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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 March 2005
LEGAL Advisory, Human ResourceS, Information and Communication UnitS: Department BRIEFINGS
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Office of the Chief State Law Adviser briefing
Human Resources Unit PowerPoint presentation
Information and Communication Unit PowerPoint presentation
The Committee was briefed by the Legal Advisory Services, Human Resources and Public Education and Communication branches of the Department of Justice and Constitutional Development. The main issues included the appearance of state attorneys in High Courts, the newly formed Constitutional Litigation Unit, the racial and gender breakdown of magistrates, changes to the Department’s website and educating communities on their constitutional and human rights.
The Department Legal Advisory Services Unit briefed the Committee on the structure of the office and changes implemented; the appearance of state attorneys in High Courts; the aims of the new Constitutional Litigation Unit; functions and projects of the International Affairs division; and the pardons procedures.
The Department Human Resources Business Unit continued its presentation on the racial and gender breakdown of magistrates on all levels; as well as recent cases of misconduct cases in the Department.
The Public Education and Communication branch outlined the changes implemented to the Department website and new intranet. These two portals provided Department staff and the general public with a useful tool to research human rights issues and access up to date information. They presented work done in educating the communities in constitutional and human rights issues during workshops and with the aid of learning materials. They expressed concern about the lack of government funding for his unit.
Legal Advisory Services briefing
Mr E Daniels, Head of Legal Advisory Services, briefed the Committee on the structure of the office and recent changes. He spoke about the appearances of state attorneys in High Courts and presented the newly formed Constitutional Litigation Unit with its focus and aims. Mr Daniels explained how the International Affairs division of his office functioned and in what projects it was presently involved. He ended with a brief recount of the pardons procedure with which his office dealt.
Mr Daniels explained that the new structure of the office now resembled similar structures found in other countries. Each province had its own state attorney. However, Limpopo, Mpumalanga and the North West were serviced from Gauteng. In his view, the office in Pretoria was overstaffed. The Chairperson noted that this needed to be taken into consideration during the rightsizing of the offices.
Ms F Chohan-Khota stated that it was necessary to develop some kind of barometer to gauge the successes of the office with respect to its clients and suggested that a report back system should be introduced showing how cases had been resolved.
Mr Daniels showed how the number of High Court appearances made by state attorneys during the past year had increased and how more black attorneys were being entrusted with these duties. He illustrated how this had saved the state money. Mr Daniels noted the high cost involved when briefing outside attorneys with such cases as these fees were in many instances exceptionally high and smacked of overcharging. He conceded that the State had been involved in a number of liability cases where Departments had not acted promptly or correctly.
The Chairperson suggested implementing a policy that would limit the amount to be spent on such litigation. Every other department had to go through a public tender procedure. Similar procedures had to be conceived for the legal advisory services. The office could help the transformation process by giving young black advocates briefs and developing a policy on a rational basis that involved an objective process to gather a pool of advocates on which the office could rely.
Mr B Magwanishe (ANC) noted that one of the points to consider in such a process was whether or not advocates did pro deo work.
Mr Daniels explained that the office was actively following a strategy of spreading briefs among promising black advocates and that in his experience the best and most cost effective results came from female lawyers. The cost of such cases was usually 30 to 50% less than compared to the costs incurred by male counterparts.
Mr Daniels further explained the workings of the training committees and the recording of work time by state attorneys on work sheets. He introduced the newly formed Constitutional Litigation Unit which had dealt with 103 mattes in court to date. He described the aim of this unit to help draft papers in constitutional matters, give advice and go to court. The office was considering expanding the concept and adding further specialised units (tax, land, water law) depending on the experience gathered with the present unit.
The Chairperson acknowledged the vital role this unit was playing as constitutional questions constantly appeared and the courts needed to establish important precedents. Mr Daniels agreed and stated that the unit was setting a new standard in this field of work. There had been some animosity towards this unit from the private practice field as the impression was that this sort of work ought to be reserved for their profession.
Mr Daniels outlined the work done by the international affairs division of his office. The main emphasis was dealing with mutual legal assistance treaties as well as extradition treaties with other states. These usually took the shape of bilateral agreements, but in some cases multilateral agreements were in place. The division represented the Department at various international bodies such as the United Nations, the African Union and the International Criminal Court.
Mr Daniels noted that this field was very dynamic but in his opinion the division was sometimes too reactive and not proactive enough. There was an urgent need to monitor international developments in order to report back to government in good time on important changes.
The Chairperson noted that this was a field where the division was functioning unsatisfactorily. Often such treaties were not made use of and in the case of neighbouring states (Mozambique) such treaties were not in place and in other instances they were not linked to extradition treaties that inhibited their effectiveness. There was no useful auditing system about where the country stood with regard to mutual legal assistance and often other departments were not involved in the process although their interests were also at stake.
Mr Daniels explained that progress had been made in this regard. The Continental Legal Assistance Agreement had been finalized and was about to be discussed in the African Union. Furthermore, the European Union Convention on Mutual Legal Assistance had replaced many bilateral agreements with European states. South Africa was in the process of assenting to this convention. At present there existed 153 mutual legal assistance treaties.
The Chairperson urged Mr Daniels to inform the Committee on the results of these developments. It was vital for the Committee to be updated regularly and these results should feature in the next report. He did mention that the Extradition Act was in the process of being redrafted.
Mr G Solomon (ANC) asked how the budget needed to be read if the costs of briefing advocates amounted to R174 million, while the budget only provided for R135 million, and how the litigation costs incurred by the state through its actions could be decreased.
Mr Daniels explained that the legal costs were recovered from the clients. The issue of liability of the state was primarily attributed to a few provinces. He had spoken to the responsible persons and was optimistic that these cases would decrease. In many instances it was a question of lacking experience.
Ms Camerer (DA) asked how the guidelines attached to the application form for pardons had to be understood and what sort of weight they carried. She regularly dealt with persons applying for pardons and was interested in the addition of the criteria of acknowledgement of guilt and expression of remorse.
Mr Daniels said that each case was carefully evaluated as every person had the right to fair administrative action. The guidelines were taken into consideration in this process and gave the applicants an idea of what to expect.
Human Resources briefing
Mr Sekawana of the Human Resources Business Unit conducted a presentation of the racial and gender breakdown of the magistrates. He outlined the percentages of African, White, Indian and Coloured magistrates in South Africa on all levels as well as the gender breakdown of these staff. He also discussed the vacancies and misconduct cases in the Department.
The Chairperson commented that there had been an improvement with regard to the racial transformation but the low number of female magistrates, especially in the lower levels, was unacceptable. This had to be communicated to the Magistrates’ Commission for their urgent attention. Mr Sekawana also dealt with the statistics pertaining to misconduct cases. In total, 278 cases of misconduct had been reported in the last year and 20 suspensions had been instituted since December 2004.
He outlined the procedure employees could utilise in case of alcohol dependency and the help offered by the Department. The employees could either chose their own rehabilitation centre or make use of the centre appointed by the Department.
Mr Sekawana dealt with the vacancies in the various units and explained the complexities that arose when additional, temporary, appointments were made (i.e. by court managers) and the additional staff was not reflected centrally. This skewed the numbers and budgets prepared by the unit. The Chairperson expressed her concern at this development. Own appointments should not be allowed to take on such proportions.
Mr Sekawana explained that in the ‘Court Services’ business unit, 366 posts were not filled. He agreed, however, that this figure could be misleading, as the number of posts actually approved had to be considered as being too low. He mentioned the new court structure implemented in Kwazulu-Natal. If benchmarked successfully, this model would be transplanted to the various provinces. The Chairperson expressed that in her view it was still too early to make any recommendations on the model for the rest of the country as the experiences with it were not yet sufficient and it was unclear whether the model could simply be transferred to other regions.
Mr M Malahlela (ANC) inquired why additional staff such as consultants was employed when there were still posts vacant and whether the situation with regard to managerial vacancies had improved.
Mr Sekawana explained that the courts often appointed additional staff without considering vacancy levels. With regard to the vacancies in managerial posts he added that the situation was different in each of the provinces, but it still posed a problem.
The Chairperson stressed that the practice of employing temporary staff without consultation with Human Resources was unacceptable, as it created an artificial sense of wellbeing and security with regard to staff matters while actually there were vital shortages. It was no good relying on volunteers and part-time workers as this practise distorted reality.
Public Education and Communication briefing
Mr C Barrows, head of the Public Education and Communication branch outlined the changes which his office had implemented to the Department’s website and presented the new intranet. These two portals afforded the Department as well as the general public a useful tool to research human rights issues and access up to date information. He presented the work done in educating the communities in constitutional and human rights issues during workshops and with the aid of learning materials. He expressed concern for the lack of government funding of his unit.
The office was pleased to announce that the amount and type of information available on the website had greatly improved. The various business units had been able to place documents on the intranet and the office then sifted through the material and loaded contributions of public interest onto the official website for public access. In addition, judgements from High Courts as well as the Supreme Court of Appeal would soon be accessible via the intranet of the Department. In addition, there were notices of upcoming events, information on the Department, mission and strategy statements, a structure outline and the names of the Portfolio Committee Members on the site. Also included were a diagram of the Department and links to legislation and bills.
The Chairperson commended the office on this new look website. She was, however, concerned at the vast amount of information and whether the system would support additional documents.
Ms du Preez of the Public Education and Communication branch explained that at present they did not experience any hosting problems but a time might come when they would have to move. She also informed the Committee on the content available on the homepage of the Department. Further to the online access to judgements, the site contained a media room with current events, information on vacancies, an overview of the various commissions at work, links to documents and forms for court procedure. A major highlight was going to be the translated version of the Constitution.
Mr Magwanishe asked whether there were links to other organisations on the homepage. The office explained that this was the case.
The Chairperson noted that this instrument was very important as people searched the website when they had a concrete problem and could quickly find solutions and answers.
Mr Barrows added that his office was also at work at grass roots level in the communities informing the members of the community about their constitutional rights. The office regularly held workshops and distributed learning material. He stated that in his opinion human rights education was vitally important in the upbringing of young South Africans and this added value to their lives.
The office worked together closely with schools and frequently held service fairs where each unit presented a stall which could interact face to face with members of the community. A further project was co-operation with the agricultural sector in an effort to educate farm employees in human rights matters. The primary objective of all these endeavours was to instil a sense of human rights values in the population.
Ms Chohan-Khota agreed with Mr Barrows that this objective was very important. There was a need to infuse the constitutional values into the society and the website offered a good opportunity to do this.
Mr Barrows raised his concern about the lack of funding by the Department for his unit. He demonstrated that for all the publications, impact studies and other projects, the costs incurred his office meant that they had to raise additional funds from donations.
The Chairperson expressed that she understood the position of the office and that the financial outlook was improving. She also said that other departments and units were worse off and did not have a cause that could be marketed as successfully as Human Rights Education.
The meeting was adjourned.
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