Department of Justice briefings: Court Services, Master’s Office, Justice College, Chief Litigation Office, Chief State Law Advi
NCOP Security and Justice
28 May 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SECURITY
AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
28 May 2007
DEPARTMENT OF JUSTICE BRIEFINGS: COURT SERVICES, MASTER’S OFFICE, JUSTICE
COLLEGE, CHIEF LITIGATION OFFICE, CHIEF STATE LAW ADVISOR
Chairperson: : Kgoshi L Mokoena (ANC, Limpopo)
Documents handed out:
NCOP Select Committee
Briefing:Legislative and Constitutional
Development
Master’s Branch
Report
Justice College presentation
Office of the
Chief Litigation Officer
Statistical
report (pie charts): Office of Chief Litigation Officer
Briefing:
Department of Justice and Constitutional Development Branch: Court Services by
Mr S Jiyane
DDG Court Services presentation
by Adv S Jiyane
SUMMARY
Units from the Department of Justice briefed the Committee on their mandates,
work and strategies for 200. Court Services was concerned with alignment of
strategies and programmes. The forthcoming legislation was briefly described
and it was noted that since 1994 the Department had prepared 114 Acts of
Parliament and that only 8 had not been implemented fully. The strategic goals
included development and implementation programmes to give effect to the
Constitution and its values, underpinned by the ad hoc Committee presently
investigating the Chapter 9 institutions. An evaluation and promotion of the
Promotion of Access to Information Act and equality legislation and courts
was being conducted. Two amendment Bills aimed at strengthening the institutes
promoting constitutional democracy were being prepared.
The Master's Office tabled the statistics of work handled and noted that more
estates were now falling under the Administration of Deceased Estates Act. The
Office faced a problem in attracting and retaining sufficiently skilled staff
as many graduates were not displaying the required levels of numeracy and
literacy. There was an increase in the monies and matters falling under the
Guardian's Fund and there was need to have awareness campaigns on the necessity
to make wills, make provision for guardianship of children and acquire and hold
identity documents. Priorities included obtaining a clean audit report,
extending accessibility to quality deceased estate services, extending the
operation of the Act and services to the poor and rural areas.
Justice College reported on the overriding principle of achieving
transformation in racial and gender balances, attitudes and teaching. It aimed
to increase individual and organisational performance, help succession planning
and create a common culture. Presently the College was concentrating on
training magistrates, sheriffs and prosecutors and interpreters. It was also
facing problems with inadequately skilled graduates and noted the need to build
increased partnerships. The costs of training were being addressed by the
introduction of E-learning programmes
The Office of the Chief Litigation Officer was newly created with its structure
approved earlier in the month. The chief challenges lay in the right sizing of
human and other resources, reducing the adverse perceptions about cases handled
by the State, reducing competition between the State Attorney and the private
profession, and addressing the high outsourcing of High Court and
Constitutional Court litigation. It was attempting to turn the State Attorneys
offices to professional units, creating in-house Counsel, holding roadshows,
distributing information and promoting the Legal Services Charter.
The Department of Justice's Court Services division briefed the Committee
on its full use of the budget last year, and tabled a list of courts requiring
renovation and areas where courts would be constructed. The modernisation system, that would
include various electronic schedulers, recording, transcription improvements,
scanning solutions and the forthcoming roll out of electronically captured
dockets was described. Statistics on work undertaken and performance were
tabled. There was a major drive to reduce backlogs. Alternative dispute
resolution mechanisms would be used. Traditional Court issues had received an
extension until August for completion of the policy. Courts would increase
their capacity in the major townships. A new project aimed to fast-track
training of judicial officers, especially women. Family courts capacity had
been improved and maintenance follow ups were more successful.
The Chief State Law Advisor briefed the Committee on the process to pass laws,
and said that many of the services were being offered recently to
municipalities for assistance with their by-laws. This proved a cheaper and
more efficient option than outsourcing to private practitioners. The budget had
been increased to R29 million. The staff was increasing productivity and
extending services within the existing budget. Every piece of legislation dealt
with transformation, and was looked at subjectively from the Executive's
standpoint, while maintaining professional standards. A problem was that
legislation was often changed substantially from the initial drafts and further
was only certified in English, although his office was addressing this.
Questions were posed on the possibility of conducting training on drafting at
local government level, alignment of Court Service priorities, the need to
address insufficient numbers of court buildings and the working conditions of
staff, the definitions of vulnerable groups, removed cases, and part-heard
cases, and the fact that juveniles and adults awaiting trial were put in the
same cells. Further questions were asked about monitoring of court performance,
the demarcation issues, E-government systems,official
court languages, security at the courts,
the need to upgrade facilities, and the tagging of Bills.
Questions that were posed and answered in the morning session related to the
levels held by Chief Directors in the Department, the pre-1994 legislation that
still was on the statute books, whether all rules and regulations should be
tabled before the Committee, discriminatory legislation, including customary
laws, skills development issues, the challenge to the cross boundary
demarcations, the steps taken to ensure clean audit reports, the status and work of the Law Reform
Commission, and the African Peer Review mechanism report
MINUTES
The Chairperson expressed his condolences to a member on a family death.
Department of Justice (DOJ) Briefings
Court Services
Adv Pieter du Randt, Chief Director: Court Services, DOJ, briefed the
Committee on the work of the Court Services division. The main work of this
division lay in aligning departmental strategies and programmes. The Department
would be responsible for implementation of the Criminal Law (Sexual Offences
and Related matters) Amendment legislation that was currently before
Parliament. Legislation being prepared for introduction into Parliament
included a Bill to regulate the Customary Law of Succession, and the judicial
role and functions of traditional leaders within the ambit of the Constitution.
Fees for Sheriffs and attorneys would shortly be reconsidered against the
background of providing wide access to justice.
Mr du Randt pointed out that since 1994 the Department had prepared 114 Acts of
Parliament and that only 8 had not been implemented fully. Subordinate
legislation had included preparation for the Rules regulating the appointment
of maintenance investigators, and regulations dealing with the promotion of
equality as contemplated in the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) 2000.
Mr du Randt summarised the strategic goals as development and implementation
programmes to give effect to the Constitution and its values. This was assisted
by the current review of the Chapter 9 institutions being undertaken by the ad
hoc Committee chaired by Prof Kader Asmal. Key aspects were the investigation, evaluation,
preparation and promotion of legislation, providing education and communication
on such legislation and coordinating an African Regional Meeting on advancing
Gender Justice in Conflict-Affected countries. It would also give assistance to
the African Peer Review Mechanism and the National Programme of Action. Further
activities around the constitutionally mandated legislation included a baseline
study to evaluate the Promotion of Access to Information Act (PAIA), compliance
in the Master’s Office, PAIA awareness training in Cape Town, with particular
focus on the South African Local Government Association (SALGA) working group.
It was recommended that all provinces should identify a pilot project to try to
coordinate attempts to implement PAIA simultaneously.
An associated strategy was to assist, strengthen and protect the State
Institutions that strengthened Constitutional Democracy. Two amendment bills,
to amend the Commission on Gender Equality and the South African Human Rights
Commission legislation, were in the course of preparation.
Master’s Office Branch
Mr Hassen Ebrahim, Chief Master, High Court, DOJ, presented his branch report
to the Committee. He gave a synopsis and pointed out that there was still a
challenge in filling many approved posts. An analysis of these posts revealed
that although there were many LLB graduates available for appointment, many
lacked skills in literacy and numeracy, which impacted upon their competency.
There was now an authorised establishment of 1 100 persons but still a 50%
understaffing, and this was equally due to a skills development deficiency. He
summarised that the skills required by the Master’s Office and other Justice
work included report
and affidavit writing, both of which were needed as evidence in
written form. Mr Ebrahim said that a thorough knowledge of the applicable laws;
a thorough appreciation of the applicable facts, and good writing skills were
all required in order to produce succinct documents that could guide the
Courts.
Mr Ebrahim continued that the work of the Master’s Office had increased
exponentially after the Constitutional Court judgment in the Moseneke case. He
tabled the statistics, indicating that in 2005 there had been 28 543 Letters of
Executorship issued by the Master’s offices and a further 47 348 files were
held at the Magistrate’s offices service points. In 2006 there were 25 924
Letters of Executorship with the Service Points having another 63 403 files.
Section 18(3) Certificates were issues where the value of the Estate did not
exceed R125 000. These had not increased as dramatically, and 41 433 estates
were dealt with in 2006. Mr Ebrahim had
calculated that as the economy improved more estates would fall within the
ambit of the Administration of Deceased Estates Act. Further indications of the
buoyant economy were
to be found in the decline in insolvent estates. However, there was no decline
in the amount of money administered by the Guardian’s Fund, which had risen by
100%. This was attributable to the increase in the number of deaths and the
inability of the Department of Home Affairs (DHA) to provide acceptable
identification of the deceased or the beneficiaries. Research in Durban had
shown an increasing number of minor beneficiaries, single parents and only 47% of
minor beneficiaries being represented by legal guardians. It was clear that
more needed to be done to educate people to make wills, to register their
children, obtain and keep identity documents and ensure that DHA carried the
correct information forward
Priorities were then drawn from the issues identified and these included
obtaining a clean audit report, extending accessibility to quality deceased
estate services, extending the operation of the Act and services to the poor
and rural areas. All of this would require the building of skills, but this
would not be addressed only by internal promotions, as filling of lower posts
posed the challenge of erosion of service quality through lack of experience.
The greatest challenge facing the Office of the Master was the erosion of
existing capability.
Mr Ebrahim noted that the Master’s Office was the first to be compliant with
PAIA and that although much more remained to be done the outreach to poor and
rural areas could be counted a success.
Justice College Briefing
Ms Jacqui Ngeva, Head Justice College noted that the overriding principle was
one of transformation, which was not to be limited to changing the racial and
gender balances but include changes in attitude so that professionalism,
continuous development, good governance and open communication would be
developed. The guidelines for the College were in line with the Skills
Development Act, would increase individual and organisational performance,
would help succession planning and create a common culture. The overriding
guideline was to turn Justice College into a place of lifetime learning.
In face of the numerous difficulties it had been decided to concentrate at the
moment on the training of Magistrates, although in view of changes regarding
the constitutional position and control of Magistrates this might need to be
revisited, and also to train prosecutors, sheriffs and court interpreters.
Later the training
could be widened to embrace masters, family advocates and their
administrative personnel, and maintenance investigators.
She reiterated Mr Ebrahim’s comments on LLB graduates with poor numeracy and
literacy skills, and the general shortage of skills. She relied upon the
University of Limpopo for assistance in the field of Environmental Law and the
University of Cape Town for Maritime Law. In addition to these links, mutually
beneficial relationships needed to be built up with a whole range of other
institutions. In the International field relationships should also be built
with the likes of the African Union, the Commonwealth of Nations and the UN.
With regard to the cost of training, Ms Ngeva stated that the past practice of
having attendees travel to Pretoria, with subsidies given for travel,
accommodation and subsistence, was very expensive. Justice College was
concentrating on implementing E-learning programmes so that course content
could be accessed at convenient times thereby lessening the cost and
inconvenience of training in Pretoria.
Office of the Chief Litigation Officer
Ms Lindiwe Vilakazi, Chief Litigation Officer, DOJ, explained that her office
was newly created but incorporated former units of the Legal Advisory Services
Branch. The structure was approved earlier in the month. The chief challenges
lay in the right sizing of human and other resources, to deliver efficient and
professional services to all clients and stakeholders, reduce the adverse
perception that the State was losing too many cases or litigated unnecessarily,
reduce competition between the State Attorney and the private profession,
particularly for staff, and address the high outsourcing of High Court and
Constitutional Court litigation.
These challenges would be addressed by turning the State Attorney Offices into
professional units; creating in-house Counsel, holding road shows to highlight
access to services rendered directly to the public, distribution information on
pardons and other criminal and civil law process applications; and promoting
the Legal Services Charter. There would also be roll out of the HR development
plan. She presented pie charts relating to choice of Counsel by client
departments and office heads, the differentiation between the briefing of Black
and White Counsel; and also Senior and Junior Counsel; and male and female
Counsel, and indicating which departments were most litigious..
Discussion
Mr S Shiceka (ANC)asked what level the “Chief”
appointments were, and whether they had parity of legal qualifications and
experience.
Mr du Randt replied that the nomenclature “Chiefs” was merely a Departmental shorthand to distinguish between posts and
almost without exception every Chief was either a Director or Deputy Director
on the establishment classification.
Mr Shiceka asked if any risk strategy developed by the Department could not be
accessed, appreciated and worked upon to the Department’s discredit.
Mr Shiceka felt that there was an element of arrogance in the Government’s
litigation. The High Court had ruled that the Department of Correctional
Services was to supply ARV treatment to the inmates of the Westville
Correctional Services facility but nonetheless the Department had appealed this
decision.
Mr Shiceka noted that the private sector had highly skilled people who were
well paid and he felt the Department should upgrade its personnel strategies to
match conditions in order to attract staff.
Mr Shiceka asked what level in the Public Service was fixed for a Chief State
Law Adviser.
Mr Shiceka noted that the Black Administration Act of 1927 had highlighted the
continued existence of apartheid legislation and he wished re assurance that
there would be no further surprises of this nature.
Mr du Randt replied that between 1910 and 1994 there were approximately 2 800
laws on the statute books. Not all of them had been repealed, as firstly not
all of them were of universal application, nor were all of them discriminatory.
The SA Law Reform Commission had been examining the laws and had initiated
processes whereby all laws were examined for constitutionality and
applicability. Discriminatory laws, including gender and racial discrimination,
were the first to be attended to. The Departments which were mainly concerned
with discriminatory legislation were Transport, Home Affairs and Justice and
Constitutional Development.
Mr Shiceka though that all draft rules and regulations should be placed before
this Committee for consideration and comment.
Mr du Randt explained that legislation took the form of primary legislation,
which always came before both houses of Parliament, and secondary or subordinated
or delegated legislation. Regulations were passed in terms of specific
legislation and whether they were laid before parliament depended upon the
wording of the statute. Some legislation required the regulations framed under
it to be tabled before parliament for discussion, some merely required them to
be tabled for noting and other regulations need not be tabled at all. The
Interpretation Act was the final recourse in any cases of uncertainty, to see
what should occur.
Mr Shiceka noted that under customary law a man was entitled to a number of
wives, and sought elucidation upon this point.
Mr du Randt indicated that the customary laws were amongst those being checked
for possible discriminatory aspects, whether gender or colour. The Department was
hoping to being able to place any discriminatory Acts
in the pipeline for amendment before July 2007.
Mr Shiceka asked Justice College why it enjoyed a special status and he wished
to know whether the cost of Justice College had been fully worked out. He asked
for further elucidation on stakeholders.
Mr A Moseki (ANC) remarked that there was a challenge
posed by skills development, and wished to know whether it was a problem to the
administration. Further, he wished to know why when assessing applications for
vacant positions there was no assessing of the competence of the applicants as
well as of their real skills. He thought this was a matter also to be addressed
by the provincial governments.
Mr Moseki asked what arrangements were made for co operation and collaboration
between the various arms of Government. He cited the recent reports in the
press about the proposed mono-rail, when it was stated that the Minister of
Transport knew nothing of the application process nor
of the criteria upon which the proposal had been adjudicated.
Mr W le Roux (DA) wished to know whether the unsatisfactory capabilities of the
LLB graduates had been reported to the universities.
Mr le Roux asked on what basis the distinction between black and white Counsel had been made as he considered this was
inappropriate.
Mr le Roux asked whether there was a higher rate of outsourcing to the private
sectors.
Mr D Worth (DA) wished to know when the vacant posts
would be filled and the process for filling them.
Mr Worth commented that the question of cross boundary municipalities had led
to an adverse judgment by the Constitutional Court.
Mr du Randt said that the legislation in this regard had been very carefully
considered, drafted and enacted. However, it was found by the Constitutional
Court that the consultation required in terms of the legislation had not been
conducted by a province. The Constitutional Court decision did not reflect upon
the legislation but rather on the provincial procedure.
Mr Worth observed that there was R46 billion in the Guardian’s Fund and he
wished to know what arrangements were being made for the proper disbursal of
this to the rightful beneficiaries. He also asked why there were so few
curatorships in the Johannesburg and Pretoria Offices although there were so
many estates registered in those offices. Additionally he was concerned about
the large number of missing files in the offices.
Mr L Fielding (ANC) wished to know why the offices were so far removed from the
people they were intended to serve. In his district it was not uncommon for
applicants to have to spend R80 on transport to and from an office, and then
they were informed that the file was missing, or money was not available to
them.
Mr Fielding pointed out that, unlike the private practitioners, State Advocates
were not in the courts daily and so were not as experienced in court procedures
and the latest rulings. He asked whether there was an existing score card to
determine which State Advocates were the most successful, and why.
The Chairperson asked what was being done by the Departments to ensure that
qualified reports by the Auditor General were not given in the future.
Mr du Randt said that his departmental budget was comparatively small, being
only R47 million, and he would leave the other presenters to address the
question of their budgets and audit reports. However, all monies were handled
in accordance with the provisions of the Public Finance Management Act (PFMA)
and the Department was working to ensure that all concerned had proper training
and skills to handle the tasks. It was hoped that the problems of
qualifications would not recur.
The Chairperson enquired what the SA Law Reform Commission was doing and
whether the taxpayer was getting value for money from this institution.
Mr du Randt noted that this was a very effective body producing well drafted
and researched papers of a high standard both quickly and cost-effectively, and this body was a
credit to all concerned.
The Chairperson asked if the Rules Board was addressing the use of languages.
Mr du Randt replied that language was being addressed in terms of the
Constitutional provisions and usage.
The Chairperson was concerned with access to justice, for it was clear that
justice was a very expensive commodity and he wanted to know what could be done
to get it right. Further, he was very concerned about cell phones being
accessed by all.
The Chairperson noted that of the 114 laws which had been passed, 8 were still
problematic and he wished to know the reasons.
Mr Pieter du Randt stated that he had referred to the Bills before Parliament
and in the course of preparation. This list was not totally exhaustive, nor
completely up to date on developments, as it was extracted from a document that
reported the status a few months back, and some Bills might be at a different
stage now. However, he wished to draw attention to the fact that he constitutionality of Bills was a
factor to be taken into account, as also the fact that they must be checked for
consistency against any internationally binding laws and international norms.
The eight possibly problematic laws would be rectified if necessary and the
department would be proceeding in accordance with recommendations of the
committee investigating the Chapter 9 institutions.
The Chairperson wished to know why more maintenance investigators had not been
appointed.
The Chairperson noted that the African Peer Review mechanism report was
rejected in certain respects, and he asked the reasons behind this.
Mr du Randt stated that this report had been requested by Government and
drafted by the Department. It appeared that there was some unhappiness about
sections of the report, but it had been drafted by the Department in accordance with input received.
The Chairperson noted that on the question of skills, certain people were
clearly qualified on paper to be appointed but were not performing, and he
asked the reasons and when an improvement would occur
Mr du Randt said that establishment vacancies were advertised and if no
applicants were found who satisfied the requirements for qualifications or
experience or other criteria the positions had to be re- advertised. Where
possible appointments were made as timeously as possible..
The Chairperson said that in regard to the Guardian’s Fund it was clear that
there were orphans who could not access the money they were entitled to. It
seemed that further training was needed for the Magistrates’ service
points.
The Chairperson asked why Mpumalunga Province was not listed on some slides. He
wanted to see the department doing more to market it services.
The Chairperson noted that Justice College made reference to the training of
magistrates but at the Justice colloquium there had been heated debate about
the training of all judicial officers, including magistrates. He pointed out
that there were very real challenges and he enquired how the lecturers were
screened for he believed some were a liability and not an asset. Lastly in
regard to the budget of Justice College he enquired why there was not greater
co-operation with the Sector Education and Training Authorities(SETAs)
The Chairperson was not happy with outsourcing and believed it would be
preferable to have cases handled properly by Department staff who could pursue
them successfully. He
wanted a breakdown of the expenditure on outsourcing, and a
breakdown on matters concerning women. Both the Judicial Services and
Magistrates' Commissions had complained that women could not gain the necessary
experience because they were not given opportunities to handle the relevant
cases. He stressed the need for quality services
After the lunch break the units gave the following short briefings to address
the questions asked earlier: .
Office of the Chief Master responses
Mr Hassen Ebrahim, Chief Master, noted that there were
delays at Department of Home Affairs (DHA) in verification of identities that
were impeding service delivery to more than 70 000 orphans. Decentralised
service points were an attempt at finding different mechanisms of getting
service to the outlying areas. Customer focus remained very important and all
officials required a range of skills as they were dealing with different
situations that required different handling.
Justice College responses
Ms Jacqui Ngeva, Head: Justice College, indicated
that the international relationships with other institutions were very
important and Justice College had realised their obligations to the continent.
The Justice College had priced their approach to infrastructural improvements
and demonstrated to the Committee that in order for the College to operate to
its fullest potential its would require R200 million.
It understood that they could not receive that amount of funding and would
implement the infrastructure piece by piece. The Justice College was not
accredited and were currently working on that issue with South African Sector
and Education Training Authorities (SASETAs). In regard to training Justice
College had recently been over- subscribed for a few courses because of the
emergence of the New National Credit Act.
Some students were reluctant to deal with trainers who did not have as
much experience as they did. Transformation at the College had created some
uncertainty. Many staff had applied for new positions and the College was
already under staffed, so this in turn impacted on service delivery. Only the
high level posts were approved by Department of Public Service and
Administration (DPSA) and approval took time. External lecturers were also
used, which assisted in panel discussions and debates.
Mr J March,
Director of Judicial Training: Justice College, indicated that the Justice
College was not represented in the Justice Chamber. He believed that the
relevant SETAs did not always have the capacity to what they were required to
do, yet had to be used by the College. Sector and Education Training Authorities
(SASETA) had to be used because facilitators had to be trained as assessors,
moderators and verifiers through SASETA. They were also needed to assist with
the learnerships. The Justice College training material had to be converted
into Outcomes-Based credit-bearing material and SASETA was required to source
the expertise for this task. This conversion would allow the College to give
certificates of competence with the Education and Training Quality Assurance.
Chief Litigation Office responses
Ms L Vilakazi, Chief Litigation Officer: Court Services,
indicated that the purpose of doing a litigation management strategy was to
ascertain where exactly money was being spent and to identify problematic
issues. Human resources did reference so they could work on a retention
strategy. There seemed to be a high rate of out-sourcing. Currently the State
was employing attorneys. Attorneys were primarily admitted to practise in the
lower courts but not in the high courts. Capacity was a problem since attorneys
were overburdened. A study was done into whether it was cost effective to outsource.
Ms Mndebele advised that Litigation Services had not had a qualified audit
report. The Department assigned a budget court to try to assist in the
financial systems.
The Legal Aid Board (LAB) had problems with representation, as current practice
required both advocate and attorney to be appointed when using Counsel in the
High Courts. The forthcoming changes in the legislation around legal practice
might assist this.
28% of work that was outsourced went to women. Much effort was put into
ensuring that when work was outsourced, preference was given to females who
were suitably qualified.
Deputy Director General of Court Services: Briefing
Adv S Jiyane, Deputy Director General: Court Services, DOJ, advised the
Committee that he would briefly deal with the most pertinent issues as opposed
to going through each and every slide. He stated that the budget for the last
financial year had been completely used. He tabled a list of courts that had
required some kind of renovation. Areas
and locations had been earmarked for construction of courts.
Adv Jiyana described the roll out of the Re Aga Boswa system. At the provincial
and local or district level managers were appointed as part of the
modernisation process. The modernisation programme composed of the following
initiatives;
- An e-scheduler that was web-based with 444 sites completed,
- Video postponements that had been piloted in Kwazulu-Natal, that saw 4899
postponements conducted
- A digital court recording system that was a transition from the previous
analogue systems in all courts. 1 238 recorders had been installed.
- Transcription services, which improved the services that each region provided
with a dedicated service provided
- A scanning solution that provided support to the courts with regard to the
capturing of file/case docket/charge sheets and that related to case
management.
He reported that there had been problems, as was expected from any new systems,
but these had been attended to. These new systems assisted the personnel with
regard to court management. The objective was to ensure that all records were
safely kept and that all record keeping was improved at the court level.
Through this an improved quality of the transcription services could emerge.
Mr Jiyane referred to slide 28 that indicated the court performances. The
volume statistics had gone down and there was a slight improvement with regard
to the High Court. The finalisation of cases had improved. The statistics for
the lower courts were included in slide 26, showing the number of cases
finalised and an increase in the number of outstanding cases. There had been a
reduction in the number of court hours when compared to last year It was also recognised that the number of instances of
diversion had increased.
Court Services were attempting to reduce backlog. Regional courts had been
targeted in November last year. A list had been provided that specifically
concentrated on the hotspot areas. Most of the problems with regard to backlogs
were related to the investigation capacity, forensic testing, legal
representative and inability of legal personnel to find suitable dates. Retired
legal employees had been appointed to try to deal with these issues. In the
beginning Court Services had experienced some preliminary problems because of
lack of management and lack of appearance. This was all related to the weakness
of court management systems, particularly in KwaZulu Natal, where witnesses
were losing confidence in the system. There still remained a problem with
backlogs in the High and Magistrates' courts.
Advocate's Chambers had been able to come to the assistance of DOJ and had
managed to analyse some cases. Alternative dispute resolution mechanisms would
be used. In some way these would enable the Department to empower the
communities to deal with crime in communities.
With regard to the Traditional Court issues an extension had been granted until
August for completion of the policy, which had been largely finalised, but what
remained was the consultative process. It was structured along the policy that
had been suggested.
Capacity of Courts issues had been dealt with in such a way that a full package
of services was to be available in the larger townships. Facilitation
programmes had been introduced to 205 courts to find a way to improve those
courts that had been neglected. Issues
included the mobile courts acquisition project.
This would provide service to those areas that did not have courts,
which would increase service accessibility.
The Chief Justice would be running a project geared to training of judicial
officers, the majority of whom should be women, to address the transformation
issue. This would run for 18 months and
had been targeted at women outside the Department.
With reference to Family Courts, the Committee had identified that there should
be a resource for maintenance courts. There had been an appointment of
maintenance officers to deal with the issues. There has also been an increased
intake of family law clerks. The Department had to take pre-emptive action with
regard to capacitating the courts. The courts had also increased their
performance, with 865 maintenance deserters having been traced. Mediation
services had been introduced to minimise cases going to court. This would have
a great impact on the numbers of matters that could therefore be removed from
the court system.
Office of the Chief State Law Advisor Briefing
Mr Enver Daniels, Chief State Law Advisor, Office of the CSLA, stated that the
process required to pass laws was complex. Over the course of the past years
his offices had extended their services to municipalities and provinces where
they would review the by-laws of the municipalities. Municipalities’ by-laws were considered as
discriminatory, especially to the poor. His office reported to the Minister on
a monthly basis. It was largely the municipalities that required the
services. Most municipalities had to
outsource to private practitioners at a great cost. The fees charged by the
CSLA were not commensurate with the value of the service provided.
Mr Daniels was pleased to announce that quite a few new employees had been
appointed. At the
beginning of the previous financial year the budget was cut by R3
million, but this amount was given back at the end of the financial year,
although could not be spent, due to the timing. This financial year the budget was
increased by R9 million, to R29 million. His employees were the most senior
lawyers in the country and thus he had to ensure that they were well informed
and well paid in order to render a valuable service.
If the cost was totalled out they had worked in excess of 44 000 hours a
year. In that office, on the average,
the value of their work was around R90 million. His staff was increasing
productivity and extending services within the existing budget. The CLSA worked
closely with Department in order to develop legislation, so South Africa could
meet its objectives. Every piece of legislation dealt with transformation, and
was looked at subjectively from the Executive's standpoint. There was very
little that left the office that had not been thoroughly examined.
Last year CSLA finalised 600 pieces of work outside of legislation. Legislation was more complex and more time
was spent on research.
One of the key issues was that CSLA did not have ownership over the
legislation. The legislation changed a lot during the parliamentary process and
because of all the stakeholders and channels it would run through there was no
final accountability. Another
weakness was that legislation was only certified in English.
However it was highly likely that a highly efficient translation section would
be operational in the office soon. He
stated that the CSLA had role to play to develop legal terminology in all 11
languages.
Discussion
Mr S Shiceka (ANC, Gauteng) thought that the CSLA should look at training
people at the local government level on the drafting of the by laws.
Kgoshi Mokoena agreed.
Mr Daniels noted that his office had embarked on a training campaign, primarily
at national level, however there were provincial and municipal people present
at the seminars. He had however also been informed that training should be left
to the Justice College.
Mr Shiceka remarked that although the CSLA gave their opinions there was no
feedback. He was interested to hear what their legal opinion was on their
position of South Africans of Chinese descent with regard to the Black Economic
Empowerment Act.
Mr M Mzizi (IFP, Gauteng) also wondered how Griquas would fit in to the Black
Economic Empowerment Act.
Mr Shiceka mentioned that the Chief State Law Advisor was empowering
politicians on the drafting of the law so that they would know what was right
or wrong. A mature democracy required people to be skilled.
Mr Daniels said that it was an excellent idea to run seminars, and CSLA had
trained a large number of officials in the art of drafting of legislation.
Mr Shiceka asked how did the Court Service align its
priorities in terms of what was happening on the ground.
Mr Jiyane said that perhaps there needed to be more close interact ion with the
Committee.
Mr Shiceka wanted to know how Court Services would ensure that courts that
required renovations received these services.
Ms T Ramanyimi from Court Services answered that they were trying to come up
with a scientific method that would include all relevant details when building
courts. Court Services
had to look at areas where there was a need for infrastructure
and had to present the plan to Treasury.
Mr Shiceka commented on the statistics, and asked how many of the cases
involved women.
Adv Jiyane replied that most of these cases did involve women, as they were
normally the parents who stayed with the children and therefore needed to claim
for them.
Mr Mzizi mentioned that the last time he heard the term ‘urinating in public’
was in the late 1970s, and wanted to know what was being done about some of the
by laws that seemed insignificant or outdated.
Mr Daniels mentioned that it was surprising that people could still be jailed
for insignificant offences, and that usually it was the poor in the municipal
areas that suffered.
Mr Mzizi wanted to know how outstanding trials were assessed.
Mr Mzizi commented on the fact that service delivery improvements should also
cover the question of sufficient court buildings. This was not being met when in some cases the
court structures were not built.
Mr Mzizi asked for clarification on the term ‘vulnerable groups’.
Adv Said replied that in the context of support by Court Services of vulnerable
groups, one would need to look at the definitions. Here this was defined as
women, children, disabled and the elderly. Other categories of persons who
would come to mind, but who were not included in the definition, would be
refugees. The definition posed a challenge but it must be remembered that the
majority of the
programmes regarding vulnerable persons were a consequence to the
Apartheid policies.
Mr Mzizi wanted clarification on the term ‘removed cases’.
Adv P du Randt said that this term included the number of withdrawn cases, the
number of warrants issued for an accused who did not
appear in court, and the transfer of cases when the minimum sentence was
introduced.
Mr Mzizi wanted to know how many cases were regarded as part-heard.
Adv du Randt replied that this would include cases that were already before the
court and time had run out, or those where witnesses were not present, the
magistrate might be requested to recuse himself, or officials became ill.
Mr Mzizi wanted the Court Services' input on the fact that there were juveniles
awaiting trial held in the same cells as adults. He noted that children
awaiting trial should be held separately.
Ms Ramanyimi responded that part of the reason was that most courts were not
built for the amount of workload they had received. This was a challenge related to the
infrastructure. As part of increased access to justice, a revised model code
would be built and would have to take into account and match with all the
services that the Department provided.
Adv Said mentioned that system was limited in allowing diversion. As a result if the family or community system
was broken down, it could not be used in order to send children home and keep
them out of jail custody. The response should not be to create more facilities
but to find a way to correct the family or community system.
Adv du Randt indicated that children awaiting trial would fall in the
responsibility of the Department of Social Development, but Court Services did
liaise with this Department. DSD had started to build facilities in all of the
provinces in order to place children awaiting trial.
Mr Mzizi was not quite sure how court performance was monitored and evaluated.
Adv Du Randt replied that the DOJ had introduced the Court Nerve Centre that
looked at the performance. Statistics were set to a central structure that
liaised with the National Prosecuting Authority (NPA), and South African Police
Services (SAPS) to get a complete picture.
Mr Mzizi mentioned that there were allocation issues when it came to
demarcating magisterial districts and asked if this became problematic.
Mr Mzizi asked how come the cases were assessed at the High court but not the
cases at the Labour Court.
Adv Du Randt indicated that Labour Court had a low number, and thus its
performance did not have an overall impact on the statistics.
Dr F van Heerden was impressed by the responses given by Mr Daniels and asked
if it would be possible to receive his opinions on other matters.
Mr Daniels replied that he was acting in a legal capacity and thus he should
not reveal his personal opinions.
Dr van Heerden commented that the reason the state outsourced was primarily
because the CSLA were subjective and objectivity was required.
Mr Daniels stated that CSLA represented the Executive, who had objectives that
it needed to achieve, primarily in the transforming of a previously oppressed
society and addressing imbalances. It
was CSLA's job to look at the legislation to see if these objectives could be
achieved. However all their work was performed with integrity and honesty. CSLA would stand its ground and if it did not
agree with what was being proposed this would be made known.
Dr van Heerden wanted a list of all the projects that the S A
Law Reform Commission was involved in, and mentioned that he believed it was
understaffed.
Dr van Heerden asked how the E-government systems and the provisions of the the
Electronic Communications Act would be handled as far as rules of evidence were
concerned. He also asked if the E-system was secure enough to handle the
documentation of the cases.
Adv du Randt indicated that the E-scheduler system would not deal with
evidence. It was a tool to enable DOJ to schedule cases. It was demonstrated that it could work in
Johannesburg and Durban, but legislation needed to be enacted in so far as the
court rules were concerned, such as the rules on lodgment. An electronic docket for each case would be
rolled out soon. All these were to be considered as tools.
Adv Jiyane indicated that the E-system was secure. One of the challenges was the integrity of
the information that was captured. DOJ had appointed additional staff to
promote the E-scheduler.
Dr van Heerden asked if it was possible to have experienced attorneys also
participate in some kind of community work.
Adv Du Randt replied that there were experienced lawyers at the lower courts,
and that they were paid.
Mr A Moseki (ANC, North West) remarked that one of the things that made an
institution effective was to create conducive working environments. When
interacting with court officers he had heard that the parking was too far away,
there was not enough office space and that there was not enough security. In
order to get even basic requirements for the office the court officers would
have to go through many channels. He needed to know how DOJ would ensure that
effective service delivery was achieved when they had these issues to contend
with.
Adv Jiyane stated that he would look into these issues.
Mr Moseki mentioned that the lack of all languages and facilities for
translation in all courts could make justice inaccessible, especially to those
who were not educated in the usual languages of the court.
Adv Jiyane said that the Minister indicated that DOJ had to work hand in hand
with the other relevant departments. They should promote all the official languages.
Mr Moseki commented that in rural areas, people would have to travel far to get
to courts, and that this would cost money. There was also a lack of education
with reference to what people knew regarding the legal system.
Ms Ramanyimi acknowledged the fact that there was insufficient office space and
DOJ did require the infrastructure that allowed them to provide the necessary
services. She confirmed that DOJ would have to liaise with other stakeholders.
Interaction with the municipalities would be important to ensure that all the
services were provided.
Mr Moseki asked who should account for the lack of alignment in the
municipality demarcation; as this should be overcome in the context of
transformation.
Adv Du Randt indicated that DOJ was moving rapidly and were trying to finalise
this issue. DOJ was aligning it in terms
of the service areas and had discussions with the role players. He thought that there was mention made that
of the 90 branch courts, 24 would be dealt with this year to capacitate, and
that many would be in the rural areas
Mr Moseki was aware that the Curt Services were dealing with transversal
skills, and he would want to know how they were progressing on that front.
Mr Moseki asked whether the traditional names of the Courts would change.
Adv Du Randt replied that renaming the courts was part of the legislation to
remove the apartheid legacy.
Mr J Le Roux (DA, Eastern Cape) noticed that the security at the courts was
done either by private security firms or there were no alarm systems.
Ms Ramanayimi stated that DOJ did outsource security, and that SAPS only
provided security to the holding cells.
Kgoshi Mokoena wanted to know why Departments took so long to prepare and make legislation.
Mr Daniels mentioned that the legislative process was extensive, yet CSLA
hardly ever received requests why it had given the advice it did and included
the relevant provisions. The probability of success would increase if those
that certified the Bill were involved in the process of introducing and
discussing it when it went to parliament.
Kgoshi Mokoena mentioned that ablution facilities at many state courts and
offices were very poor and that something should be done.
Ms Ramanyimi said that DOJ was aware of the problems; unfortunately these arose
and could not be addressed through lack of resources. Because of this DOJ had
to rely on Department of Public Works, whereas it should ideally have in-house
personnel who would be able to deal with day-to-day issues.
Adv Jiyane indicated that there was a major problem with the courts. It would
take time to respond to all issues, and, given the insufficient resources, it
would take time to prioritise issues.
The budget had been increased to deal with this. The priority was to address the rural areas.
However, it would be discovered that courts in the urban areas would also
require renovations.
Kgoshi Mokoena remarked that there was such a large roll-over in the Department
yet there was a shortage of staff.
Adv Jiyane said that the issues of court personnel was
needing to be raised. DOJ had come up
with a planning to align all the courts.
Kgoshi Mokoena wanted to know when the many periodical courts were going to be
made into full-fledged courts.
Kgoshi Mokoena noted that when the State lost its cases its integrity was
questioned. He queried whether advice was not given in advance as to the
likelihood of success, so that a decision could be taken whether to pursue the
matter.
Kgoshi Mokoena commented that the tagging of Bills at parliament seemed to be
driven by those who wanted the legislation to be passed.
Mr Daniels mentioned that it was the Joint Tagging Mechanism (JTM) that decided
on tagging. At the time of certification they would look at the tagging,
together with the Department. However when the JTM received
the Bill it decided upon the tag independently of CSLA. This was related to the ownership of the Bill
by different Departments.
The meeting was adjourned.
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