three and a half months leave for secretaries; they deserve only the recognised annual leave.
In expressing his frustration with the system Minister Maduna said, "â€¦Legal aid is a major headache. We have a contingent debt of R430 million and by the end of the year it will be R650 millionâ€¦. With this situation it is unavoidable that a review be done otherwise by the end of the financial year we will not have a centâ€¦Legal Aid is very expensive and it is my personal feeling that we still do not reach the poorest of the poorâ€¦ We do not have this moneyâ€¦"
The Minister announced that in an attempt to cut the costs a decision had been taken that all personal injury cases will not be subject to legal aid. The sad point about this decision is that the recent case of those who were exposed to asbestos will not be funded. The Minister expressed agitation at the fact that "meanwhile we funded a divorce case which ran for 200 days which cost R600 000."
Another decision that had been taken was that the fee structure of legal aid fees payable to attorneys would be reviewed.
"The primary focus must not be for the Department to clamor for more moneyâ€¦we won't get it," the Minister warned.
Appointment of magistrates
Magistrates have tended to be appointed from the ranks of senior prosecutors and eventually there would be vacancies in the prosecutors' ranks. The Minister said, "The Judicial Service Commission has recommended that we appoint people directly from the private sector. There will be probation, no examinations, then the people will be appointed as magistrates."
The Minister concluded by stating that with the necessary goodwill all the challenges will be met.
The Deputy Minister's also addressed the committee. Ms C Gillwald said the changes already achieved have come sooner than expected. She said during her visits to the courts she had come across the most poorly resourced courts which managed to start on time and finish their rolls. She said that what counts is attitude more than anything else.
On the question of legal aid she said that the establishment of justice centers would make it possible that people in rural areas would also be reached. "The use of para - legals must be put into place."
The Deputy Minister complained about the inadequacy of the Management Information System which needed to be improved.
Minister Maduna added that pilot projects dealing with commercial crimes would be set up at the end of October. He further promised an integrated pre-trial system where police, prosecutors and magistrates will be able to communicate more efficiently.
Mr T Delport (DP): I want to congratulate the Minister and the Deputy Minister on what they have said. My only question is - is it not possible to involve your Committee at an earlier stage whenever important decisions have to be taken. We would like to get involved at an early stage to ensure that we get a good working system in South Africa.
Minister: I am more than elated with the remarks. The answer to the question is yes. Fortunately we have regular meetings with the Chairperson here. Even if it is not possible to meet with the Committee any information will be conveyed to the Chairperson who in turn will inform you.
Ms S Camerer (NNP): The Minister did not touch on the success stories of the Department. One of the success stories is the Heath Commission. Do you intend to get rid of the Heath Commission and create other Heaths?
Minister: According to law there is no Commission that is permanent. A judge must not be away for too long from the bench. Also, the law did not envisage permanent scrutiny of the Government. I think the permanent commission is the electorate. We do not want to give the impression that there is something wrong warranting the scrutiny of the Government. Appointing another judge to deal with the outstanding matters would help for example, it is not necessary to take Heath from East London if a matter arises in Johannesburg. I had never said that Heath must come to an end but I have said that it has a specific mandate. Whether it will be re-appointed I cannot say. We however commend the Unit for the good work it has done.
Mr R Meyer (UDM): It would be good if the Minister could give feedback to this Committee on the audit.
The Minister agreed.
UCDP Committee member: Will the Government cancel the fraudulent accumulated leave of secretaries.
Minister: It would not be fair to say the leave is fraudulent. We merely have to make it clear to people that it is over. The whole system must change.
Mr T Landers (ANC): How do we change the system of the judges' leave.
Minister: We will discuss the recess issue with the Chief Justice, the President of the Constitutional Court and all other relevant people. The matter requires urgent attention.
Ms P Jana (ANC): Will the posts of the magistrates to be drawn from the private sector be advertised.
Minister: Yes, we will advertise the posts; but again there remains the question of paying these magistrates.
The meeting was concluded.
PROGRESS REPORT BY DR M P MADUNA MP, MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, ON THE EFFICIENCY OF COURTS, TO THE JUSTICE PORTFOLIO COMMITTEE: 22 SEPTEMBER 1999
On 9 September 1999, Dr P M Maduna, gave an overview of his findings - obtained through visits to various courts - relating to the efficiency of the courts, to Parliament. The main document has as purpose to indicate the progress that has been made with regard to the various matters raised by the Minister and to act as a discussion document for further debate.
It is the task of this Ministry to provide a Civil and Criminal Justice System within a framework of sound governance, community credibility and transparency. Such a task requires adequate accommodation for Courts and justice personnel, a well trained and public spirited staff, together with processes of justice that allow for the smooth running of all offices and the provision of an efficient service to the public. Progress in these areas are reported to be as follows:
1. COURT ACCOMMODATION IN TOWNSHIPS AND RURAL AREAS
Magistrate's Courts are in urgent need of attention. Many buildings are in disrepair and there is a shortage of space for the adequate provision of services. A priority list for both short and long term projects has been drawn up.
Tembisa has been given high priority for the provision of a new building. In the interim, the Department, is negotiating with private sector firms to assist with some of the required interim renovations in order to make the branch court of Tembisa more presentable and effective.
Work is presently also underway at Alexandra, Nyanga, and various other sites. Work will commence this month on the upgrading of ten further Magistrate's offices, five more are at the stage of tenders being invited and seven are still at an early planning stage. With regard to Alexandra, Vodacom is sponsoring major upgrading of the infra-structure and this will lead to a more effective service to the public.
The Department has also embarked on a process whereby all courts in the country will be upgraded in order to deal with certain minimum standards. To deal with this a Model Court Blueprint was drafted. This entails revisiting standards to ensure that they increase access to justice, are user-friendly as well as to incorporate aspects relating to family matters (Family Courts), sexual offences (specialist courts) and child-friendly aspects into the courts. In this regard and to expedite the process, 2 courts have now been targeted for upgrading in line with the Model Court Blueprint: Mitchells Plain (Western Cape) and Orlando (Gauteng).
Initial investigations have begun into the provision of the required High Courts for the Northern Province and Mpumalanga. Plans for alterations of the Constitutional Court and Supreme High Court of Appeal are presently on hold.
It is a fact that an acute shortage of staff is being experienced. In general, the process by which vacancies of magistrates and Regional court magistrates are filled are being reviewed to expedite the filling of vacancies. The urgent attention given to advertising posts, and the appointment of temporary staff and some private practitioners is expected to help, especially in meeting backlogs.
However, computerisation is seen as the long term solution and aside from the installation of hardware, changes in the court rules are also receiving attention. Eg. the Rules Board has established an Information Technology Committee to make recommendations regarding the amendment of rules to accommodate the computerised system. Apart from providing a more efficient financial accounting system, the system will provide the normal office automation including network and e-mail facilities. It will allow prosecutors to track cases and it will be easier for courts to compile statistics and provide continuing records.
Another up-to-date electronic facility, video conferencing, will be used to swiftly deal with the matter of court case postponements, when the appropriate provisions have been made in law.
An investigation has already been conducted in regard to the simplification of court proceedings. In this instance the Rules Board has established the Civil Justice Reform Committee to investigate the review of the civil justice system. This committee has already met and areas of responsibilities were allocated to the various members.
Disciplinary matters regarding Court officials are receiving urgent attention. The National Office has been requested to assist the Office of the National Director of Public Prosecutions in the finalisation of all misconduct matters regarding prosecutors. All Provincial offices have been called upon to expedite outstanding disciplinary matters. Training together with the transfer of all labour related matters involving prosecutors to the Office of the NDPP should assist future processes. Attention is also being given to ensure a healthy working environment for all prosecutors.
The Magistrates Commission has established a committee headed by the Chief Magistrate of Bloemfontein to attend to disciplinary measures against misbehaving magistrates. Generally, misconduct enquiries against magistrates are conducted and finalized within a reasonable time.
There were initially 380 supernumeraries in the Eastern Cape. Officials concerned were interviewed to establish if they are willing to be transferred to other Provinces. As a result most of the supernumeraries were transferred to vacancies in the various regions.
3. FUNCTIONING OF COURTS
Under-utilization of Court hours, delays in the finalization cases and under-utilization of resources have been identified as problems in the effective functioning of courts. To obtain the necessary data to deal with these matters a new format for statistical returns on the performance of courts will be ready by the end of October 1999. In order to deal with these problems various measures have been implemented, including linking increased work performance to salary increases, taking corrective steps where possible, monitoring all court rolls more effectively and addressing the blockages collectively.
The volume of work vis- à- vis the different Courts entails a reconsideration of the utilization of resources, a matter which is receiving the attention of the Department (Policy Unit), but will require policy decisions at the end of the day.
An Integrated Justice System (IJS) Court Process Project, aimed at improving the criminal and civil processes in the lower courts has been approved to deal with: Awaiting Trial Prisoners, Reception Courts, Automated Resource Scheduling, Case Flow Management, and Integrated Information Management.
The Court Process Project will assist in establishing an effective court and case flow management system and will enhance the legal process and ensure that each accused person will have a fair and speedy trial as guaranteed in the Constitution. The Department will monitor implementation of this initiative.
In the interim and as a pilot, the Cape Town Magistrate Office is developing a possible case flow management system whereby the magistrate will retake control of his/her court. (Civil and criminal). The aim is to have the system operate in the cluster and to dispose of cases in an effective manner so as to reduce the case load.
The Court management system (Cluster system) is being implemented and in this regard considerable progress has been made. The cluster structure for the lower court judiciary has already been established by grouping magistrate's offices into 14 clusters (usually headed by Chief Magistrates except in two offices where cluster heads are Senior Magistrates). The cluster structure for the administration is in the process of being implemented and it will be in line with the Cluster Structure for the judiciary. The cluster structure for the prosecution is still receiving attention. The putting in place of office managers is receiving attention by Personnel in conjunction with the finalisation of the rationalisation process in which supernumeraries are moved between Provinces to places where they can be utilized. These newly created posts of office manager will entail intensive training as these persons will have to act as financial, administrative and personnel managers. The NDPP's Office has already advertised the posts of Chief Public Prosecutors. Once they are in place, their cluster system can be functional. Manuals have been drafted to deal with the implementation process.
A White Paper on the Judiciary was compiled and a policy decision on the way forward is required so as to deal with this phase.
- TRADITIONAL COURTS AND THE JUDICIAL FUNCTION OF TRADITIONAL LEADERS: The SALC investigation drafted a discussion paper which was launched at the Council of Traditional Leaders in Pretoria on 18 May 1999. The Commission's proposals as contained in the discussion paper received overwhelming support in all the Houses, with consensus emerging around many broad issues of principle such as the need for a new Traditional Courts Art and the strengthening of these courts by training and by installation of proper facilities. A final report (embodying draft legislation) is being prepared for submission to the Minister of Justice by November 1999.
- COMMUNITY DISPUTE RESOLUTION STRUCTURES: This investigation, to look into the operation of the so-called "community courts", grew out of a request to the Arbitration Project Committee of the Commission to expand its research on commercial arbitration to cover all forms of alternative dispute resolution (ADR). The Commission produced a discussion paper in which proposals are set out for the recognition and regulation by law of community dispute-resolution structures. The proposals stress the need to empower these forums with facilities and training, without destroying the inherent flexibility and legitimacy which keeps them close to their communities. The closing date for comments on the discussion paper is 31 October, after which a report with draft legislation will be prepared for the Minister's consideration.
4. WORK OF THE SOUTH AFRICAN LAW COMMISSION RE COURT EFFICIENCY
The SA Law Commission is reviewing inter alia criminal procedures and will be making recommendations on the simplification of the process which will lead to a more efficient system. There is agreement that the accusatorial nature of our process is a major contributor to the ineffective process. Urgent consideration should be given to strengthening the role of the judicial officer by introducing inquisitorial elements in our system which fit in with our concept. This investigation will be completed within the framework of the activities of the Law Commission and it is envisaged that the investigation will be completed within the course of 2000.
5. ISSUES RELATING TO WOMEN AND CHILDREN
The National Plan of Action identified the need for the development of a comprehensive juvenile justice system - a system that will deal separately with children in conflict with the Law and one which is sensitive and responsive to the needs of children. The Law Commission is finalising their investigations in this regard. However, the Department has already initiated, in line with the output from these investigations, a project to deal with such a new juvenile justice system. The project has committed funding from both Sweden and the UNDP and will contribute to a transformed integrated service delivery system based upon the Constitution of the Republic of South Africa
The Domestic Violence Act
The critical activities for implementation of the Act are all receiving urgent attention.
The re-engineering of the Maintenance system, in line with the provisions of the Maintenance Amendment Act, is presently underway.
6. TRAINING AND HUMAN RESOURCE DEVELOPMENT ISSUES
In view of the high premium the Ministry and Department is placing on training, various specific training initiatives are receiving continuos attention, including aspects relating to:
New Legislation (Re the Administrative Justice Act, Open Democracy Act and the Promotion of quality Act (together with the Employment Equity Act)), Mediation, Court Interpreters, Fast-Track Training of Prosecutors, Lay Assessors Training and Violence Against Women.
Autonomous structures for which the Department is responsible:
The various structures such as the Legal Aid Board (LAB) and their inter-action with the Department as well as their accountability, need to be revisited. This requires further attention. However, with regard to the LAB, the following should be noted -
- the LAB is in a very serious financial difficulty
- this situation is being managed by the Department (through the Ministry) and Judge Navsa, in conjunction with the Departments of Finance and State Expenditure and the Office of the Auditor-General
- the crisis has again demonstrated the need to move away from judicare towards an extension of the public defender scheme and other more appropriate mechanisms for legal aid, such as the use of para-legals, clinics (justice centres) etc.
- the tenure of the Board will terminate at the end of October, 1999. Whilst we are fully supportive of the Board under Judge Navsa, we will propose the appointment of certain additional representatives to make it more representative
A permanent forum for the exchange of information, consultation and participation in the formation of policy and strategies is proposed to assist in the matter of autonomous structures, such as the Legal Aid Board. Such a forum can monitor the work and financial situations of the structures as well as provide a much needed point of contact for the sharing of information and the examination together of policy.
7. INFORMATION TECHNOLOGY
Most of the IT projects are long term projects, in that they have to be rolled out to all courts in the Department within the budgetary constraints of the Department. The Basic Automation Project is one of the main projects and when completed, will provide all the normal office automation, including network as well as E-mail facilities. In the long term the courts will be able to participate in the Integrated Criminal Justice System (ICJS) . The prosecutors will then be able to track cases and it will also be easy for the courts to compile statistics. E-Mail will also expedite internal and external communication within the courts and the Department as a whole. The Department will be Y2K Ready before the end of this year.
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