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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
10 May 2000
BUDGET VOTE HEARINGS 2000
Documents handed out
Aspects relating to courts
An overview of the Branch : State Legal Advice (State Law Advisors)
The following main issues arose:
- The Chairperson asked the department to prioritise misconduct matters. These cases must be dealt with fairly and quickly. The committee would like a report on the progress made with the misconduct cases (as well as a report on new misconduct cases every three months).
- The Chairperson, commenting on the Department's contention that they need more regional courts and more posts, asked how they could say this when the facts reflected that regional courts sit an average of 3.5 hours a day. The creation of new posts could not be justified if they do not properly utilise court hours.
- The Minister has taken a position on the drafting of Bills outside of Parliament. All the bills that the Department of Justice are responsible for will be drafted within the Justice department. The Director General said that they were looking at the possibility of creating a central drafting office for this purpose.
The meeting commenced with the issue of the Witness Protection Act, discussed the previous day. The Chairperson asked why this Act had not been implemented. The Director General replied that the problem related to secondment. He indicated that they would go back to the drawing board to see why there has not been implementation, and would then report back to the committee.
Ms Camerer indicated that the issue which she had raised the day before, (regarding R450 million) had been explained to her.
The Justice Department panel then proceeded to make further presentations:
Human Resources Branch
One challenge which they had to face was that the public service focus was previously on administration and there was now a whole change toward human resources. They were now looking at the management issue and specifically, at the human resources information system.
Vacancies - Around 14 000 posts exist. Not all these posts are funded and there is still a backlog in the creation of posts (another 5000 posts are needed). About 290 professional people have been lost. The issue of salaries is being addressed. There are 126 vacancies for magistrates, which have accumulated over the last three months. All these posts have been advertised and should be filled by June 2000. There are also 47 vacancies for prosecutors (these vacancies do not go back further than one year), also to be filled by June 2000. In this regard they are ''fast-tracking'' prosecutors through the Justice College.
Outstanding misconduct cases - There are criminal cases pending which involve justice officials. The department has trained presiding and investigating officers to handle these cases.
The Chairperson asked why they do not simply use prosecutors to perform these functions. They replied that they do but prosecutors have their own caseload to deal with, which makes it difficult.
The Chairperson said that he thought it was a good thing that they were training people but he felt that it would be better to use people who were already legally trained as such people would make rulings in these cases with more confidence.
He commented that the procedure in such cases had to be speedy otherwise they will be ''carrying bad apples who will ruin the department''.
The Director General said that they were going to separate internal misconduct cases so that they could resolve issues faster. He said that he has written to the SAPS National Commissioner asking him to expedite justice official cases.
The Chairperson commented that they must deal with these cases quickly and fairly. Especially because they are the Justice Department, they must be exemplary in this regard. He said that the biggest complaint of civilians was always that they know of some crook somewhere that is not being dealt with. This is the most common criticism because it is the most visible. Therefore, they must prioritise the misconduct matters. He said that he would like to get a report on the progress made with misconduct cases every three months. This will enable the committee to track these cases and to watch the process carefully.
The Director General commented that they looked forward to dynamic interaction with the committee.
In response to a question by Ms Camerer (NNP), it emerged that where a misconduct case is pending, the person is suspended with salary. The Director General has the power to review cases and, depending on the gravity of the offence, he can lift the suspension. The panel said that it is the goal of the unit to draft a code of conduct so that employees know how to behave appropriately.
Programs - They are computerising the department. Computer training is taking place throughout the country. This training had to start from the most basic level.
They are also involved in Adult Basic Education Training, especially below the Grade 9 level. They are also training court personnel on financial issues and financial management. This involves a skills audit focus on employees responsible for financial management in the courts. The idea is to improve internal controls in the department.
Another program they are involved in is HIV/AIDS education. They want to train managers to deal with this issue if it should arise in the workplace and generally to raise awareness on the subject.
They are also focusing on women empowerment, and other diversity awareness programs to counter issues such as racism in the department.
The Chair noted that there have recently been allegations of racism in the Justice Department, which the Human Rights Commission is investigating.
Program on service excellence - There is functional training, example, the SLA's have a program of training on functional areas.
Justice College - Here the focus is on legal training. It includes a fast-track program for prosecutors and management. All these programs have human rights principles embedded in them.
Employment equity/Gender unit - This unit aims to raise awareness on the Employment Equity Act. They provide guidelines, for example, the number of women there should be on a panel and its racial composition. It also has an evaluation mechanism, for example, regions must report on appointments.
Dr Delport (DP) asked for clarity as to whether the registrars which they trained and appointed, were trained before they were appointed or vice versa.
The panel replied that they train, evaluate and then appoint on a contract basis.
Ms Camerer (NNP) commented that she had heard complaints about unsatisfactory performance of the people who went through the Justice Colleges. In light of this, she asked if the program was a success.
The Director General said that all the reports and feedback that they received in respect of these colleges were positive. He said that he did not know where the negative reports could have come from, and added that the people who went through the college had to write exams.
Mr Swart (ACDP) asked if other departments perform their misconduct trials.
The panel replied that they do ask other departments to assist them, and sometimes other government officials ask their department to preside.
Mr Magwanishe (ANC) asked if they have a draft policy on disability and what their relationship with the Youth Commission was.
They said that they have a unit which deals with children and youth issues but there is no formal relationship with the Youth Commission. They are training staff on disability issues. They have a unit who looks at this. The panel was unable to say how many disabled staff they have. The Director General said that they also want the buildings to be accessible for people with disabilities.
The Chairperson asked when their draft policy would be adopted. They replied that they must still circulate it for comment and negotiate with the unions. Advocate De Lange pressed them for a time period, and they said that it would be in approximately three months time.
A committee member asked if there was a way to assess their programs.
They replied that after training, they do an evaluation, and they get feedback.
Ms Camerer described the unfunded posts as ''frozen posts''. The Director General said that this was not an accurate description. He explained that the budget does not allow them to fill all these approved posts. The personnel budget caters for only 13 000 posts, but gradually they will expand the establishment.
The Chairperson explained the position as follows: the Public Services Commission had approved 14 000 posts. When their department received the budget, they prioritised and only some of these posts were funded, leaving the remainder unfunded. They then asked the PSC to revisit this staff complement. In addition to this they want further expansion which may or may not be approved by the PSC.
The Director General referred to the R154 million they had received, and said that they are going to create more posts out of that. In the Eastern Cape, for example, they may create four additional regional courts.
Ms Camerer expressed concern that this amount budgeted for ''professional services'' was used to create posts. The Chair asked what the ''professional services'' fund was used for.
The panel replied that it was used to finish the cases of magistrates who have left the department. In such cases they pay that employee at a contract price for their services.
Ms Camerer queried why the amount was so high as they do not know in advance who resigns.
They explained that the money was also used for outsourcing, for paying security personnel, and many other things.
Aspects relating to courts
Problems experienced by courts
- Inadequate management system, personnel shortages, case backlogs, an increasing workload due to new legislation (for example, the Domestic Violence Act), low number of sitting hours due to a lack of discipline and ineffective court roll planning.
Measures taken to deal with problems
- In certain areas additional regional courts and high courts have been established to deal with backlogs.
- The various departments involved with the justice system are working closer together in order to use resources as effectively as possible.
- Training programmes with the various role players to improve the effectiveness and efficiency of all court functionaries has been given attention.
- They are increasingly moving away from magistrates having to perform administrative tasks by separating administrative, prosecuting and judicial functions.
- Specialist courts are being established to improve conviction rates and service delivery.
- The provision of court-related community legal advice and support services are being upgraded.
- Special attention is being given to the problems of overcrowded prisons and awaiting trial prisoners.
The Chairperson referred to the department's statement that they need more regional courts. He asked how they could say this when their document reflected that they sit so little (in some regions, only 3.5 hours a day).
Mr Durant replied that they are putting measures in place to deal with this problem more effectively. One of the reasons for this is ill-discipline and he added that they had an outflow of experienced people.
The Chairperson said that it seemed to him that the ''one hand did not know what the other hand was doing'' because there was such a contradiction in the department. On the one hand they said that they need more posts, and on the other hand people were not doing their jobs properly. Scientifically, they would not be able to prove that they need more courts.
The Director General agreed that they could not justify the creation of new posts if they do not properly utilise court hours. One of the problems was that magistrates and prosecutors were dealing with administrative matters. If they were released from these administrative duties then they could sit more.
The Chairperson said that if they cannot properly handle the resources then they cannot ask for more posts. He said that if they get these people to work, then they may not need 50 new courts, but perhaps only 10. If the regional magistrates are not working, then the real problem is that they are not managing effectively.
Mr Swart asked about the success of Port Elizabeth's one-stop justice shop.
The panel replied that the integrated approach was working well, and that it was a model that they were trying to develop throughout the country.
Ms Camerer asked the department to clarify their statement that SAPS is critical of new legislation such as the Domestic Violence Act, because they say they are overworked. She wanted to know why in their document, they had not listed the tardiness of Correctional Services in delivering awaiting trial prisoners to the courts as one of the causes for operating just over 3 hours a day.
The panel replied that there is a problem with manpower, especially because there is a need for legislation to be implemented as soon as possible.
They were taking up the issue with Correctional Services and were speaking directly to their counterparts. Some provinces have had good feedback (especially in KwaZulu-Natal). The integrated justice system is part of the measure put in place to deal with overcrowding of prisoners.
Mr Molewa (ANC) commented that courts work few hours and are unable to cope with the rate of crime. There is also a lack of discipline. Mr Durant added that the courts are not operating full-time and this must be addressed.
The panel noted however that it was not all magistrates who were ill-disciplined. There were only a few.
The Chairperson responded to this by saying that the facts were still that the average number of court hours per day was 3.5 hours. He added that if they were adjourning courts because of Correctional Services, then they should not.
State Law Advisors
Mr Enver Daniels made the presentation (see document).
The Chairperson interrupted Mr Daniels during the presentation, saying he was going into too much detail and that the committee only wanted to hear about the problems which that branch of the department was experiencing.
Mr Daniels indicated the State Legal Advice branch did not have any problems, and that their section did not need additional funds.
The Chairperson said that a problem that he had heard about was that committees often want legislation passed urgently. They then send it to the law advisors hurriedly. The law advisors felt that they needed a minimum of 6 weeks to handle legislation, and 8 weeks for a satisfactory job. They have written to the departments and complained about this.
Mr Daniels agreed with this and said that they have introduced a team system, in terms of which they work in teams of at least 2, and sometimes 3 or more. Also the committees often call them at very short notice for help. For example, when a committee is sitting, they may want a legal point clarified and they call for a law advisor immediately. The problem is that they often cannot send the law advisor who tabled the Bill, they have to send someone else who is unversed on that Bill. He said that they would like to get notice well in advance.
In answer to the Chairperson's question if state attorneys also fall under them, Mr Daniels replied that they fall under ''Legal Services''.
Ms Camerer said that she was concerned with the delay in regulations appearing. She also commented that sometimes really bad legislation appears and she gave as an example, the first draft of the Equality legislation. She asked how this happened and whether they were responsible for this.
Mr Daniels said that they do not draft regulations nor legislation, they only fix them up. On the Equality legislation he said that they made suggestions on the drafting of the Bill before it was tabled in Parliament. They tried to make a few changes hastily.
The Director General then made the following points: Bills are drafted outside of Parliament. The Justice Minister has taken the position that all the bills that they are responsible for will be drafted within the Justice Department. The reason for this is that if the bills are drafted outside the department, and it comes to the law advisors afterward, then it is usually in bad shape, and it is too late to clean up the mess. The Director General said that they were looking at the possibility of creating a central drafting office.
The Chairperson said that he endorsed this idea. He felt that consulting further with outside drafters after they have drafted the bill was a mistake. If they do give legislation to be drafted outside of the department, then the department must first give its view. He commented that the South African Law Commission does excellent work.
The Chairperson said that he had been strict with the department because ''this must be the tone''. Service delivery is paramount and there has to be a vigorous inquisitorial approach. He urged them to take the criticism in the light that it was meant, saying that it was not meant to degrade their work, but to be constructive. He added that he would like more regular visits from the Department, and that he would like to visit the head office and the courts. This would enable the committee to collect its own information and have a more meaningful oversight role, as he found that the present method of oversight was superficial.
He commented that this had been the best report that the department had given. There were definite points where there was a turnaround. They seemed to be on the top of issues and they understood where the problems were. Everything seemed to be more cohesive, and there was more leadership. He specifically asked them to prioritise misconduct. Smaller crimes could be worked out, but where bigger crimes were involved such as stealing money - such people should not be in the Justice Department, they should be out.
The Director General said that the department was committed to improving service delivery and that they appreciated the toughness of the committee as it would spur them on to greater heights. He noted that there was concern about attendance of committee members. Many members of the department came to make the presentation at great cost to the state, and while the low attendance did not affect the quality of the meeting, it was a cause for concern.
The Chairperson explained the reason for the absence of certain ANC members. The meeting was adjourned.
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