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JUSTICE PORTFOLIO COMMITTEE
24 May 2001
BUDGET REVIEW: CONTINUED
Documents handed out
Briefing to the Portfolio Committee on Budget 2001
The Department of Justice is reprioritising its budget. There are many areas which remain unfunded including legislation (such as the Equality legislation) which was passed but cannot be implemented due to lack of funds. Approximately R285 million is needed within the Court Structure to address current priority needs.
Advocate de Lange asked the Department to develop a concept which could be used for maintenance and domestic violence matters. This should be prioritised. He suggested a sort of one-stop-shop at each court and asked the Department to determine what this would comprise.
The Director General of the Department of Justice was present with various representatives from the Department of Justice.
The Committee is to engage with the Department on the reprioritisation of this year’s budget. The Department must explain fully why they need more money per item. The Committee will then decide if they will support the Department in their request.
They will engage on next year's budget after July.
The Chief Executive Office
The DG had to reprioritise the budget to give meaning to the Department's new focus on activities which were prioritised. The Department has to justify each activity in line with their mandate.
In the CEOs office Advocate de Lange said that all items remain the same except for two items which are moved to next year. One of these items is the Contingency Fund. R10.4 million in the CEOs office has been reprioritised.
Mr Mackenzie explained that this means that for contingency there will be no money in the Department. There is relatively no discretionary fund anymore. The money is being used for something else because it was needed elsewhere.
The Chief Financial Office
The DG said that this Unit's main function is to ensure that there is sufficient finance management in the Department. Setting up a costing unit is critically important. It will give the Department an indication of what they have to do.
Mr Mackenzie said that they must establish a costing unit. The CSIR has a crime research area which is established across the country. The Department has held talks with them to establish that the Department's Unit can be held in their Crime Centre. The CSIR will mentor them. They will research and then cost what they need. They must know what their needs are and cost it in order to give the Committee a blueprint for the rolling out of Justice. They can then go to a new system as they can afford it.
The DG said that this is the core business of the Department. The allocation of resources must reflect this. Money has been allocated to upgrading infrastructure.
Small claims court are in danger of collapsing therefore an extra R 5.2 million is allocated. Money has also been allocated to fund the Justice College to train prosecutors.
The Department needs approximately R285 million to address unfunded current priority needs.
In terms of human resources they need R220 million for personnel. This is an approved staff complement. From this there are posts which have not been filled because there is no money. There are also posts which have been filled but there is no money to pay the staff. This amounts to unauthorised expenditure. More personnel are needed. Personnel are also needed for legislation passed such as the Equality legislation.
The Department needs money for the implementation of the Equality legislation. The question they were facing was whether they were going to use ordinary courts to serve as Equality courts or whether they were going to use special Equality Courts. This is a political decision which will determine whether they need additional staff or not.
Ms Camerer (NNP) asked if the maintenance investigators and the lay assessors were already in the job.
The Department replied that maintenance investigators and court managers have not been employed. These programs will not get off the ground unless they get funding for it.
Advocate de Lange said that he heard that the productivity of the Sexual Offences Court is low. He said that the Committee would like to know how many hours per day a court sits.
The Department replied that the Sexual Offences Courts is not only about productivity. Their purpose is also to deal with issues in a more sensitive way.
Mr Mzizi (ANC) said that the Saturday courts were created to alleviate backlogs. Why are these courts set out separately from case backlogs?
Mr Mackenzie replied that the Saturday Courts are short-term and the other courts operate over a longer-term period.
In response to a question by Mr Mahlangu (ANC, co-chair) Mr Mackenzie replied that Mpumalanga and the Eastern Cape did not submit. The Eastern Cape's amount is
R 6,3 million. Mpumalanga is close to the amount of the Free State (between R10 - 11 million).
Advocate Masutha (ANC) commented that when they visited the provinces the prosecutors in the Northern Cape did not know what a conviction rate is. There is also a backlog at these courts. He asked for a comment.
The DG replied that they have 600 magistrates and 800 prosecutors who require formal training. They have funding to do on the spot training for these people. The training will contribute to alleviating the backlog.
Mr Lever (DP) asked if there has been an attempt to cost the extra work that the magistrates do.
The Department said that this is costed at R 3,75 million.
The DG said that they are trying to take away the administrative functions of magistrates so that they could focus on their core functions. Donor funding enables the setting up of pilot sites where there will be court managers (to do administrative work). There will be six of these pilot projects.
Ms Botha (ANC) asked what formal training is. She also asked what the best route is in terms of the untrained staff. Should they be trained or rather deployed?
The DG replied that many magistrates (especially the old ones in the former homelands) did not have any formal training. Prosecutors must now go for training at the Justice College. They must pass an examination before they can go to court.
Advocate de Lange asked if legislation that has not been implemented (such as Equality legislation) had been catered for in the document.
Mr Rudman said that they had.
Advocate de Lange asked why the Administrative Review Council (which was part of the Regulations) was set out as more of a priority than the Equality courts and the maintenance investigators. He said that this Council is not a priority.
The DG replied that they will be guided by the Committee. They thought that it was necessary to have one Act implemented fully.
Advocate de Lange said that the Committee took this out of the legislation and put the possibility of a Council into the regulations. There is nothing in the legislation that cannot be implemented without it. It is very low on the scale of priorities. Equality courts and maintenance investigators are more important.
Advocate Masutha said that the restructure of the judiciary has been marked as an important issue for the Department this year. There is a bill on this which will come before Parliament. Courts will have to be created in some provinces (with buildings and judges). In other places judges will have to be rationalised.
In light of this he asked what the shortfall of the High Court was for restructure. Why was the Department not asking for money for this restructure?
Mr Rudman replied that they are preparing a discussion document regarding this issue. The document may be ready at the end of the month. They will only look at the Bill when this document has been finalised. The Department is under the impression that the Committee will only finalise the Bill some time next year (and not in this year).
Advocate de Lange replied that when the Bill is being drafted there must be an implementation plan next to it.
Advocate de Lange asked what the drought relief was (referring to the absorption of drought relief workers).
The Department replied that this is inherited from the Bantustans. It is costly for the Department. People were brought on board without work. This was a political decision. It is a problem. Most of these people are unskilled. If they are retrenched then the retrenchment packages will save the government money.
Mr Mackenzie said that R 100 million has been paid out to these workers without them doing any work (they do some cleaning).
Advocate de Lange asked what the Department's association with Black Lawyers Association was.
The Department replied that they place young lawyers with firms. This program is coming to an end. They will now focus more on strengthening the criminal justice system.
Advocate de Lange asked for an update on the domestic violence situation.
The Department said that the clerks of the court are implementing this. They are not qualified. They have no legal background. They need domestic violence officers with a legal, or a psychology or a sociology background.
Advocate de Lange asked if there was a plan to train people to have these skills.
Mr Mackenzie said that there is a plan.
The Department said that a thorough audit was done with maintenance. Two people went to all the courts. They sent a message to courts to supply them with domestic violence statistics but the courts did not do this.
Advocate de Lange asked stated that one person should handle maintenance and domestic violence. These are both family issues. They must get a concept (a one-stop-shop at each court). They must determine what this will comprise. They need professional staff, administrative staff, and other people with a certain skill level that can fulfil in between functions. This must be prioritised.
Human Resources Allocation
The Director-General, Mr Pikoli drew attention to several features including : .
-The proposed severance packages for 'drought relief workers' in the former homelands who were employed as cleaners but surplus to staff requirements. .
-The phasing out of a program for the placement of 34 black trainee candidate attorneys in the private sector. Mr Pikoli clarified this by saying that as the program was donor-funded in large part, it was never viewed as being a permanent program. He emphasised that the department was still committed to developing similar opportunities. .
-The existence of a R41 million non-funded salary increase for Prosecutors and Magistrates dating from 1999 .
-The fact that for the last five years, the department had been unable to pay merit awards and incremental or 'notch' increases due to the limited budget. This was having a negative effect on morale.
At this point the Chair asked for further clarity with regard to the specifics of these shortfalls in relation to magistrates, Deputy Directors of Public Prosecutions etc. He also asked that the issue of Departmental differences in salary be addressed . He said there were people holding the same position and with the same qualifications and duration of service who were being paid much less in one department than their counterparts in other departments. There was general agreement that this issue would be examined.
The Chair asked what provisions were made for domestic violence in the revised allocations. Clarity was sought over the type of people who were to be employed to deal with these issues, specifically what qualifications were necessary and what title they would hold.
The Office of the Director-General stated that while the Act refers to clerks, there was an understanding that the type of person sought to address these issues would be someone with a degree, and a sociological, psychological as well as some legal background.
The Chair raised the possibility that this position could be combined with the maintenance officer, in effect creating one position to deal with domestic violence, maintenance etc. A court-by-court assessment was needed, similar to that which had been done for the issue of maintenance. The key recommendation was that there be budget allocations for legal staff, administrative staff and a core of trained staff to deal with specialist functions such as Domestic Violence, and then some spending on the infrastructure of courts.
Ms. Camerer (NNP) raised the question of how a pay increase had been approved for Prosecutors and Magistrates which resulted in a shortfall for the department.
Mr Mackenzie clarified the issue, stating that as a result of industrial action in 1999 the pay rise had been approved and paid since the date in question, but that the budget had not been adjusted and the Treasury had never approved the increase.
The Chair interjected that this constituted unapproved expenditure, which then went to SCOPA, where it was approved. Consequently, the shortfall grew every year. The potential solution to this was with the new level of clarity provided by documents such as the document under discussion, the Treasury was in a position to see exactly what allocation was needed and could make decisions accordingly.
The Chair made the comment that since it had been approved, the department had to pay.
Mr MacKenzie said that he hoped they could meet with Treasury as soon as possible to raise these issues.
Advocate Masutha (ANC) asked for clarity regarding the phasing out of the government placement program for black trainee candidate attorneys. Justice had a responsibility not just to deal with justice, but also to engage with wider issues in society.
The Chair agreed but he felt that paying for someone to work in private practice with government funds may not be the best way of achieving these aims.
Mr Pikoli provided clarification, saying that there were two groups, one group paid by private firms and the other placed in the Offices of the State Attorney. The department was responsible for topping up the salaries not covered by donor funding.
Advocate Masutha asked if there were any programs planned to carry this type of activity on. He also asked, with regard to the 'drought relief' workers, if, since Justice out-sources for cleaning etc. they would have sufficient staff capacity to take over the functions of these workers after retrenchment.
Mr Mackenzie stated that the severance package was best, since it would result in considerable savings in the long-term for the government, and that at this stage, these people were employed with no work for them to do.
A question was raised on the issue of genital mutilation which was part of the core functions of the department, and whether or not this was encroaching on traditional customs.
The Office of the Director-General stated that this was how relevant community services were provided and the point was made that culture is secondary to equality.
Mr Landers (ANC) asked if this should not fall under the Law Commission or the Human Rights Commission.
It was stated that some women's issues do not fall under these bodies commitments.
Mr Rudman also pointed out that this issue was part of various SADC treaties and thus the government had committed itself in this regard. Research was being done to clarify how the law applied to these issues, including genital mutilation and witchcraft.
The Chair drew attention to the fact that this issue was related to a policy articulated under Minister Tshabalala.
Advocate Masutha asked to what extent there had been collaboration within the department over research into the Witchcraft Act.
It was stated that at the moment, this research was being brought together.
Advocate Masutha raised a point of order regarding the answers to his question concerning the equality programs.
Mr Pikoli stated that this particular program was never meant to be permanent, owing to the fact that it was donor-funded. He further added that the department's focus was now on strengthening of the criminal justice system.
Mr MacKenzie requested that he be allowed to raise a further issue, which should be discussed before tomorrow's meeting. This concerned the new idea of a policy reserve fund to be given to the judiciary and magistracy. He indicated that he had spoken to Chaskalson and he had said that it was a good idea.
The Chair asked for clarification.
Mr MacKenzie said that, in the past, there had been requests for money for libraries etc. and that sometimes the money was spent on books and sometimes not. Rather than the department deciding what to spend this money on, judiciary should be provided with a reserve fund, for one-off expenses etc. so that they could decide what was most useful to them. As regards the magistracy, they had asked for their car and travel allowances to be re-instated. While the department could not commit to this on an ongoing basis, it was felt that this self-administered fund might allow the magistrates some relief in this regard.
The Chair expressed serious misgivings over this fund. He stated that he agreed with the sentiments, but foresaw disasters, with the smaller courts being left out of the distribution of the fund. He asked what the money would be spent on and requested more information, as well as some idea of how this was to be implemented.
Mr Pikoli said however that he and the Minister had committed themselves to cars for regional magistrates as an indication of their commitment to attempts at raising the status of magistrates and thus boost morale.
The Chair recognised that if it was a policy decision, that was fine, but recommended that it be built into salaries, rather than make it part of a self-administered reserve fund.
Advocate Masutha raised the point that magistrates in the provinces had expressed concern that the situation would arise where they would, after a day in court, have to get into a taxi with the family of someone they had convicted. This constituted a threat to their personal safety. Another problem was the possibility that magistrates would have to get lifts to out-of-the-way courts with prosecutors, which would have a negative effect on public perceptions, suggesting that the magistrate and the prosecutor were colluding.
Mr Mgidi (ANC) suggested that a complete policy framework was necessary since, administering the fund in the absence of pre-determined criteria could lead to tension.
Mr Pikoli suggested that the sub-committee of the Magistrates Commission would take responsibility for drafting such a policy framework.
The Chair said that this would again cause problems, since there was some feeling that the Magistrate's Commission was not operating correctly and urged Mr Pikoli not to let the policy reserves be controlled by the Magistrates Commission, since effectively this was giving them the power to give themselves bonuses.
The meeting was adjourned.