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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 March 2007
DEPARTMENT ANNUAL REPORTS AND BUDGET VOTE: BRIEFINGS BY MINISTER AND DEPUTY MINISTER, DIRECTOR GENERAL AND CHIEF OPERATIONS OFFICER
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Speaking Notes for the Honorable Minister BS Mabandla, MP
Update report on the status of the Department MMT PPP
Annual financial statements for the monies in trust: Part1, Part2 & Part3
Presentation by Corporate Services: Part1 & Part2
Audio recording of the meeting
The Minister and Deputy Minister of Justice addressed the meeting. The Minister reported that the budget increased on average by 13.6% from R4.966 billion in 2003/4 to R7.54 billion in 2009/10. The key strategic focus areas were access to justice for all, enhancing organizational efficiency, and transformation of justice state and society. The achievements included two new court, roll out of the departmental computer network, implementation of the digital court recording solution and improvements to security. The criminal justice review had been undertaken and the Department was busy with Bills on the transformation of the judiciary, the Legal Services Charter and the Khampepe Commission into the mandate and location of the Scorpions..
The Deputy Minister elaborated on an audit of the Sheriff’s Office, and said he was confident of progress for the Small Claims Court. High on the agenda was the transformation of the civil justice system. The Department was also making strides in the backlog project, and was looking at a review of the criminal justice system in order to bring all the role players under one Department. The government business initiative was running. Questions by Members related to whether there would be an increased budget, the state of the liquidation industry, the finalisation of the paper on the transformation of the judiciary, and the judicial training institute. A proposal was made that perhaps magistrates needed to be given immunity from civil proceedings. Further questions related to civil execution processes, the parliamentary lawmaking function, the Guardian's Fund, the state of certain courts, the legislation governing the legal profession, in particular different qualifications for advocates and attorneys, the computerisation of the Courts and the problems in disciplining magistrates, many of whom might be drawing pay while suspended. Other queries related to court managers and minimum sentencing. Periodic reports were requested for the Committee.
The Director General noted that the current budget of R467 million was insufficient to cover the construction of about 10 courts as well as court maintenance. As a result the Department had to rearrange its priorities. Status reports on Courts would be provided by the Department of Public Works. There were moves to align the mobile and periodic courts and increase the number of mobile courts. The IT systems were not yet on track. The new "JDAS" system would shortly be launched. The Department was investigating protection against damage to the systems by computer hackers. There was a 10% vacancy rate. Better resources were being given to the judiciary, and the library had received a substantial boost of funding and resources. The justice system would be under review shortly. Members reminded the Department that the Committee was still awaiting a plan on human resources, a report on the courts and one on salaries of magistrates. Questions were asked about the upgrade of the court, the percentage of the budget spent on unfunded priorities, construction priorities, the lack of identical systems at High and Supreme Courts, security at the courts, the internship programme, devolving of responsibility to regional officers and the shift in budget of two courts to KwaZulu Natal. The qualified audit report was interrogated and information sought as to what had happened with the Guardian's Fund.
The Project Manager clarified the qualified audit and explained the dispute around the nature of the funds. He described the new operating model, and funding and expected time frames for the implementation of the new system. He reported that tenders had been received for this process. The Chief Operations Officer said that his unit was finalizing the report on the implementation of recommendations from the Truth and Reconciliation Commission. It was also collaborating on regulations. Risk management policies had been designed. Security issues were receiving attention but the budget was not sufficient. He described the work of the Corporate Services division and covered the human resources aspects, challenges and action steps. The questions on this would stand over to the following day.
Address by the Minister of Justice
Ms Brigitte Mabandla, Minister for Justice and Constitutional Development (DOJ and CD) discussed the 2006/07 and 2007/08 budget allocations. The budget increased on average by 13.6% from R4.966 billion in 2003/4 to R7.54 billion in 2009/10. R1.07 billion represented a direct charge against the National Revenue Fund for salaries of judicial officers. She set out the budget allocations by programme. He key strategic focus areas were access to justice for all, enhancing organizational efficiency, and transformation of justice state and society There would be a focus on improving service delivery. Under access to justice the main programmes would focus on improving infrastructure, the repair and maintenance programme, service delivery and the National Youth Services Programme (NYSP). The achievements included two new court, roll out of the departmental computer network, implementation of the digital court recording solution and improvements to security. She summarised the major projects under these focus areas. She highlighted completion of the criminal justice review, Bills on the transformation of the judiciary, the Legal Services Charter and the Khampepe Commission into the mandate and location of the Scorpions..
Briefing by the Deputy Minister of Justice
Mr Johnny De Lange, Deputy Minister of Justice and Constitutional Development elaborated on the issues of Small Claims Courts and the Sheriff. He informed the Committee that DOJ had embarked on an audit of the Sheriff’s Office and was confident that the Small Claims Court and the Sheriff’s Office were going to definitely progress this year and the following years.
Transformation was the major theme for DOJ and this was interpreted as the dismantling of the apartheid structures and replacement by a structure that was fully in tune with and pursued the spirit of the Constitution. High on the agenda was the transformation of the civil justice system which had been severely ignored in favor of the criminal justice system.
DOJ was also making strides in the backlog project. This aimed at reducing the current clogs in the system by hiring outside capacity. These included senior lawyers or retired lawyers, who were not part of the system, and this had caused consternation to professionals in the current legal system. DOJ hoped they would clear the high backlogs, such as the appeals in Gauteng.
DOJ was also looking into reviewing the criminal justice system in order to bring all the role players under one Department. This would have the advantage of identifying blockages more easily and taking steps that would completely free up those blockages. Finally the government business initiative had got off the ground and DOJ was hoping for progress even by the following month.
Mr S Swart (ACDP) asked what the Department was going to do to make sure that the increased capacity appointed to deal with backlogs would tie up with an increased budget, so that not only was it cleared but there would in future be fewer backlogs.
Ms Mabandla replied that there were many reasons for backlogs. They were not necessarily related to the competencies of personnel, but also were caused by the infrastructure availability and the extent to which there were resources. As to issues of competency, these were not only the problem of state personnel who delayed coordination but were also related to the ethics and behaviour of practitioners. DOJ needed to inculcate a change of mindset and greater commitment. Nevertheless, it was confident that in the long run it would reduce the backlogs. Backlogs did not necessarily have to do with budget, but equating the numbers also helped.
Mr Swart asked if the Department could give the Committee any indication as to what was happening in the liquidation industry, as he was aware that there was a departmental investigation into the allegations of corruption.
Ms Mabandla replied that DOJ never had any inquiry into the allegations. When she took office there were indications of problems and she wanted to know what these were. She was happy to inform the Committee that the industry’s problems had improved even though the whole process was still under work.
Ms S Camerer (DA) asked if the Minister and Deputy Minister had finalised the draft paper on the transformation of the judiciary, and when the Committee would be able to engage with the draft.
Ms Mabandla replied that the issues of legal and judicial reform were still under discussion in various tertiary institutions, and these issues would feed into the Department’s investigations. That is why there were two Bills pending, precisely because there were dialogues to be engaged with.
Ms Camerer asked about the substantial funding being made available for the building of the judicial training institute. She added that it seemed as if DOJ had already reached their decision and she inquired what it was.
Ms Mabandla replied that there was no final decision on the site, but it was on government land. There were many possibilities when it came to the pieces of land, so funding had been set aside to cover all feasibility studies.
Mr L Joubert (DA) asked if there was any thought that magistrates should be protected along the same line as were the judges of the High Courts
Mr De Lange replied that the Department already gave full protection to the magistrates, as it had a contingency liability of R6 billion, of which the majority covered were magistrates. He thought that the issue was referring to a particular magistrate who, in his opinion, should not be protected because he had overstepped his power in making decisions as to who should get legal aid. The Legal Aid Board had approached him and asked him to refrain from making appointments, as they were not part of his mandate. The judicial officer had refused and continued to appoint legal staff, and in the end Legal Aid had appointed a private lawyer, who was being paid from state funds, to obtain the necessary Order against the magistrate. The issue was that it had involved taxpayers’ money.
Mr Joubert asked where the Department stood on the issue of the protection of certain homes against civil execution procedures. He noted that in the previous year the Minister had mentioned that it was high on the agenda but it seemed as if nothing had occurred.
Mr De Lange replied that if the Committee checked the legislative programme this issue was in fact outlined and there would be changes to the law. The Department was looking into proposals that would substantially change the regulations and rules, including the area of auctions and attachments. .
Mr J van der Merwe (IFP) asked for clarification on where Parliament’s legislative functions ended and where the judicial power to make law began.
Mr De Lange replied that there was a lot of debate over the issue and South Africa, like other countries, had decided that adjudication of legislation was the exclusive reserve of the judiciary. Most countries accepted that all functions of administration that could not be distinguished from judicial functions, such as the allocation of cases and the running of court rolls should be left to the judiciary. The whole area of budgets, resources, building of courts and all the areas where there was a need for public accountability would then be the preserve of the executive. The current debate was whether this line should remain unchanged, or whether the resources and policies should also fall under the judiciary.
Adv C Johnson (ANC) asked whether there were any improvements regarding the Guardian’s Fund as she recalled that the previous year the Department had mentioned that it was working on its current weaknesses.
Mr De Lange replied that one of the problems with the Guardian’s Fund was that many had complained that there was massive corruption, but as soon as the Department had called for evidence furnished in the form of affidavits no one came forward. There were a few cases found where there was blatant corruption, and here the Department had prosecuted the perpetrators.
Ms N Mahlawe (ANC) remarked that she wanted to bring the matter of the Umzimkulu Magistrate’s Court to the Minister’s attention. The area faced constant natural disasters and last year the Court house had flooded and all the documents were destroyed. She brought the same issue up in 2005 but it seemed that nothing was being done. There was available land to build a new court there but there was no mention of this on their report.
Ms Mabandla replied that she had taken note of what was said and would definitely make a follow up and make inquiries into the matter.
Ms Mabandla remarked that if all went well the legislative framework was going to be presented to the public in two months or so for discussion. DOJ had decided, as a legislative priority, to put forward draft legislation that would hugely transform the systems and be to the benefit of the poor. The Judicial Services Amendment Bill was important to DOJ because it was time the judiciary had a safety net. She assured the Committee that the outstanding bills before parliament would be completed this year.
The Chairperson asked the Minister to meet with her Department and set certain issues as priorities, thereafter reverting to the Committee, because one of the problems the Committee was facing was the shortened parliament schedule for the current year.
Ms Mabandla remarked that the institution was important for the facilitation of the upward mobility of the judiciary, especially the magistrates, so that the courts might have adequate ammunition for transformation, reflection and education.
Mr J Sibanyoni (ANC) asked if DOJ was intending to amend the legal professions legislation so that people who qualified with a B Proc degree could be admitted as advocates, because at the present moment the requirement was the LLB.
Mr De Lange replied that the way DOJ would go with the legal profession legislation depended on the charter process. This was concerned mainly with access to legal services, and of course the legal profession was one aspect crucial to legal services. Whatever the outcome of the process, DOJ would follow that direction, but it would take these concerns into consideration. He further said that caution must be exercised and it should be remembered that appearing in court was not the same as the requirements to enter a certain profession. The remaining distinction between the two was that advocates could practise without a trust account but attorneys could not.
Mr van der Merwe asked when DOJ would be computerizing to have the same IT systems that available to the Supreme Court and the High Courts.
Ms Mabandla replied that the computerisation of the system had been rolled out to most other courts except for the Mabathu court.
Mr Joubert followed up on his question on the protection of magistrates. He said that he had been referring to protection of magistrates against civil action. There was a case where the magistrate issued a warrant for an interpreter to appear before the Court. The interpreter, having defaulted for two days went to the High Court and asked for the warrant to be set aside
Mr De Lange emphasised that DOJ had a contingency liability of R6 billion, and the majority concerned the magistrates. He further replied that the issue being brought was problematic because then DOJ would have to look for a vetting system, and the main question here would be who had the right to make a decision. There was a whole thinking process that had to be engaged with. He highlighted that previously this was not an issue because magistrates were civil servants and were regulated by the regulations relating to civil servants law. When this changed they fell under a commission that met once every three months, so they had no structure and they were therefore difficult to work with. He confirmed that the issue Mr Joubert had raised was important but the practicality and legality would have to be investigated. .
Ms Camerer asked how the DOJ would deal with delinquent magistrates with serious convictions because the current system whereby the magistrate was merely suspended or had been imprisoned whilst still being remunerated was not ideal.
Ms Mabandla replied that the problem lay with the Magistrate’s Commission which had the power to deal with delinquent magistrates. She could not understand why the magistrates were still being paid pending their cases. Moreover, this was an issue that the Deputy Minister was quite concerned about and it was a matter that needed to be addressed urgently. DOJ was trying to find a system that would deal with erring magistrates.
The Chairperson added that their major complaint was that if a magistrate was accused the best available solution was that the judicial officer be suspended with pay. What the Committee needed was a standard disciplinary action as such inconsistencies put the judicial profession in disrepute. The Committee had previously urged the Magistrate’s Commission to improve the situation but it seemed as if they were failing to do so.
Mr De Lange replied that DOJ would engage with the issues raised.
Imam G Solomon (ANC) asked how DOJ would deal with blockages in the backlogs, and suggested that the Port Elizabeth model was functioning well as an example of a model that could be rolled out nationally
The Chairperson asked if the Department could give the Committee an idea of how their initiatives came together.
Mr M Malahlela (ANC) asked whether the Department was going to explore alternative dispute resolution as this would help with the backlogs.
Ms Mabandla replied that this was one of the issues being discussed and the pilot project on this issue was quite advanced. Moreover, the Department had been in discussion with the magistracy over the same issue. She added that the Traditional Leaders' conceptualisation of their role in the constitutional dispensation should be able to move the Department closer to using their services so this was work in progress.
Mr de Lange added that everyone liked the alternative dispute resolution route, just like transformation. However, the problem with the alternative dispute resolution was that this would require the creation of alternative systems, and these would cost money.
Mr Swart asked if there was more efficiency in the courts because there were court managers.
Mr De Lange replied that logically that should be the case, as it would relieve the magistrates from all the administrative work and in theory leave them to focus on more legal work. Whether the system was yet efficient enough to give them more legal work was the question. In the long run the system was trying to crate a more independent judiciary.
The Chairperson asked how far the Department had progressed with the minimum sentencing.
Ms Mabandla said that the minimum sentence proposals were still yet to go to Cabinet. This would be done shortly because there still needed to be a proposal before parliament. She felt strongly that the Department should move away from the current dispensation. They would be guided by some sound advice that came from the Law Reform Commission on sentencing and also the important inputs made though dialogue around the minimum sentencing.
The Chairperson requested that the Committee receive periodical reports on Small Claims Courts and the Office of he Sheriff in order to be kept abreast of the problems the Department was experiencing, as it would add value to their engagements.
Briefing by the Director General: DOJ
Advocate Menzi Simelane, Director General, DOJ began by explaining to the Committee that he had not prepared a report because the issues he was going to cover had been raised in the Minister’s presentation, so that he would follow that format. He started with infrastructure. The current budget of R467 million was insufficient to cover the construction of about 10 courts as well as court maintenance. As a result DOJ had to rearrange its priorities. He informed the committee that many courts still needed to strengthen their security. Moreover, land had been identified for the Limpopo High Court but DOJ was now waiting for the appropriate go-ahead to start construction.
He informed the Committee that it would be receiving the status quo reports for every one of the 205 courts. These reports were going to be produced by the Department of Public Works (DPW) which meant that they would not be coming out of the DOJ budget.
Adv Simelane spoke on was the mobile and periodic Courts, which DOJ was seeking to align, and also looking to create mobile courts in areas that had no permanent courts but were still in need of judicial service.
DOJ was modernising the courts, removing the analogue and writing systems and improving service delivery by computerising the courts. Unfortunately the DOJ was behind schedule on the IT systems but was hoping to be done by June. The IT meant that in the criminal justice areas a great deal of work would be able to be automated. The main challenge in IT was the human resources required to operate the system, but DOJ had already automated the Kimberley, Bloemfontein and Cape Town Master’s offices. One system that was not yet fully publicised, but which was an exciting one, was the new "JDAS" system. DOJ was slightly behind schedule due to the fact of training the system should be up and running by July. He mentioned that even though modernising the system was good one of the challenges DOJ now faced would be security breaches by computer hackers. As of this morning DOJ was operating at 90% in human resource capacity. It was also looking into alternative dispute resolution as a way of creating better service.
DOJ stated that one of its major achievements and areas of work was in the awarding of resources to the judiciary. Laptops were going to be provided and DOJ was confident that this would contribute to a lessening of complaints. He confirmed, as the Minister had stated, that DOJ was also looking into ways in which the Small Claims Court and the Sheriff’s Office could be made to function optimally. It was also looking forward to reviewing the justice system.
Finally Adv Simelane noted that the DOJ had managed to implement proper library resources at a cost of R155 million. He noted that there would be high costs in capacitating the High Courts fully and for this reason DOJ might need to improvise and have contract workers placed in the beginning, to change to more permanent staff as matters settled.
The Chairperson commented that DOJ showed some significant improvements, especially in the IT department. However, it did not present a strategic plan on human resources (HR). In addition they owed the Committee two reports; one on the courts and one on the salaries of the magistrates and benefits of similarly qualified staff in the legal profession.
Mr Joubert asked what portion of the budget was spent on unfunded priorities.
Adv Simelane replied that the reprioritized money represented about 7 to 7.5% of the budget.
Mr Solomon asked which body had control over the R7million for maintenance and upgrade.
Adv Simelane replied that the allocation for the day to day maintenance rested with the Department of Justice, so each court had a minimal budget of about R30 000 that dealt with the smaller issues that did not disrupt the structure. He added that the money was reflected in their budgets but that DPW dealt with the whole processes. The DOJ would hand over the list of focus areas and DPW would then undertake the outsourcing for the work and would then completed projects with a bill.
The Chairperson asked for clarity of the previous year’s maintenance function because she was aware that this was not handled well.
Ado Simelane replied that the DPW took control of the function of maintenance, and therefore DOJ could not use tenders as initially planned.
Mr Sibanyoni asked whether the court in his constituency was one of the identified priorities as the court was operating from a store room.
Adv Simelane replied that this was one of the courts that were going to be constructed this financial year, and since the tender process had been completed the construction was going to commence soon.
The Chairperson commented that the Committee needed reports on all the re-prioritised areas and the money involved.
Mr van der Merwe referred back to his previous question on the computerisation of the High Courts in the same manner as the Supreme Court. He had been told there would be roll out of identical systems to all the High Courts. However, during lunch he called the courts in Gauteng but was informed that they were unable to access judgments online.
Adv Simelane replied that he was advised that one could get an electronic version of the records. The challenge was whether the human resources could produce the work. He confirmed that the system was definitely in place. He confirmed that he would check back and convey the information to the Committee.
Ms Camerer asked if DOJ had anything planned for 2007/08 on security, since Adv Simelane had mentioned that the Department had not even managed to get half way on this issue.
Adv Simelane replied that on the issue of perimeter security DOJ intended for all the courts to have the requisite infrastructure. To that effect DOJ had prepared a tender process for a firm to offer all the security services. The major issue was how to cover all the costs, because DOJ did not have the requisite funds. They either had to request a budget adjustment from National Treasury or re-allocate the funding. He added that all the courts that were re-prioritized for burglar bars had been fitted out.
The Chairperson remarked that DOJ was talking about the 50 courts that, last year, they promised would get fencing and additional infrastructure.
Adv Simelane replied that there was no money to cover the rest and DOJ would have to re-prioritize again.
The Chairperson remarked that DOJ had requested funds to cover this and it appeared that it had not received the funding.
Adv Simelane agreed that they had not received the funds.
Mr Malahlela asked for information on the internship program considering it had an allocation of about R10million.
Adv Simelane replied that DOJ was institutionalising the intern's programme and was actually looking forward to expanding it.
Mr Malahlela asked whether empowering regional officers was the best idea. He asked if there was any evidence that this was effective.
Adv Simelane replied that devolving responsibility to the regional office was a much better model and more efficient in the delivery of service. Its failure to work before had rested on the fact that there was insufficient capacity, and not that the model was poor. In addition the regions had shown competency in areas where they were fully capacitated.
Ms Mahlawe asked why the budget of the two courts that had been incorporated into KwaZulu-Natal was still in the hands of the Western Cape.
Adv Simelane replied the budget should have moved to KwaZulu-Natal and there should be an allocation to the courts themselves. He was not sure why this was not reflected. He added that he had not previously been made aware of this, but this was a small administrative issue that could be solved easily.
The Chairperson asked the DG to explain to the Committee why they had received a qualified audit and what the Department was doing about it.
Adv Simelane replied that DOJ was not pleased with that. This, however, was the audit that included the Guardian’s Fund, and the automated system being used for certain areas was the problem that had been identified. The challenges lay in the definition of who should account for the money. The AG had determined that it was income receivable to the department and for that reason it should be included in the Department’s budget. The Department, for historical reasons could not account for it, and hence this affected the general audit and resulted in the qualified opinion. The DOJ was engaged in changing the definition, since it was its view that the money was not receivable to the department, but was money in transit to third parties that was being looked after by the Department. The matter would be discussed with the AG and hopefully he would accept the position.
The Chairperson advised that the DOJ must finalise the discussions with the AG.
Briefing by the Project Manager, DOJ
Mr Alan Mackenzie, Project Manager, DOJ began by clarifying the qualified audit, and explaining the dispute of the AG’s claim that trust money was money receivable to the Department. He had a legal opinion, which had been worked on for some two years, supporting the DOJ's view. He thought it was imperative that the situation be properly understood.
He informed the Committee that the financial statements before them were just drafts and had not yet been finalised. He told the Committee that four years ago records of monies in trusts were largely not kept at all, and two years ago there had been production of records for one month for the first time. In the last financial year there was a set of accounts produced from the records, not a proper accounting system, and as a result these were incomplete and would result in a disclaimer report. The Committee had as an attachment the first set of incomplete financial statements. These were produced so that DOJ would be able to make an estimate.
Mr McKenzie covered the overview and output specifications of the new operating model. He described the next phase, funding envelope, and expected timeframes for the implementation of the new system. He informed the Committee that in respect of the proposal that the payments by the Court, for instance of maintenance, had been put out to tender and that three banks had thus far completed the tender. This system would however take some time to put in operation.
Briefing by the Chief Operations Officer
Mr Khotso De Wee, Chief Operations Officer, DOJ informed the Committee that his presentation was going to be an overview of the units for which his office was responsible. There were two very important matters emerging from the work on the Truth and Reconciliation Commission (TRC).DOJ had received inputs from the various departments in government as to how they were implementing the recommendations of the TRC. The report that contained this information was still being finalized. DOJ was also collaborating with the relevant bodies on regulations .
In regard to risk management Mr de Wee focused on integrity of management, and also on the fact that DOJ had developed policy on risk management. He felt that the most imperative issue was the finalization of the new system designs and the review process. He estimated that about R600 million would be required to cover the outstanding offices in terms of security, and unfortunately DOJ did not have sufficient resources.
Mr de Wee spoke about the Chief Directorate on Programmes support and administration and briefly mentioned their contribution to the 2010 World Cup.
Mr de Wee said that the strategy of the DOJ was now two years old and it felt that this should be reviewed, but the three main pillars would remain unchanged.
Mr de Wee touched briefly on the Corporate Services Division, describing what it comprised, and the officials. He set out the challenges and action steps taken.
Due to time constraints the discussion was postponed to the next day.
The meeting was adjourned.