A summary of this committee meeting is not yet available.
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
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
The Chairperson expressed his condolences to a member on a family death.
Department of Justice (DOJ) Briefings
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..
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.
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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