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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 October 2004
DEPARTMENT ANNUAL REPORT AND STRATEGIC PLAN: BRIEFING
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Department Performance Enhancement Programme 2004/5: Progress Report October 2004 (email firstname.lastname@example.org)
Synopsis of the Strategic Framework: Key Strategic Result Areas
Court Nerve Centre: Criminal Court Performance in Lower Courts 2003/03
Departmental delegation: Adv V Pikoli, Director-General; Mr S Jiyane, Deputy Director-General: Court Services; Mr A MacKenzie, Chief Financial Officer, Ms S Gomm, Chief Director: CFO and Mr G Hollamby, Chief Director: CFO - Budget
In terms of its constitutional mandate the Department briefed the Committee on its financial position and strategic framework. Some of the issues that were discussed were:
- the proposal that the budgets of Chapter 9 institutions no longer be under the Department’s control
- the impact of the integration of the judiciary system
- the issue of security within the Department and the Courts
- the roles of the Court Managers and Magistrates in court budgeting
- the need to develop a uniform media policy for Courts
- the Victim Charter, restorative justice and the child justice processes
- what alternative justice system has been developed to address the needs of people on the ground.
Department of Justice and Constitutional Development Annual Report 2003/04
Mr Alan MacKenzie (Chief Financial Officer) took the Committee through the Department’s Report for the financial year 2003/04. He noted that the Request for Qualifying Bidders (RFQ) in respect of moneys in trust had closed and the Department would inform the Committee about who had qualified as a major bidder. He pointed out that the RFQ does not relate to prices but is based on three components: court-monitored transactions, bail transactions and the Master’s Office situation. The RFQ stage would be followed by a Request for Proposals (RFP) for the Public-Private Partnership (PPP) award. Mr MacKenzie was delighted to inform the Committee that the Department had finally appointed three chief directors to assist the CFO in the performance of his duties. The three are Mr P Zwane, Chief Director: Moneys in Trust, Ms S Gomm and Mr G Hollamby, Chief Director: CFO - Budget.
Mr G Hollamby (Chief Director: Budget) dealt with the right sizing of the budget, personnel under-funding, transfer of the magistrate division from the departmental vote, awaiting trial prisoners and the transfer of the Chapter 9 constitutional institutions to the Parliament vote (see presentation).
The Chair asked whether the Department was still optimistic about the rollout plans for April 2005 in respect of the RFQ.
Mr MacKenzie acknowledged that there were still many phases that had to be rolled out before the RFQ process could finally be kick-started. However the Department was very optimistic that the process would have commenced by April 2005.
The Chair asked what the Department proposed for the budgets of the Chapter Nine institutions.
Mr Hollamby replied that since Chapter Nine institutions are constitutional institutions there was a concern that their budget should be directly dealt with by Parliament and thus not be dealt with through the Department’s budget.
Adv Vusi Pikoli (Director-General) noted that the location of the budget vote of the constitutional institutions had always presented a vexatious problem as these institutions had argued for their financial independence. Above all, the Department had nothing to do with the budgets of these institutions except to transfer the budgets in terms of their cash flow projections. With this proposal, the political responsibility would still remain with the Minister of Justice in terms of the Constitution but their budgets would be voted separately from that of the Department. He pointed out that the presence of the Chapter Nine budgets had always inflated the departmental budget which sent out a wrong message.
The Chair noted that Mr Pikoli’s argument for a separate budget vote for Chapter 9 institutions was based on a technical issue and to transfer these budget votes to Parliament would not be a solution since it would also inflate the parliamentary budget. She cautioned against short term solutions and reminded the Department that the Minister, as the political head, remained responsible to account to the Cabinet for all the public entities under his political responsibility, and that included Chapter 9 institutions. With that in mind she asked what would happen if, after the Department had relinquished its authority over these Chapter 9 institutions, evidence of enormous mismanagement cropped up within one of them.
Adv Pikoli responded that the actual responsibility for Chapter 9 institutions did not rest with him as the Director-General, but with their respective Chief Executive Officers as accounting officers. The only authority which he had in dealing with Chapter 9 institutions was to retain monies if their books were not in order.
The Chair felt that this authority which the Department had might be lost in the process should the proposal become a reality.
Mr MacKenzie said that what was at stake here was not monies but issues of governance. This proposal distinguished between public entities and the independent constitutional Chapter 9 institutions. While the Director-General had the authority to refuse to transfer monies to other public institutions, he did not have such a right with the Chapter Nines since their accountability lay with their respective CEOs and not with the Department. The only thing that the Director-General could do in the circumstances would be to request the CEOs, after the monies have been transferred to their institutions, to confirm that they have fulfilled the requirements of the Public Finance Management Act. Based on this he felt that the Department was not in a better position to manage these institutions. He suggested that they be transferred to the Department of Trade and Industry since it already had the structure in place to manage independent entities.
The Chair acknowledged Mr MacKenzie's comments but noted that this would have to be a political decision. She reiterated her point that transferring these Chapter 9 institutions from the Department to Parliament would aggravate matters. Parliament was responsible for ultimately passing all budgets, however it was also required to motivate for its own allocation from National Treasury. If the status quo needed to be changed much convincing was needed as legislation would need to be amended.
Imam G Solomon (ANC) agreed with the Chair. Parliament was comprised of politicians and should the budgets of these institutions be transferred to Parliament that might compromise their independence as they would have to lobby political parties for support.
Ms S Camerer (DA) believed that the contestation made by the Chapter 9 institutions made sense since they are presupposed to be independent by their very nature from any political control, including that of the Minister. She suggested that instead of having their budget being transferred from the Department to Parliament, they should rather have direct access to the National Treasury and not do so through any other conduit.
The Chair said that members should appreciate the fact that there is a difference between political control and political accountability. Thus the Minister simply exercises political accountability over all those public entities, including Chapter 9 institutions, of which she is a political champion and thus ensure that their plights are taken care of at Cabinet level since it is where executive decisions are taken.
Mr J Jeffrey (ANC) asked the Department to provide the Committee with a detailed memorandum outlining the accounting process of the Chapter 9 institutions.
Adv Pikoli said that while it was not their intention to engage in political discussion on this matter, they would like to see the administrative considerations being addressed since they negatively affect the Department’s performance. He proposed that the Executive and Parliament would have to interact vigorously on this matter and ensure that a solution is reached.
The Chair asked if the magistracy was also included in the 60 percent personnel expenditure in court services.
Mr Hollamby answered in the affirmative and noted that the process to exclude the magistracy from the court service’s personnel expenditure would take place only in the 2005/06 financial year and the processes around that were already in the pipeline.
The Chair asked whose decision it would be to decide on the need for establishing new courts and employing more magistrates in terms of the new system.
Adv Pikoli replied that the decision to establish new courts would still lie with the Minister. The Department, in its endeavour to bring courts closer to the people on the ground, would always be guided by the availability of funds.
Mr S Jiyane (Deputy Director-General: Court Services) added that the authority to establish new posts rest with the Director-General in terms of the regulations so the employment of new magistrates would be the responsibility of the Director-General.
Mr B Magwanishe (ANC) asked what was being done to curb burglaries and theft within the Department as they seemed to be on the rise.
Adv Pikoli acknowledged the concern and noted that this relates to the whole issue of security within the Department, which previously had not been taken seriously. However since the security budget has been increased from 4million to 75 million, the Department is optimistic that security issues would be alleviated. The Director-General had established a security directorate in his office.
Mr Magwanishe (ANC) asked if the Department or an outside agent was responsible for paying Mr MacKenzie's salary.
Mr MacKenzie responded that both the Department and Business Against Crime, an outside agent, were responsible for his salary.
Adv Pikoli explained that when the Department entered into a contract with Mr MacKenzie, it realised that it could not afford his salary and thus agreed to pay him the salary of a Deputy Director-General, which is equivalent to all department’s Chief Financial Officers. However it was left open for him to make other arrangements with Business Against Crime to meet his salary expectations.
Mr M Malahlela (ANC) asked about the role which would be played by the Court Managers and Chief Magistrates in preparing a budget for their courts.
Mr MacKenzie replied that when the Magistrates had argued for their independence in the Van Rooyen case, an administrative vacuum had been created since the effective management of the Courts had been in their hands. Therefore in terms of the new system, Court Managers had been introduced who would be responsible for the effective management of the Court and be in charge of its administration.
In addition Mr Jiyane noted that there were guidelines in place which were designed to assist Court Managers in processing a budget . In order that these guidelines become a success, they would definitely require the assistance and support of both the Magistrates and Prosecutors.
Mr Magwanishe (ANC) asked for clarity on staff debt under 12.3 Debts Written off in the Notes to the financial statements. He also asked for an explanation of Virement Approvals Not Obtained under 13.2 Unauthorised Expenditure in respect of Previous Years not yet Approved.
Mr MacKenzie replied that these staff debts were historical having being inherited by the Department from the previous regime. The virements related to a process which was not approved in 1999 and would therefore remain in the financial statement until the Standing Committee on Public Accounts decided otherwise.
The Chair noted that these bad debts reflected badly on the Department and they should be taken care of as soon as possible. She added that when employees had been suspended and thereafter found guilty, especially in the case of fraud, they should not be able to receive back pay for the suspension period.
Mr MacKenzie applauded the Chair for coming up with this proposal which would be noted by the Department and Director-General.
Synopsis of the Strategic Framework: Key Strategic Result Areas
Adv Pikoli took the Committee through the document, noting that the Department’s strategic plan is informed by the government programme and is based on three pillars: access to justice for all, modernising justice services and transforming justice. The guiding principle throughout the strategic plan is the Constitution as it formed the basis of a contract between the people and the government (see presentation).
Ms Camerer (DA) asked the Department to elaborate on the kinds of partnerships through which they intend to synchronise their efficiency and economy actions.
Adv Pikoli responded that they believe that it is only through partnerships that they would be able to bring efficiency into the system. Thus instead of developing their own new structures which might costly, they had decided to make better use of those structures which are already in existence. The Department would be synchronising its actions through both public and private partnerships.
Ms Camerer, noting that the issue of media access to courts had resulted in different decisions in the High Courts, asked if the Department envisaged introducing a uniform media policy to guide the lower Courts.
Adv Pikoli replied that while the primary consideration was to open the Courts to the larger public, the second one was to ensure that justice was served. The Department would be guided by the different judgements espoused by the judicial officers in the High Courts.
Mr Jiyane noted that the Minister had set in place a transformation process for the judiciary, including Courts, which aimed at concretizing policies, including those relating to media access to court.
Mr Swart (ACDP) asked when the Victim Charter could be expected.
Adv Pikoli acknowledged that this process had taken far too long to be implemented. They were presently finalising the Charter and it would then be forwarded to the Minister for presentation to the Cabinet.
Mr Swart (ACDP) asked the Department to elaborate on restorative justice and how it relates to the child justice process envisaged in the Child Justice Bill.
Adv Pikoli replied that the restorative process was identical to the process they were trying to achieve through the Child Justice Bill as it aimed at bringing the victims to the centre of the legal system so that justice could be able to concentrate on the perpetrator of the crime. He said that in some instances criminal sanctions did not work effectively and in those instances restitution might prove to be a better choice than punitive sanctions.
Imam Solomon (ANC) noted that South African society was divided into two different economies and asked what alternative justice systems are in place to ensure that justice indeed becomes accessible to the man in the street.
Adv Pikoli responded that in their documents when they characterise South Africa as a developmental state they are addressing the very same issue of the two economies. It is argued that justice should be biased when it comes to the most vulnerable people, such as those in the townships, inner cities and rural areas.
Mr Jiyane added that to show that the Department take this matter seriously, the South African Law Reform Commission has been commissioned to develop a policy process which would result in the integration of the traditional court system and the community courts.
Mr Malahlela (ANC) noted that the emphasis throughout the strategic plan is on justice services and he asked the Department what its constitutional development plans were bearing in mind that South Africa is a constitutional state.
Adv Pikoli agreed that this is a very important area which they would have to focus on so as to develop our own South African jurisprudence.
The Chair thanked the Department saying that the briefing was very useful and enlightening as it allowed the members to understand where the Department stands in the attainment of its goals.
The meeting was adjourned.