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JUSTICE PORTFOLIO COMMITTEE
16 March 1999
BUREAU OF JUSTICE ASSISTANCE; SOUTH AFRICAN HUMAN RIGHTS COMMISSION; JUSTICE COLLEGE; OFFICE OF THE PUBLIC PROTECTOR: OVERVIEW
Report on the Office of the Public Protector
Memorandum: Senior Investigator (Military Matters) in the Office of the Public Protector: Level of appointment
Justice College: Progress Report 1998.99
South African Human Rights Commission: Third Annual Report
Bureau of Justice Assistance: Process and Impact of the Pre-Trial Services Demonstration Project
Bureau of Justice Assistance: Overview
The Committee heard hearings of evidence on the budget from the following bodies:
The Bureau of Justice Assistance
The Human Rights Commission
The Justice College
The Public Protector.
Bureau of Justice Assistance
Ms Baird, BJA Director, gave a general overview of their organisation and Mr Paschke presented an assessment report on the Pre-Trial Services Project.
Questions by committee members
Question: Request for comment on the present Constitutional Court challenge to the tightening up of bail provisions provided by the Criminal Procedure Second Amendment Act, 1995.
Response: Cannot comment as the matter is sub judice. The Constitutional Court will give its opinion.
Question: What problems have been encountered with present bail practice?
Response: The committee were referred to report made by the Bureau entitled Profile of Accused Persons and their Charges in Three Magistrates Courts in South Africa (BJ Report 2). This report indicates that there are various discrepancies in bail practice amongst the courts. Further that economic injustice exists because persons cannot afford the set bail amounts.
Question: Request for comment on the success of Pre-Trial Services Project.
Response: The committee were referred to Bail Amounts (see baseline data on page 32 of BJ Report 3: Process and Impact of the Pre-Trial Services Demonstration Project) where it assesses changes in bail decisions. Much of the impact is qualitative such as its effect on decision-making and the integrity of the bail administration system and thus difficult to quantify.
Question: Reference has been made to Mitchell's Plain Magistrates Court's electronic link to the country's criminal record database. Surely it is not legal for a trial magistrate to view an alleged offender's previous convictions?
Response: This system applies only to the bail hearing magistrate who in law is obliged to look at previous convictions when determining bail.
Question: Asked to report on the recommendation that legislative amendments be drafted to facilitate the roll-out of pre-trial services.
Response: The Bureau and the Department of Justice are working together to draft the relevant amendments.
Question: Request for information regard interviews being done online?
Response: In Johannesburg and Durban, ECIS (Electronic Court Information System) is in use. The pre-trial interview is taken down on an online computer and not by hand in order to speed up the process by having the information readily at hand.
South African Human Rights Commission
Mr Pityana of the South African Human Rights Commission (SAHRC) read through important parts of the third annual report of the commission that had recently been released. He informed the parliamentary committee that three commissioners of the SAHRC had resigned during the past year; those were Ms Bam (part-time), Ms Kadalie, Mrs Routier and Mrs Suzman (all full- time). The vacant positions were filled by two new full-time members: Mr Thomas Manthata and Mr Leon Wessels, on duty since 1 January 1999. The third full-time vacancy will be filled in the course of 1999. Mr Pityana stated that the process of filling the vacancies had not been entirely satisfactory. The process of appointment had taken such a considerable time that for most of 1998 the commission had worked with two members short. Overall, the personnel situation had been stabilised by now.
For 1998 the Budget was considerably increased, from R 6,8 million in 1997 to R16, 8 million in 1998. Thanks to the good financial situation of the commission, it was possible to involve more people in research and also to open three new provincial branches in the Eastern Cape (Port Elisabeth), KwaZulu/Natal (Durban) and Northern Province (Pietersburg). Mr Pityana stressed that the SAHRC still needed to become more accessible and visible, especially in rural areas. The staff of the new offices had begun its work in March 1998. Also, more resources were spent on education programmes, especially in rural areas.
The Commission had met with all political parties in Parliament except for one party, which unfortunately had not been able to make itself available for a meeting. Moreover, the SAHRC had met with numerous political parties not represented in Parliament; among those the United Democratic Movement (UDM) which had expressed its wish for the SAHRC to assist political parties with monitoring and protective work. Generally, the political parties had conveyed their favourable stance towards the SAHRC.
The submission of the SAHRC’s reports needed to be revised and improved. Mr Pityana noticed a lack of comprehension in government circles of the role the SAHRC was designed to play. Thus co-operation with certain Ministries and Secretariats had been problematic to the extent that the SAHRC would have repeatedly to ask for information and material which only after a considerable amount of time would be submitted to it.
In several ways, the relationship with the government should be newly structured. Related to this point is the unclear mechanism in which the annual reports are being distributed to and used in Parliament. It seemed that the reports had been tabled but not adequately dealt with thereafter.
In addition to its various reports, the SAHRC had started to publish a regular newsletter.
A lot of work in 1998 had focused and hinged upon the National Action Plan whose development had been finalised.
All in all, the Commission had significantly stabilised and improved the structures necessary for its efficient and meaningful functioning.
Mr Pityana wished for a more careful resource allocation in the next year and a philosophical shift on the part of government bodies to recognise the significance and importance of the SAHRC, seeing that the safeguarding of human rights was fundamental to good governance.
1. Mr Cassim (ANC):
Which ministries have not paid due attention to the authority of the SAHRC and which party has not made itself available to meet the SAHRC? What and how much has the SAHRC done to illustrate its importance and potency?
2. Mr Mzizi (IFP):
What were the SAHRC’s ideas on the treatment of foreigners who came to South Africa to hijack South African citizens, to rape South African women and to seduce their children?
3. Ms Jana (ANC):
How had the SAHRC approached the project of educating grassroots?
How had the Commission prevented overlap with other governmental and non-governmental bodies?
4. Mr de Lange (ANC):
How should the problem with the circulation of SAHRC’s reports be dealt with? Here it is necessary to distinguish between the annual reports which the SAHRC was commissioned to submit to Parliament and other reports on specific issues such as education, prisoners etc. which should possibly be dealt with in the respective parliamentary committees.
1. The relations with various political parties had been very fruitful. The party, which had not been able to make itself available, was the Democratic Party.
2. The treatment of foreigners was in fact very often negatively biased, especially on racist grounds. The SAHRC regarded it as one of its goals to educate against and eliminate such bias and prejudice.
3.Grassroots were primarily to be approached through rural education programmes, such as the SAHRC School Competition Project where pupils were encouraged to produce artwork on matters of Human Rights; through radio programmes and the work of the newly-established offices in the provinces. Clearly, grassroots education was one of the major and difficult tasks and had to be project-driven.
Since the work of the SAHRC was of such broad nature (virtually anything political is connected to human rights), it was the task of the SAHRC to find the adequate niches to operate where no other organisation was performing its work.
4. The annual report was to be presented in front of the Justice Committee. However, for the presentation and submission of other reports, a suitable mechanism was lacking. It often appeared as if reports were submitted to Parliament without their being integrated into parliamentary work.
The Chairperson remarked that a report of the finances and their breakdown into specific areas was necessary.
Mr Pityana replied that a detailed breakdown of the finances would be drafted. The budget situation of 1999 was different in so far as the Department of Finance had allocated the SAHRC ‘s budget in the past but from this year onwards it would be the Justice Department .
The budget of 1999 (allocated by the Justice Department) had experienced a slight decrease from R16,8 million in 1998 (allocated by the Department of Finance) to R15,9 million in 1999.
1. Mr Cassim:
How did the SAHRC investigate and fight corruption in the state administration?
2. Ms Jana:
Complaints of racism in the media had been raised. How did the SAHRC approach this issue?
3. Mr de Lange:
Referring to Mr Cassim’s first and as yet unanswered question, which departments had been less co-operative and/or tardy?
1. Concerns of nepotism and corruption, maladministration and inefficiency were investigated by the Public Protector who had the mandate to do so. However, any cases in which any kind of human right abuse and human rights issue was involved were taken over by the SAHRC.
2. After being commissioned to investigate two specific newspapers on their racist presentation, the SAHRC decided to take a comprehensive look at various media. It had thus undertaken extensive research, called for submissions from various parties (universities etc.) and employed methodologies like discourse analysis in order to investigate a whole range of newspapers. A report on this investigation into racism in newspapers was going to be released soon. Mr Pityana emphasised the substantial role played by newspapers in the education and formation of ideas, which was not to be underestimated in relation to democratisation and reconciliation. The issue of racism was pivotal to SAHRC’s work since it was involved in nearly all reported cases of human rights violations. People complained that the problem of racism had hardly changed in the past five years.
3. Another SAHRC commissioner answered that departments that had been tardy included the Department of Health, the Department of Justice, the Department of Safety and Security and the Department of Defence.
Furthermore, the provincial governments of the Eastern Cape and Northern Province had not responded on the issue of social and economic rights after repeated requests to do so.
The representative of the Justice College (JC) read through the Progress Report of 1998/99. In the period under review, Justice College had presented training to 4,569 officials of the Department of Justice and to 2, 949 officials of other departments.
In 98/99 the Justice College had undergone drastic transformation in the effort to give effect to the aims set out in Justice Vision 2000. The transformation involved staff composition and course contents. Regarding staff, the College’s composition of management and law lecturers was transformed to balance the ratio in terms of both race and gender.
To promote the principle of judicial independence, JC had restructured its directorates to "Judicial training" and "General training". Furthermore it is proposed that a third directorate be formed as "Human Resource Development, Training and Bursaries".
Further transformation involved decentralisation (empowerment of regional offices), telematic training (video conferencing), quality assurance and the upgrading of notes. In addition to these processes, JC was involved in the transformation of content through numerous special projects. Regional co-operation has been taken up with Namibia (Department of Justice), Swaziland and Lesotho, Botswana, Zimbabwe, Angola and Mozambique.
In terms of foreign assistance, various programmes are/will be based at Justice College, among them the Canada-South Africa Justice Linkage Project, the United Nations Development Programme: Human Rights Institutional Strengthening Project, the International Criminal Investigative Training Assistance Programme, the UN Drug Control Programme, the Commonwealth Secretariat, the United States Information Service, the Judicial Conference of the US, the Raoul Wallenberg Institute (Lund, Sweden), the Royal Danish Embassy and USAID.
1. Mr de Lange:
Statistics about the budget allocation are needed.
2. Mr Mzizi:
How are students selected and what does the training include?
3. Ms Chohan-Khota (ANC):
What does the JC do to make courses more accessible and approachable and more service-orientated?
4. Ms Jana:
How is the training for magistrates structured?
1. Statistics would be provided.
2. The quality of the applicants varied to a great degree. Especially concerning language proficiency and rhetorical training, applicants showed vast differences. The JC regretted that the format of an LLB at one university was of a very different standard to that of another. Prosecutors in general needed better training.
3. Regarding the policy of decentralisation, in excess of 20 week’s training was presented on a decentralised basis and in collaboration with the decentralised offices.
4. Magisterial students wrote exams at the end of the training.
Mr de Lange commented that the issue of varying standards of LLB degrees should be taken up with the Department of Education.
The Public Protector:
Report on the Office of the Public Protector : 1998/1999
Mr Baqwa, the Public Protector, submitted the annual report of the Office of the Public Protector for 1998/1999 to the Portfolio Committee on Justice. He remarked that although the recent amendments to the Public Protector Act provided for a permanent parliamentary committee to be established to attend to matters pertaining to his office, this was only going to be set up after the elections.
Mr Baqwa reported that the Office of the Public Protector had the power to investigate:
abuse or unjustifiable exercise of power or improper conduct
improper or unlawful enrichment and
any act which resulted in unlawful or improper prejudice to any other person
in any sphere of government including institutions in which this state was the majority or controlling shareholder and any public entity. Remedial actions on his part include mediation, conciliation and negotiation.
Mr Baqwa felt that the independence of his office had been compromised by several decisions made in the past year, the first of them being the fact that the allocation of funds had been changed for the budget of 1998/1999.
In the past, the budget of the Public Protector had been given through the Justice Department as allocated by State Expenditure. The latter had usually earmarked the funds, which were then allocated to the Office via the Justice Vote. However funds had not been earmarked by State Expenditure for the 1998/1999 budget so the Public Protector had to negotiate this budget with the Department of Justice. He believed this severely compromised the independence of his Office.
Secondly, Mr Baqwa felt the independence of his office was being threatened by the fact that no longer should the Deputy Public Protector be appointed by the President himself (like the Public Protector had been) but by the Minister of Justice. Mr Baqwa expressed his disappointment about the fact that the Portfolio Committee on Justice had recommended to Parliament that provisions be amended to enable the Minister of Justice to appoint the Deputy Public Protector. In his view Parliament should reconsider this provision as early as possible.
Generally the impression had been created that the Office of the Public Protector formed part of the Department of Justice or was answerable and accountable to it. Mr Baqwa had on several occasions attempted to rectify this perception, but he felt that this misconception was on the increase at all levels of government and society.
Concerning human resources, the Office had twelve investigators and hoped to employ about eight more within the next months. Mr Baqwa had also appointed three Chief Investigators, a Chief Administration Officer and a Public Relations Officer. According to a stud, which the Department of Public Service had conducted for him, the Office would need about 42 investigators in the next three to five years.
It had been agreed with the Department of Defence that an investigator with specialist knowledge of military affairs was going to be appointed in the office of the Public Protector. The appointment had already been effected.
The workload pressuring the National Office of the Public Protector was going to be decentralised to regional offices, which still have to be established. The Office of the former Ombudsman of Bophuthatswana was still operating in terms of constitutional transitional arrangements. It would be incorporated as a regional office of the Public Protector in the North West Province. The amalgamation was envisaged for 1 April 1999.
Furthermore, the Provincial Government of the Eastern Cape had offered to provide temporarily the Office of the Public Protector with infrastructure and resources in order to establish a Regional Office in the Eastern Cape. This office would be operational as of 1 May 1999. Unfortunately, the Office of the former Transkei Ombudsman had too little infrastructure to be transformed into a Regional Office. Apart from that, it was situated at Umtata and not at Bisho, the seat of the Provincial Government, thus being geographically unsuitable for a Regional Office.
On financial matters, the Public Protector was allocated R7 438 000 for the 1998/99 financial year: The breakdown was thus:
Personnel Expenditure: R5 025 000
Administrative Expenditure: R1 611 000
Stores: R329 000
Equipment: R101 000
Professional and Special Services: R 266 000
Miscellaneous Expenditure: R 106 000.
For 1999/2000 it had requested a budget of R23 535 000, but was allocated only R 15 399 000. Mr Baqwa claimed that the shortfall of R 8136 000 was going to prevent him from appointing the required number of investigators.
To fight corruption in a collective and co-ordinated manner, the Office of the Public Protector was in contact with other anti-corruption bodies such as the Heath Special Investigating Unit, the Anti-Corruption Unit of the South African Police Service, the Office of the Auditor-General, the Department of Justice and the Public Service Commission.
Investigated cases included:
Investigation into the affairs of the Central Energy Fund
Investigation of allegations of impropriety pertaining to the appointment of Mr Mboweni as Governor of the Reserve Bank
Investigation of allegations of involvement of senior members of the ANC in the development of a drug called Virodene.
Investigation of the affairs of the Independent Broadcasting Authority
Investigation of the Mpumalanga Rural Housing Project
Investigation of the conservation of the Kaaimans River Valley and the estuary.
Investigation of certain appointments in diplomatic positions
Investigation of allegations of nepotism pertaining to several appointments in the public service.
The results of some of these investigations have been published in Special Reports submitted to Parliament.
During 1998 Mr Baqwa’s office registered 3558 complaints. Unfortunately, it happened too often that allegations and complaints were raised by government officials who would later (at the time of investigation) refuse to provide necessary information. In other cases, complaints had been given to newspapers before they were even conveyed to the Public Protector. Mr Baqwa found this behaviour extremely irresponsible.
Recent amendments to the Public Protector Act regulated matters such as confidentiality of information, time limitation (complaints to be lodged with the Public Protector within a period of two years from the date of the occurrence reported), preliminary investigation. Furthermore, reports will now also be tabled in the National Council of Provinces.
Finally, Mr Baqwa informed the Committee that his office would host the Seventh International Conference of the International Ombudsman Institute in 2000. The Conference is held every four years and will be hosted by an African country for the first time next year. 400 foreign delegates as well as 200 local delegates and guests are expected for the four days in October 2000.
Questions by committee members:
Mr de Lange: Which officials conveyed allegations but refused to provide the Public Protector with necessary information for investigation? The Public Protector should set up a list of those officials and hand it on to the Justice Committee.
Answer: A list of people who conveyed allegations without supplying necessary information would be provided.
Memorandum about the level of appointment of the Senior Investigator (Military Matters) in the Office of the Public Protector
In connection with the level of appointment of the Investigator (Military Matters) there had been some disagreement and misunderstanding between the Office of the Public Protector and the Standing Committee on Defence and the Department of Defence.
Mr Baqwa remarked that, notwithstanding a previous agreement, the Deputy Secretary of Defence had in a letter of 4 June 1998 proposed to appoint a Military Ombudsman at the level of a Director in the Civil Service. Mr Baqwa had decided against this because he saw no reason to appoint the Investigator (Military Matters) on a higher level than any other investigator in his office. All other investigators, Mr Baqwa claimed, also had specialised knowledge in their fields. He therefore appointed the Investigator (Military Matters) on the level of Senior Legal Administration Officer, like any other investigator. Should the workload regarding military matters increase to such an extent that it justifies a separate unit, one could look at the appointment of a Chief Investigator (Director) at that stage.
Members of the Standing Committee on Defence who were present, objected strongly to Mr Baqwa’s decision. They stated that the nature of the appointment was such that few people who were actually qualified to deal with such investigations into military matters would not apply for the job because of its low rank. By contrast, an investigator on military matters with the mere rank of a Senior Legal Administration Officer was not going to be regarded as incorporating the adequate authority and competence to approach high generals of the SANDF. The investigator Mr Baqwa had appointed was therefore going to be restricted to dealing with issues from lower ranks only.
Mr Baqwa replied that there seemed to be a misunderstanding about the role of the Investigator (Military Matters): "That person will not be the Ombudsman for Military Matters. The Public Protector is the Military Ombudsman and it is the Public Protector who will take the final decision. The Investigator (Military Matters) will do the investigation and provide the specialist knowledge within the Office of the Public Protector to put the Public Protector in a position to take the final decision. That investigator will work under the direction and the control of the Public Protector, who of course, is on a level much higher level than a director in the Civil Service."
With the help of Mr de Lange’s mediation skills, Mr Baqwa and the two present members of the Standing Committee on Defence eventually agreed to meet at a separate venue to discuss and resolve the issue.
The meeting was adjourned and the committee will next meet on 13 March 1999.
Committee Members present:
1. Mr De Lange (Chairperson)
2. Mr Nel
3. Ms L Ngwane
4. Mr Solomons
5. Ms Jana
6. Ms Chohan- Khota
7. Mr Cassim
8. Mr Mzizi
8. Mr RH Groenewald
9. Mr Mahlangu
and four further members.
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