Department of Justice and Constitutional Development Annual Performance Plan and Budget 2023/24; with Deputy Minister
Justice and Constitutional Development
03 May 2023
Chairperson: Mr G Magwanishe (ANC)
Meeting Summary
Justice and Constitutional Development
The Portfolio Committee on Justice and Correctional Services met virtually to be briefed by the Department of Justice and Constitutional Development on its 2023/24 Annual Performance Plan (APP) and Budget.
The Committee disagreed with the Department’s claims that performance had improved. The Committee highlighted several areas that still presented concerning issues, particularly issues with the Master’s Office and maintenance concerns.
The Committee was concerned regarding issues related to maintenance and infrastructure. They highlighted that many courts were inundated with maintenance issues. Several courts that had been damaged or destroyed were highlighted and the Committee pointed out the delayed response to address this. It stated that the lack of progress by the Department was impeding access to justice.
The Committee was concerned with Information and Communication Technology (ICT) issues, including the Integrated Justice System, the Court Recording Technology and the protection and security of online systems. The Committee was interested in learning about the mechanisms the Department had put in place to limit and protect the systems against the threat of cyber-attacks.
The Committee highlighted accessibility issues for people with disabilities. It was emphasised that many courts continued to be inaccessible for people living with disabilities. The Committee was interested in the solutions being proposed by the Department.
The Committee was frustrated with the reduction and removal of some performance indicators. Of particular concern were the indicators for the appointment of people with disabilities, the finalisation of corruption cases, the reduction of irregular expenditure and the briefs allocated to women. The Committee was concerned that the Department was hindering service delivery and progress by reducing or removing targets. The issue of briefs allocated to women raised the question of why women were not allocated high value briefs. The Committee suggested a dedicated meeting focusing on the indicators and targets so that the Department could properly explain the motivation behind reducing the highlighted indicators.
The Committee resolved to have a dedicated meeting regarding the Integrated Justice system and to discuss issues related to the Master’s Office.
Meeting report
Opening Remarks
The Chairperson welcomed Committee members and Department officials to the meeting. He welcomed Mr John Jeffery, Deputy Minister, to the meeting platform.
The Chairperson indicated that the purpose of the meeting was to be briefed by the Department of Justice and Constitutional Development on the Annual Performance Plan (APP) and Budget for the 2023/24 financial year.
The Chairperson informed the Committee that the 3pm meeting with the Public Protector had been approved and would go ahead. It was suggested that the presenters stick to the allocated time so the meeting would not run over.
Apologies
Mr S Swart (ACDP) apologised to the Committee for his absence.
Adv G Breytenbach (DA) shared an apology on behalf of Mr J Engelbrecht (DA).
The Chairperson noted the apologies. He handed over to the Deputy Minister.
Deputy Minister’s Remarks
The Deputy Minister said he would be available to answer some questions, if necessary, but the Department would largely do the presentation and responses. The Deputy Minister would be attending another meeting simultaneously. He handed over to the Director-General to deliver the presentation.
Department of Justice and Constitutional Development Annual Performance Plan and Budget 2023/24
The Department of Justice and Constitutional Development (DoJCD) briefed the Portfolio Committee on the DoJCD 2023/24 Annual Performance Plan (APP).
The Department highlighted key areas of concern that were addressed in the APP. This included a reduced vacancy rate, stabilised leadership and management in the Department, improved under-expenditure, improved contract management, reduced irregular expenditure register and a stabilised Information and Communication Technology (ICT) environment and rebuilding of a modern system. Under these categories, the Department outlined the advances and progress made.
The Department provided feedback on the progress of implementing the Medium-Term Strategic Feedback (MTSF) and the Minister’s agreement. The Department had 12 MTSF targets, nine (75%) had been fully achieved, two (17%) had been partially achieved and one had not been achieved. In terms of the Minister’s Performance Agreement, 14 targets had been achieved, 15 were in progress and three were not achieved.
The Department ensured that the APP aligned with the MTSF targets, Minister’s Performance Agreement, Department Strategy and State of the Nation Address commitments. Where targets in these areas had not been reached, they had been included in the 2023/24 APP.
The Department provided an overview of performance since the beginning of the term. They highlighted an improved performance rate since 2019/20 from 51% to 805 in 2022/23.
The Department provided a detailed presentation regarding measuring performance through several indicators under four programmes. The four programmes were administration, court services, state legal services and auxiliary services. Some important indicators included:
- 2% appointment of people with disabilities, 50% appointment of women at Senior Management Services (SMS) level and 23% appointment of youth
- Finalisation of 70% of all reported corruption cases
- Reducing the vacancy rate to 5%
- Reducing irregular expenditure by 75%
- Refurbish and upgrade 70 court facilities
- Ensure that an additional 65 courts were compliant on access to people with disabilities
- 29% of value briefs were allocated to female legal practitioners & 40% of briefs were allocated to female legal practitioners
The Departmental budget allocations were outlined.
See attached for full presentation
Discussion
The Chairperson thanked the Department for the presentation. He indicated that the Committee Members could proceed with any questions or comments.
Mr W Horn (DA) expressed concern about the way serious issues within the scope of the Department had been presented with the undertaking that there would be movement in this financial year. Regarding the Masters of the High Court, there was a clear undertaking that there would be serious interventions and that the issues would be addressed. He said that it was clear that very little, if any, progress had been made. The Committee members continued to be confronted with complaints about the inefficiency of the Master’s operations. During an oversight visit to the Northern Cape the previous week, the Master’s frustration was evident. The Master had been clear about how the Master’s Office was prevented from being fully operational due to the lack of improvement of systems. He was sceptical about the improvements in the Master’s Office because very little had materialised from the previous undertakings. He acknowledged that there was still an acting Chief Master. A fresh undertaking could not be accepted as something that the Department had hoped to achieve. He suggested that the Committee set a dedicated meeting that focused on the short- and medium-term deliverables for the Master’s Office.
Mr Horn said that the presentation did not fully address the issue of day-to-day maintenance, an issue that the Committee had been struggling with. In oversight and other engagements, the Committee had noted that the R100 000 issue was a stumbling block in the way of the Department dealing with day-to-day maintenance and small infrastructure projects. Things were unclear on the matter, because there was information that the R100 000 had been upped to R1 Million but had been accompanied by a statement that it could not become operational in the absence of a transfer of budget. He said the APP did not contain any measurable indicators in that regard. A clear understanding was needed on the progress of the day-to-day maintenance issue. He sought clarity on whether the sum had been raised to R1 million. He asked if it was a theoretical arrangement or if it was implementable.
Mr Horn highlighted the senior management vacancies and suggested that the Committee insist on target dates for when senior management appointments would occur.
Mr Horn spoke about the Integrated Justice System (IJS) project. Good news was that a Deputy Director-General (DDG) of Information and Communication Technology (ICT) had been appointed. The bad news was the discrepancy between what had been achieved and what the APP envisaged to achieve this year. He asked where the value for money and the deliverables were for the R1.8 billion appropriated for the project over the medium term. It seemed like only two sites would be assessed for vulnerability with respect to cyber-attacks. It was unclear what further progress would occur with the development of the IJS. After sitting with the matter for, four years and issuing warnings that it was not value for money, it was becoming clear that the lack of progress and the status of the project was one of the factors linked to the country’s grey listing. He said that this was because money laundering and terrorism financing was closely linked to whether the project was functional and would reach an end stage soon. He insisted the Committee receive a clear set of medium-term targets through a dedicated meeting with the new DDG.
Mr Horn highlighted the announcement during the State of the Nation Address that an amendment to the National Prosecuting Authority Act would make the Investigative Directive a permanent feature. What had happened to that Bill?
Mr Horn referred to the audit action plan and the issue of contingent liabilities. He stated that the Committee had been informed that there would be an interim audit around the contingent liability register in January. It was hoped that this would have positioned the Department toward addressing that issue. What was the outcome of the matter?
Mr Horn highlighted the Court Recording Technology (CRT) contract. The Committee would be negligent of its obligations if it did not share its worry about the Department’s inefficiency in dealing with the matter. The Committee was informed that the previous service provider was renewed on a temporary basis while a new contract was being finalised to effect around the present time. He said that the feedback on the matter had been vague. What is the current position around the existing service provider?
Mr Horn addressed the issue of facilities management, specifically refurbishment and maintenance. He requested that the Committee be given a clear timeframe of when they would receive an updated list of the maintenance needs around court infrastructure and the priority list. The list of court buildings and projects that had been stalled due to contractor issues was too long to rehash in the meeting. On the oversight visit to the Northern Cape, the Committee learnt of the portion of the Magistrate’s Court’s portion that had been gutted in a fire two/three years ago. He said that in the typical fashion of the Department of Public Works and Infrastructure (DPWI), the Committee was informed that the Department was in the final phase of appointing a contractor. He noted that this seemed to be the general response when matters like this had been raised.
The Chairperson asked if that issue could be revisited during the meeting scheduled for 25 May 2023, where both the Department and the Ministers would be present.
Mr Horn stated that he would revisit the issue at that time. He said that it was, however, important that there was a holistic assessment of the maintenance needs of all court infrastructure that was being undertaken. He asked what the progress was on that assessment.
Mr Horn highlighted the issue of court infrastructure. In the Budgetary Review and Recommendations Report (BRRR), the Department expressed that the newly built Limpopo High Court might have to be condemned because of the water table issues. He stated that he was unclear about the nature and urgency of the risk. He was concerned that the building, which had cost a substantial amount, might have to be condemned. He asked what other options had been explored to address the issue. He made an example that Parliament had been built on a fountain and that certain measures were taken to ensure that this posed no threat to the building due to the high-water table. He asked for clarification on the situation at the Limpopo High Court.
Ms Y Yako (EFF) said that Mr Horn had covered some issues she was concerned about. She felt that the Department was unprepared for the presentation to the Committee. The unpreparedness was indicative of what the Committee had seen during the oversight visits. She said that the behaviour and state of the Department left much to be desired.
Ms Yako highlighted the eight centres the Department intended to open for sexual offences. Where would these centres be placed in terms of location? She asked for an explanation of how the locations had been decided.
Adv G Breytenbach (DA) said that many of her concerns had been covered by Mr Horn. She shared Mr Horn’s concern regarding undertaking tasks to be completed this year while there were substantial issues and delays. She shared Ms Yako’s concern regarding the Department’s unpreparedness. She stated that it seemed as if reporting to the Committee was a nuisance to the Department. She said the Department took a lax approach in reporting to and engaging with the Committee. She said the preparation of the Department to brief the Committee was quite poor. Her impression was that reporting to the Committee was seen as interfering with the ‘real work’ of the Department. This impression had grown over a variety of reports from the Department. She was disappointed with the approach of the Department.
Adv Breytenbach said that the Committee had requested several reports from the Department that had not been received. She felt that this reflected the Department’s approach to dealing with the Committee.
Adv Breytenbach requested more details on the progress made regarding the legislation establishing a single judiciary.
Adv Breytenbach highlighted the importance of Justice College. She said it was clear how a lack of proper and ongoing training and a lack of exposure to new laws and judgements had affected the performance of NPA. Justice College had previously fulfilled these roles. She asked what Justice College was currently doing or if it had been incapacitated. Had Justice College been receiving funding? She asked if Justice College had been doing anything and if they were functioning, what was being done.
Adv Breytenbach stated that the Committee had requested a report regarding consequence management due 30 June 2022. It should have been a consolidated report on all disciplinary matters. She had not seen the report. She was unsure if she was the only Committee member that had not seen the report. If no other members had seen the report, she would like feedback and access to it.
Adv Breytenbach asked for feedback on rebuilding the ICT infrastructure; R422 million had been allocated to the project. The Committee had requested a report on the breakdown of funds used. She has not seen the report.
Adv Breytenbach stated that the Committee had requested a report that provided details on the Gender-Based Violence (GBV) backlog cases that were currently on the roll. The Committee had requested progress reports of the project to reduce the backlog. She said the report was due by 30 June 2022 and had not been received.
Adv Breytenbach referred to free access to justice. She stated that many courts had said that they had seen another site that did not meet the necessary requirements. Many courts were extremely difficult to access for people who were movement-impaired, and some were completely inaccessible. A report was requested on why the target for compliant courts had been reduced from 100 to 27 in the 2022/23 financial year. The Committee requested details regarding which courts had been made compliant and which courts were going to be made compliant. The report has not been received.
Adv Breytenbach said that the Office of the Solicitor General has been in the pipeline for years. She stated that nobody knew what had been occurring regarding the Office. She asked about the position of the capacitation of the Office.
Adv Breytenbach stated that a similar issue had been seen with the Office of the Legal Ombud. She asked about the position of the funding and capacitation of this Office. A report was due on 30 June 2022 and has not been received.
Adv Breytenbach stated that the Committee requested a report on court modernisation projects and noted that it was not received.
Adv Breytenbach highlighted the issue of the Potchefstroom Magistrates Court. It was a busy and big court that largely served the whole province. She described it as the only point of justice for the citizens of the province. She asked what progress had been made in this regard. Has it been rebuilt or how far is construction? There has been no communication regarding the rebuilding of the court.
Ms W Newhoudt-Druchen (ANC) asked for a response to the Chairperson’s question on why responses to the BRRR recommendations had not been received or had been submitted late. The deadline was 30 June 2022 and the Committee had only received it in April 2023.
Ms Newhoudt-Druchen referred to the delegated amount that Mr Horn had highlighted. Would the increase come into effect during this financial year or had it been in place since the previous financial year? On the oversight visit, the Committee saw many maintenance issues that needed to be addressed, including signage and lighting. She asked for clarity about the date of the increase.
She added to Adv Breytenbach’s concerns regarding the courts. The previous day, she had raised a question with the Office of the Chief Justice (OCJ) regarding the Malmesbury Court that had burnt down. It seemed like there were no plans in the pipeline for rebuilding the court. Would it be rebuilt or renovated? Her constituency office had been in contact over the matter and had not received a response. She asked for clarification on the matter.
She noted that the presentation referred to a skills gap that needed to be covered. Justice College should be responsible for this. How many of the Department’s staff actively attended sessions with Justice College? What kind of training sessions were provided? She said there was no information about the services of Justice College. She emphasised that Justice College was a necessary and important institution.
She referred to the issue of corruption cases. In the presentation, the Director-General highlighted a 70% target for investigating corruption cases. Why only a 70% target and not a 100% target?
Ms Newhoudt-Druchen said that there had been a target of 100 courts being made compliant for accessibility for people with disabilities. She asked for an update on the status of the level of compliance in the specified courts.
She highlighted the ransomware attack; there had been no update on what the Department had been doing to ensure that ICT systems were in place and protected. She noted that a DDG had been appointed, but asked what had been done to the ICT systems to ensure they were secure.
Ms Newhoudt-Druchen said that in April, there had been a celebration for 27 years of the Constitution. The speeches had not been accessible to deaf people. She said the interpreter that was present was not visible on the platform. It was more difficult to see than when using Zoom. On Zoom, individuals were able to enlarge or focus on the interpreter. Questions during the celebration had been typed in the chat box, but nobody had looked at the chat box. She requested that the Department make a bigger effort to make presentations and events more accessible.
Mr R Dyantyi (ANC) reiterated the Chairperson’s concern about the late submission of the APP. He requested an honest response from the Department. This was linked to what the Auditor-General had picked up in the Department, that there was a growing culture of non-approval. It took a long time for things submitted to the Minister to be approved, if at all. He said that the Auditor-General identified this issue as contributing to the issue of non-performance and non-compliance. He emphasised that this was not a one-time issue and was a serious problem in the Department. He said it was a pity the Minister was not present as he would have liked to hear his response. Why did the approval process take so long? Was there something that the Department needed help with regarding this issue?
Mr Dyantyi highlighted the issue of irregular expenditure. The response to irregular expenditure had not been clear in the Department’s plans. He asked the Department to account for a R2 billion irregular expenditure by providing a breakdown of expenses and expenditures to the Committee. The Committee had been informed that the irregularities had increased by 50%. In 2021 it had been R413 Million and was currently R966 Million. The issue was getting worse. He stated that it had shown an upward trend, but this has not been good because it shows that irregularities have been growing. It would be different if the upward trend had been positive. The APP did not address how to mitigate this issue.
Mr Dyantyi referred to the procurement framework. He said that there had been a non-approval issue with this matter. He requested an update on the actions regarding the procurement framework. Without a procurement framework, other plans and projects could not happen. He said the Department had treated its presentation to the Committee as ‘ticking the box’ and would return to mediocre operations. He emphasised the importance of attending to the procurement framework. The Committee was informed that the exemption on the procurement framework would have expired in 2021. What was the status of the framework? What was being done on the matter?
Mr Dyantyi was concerned about the removal of indicators, specifically, the indicator that had dealt with the guidelines on the senior counsel status. He asked if it had been mentioned in the APP. Why has the indicator for such a crucial issue been removed? He requested an update on the issue.
Mr Dyantyi highlighted the issue of risk management. He emphasised the importance of the matter and noted that risk management and project management went hand-in-hand for a successful entity. He was concerned about the risk management process that was outlined in the APP. He noted the absence of a risk manager on the following issues: infrastructure, load-shedding, and backlog issues. Why were these not being considered risk areas under the APP? This meant there had been no effort or plan to mitigate these risks. He asked for an explanation of why the threat assessment has not changed since the one that was previously presented. Did this mean that nothing has changed? Were there no new threats and have no previous threats been resolved?
The Chief Master was an acting position, but the APP detailed how to fix the position. He said that the position had been an acting one for a long time and that there had been no actual plan for the matter. He said that there seemed to be a sense of nostalgia around the DDG of Court Services and that the Department wanted to bring Advocate Skosana back into the position. The post had not been filled since Advocate Skosana vacated the position. The Head of Justice College was also an acting position, but plans have been presented. The Department was not fixing the fundamental positions and the individuals who would drive projects, but plans were being made for lower levels. He questioned the credibility of the plans that were being presented. He noted a lack of risk appetite and continuous risk assessment in the Department. It was not enough to just present a list of risks without generating continuous plans. Without proper risk assessments, the plans made by the Department would not be completed or achieved and the same plans would be presented again next year.
The Chairperson asked why the document shared with the Committee was not signed. Why has an unsigned document been shared with the Committee?
The Chairperson referred to the issue of filling critical Senior Management Services (SMS) positions. This has been a challenge for the Department since 2019. It took too long for high level positions to be filled. Without strategic leaders at high levels, the Department would have difficulty stabilising itself.
The Chairperson indicated that only 139 out of 500 courts in the country could continue operations when the power went off. The courts that remained functional during load-shedding were largely centred in metropolitan areas. This indicated that most courts were unable to proceed with operations during load-shedding. He asked what the plans were to address this issue. He stated that the Department had to consider the townships and rural areas and noted that stopping operations during load-shedding hindered access to justice.
The Chairperson highlighted the guidelines for appointing acting judges. He requested the timeframe for the submission of the guidelines.
The Chairperson stated that the policy on insolvency should have been received in 2022 and implemented in 2023. He requested an update on the progress of the matter.
The Chairperson was concerned with removing and reducing targets from the APP. He noted that this had been discussed in 2022 but that the issue continued. He expressed his unhappiness regarding this reduction and removal of targets. Targets removed included: percentage of vacant posts at SMS level; the number of backlogs on decisions in cases of misconduct; numbers of grievance backlogs resolved; and percentage of audit improvement plans implemented. The following targets had been reduced: total workforce occupied by people living with disabilities to 2%; percentage of investigations on reported corruption cases finalised in 2023/24 to 70%; the number of courts compliant with the strategy on universal access for persons with disability in 2023/24 to 65% and 55% over the medium term; a percentage of maintenance matters finalised to 75%; the briefing patterns for previously disadvantaged individuals to 83%; briefing patterns for women has been reduced. Targets on core issues of service delivery were being reduced or removed. To measure the impact of the Department, individuals would need to consider these targets. Reducing these targets meant that service delivery was being reduced. These reductions and removals could not be accepted. APPs should not be developed according to the capabilities of the Department; it should be an indication of the commitment of the Department to its goals and South African citizens. The Department would be asking Parliament to appropriate money based on what had been reduced and removed. He emphasised that this was not correct. He asked the Deputy Minister if he had approved the reduction and removal of the previously mentioned targets.
The Deputy Minister stated that himself and the Minister had signed the APP. It had been delayed due to unhappiness with the APP, particularly the target section. He stated that he, personally did not support the reduction and removal of targets.
The Chairperson wanted the Minister to answer to the Committee on the removal and reduction of targets. He reiterated that this has been an issue for the past two years. The Ministry should act as the eyes and ears of the Department. If targets were being reduced that impacted people with disabilities and women, it would be going against the core beliefs of the country to assist the most vulnerable groups of people. He asked the Committee to consider having a further discussion on the topic. He said engaging with an APP that violated and disregarded these issues was difficult.
The Chairperson handed over to the Director-General to respond to the questions and concerns that had been shared.
DoJCD Response
Adv Doctor Mashabane, Director-General, DoJCD, responded to the Chairperson’s last concerns. Using the example of the target for appointing people living with disabilities, the requirement was for the Department to be above 2.1%. The APP was not saying that the overall target should be 2%. The APP stated that over the next 12 months, any appointments made should be 2% of people living with disabilities. This would add to the 2.1% target. The Department was committed to ensuring that 2% of new appointments would be people living with disability. The general requirement of 2.1% was not changing. He said that the Department had achieved the 2.1% target. The Department intended to increase the percentage of appointments for people living with disabilities. He clarified that the 2% would be added to the already appointed 2.1%. He apologised for any confusion the wording of the APP had caused.
Adv Mashabane responded to the concern regarding indicators. He said that the percentage was associated with several days. He made an example and said that 90 days would be considered a long time to reach 85% but reducing it to 75% by 60 days could be more efficient. He emphasised that the figures were only a base and was a minimum target. The Department would not stop its efforts once the base had been reached. He explained that there was a reduction in the Department’s budget over the last five years. Following the wage negotiations that the Department of Public Service and Administration (DPSA) and the Treasury had with trade unions, it was noted that new money would not be released. The Department was made to absorb salary increases from the departmental budget, which caused the Department to lose capacity to reinforce the Department in terms of variables. The Department intended to start a process to remove the vacancies that were not funded. He made an example and stated that if the Department had vacancies of 15%, the money was not necessarily available to fund those posts. After the decisions on the Wage Bill, Treasury did not allocate more money or fund the increase, rather the Department was directed to the baseline and had to reorganise the budget allocations. This undoubtedly affected the level of success the Department had in performance areas.
Adv Mashabane highlighted the filling of vacant strategic positions. He noted that this area referred to the Deputy Director-Generals. He highlighted the Cabinet process of filling these vacancies, emphasising that the Minister and Deputy Minister had to sign off on it with technical support from the Director-General. This was a challenging process. A Chief Master had been appointed three years ago; he vacated the post in January to join the Asset Forfeiture Unit in the National Prosecuting Authority. This meant that the current acting Chief Master had only been in the position since February. The position had been filled for the past two years. The position was vacant when the new administration had started and was filled thereafter.
Adv Mashabane said that his Department of Public Works and Infrastructure (DPWI) colleagues would respond to concerns regarding the Service Level Agreement. He did not remember signing the agreement. There was no Director-General in the DPWI – the position was filled by an acting Director-General. The Department had made an effort during the past 18 months to fill posts below this level, including Directors and Chief Directors. At the start of the administration, only six positions were filled, but currently, all the posts have been filled. Any vacancies at that level would likely be due to people who had just left the position. The process for appointing a Head of Court Administration had occurred and a candidate had been identified, however, issues were picked up during the DPSAs vetting process and the appointment was not able to proceed. The candidate had been given the opportunity to respond to the findings but had not done this. The process had to be restarted. He stated that the Department had tried to ensure that senior management funded vacancies stayed at below 5%. The acceptable threshold was less than 10%. He noted that sometimes it had been difficult to match the rate at which people vacated positions. The level of vacancies had been reduced. Above all, the actions of the Department regarding vacancies had to be considerate of the budget.
Adv Mashabane responded to the risk management concerns. He said that the Department could have presented the departmental risk register if there had been sufficient time. He noted that load-shedding, facilities issues, the obsolete IT system of the Department had been captured in the risk register. He apologised that it had not been captured in the environmental scan of the APP. Load-shedding, ICT and facilities issues were amongst the top five risks identified by the Department.
Adv Mashabane said there had been a process to reposition the Justice College. He acknowledged that the post of Head of Justice was vacant, and that acting Heads had been appointed. In the next two months, the Department wanted a permanent appointment in the post to drive the plans that had been created.
Adv Mashabane responded to the concerns on irregular expenditure. He said it was unfortunate that the Auditor-General was not present in the meeting. In a meeting with the Auditor-General two weeks prior, the Department raised the issue of the presentation of the irregular expenditure and the Auditor-General acknowledged that the report had been misleading. Citing R2 Billion in irregular expenditure created the impression that in one financial year, the Department had incurred R2 billion in irregular expenditure. He noted that the R2 Billion was a register that dated back five to six years ago. The Department would return to the Committee once auditing had been finalised. He felt that the Department had done what was required and that the register had been reduced because of the work that had to be done to reduce it.
Adv Mashabane referred to the issue of procurement. He explained that it was not a general procurement, it was the procurement of legal services. In terms of the current rules of Treasury, when briefing counsel, it was required that three quotations should be obtained. This had been a problem for the previous Directors-General. Previously, the Department received an exemption from Treasury because the system of three quotations for the briefing of counsel did not work. As a result, government did not have quality legal representation in courts. The Department proposed a framework to Treasury to resolve the issue. He said that Treasury was reviewing the information that the Department had provided. He requested that Treasury be allowed to join the Department in sitting with the Committee to deal with the issue of the framework for the procurement of legal services. He noted that there had not been an issue of mismanagement; it was because the Department did not have a framework. He said the framework was awaiting approval from Treasury and had been submitted last year. The Department did not have the authority to approve the framework themselves. He noted that the Department was still working within the three-quotation basis but has been granted some exceptions by the Solicitor-General. He said that it was difficult to follow the three-quotation system in urgent cases because it took a long time to receive quotations and get approval from the Committee. He requested the Committee’s help regarding the issue.
Adv Mashabane responded to the question regarding the guidelines for the appointment of acting judges. He said that the judges had been consulted in the process and gave the Department feedback and proposals. There had been a court decision from the Limpopo High Court, where a counsellor took the Minister to court and advocated for the adoption and publication of guidelines. That decision has since been rescinded. He stated that the lawyer who took the Minister to court had been disbarred for a different reason.
Adv Mashabane responded to the accessibility concerns regarding the conference for the anniversary of the Constitution. He apologised for the accessibility issues that had occurred for deaf people. He explained that while there had been interpreters, the platform on which the conference was broadcasted did not allow deaf people to effectively see the interpreters. The Department appreciated the feedback and would work on improving the issue for future events.
Adv Mashabane responded to the CRT contract issues. He stated that, with approval from Treasury, the former service provider had been asked to return as the sole source provider over a year ago. Over the past 12 months, since the service provider returned, they have stabilised the environment and resolved all the issues. Unfortunately, load-shedding affected the services and issues that the service provider had resolved. The State Information Technology Agency (SITA) Act required that when technology-related services were procured, it had to be done through SITA. The Department had gone to SITA and the process was in motion. Currently, the contract was not expired, and it would continue to be in place until SITA finalised the process. The Department was hopeful that SITA would finalise the matter within the next two months. He explained that it would be a long-term contract of three years.
Adv Mashabane stated that the acting Chief Master would respond to matters related to the insolvency issues. He acknowledged the concern that the Chief Master position had not been filled. He reiterated the Department’s commitment to resolving the issues with the Master’s Office. Part of the problem was that during the first half of the day, the Master’s Office dealt with members of the public and the second half of the day was spent doing office work and therefore, they were unable to assist members of the public during that time. This was a flaw in the way that the system functioned. It would have been done if it was possible to resolve the ICT system in a year. He explained that the Department was dealing with legacy issues. There had been no focus on building the system. He said that the Chief Directorate had not been building the capacity of the Department to have its own system, rather, the directorate had been acting as a project manager of the service provider. Rearranging this environment would be a difficult task because there were obsolete systems and devices out of warranty. He said that last year when the ransomware attack happened, it had been a question of when it would happen because there had been no system. The Department had made an effort to begin rebuilding the system by hiring skilled employees to capacitate the Department to manage its system. He emphasised that this would take time. The Department was attempting to refurbish old devices. The Department had to go through SITA’s process. The SITAs process was not the most efficient when a system was trying to be rebuilt.
Adv Mashabane responded to questions on the IJS. He explained that the predecessors of the current Department officials had dealt with the process for many years. The Department prioritised ensuring that the IJS had a proper governance structure so that the work done in the past and the resources used did not go to waste. He said that the IJS was a victim of the ICT procurement challenges that had to be done through SITA. After the new CEO had been appointed, there was hope that significant progress could be made.
Adv Mashabane referred to his colleagues for further responses.
Ms Thabitha Constance Mametja, DDG: Corporate Services, provided a more detailed response to concerns regarding facilities and ICT. She explained that there had been serious issues with the ICT infrastructure. The equipment and devices were out of warranty. The building of the data centre had been completed and the migration of some business applications had begun. The Department had procured laptops, desktops and scanners and was in the process of securing the switches. She noted that it would be concerning if constant talks of modernisation existed while the Department had an outdated ICT system and infrastructure. She welcomed the new Deputy Director-General and hoped significant progress would be made.
Ms Mametja responded to questions regarding the ransomware attack. The Department had made efforts to strengthen the system to avoid future attacks. On 12 May, the Department would meet with its largest cyber security vendor, Trend Micro, to identify further weaknesses and mitigation mechanisms to protect the system. The Department had implemented managerial controls, including a set of approved, published and implemented information security policies, standards, procedures and guidelines. Awareness was being raised within the Department that ensured staff did not fall victim to any scams or security threats. In addition to the security features provided by the system, technical controls have also been put into place. The Zero Trust Network tool has also been implemented. She said this tool would help the Department provide secure remote access to services based on the defined access control policies.
Adv Mashabane asked Ms Mametja to provide a more detailed response regarding the issue of targets.
Ms Mametja highlighted the indicator about the vacancy rate of SMS members. She said that it had been removed because the target had been achieved. The target was set at 9.4%. A further reduction occurred in April because of people assuming duty at the beginning of April. She explained that this had improved from a 24% vacancy rate and said it would likely decrease further over the next performance cycle. The indicator had been amended to 5% across all salary levels to allow the Department to monitor consistency and maintain the low vacancy rate of below 5%. The overall vacancy rate of the Department has been amended to 5% due to its improvement of 6% from 9%. She said this reduction was good because it was better than the pre-COVID vacancy rate. She emphasised that currently, the vacancy rate was stable. The compensation of employee’s budget would also impact filling vacancies and would likely result in several vacancies being declared unfunded. She stated that the rate of women in SMS positions has remained stable because the Department has already surpassed 50%. It was likely that this category would exhibit sustained performance for the next financial year.
Ms Mametja responded to the concerns regarding the reduction of targets for grievances. She stated that the finalisation rate for grievances had improved significantly and had stabilised due to the decrease in the number of grievances admitted. The indicator on the backlog has been removed because the timeframe and finalisation rate for the performance target has been amended to 80% finalised within 60 days. She noted that this indicator measured all grievances, including the backlog and the current grievances. She said that the finalisation rate of misconduct matters has increased to 70%. This included the backlog and current cases. She explained that the indicators have been combined because when the two had been previously separated, it had caused a duplication of reporting on backlogged cases, and cases that had not been finalised within 90 days to ensure improved accountability. The cycle had been concluded with only six backlog cases that had not been finalised. She acknowledged that the Department had not achieved the target for misconduct cases. She explained that the six backlog cases had not been finalised because of the complexity of the matter, long absenteeism due to medical reasons and withdrawal of departmental employee representatives in the cases. This has mainly been for SMS members.
Ms Mametja highlighted the indicators for disability and vulnerable groups. She stated that it had been amended to 2% to align with the Departmental Employment Equity (EE) plan and DPSA targets. The impact of the filling of vacancies would have an impact on the appointment of people with disabilities. She said it was likely that some positions would be placed on hold because of budget constraints. The target for youth had been achieved and had increased from 22% to 26% over Medium-Term Strategic Framework (MTSF) period.
The Chairperson asked for further clarity regarding the disability indicator.
Ms Mametja said that the indicator for disability had been amended to 2% to align with the Department’s EE plan and DPSA targets. She explained that the 2.1% of the previous APP had been an arrangement within the Department. The EE plan and DPSA targets reflected an indicator of 2%. She said that the Department had achieved the 2.1% that the Department had set internally. She reiterated the Director-General’s statement that in terms of filling vacancies, the Department had set a target that 2% of vacancies filled over the next cycle should be filled by people living with disabilities.
The Chairperson asked if this meant there had been no basis for the 2.1% in the previous APP.
Ms Mametja explained that the 2.1% target had been the Department’s internal arrangement.
The Chairperson asked, what was wrong in continuing to do what is right because the 2% was a minimum?
Ms Mametja stated that the Department has already achieved the target of 2.1% set internally.
Adv Mashabane added that the target requirement had previously been 2%, but the Department set a challenge of achieving a target above 2%. He stated that the target was a base, and the Department would be able to achieve more than what the target set out. He said that the Department might be able to achieve 3%. The Department chose to adopt the 2% because it had been in the range and could potentially allow the Department to achieve 3%.
Ms Mametja responded to the concerns regarding the Limpopo High Court and the high-water table. She stated that currently, water pumps were being used to pump the water out. She said the engineers and municipality have approved the occupation of the court. The DPWI was working on procuring a Total Facilities Management (TFM) solution for the four new courts. The TFM would deal with the maintenance of the courts including pumping out of the water. She said that pumping the water out would control the water table. She acknowledged that the Department was facing many challenges in terms of facilities management. She stated that the Department had been looking beyond the DPWI for an alternative service delivery model. The Department had begun engagement with the DPWI to allow the Department to implement the alternative service delivery model that the DPWI had put forward.
Ms Mametja responded to the question of why the report on misconduct matters had not been submitted. She stated that she would have to check with the parliamentary officer, because, to her knowledge, the report had been submitted last year.
Ms Mametja responded to the concerns regarding training. The Department had submitted a Work Skills Plan (WSP). The WSP was submitted to SETA annually for approval. The WSP included the training needs of the Department. She said that Justice College was responsible for meeting the training needs. Thus far, the Department has trained 9500 employees, of which 1 851 were trained through Justice College. She indicated that the Department was in the process of filling the Head of Justice College position. The Department was waiting for the repositioning of the Justice College strategy to be approved; it has since been approved.
Ms Mametja responded to the concerns regarding the legal ombuds structure. She said that the structure had been developed and submitted for approval and was returned for revision so that it fell within the allocated R8 Million budget. She stated that capacity would be done through a phased approach over a five-year period.
Ms Mametja responded to questions about Malmesbury Court. She said that the DPWI would advertise the request for proposal in August. Th DPWI has sent the DoJCD its execution plan. The execution plan showed that the advert would be done in August.
Ms Mametja said that the draft guidelines for day-to-day maintenance had been sent to the Committee unsigned because the Department was still in discussions with the DPWI on the devolved budget for accommodation charges. The DPWI were revising the guidelines. The first consultation with the DPWI occurred in April. Once the consultations had been completed, the document would be signed. She referred to the Director-General’s statement that the DPWI was unstable and said that this had also contributed to the delay in signing the guidelines.
Ms Mametja responded to the maintenance concerns. She confirmed that the Department had received an increase in the threshold from R100 000 per incident to R1 Million per incident. The Development Financial Institutions (DFI) had revised to give the court managers the authority to deal with maintenance issues.
Ms Mametja said that the Department had been procuring generators and solar panels through the DPWI to deal with the issue of load-shedding at courts. The Department would be using the R1 Million delegation to procure generators and solar power. The Department was working on having term contractors to provide and maintain alternative energy sources. The Department would explore alternative energy sources, which could cover courts in rural areas.
Adv Mashabane reminded Ms Mametja to respond to the issue of the 70% on addressing misconduct and corruption.
Ms Newhoudt-Druchen repeated the question about investigating corruption cases, and why the target was 70% and not 100%.
Ms Mametja confirmed that the target was set at 70%, not 100%. She said that the Department did not want to over-commit. She said that when dealing with fraud and corruption case, the complexity of some cases meant that it was not practical or feasible to finalise all the cases within the performance cycle. Most of the cases were referred to a forensic unit. She said that the finalisation of the cases depended on the availability of information at the time and people that needed to be questioned by the forensic unit. She said that it took a lot of time for thorough investigations to be done. She said that the indicator referred to cases finalised within that period and not those being investigated. The Department had been afraid to set the target to 100%, knowing it may not be achieved. She said that the indicator had not been reduced and has always been 70%.
Adv Mashabane added that a column in the APP would show that in 2021/2022, the Department, even though the target was 70%, 75% of cases were finalised. He stated that the confusion regarding this target may stem from the Chairperson and Committee members seeing the 75% achieved by the Department and confusing this with a reduction in the target. He noted that it might appear as a reduction, but it reflected the Department achieving 5% over the target. He reiterated that the complexity of the cases and the need for thorough investigation made it difficult to achieve the finalisation of 100% of cases within the performance period. He stated that this would be covered further by another colleague. He stated that the Judiciary had determined that backlogs were not the responsibility of the Department. He noted that the Judiciary managed the backlog, because the Department could only prepare certain aspects with the NPA and ensure that cases were ready to proceed. The Department did not have control over how many matters were seen to. He said that he would investigate the matter and other related matters further and provide a response to the Committee.
The Chairperson stated that percentages were sometimes misleading. He said that it might be better to include both the percentage and the actual number value. He asked what the number value was of the 2.1% of appointments of people with disabilities.
Ms Mametja asked for time to review the matter with her notes to confirm the number.
The Chairperson said that he would allow her to respond to the question later in the meeting. He suggested that the number value should be included in the future, because it was unclear what the percentage was out of. He used an example stating that 90% of R10 and 70% of R1000 were different and may lead to misrepresentation and misunderstanding of the actual figures.
Adv Mashabane agreed with the Chairperson’s suggestion and noted that he would keep it in mind for future reports. He referred to Mr Rodney Isaacs, the acting Deputy Director-General for Court Administration, to respond to the questions raised by Committee Members.
Mr Isaacs responded to concerns regarding Gender Based Violence. Last year, the Department had begun training on the Bills that were estimated to be considered. That training continued throughout last year and was continuing. The Department used prosecutors and magistrates with extensive experience in the different provinces and Justice College where possible. The Department recognised that the training covered many new forms, and the increased responsibilities of court officials and managers. He said that the monitoring and training were ongoing. He noted that some challenges had been picked up, but there had been no big crises regarding the roll-out of the Domestic Violence Amendment Act.
The sexual offences courts were being monitored through the Regional Court President’s Forum and the Provincial Heads stayed in contact with the Regional Court President’s Forum in the province. He noted that in June, there would be a Regional Court President’s Forum meeting with the major stakeholder to discuss the roles and reasons for possible role collapse and how resources could be used more effectively and efficiently. The Department was preparing its reports, statistics and resources for the meeting with the hope that concrete, dynamic decisions and solutions would be made which could be monitored and managed regularly as an integrated group of government officials together with the Judiciary.
Mr Isaacs said that the roof of the Potchefstroom Magistrates Court was currently being repaired. Contractors were on site. Other small infrastructural buildings needed to be attended to, which arose because of a variation order, which was an additional requirement requested by the DoJ and the court users. The variation order is currently with the Variation Order Committee. He was hopeful that instructions could be given to the contractor soon.
Mr Isaacs said that the DPWI had advised him that a bid to allocate a contractor for Malmesbury High Court would go out in August. A contractor might be allocated in November. He said that all the necessary proceedings regarding the supplying of guarantees and warranties would take place during the November-December period. The Department hoped contractors would be on site in early 2024 to rebuild the court. He noted that this depended on DPWI’s compliance with all the procedures required by the value chain.
Mr Isaacs responded to the accessibility concerns of departmental events. He noted that sign language had come into official operation. He stated that the DoJ supplied interpreters to those events in the Western Cape where maintenance and domestic violence discussion sessions had been regularly occurring. Those events were screened nationally. He noted that people around the country who required sign language interpreters had been sharing positive comments as they were now able to engage with these events. The Department recognised the value and effect of procuring interpreters and was committed to ensuring that the sign language database, the sign language interpreters and the sign language service providers would come on board to capacitate the Department to accommodate people who relied on or made use of sign language. He said that a budget needed to be set aside for these services. He noted that it was extremely strenuous for one person to attend such services daily at an event or proceeding and said that two to three interpreters should be supplied for each proceeding. This would not be cheap, but transformation and justice should be guaranteed.
Mr Isaacs said that the Department continued participating in the courts and daily, weekly, and monthly case flow meetings. Courts were required to have case flow meetings amongst the administrative staff. The role of this, is for administrative staff to ensure that the building is standing, that there is electricity, water, security and signage, that the court recording machines are working, and that there are court clerks and sign language and foreign language interpreters available. He emphasised that this was a serious support role to ensure that courts functioned daily.
Mr Isaacs said that since 2017, the Department has had the Post Review Committee managing the Human Resources (HR) budget to ensure that the Department stayed within the HR budget. He said that sometime prior, there had been a lot of contracts in the Department and the Department was given six months’ notice to ensure that contracts were given notice, that the Department be ridden of contract workers, that the Department worked within its budget, that the daily effective utilisation of the eight hours was monitored. As the matter progressed, the Budget HR Committee continued to do its work and the Department continued to stay within the HR budget. He said that the Department continued to shrink but the legislative requirements and services continued to grow. He said that one of the inexcusable reasons was the maintenance and reduction of the key performance indicators. He emphasised that the indicators were the minimum and nothing would stop the Department from exceeding these targets. He stated that when considering drops in targets from 2017/18/19, a lucrative environment in terms of HR budget, to now, it indicated that managers and supervisors were going to have to ensure a tighter hold on officials’ working time. The Department had undergone a process where consultants explained that the Department needed to rationalise the red tape processes, which the Department was doing by looking at the timeframes and working to make the value chains more effective and efficient.
Adv Mashabane asked if Mr Isaacs or Ms Mametja could address the question regarding the rebuilding of courts.
Mr Isaacs preferred that Ms Mametja responds on the matter.
Ms Mametja stated that the process of appointing a new contract was under evaluation by the DPWI. No further progress has been shared. She stated that she would check with the DPWI if there were any further updates and if the evaluation had been completed.
Adv Mashabane indicated that Ms Penelope Roberts, the acting Deputy Director-General of the Master’s Office would respond to questions regarding the Masters.
Ms Roberts responded to the insolvency issues. She stated that she was aware that the memo had been submitted to the Minister for consideration and approval so that the matter could be tabled in Parliament. The Department had followed up with the Minister’s Office regarding the outcome but had not received feedback from them.
Mr Roberts responded to the reduction of targets for the Master’s. She said that the target regarding backlogs had been reduced from 100% to 75%. This was done after considering issues faced by the Master’s Office including, load-shedding and ICT issues. Regarding load-shedding, the Provincial Offices were working with the Master’s Office to assist with generators. Regarding business continuity, other available facilities were being identified to assist with the issue of letters of authority and letters of executorship. In terms of the backlog, it had been found that with regards to matters where the Master’s had already issued letters of authority and appointments, there was correspondence that came in that needed to be attended to, such as amendments of letters where additional assets have been found. She reiterated that without a stable ICT infrastructure, the Master’s Office would be hindered in its efforts to render its services.
Adv Mashabane asked if Ms Roberts could provide more details about the work being done regarding the insolvency issue. What did the framework seek to achieve? What complaints were emanating from the Master’s Office across the country? What was being done about this?
Ms Roberts highlighted the transformation in the insolvency area for appointing practitioners. She stated that a case she has been involved with would transform how liquidators were appointed. The case emanated from the North Gauteng Pretoria High Court, whereby she has been taken on review as the Master in Pretoria because she had added two liquidators in a high-profile matter. There have been three liquidators appointed, two females and a white male. She has added two more liquidators, one African male and one Indian female. She has been taken to court for acting illegally. She had applied Section 374 of the Companies Act to appoint the two additional liquidators. Section 374 said that the decision should be made with Ministerial policy, but there was a Constitutional Court case to the effect that the Act gave the Master the authority to appoint liquidators. The Act said that a Master could, whenever they deemed necessary, appoint or add liquidators. She said that she had won the court case based on the case’s merits. The matter was taken to the Supreme Court of Appeal, where the judgement was upheld.
Ms Roberts stated that in the Master’s environment, the offices were very busy and had several clients visiting the offices on any given day. She said that for the processing of applications to occur, there must be a period where the public was told that the offices were closed so that they could process matters. If consultation with the public had to occur all day, there would be many backlogs because officials would have no time to review and process the matters brought to them. She said that some smaller offices were able to assist members of the public all day if there was not a great influx of clients. She explained that a part of the strategy was to rebrand the Master’s Office to engage with the members of the community and make them the focal point. The Department discussed the public education communication strategy with Institutional Development. The intention was for the Department to conduct a survey to clarify what the complaints were about.
Adv Mashabane asked Mr Monyane to respond to some of the concerns.
Mr Monyane said that a lot of progress had been made with the IJS project. He said that it was a hub that was continuously maintained and was available 24 hours a day, with 11 member departments connected to it. He said that it was in line with the MTSF targets of ensuring that by the end of the current administration, 11 departments should be connected to the hub and actively engaging with the platform and other departments. The 11th department was the Private Security Industry Regulation Authority (PSiRA) because they had found it difficult to verify the public companies and to verify security personnel in real time. He said that PSiRA would be verifying more than 9000 private companies registered with PSiRA and people being employed as security officers at these companies.
Mr Monyane said that the IJS had three key work streams. The first was case management. All involved departments have case management systems integrated into the hub through end-point connections. At the beginning of the criminal justice system, when a person was arrested, the docket continued to be captured using the Integrated Case Docket Management System (ICDMS). He said that the police were unlike other departments because they depended wholly on SITA for everything, and this meant that they would constantly be delayed. The module on administering cases in the ICDMS has been completed. It was working and continued to capture cases so that integration could occur with the NPA’s Electronic Court Management System (ECMS) so that prosecutors would be able to proceed or not proceed with the case. He noted there were still issues with the investigate case model which SITA had delayed. The Department had met with SITA with regard to interventions on the matter. He said there was an IJS-SITA war room to deal with the emerging issues. The Auditor-General would qualify the IJS if things were done outside SITA in terms of the SITA Act. Two weeks ago, a session was had with the Auditor-General on the audit of the value add of the IJS. It had been indicated that SITA was a problem, but the IJS would still be qualified if things were done outside of SITA. Project Managers were working directly with the Office of the Chief Justice, after they had completed a pilot in Pretoria and Johannesburg High Court. The process was at the point of National implementation, which would begin with the Supreme Court of Appeal and Constitutional Court and in the third quarter of the year, it would be taken to other High Courts. He highlighted the Legal Aid electronic application system. All 132 Legal Aid offices no longer use manual processes. The applications were made through ILA. He noted that 20 modules had already been deployed, and there were new modules. Currently, there is engagement with Legal Aid to do the means test in integration with the Subs.
Mr Monyane highlighted the second work stream is person integration. He noted that there have been big delays with this aspect. He said it was very important that an individual was taken from the time of arrest to rehabilitation and re-entry into society. He said that the IJS directly developed the Person Identification Verification Application (PIVA). PIVA was used to verify and check the criminal records of people in custody at various police stations. PIVA had already been deployed to 1080 police stations out of a total of 1158 police stations. He said that no police station in Gauteng did not have PIVA. He said that certain things were change management issues. He said that IJS thought it should be standard for a meeting with Subs Technology Management Services (TMS). There should not be a situation where people are unverified. When someone is taken into custody, the first thing that should be done while capturing the docket should be to verify the person using PIVA and the Department of Home Affairs profile. This would provide all the personal information and information on previous crimes. He was proud to share that the person integration stream was ahead of schedule and said that release one to five had been completed. He said that the aim was to strengthen the person verification process. Release one dealt with integrated booking. Release two dealt with unique person identifiers.
The Chairperson interrupted the response and suggested that the Committee needed a dedicated update on the IJS due to the time restraints of the meeting. He noted the importance of the matter, but it would be difficult to fully attend to the matter and hear the other responses due to time constraints.
Adv Mashabane accepted this suggestion. He noted that there were several further updates regarding the IJS. He said that he would wait on communication regarding the scheduling of the meeting. He concluded that while there were still issues with the IJS, there has been significant progress.
Adv Mashabane responded to the concerns that the Committee has not received reports from the Department. He stated there might be confusion between parliamentary questions and requests for reports. He stated that the Department has provided several reports that the Committee has not received. He stated that if this was not the case and the Committee had not received the reports, the Department would submit them again by the following Monday.
Adv Mashabane confirmed that the Office of the Legal Ombuds was being created by the Legal Practice Act but has not necessarily received a budget from Treasury. He stated that currently, there was a temporary skeleton staff from the Department and others who were focused on helping the legal ombud on the budget of the Department. This meant compromising certain programmes to fund the legal ombud. Over the past three years, when approaching Treasury, it has been made clear that there would be no reallocation or increase and Departments were made to consider its baselines. He said that in saying the Office of the legal ombud was operational, people would be concerned about what programme has been compromised to operationalise the Office of the legal ombud. In conversation with Judge Desai, the Legal Ombudsman, they needed to consider how the profession would “come to the party” to fund the Office. The understanding has been that the legal profession was self-regulating, but currently, the Office is 100% funded by the DoJCD. He said it was likely that there would be issues about the independence of the Office in relation to the “provincial” that was meant to be self-regulating.
Adv Mashabane apologised again for the other reports that were deemed to have not been submitted. He apologised if the Department came across as contentious and disrespectful to the Committee. This has not been the intention of the Department.
Adv Mashabane said that the deadline that the Department had received for the BRRR Report was 31 January 2023. To his knowledge, it had been released on the 27 January but there had been requests for clarity by the Ministry. The requests for clarity have been responded to by 7 February. This conflicted with Mr Dyantyi’s statement that it had only been received in April. He suggested that the Ministry would have more information on the matter.
On the conferment of ‘silk’ status, he said that it had been a target for developing guidelines to assist the President because it was the President who conferred the honours after the processes starting with the legal profession and with the introduction of the Legal Practice Council (LPC). The guideline proposed a role for the LPC and the processes that should be followed, including consultations with the judges. The goal was to have everyone be aware of the procedure that had to be followed. Following the advent of the Legal Practice Act, there has been debate on whether it was necessary to confer ‘silk’ status for Advocates only and not for attorneys. However, attorneys felt that they should also have conferment of senior status. He said that the conferment of silk did not necessarily assist or improve access to justice. He said that some people argued that it made justice expensive because it increased the rates charged by senior status legal practitioners compared to those without the status. He said that the framework was completed and submitted to the President in March and there was a request for clarity at the end of March. The Minister assisted the President with the cognition of the profession. He stated that the Judge Presidents had become reluctant to express their views on the qualification of particular practitioners for silk status because candidates did not take kindly to poor comments that could have affected the decision to award them with silk or not. He said that this was not the role of the Department, but that the Department was open to assisting the President if necessary.
The Chairperson stated that the issue had been sufficiently covered. He asked the Deputy Director-General to respond to any other concerns that have been shared.
Adv Mashabane asked Ms Rofhiwa Singo, CFO, to respond to concerns about irregular expenditure.
Ms Singo stated that irregular expenditure had decreased. In 2015, irregular expenditure stood at R2.9 billion and it is currently around R792 Million. This was because determination tests have been done and the Department has followed up on irregular expenditure.
Ms Singo responded to the question regarding the improvement of implementation of the audit action plan. She said that initially, there was a turnaround strategy for audits which last year was sitting at 50% and for the current year 100%. This meant that the Department would no longer be checking the implementation of the audit action plan, but they were tracking the outcome. Going forward, an unqualified audit opinion was expected so the indicator was still there that would deal with audit issues; it had just been rephrased.
Ms Singo said it had been agreed that the Auditor-General would give the interim audit report. She said there had been a lot of technical issues that needed to be consulted with between the Department and Treasury which have been finalised. The Department has given the register to the Auditor-General to consider and review and was awaiting feedback before it could be submitted. She said that a lot of work had been done in that area and was hopeful they would get out of the qualification in the current financial year.
Ms Mametja responded to the Chairperson’s question regarding the actual value of the percentages of employment of people with disabilities. She stated that 340 out of 15 932 employees were people living with disabilities.
Ms Mohube Phahlane, Acting Chief Litigation Officer, DOJ, responded to the concerns of reducing targets for briefs to previously disadvantaged women. She said that it had been a struggle to reach the previous target. She noted that the target moved from 29% to 28% because of the composition of power. She said that the Department has done its best. More males than females could be seen when it came to high profile matters. She said that most women were found to be dealing with more ordinary cases.
Ms Phahlane indicated that there was a dependency element in terms of the framework contract. The Department depended more on Treasury because they were done with the bid specifications and that the bid specification would be finalised. The specifications have been presented to the Quality Assurance Committee at Treasury for approval in September 2022. The specifications have not been approved but were returned for corrections and amendments. The specifications were meant to be tabled again at the Quality Assurance Committee meeting in November 2022, however the meeting had been rescheduled by Treasury to 30 January 2023. The meeting had been cancelled for unknown reasons. She noted that the Offices of the State Attorneys were currently following the Standard Operating Procedure (SOP) and the Supply Chain Management process. She said that it was not a challenge because when it came to the Public Finance Management Act, the Supply Chain Management in instruction 3 of 2021/22, provided the accounting officers with power to deviate from the normal procurement process if there were valid reasons. She said that there was not much of a problem because currently for those SOPs and Supply Chain Management processes which gave the accounting officers powers to deviate from valid reasoning. This was called procurement by other means.
The Chairperson asked if there were not enough women to be briefed.
Ms Phahlane responded that there were a sufficient number of women at a junior level, but when it came to high profile matters that required senior level staff, there were not enough women. She said the Department was doing its best, but it was not good enough. Because of this, the idea to reduce the target had come up.
The Chairperson asked if the target had been reduced for high profile cases.
Ms Phahlane said that the value of briefs to females had been reduced but the number of briefs remained the same. She explained that high profile matters have a higher value than more ordinary matters.
The Chairperson said that if a person read the APP without hearing the explanation that had just been provided, the impression would be that the briefs for women had been reduced by 1%.
Ms Phahlane clarified that it was not the number of briefs but the value that had been reduced. She explained that there were two targets when it came to female legal practitioners. The first target was the number, where there were no issues. The challenge was with the value. She said the 28% was the value of briefs to previously disadvantaged individuals.
Ms N Maseko-Jele (ANC) said that she was not happy with these statements by a woman in the Department. She expressed having difficulty understanding what Ms Phahlane was trying to say. She asked what the criteria of evaluating the women to give them briefings on high profile cases. She asked for clarity on the value and numbers.
The Deputy Minister stated that this was a point that he had not agreed with the Department and said that there had been many discussions on the matter. He clarified that not all briefs held the same value. Complex cases had higher values than less complex, ordinary cases. This was why it was necessary to distinguish between the number of briefs and the value. He said the number of briefs was 40%, but the value was 28% reduced from 29%. He apologised for the issues regarding this reduction. He stated that more needed to be done if the Department was serious about advancing women at the bar.
The Chairperson asked when the Committee would be debating the Justice Budget. The Committee Secretary stated that the meeting was on 30 May at 10:00am.
The Chairperson said he found it unfair that the APP was submitted late to the Committee. He was unhappy that the targets had been reworked and believed that they had been reworked down. He was concerned that the Committee was just expected to approve the budget. He said that when considering the issue of disability, if the target was 2.2% and then moved to 2.3%, the target would have been achieved. The next target was decreased to be compliant with the norm. He said the Department has shown that it could meet a higher target and questioned why it would reduce the target. He explained that the targets were meant to transform South African society; the targets themselves were not the end goal. He said that the Department was expecting the Committee to just approve the APP, despite amendments and concerns. He asked if it was possible to have another meeting where there could be a focus on the targets and the Department could provide proper motivation for the choices made. He said that the Committee would not accept the reduction. He did not believe that the Department had reduced the targets because they had already been achieved. He said it showed that the Department was compliant with little to no consideration of the type of society it sought to build. He said that the Committee has been unhappy with the 2022 APP. He suggested that the Department return with the Minister to properly motivate the decision to reduce and remove targets.
Adv Breytenbach expressed her support of the suggestion.
Ms Maseko-Jele expressed her support of the Chairperson’s suggestion and stated that women should be allocated high profile briefings.
The Chairperson stated that the targets had been set and agreed on and emphasised that they could not just be reduced without a just reason. He said that Parliament should be given sufficient time. He said it was unfortunate that the meeting was the last Budget Vote that the Committee would deal with in the term. He said that if the Department continued behaving this way, the Committee would not approve the budget.
The Chairperson said that previously it had been agreed that there would be a dedicated discussion on the issue of the Solicitor-General, including concerns on how the Office was capacitated. He expressed that a dedication session would be necessary for the concerns and feedback regarding the Master’s Office. He had not seen the progress he would have liked in terms of the Master’s Office during this term. He asked the Department to prepare for those dedicated sessions.
Adv Mashabane clarified that the statement did not intend to say that women should not be briefed in the same way as men. Ms Phahlane has been trying to convey that high value cases were the responsibility of senior status legal practitioners and that there were not enough women at this level to allocate high value briefing to women. He said this was an issue that needed to be resolved but was not an issue of the Department. He emphasised that it was an availability issue. He said that it was a structural issue with the profession’s demographics. He said that in terms of the employment of people with disabilities, the Department has intended to surpass the target. He acknowledged the discrepancies in the APP targets and would work to correct this. He said that the Department would come back to discuss these matters, but there was no further motivation. He said that the targets would be re-adjusted to the original percentages.
Ms Maseko-Jele understood that the Department would not be able to return and explain the issue again. She asked for an explanation for a plan to assist women in reaching the high levels necessary to retain high value briefs. She suggested approaching the Association of Women Lawyers and engaging with them to understand why there were so few women at senior levels. She said that the matter had to be forced or women would continue to be left behind. She wanted more information regarding the issue.
The Chairperson said that some of the issues the Director-General had raised needed to be considered. He stated that, that was the reason for requesting dedicated discussions on certain matters. He said that the issue of briefing patterns was very concerning. He noted that some junior counsellors were more competent than senior counsellors and would be able to handle complex cases. He had an issue with complex matters being allocated only to senior level legal practitioners. He said it would be important to people and women in the profession to engage with the issue so that it may be understood, and solutions could be generated. He said that continuing in this way, the country would not experience any transformation in this regard. Government is not doing enough to deal with the briefing patterns issue, which was a serious problem. He emphasised the suggestion to organise a dedicated discussion on the matter.
The Chairperson thanked the Deputy Minister and Department officials for attending the meeting and engaging on the concerns of the Committee.
Closing Remarks
Deputy Minister’s Closing Remarks
The Deputy Minister stated that the engagement had been very useful. He noted the division between the Department under the Accounting Officer, the Director-General, and the Minister, who was the executive. He stated that largely the Committee had questions regarding the functions of the Department. He stated that it had been useful because there were internal issues within the Department in terms of getting information.
Deputy Minister Jeffrey said that one had to be careful of not being accused of being operational and interfering. He said there were issues of asking for reports too often and being accused of bullying by staff members.
Deputy Minister Jeffrey stated that the Master’s Office was an important issue. He had a meeting regarding the Office with the Minister and officials at the beginning of the year but noted that a lot more was necessary. He highlighted the issue of the Cape Town Master’s Office restricting access to the Office and said that he had requested more information on the matter from the Department. The explanation received claimed that the Office had consulted with stakeholders and was similar to the explanation provided by the Acting Chief Master that extra time was needed to reduce the backlog and review cases. He noted that this would create an additional backlog.
Deputy Minister Jeffrey highlighted the Domestic Violence Act that had come into effect. He expressed his concern that it did not relate to the DoJ but to the police because many things would be the responsibility of the police in the Act. He suggested that it may be useful to engage with the Portfolio Committee for Police to find out what was being done.
Deputy Minister Jeffrey expressed his gratitude for the work of the Portfolio Committee.
Chairperson’s Closing Remarks
The Chairperson thanked the Deputy Minister and Department officials for their attendance and engagement. He expressed that he would be in touch regarding scheduling the suggested meetings.
The meeting was adjourned.
Documents
Present
-
Magwanishe, Mr GB Chairperson
ANC -
Breytenbach, Adv G
DA -
Dyantyi, Mr QR
ANC -
Horn, Mr W
DA -
Jeffery, Mr JH
ANC -
Maseko-Jele, Ms NH
ANC -
Newhoudt-Druchen, Ms WS
ANC -
Nqola, Mr X
ANC -
Swart, Mr SN
ACDP -
Yako, Ms Y
EFF
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