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JUSTICE PORTFOLIO COMMITTEE
23 May 2000
COMMISSION ON GENDER EQUALITY, BUREAU OF JUSTICE ASSISTANCE, THE BOARD OF SHERIFFS: ANNUAL REPORTS
Acting Chair: Ms P Jana (ANC)
Documents handed out:
Commission on Gender Equality presentation
Bureau of Justice Assistance presentation
Board of Sheriffs presentation
Board of Sheriffs Memorandum: Steps Taken to Promote Representivity in the Sheriffs' Profession (attached to end of minutes)
The Commission on Gender Equality operates under budgetary constraints and with limited human resource capacity. There are nine Commissioners whose terms of office will be ending early next year. It combines a national structure and four provincial offices as the Commission does not have a presence in all provinces. In those provinces it works in partnership with other NGOs and interest groups. The Commission is asking for the removal of Commissioner Faried Essack who joined the former CEO, Ms Lowe-Morna, in an unsuccessful suit against the CGE without notice. They allege that he is sowing dissension amongst staff. He can only be removed from office at the instance of the Portfolio Committee. The Commission has made a formal request to this effect to the Speaker.
The Bureau of Justice Assistance was formed in 1997 as a five-year project with the aim of designing, implementing and evaluating one innovative criminal justice pilot project per year. Although the first two projects have shown positive results there is a gap in funding to roll out the projects after they have been completed.
The Board of Sheriffs is addressing the need for transformation of the sheriffs profession in spite of opposition by a minority of Board members. They will be making a full submission to the Portfolio Committee especially on the apparent contradictions between the High Court and Magistrate Court rules.
Commission on Gender Equality
Ms Seroke, CGE Chairperson, said the Commission has the mandate of investigating gender-related issues of its own accord or on receipt of a complaint. The Commission promotes gender equality in the context of a society plagued by poverty. They are challenged to put in place and implement a legislative and policy framework for gender equity. Parliamentary Committees are increasingly requesting input from the Commission in drafting legislation and making recommendations.
The Commission operates under budgetary constraints and with limited human resource capacity. There are nine Commissioners whose terms of office will be ending early next year. The Commission sees the need for partnerships with relevant stakeholders, civil society and government in fulfilling their mandate.
The Commission does not have a presence in all provinces due to budgetary constraints. It combines a national structure and four provincial offices. However, most premiers in the provinces have an Office on the Status of Women and many government departments have Gender Focal Points. The Commission is faced with the task of evaluating these mechanisms and their impact. Future challenges include strengthening formal engagement with the private sector and encouraging men to play a more significant role in promoting gender equality.
Specific projects include 'Women's Month' in August and Gender Dialogues at provincial and regional levels. The Commission has identified key areas for future focus, which include providing more education and policy advocacy to women on farms and intensifying public education and information programmes.
The acting Chair, Ms Jana (ANC), asked the Commission to explain the staffing component of the institution. Ms Nzimande explained that there altogether nine Commissioners and 31 staff members, including the provincial staff. There are four provincial offices: in the Northern Province, Free State, Kwazulu Natal and the Western Province which also has a Parliamentary Office.
Ms Jana (ANC) asked for a breakdown of the 1999/2000 budget expenditure which is not included in their report. Ms Nzimande explained that the 99/2000 statements would only be audited in June or July and they do not want to present the unaudited figures to the Committee.
Ms Jana (ANC) said that there seemed to be an overlapping of projects of Chapter 9 constitutional institutions. What steps have been taken to rationalise the work of the Commission so that there is no overlap?
Ms Nzimande said a study has shown that there is in fact no overlap. However, in most provinces the Commission on Gender Equality shares office space with the Human Rights Commission. This ensures that civil society can access these monitoring bodies in one building and it enhances resources. A joint conference between this two bodies is to be held soon on virginity testing in Kwazulu Natal. This will allow all resources to be brought to the table especially since there are human rights issues around this practice. In addition their legal departments meet on a regular basis to share information; for instance where a complaint is best dealt with on a gender basis. There is also a forum of Chapter 9 institutions that meet quarterly to debate various inputs by each institution.
Ms Botha (ANC) asked what the gender composition is of the Commission. Ms Seroke said there is one male commissioner on the Gender Commission. Four of the 31 staff members are men. In the final analysis the Commission is not responsible for the figures because Parliament appoints commissioners from nominations by civil society.
Ms Botha (ANC) asked the Commission to account for the surplus of R2 million that appears in the audited financial statement for 1998/1999. Ms Seroke said that these surplus funds, largely donor funds, have been transferred to the following year to carry on the project the funds were marked for.
An ANC member asked whether the Commission had set up any institutions at local level. Does the Commission have any programmes to empower women economically in rural areas?
Ms Seroke said that there is an Office on the Status of Women in the Premier's office in each province. They serve all tiers of government although they do seem to be concentrating on the provincial instead of the local sphere at present. There are exceptions where certain provinces have offices at local level. In response to the second question, Ms Seroke said that the job of the Commission is to monitor civil society and government. The emphasis is also on building capacity and helping the private sector to promote gender equality.
Ms Smuts (DP) asked whether the CGE has interceded in the Woolworth's case in which judgement was recently handed down in the Labour Court. Was it due to the CGE's intervention that the Constitutional Court is now looking at the constitutionality of prohibition on appeals against Labour Court decisions? Commissioner Barmania confirmed that the CGE would be participating in the Woolworths case as an amicus curiae or friend of the Court.
Ms Smuts (DP) asked the delegation to explain the recent loss of their CEO, Colleen Lowe-Morna. Commissioner Barmania explained that an urgent application was brought by Ms Lowe-Morna with Commissioner Faried Essack as first applicant. The cause of action was that Ms Lowe-Morna's rights to fair administrative action had been violated. The case arose from the following facts. Ms Lowe-Morna made accusations against certain Commissioners that information on an ongoing disciplinary matter against a staff member had been leaked to lawyers, without giving substantial facts. She later apologised for her actions and made a verbal offer to resign. The following day she sent a written resignation which the Commission accepted. After its acceptance, she attempted to withdraw the resignation. When the Commission refused to accept the withdrawal she brought the court action on the basis that it constituted unfair procedural action, that this had only constituted an intention to resign. The Court ruled that the offer to resign had been unconditional and no formalities were required. The resignation could therefore only be retracted at the consent of the employer. The Court dismissed the action with costs. It also found that the first applicant had no locus standi. On appeal the judgement was confirmed. Ms Lowe-Morna is now appealing to the Chief Justice while Faried Essack has abandoned the appeal process. She also has an additional action at the CCMA.
Ms Camerer (NNP) asked whether a settlement could not be reached with Commissioner Essack. Where does he currently stand on the issue? She added that, following his appearances before the Portfolio Committee, she had always respected him.
Commissioner Barmania said that Faried Essack joined Ms Lowe-Morna in her action without any notice to the Commission. They are asking for his removal on the basis of a breakdown in trust. He is now using e-mail to sow dissension amongst staff.
Ms Jana (ANC) asked if they have tried to reconcile with Commissioner Essack.
Commissioner Barmania responded that the CGE did try to offer him a settlement especially in respect of the order of costs against them. The CGE had offered to write off his share of the costs if he resigned. Ms Seroke said that the breakdown of trust between them is irretrievable. Furthermore, he is attempting to break down the morale of the staff. Could the Committee not question him on his behaviour?
Ms Smuts (DP) said she was alarmed at the situation. The only way in which a Commissioner of a Chapter 9 body can be removed is on the recommendation of a parliamentary committee. This is a constitutional issue. Ms Camerer (NNP) commented that it was awkward for the Commission to offer Faried Essack inducements to resign. Ms Seroke, as Chair of the Commission, said that the matter has been reported to the Speaker who has taken the matter up with the Executive.
Imam Solomon (ANC) said that the expenditure for 1998/99 indicated a large allocation to projects. What is the nature of these projects and are the concerns of women in the farming sector being addressed?
Ms Nzimande said that they approach the projects on the basis of monitoring and promoting the Commission's point of view. For instance, many people do not understand existing legislation and how it can work for them and they constantly approach the CGE for assistance. The CGE have now developed a Working Women's Manual which pulls together these laws with contact numbers of the relevant organisations. A funded project is now translating the manual and engaging with the labour movement on their role. The private sector does not see itself as a role player and part of this project was a survey to investigate this. The next step was to engage with the captains of industry on the issue. As a result of this 'Gender Link' was created-a project which will show industry how to develop a policy on gender.
Ms Nzimande said it was not possible to engage in the kind of individual interaction suggested by the member although they can provide information for organisations that work on an individual interaction basis and through 'Gender Link'. Lumpsums are set aside for each stage of the project.
Mr Swart (ACDP) asked whether the Commission was not operating in all provinces. Ms Seroke said that it would be ideal for the CGE to have a presence in each province. However, they operate under budgetary constraints. In the provinces where they don't have a presence they can only co-operate with NGOs.
Mr Swart (ACDP) asked the Commission to comment on the amendments to Domestic Violence legislation and the regulations passed in December. Are they helping or hindering the Commission's work? Ms Camerer (NNP) said that the most problematic aspect was the absence of maintenance investigators. The government has said that there is no money for investigators but was the CGE pressuring and lobbying government?
Ms Nzimande said that this was not specifically an issue for the Commission but one it needs to take up.
Ms Botha (ANC) asked if they could please explain what 'Women's Month' entails. Ms Nzimande explained that it commences on 9 August 2000 and was an opportunity to think about women's contribution to building a democracy. The initiative had started as a gender week but it was felt that a week was insufficient time. The concept is now spreading to bodies outside government and the CGE is not opposed to independent events being organised during this month. They would not oppose other government structures or civil society taking over this project.
Ms Camerer (NNP) commented that she had attended a Women in Business Conference in Miami last week and the delegates were very impressed with South Africa's structures and projects.
The Chair, Ms Jana, asked the Chairperson what her vision was for the CGE. Ms Seroke said the first few years were used to build up the Commission - now their mandate was promoting and protecting gender equality. They are finding ways of doing this work such as developing ties with NGOs and so forth. There are exciting new focus areas such as masculinity, religion, culture and so forth. They were also concentrating on developing materials to inject gender sensitivity into school children through educational materials in the curriculum.
Bureau of Justice Assistance
The Bureau was established in May 1997 as a five-year project of the Ministry of Justice and the Vera Institute of Justice with the aim of designing, implementing and evaluating one innovative criminal justice project per year.
The first project undertaken was Pre-Trial Services, a bail reform system completed in September 1999. The second project was the Prosecution Task Force on Car Hijacking, launched in March 1999 and concluding in September 2000. Minister Maduna has requested the Bureau to design a third project, called the Thuthuzela Care Centre, which will strengthen the investigation and prosecution of rape cases.
The current project, the Prosecution Task Force on Car Hijacking, is part of an anti-hijacking initiative led by the National Director of Public Prosecutions. It brings together efforts within the South African Police Services together with a team of prosecutors and detectives based in the Johannesburg Magistrates and High Courts.
The primary focus is a measurable improvement in the investigation, arrest and speedier resolution of such cases in court. The main problem being addressed by the project is the poor communication between prosecutors and police, the lack of legal guidance in police investigation and the lack of accountability among and support for prosecutors.
The project has already had some impact. The conviction rate is up by 47% and it now takes 3-5 months to finalise a case as opposed to 7-9 months before the Task Force. Where opposed, bail has been denied in 95% of cases. No dockets have been lost in over a year. There is now greater community participation by groups such as the community police forums, Tracker and Netstar, which are private security firms, and NGOs. Agreement has been reached with the two security firms that they will allow police at least 24 hours to collect fingerprints from the vehicles recovered. The Task Force may not have had significant cost implications for the Police Services or the Department of Justice but the saving in court time has been significant.
The third project focusing on rape cases will utilise some of the lessons learned during the first two projects. It will be based at GF Jooste Hospitals in the Cape Flats and the Wynberg Sexual Offences Court. It will facilitate a team approach to the investigation of rape cases. The project will be launched in June 2000 and a full evaluation will be done in September 2001.
The Chair, Ms Jana, said that the lack of co-operation between the role players was evident. How could they co-operate more?
Ms India Baird, Director of the Bureau, said that co-operation is critical because crime impacts on all these Departments. With the first hijacking project there was more competition than collaboration. Communication was also a problem. There is now much more of an emphasis on sharing information. There is less opposition from ordinary police officers to the Scorpions unit now that it is clear that they do ordinary groundwork as other officers do. On the second project the collaboration is much more intense. Communities are encouraged to give their input so that vigilantism can be avoided. Prosecutors bring their own concerns to strategy meetings and this facilitates a prosecution-led investigation.
Ms Camerer (NNP) asked whether the first pre-trial project would be built upon or maintained in any way? Ms Baird said that the project was handed to the Department in June last year. Pilot offices are continuing to operate. It has had spin-offs; the Office on the Inspecting Judge on Prisons is requesting their collaboration. However, there is a gap in funding to roll out the project further and the Courts will have to pick up the cost of continuing the project. Interim funds are needed to roll out the project.
Ms Camerer asked what it would cost to roll out the project. Ms Baird said it would take an estimated R300 000 for one year of operation.
An ANC member asked how effective Netstar and Tracker are in combating hijacking. Ms Baird said their co-operation with the police has improved. Their primary interest is in recovering the vehicle but they are now learning to work towards the arrest process as well.
The member asked whether the incidence of rape was higher in the rural or the urban areas. Ms Francis, a researcher at the Bureau, said that the incidence was equally high. But different strategies were required in rural areas. The Bureau is hoping to pilot a project in the Western Cape and adapt it to the rural areas.
Ms Jana (ANC) asked what is being done for children who are victims of rape. Ms Baird 's response was that there are about 30-35 children reported as victims per month at the police stations participating in the pilot project. The Bureau is maintaining contact with the Department of Health on children's issues. They first want to get the process right with adults then extend it to children. Ms Jana (ANC) commented that perhaps it should be the other way around.
Imam Solomon (ANC) asked whether the rape of boys and street children was being looked at. What was being done regarding the hospitalisation of victims? Ms Baird said that men and boys would be included in the project if they report to the test police stations but there is no special study being done on them. She said that emergency medical services are being involved to handle serious injuries of rape victims.
Dr Delport (DP) asked if the success of this model could be extended to the entire prosecution system. Mr Nel (ANC) asked the Bureau to indicate what attempts the Department of Justice has made to orientate itself with the outcomes of the pilot projects.
Ms Baird said that the National Office for Public Prosecutions has embraced the task force model of the second project and has appointed a full time project manager to work with the Bureau to take this project forward.
Board of Sheriffs
The Board is a statutory body created in terms of the Sheriffs Act, as amended. It consists of 6 Sheriffs and 3 members of civil society. There are three new advisory Committees: Public Relations, Legal and Training and Benefits.
There are two challenges facing the Board. It needs to effect transformation, not tokenism. There is a need for greater accountability in terms of their finance and the sheriffs' delivery of service. They are attempting to make sheriffs more responsive to community needs.
Sections 8 and 9 of the Sheriffs Act, which govern the appointment of Board members, are not transformation friendly. The current composition of the Board is not conducive to transformation because the members have certain vested interests to protect.
Adv Cetywayo said that since the Legal Advisory Committee was put in place the Board was looking at the implementation of Section 3(2)(b) of the Sheriffs Act which states:
"The Minister may, after consultation with the Board, appoint more than one sheriff for that particular area to perform the duties and functions assigned to a sheriff".
Secondly they were considering the existing legislative framework in terms of the Constitution and transformation. Section 8 and 9 of the Sheriff's Act are not transformation-friendly as regards the appointment of Board members. The composition of the Board is not conducive to transformation
Section 3(2)(b) is only a disciplinary measure against sheriffs who are not performing. According to Adv Cetywayo it is a transformation tool and not a punitive measure. The Department is not happy with the implementation of Section 3(2)(b). Its implementation is therefore urgent. Although it was agreed that it must be spededily implemented, a minority on the Board still oppposes S 3(2)(b).
Adv Cetywayo thought it significant that more sheriffs of colour are now appointed in lucrative positions. A diploma course at SA Technicon has been developed which gives practical training in this career. This will create a pool from which sheriffs can be appointed.
The Board finds certain aspects of the Magistrates and High Court Rules problematic in terms of their impact on the Sheriffs Act. Furthermore, in terms of the High Court rules a Sheriff can attach and remove property but in terms of the Magistrate Court rules the Sheriff can attach but not remove. These two provisions need to be made uniform. Adv Cetywayo pointed out that board members do not work full time and this constrains them from dealing with these issues.
Ms Jana (ANC) asked for a breakdown in the gender composition of sheriffs. Adv Cetywayo said that in lucrative areas sheriffs are predominantly White and in the poorer areas predominantly Black. Mr Stemmet read the following figures: there 47 African males, 317 White males, 7 Coloured males, 32 White females, 2 African females and 2 Asian females. Only 17% of all positions are economically viable.
Mr Nel (ANC) asked why no headway is being made on the implementation of S3(2)(b), what are the obstacles? Adv Cetywayo said that implementation is the prerogative of the Minister but he had chosen to consult role players to be democratic. She emphasised that in spite of the minority view implementation would be going forward because the majority are in favour of implementation.
Mr Nel (ANC) asked how sheriffs in posts not economically viable survive. Mr Stemmet said that in practice smaller offices are grouped together to make them viable. Many sheriffs have other occupations, some work as farmers, shop keepers and funeral undertakers.
Imam Solomon (ANC) asked how many posts are available in Wynberg as there are only 2 posts filled by persons of colour. Mr Stemmet said that Wynberg is divided into 3 areas therefore three posts were created, two filled by persons of colour. Where posts become vacant they will be filled with persons of colour. The major problem is the way adverts are set out. Also, the Ministry of Justice could assist by renting out vacant offices to the previously disadvantaged. The Board needs sheriffs who are management orientated to drive the vision.
In conclusion Mr Stemmet said that external pressure is needed as transformation is a slow process and requires close monitoring and oversight. The relationship between the Department of Justice and the Board is an important issue.
The Chair, Ms Jana, said that the Board needs to make a full submission especially on the contradictions between High Court and Magistrate Court rules.
The meeting was adjourned.
BOARD FOR SHERIFFS
TO : PORTFOLIO COMMITTEE ON JUSTICE &
DATE : 22 MAY 2000
STEPS TAKEN TO PROMOTE REPRESENTIVITY IN THE SHERIFFS' PROFESSION; AND THE SHERIFFS AMENDMENT ACT, 1998 (ACT 74 OF 1998)
STEPS TAKEN TO PROMOTE REPRESENTIVITY IN THE SHERIFFS' PROFESSION
During November 1994 the Department of Justice arranged the National Consultative Legal Forum at Somerset West. The Board's representatives afterwards convinced the Board that serious steps should be taken inter alia to enhance representivity.
A National Conference of Sheriffs was then called in Bloemfontein during March 1995 where representivity was one of the main topics discussed. Sheriffs were encouraged to make contributions to enhance representivity.
After the conference some sheriffs resigned from their positions with a view to make way for people of colour. The following are examples:-
Soshanguve Moretele Odi
This process is still going on and recently also happened at:-
Stutterheim Whittlesea Peddie
Seymore Ntabethemba Keiskammahoek
Alice Cathcart Ezibeleni
Others agreed to relinquish parts of their areas to be added to neighbouring sheriff areas to make it more economically viable and thus creating viable positions for people of colour. Examples are:-
Cape Town (Maitland) Kempton Park North Roodepoort (Roodepoort South)
The Board for Sheriffs supported the subdivision of certain areas to create more sheriff positions for people from the previous disadvantaged groups as well as females. This happened at:-
Wynberg (3) Pretoria (3) Kempton Park (2)
Verulam (2) Goodwood (2) Mitchells Plain (3)
Johannesburg (3) Roodepoort (2) Randburg (3)
After the implementation of Section 3(2)(b) of the Sheriffs Amendment Act subdivisions will perhaps not be necessary as the Minister will be able to appoint more than one person for an area or district.
At various centres the S A Institute for Sheriffs - at the request of the Board for Sheriffs - assisted new appointees and sheriffs from the former TBVC states and self-governing territories. Examples are:-
Soshanguve Moretele Nebo
Ekangala Kwamahlanga Mbibane
Mdutjana Mkobola Siyabuswa
Odi Sterkspruit Hanover
Umlazi Taung Ganyesa
What is important is that more sheriffs of colour are now appointed in the more lucrative positions. Examples are:-
Roodepoort South Lenasia Goodwood
Wynberg (2 posts) Estcourt Colenso
Mooi River Cullinan Kempton Park North
Bronkhorstspruit Soweto West Kroonstad
When magistrates and clerks of the civil courts approach the office of the Board in connection with acting appointments and Ad Hoc appointments they are reminded of the former Minister of Justice's wish that preference should be given to people of colour and females. This resulted in people of colour and / or females being appointed as acting sheriffs. The following are examples:-
Soweto East Zeerust Johannesburg West
Howick Richmond Impendle
Himeville Ixopo Bulwer
Khayelitsha Cofimvaba Engcobo
Mount Frere Umtata Willowmore
A three year diploma course in civil justice administration was developed together with the S A Technicon. The first students will complete their studies at the end of this year. This will create a pool from which appointments can then be made. Sheriffs have indicated their willingness to give practical training to these students. Approximately thirty students will complete their studies this year. The majority of these students are blacks.
THE SHERIFFS AMENDMENT ACT, 1998 (ACT 74 OF 1998)
The Portfolio Committee has requested the Board to bring the contents of this act to the attention of the sheriffs.
For this purpose the management of the Board's office addressed meetings, workshops of sheriffs countrywide. At some places follow-up training took place.
A full report will be submitted to the Minister in due course.
THIS MEMORANDUM WAS PREPARED BY MR A P STEMMET
MANAGER OF THE BOARD FOR SHERIFFS
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