Department of Justice 2006/07 Budget and Strategic Plan: briefings

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
2 May 2006
DEPARTMENT OF JUSTICE 2006/07 BUDGET AND STRATEGIC PLAN: BRIEFINGS

Chairperson: Kgoshi L Mokoena (ANC) [Limpopo]

Documents handed out
Briefing by Deputy Minister of Justice
Presentation by Acting CFO on Budget and Strategic Plan
Presentation by Director-General on Budget and Strategic Plan (please email [email protected])
Presentation by Chief Operations Officer – Part 1
Presentation by Chief Operations Officer – Part 2
Progress Report on Management of Monies in Trust – Part 1
Progress Report on Management of Monies in Trust – Part 2
Letter from previous CFO, Mr Alan MacKenzie, to Acting CFO in response to Sunday Times article (see Appendix)
Sunday Times article "Justice bosses cooked books" – 9 April 2006

SUMMARY
During the morning session the briefing by the Deputy Minister of Justice prefaced the directorate-specific inputs that would be made by the Department of Justice later that day and for the remainder of the week. He provided a brief overview of the Department’s priorities for the 2006/7 financial year, and highlighted its Medium Term Strategic Framework which was aimed at enhancing organisational efficiency within the Department. The Department would be entering into a Public-Private partnership to resolve the problem with monies-in-trust. Efforts were underway to ensure that all government departments used the State Law Advisors by 2007/8, and the Department will continue to prioritise the provision of access to justice for vulnerable groups. The Deputy Minister also responded to the media article which alleged that the Superior Courts and the Constitution Fourteenth Amendment Bills were unconstitutional, as well as the Sunday Times article which accused the Department of ‘hiding’ R840 million in unspent public funds.

During the discussion the Deputy Minister clarified the functioning of the Justice College. He explained that the process involving the re-demarcation of the jurisdiction of magistrates courts would involve both a quantitative and qualitative assessment of the services provided by the Department, which would take quite a bit of time. The Department was strengthening its infrastructure delivery by taking over that portion of its budget from the Department of Public Works, which would eradicate the unnecessary delays and paperwork currently experienced. The harmonisation of salaries of all legal officers within the Department and ultimately government as a whole was needed to prevent undesirable practices such as the migration of prosecutors to the magistracy. The lack of security measures at courts is a huge problem, and some of the funds allocated to the Department for the current financial year were re-prioritised to provide further security measures at the courts. A Member expressed concern at the fact that poor people were imprisoned simply because they did not have even R10 needed for bail. The Deputy Minister replied that the bail dispensation was changed precisely to prevent such occurrences, but the problem was that the bail laws were not applied properly which, secondly, meant that jails were crowded with people who should not really be there. Legislation was being drafted to introduce a complaints mechanism for judges in South Africa, which was currently absent, and in due course the disciplinary proceedings that currently applied to magistrates would be brought in line with that mechanism.

The Director-General of Justice briefed the Committee on the strategic plan over the next three years, by focusing on each of the Department’s key strategic objectives of ensuring access to justice for all, improving its organisational efficiency and the measures taken to transforming the justice service. He concluded his input by outlining the Department’s key challenges for 2006.

After lunch, the acting Chief Financial Officer gave a brief overview of the Department’s financial performance. The financial conduct of the Department was addressed in response to the allegations in the Sunday Times. Members raised concerns about budget allocations, and under expenditure. Clarity was sought on figures quoted in the presentation. The Committee questioned the acting Chief Financial Officer on communication with the Sunday Times regarding the article which reflected inaccurately on the Department's accounting practices.

MINUTES
Morning session
Introduction by Chairperson
The Chair welcomed all and extended a special welcome to the Deputy Minister, Adv J de Lange, and the delegation from the Department.

Briefing by Department of Justice
The Deputy Minister conducted the briefing which highlighted the important milestone of the tenth anniversary of the Constitution that would be celebrated next week, the rationalisation of the high court system and the importance of the harmonisation of the court structure and the transformation and strengthening of the judiciary, especially the role of the Superior Courts and the Constitution Fourteenth Amendment Bills. He explained that, despite arguments to the contrary, the Bills were not unconstitutional and did not violate the doctrine of the separation of powers. The Department reported an unqualified audit, which was welcomed. He informed Members that the re-evaluation of the Department’s organisational design was done to ensure the successful implementation of its Medium Term Strategy Framework (MTSF), which included the introduction of the Chief Operations Officer post and the appointment of a new Director-General.

The Department received additional allocations of R500 million and R1, 3 million in the Medium Term Expenditure Framework (MTEF) period to improve access to justice services and to increase capacity. He stated that the Department would provide greater detail on the re-prioritisation and would address some of the issues raised in the media, which he thought "were quite ridiculous". In fact the Parliamentary journalists who attended the Portfolio Committee meeting at which the re-prioritisations were explained would not write such an article, because they witnessed the Department fully explain the unspent funds, the re-prioritised amounts and the funds requested to be rolled over. An elaborate National Treasury procedure had to be followed when re-prioritising funds, and it allowed for each government department to re-prioritise a portion of its funding not exceeding 8% of its total budget. Each year that the Department had re-prioritised funds it had done so within the strict prescripts of National Treasury.

It was very sad that this year, when the Department took action earlier to ensure that the issues were dealt with by the time it had to report to Parliament and indicated the specific areas in which it encountered difficulty in spending the budget and the subsequent re-prioritisation, that such a media article was printed. The funds were re-prioritised into other department programmes, and did not go into the pockets of the officials. For example, there were about 300 courts within South Africa that did not currently have any IT infrastructure and were not connected to the central database, and some of the unspent funds were re-prioritised and allocated to those courts. The Committee would be well aware that each year the Department raised concerns with the lack of security at court buildings, and in this year a significant amount was re-prioritised to resolve that problem. Thus the funds were re-prioritised strictly in accordance with the National Treasury prescripts, and strictly within the 8% virement.

He stated that he did not know how that newspaper article could have been written. The Department would however be reiterating its entire budgetary input again to the Portfolio Committee on Justice to explain the issue. The article also suggested that neither the Minister of Justice nor the Deputy Minister was aware of this. He however wished to place on record that in October 2005 the management of the Department, at a management committee meeting, reported underspending in certain areas. They were instructed to work out the exact extent of the underspending and if funding could still be spent on those programmes they should go ahead and if it could not, the Ministry directed the Department to re-prioritise those funds in accordance with the National Treasury prescripts. The Ministry was thus fully informed of the underspending at an early stage, and directed the Department to re-prioritise the funds to ensure they were spent. The actual events were thus quite contrary to the kind of things being leaked to the media, and being lied about in the media.

He once again invited the Committee to interrogate the matter in fuller detail with the Department when they briefed the Committee in the afternoon session.

The Deputy Minister continued his briefing and informed the Committee that monies-in-trust remained a problem, because it was still a manual system, and the Department had decided on a Monies-in-trust Public-Private partnership (PPP), for which the Chief Financial Officer (CFO) will be issuing a request for price. He stated that the aim was to ensure that all government departments utilised the services of the State Law Advisors (SLAs) by 2007/8. This resolution has gained momentum, evidenced by the reduction of reliance by government departments on private sector legal advisory services by 4% in 2005/6. The management of court services was being streamlined via the Department’s Re Aga Boswa campaign, which now ensured that court managers were entrusted with managing courts and judges and magistrates could now invest more time in their judicial work.

The Deputy Minister stated that the provision of access to justice for vulnerable groups, children, the disabled and the elderly remained a priority for government, and he stressed that they were in his view crucial deliverables that would be receiving specific focused attention.

He stated that the briefing did not make mention of the Justice College, but it was an enormous priority for the Department. In principle the Minister has agreed that the judicial training of judges and magistrates was the sole preserve of the judiciary, and they will in due course inform the Department of how that would be effected. In the meantime the Justice College would be used broadly for training in two aspects: the first was for prosecutors, which would have its own curriculum committee, as well as all the training for the rest of the Department that was not currently being provided, such as for court managers and the financial managers. In the meantime the magistrates would still be trained by the Justice College as an interim arrangement until the new set-up was finalised. It was hoped that within the next year enormous progress would be made with regard to the new Justice College.

He concluded his briefing by thanking the Committee for the opportunity to address it and wished it well for the year ahead.

Discussion
Dr F Van Heerden (FFP) [Free State] stated that he had been approached by senior legal practitioners who were currently retired, but who nevertheless wished to continue playing a part in the legal profession by attending courses offered by the Justice College. He asked whether this were possible.

The Deputy Minister responded that the Department adopted a very inclusive approach and wanted to make more space within the Department for retired judges, magistrates and other legal practitioners. Their experience and expertise needed to be used to address the case backlogs. He encouraged those judicial officers and legal practitioners who wished to attend courses at the Justice College to approach the Director-General, and reiterated that the Department would be very open to drawing on their skills. They could even teach a course at the College on a specific area of law that was their forte.

Mr Z Ntuli (ANC) [Kwazulu-Natal] sought clarity on the progress of the Kampepe Commission.

The Deputy Minister replied that Judge Kampepe had completed her report and has handed it to the President, and his pronouncement on the report was being awaited.

Mr Ntuli sought an indication of the deadlines in place for the full roll-out of the Justice College.

Mr D Worth (DA) [Free State] noted the controversy in the newspapers regarding the training of judicial officers at the Justice College, and the judges indicated that they would prefer to do their own in-house training. He sought clarity on how exactly this in-house training would be conducted.

The Deputy Minister replied to the two questions by informing the Committee that the Justice College already existed, but in its old format. It currently occupied offices of UNISA in Pretoria and had an operations head as well as staff. To answer Mr Worth’s question, the new Justice College will not have judicial officers, and they must at some stage be removed from the Justice College and completely isolated from the rest of the legal practitioner training offered at the Justice College. A separate faculty would ultimately be established for judicial officers and for prosecutors and the rest.

Adv de Lange stated that the magistrates opted to be on their own because the Department informed them that they could not run the entire Justice College, which is what they wanted to do, because that would violate the doctrine of the separation of powers. Thus judicial officers would have their own training college, although the precise nature of the facility was not yet certain. In the future however judicial officers would receive training as one whole, judges and magistrates together. The Department wanted to introduce distance leaning, and adopt a very progressive approach to the provision of training. Significant funds will be pumped into training. The current approach was a de-centralised training function. Furthermore, officials like Mr Allan Mackenzie, the Department’s outgoing CFO and Ms Sandra Gomm, the Acting CFO, would be providing courses at the Justice College on financial management.

Mr Ntuli sought clarity on the re-demarcation of the jurisdiction of magistrates’ courts and the processes involved.

The Deputy Minister responded that this was one of the major projects for the future. It did not merely involve the changing of existing magisterial district boundaries, but in fact necessitated a thorough and complete audit of the current dispensation. It also involved a review of the whole Apartheid regime which concentrated courts in the white areas. This was important because the Department was not currently providing judicial services where the people were. The re-demarcation thus involved an audit of the people and communities that needed access to justice, the Department personnel that would be required to effectively provide that service as well as the norms involved. It thus necessitated both a quantitative and qualitative assessment of the services provided by the Department. This re-demarcation process could however not be conducted until the courts at the highest level were rationalised, which would take quite a bit of time. He stated that the Department was aware that, at the moment, it was providing services in the same way it was provided eleven years ago.

Mr Ntuli asked whether the Department had any community outreach programmes on court functioning.

The Deputy Minister answered in the affirmative, and requested that the Department’s public education directorate be consulted.

Mr Ntuli asked whether the Department planned to provide training to traditional courts and traditional leadership leadership structures.

The Deputy Minister replied that the Black Administration Act had been repealed, and the sunset clause would disappear on 30 July 2006. The Department was however not yet ready for the implications. The South African Law Commission (SALC) has produced a report on this matter but it was such a detailed and costly exercise, which the Department had not yet priced, that its recommendations could not be introduced overnight. There was no choice but to introduce a holding mechanism during the interim. The Department must consult both Cabinet and traditional communities on the matter, and would probably have to request that Parliament extend the date for the final repeal of that Act. This process would not however be completed overnight, as significant consultation still had to be conducted.

Mr J Le Roux (DA) [Eastern Cape] referred to the Bills relating to the judiciary mentioned in the briefing, which the Deputy Minister stated were aimed at supporting the judiciary. He stated that there were however several articles in the press which indicated that some of the judges might be concerned by the Bills. He asked the Deputy Minister to explain his statement.

The Deputy Minister responded that he would not be answering in full because the judges themselves were best placed to answer the question. He found it interesting that he had not had sight of the actual accounts from specific judges, and there was thus no way of knowing who those begrudged judges were or whether their arguments were in fact valid. He was thus sceptical of the credibility of the media accounts. He was however glad that this matter was raised, because it related to a few important issues.

Adv de Lange said that firstly, the resources of the courts in this country have always been the preserve of the executive arm of government. The concerns raised with the Bills thus had absolutely nothing to do with the independence of the judiciary, because the South African model existed in several other countries as well. He stated that 90-95% of all countries adopted the model in which court reserves were dealt with by the executive. There were however some jurisdictions, such as the United States, in which the courts themselves dealt with their own court resources. Jurisdictions such as Australia and Canada have recently opted for a hybrid-based agency model, which was not accountable to the judiciary or the executive. The United Kingdom followed an interesting model. For hundreds of years it had a Law Chancellor who was the Speaker of the Upper House, the Chief Justice and the Minister of Justice all in one. The system even functioned well within the separation of powers doctrine. However in 2005 they changed that system and their Law Chancellor was now exactly like the South African model, where the court resources were dealt with by the executive arm of government.

Secondly, government very purposefully made a clear distinction in the legislation between judicial functions, which were the exclusive preserve of the judiciary, and its resources, which were the preserve of the executive. The Bills very clearly spelt out that judicial functions must remain the sole preserve of the judiciary. Thus the concerns raised in the media that the Bills would now enable the Department to prescribe these judicial functions, such as the allocation of cases, was clearly untrue.

The resources of courts were dealt with by the executive for two reasons. The first was that the judiciary could not be held accountable for the spending of its funds, because they were not public representatives. Instead it was the government that was held accountable for the spending of resources. Secondly, it was "only government that had the whole view of government" and the total economic, social, legal and political landscape in the country, and only government was best placed to allocate and spend funds with that larger picture in mind.

He stated that the entire issue was thus instead a question of policy choices. The problem however was that "everything was being obfuscated behind terminology", instead of healthy debates being held on the matter.

The legislation was also weak on the issue of governance of the judicial system, because the executive was no longer governing the judiciary. Before 1993 a large part of the judiciary was governed by the Department, because it governed the magistrates. Since 1993 there was thus no governance structure. The Department was of the view that the Chief Justice must be vested with those governance functions, which he would then delegate to the judiciary. He stated that the allegations in the media that the Department was using the legislation to prescribe judicial functions were thus not true, as the Bill had nothing to do with the Department.

Thirdly, with regard to the appointment mechanism for Judge Presidents and Deputy Judge Presidents, the Department’s view was that any legal system in the world indicated that the leadership of the judiciary was appointed by the executive authority, or played a major role in the appointment process. This approach was however not well received and a concession was made, that the same process be followed as that for the appointment of Constitutional Court judges. The Judicial Services Commission (JSC) would now forward a shortlist of candidates to the President, who would then choose appointments from the list.

The final issue related to the separation of powers doctrine. The Constitution was very clear, in Sections 121 and 81, on the only two situations in which an interruption of the legislative process was allowed. Government agreed that the courts should be able to intervene in any piece of legislation, but only from the moment that legislation has legal effect i.e. once the proclamation date was set. In the UDM v President of the RSA and others and in the Eisenberg cases the issue arose as to whether the courts should be interfering in the legislative process before the legislation became law. In those two cases the courts did interfere and suspended the legislation from coming into operation. Government opposed allowing courts to intervene in the legislative process while the draft legislation was still being considered by Parliament, as it would cause a serious constitutional crisis.

He encouraged the Committee to interact with the judiciary on this matter.

Ms F Nyanda (ANC) [Mpumalanga] sought clarity on the extent to which the Department had satisfied its infrastructure needs, as called upon by the State President in his State of the Nation Address.

The Deputy Minister responded that infrastructure was a two-fold item: firstly, it related to new capital works which the Department built every year, and the second was a budget for the maintenance of existing buildings. Over the last few years the Department’s infrastructure item has improved. The problem however was that after the first ten years of democracy, much of the Department’s infrastructure budget was spent on infrastructure in areas that were far removed from where the majority of the people were. Over the last few years the Department was thus working on changing those spending patterns more rapidly and to redirect infrastructure to areas that needed it.

The Department was also finalising several arrangements with the Department of Public Works to ensure the Department itself spent its infrastructure funds, as this would eradicate the unnecessary delays and paperwork currently experienced when the Department requests the provision or repair of infrastructure from the Department of Public Works. Agreement has now been reached that that budget would now be dealt with by the Department, and not the Department of Public Works.

Ms Nyanda noted the undesirable practice in which most of the prosecutors migrated to the magistracy. He asked the Deputy Minister to explain the measures put in place to bridge that gap.

The Deputy Minister acknowledged that this was a huge problem. The problem was that the salaries of the different units were decided in different places within the Department, and that completely destabilised the salary structure throughout the Department. The problem was that the Department effectively lost all the money it had spent on training those prosecutors, as they then migrated to the magistracy because it offered a higher salary. A system was needed to harmonise the pay scale within the Department for all officials of the same rank. He stated that the Director-General was currently working with both the National Treasury and the Department of Public Service and Administration to arrive at a uniform salary for all officials with legal skills in all government departments. He stated that he was however not sure whether this harmonisation would be possible, because there were already such huge gaps in salary packages of officials of the same rank. This destabilised salary structure had a huge knock-on effect for legal officers in other government departments, as well as for other institutions such as the Legal Aid Board and the Chapter 9 institutions.

Ms Nyanda asked the Deputy Minister to indicate the concrete steps that needed to be taken to ensure the Victims Charter on serious crimes, adopted in 2005, was given effect to. This was important so as to educate victims of their rights in court.

The Deputy Minister cautioned against making more out of the document than it actually was. It was in fact a very simple document that served merely as a summary of all the services which, in law, each government department must be providing to victims of crimes. The Charter did thus not introduce new services, but merely entrenched existing services.

Mr Worth stated that the Committee observed, during its oversight visits, that no safety measures were provided at magistrates’ courts. The Minister of Safety and Security was then approached and asked why he did not provide such services, to which he replied that the responsibility lay with the Department of Justice and Constitutional Affairs. He asked whether the Department could not outsource the security services.

The Deputy Minister responded that this was an ongoing issue. In fact, some of the funds allocated to the Department for the current financial year were re-prioritised to provide further security measures at the courts. The core of the problem was which government department was responsible for the provision of security services at courts. The South African Police Services (SAPS) provided the protection in courts. The provision of security for all sentenced prisoners from prison to the courts was the responsibility of the Department of Correctional Services, whereas the provision of security for all unsentenced prisoners to the courts was the responsibility of SAPS. The security outside the courts was provided by the Department, which in turn outsourced most of it.

He stated that when he was still Chairperson of the Portfolio Committee on Justice he discovered on one of the oversight visits that everyday at 3pm a court official, in most cases a woman, would take all the court’s money to the bank by foot and without any protection at all. That practice was unacceptable. This potentially dangerous situation has however been remedied as Coin Protection Services have now been contracted to provide protection. The Department had tried to install basic security systems in courts, such as metal detectors. He hoped that this debate would arise when the Criminal Justice Review was conducted. The possible introduction of audio visual equipment in courts was being considered to prevent unnecessary delays and constant postponement of violent and serious crimes. The aim was for the hearing to be held via video link, which would eradicate unnecessary postponements. A pilot project was being conducted in the KwaZulu-Natal province.

Mr N Mack (ANC) [Western Cape] stated that the Presidential nodes would come to an end in the near future, and asked whether there was anything special in the Department’s budget for those areas, especially for the rural areas. His concern was how more effective justice services could be provided by the rural courts.

The Deputy Minister replied that he had raised this matter a year ago, and the extent to which government departments were planning with the Presidential nodes in mind. The Department was instructed to bear the Presidential nodes in mind when it planned its infrastructure development projects. This did however depend on a number of other government departments because it was only when the country exhibited real economic and social growth that it would affect the Department, as there would then be more crimes which would then require more courts and judicial officers. From now on the Department’s blueprints for the building of courts will take into account the scope for rapid growth in the specific area, and the infrastructure would henceforth be able to accommodate that growth.

Mr Mack asked the Deputy Minister to explain how a skills audit would supplement the work done by the Justice College, because there were still white magistrates who failed to understand the reality of the poor people who appeared before them.

Secondly, he noted that significant funds had been allocated for increasing the prosecutorial capacity within the Department, as well as ensuring legal representation for children. The reality of the matter was however that poor South Africans did not have even R10 needed for bail, with the result that they would be locked up. His concern was how legal representation for such South Africans would be ensured when they could not afford a lawyer.

The Deputy Minister responded that, legally, the executive could not interfere in the decisions taken by judges regarding bail. The best it could do was to engage them on the consequences of their bail decisions. He acknowledged that there was "huge ignorance" regarding bail provisions. The bail dispensation was changed a few years ago and now made it very difficult for the higher level criminals to get bail and made it easier for the lower level criminals to get bail, to ensure that people were not imprisoned for smaller crimes when they did not need to be.

The first problem was that the bail laws were not applied properly which, secondly, meant that jails were crowded with people who should not really be there. Thirdly, Section 63A of the Criminal Procedure Act was passed a few years ago which allowed even people who were in prison and who had not been granted bail, if they committed certain categories of crime, to be taken back to a magistrate and removed from prisons. Even that provision was not being used properly.

In terms of legal representation, the Department had to put limits on the Legal Aid Board because at some stage its budget "was running away". The only way to curb the spending was to define the mandate of the Legal Aid Board. A total of 80-90% of its budget was now spent on the Legal Aid Clinics, which totalled 57 nationwide. The problem however was that these clinics were built primarily in the large city centres, as it would not be feasible to have them in the smaller communities because the need would not be that great. The result was that attorneys were still used in those smaller areas.

He stated that he would disagree with any lawyers who assert that they had not yet been paid by the Legal Aid Board, because he did not think that was the case. The matter would however be raised with the Director-General, and the budget of the Legal Aid Board was not as big a problem as it used to be. Furthermore, 80% of the work of the Legal Aid Board was now done by its clinics, and was no longer being as extensively outsourced to attorneys in the private sector. Hopefully as the country grew as a democracy, the operations of the Legal Aid Board would be capable of expansion into civil law as well, which it currently did not have the capacity to accommodate.

The Chair requested the Deputy Minister to clarify the concern raised in the print media that the Department was hiding funds.

The Deputy Minister replied by stating that he took the Parliamentary journalists much more seriously than those in Johannesburg, who wrote articles on proceedings in Parliamentary Committees when they never even came close to Parliament. The Johannesburg journalist in question stated that the information was leaked to him, which did not make sense because all the information and documentation would have been readily available if he had in fact attended the Parliamentary Portfolio Committee meeting in February 2006. It was interesting that not one of the Parliamentary journalists wrote a similar article, because they in fact attended the Parliamentary Committee meetings in which the Department each year explained in detail the expenditure of its funds. Furthermore, it was far too common an occurrence for persons to leak information that was in fact known to all, simply because they were unhappy with the positive changes being made in the Department.

The National Treasury rules clearly stipulated that government departments were allowed to re-prioritise funds up to 8% of the total allocation, subject to the National Treasury regulations. He stated that when he was the Chair of Parliament’s Justice Portfolio Committee, it received those reports every year and each year his Committee was not happy and reprimanded the Department because it had not spent the money on the items for which the funds were allocated. It would however be much worse if the voted funds just lay there unused and were then simply returned to National Treasury. In September 2005 the Department decided how the funds would be spent, and it was told to re-prioritise the funds in line with the National Treasury prescripts. This decision was taken and planned in an open meeting with the whole senior management present. The decision was taken to re-prioritise R400 million. The presentations to be given by the Department later today would bear out the details, and the Committee must engage them in full on it.

He stated that the Ministry must be tough with the Department if it did not spend on an item it had requested, and the Committee was Constitutionally mandated to question the Department as well. The fact of the matter was that the re-prioritisation of funds was an ordinary government procedure which was done within clear National Treasury rules, and there was nothing secretive about it. The allegation that the Department was hiding away money was "a complete load of nonsense" as it complied with all the legal prescripts.

The Chair stated that the Department was constantly dealing with magistrates who were either being suspended or expelled from the legal system. He asked the Deputy Minister to explain this, because some of the charges were really appalling and embarrassing.

The Deputy Minister responded that the fact of the matter was that the Department could not do very much about the conduct of judges and magistrates. The Department could only put systems in place to deal with them. One of the problems currently being experienced was that there was no complaints mechanism for judges in South Africa. The only recourse was an impeachment procedure provision in the Constitution, and even that was difficult because it did not stipulate procedures to be employed to deal with that matter. If a matter was forwarded to the Judicial Services Commission (JSC) but was not an impeachable matter, the JSC would state that they could do nothing about it. Every democratic country has a complaints mechanism for judges, save South Africa. He was not referring to a complaints mechanism run by the Department, but was instead referring to a disciplinary process "applicable to judges, for judges, by judges". However, any complaint lodged by a member of the public must be considered by that mechanism and the person must be given a response

The important thing to note was that the Department could not do much about complaints against judges, because the executive should not play any role in the matter except in providing resources for the disciplinary steps. The discipline must be done by the judges or magistrates themselves.

A few of the pieces of legislation in the pipeline were aimed at dealing with these disciplinary procedures, part of which dealt with the introduction of an asset register. Most democracies had asset registers for judges, which was dealt with by the Chief Justice. The asset register for the judiciary eradicated incidents of conflict of interest, in the same manner that the asset registers for Members of Parliament and those for members of the executive performed the same function. It is important to note that the Department played no role in the running of the asset register.

Furthermore, a compromise was reached with judges during the Apartheid era that they would remain judges for life, precisely so that their vocation did not conflict with any other interests. It has however become en vogue for judges these days to acquire a host of other interests outside their positions of employment. Most of those interests are probably not conflicting, but the problem was that they could be perceived to be conflicting. It was for that reason that many other countries have introduced an asset register.

In due course the disciplinary proceedings that currently applied to magistrates would have to be altered to coincide with those that would apply to judges. The current procedure applicable to the Magistrates Commission when deciding on complaints against fellow magistrates was appalling, and there were countless cases in which magistrates were reinstated because the incorrect procedure was followed by the Magistrates Commission. He found it astounding that magistrates, who sat in court every day, were so blatantly unable to follow the procedure of their own disciplinary mechanism and found it fit to remove magistrates from office "in the blink of an eye", at times without even requiring the magistrate in question to appear before the Magistrates Commission. It was clear that those on the Magistrates Commission would have to be sent for training in order to deal properly with the disciplinary procedures.

The "bad apples" referred to by the Chairperson must be removed from office, but it required a properly functioning process that would be run exclusively by the magistracy and the judiciary.

The legislation referred to was currently being processed and would arrive at Parliament in due course.

The Chair thanked the Deputy Minister for his input and the clarification provided.

The Deputy Minister thanked the Committee for the opportunity to address it, recognised the healthy partnership shared with the Committee and encouraged the Committee to continuously oversee, evaluate and criticise the work done by the Department.

Briefing by Director-General
Adv M Simelane, Director-General, stated that the acting CFO would be giving greater detail on the finances. He stated that his presentation would outline the Department’s strategic plan over the next three years, by focusing on each of the Department’s key strategic objectives. The first of the objectives, access to justice for all, would focus on strengthening the functioning and jurisdiction of the small claims courts, would ensure the establishment of more court buildings in areas that needed the infrastructure and the need for an increase in personnel to ensure vulnerable groups accessed justice services.

The second key objective was organisational efficiency, which the Director-General explained would be achieved via the Department’s restructuring and alignment drive, the modernisation of its IT system and the strengthening of its organisational capacity by filling vacant posts and taking on internships. Additional judicial officers will be appointed to increase courts’ productivity and reduce the case backlog, and the Criminal Justice System review that would be conducted soon was aimed at enhancing efficiency.

The third key objective was the transformation of the judiciary. To this end Bills have been introduced to effect this, the introduction of judicial education for the judiciary and the Justice College which would train the Department staff. The final draft of the Legal Services Charter should be completed by August 2006.

The Director-General concluded his input by highlighting the key challenges for 2006, which included the harmonisation of salaries for legal professionals by July 2006, a review of the Department’s capacity requirements, the reduction of outstanding case rolls, intensified efforts to reduce the number of children awaiting trial and a fast tracking of the transformation of the judicial system.

Discussion
Adv Simelane believed that the important issue was that basic services in courts were effective, people wanted to know that the bathrooms were in working order, they wanted to know that if they spoke in their own language the Court interpreters would make a correct and accurate translation. That was why the emphasis had to be on basic service areas.

Adv Simelane, wanted to clarify the issue of the appointments of court officials. Current statute stated that it was the Minister who was responsible for the appointments of Court Officials, this was contained in the Magistrates Court Act and the Supreme Courts Act. The only reason that magistrates had in the past appointed court officials was because they were civil servants and therefore part of the Department. He explained that although they were no longer part of the civil service, the Magistrates Courts Act had, however, never been amended to cater for this.

Dr Van Heerden commented that he was encouraged to hear about the future digital recording system, but questioned what had been meant, on page 26 of the DG’s report, by the reference to a single judiciary.

Adv Simelane, explained that there were judges for the High Courts and magistrates for the law courts, the law courts fall under the Magistrates Commissions, and in the manner in which they were appointed and dealt with, they were not treated the same as the judges. He believed that they should all be under one system, one internal mechanism. They should all be answerable to the Chief Justice. He explained that creating a single judiciary was to say that the judiciary included both judges and magistrates who should be dealt with in the same manner.

Mr R Ntuli (ANC, KwaZulu-Natal) requested clarity on the relationship between the Department of Social Development and the Department of Justice. What kind of interaction was there on the issue of administrating grants? He commented that it had been suggested that grants were being delayed due to poor communication between the departments. He asked if this was the case and, if so, what manner was it being addressed in.

Adv Simelane explained that the Department received funds for the distribution of grants to beneficiaries. However, payments of these grants were dependent on the work of other Departments. The Department of Justice relied on the Department of Social Development to assess who was entitled to receive such grants. Magistrates could only give an order for a payment once the file was in order. He stressed that the Department of Justice was responsive to this issue and they were looking at ways to improve communication.

Mr Ntuli requested that the presenters highlight to the Committee whether there had been any over or under expenditure in the last financial year and, if this was the case, which programmes were involved.

Adv Simelane felt that, regarding the question of the budget allocation, it would be best for the acting CFO to deal with it. This would be a more systematic way of responding to the Committee’s questions. He summarised that he did not think there were any areas of over-expenditure; however there had been areas of quite significant under-expenditure. Since the re-allocation the figures would have gone down by the end of the financial year.

Mr N Mack (ANC, Western Cape) queried the level of access to courts for disabled people. What was the current situation in this regard and how far had the Department progressed in addressing this issue? He noted that there were very few disabled prosecutors. Were gender issues in terms of the employment of Judges and Magistrates being addressed adequately, and what was the strategy or plan for dealing with these issues?

Adv Simelane explained that a basic framework for enabling disabled members of the community access to the courts was in place. What remained a challenge were basic service areas, for example providing for people with visual impairments that required documents. Possibly there had never even been a study into the demand for such services. In terms of employment there was a strategy to try and make sure the work force was as representative as possible although, as a Department, he conceded that they had fallen behind the set national targets. The Department was however going out and actively recruiting in target areas.

Mr Mack raised his concern that some high profile cases had dragged on for extraordinary lengths of time. This had been the case in his constituency in Beaufort West. However he appreciated the need for thorough investigations. He expressed particular concern about the "dry-cleaner case" investigation.

Adv Simelane explained that regarding the "dry-cleaning case", he was not at liberty to comment because it did not involve the Department as such but the National Prosecuting Authority (NPA). His understanding was that there had been a challenge to the nature of the investigation. The challenge fell on the South African Police Services (SAPS) side. This was still on-going; all that really happened was that the matter was struck off the roll. He noted that in the previous year at least 300 000 cases were struck off the roll. This was a serious problem and it was important to understand why these cases had been withdrawn.

Ms Nyanda (ANC, Mpumalanga) raised her concerns about the Small Claims court. She commented that it had been known for the accused not to turn up and issues therefore were left unresolved. Perhaps this was an issue of biased handling.

Adv Simelane agreed that if this happened regularly there was something wrong with the system. If people did not arrive at court the case should be postponed, but if it occurred constantly the case could be heard even in the absence of the respondent. He stressed however that he did not believe this to be a systemic problem. The record keeping of the Small Claims Court had to be improved. This was something the Department was working on.

The Chairperson asked what the status of standard workers was.

Adv Simelane, explained that standard workers did not get paid very well, their income was not consistent. The Department had to find a manner of dealing with them definitively. Utilising a cheap digital recording system would do two things. Firstly it would remove them completely from the system; the Department would not therefore renew their contracts. This would not be ideal because they posses a valuable skill. Alternatively the Department could have them taken over by service providers which would provide recordings, or the department could make them permanent staff members and placing them at a particular grade. The Department was currently doing the calculations as to how much this would cost.

Afternoon session
Presentation by Acting CFO
The acting CFO, Sandra Gomm, prefaced her presentation by reading a letter (see Appendix) in which the previous CFO, Mr Alan MacKenzie, addressed the allegations made in the Sunday Times article. Her presentation gave an overview of the 2004/05 annual report and 2005/06 budget and expenditure overview which she stressed was based on un-audited and preliminary information. She followed this by presenting the MTEF allocations.

Presentation by Chief Operations Officer
Dr Khotso De Wee briefed the Committee on the Office of the COO, its successes, challenges and proposed way forward. He provided information to the Committee on each branch, but left out the corporate service branch which he covered in the presentation below.

The COO briefed the Committee on the main objectives of Communication services, which included fulfilling the communication needs of the Department. Building an integrated approach to promote, communicate and market developments; enhancing and managing effectively the external and internal communication of the Department. They aimed to restore public trust and confidence in the service of the Department. He highlighted the projects and campaigns conducted by corporate services.

Dr De Wee briefed the Committee on the main human resources objectives, which included setting up recruitment and management training programs, which would be operational in the next financial year and skills development for front line service delivery staff. He highlighted the human resources projects identified for the 2006/07 period. The COO briefed the Committee on the road forward, which included skills auditing, formulation of a human capital plan, filling vacancies and job analysis and profiling. He identified the challenge of a lack of internal departmental capacity.

Discussion
The Chairperson asked if there was any further input from the presenters

Mr MacKenzie (outgoing CFO) explained that the current situation with the management of the Monies and Trusts Project was such that the Department anticipated receiving the final contracts from the transaction advisers legal team within the next few days. The National Treasury PPP unit had a legal team which would evaluate those contracts. He explained that the Department therefore anticipated that the finalisation of all contracts would be in place within a couple of weeks after they had looked at the contracts presented by the transaction adviser. It was anticipated that tenders would be issued before the end of the following month, prior to which date there would be a period when all the bidding consortiums would have the opportunity to comment on the documentation, for the purpose of clarifying any issues or concerns they may have. There was a written document which was being circulated, essentially looking at the program from there; the bidding consortiums had got two months in which to present their bids. At the end of this period the Department would have a look at the specific nature of the offers made by each of the six bidding consortiums, which effectively included all the major banking groups. The Department would analyse the bids falling below the requirements. It would then look at the bids that had met the requirements and then measure them against affordability. Only at this stage would the Department make the final decision on implementing the PPP.

Adv Simelane said that traditionally the Department had always held the budget at the national office and as a result budgets had never been dealt with efficiently. A major challenge in the past had been that at a regional level, each of the provinces had been concerned about the un-availability of sufficient resources to deal with the problems. What the Department had done in this financial year was a complete turn-around. This was a decentralisation, at national office level; the department had reduced the budget by about 5.6% and instead had increased the budget significantly in each provinces. The Free State had received the biggest increase of about 60.6%, so on average there was above a 30% increase for each province. The idea was that each province would be responsible for its own budget. It would now be possible to analyses the budget of each court. Court managers would become responsible for the budget of each court. He stressed that there could no longer be an issue of shortages of resources. The emphasis would be on providing service delivery at a local level.

The Chairperson asked for questions from the floor.

Mr Le Roux queried whether the Sunday Times had responded to Mr MacKenzie’s explanation.

Mr MacKenzie explained that the letter was in fact a written response he had composed to advise the new acting CFO of the facts. It was not composed directly in relation to questions posed in the Sunday Times. His actual response had gone much further in that he believed it was a very clear case of defamation and the Department needed to take some action. This matter was being deliberated.

He commented that National Treasury had not ring-fenced any money given to the Department. They had not given it an allocation which precluded the Department from using it for other purposes. The Treasury had given the Department a specific, but non-ringfenced allocation. The Treasury had been the partner in the PPP process and were therefore aware from the beginning that this process was predicted to take quite a long time before it would kick in. They were fully aware of the Department’s need to re-prioritise.

Mr Worth sought clarity on the annual report overview. He highlighted that in looking at the financial performance section, it appeared that under spending amounted to R309 million, yet another section stated that there was a R120 million anticipated saving at 7 February 2006. Did these two figures add together or was one inclusive of the other?

Mr MacKenzie explained that the 7 February estimated saving of R120m was based on the actual results at the end of December after nine months of "trading". The actual situation in terms of monthly accounts and un-audited and unconfirmed figures was R20 million at this point in time. What happened to this projected calculation is that more contracted expenditure was actually finalised in the period than had been anticipated. Transcription services, for example, had to be paid right at the end of the financial year. The Department had to maintain a funding availability in the event that significant commitments would become payable.

Mr Ntuli commented that several Departments were failing to submit their documents to the Auditor General on time. Was this problem faced by the Department of Justice?

Mr Mackenzie replied that documents had always been submitted to the Auditor General on time, which was in fact a requirement to get an unqualified audit report

Mr Ntuli wanted clarity on the budget allocated to the NPA. Did prosecutors fall under the same overall budget or did they have a separate budget?

Mr Mackenzie explained that the prosecutors’ budget was contained in the NPA allocation. However consumables, stationery etc. did come from the main justice budget.

Mr Mack queried why there was under-expenditure. Was the Department not able to re-allocate funds to under funded areas?

Mr Mackenzie explained that he did not believe there was a significant under spending. The under spending represented 0.437% of the Department’s budget allocation. This was cutting it very fine. He emphasised that there was a lot of skill involved in managing a budget so closely. He noted that it would perhaps be useful for the Committee to receive a complete report of the un-funded areas. This would go a long way in aiding Members to understand the under funding process.

Mr Ntuli commented that the CFO had said the Department faced challenges in advertising posts. What were these challenges?

Ms Nyanda asked for the various reasons for under spending.

The Chair commented that the Committee appreciated the commitment of the Department. It was commendable that the Department could provide budget breakdowns for each individual court.

Due to time constraints, the Chair noted that they would have to leave the remainder of the questions until the following day.

The meeting was adjourned.

Appendix: Letter to acting CFO from previous CFO, Mr Alan MacKenzie, in response to Sunday Times article

At the outset it should be noted, that I view the story line taken by the Sunday papers as being misleading, and is not based on a true and balanced presentation of the facts surround the proceedings, that have taken place over the year to date. I support the sentiments of the Chairperson of the Portfolio Committee, that were expressed in a media statement, dated the 10^th April 2006, and I quote "the Portfolio Committee was advised that the department had planned to reprioritise and also, in this regard, the Portfolio Committee was certainly not misled".

It is felt that a few fundamental concepts central to public sector financial management should be noted. The Director General is the appointed accounting officer of the Department, and is responsible for budgetary control. The management of the budget falls broadly within three categories, these may be summarised as: budget formulation, budget execution and budget reporting. There exists a distinct difference between the roles of the accounting officer and the ministry. The accounting officer is accountable for the entire budget that must be managed within prescribed guidelines.These guidelines may be gleaned from the treasury regulations as well as the Public Finance Management Act (PFMA) and the following extracts are relevant to this Sunday Times article:

Section 43 of the PFMA: Transfers and subsidies to institutions may not be increased without approval of the relevant treasury. In that regard, we have obtained the relevant treasury approvals.

Allocations earmarked by the relevant treasury, for a specific purpose may not be used for other purposes. We have not used any earmarked funds for our re-prioritisation.

In terms of the national treasury regulations: The accounting officer for a department may utilise a saving - in the amount to which [word inaudible] excess of expenditure - under another main division. This virement may not exceed eight percent of the amount appropriated. An accounting officer must within seven days submit a report to the executive authority and the relevant treasury. That has been done.

Due process in the management of the voted funds: The budget of the department has been followed.

It needs to also be clearly understood that the use of the words "financial statements" in the newspaper article is potentially misleading. The audited 2004/5 annual financial statements of the department were reviewed by the Portfolio Committee on the 7^th February 2006.

The annual financial statements are distinct from the budget projection schedule presented to the Portfolio Committee. The budget projection schedule details the actual expenditure incurred to the date of the then last available monthly accounts as of the end of December 2005. Further to the actual expenditure incurred to the end of December, the budget projection schedule detailed mid-term budget adjustment estimates and] in deed [word inaudible reflected the virements within and virements between budget programs.

All budget programs presented were further classified in terms of the standard public sector economic classification of accounts. In addition, virement projections to the year end were represented to the same level of detail i.e. variance within and between programs together with projected expenditure for the fourth quarter.

It must be emphasised that the budget projection schedule is a budget projection. It is an estimate and estimates by their nature are subject to being informed by subsequent events. These subsequent events include detail of actual expenditure incurred versus projected estimates, tendered pricing versus projected estimates, re-prioritisation of funding in the light of future information etc.

In summary, the management of a budget is a dynamic process and managing necessitates the changes to budget execution, within the prescribed due process, is to be anticipated. The budget management approach adopted by the Department utilises a variant of a zero based approach called the Base 80 in combination with a schedule of unfunded priority projects, UPPs. Thus a dynamic scenario is managed whereby things are re-prioritised within prescribed limits between marginally funded initiatives that are not exercised for various reasons and un-funded priority projects that may be executed within any financial year.

The budget process utilised by the Department has been published internationally as a case study by the International Consortium on Government Financial Management. The international public sector community is standardising an approach to the reporting of budget re-prioritisation. The International Federation of Accountants, IFAC, recently released ED27 which is an exposure draft on this matter.

The Portfolio Committee was referred to ED27 as well as to the comment forwarded by South Africa on this matter. The reprioritisation schedule presented to the Portfolio Committee is a public document and a copy of this document was forwarded to the IFAC Committee deliberating international best practice standards in these circumstances.

The Department has a history of high expenditure in the last quarter of the financial year and it particularly incurs above average expenditure in the last month of the financial year.

'Fiscal dumping' infers that expenditure has been incurred without value having been received by the department in question. National treasury investigates the possibility of fiscal dumping across the entire public sector. The Department was questioned on spending patterns last year in light of the above average expenditure incurred in the last quarter. The possibility of the Minister of Finance requesting information on the possibility of fiscal dumping has been deliberated by management. The Department provided all the required information to National Treasury on this matter last year, and substantiated the position that fiscal dumping did not occur.
The re-prioritisation of funds has been notified to National Treasury, who thus anticipated a higher than average first half quarter expenditure. The executive authority of Department has been aware of the need to re-prioritise for some time. The Department informs all stake holders by various means including monthly accounts.