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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 March 2007
ANNUAL REPORT AND BUDGET VOTE HEARINGS: DEPARTMENT BRIEFING
Chairperson: Ms F Chohan-Khota (ANC)
Documents Handed Out:
Legislative and Constitutional Development Branch presentation
Legislative Programme 2007
Summary of Report on Position of Acts
Position of Acts: 28 February 2007
Constitutional Court cases in 2006
Budget Summary- Legislative and Constitutional Development
Chief Master presentation
Chief Master’s Report 2007
Chief Master’s Report: Branch Summaries Budget
Guardian Fund presentation
Budget Summary - State Law Advisors
Projects Completed by South African Law Reform Commission from 1994
Presentation by Justice College
Justice College Work Programme 1 April 2007 to 31 March 2008
Justice College Budget
Office of the Chief Litigation Officer presentation
Chief Litigation Officer Budget vs Expenditure Outcomes
Chief Litigation Officer Statistics: Part1 & Part2
Department’s Legislative Priorities for 2007
Audio recording of the meeting
The Department of Justice briefed the Committee on various programmes and their budgets.
The Master's Office noted that there had been some underspending, that there were staff vacancies, and that there was lack of capacity. Statistics were presented on the work being handled. Challenges included the accessibility of Guardian's Fund services, the accessibility of quality services in deceased estates, boosting the credibility of trustees, better customer focus and services and better stakeholder management. Strategic objectives included modernisation of the services, automation of the business process, and updating the legislation. Questions by members related to lack of skilled staff and automation. The Committee requested a more specific report on issues raised by the Auditor General.
The Chief State Law Advisor, provided an overview of the budget, which showed a 40% increase on the previous year. There had been division of the Legal Advisory Services between the State Law Advisors and the Chief Litigation Officer. 93% of all instructions had been finalised in the previous year. There were 39 out of 48 approved posts filled. Questions related to under spending in the previous year, and whether there was any conflict of interest in extending services to municipalities.
The newly appointed Chief Litigation Officer stated that the function of litigation had previously been with the Legal Advisory Services, but the structure of the office was yet to be finalised. Current challenges to the Office included the problem of right-sizing human and other resources, the limited publicity around the office's operations, competition to the State Attorney's office by poaching staff. There were attempts to keep Magistrate's Court litigation in house. Current projects included increased professional profile of the State Attorneys' offices, creation of in house Counsel, and publicity. The budget had been increased by 6.5%. Questions by members related to the new structure, the time frames, and staff morale.
The Legislative and Constitutional Branch outlined the differences in budget, and detailed the work of the chief directorates. The composition and responsibilities of the South African Law Reform Commission were outlined. The work of the Rules Board was detailed. The legislative programmes were also set out, as well as the achievements over the last years. The budget showed a 25% increase and noted seven out of 81 vacant posts. Questions put by the Committee included the content and progress of the Constitution Amendment Bills, the deadline for the provincial and local government issues, priority bills, the amount of legislation remaining unfinalised over the last ten years, the Equality Regulations, the current status of the Muslim Marriages Bill and the ordering of priorities. Further reports were to be sent to the Committee.
The Justice College gave a detailed presentation on its budget, its progress on transformation, enabling frameworks, methods of training, new target groups and current status of funding. The College would be developed as two separate institutions, one dealing only with judges and magistrates training and another to train a wider range of practitioners. The steps to refine the curriculum were set out. Members asked questions about the spending on personnel, vacancies and methods of dealing with them, the increase of the budget, the attitudes to the legislation on minimum sentences, how the budget would be spent, the high vacancy rate, the right sizing exercise, and whether it was possible to audit the numbers of magistrates participating in social context training. The Justice College was asked to provide more comprehensive reports, and audit reports.
Office of the Master: Briefing
Mr Hassen Ebrahim, Chief Master, briefed the Committee on the current state of the Office. with the Office of the Chief Master, presented the current state of the Branch. He noted that there had been some underspending, that there were staff vacancies, that there was lack of capacity. The new budget allowed for once-off expenditure. The growth of the budget did not match the growth of business. Service point files had increased from 47 000 to 63 000 from 2005 to 2006, Estate matters for small estates were fairly stable, but increasing for larger estates, probably because of new entrants to the formal sector. Insolvencies were declining. The Guardian's fund was at around R4 billion, and did not show signs of stabilising. Major challenges included the accessibility of Guardian's Fund services, the accessibility of quality services in deceased estates, boosting the credibility of trustees, better customer focus and services and better stakeholder management.
Mr Ebrahim presented the results of a study done in Durban. This had indicated that 182 out of 972 estates registered had minors as the sole beneficiaries. Only 47% of minors were represented by their legal guardians. This led on to the strategic objectives for the Master's Office, which included modernisation of the services by reforming the legislation and automating the business process. The enhancement of the legislation would also provide more effective regulation of administrators and develop better monitoring capacity. Finally he tabled how the Master's offices fitted into the whole structure of the Department, indicating their role in shared services, administration and legal services.
The Office had prepared a brief overview of the efforts underway, led by the office of the chief Financial Officer, targeting the accounting environment of the Guardian's Fund. This had identified the challenges, the reasons for them, the methods of accounting, and the interventions that the CFO would make to improve the situation.
The Chairperson said there was a need to prioritise a visit to the Master’s Office.
Mr J Van der Merwe (IFP) expressed concern with the lack of skilled staff and questioned why this was the case.
Mr Ebrahim replied that his research showed that most of the people who were hired, although LLB graduates, lacked practical experience and skills to perform tasks like writing affidavits.
Ms S Camerer (DA) asked what efforts were being made to bring the systems up to future plans and to alter the way Master’s Offices were run.
Mr Ebrahim replied that to date 60% of the sites were automated and that more progress would come.
Ms Chohan-Khota requested a more specific report on the issues addressed in the Auditor General’s report.
Office of the State Law Advisor: Briefing
Mr Enver Daniels, Chief State Law Advisor, provided an overview of the budget for the Branch. The budget for the 2007/09 financial year had risen to R30.8 million, of which R26.6 million was accounted for under compensation of employees. This was a 40% increase on the previous year. Mr Daniels noted that the budget included provision for videoconferencing facilities. He noted that there had been division of the Legal Advisory Services between the State Law Advisors and the Chief Litigation Officer. He noted that in the previously year 93% of all instructions had been finalised. Reliance on private sector legal advisory services was reduced. He stated that there were currently 39 out of 48 approved posts filled.
Mr M Malahlela (ANC) questioned the reason for R2.6 million under-spending in the previous financial year.
Mr Daniels responded that the under-spending was a result of money taken from the Branch and then only returned to it at a later time. He said that the money had been moved to another division when the Department of Justice decided to do a re-prioritisation of the work.
Mr Van der Merwe requested clarification of the role of the Chief Litigation Officer.
Mr Daniels referred the question to Ms Lindiwe Vilakazi, the Chief Litigation Officer, for comment at a later time.
Ms Chohan-Khota asked if there were conflicts of interests involved in extending services to municipalities.
Mr Daniels replied that there were none.
Chief Litigation Officer Briefing
Ms Lindiwe Vilakazi, Chief Litigation Officer, stated that the function of litigation had previously resided with the Legal Advisory Services, so her position was not completely new. She said the structure of the Office was yet to be finalised. There were ten state attorneys ' offices in the country. The Chief Directorate of Legal Administration consisted of directorates of law enforcement and legal process. Current challenges to the Office included the problem of right-sizing human and other resources, and the limited publicity around the office's operations. She noted that State attorneys were in competition with the private sector, which often litigated against government, and that as a result there were high turnover and vacancy rates as reflected in the budget. She also said that efforts were being made to keep Magistrate's Court litigation in house and to prevent outsourcing. Projects for the year included the process of turning State Attorneys' offices into professional units, creating in-house Counsel, publicising criminal and civil process applications, roadshows to promote access to services, promotion of the Legal Charter and roll out of an HR development plan. Lastly she said that a major task for the Office was to produce a litigation risk analysis report and to formulate a litigation strategy for government. It was vital to establish the sufficient capacity to carry out the projects. The budget for the next financial year was increased by 6.5%. There had been about R3 million under spend in the last financial year.
Mr L Joubert (DA) asked what Ms Vilakazi’s position was in the Office and what the structure looked like.
Ms Vilakazi replied that the structure was still under construction, but that she reported directly to the Director General and that the State Attorney was under her.
Mr Malahlela asked what time frames were put in to place to deal with the challenges of the Office.
Ms Vilakazi replied that they hoped to implement their HR development plan by the end of 2007.
Ms Chohan-Khota raised the issue of staff morale in a situation where staff was overburdened with work.
Ms Vilakazi agreed and stated the need to create an enabling environment to deal with staff morale.
Legislative and Constitutional Branch Presentation
Mr Deon Rudman, Chief Director: DOJ, briefed the Committee on the composition of the Branch, and the budget and highlighted the Chief Directorates of Law Reform, Legislative Development and Constitutional Development.
He briefly noted the differences in budget from the previous year. The amount budgeted for 2007/8 was R47 million. and He discussed the composition and responsibilities of the South African Law Reform Commission and the Rules Board for Courts of Law. With regard to the Rules Board, he mentioned several rules already passed as well as others that were currently under consideration.
Mr Rudman then went on to highlight the implementation of legislation within the Chief Directorate of Legislative Development, outlining the legislative programme. He listed the Bills currently before Parliament and noted the progress of matters since 1996. The Bills identified for promotion in the 2007 session were tabled. They included the Traditional Courts Bil, the Magistrates Courts amendment Bill, the Legal Practice Bill and amendments to legislation covering succession, magistrates, National Prosecuting Authority and jurisdiction of Regional Courts legislation. The achievements of the branch were detailed over the last years.
Mr Rudman described the strategic objective of the Chief Directorate of Constitutional Development to transform justice, state and society, and to develop and implement a programme that gave effect to the constitution and its values and to assist and protect state institutions that strengthened constitutional democracy. He tabled an organogram, described the activities and noted that the Directorate was involved in a number of joint drafting or task teams. The legislative programme for this Directorate was summarised.
Mr Rudman tabled the budget for the year, which showed a 25% increase to R47.6 million. He also tabled the outputs. There were seven out of 81 vacant posts.
The Chairperson felt that several matters needed to be clarified. She asked about the constitutional amendment bills 13 and 15, whether or not they were centered on the demarcation issue.
Mr Rudman replied that Bills 13 and 15 did not deal with demarcation. He clarified that Bill 13 dealt with the renaming of National Defence Force in the Constitution itself, whereas Bill 15 only dealt with financial issues.
Ms Chohan-Khota asked whether the issue with the provincial local government had to be prioritized by September.
Mr Rudman stated that he was unsure of the deadline but confirmed that the issue that it deals with the State Liability Act.
Ms Chohan-Khota informed the members that she had sent Mr Rudman a list of priority bills and was working with him prepare a revised document and a time frame document to indicate a concise list of issues that the Committee could tackle during the year.
Ms Camerer was particularly concerned with Amendment 14 and the White Paper. She questioned why there were no mention of the White Paper with relation to amendment 14 in Mr Rudman’s documents. She also asked for an explanation regarding the implementation of the 1998 Act which was passed nine years ago. She requested that the information about the fulfillment of the Act be provided for the teams of assessors still waiting for information.
Mr Rudman responded that he was not the party responsible for finalizing the White Paper and thus could not address it.
Mr Joubert was astonished that was still in existence legislation dating back more than ten years that had not yet been implemented. He asked if any solutions were available to correct the situation.
Mr Rudman answered that there was indeed a legislative program in effect, but that there was an extended list of priorities and over 54 bills all in various stages of progress. He added that every effort was being made to introduce more bills.
Ms C Johnson (ANC) asked when the members could expect regulations regarding the previous year’s Equality Review to be put into operation.
Mr Rudman said that the Equality Regulations had been finalised and were in the process of being submitted to Parliament.
Mr G Solomon (ANC) asked Mr Rudman to provide an overview of the current status of the Muslim Marriages Bill.
Mr Rudman noted that the Muslim Marriages Act was based on the South African Law Reform Commission's recommendations. He said that there were several concerns raised about the Act by the Muslim community and because of this, the report was still being researched and more consultation was necessary before it was finalised.
Ms Chohan-Khota raised some dissatisfaction with the presentation. She said that she was unsatisfied with the Law Reform Commission’s ordering of priorities. She said also regarding the Statutory Law Review Budget, that although progress reports had been provided, there was a need to have a more detailed progress report and a written report from staff as soon as possible. She also noted that Mr Rudman could be called in at a future time to further discuss the budget. Finally, she questioned why the Law Reform Commission produced so few reports in 2005 and 2006 as compared with earlier years.
Ms Camerer asked whether or not it was reasonable to expect to see the Customary Law of Succession Report, which first was introduced in 1998 and placed as a bill for promotion in 2004 and 2006, come before Parliament in 2007. She also questioned the length of time it took to finalize the appointment of the Rules Board.
Regarding the number of reports produced by the Law Reform Commission, Mr Rudman replied that there were several contentious issues dealt with by the Law Reform Commission. He noted that there were seven vacancies in the branch and also that as these posts were filled, the researchers would be tasked with investigating the statutory law review as prioritised by the Ministers and the Deputy Ministers. He also noted that attempts were being made to finalise and introduce the Customary Law of Succession Bill this year, but that as a result of the re-prioritisation process, they may not be able to do so. In reply to Ms Camerer's question, he noted that the Rules Board had remained unappointed for five months because of ongoing consultations on the composition of the Board.
Mr Joubert asked what criteria had been used to determine the list of priorities of the Law Reform Commission.
Mr Rudman replied that priorities were determined according to issues of highest priority.
Mr Solomon requested clarification on the Law Reform Commission’s discussion papers, issue papers and reports.
Mr Rudman responded that the usual process involved the creation of the Issue Paper, when a project was being researched. The Issue Paper would set out the problem areas and initial thinking on a project and was followed later by the Discussion Paper, followed again by the Report, which was prepared as a recommendation for the Minister.
The Chairperson requested further reports from the branch.
Justice College Briefing
Mr Johnson began the briefing with a look at the budget for the Justice College. He highlighted the account activity for the three year period between 2005 and 2008. He noted that in the 2005/2006 year there was an overall under-spending of R2,8 million. In 2006/2007 the budget was increased by 38.69% and as a result, there would be a ‘saving’ of R2,4 million. In 2007/08 the budget would increase by 15.61% due to extended programmes and international affairs. He also stated that the existence of under-spending was in part due to the non filling of several vacant posts within the branch, that would soon to be filled.
Ms Jacqui Ngeva, Head: Justice College, briefed the Committee on the Justice College’s progress on transformation and its enabling framework. She highlighted efforts to train magistrates and fill vacancies in the department. she tabled the model of the institution and the structure of the college. Target groups for the new structure were set out. She also discussed the current status of funding for the Justice College. She said that because current funds provided by USAid would run out at the end of the fiscal year, an additional R5 million would be needed to fund training programmers for the magistrates. She further stated that once the Judicial Education Institute Bill was passed, the College would be developed as two separate institutions, the South African Justice Education and Training Institute and the South African Judicial Education Institute. The Justice Education and Training Institute would not continue to train magistrates, but the target group would be increased in both occupational groups. The establishment allowed for 30 lecturers, and 28 posts were currently filled. The new structure envisaged far more trainers. The other relationships with the profession were set out. The curriculum was being refined and transformed. e-learning studies had been concluded. She briefly set out the Judicial Education Institute Draft Bill
Ms Chohan-Khota questioned Mr Johnson on the existence of an international or national acceptable variance in the projected spending on personnel.
Mr Johnson replied that there was no such standard or acceptable variance and added also that one reason for the empty posts was the internal promotions in the branch. As a result there was always a need to fill posts as they became vacant.
The Chairperson agreed, but asked if the Department of Public Service and Administration would have a standard that would be applied to ensure that there was not an unhealthy deviance between projected and actual expenditure for personnel. She asked if there were international best practices along these lines.
Mr Johnson replied that to his knowledge, Public Service and Administration had no such standard.
The Chairperson conceded that this was an issue that would need to be pursued and investigated further. She suggested that comparative studies be conducted with other departments to understand their experiences regarding vacancies and ways in which their solutions could be applied to the Justice arena.
Mr Solomon questioned the increase in the budget for the Justice College from 2005-2006. He also inquired about the attitudes of the magistrates to training and the issue of minimum sentences.
Mr K Behari,Justice College, agreed that there was a controversy surrounding minimum sentences and that amongst the magistrates, there were mixed attitudes to the minimum sentences as well as much concern about the inequalities of the legislation on minimum sentences.
Mr Joubert requested clarification how the College would spend the budget of R60 million for the 2007/2008 year.
Ms Ngeva replied that the College would see an increase in the number of people trained and as a result, the increased budget would cover the training of these individuals.
The Chairperson was horrified at the existence of a 30% vacancy of posts at the Justice College.
Ms Ngeva replied that the percentage would be reduced as more posts were filled. She also said that there were policy issues around right sizing.
The Chairperson raised concerns with the College’s efforts to conduct a right-sizing exercise without an understanding of where it was going. She requested that the College provide a full explanation on the vacancies in the College, especially the length of time the vacancies had existed and in what roles these vacancies existed. She requested also the plans of the College going forward, and also a report on what posts were approved in terms of right-sizing. Finally she requested full explanations of the tables reflecting the current Establishment
Ms Johnson asked whether there was a way to determine or audit the number of magistrates that participated in social context training.
The Chairperson agreed that this type of audit was absolutely essential. She said that the College needed to be focused on the outcomes of the training provided in order to ensure that training was widely effective. She argued that continuing judicial education was vital for judicial transformation. She said the College must be robust in producing administrative and service outcomes. It should be identifying magistrates that needed to be trained and evaluating the attendance of magistrates at training. She requested a separate report detailing the prior goals and targets and an explanation of whether those goals were met, as well as an analysis of the possible failure to meet those goals.
Mr Solomon was concerned that there was no single vision of the judiciary. He advised the existence of a single judiciary with a single body for training members of the judiciary.
Ms Ngeva replied that there would be two training institutions, one for the judiciary - that would include both magistrates and judges - and the other for other professionals.
Ms Chohan-Khota noted that currently the Department dealt with a large number of magistrates. She said that the current efforts were geared towards changing the appointments procedure to ensure that the steps taken were in pursuance of certain goals. She said also that emphasis was on training the pool of magistrates. She argued that the entire process was complex and as such required more planning and policy making. She concluded by instructing the Justice College to provide more comprehensive reports as well as audit reports.
The meeting was adjourned.