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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
31 May 2001
MASTER OF THE HIGH COURT: REVIEW
Documents handed out:
Establishment of Justice Resources Trust
Strategy on Procedures for Appointment of Liquidators and Trustees
Commercialisation of the Master’s Division
The Committee discussed matters relating to the Master of the High Court. There were many issues that were considered such as the lack of an effective plan of rationalization of the courts as well as the backlog experienced in the Masters Offices.
Mr Jiyane (Department of Justice) talked about the need to rationalise the courts in order that they may work with effectively with the Offices of the Master. The number of court staff currently stands at 18 012 prosecutors and magistrates which is insufficient. Increasing staff would necessitate the construction of more courts.
The Chair said that he had asked for specific areas where there was a need for the construction of new courts. He had also wanted to know the performance of existing courts in the areas proposed. It would be redundant to construct more courts in a city or town where court sessions were not normally busy.
The Chair asked if the Department had taken any steps in determining which areas have been earmarked for the construction of more courts.
Mr Jiyane (Department of Justice) replied that the Department has not yet done this because it is still awaiting some funds. If it had been allocated the money it would re-prioritize because its focal area of concern was around the regional courts for that is where the case backlog exists. The Department has about 19 vacant posts of regional court magistrates existing in KwaZulu-Natal, as well as in the Orange Free State where much of the backlog exists.
The Department is expanding the courts to reach the northern parts of KwaZulu Natal. There are facilities that are not being utilized, for example, the Ulundi High Court. Therefore, the idea is not so much the creation of additional infrastructure.
The Chair asked the Department’s representatives for some motivation for the Committee to ask for a larger budget allocation from the Justice minister.
Mr McKenzie replied that what was raised by the Chairperson fell within the ambit of the rightsizing and costing exercise. The Department is currently engaged in assessing the crime trend, the geographic crime pattern analysis and rightsizing the footprint of justice. This means that the Department would be able to produce ratios in output activities. This will be helpful in determining convictions per rand spent and so forth. If you take convictions per rand spent and you list six hundred courts you would then be able to see where a particular court sits as far as efficiency, effectiveness and productivity is concerned, he said.
The Chair interjected and said that that was the reply he expected but the Committee could not ask for money until the rightsizing and costing exercise that Mr McKenzie referred to had been done.
Mr McKenzie replied that the work study that had been conducted on 1812 posts is in the context of the recent past. It has been established that the need exists and that it has not been established within the integrated geographic footprint analysis.
The Chair said that the need is created in a different context because it was not known what the criteria is on which this need has been established. It is known that one and a half years ago Mr Ngcuka did certain things that improved productivity. He later asked Mr McKenzie to identify certain things for which the Committee would have to ask so that a larger amount of money may be allocated.
Mr McKenzie replied that the needs analysis is done, and has been done only with due processes in relation to the current justice framework. The costing exercise means that there should be a costing of a future structure which would integrate a lot of projects that are currently being done and which may address a future footprint which may be different from the existing one.
The Chairperson said that it was difficult for him to agree with Mr McKenzie as the costing was five or six years ago and many things have changed in the meantime. He wanted something concrete done about this situation. He, however added that he did not expect these things to be resolved immediately, as long as there was a process through which they could be resolved. He invited Mr Jiyane to go through a process of identifying the areas so that the Department of Justice could advertise for the posts that it had said are available. He asked Mr Jiyane and McKenzie if they could do this before 12 June 2001.
Master’s Office: discussion with Mr Tshishonga
The Chair firstly stated that he was aware of the problems in this area and that solutions were urgently needed. He commended the creation of the Unit within the Department to deal with the problems in the Masters Office. Would the Department’s representatives make an input of how they would use the Unit to rectify the problems. How are specific problems to be addressed? This would obviously take account of the rationalization process in which the Department is currently engaged.
Mr Tshishonga (Deputy Director General of the Department of Justice) reiterated the questions that he had raised in the past meeting -who was the Chief Master and when did the vacancy exist since he left?
Mr Oosthuizen requested to be given a package in 1994. He vacated the office after he had received the money. Therefore, there has not been a chief Master since then. The Chair said this was shocking.
The second issue related to the lease at Pretoria’s Master’s Office. Mr Tshishonga acknowledged that it was true that the lease has not been signed because there was no place that offered cheaper rates. He has been informed that there is a less expensive deal that has been reached. This will last for five years.
The Chair quickly asked if this catered for the extra space that was needed as there are files lying in the passages and on the floor.
Mr Tshishonga replied that the deal does not include that, and that this was merely a separate issue.
The Chairperson wanted a clear address on the solution proposed by the Department to deal with the past problems, including those that related to the separation of black deceased estates from being administered by the Master of the High Court.
Mr Tshishonga stated the Members had been provided with four documents - the Business Plan, Justice Resources Trust, Procedures for Appointment of Liquidators and Trustees and Commercialization of the Master’s Division.
The Chair asked what the Department wanted to achieve with the Bill. The Act provides for the creation of the Master’s Office at each High Court. There is now a problem because the constitution has granted a High Court status to local divisions. It is also common cause that there were no Master’s Offices in the Local divisions.
Mr Tshishonga replied that the Department still has to rationalise some of the existing Offices such as in the Eastern Cape where there are currently three Master’s Offices. It is believed that the Eastern Cape could manage with one Office. The Department is also looking at having estate controllers in each magistrate office. This person will be accountable to the Assistant Master.
The Chair commented that this must be a long term plan which was not indicated in the legislation.
Mr Tshishonga conceded that this was not indicated in the legislation but the Department said it is urgent as people in magistrate offices are not receiving any services.
The Chair inquired why these people are not receiving services.
Mr Tshishonga replied that a very limited number of persons had estate assets in the former dispensation and magistrates did not regard estates of black persons seriously. A maintenance clerk dealt with administration of estates. However, the situation has now changed. There must be properly qualified persons to deal with deceased black estates.
The Chair asked if there was any business plan and a budget set aside for this.
Mr Tshishonga said the Department was motivating for this. The Department needs money to get to that situation.
The Chair retorted that the Department could not get money if there was no business plan stating how it was to achieve its goals. He said Mr Tshishonga had to fight for priorities even within the Department.
Tshishonga replied that the Department does have documents setting out how much the Department needs and that he would provide this document in due course.
The Chair asked if this document had been approved by the Minister or if it was merely the Department’s plan at this stage.
Tshishonga did not specify whether this document had been approved by the Minister but did say that the Department requested more than what had been allocated to the Masters Office, which was R47 million. The reason was that the bigger chunk of this gets allocated to personnel salaries leaving very little remaining for operational functions. This is the reason why the Department has requested an additional amount which brings the total budget to R54 million which was still too little.
The Chair commented that it would have been better if there were statistics already prepared for the approval of the Minister.
The Chair based his question on the Bill in relation to the historical setting in the old Transvaal province where there were three Masters Offices; in Venda, Bophutatswana and Pretoria. Would these three Offices have only one jurisdiction or would they fall under three different jurisdictional areas, because the Bill does not deal with this issue.
Tshishonga replied that according to the Department’s plan to rationalize courts there would be a Masters Office in Pietersburg for the Northern Province. This means that the existing Masters Office currently in Venda would be moved to Pietersburg. Another Masters Office is the North West Masters Office situated in Mmabatho. The Department intends to retain it where it is. It will, however, be upgraded. The Pretoria Masters Office will be for the Gauteng Province.
The Chair said that his understanding was that Masters Offices are found in High Courts – which are usually provincial divisions of the High Court. Bophutatswana is not known as the North West High Court or North West Provincial Division. This court is still known as the Boputhatswana High Court. There was a problem with the Bill, hence the Committee is trying to rewrite it. There first had to be a rationalization of the courts. Masters Offices were to be determined subsequent to this process.
Tshishonga replied that the current position is that the Pretoria Masters Office covers Thohoyandou and Mmabatho. After the Bill has been promulgated into an Act of Parliament jurisdiction of this court would be extended to cover more areas than those covered before. He asked Mr van der Merwe to elaborate a bit on the scope fact that it was the Pretoria court that had jurisdiction over the Thohoyandou and Mmabatho Guardians Fund.
Mr van der Merwe (Department of Justice) replied that the problem in the past was that services provided by these offices were not extended throughout the country. Services have not been extended enough throughout the country. The situation during the previous era has however opened Masters offices slightly to Mmabatho, Thohoyandou, Bisho and Umtata. So the Masters presence throughout the country has been extended. The Department of justice would like to keep those courts there because if they are upgraded they would facilitate the rendering of a service to the public. The Department merely has to examine the problems that hinder the provision of efficient services in these courts and try to upgrade them such as the Pretoria Masters Office 'is a monster of the office to manage' because it currently covers the whole of the Transvaal area. There should be a presence of Masters offices in other areas in Eastern Transvaal and other areas.
The Chair replied that he only wanted to know how to rationalize the existing Masters offices. Should the jurisdiction of the Transvaal be extended to cover the entire area even to include the other offices of the Master that are in Thohoyandou and Bophutatswana? What did the Department want to achieve in the interim?
Mr van der Merwe replied that the Department wanted. those courts to remain with their jurisdiction at this stage because they are rendering a service to the people who fall under their jurisdiction.
Mr Tshishonga agreed with Mr van der Merwe that there was chaos in the former TBVC states. Some of the courts do not even have a Master.
The Chair insisted that he wanted to know what the solution was to the existing problems.
Mr Tshishonga outlined some of the problems to the effect that even in Thohoyandou (Venda) the estates are dealt with by a prosecutor – not a properly trained and appointed Master. Surely this needs somebody who is skilled in the area of handling guardians’ fund and estates and removing prosecutors from performing these duties.
The Chair insisted yet again about the issue of the rationalization of the Masters Office and drew a conclusion that this does not appear to have been discussed in any detail so that there may be a concrete solution to the existing problems.
Tshishonga replied that the Masters are complaining about the Bills being passed without their consultation.
The Chair replied that he was puzzled by Mr Tshishonga’s response to one of the Masters who addressed the Committee claiming to be acting on behalf of all other Masters.
Mr Mgidi proposed that it was not likely that the Chairperson was going to achieve the desired outcome or response as to what the solution might be at this stage and suggested that there should perhaps be a discussion around the issue of rationalization of Masters Offices.
Mr van der Merwe replied that he can answer the Chair’s question. It was the desire of the Department to have the Master’s presence to be at every High Court. This was not so difficult. Clause 3 of the Bill permits the Minister to appoint an assistant Master at any other place.
The Chair answered that the effect of that was different from what the Department was saying. The effect of this was to say that the jurisdiction of the current masters offices must be retained. This was contradictory to what Mr Tshishonga had said that the other Masters offices are totally chaotic. His opinion was that he could not pass a Bill that would entrench the chaos, hence his expectation for an explanation around the rationalization of the Masters offices.
Van der Mewe replied that that was true of the Pretoria Masters Office as it is also in a chaotic state. The problems of the Department have been far reaching as it has never had the resources to deal with these issues.
Mr Tshishonga concurred with Mr Mgidi that the Department be given a week’s time consider the matter and revert to Parliament with a suggested solution.
It was resolved that this issue would be looked into in the following week.
The Chair then asked further on the business plan that the Department has and asked when it was to be presented to the Minister and the Director General for approval.
Tshishonga replied that this has all been approved. The business plan has been presented to the Board and approved. The Justice Resources Trust has been presented to the Board and has been approved. The business plan foresees the creation of a Masters Office for each High Court.
Mr Mzizi (IFP) said that Mr Mgidi’s suggestion was cogent and that it should be taken into account.
Mr J Landers (ANC) complained of a host of problems that they discovered in the Masters offices during their visit to the courts, such as rows upon rows of box files on the floor which did not have proper filing cabinets and computers that were not working. There were no calculators and so forth. Copies of the documents were not kept elsewhere. He thought that it was wholly unnecessary to have a business plan just for the installation of proper filing cabinets at these offices and a security system. This was very logical and practical, he said.
Mr Van der Merwe replied that some of these problems are already being alleviated with the installation of computer network. The Department would monitor that the system works in other offices properly.
Mr Tshishonga added that the Department should at least be given till the end of next week to formulate a consolidated approach and solution towards Masters offices.
The Chair agreed but said that this would have to be before the 13 June 2001, the next date in which this Bill will be considered.
The Chair commented that the Department should do its work in line with the rationalization of the courts. He suggested that the business plan should be approached in its phases.
Tshishonga acknowledged that there is no room for filing in most Masters Offices. But this has been raised with procurement division, finance division etc. Pietermaritzburg has already identified offices nearby that could be converted into storage rooms.
The Chair stressed that Mr Tshishonga must speak to the Minister and to the Director General about the rationalization issue. He also wanted a Report dealing with all the matters that have been raised. This must have been done by the end of June.
The meeting was adjourned.