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JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
10 March 2005
DEPARTMENT STRATEGIC PLAN AND BUDGET 2005/06: BRIEFING BY MINISTRY
Chairperson: Ms F Chohan-Kota (ANC)
Briefing by the Minister (see Appendix)
The Ministry briefly outlined to the Committee the challenges that faced the Department, its plans regarding the dispensation of justice, the progress made in court services, the Department's efforts to address gender issues and the colloquium to review the criminal justice system.
Some of the issues that the Committee focused on during the discussion were:
- retention of prosecutors to ensure continuity in court services
- the monopoly within the sheriff system
- the importance of reviewing minimum sentencing in the Criminal Laws Amendment Act
- the role that could be played by Legal Aid Board in the administration of justice
- specialised courts and the minimal utilisation of the Small Claims Court
- the Service Charter for Victims of Crime.
- the Criminal Assets Recovery Account
The Chair welcomed the Deputy Minister and the Department’s delegation team led by its Acting Director-General, Ms J Ngeva, noting that the Minister , Ms Brigitte Mabandla would be joining the meeting a little later as she had been delayed in a meeting with the President. She asked the Deputy Minister to address the Committee in the meanwhile on some of the areas handling by him within the Ministry.
Briefing by Deputy Minister
Adv Johan de Lange (Deputy Minister of Justice and Constitutional Affairs) thanked the Committee for the opportunity and formally apologised on the Minister’s behalf. He noted that his presentation would briefly touch on some issues, especially those which were not covered in the Minister’s presentation paper. Amongst the issues that had been delegated to him within the Ministry were those relating to the sheriffs’ service, which formed the basis of the civil law system. Acknowledging the challenges still faced by the Department in this regard, he however noted that over the past ten years the sheriffs service had been radically transformed to ensure that it was representative of South Africa’s population diversity. A number of meetings had been held between the Sheriffs Board and the Ministry on certain matters, including the important role they could play in establishing these in rest of the continent.
He raised the concern about the minimal utilisation of the Small Claims Court and that this institution could play a vital role in the administration of justice and give broader access to justice. However, in order to address this and ensure the effective functioning of the Small Claims Court system they had entered into a three-year project with the Swiss government. A conference on this had been held under the previous Ministry. As it was imperative to receive the Minister’s approval before the process could be kick-started. The Department was awaiting the Minister’s approval. He would be meeting with attorneys to find out what could be done to establish circuit courts within the Small Claims Courts, especially in small towns.
He would be meeting with the Chapter 9 institutions falling under the Department to discuss, amongst other things, their business plan and how the problem of overlapping in their jurisdictions could be addressed.
They would be introducing legislation soon on South African Human Rights Commission process and procedure. They intended dealing with the law relating to the appointment of judicial officers and other statutory bodies. A database containing all the names of people who might be available for the appointment as magistrates or judges would be developed and they planned to create a trust in this regard. However, this had not yet been approved by the Ministry.
The Chair thanked the Deputy Minister for his input and thereafter formally welcomed the Minister to the meeting and asked her to give her presentation.
Briefing by Minister
Ms Brigitte Mabandla (Minister of Justice and Constitutional Affairs) having thanked the Committee for its patience, thereafter addressed it on the challenges facing the Department and noted that she hope to have further meetings with the Committee during the course of the year (see presentation).
The Chair commented that it was very gratifying that the process of repealing the old Black Administration Act was finally in the pipeline.
Mr C Burgess (ID) was concerned about the large number of prosecutors exiting the court service year after year and asked if there were any plans in place to address this issue.
The Minister acknowledged that the problem of staff turnover was a serious one as it affected the whole of the public service and not only the Department. The Cabinet Lekgotla had identified it as needing urgent attention. The Department, in conjunction with the Department of Public Service and Administration, would identify all the problematic areas in court services with a view to strengthening them and building their capacity.
The Deputy Minister added that the problem of staff turnover, especially in the Prosecuting Authority, was not unique as prosecutors all over the world leave after completion of their five-year service. The problem here revolved around the salary scale and prosecutors would opt for the bar while others would become magistrates. This needed to be addressed as a matter of urgency as it crippled continuity in the courts.
Ms S Camerer (DA) welcomed the idea of a colloquium noting that it would be very interesting especially taking into account what the Minister had once said about the constitutionality of the separation of powers. She asked if the Minister envisaged any constitutional amendments in this regard and whether the Committee would also form part of the processes.
The Minister replied that in the process of interpreting their Constitution, South Africans should take into account their own context. This did not mean that various precedents developed throughout the world should be ignored, but South Africans through dialogue should define every concept in terms of their values without implanting other jurisdictional models. Responding to the question, she said that while Parliament, like all other role players including ordinary members of the community, might participate in the process, however they should not expect to be partners with the Department.
Imam G Solomon (ANC) asked the Deputy Minister whether there were structures in place to discipline those sheriffs who violate civil procedures.
The Deputy Minister responded that indeed there were disciplinary measures in place but for such to be effectively implemented they still need to put proper structures on the ground in order to capacitate their civil section, of which the sheriffs are a part.
Mr L Joubert (IFP) was concerned about the monopoly which the sheriffs enjoyed over their jurisdictions. He asked if there were plans in place to address this.
The Deputy Minister acknowledged that indeed there was a monopoly in the sheriff operations. In order to address that, the Department had to develop pilot projects aiming at creating competition and ensuring that there was fairness in the service.
The Chair raised a concern about the transformation process of appointing sheriffs as she felt that the process was not transparent at all.
The Deputy Minister acknowledged the concern and noted that the situation was exacerbated by the fact that were four structures responsible for the appointment of the sheriffs. As a result this created numerous difficulties within the system. However, processes were in place to address this and ensure that there was only one structure involved in the appointment of the sheriffs.
Ms C Johnson (NNP) noted that the minimum sentencing legislation had been criticised widely, she asked whether non-government organisations and the public at large would be given an opportunity to comment on this as the Act would be coming up for review at the end of April 2005.
The Minister acknowledged that various criticisms had been levelled against the Criminal Laws Amendment Act. As a result, a committee was being appointed to investigate and come up with a review of certain provisions before the end of April 2005.
The Deputy Minister added that indeed during the parliamentary process all interested groups would be afforded an opportunity to make their comments to the Committee aiming at assisting it in coming up with practical solutions to the problems of prison overcrowding in South Africa.
The Chair was of the view that the Legal Aid Board could play a meaningful role in correcting the maladministration of justice in the court system and ensure that people sentenced to time in a reformatory were not left to rot in prison cells.
Mr S Swart (ACDP) asked the Committee to be given more details on this proposed review of the Criminal Justice System.
The Chair asked clarity regarding the processes to capacitate the Office of Chief Justice
The Deputy Minister responded that the process had quietly advanced as the main head of the Office had since been appointed and now they were in the process of identifying the actual staff that would be needed.
The Chair asked the Ministry to update the Committee regarding the issue of the Deputy Public Protector.
The Deputy Minister responded that the process to appoint the Deputy Public Protector was in the pipeline and Parliament would soon be requested to set the motion in place for such an appointment.
Ms Camerer (DA) asked the Ministry to clarify how the Department envisaged the Service Charter for Victims of Crime to operate.
The Minister said that the Committee would remember that a report on the funding of a Victim Service Charter was tabled by the previous Ministry. Following a Cabinet advisory an implementation mechanism was developed by the former Minister, in conjunction with other Ministers from the cluster and the Minister of Social Development. However, while part of the fund would be used for victims of violent crimes, the Department would have to look at the matter holistically in order to provide a long term solutions.
The Deputy Minister added that the funding of the Service Charter would have enormous implications for the country, the emphasis should be on empowering the victims of crimes and giving better service rather than compensating them.
The Chair asked the Ministry to clarify how the Service Charter for Victims of Crime toll free number would operate in practice.
The Minister said that the Service Charter aimed at providing resources and information to empower the victims of crimes. An amount of about R5 million had been put aside. This amount would be used, amongst other things, to provide training to the facilitators and ensure that a 24 hour toll free number was established. A detailed report on the operational plan of the Service Charter would be provided by the Department in due course.
Ms Camerer (DA) asked for clarity on the liquidation of the Master’s Office.
The Minister acknowledged that stability was really needed in the Office of the Master. They had received a report on the matter and it would be given to Cabinet for consideration and thereafter be made a public document.
Ms Camerer (DA) noted that Chapter 9 institutions had repeatedly requested to be funded separately and not form part of the Department’s Budget. She asked how the Ministry intend to deal with this matter.
The Deputy Minister was of the view that they had passed the stage of discussing the independence of Chapter 9 institutions and felt that the focus should rather be on service delivery. He said that Chapter 9 institutions should become an indispensable part of the people they served and not just serve as mere talk shops.
The Minister also felt that Chapter 9 institutions had not really been maximally utilised to entrench constitutional democracy. Therefore means were being put in place to assist them to effectively realise their mandates and avoid overlaps between themselves.
Mr Joubert (IFP) noted the enormous amount of work which the civil service had to deal with and the amount paid in terms of stamp duty. He asked the Department if they were not contemplating increasing the stamp duty amount of R70.
The Deputy Minister replied that they would look at the matter and thereafter give their response. The Minister agreed that the Ministry would have to look at this critically to see whether it could be an option in its endeavour to strengthen the civil service.
Ms Camerer (DA) asked if there were available statistics for the number of cases that the Small Claims Court had dealt with during the past two years.
The Deputy Minister acknowledged that these Courts had not been given enough resources to fulfil their role in the justice community. He assured Members that processes were in place to address this and ensure that the Small Claims Court were being used effectively.
The Deputy Minister agreed with a comment made by Imam Solomon about specialised structures and stated that this was an issue that the Minister had highlighted. On the one hand, it was good to create these specialised structures but on the other hand, it did create problems in terms of unevenness and unequal distribution of resources. The Minister had stated firmly that this matter must be addressed.
Mr M Malahlela (ANC) asked how far had the Department gone in ensuring the distribution of the Criminal Assets Recovery Account (CARA).
The Minister noted that they would brief the Committee on the Account at a latter stage. Suffice to say that there was R60 million allocated to the Account of which R15 million had already been processed and put into the Account. She noted that the matter of its distribution was still being considered at Cabinet level.
The Chair asked when the Department’s new Director-General would be appointed following the deployment of Adv Pikoli to the National Directorate of Public Prosecutions.
The Minister acknowledging that for the Department to move forward there had to be stability within the structure as a whole. They had advertised the post and had received applications. Currently they were in the process of short-listing the candidates and hopefully the new Director-General would be appointed by the end of May. A new post, the Chief Operating Officer (COO), had been created in the office of the Director-General to strengthen that office and ensure continuity in the Department.
The Chair thanked the Ministry for its informative briefing and for the openness they had displayed throughout the process of interaction.
The Minister pointed out that a full report on the Department’s operational methods would be presented by the Department during the course of its budget briefing and the Ministry’s input had been to give only an overview.
The meeting was adjourned.
BRIEFING BY MS BRIGITTE MABANDLA, MP, MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT, ON THURSDAY 10 MARCH 2005
It is an honour and a welcome Opportunity for me to appear in front of this Portfolio Committee. I trust that we will continue to work together during this Second Session of our Third Democratic Parliament an consolidate the important strides we have made during the first decade of our democracy. Thank you for inviting us to share with you the progress we are making in our efforts for the effective and efficient administration of justice. We will also share with you the challenges we face and our vision for the Department in the year ahead and the next five years.
I am certain that through this kind of interaction and your value inputs will fine tune our progress and equip us to address the challenges we face and help us realise the vision of making South Africa safe and secure for all those who live in it.
The Government's Programme of Action, which President Mbeki outlined for the first time in May last year, requires of all to strife towards the improvement of the quality of life of all our people, consolidation our social cohesion, and achieve higher rates of economic growth and development.
As I stated last year during this briefing, our role in the duty to improve the safety and security of all our citizens and communities is critical. This duty is rooted in the provision of improved access to equality, swift and visible justice and the transformation of our institutions and systems.
IMPROVING THE EFFECTIVENESS AND EFFICIENCY OF THE JUSTICE SYSTEM
There are several initiatives and projects that we have implemented in order to fast track the transformation of the judicial system and to improve the efficiency of the courts. The following are some of the key initiatives and their current status report:
Broad Transformation of the justice system
The process of broadly transforming the justice system is still on track We have created an environment for robust and vibrant discourse on the transformation of the judiciary. We have factored the transformation agenda into the discussions of the Judicial Services Commission and the Magistrates' Commission and the Heads of Courts which is an informal structure to facilitate discussions on substantive transformational issues. I have also set working sessions with Heads of Courts, legal practitioners and academics to deliberate of selected themes of the transformation process to guide the policy development process. A critical colloquium is set for mid April 2005 for discussions on the themes relating to the separation of powers; the Superior Courts Bill; the Justice College Bill; Bills on the complaints handling mechanism for the judiciary, and the language policy for courts. A number of issue papers covering identified aspects of the Bills in question will be prepared by judicial officers, practitioners and other experts to form the basis for the discussions at the colloquium.
The transformation initiatives include development of a comprehensive Human Resource Development strategy to enhance the pool from which women and black practitioners can be prepared for appointment to the bench and to advance career mobility in the Department and within the Justice family at large. This includes the revitalisation of the Justice College and the use of Alternative Dispute Resolution (ADR) mechanisms to ensure public participation in conflict resolution as a means of enabling ordinary citizens to play a role in the justice-related activities in a developmental state. This will also alleviate the courts of the workload of petty crimes and disputes which can be resolved outside the formal court system. Positive development which has also received extensive media coverage is the acknowledgement by the Heads of Courts of the existence of elements of racism within the judicial system and a special committee has been established to investigate the extent to which racism exist within the judiciary. The committee is expected to complete its investigation early in April this year and will make a report to the Chief Justice. The Chief Justice will convey the results of the investigation to me upon which I will take appropriate steps.
Regarding the transformation of the justice system in general, we have set a process in place to develop a policy framework or Blueprint to guide the transformation process. The Blueprint will be submitted to Cabinet, together with key legislative proposals to fast track the transformation process before the end of August 2005.
Re Aga Boswa
Last year we presented to the Committee the Re Aga Boswa project through which we seek to reengineer and optimise business processes at the courts and redesign organizational structures to capacitate courts to deliver an efficient and effective service to all end users. The model was further refined and consolidated in line with the inputs of the Committee and we have started with preparation for the rollout of the model to Gauteng, Western Cape and North West Provinces and Eastern Cape in the 2005/6 financial year. The remainder of the provinces will be accommodated in the' first quarter of the 2006/7 financial year.
The project has yielded some efficiency gains. Prior to the advent of the principle of separation of powers derived from the new constitutional order, 26 Chief Magistrates, eight Regional Court Presidents and 65 sub-cluster heads performed both administrative and judicial work. The appointment of Court Managers, which is part of the Re Aga Boswa initiative, ensures that the management of the budget and court facilities lie with court managers and senior judicial officers are released back to the courts to perform judicial work and increase the productivity of the courts. Our attainment of a clean audit report, the first in a decade, is partly due to the capacitation of the courts.
The Modernisation Programme
We have identified modernisation as one of the key elements of the transformation of the judicial system. The Department has conducted intensive planning and preparations over the past few years toward the modernisation of the Department and the services it renders. The initiatives undertaken are encapsulated within the e-Justice Programme. The two essential components of this Programme are the establishment of a modern communications infrastructure providing for connectivity and the development of business productivity solutions. Five years ago, there were no more than 200 users that were provided with computers and internet connectivity.
This year, the Department completed a major exercise providing nearly 10,000 judges, magistrates, prosecutors and administrative personnel with such equipment. This has placed within easy electronic access to judges. magistrates and prosecutors, vital legal research. The video postponement initiative which allows cases to be postponed through a video-link between the court and prison is one recent initiative which is being piloted in KwaZulu-Natal. This exercise will yield huge benefits to the system in that it will save time for the trial-ready cases to be attended speedily and save enormous costs and escape risks associated with the transportation of prisoners.
Case Flow Management
As part of the transformation of the judicial system the case flow management concept is being institutionalised as a long-term intervention to change and monitor the manner in which cases are dealt with throughout the judicial process. Central to this initiative is the delivery of effective justice expeditiously within acceptable time limits in cognisance of the known axiom that "Justice delayed is justice denied". The institutionalisation of the court management model and the strengthening of the offices of the Registrars of the courts are intended provide support for the new caseflow management initiatives. An e-scheduler system has been developed and will be deployed in 46 courts from 01 April 2005 to improve our case management system.
Review of the Criminal Justice System
The Department will this year lead a comprehensive review of the entire Criminal Justice System, an initiative of the JCPS announced by the President during the his State of the nation address in May 2004. The review will focus on the auditing and reviewing of systems, practices and removing blockades across the criminal justice system.
Submissions will be made to Cabinet shortly regarding the composition of the Committee and procedures and processes it will follow in conducting the review in accordance with the Terms of Reference already endorsed by Cabinet in principle. The review is due to commence in April this year.
Service Charter for Victims of Crime
The Department has developed an implementation plan for the Charter for the Victims of Crime approved by Cabinet in November 2004. Training programmes for judicial offices, prosecutors and other officials dealing with victims are on-going and a toll free number will be launched to attend to victims who still experiences difficulties in getting services from the courts.
Minimum sentence legislation
Some criticisms have been made from several quarters of the possible negative impact the minimum sentence legislation. Certain provisions of the Act comes up for review at the end of April 2005 and a joint team of the Department and Department of Correctional Services is conducting an investigation into the matter to be better advised of the appropriate course of action to take before the expiry of the said provisions.
Black Administration Act
The investigation into the repeal of the Black Administration Act has been completed by the South African Law Reform Commission. Draft legislation to repeal the Act and to bring the Customary Law of Succession into line with the Constitution and a recent Constitutional Court decision are receiving urgent attention and I hope to introduce these two Bills into Parliament early in the second half of the Parliamentary programme for this year. The same can be said in respect of a draft Bill that is intended to address the concerns raised by the Constitutional Court in the case involving the attachment of low cost housing.
In line with President Mbeki's directive during the recent State-of-the- Nation Address, we will speed up the establishment of Community Courts beyond the pilot projects. By the end of this financial year the Department shall have established two community courts per province. We will also operationalise more Sexual Offences Courts.
In this regard feasibility studies have been completed for the establishment of a further 28 permanent Sexual Offences Courts in various centres around the country in the coming financial year.
Lastly, I want to touch on the issue of the resource allocation to the Department. The effective delivery of justice in this country is constrained by budget limitations. The budget situation has to be reviewed to improve our services to the people. On the advise of the Ministers of Finance and Public Service and Administration a joint task team has been established to review the historically under funded areas such as court personnel, training (including judicial education) security and modernisation. Some of these activities have been sustained on donor-funding and need to be institutionalised within the MTEF. The report of the task team and the outcome of the discussions with Ministers of Finance and Department of Public Service and Administration will be shared with yourselves upon completion of the review.
Once again thank you for inviting us to this Portfolio Committee briefing today and I wish you well for the rest of the year.