Case Backlog Reduction Strategy and E-scheduler: briefing

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 January 2007
CASE BACKLOG REDUCTION STRATEGY AND E-SCHEDULER: BRIEFING

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Department presentation on National IJS case Backlog Reduction Strategy

SUMMARY
The briefing on the E-scheduler was cancelled as there was a problem with the equipment required for the purposes of the demonstration.

The Committee was briefed on the case backlog reduction strategy. The initial focus would be on five regional courts that were backlog hotspot sites. An amount of R15 million was diverted from the current budget to this project. Factors that contributed to the backlog of cases were:
- The high level of non-attendance of court proceedings by the accused leading to many warrants being issued per month.
- Incomplete investigations/ lack of forensic analysis capacity causing unnecessary delays.
- Not enough court capacity to deal with all the incoming cases.
- The availability of legal representation on trial dates.

Members asked many questions which included:
- What was the backlog position in respect to civil cases and reviews.
- Why judicial boundaries were not aligned with local government boundaries.
- Whether the department had looked at allegations by inmates that the Legal Aid Board used newly qualified people to defend the accused in courts. Some people refused to be represented by such lawyers and this contributed to the backlog.
- How the department related the shortage of judges, magistrates and prosecutors to the number of law graduates produced by the universities
- Whether the department had plans to recruit more prosecutors, retain those that it had and to make their salaries market competitive.
- Whether any consideration had been given to creating more posts at the Transvaal Provincial Division. Was the department considering bringing retired judges back to the courts and did the department apply any racial quotas to appointments?
- Why the standard for measuring backlogs in regional courts was similar to that used in district courts.

MINUTES
Mr Simon Jiyane (Deputy Director General: Court Services), Mr Deon Boardman (Directorate: Court Information) and Ms S Thomas (Chief Director: IT) attended the meeting. The Director General could not attend the meeting due to other commitments.

E-scheduler presentation by the Department
Mr Jiyane said that the department had reported on initiatives taken to improve case management at court level. One of the initiatives was to strengthen capacity at court level and improve the manner in which prosecutors managed cases at the court level. The integrated case flow management system was supporting the management of cases. The system was designed to reduce the postponement rate of cases and to improve the production level of cases ready for hearing. The department had finalised guidelines to assist judicial officers and other role players. The guidelines could never be successful unless supported by information technology improvement at court level. He said that the department would have loved to do a demonstration of the e-scheduler but it was unfortunately cancelled.

In reply to the Chair saying that the whole point of the meeting was for the department to show how the system worked, Ms Thomas explained that the Director General had received an sms informing him that the demonstration had been cancelled as there was a problem with the equipment required for the demonstration.

Presentation on Case Backlogs Reduction Strategy
Mr Jiyane said that the issue of backlogs had led to a team being put together to come up with some interventions to solve the problem. An amount of R15 million was diverted to this project. The project was jointly managed by all role-players. The department had tried to rope-in other departments in the cluster and the Legal Aid Board (LAB). There was a significant number of outstanding cases at all courts.

Factors that contributed to the backlog of cases include the following:
- The high level of non-attendance of court proceedings by the accused. There was a high level of warrants issued per month.
- Incomplete investigations/ lack of forensic analysis capacity causing unnecessary delays.
- Not enough court capacity to deal with all the incoming cases.
- The availability of legal representation on trial dates.

It was decided that the initial focus in terms of backlog reduction would be the top five regional court backlog hotspot sites. The interventions started on 1 November 2006 at: Pietermaritzburg Regional Courts, Pretoria Regional, Bellville cluster (Western Cape), Port Elizabeth regional and Protea regional courts. The Protea site dealt with backlogs through Saturday courts and this was due to accommodation constraints. The number of cases finalised at each site was very encouraging. Sites such as the Bellville court were making good use of plea-bargaining to finalise old cases. A challenge was that Saturday courts required overtime payment.

Discussion
Mr J van der Merwe (IFP) asked what was the backlog position in respect to civil cases and reviews. He assumed that the presentation was only about criminal cases.

Mr Jiyane replied that the department had targeted the criminal environment because this was the most problematic area identified. The department had to focus on one area at a time and would look at others in future.

The Chairperson said that Mr Van der Merwe had raised a perennial concern and this was something that should be at specifically. This was one of the questions that she had posed when this project was first mooted. One could ask if the department had an idea as to what the situation was in civil courts and the answer would be in the negative. Part of the problem with the entire process was the judiciary. One had to rely on the prosecution for statistics on criminal cases. The judiciary had refused to come on board in relation to statistics. Litigants in civil courts essentially ran their cases and it was extremely difficult to get the statistics. It seemed that people were afraid that the committee would use the information to say that they were not working. Statistics were not kept for Parliament. The real worth of statistics was for the judiciary to understand what was happening in their courts so that could take steps to improve their efficiency and alleviate the stress or pressure that were feeling in the courts.

Mr van der Merwe invited the department to have a look at situation in relation to civil cases and reviews.

Mr Jiyane replied that there were reviews that came from regional courts that were part of the backlog problem. Reviews that were still outstanding in the Transvaal Provincial division (TPD) would be dealt with through the appeal project.

The Chairperson asked if the department had a full picture of reviews in the entire country.

Mr Jiyane replied in the affirmative.

Mr van der Merwe said that he had heard that some judges sent reviews back because they said they did not have time for them. There was a need to look at this issue.

Ms S Camerer (DA) said that the Judge President of the TPD had raised the issue of appointing retired judges and it seemed that there was some reluctance on the part of the Minister. A lot of retired judges were available.

Mr Jiyane replied that there was no reluctance on the part of the Minister. The only hitch was that the process agreed upon at the Judicial Services Commission (JSC) in terms of identifying judges who had retired was supposed to be dealt with by a task team. The Judge President had erroneously sent a list to the Minister without consulting with the task team and the Minster had referred the matter back for the team to consider.

The Chairperson said that it was intriguing to see that there were 751 lower courts and that 115 of them dealt with 60% of workload of courts. This was incredible given the kind of (under utilised) capacity that they seemed to have. One should not forget that courts also serviced areas that were not that densely populated. New courts were consistently established but there no detailed analysis that preceded the building of courts. She gave an example of a new court that was being funded in her constituency despite the fact that another court existed within 10 kilometres of that court.

Mr Jiyane agreed with the chairperson's analysis. The methodology that had been used establishing new courts in the past was not accurate. The department had indicated that it was going to follow a new methodology at the time when it did the court nerve centre project. There were areas that had been identified as hotspots in terms of crime and the cluster had responded in a co-ordinated manner.

The chairperson said that the influx to urban areas should be factored into the process. People were mobile and with the housing backlog being addressed and accelerated, the department had a wonderful opportunity to plan for the future. This was an opportunity not to only deal with the problems of the past but to also anticipate what would happen in the future.

Mr Jiyane said that the Department of Provincial and Local government had established a programme through which infrastructure development became integrated. The motivation for the creation for new courts was informed by the local developments.

Mr Z Ntuli (ANC) [KwaZulu-Natal] asked why judicial boundaries were not aligned with local government boundaries. The size of the population was taken into consideration when demarcating local governments.

Mr Jiyane replied that the demarcation process had not yet been finalised. The intention was to ensure that there was that alignment, where possible, with local government structures. The department had ensured that there was some alignment between it and the police to ensure that there would be some alignment when a police station or court was established. With the proposal that came out in terms of the new demarcation, there was some alignment with almost 60% of proposed the local government structures. There was a slight problem in relation to processes followed by the Demarcation Board and the department. The department used a point-to-point description of magisterial districts. It worked according to farms and the Board worked on a separate system. This was one of the reasons for the lack of alignment.

The Chairperson said that there was an area wherein the boundary ran through a local pub. This was one problem with the municipal demarcation.

Mr Jiyane said that the department had made proposals in relation to the demarcation. There would be a preliminary gazette that would indicate how the areas would be gazetted and call upon the relevant role players to comment before the demarcations could be finalised. It was hoped that one or two provinces would be finalised this year. There was a slight problem in relation to contested areas that were part of the litigation process in the Constitutional Court.

Mr L Joubert (DA) said that the presentation indicated that 361 courts dealt with 90% of the workload. The other side of the coin was that 390 courts dealt with only 10% of the workload of the courts and this was out of balance.

Ms Camerer noted that "the 14 biggest courts deal with approximately 20% of the criminal workload of the courts". She asked if the word 'biggest' referred to the busiest courts.

Mr Jiyane replied that the word 'biggest' referred to the workload and not physical appearance of the court.

Mr van der Merwe was confused about the numbers. He had thought that the number 751 referred to the number of magistrates handling cases. He asked if the Pretoria Magistrate court was one court. It probably had 50 to 60 magistrates.

The chairperson said that reference to the biggest courts had nothing to do with the number of magistrates per courts.

Mr Camerer said that one of the objectives was to reduce the backlog by 20%. She asked for some timeframes in relation to the reduction.

Mr Jiyane replied that the target applied to the period from November 2006 to March 2007. There might be some challenges due to the slow start but the target would be reached. Some people had taken leave in December 2006. The department was still analysing the situation in order to see if this would affect the target.

The chairperson said that the department had identified a certain number of cases that were considered as part of the backlog. New cases would fall over the six and twelve months limits as time went on. Such cases would not be considered in relation to the reduction of backlogs by 20%. Backlogs would not disappear completely. It would be interesting to look at the internationally acceptable backlog in courts. This would give the department some sense of how it was performing as compared to other countries that had older and effective systems in relation to backlog management.

Mr Jiyane said that the department would provide the comparative information at a later stage.

The chairperson said it was important to look at the information because people might think that there was a crisis in the country whereas there was none.

Ms Camerer said that the country had a crime rate that was higher than the international norm.

The chairperson said that the discussion was about court efficiency. It did not matter what the crime rate was if the courts were efficient because they would be able to deal with the prevailing situation.

Kgoshi M Mokeona (ANC) [Limpopo] said that one of the stakeholders was LAB was one of critical role players. The Select Committee on Security and Constitutional Affairs had visited the LAB offices in Northern West province in the period between 20 and 24 November 2006. People had complained that LAB used newly qualified and inexperienced lawyers to represent people. Many awaiting trial inmates would go to court and refuse to be represented by such lawyers. This caused some of the delays in finalising cases. He asked if the department had looked at this issue.

The chairperson wondered if Mr Jiyane would be able to fully respond to the question since it was more about the LAB. The issue was a real concern if this was what people were experiencing.

Mr Jiyane replied that the department had identified experienced attorneys to assist and those were not the ordinary staff of the LAB. People recruited by the LAB often did not stay for too long because of the remuneration that they were given.

The chairperson said that the Committee had consistently spoken to the LAB about career pathing and the development of interns so that there could be a professional public defender body. People should not forget that the LAB was one of the younger affiliate to the justice system. One of the challenges was to improve the quality of service that people received from it.

A member of the committee focussed on the lack of sufficient magistrates and prosecutors. He asked how the department related this to the number of law graduates produced by the universities. He believed that universities were producing a large number of graduates. He wondered if they were simply not interested in becoming prosecutors.

Mr Jiyane replied the department had taken an initiative to deal with unemployed graduates. There was an internship programme aimed at giving graduates the required skills. The project was running in all facets of the department. It was a feeding belt especially in the maintenance section where there were still a lot of administrative officers without legal qualifications. The prosecution had a training programme run by the Justice College that targeted unemployed people. No attempts had been made to expedite the process at the magistracy because some kind of experience had to be built.

Ms C Johnson (ANC) said that the retention of prosecutors had always been an issue. Their salary package was another concern. He asked if the department had plans to recruit more prosecutors, retain those that it had and to make their salaries market competitive.

Mr Jiyane preferred not to deal with the retention strategy of prosecutors. There would always be a continuous reduction of prosecutors so long as there was no parity between judicial officers and prosecutors. People would always want to leave the prosecution and join the magistracy. A proposal had been made for the increase in the salaries of prosecutors and the government had responded positively to this.

The chairperson said that the disparity indeed existed and was very big. The department would not be able to achieve the required parity even if it was to increase salaries annually for the next ten years. She agreed that there was a positive respond for the increase in salaries for prosecutors.

Mr B Magwanishe (ANC) asked for the cost estimates for the project. He also asked as to what risks had been identified and what steps had been taken to deal with the risks.

Mr Jiyane replied that he did not have the cost estimates for the project. An amount of R15 million was diverted from the current budget and Treasury had increased it for the next financial year.

A Member of Parliament noted that there was a high level of none attendance of court proceedings by the accused. He asked for the reason for this. Did this apply to all magisterial districts? The presentation had also highlighted the lack of forensic analysis capacity as one of the challenges that the department was facing. It had been said that this was contributing towards the backlogs. He asked how the department reconciled this with the fast tracking of cases.

Mr Ntuli said that all provinces had always said that they did not have forensic capacity. He asked if this was related to personnel. The presentation had cited the availability of legal representation on trial dates as challenge. He asked if the legal representatives concerned were independent attorneys or people from the LAB.

Mr Jiyane replied that the problem was related to both private attorneys and the LAB.

The chairperson noted that incomplete investigations/ lack of forensic analysis capacity was causing unnecessary delays and was furthermore detrimental to the backlog of cases. The National Prosecuting Authority audit of regional magistrate and high court cases for 2005 indicated that 23% of all such cases had to be remanded for further investigation. The issue was what that 23% represented in terms of the actual figures. The audit also found that 7% of the postponements were for the accused to get legal representation. This also did not indicate how many cases where involved.

Mr Jiyane replied that the major contributing factor in relation to difficulties in finalising cases had to do with the laboratory results back. There were delays that the police experienced due to lack of capacity. Some cases had been under investigations for too long and this was taken into account when classifying a case as a backlog case. The forensic laboratory investigations had been centralised and there were problems of space and capacity to deal with the workload. The police had responded by decentralising the services of forensic laboratories to ensure that cases could be dealt with in provinces. There were bigger challenges in relation to skills and only the police could respond on how they were addressing the challenge. An arrangement had been made with the forensic laboratory in Pretoria that cases identified in the project should also be given priority in terms of attention.

Ms Camerer said that the department had identified court capacity as a problem. There were not enough judges, magistrates and prosecutors. The TPD had problems. She asked if any consideration had been given to creating more posts. Was the department considering bring retired judges back to the courts. She also asked if the department applied any racial quotas to appointments?

The chairperson asked Ms Camerer how many cases went through the High Court in the TPD. The problem was that there was no statistics. The committee had heard that there was a crisis but nobody had taken the initiative to keep the statistics. The issue was not only about criminal cases but also about civil cases. It was not like the committee did not want to champion the TPD's cause and lobby for more personnel. The committee first had to see the problems in black and white. Other courts did not have appeal backlogs. The Eastern Cape was a case in point and had take steps to deal with the backlogs. One could not constantly throw money at a problem without seeing if the solution would work. The department had identified lack of court capacity as a challenge because they wanted to address it.

Mr Jiyane replied that part of the audit that was done in relation to the High Courts was based on data/ statistics from the prosecution. The High Courts would remain a challenge until such time that there was data that could be used to justify the creation of posts. The Judge President of the TPD had indicated that he had been using acting judges and that this was a problem that contributed to the backlogs. The advocates that were used as acting judges were sometimes not available. The government was exploring the possibility of creating an additional bench in that division. The e-scheduler would address the lacuna in terms of how to address the problem in the absence of statistics. It had been suggested that the e-scheduler should be introduced in the High Court so that the department would be able to track the performance of courts and assist them. There was a system that the department was applying in the civil section of the court. The department had been able to see how productive the section was in civil matters. There was no such system on the criminal side and the e-scheduler would be the ideal solution.

He said that finalisation of the Superior Courts Bill also had an impact on the request made by the Judge President. One of the proposals of the Bill was to create two divisions. One of the issues that the department and the Judge President had been dealing with was how the department would deal with the issue after the opening of two divisions if it were to increase the number of judges now as per his request.

Mr Joubert was surprised that 23% of cases were reminded for further investigation. He was under the impression that courts did not transfer cases to regional courts until the investigations were complete.

The chairperson said that part of the problem was one did not know what the evidence would lead to and whether the docket should go to the regional court.

Mr Joubert said that keeping the docket at the magistrates’ courts would lessen the backlog at the regional courts.

The chairperson had concerns about what the department considered to be a backlog case especially in relation to regional courts.

Mr Jiyane replied that there were two systems in operation applied by the regional courts. District courts magistrates were saying that they did not want to have cases meant for the regional courts in their rolls. They had argued for the judiciary to take lead in terms of cases registered on their rolls. The problem was that one could never be sure whether a case that was still under investigation would end up at the regional or district court. The department was encouraging a screening process whereby the district courts would screen cases that had to go to regional courts. Cases that were on the rolls of districts courts and were fully investigated would be fast tracked.

Mr van der Merwe said that one could not get statistics from the Pretoria High Court. He said that he had placed a question in the Order Paper to the Minister of Justice and Constitutional Development as to how many High Court judgements were being reserved for longer than three months and she could not answer. There was no statistics at the Pretoria High Court and one had to wait for at least two years for a civil case to be on the roll. He had thought that a very large percent of the 15 000 warrants issued per month were for traffic offences and Mr Jiyane had disagreed with this. He asked the department to explain the warrants. He also asked if there were problems in relation to interpreters, transcribers and court staff. He wondered if having more judges, magistrates and prosecutors would solve the problem.

Mr Jiyane replied that this was related to criminal matters and not traffic cases. There were various reasons as to why people had decided not to go back to court after having been granted bail. The court system would be undermined unless something was done about this. The police had made significant inroads by arresting people who had not returned to courts or contravened their bail conditions. The project was not about adding numbers without dealing with the real issues. There could be justification for additional resources where statistics were available. The department and the Magistrates’ Commission had analysed the workload of the lower courts and compared it to the number of available posts. The study revealed that some areas had more magistrates. It was recommended that such magistrates should be moved to areas that had heavier workloads. Some areas had posts that were vacant. It was recommended that such posts should be transferred to other areas. The same could be said about prosecutors. There was a significant improvement in their budget. The intention was to appoint two prosecutors per court.

The chairperson said that the department was basically dealing with outstanding warrants and not really dealing with the underlying problem which was that the courts were granting bail to people who were not suppose to get it.

Ms F Nyanda (ANC) [Mpumalanga] noted that the National Prosecuting Authority and the South African Police Serve were monitoring the quality of investigations (and time taken to conclude them) and evidence. She asked if this was taking place across all provinces.

Mr Jiyane replied that part of the integrated case flow management guidelines suggested that the police and the prosecution should work together to ensure improved investigations. Some cases were postponed for further investigations due to quality of the initial investigations. It was agreed that prosecutors should be involved quite early

Ms Camerer noted that plea and sentence agreements or plea-bargaining were reached on 2 164 offences. She asked over how long this had taken place.

Mr Jiyane replied that this number included numbers from 1 April 2006. The reason for including this figure was to show how this process was working.

The chairperson wondered why the standard for measuring backlogs in regional courts was similar to that used in district courts. Regional courts dealt with severe cases as compared to districts courts and it was insane to have the same time limits for the two divisions. There were huge backlogs in the regional courts and this would be artificially inflated if the time limit was put at six months. Most of the serious cases dealt with in regional courts were not concluded within six months. She could not understand why the department wanted to increase the time limit in relation to High Courts from 12 months to 16 months. The period of 12 months was not unreasonable in a criminal trial.

Mr Jiyane replied that the definition of backlog was simply a working definition and the department would welcome any suggestion from the committee on the definition.

Ms Camerer wondered why the department has some prejudice against Saturday Courts. Those courts were successful. They could be used in moderation in reducing the backlogs.

The chairperson said it was wonderful to be paid overtime. People might go slow during the week and leave the ripe cases for consideration on Saturday. Having Saturday Courts running as overtime work could lead to some abuse. She wondered why a court week did not start on a Tuesday and end on a Saturday. It had always been said that witnesses were not available because they were working and could not get leave and people got up to different things on weekends.

Ms V Meruti (ANC) agreed that Saturday Courts were very successful. She asked if the department could shed more light on the reasons for the withdrawal of cases.

The chair said that the withdrawal of cases was a perennial problem. It was important to have a fuller understanding of the reasons for the withdrawal.

Mr Jiyane replied that the withdrawal also included cases wherein there had been an admission of guilt. The department would give a breakdown and reasons for the withdrawals.

Mr van der Merwe said that lawyers normally did not appear in Saturday Courts. The courts normally dealt with undefended and this had an influence of the statistics.

The chairperson agreed. People who worked in the Saturday courts were paid overtime and were prepared to sit longer hours.

Mr Jiyane replied that Saturday courts were not a solution to the problem but generated more administrative problems. The department had allowed the Saturday Court in Protea to continue but was looking at folding it back in February and accommodate it in Lenasia. The Minister had also disagreed with the reintroduction of Saturday Courts. Some people had raised the possibility of night courts and courts sitting on weekends.

Mr van der Merwe asked how many hours a court could sit in a day. He also asked why courts sat an average of three hours whereas they could sit for six hours per day. Why did they not six for the maximum hours?

The chairperson said that it was technically possible to seat for six hours.

Mr Jiyane replied that the average hours contained in the presentation indicated problems on the ground. The problems could be around management, witnesses or late start of proceedings. All courts should sit for at least five hours. This issue of hours was built into the contract of employment (especially the employment of retired judges) and people employed on contract should seek to finish their cases before the expiry of the contract.

The meeting was adjourned.