The Hon Minister of Justice briefed the Committee on the work of the Department. There had been better spending during the last year. Most of the increased budget would be geared to improvement of capacity at the courts, and there had been savings achieved through greater efficiency. There would be increased spending on maintenance and infrastructure. She described the interventions to address issues identified by the Standing Committee on Public Accounts. Critical steps had been taken towards transformation to ensure better access to justice. New courts were being built and facilities upgraded, and uneven spatial distributions were being addressed. There was an increase in capacity at all levels. The Department had reduced its vacancy rate and the quality of justice dispensed was improving. All interventions aimed to provide tangible benefits to poor communities. The Department was conducting a review of the criminal justice system, establishing new coordinating and management structures, creating a streamlined database and modernising systems and equipment. She summarised the legislative programme, and commented on the draft Legal Services Charter and the forthcoming policy document on transformation of the judiciary, supported by the Judicial Education Institute Bill. Positive steps had been taken on gender issues, at local and international levels. he Department was also assisting the DRC in improving its court system and infrastructure. The Minister agreed that the intention of the Committee to increase the frequency of its meeting with the Department was a positive step. Members raised questions about sales in execution, the construction of certain courts, coordination of IT records, the need to harmonise jurisdiction areas of various departments, and the Department’s own briefing practices. A question was asked around the Khampepe Report and the Directorate of Special Operations but the Member raising this question accepted the Minister’s point that this should stand over for a report once the Ginwala Inquiry had been concluded.
The Chairperson asked the Department to focus upon prioritisation of matters, noting that it was overstretched in its work, and asked for regular progress reports in relation to the Criminal Justice System. He also requested that the Executive confer with members of the judiciary before tabling policy papers on transformation of the judiciary. He commended the positive improvements.
The Director General of the Department of Justice noted that the vacancy rate was now between 6 and 9 percent, and that Court Services and the Master’s Office had in particular been better resourced. He summarised the disciplinary matters. Many long outstanding matters were now finalised, and that the Department would now sue for recovery of funds misappropriated in addition to the enquiries. Supply chain and management procedures had been strengthened, and anti corruption and risk management strategies were in place. There were still challenges in accessing sufficient funding for staff, but decisions had been taken to upgrade posts by requiring legal qualifications, to improve service to the public. Improved funding was also required for court upgrading and construction. Access would also be improved through IT measures, with certain administrative procedures being carried out online. Members raised questions around the payment of performance bonuses, the areas where under spending had occurred, the requests for amendment of the deceased estates legislation, suggestions that community development workers be trained to give assistance in filling out forms for maintenance, and issues around the Guardian’s Fund. Further questions related to the salaries of prosecutors, the Legal Aid Board being permitted to fund civil matters, the need to provide better assistance in land issues, and the necessity to ensure appointments of new commissioners to the Human Rights Commission early in 2009 on expiry of the current terms of office. Members also asked for follow up on issues previously raised. Due to time constraints, only those questions relating to the Legal Aid Board and Guardian’s Fund were answered at the meeting, while written responses would be provided to other questions. The Committee agreed to raise the Legal Aid and Human Rights Commission issues with Parliament.
An overview of the Department’s budget was presented by the Chief Director of Budgets. He highlighted the reduction of under spending by the Department. He also focused on spending pressures, which included spending on capital works programmes and forecasted salary settlements. Major improvements for the period included spending on compensation of employees at 99,4% of parliamentary approved budget, Closed Circuit TV interface for children's courts and the funding of the Legal Aid Board. Members asked questions about what was being done to reduce case backlogs, the maintenance of court buildings, spending on building of new courts and appointment of new staff.
The Court Services Programme presentation was given by Adv Jiyane, who highlighted the key priority areas of ITS programmes, more specific budget utilisation to increase capacity at court level, with a focus on the judiciary, modernisation and the Cluster's new approach to tackle the area of criminal justice. Case management and integration was highlighted as a priority. The rationalisation of courts and future plans in this regard were discussed. It was noted that priority areas included Mpumalanga and Limpopo, establishment of an Interim Circuit Court and amalgamation of work from the former Venda. Members once again raised questions around the reduction in the case backlog. Court Services responded that systems integration was a far more important long term goal that would help in the short term to reduce the backlog as well. Members repeatedly complained on inadequate statistics and queried the apparent mismatch of some of the figures. Vacancies, particularly in the magistracy, were a cause for concern. The Chairperson was of the view that oversight methods were insufficient and needed review. The accommodation of prosecutors was further discussed, with acknowledgment of the restraints arising through lack of funding.
The Chairperson welcomed the Minister and Deputy Minister of Justice and Constitutional Development, and noted that there was wide representation from the Department’s staff, which he regarded as positive, as they would be able to gain a holistic picture, including the political overview of the budget. He noted a recent comment that it was vital for Committees to exercise their oversight rigorously when it came to budget issues.
The Chairperson noted that the Minister had requested that this Committee excuse the Director General as he was due to appear before the Ginwala Commission of Inquiry. Given the exceptional circumstances, and the need for all sides to be heard fully during the Inquiry, the Committee had agreed that he be excused, although he would normally be required to be present throughout the hearings as the accounting officer.
Both the Executive and Parliament were under enormous pressure at the moment as committees would only be meeting until mid-September. The Committee therefore proposed that Mr B Magwanishe (ANC) be nominated by this Committee to work with the Department between September and November to ensure finalisation of outstanding matters. It also believed that processes for next year should be initiated already.
Minister of Justice and Constitutional Development Political Overview
The Hon Brigitte Mabandla, Minister of Justice and Constitutional Development, thanked the Committee for its work that assisted to transform the justice system for the benefit of all people of South Africa, entrenching the values of the Constitution and providing an anchor to the socio-economic transformation of society. She would provide some context to the figures that the Department would be presenting.
In the past financial year, the Department had dealt with a number of challenges, some of which were raised by the Portfolio Committee, and some by the Auditor General. Although she would give an overview, more detail would be given by the Director General, who would also expand on the efforts to improve weaknesses that had been identified. There had been challenges in financial management, a need to eliminate under-expenditure and improve delivery of services.
In the 2006/07 year there was under expenditure of R472 million. In the 2007/08 year there had been 97.7% spending, with the under expenditure being partially caused by non-submission of invoices on time by the Department of Public Works (DPW). Personnel and operational expenditure had reached 99.4% expenditure, with under spending in the areas of procurement of buildings and fixed structures, where the spending was only 77.2%. Attempts would be made to improve in the future.
The budget was expected to increase over the Medium Term Economic Framework at an average annual rate of 10%, from R8.5 billion to R11.7 billion. Most of this increase would go to improving capacity at the courts. Additional allocations would be put to IT modernisation, improvement of services, increases in compensation of employees in line with the Public Service Coordinating Bargaining Council resolution, accommodation charges, increased staffing in the Legal Aid Board and appointment of more judges and magistrates. There was ongoing interaction with National Treasury (NT). There were efficiency savings of R178.7 million in operational expenditure, including subsistence and travel.
Of the R1.5 billion available over the MTEF period for infrastructure investment, 39.4% would be spent on large infrastructure projects, 26.3% on small infrastructure and 32% on maintenance, in which there had been backlogs. She believed that there was a marked improvement in this area.
The Standing Committee on Public Accounts (SCOPA) had raised some weaknesses, including asset management, management of trust monies, under spending and supply chain management. These had been addressed by appointment and training of asset controllers. A tender evaluation process had been concluded in respect of Monies In Trust, and the process would be concluded by July 2008, with the system development due for completion by September or October 2008, with full implementation due to commence in January 2009. There were interesting interventions relating to IT infrastructure.
The Department had managed to increase its financial performance and reduce under spending through timeous identification of possible savings and the virement of those savings to other priority areas. This re-allocation had been given parliamentary approval, and took into account the priorities of the Department, National Prosecuting Authority (NPA) and Legal Aid Board (LAB). Although the NPA reported directly to Parliament, it had been found productive to hold joint Exco meetings and it was useful to have better coordination between Department of Justice and other linked institutions. There had been better spending that eliminated the perception of fiscal dumping at the end of the year. A revised personnel structure had been approved for supply chain management.
The Minister stressed that the transitional phases to building a new dispensation were critical. The Department was providing courts where none had existed before, and capacity had been significantly increased, including the recruiting of key administrative staff and approval of new vacancies aimed at increasing the numbers of the judiciary and magistracy. She praised the efforts of the Department in reducing the vacancy rate from 23% to 12%, as well as its efforts to modernise the Courts, including solid infrastructure and IT structures. She suggested that researchers in the criminal justice system should begin to monitor the value of that infrastructure to the quality of justice dispensed.
The Minister tabled a list of new courts and those under construction at present. The Judicial Training Institute Campus was also being developed. Certain courts would be re-designated to build capacity. Inconsistent spatial distribution of facilities was a legacy of apartheid that the Department was attempting to redress. There were processes under way to phase out periodic courts at police stations and accessible sites were being identified to establish circuit courts. An audit was under way on the branch courts, some of which would be re-designated as full courts from 1 August 2008. This would have a huge impact on service delivery. All these efforts would have tangible benefits to the poor communities living in the former Bantustans and townships, including reduction of travelling costs, alleviation of congestion in the main courts (particularly in Johannesburg), linking to other developments in certain areas, and efficient management of resources at the service delivery points, reducing wastage of time and resources by officials having to commute between the main and branch courts.
The Minister believed that a good pace had been set in regard to access to justice. The review of the criminal justice system was taking place in partnership with Business Against Crime (BAC). This focused on the establishment of a new coordinating and management structure at all levels, establishment of an integrated and seamless national criminal justice system, IT database (including the gathering of information), and modernisation of systems and equipment.
The Minister then detailed the legislative programme for the year. Nine important Bills were introduced into Parliament. The Minister outlined the main impact of these Bills (see attached presentation). She noted that legislation concerning floor crossing, audio visual linkage, expungement of criminal records and legislation concerning the Directorate of Special Operations would be introduced soon.
A policy document on transformation of the judiciary and the legal sector was being drafted and would soon be available for release. There was a need to establish professional skills in the judiciary. The South African Judicial Education Institute Bill was a positive outcome, and would be a huge tool for transformation. Heads of Courts and other stakeholders would be consulted on implementation. The Council should be established as soon as possible so that the Institution could start its work within the next eight months. The draft Legal Services Charter had been produced, and this included training issues, and would shortly be presented to Cabinet and thereafter to Parliament.
The Department, in collaboration with other state institutions, was developing education and promotional materials and was working on promotion of women's rights. The formation of the South African Women Lawyers Association (SAWLA) would promote access to justice and advance equity in distribution of work. Nineteen women practitioners had recently undergone a specially designed programme and would shortly be appointed to positions as Acting Judges. A further intake of 23 women would begin in June 2008.
The Minister noted that pursuant to government policy and the United Nations Security Council Resolution, the Department had convened the African Regional Meeting on Gender Justice during March 2007, in which Ministers and other high level delegates from a number of countries participated. A thematic debate was called for and held in the UN Security Council during October 2007. A programme had been developed by the Department for the exchange of experience and expertise on justice matters, with a particular focus on gender justice, in conflict-affected countries. The Department was also assisting the DRC in improving its court system and assistance in setting up that country's court infrastructure. The French government had been asked to become a partner on the training of DRC magistrates.
The Minister concluded that every effort would be made to improve the integrity of her Department. Most senior managers had signed performance agreements and most had signed declarations, and there had been improvement of the resolution of disciplinary cases. Other issues would be covered in greater detail by the Departmental officials.
Dr T Delport (DA) remarked that over the last year, this Committee had often only managed to glean information by putting specific questions to the Minister, which he commented was sometimes inappropriate and awkward. Most of the information related to facts and figures from the Department. In the future, he believed that it would be useful for this Committee to have more regular contact with the Minister and Department and more regular progress reports.
The Chairperson noted that the Committee had already agreed that on a quarterly basis, the Director General or representative should appear to report on the implementation of the business plan. A date had in fact been set for this report, but that meeting was postponed at the request of the Committee, which had been busy finalising a Bill. He agreed that the Committee should not be limited to hearing the Department only once a year.
The Minister responded that most of the Clusters believed it was prudent to have regular meetings, and she endorsed the decision of the Committee.
The Chairperson noted that the Rules of Parliament perhaps should be looked at. Whilst there should be no detraction from the right of the opposition to play its role, some of the questions tended to become mechanical.
Dr Delport said that he would not like to deviate from the practice that opposition parties would bring up policy matters for debate. However, it was very draining to pose endless questions about figures, and this could be dealt with more efficiently at other venues.
The Chairperson suggested that the Parliamentary Liaison Officer or someone from the Director General's (DG's) office should perhaps also be available to give this information.
Mr J Jeffery (ANC) said that Dr Delport had raised a valid point. However, he observed that it was important for parties to come to the meetings and put their questions. Some parties were critical of the Minister, but neither the ID nor IFP were represented at this meeting. There was a duty on all parties to attend.
Mr J Sibanyoni (ANC) commended the Department on the establishment of the Ekangala Magistrate's Court in his constituency. He also reported that the issues around the contractors had been resolved. He questioned, however, why the Court had not been built next to the police station, to obviate problems in transporting accused persons. It was further to have been aligned with another court in the province.
Adv L Joubert (DA) said that some years ago the Minister had commented that provision would be made for protection of homes from attachment. He asked if there had been any progress on this.
The Minister noted that legislation had been drafted, but had been held back due to other priority legislation. This, and other related economic legislation, would be tabled as soon as possible. The issue was still receiving attention and would be put forward as a priority matter for the next administration.
Mr Johnny de Lange, Deputy Minister of Justice and Constitutional Development, added that sales in execution were quite a complex issue, as amendments to the Act would also involved amendment of the rules of court. The issue could perhaps be put out for public comment. However, he concurred that this was likely to be done only by the next administration because of time constraints. However, a substantial amount of work had been done.
Mr Jeffery noted that although this point was not raised by the Minister, there had been a problem in that the court jurisdictions did not always match the jurisdiction of other departments; for example in issues of foster parenting, the Magistrate’s Court required to deal with the matter was not necessarily operating in the same area as the social workers. It would be useful to try to bring the civil jurisdictions in line. In his constituency social workers had to travel to Pietermaritzburg, instead of dealing with the matters at the local court, meaning loss of time and money to their Department. He wondered if courts could perhaps have some mechanism to change their jurisdiction in civil matters. He did not expect an answer now, but asked that the Minister look into this and report back.
Deputy Minister de Lange said that the Magistrate’s Court jurisdiction was based on 1944 legislation, and the old magistrate's districts did not take into account the demographic changes and shifting importance of certain centres. He noted that the Department was busy with an audit. However, these jurisdictions in turn were dependent upon High Court jurisdictions. The process included looking at new municipal structures and boundaries. It was difficult for the Department of Justice to interact with its own Cluster as there were other interests around boundaries, and it would be even more difficult to try to harmonise also with other Clusters. He recalled that an Interim Jurisdiction Act had been passed, which covered both criminal and civil jurisdictions, and it would be possible to make use of these provisions if there were really pressing problems, although clearly it could not be used merely where it might be convenient.
Ms N Mahlawe (ANC) noted that she had recently raised the issue of courts' placement and asked for a report back on this issue.
The Minister said that there had been steady momentum in the building of courts, and it was becoming more obvious that there was progress.
Mr B Magwanishe (ANC) commended the Department on the building of courts, which had impacted positively on the people. He noted that the Committee had written a report to the Minister about other problems in DRC and asked for a report back.
Mr Magwanishe also raised some issues around the Management Information System (MIS), stating that there needed perhaps to be Executive support systems to complement other support systems.
The Minister took note of these points. There was a new national coordinating centre to ensure proper monitoring, and early warning systems were being established.
Deputy Minister Mr de Lange added that IT issues had been identified as a major area of change in the Criminal Justice Review. The whole information system had in the past been fragmented. Various different references would be allocated by the police, the forensic services, the Courts, and Correctional Services. The creation of a National Database would help to address these problems. Each department should collect its own data, as this was better verifiable, but it should be possible to create a system that could be more easily followed through. This had been a problem common to several countries.
Mr Magwanishe also noted that it was impossible to transform the judiciary without also transforming the legal profession. He commented that those appearing on behalf of government were generally drawn from the advocates' profession and questioned this practice.
The Minister responded that there were reforms in the area of State litigation. She asked that a fuller report be given by the Departmental officials on the briefing patterns. Internal guidelines for operational manuals promoting efficiency and manuals were being drawn. A draft Legal Practitioners Bill was being created.
The Minister noted that she had not touched upon anti-corruption strategies and security. This would be covered by the Director General. The Minister had however received frequent reports, and was monitoring the risks around corruption. There was a strong risk management system, particularly the National Prosecuting Authority (NPA), and there were stringent efforts to build and maintain a good audit system.
Mr de Lange added that the Legal Charter had been very difficult to draft, as it covered a wide variety of issues. There had been attempts to strike a balance between access to justice, and the interests of the profession, which were often quite divergent. There would have to be engagement on briefing patterns, and on how lawyers could increase the public’s access to justice. This would require political engagement.
The Chairperson noted that the Parliamentary oversight role did not merely consist of bringing Departments in for questioning, but commented that there would be active engagement and he proffered that expertise from within the Committee could also be tapped into.
Dr Delport asked for the Minster's perspective on the Khampepe Report and the Directorate of Special Operations (DSO /Scorpions) issue.
The Minister responded that the Ginwala Commission would be sitting on the next day. The information being requested would have a bearing on this Inquiry. She felt that the process should not be prejudiced by any answers being given today. She agreed that at the proper time, she would account fully to this Committee, if requested to do so. Some assumptions had been made, and differing interpretations were understandable.
Dr Delport accepted this, although he found it strange that the Cabinet, of which the Minister was a part, had in effect already pre-empted the matter by making a decision on the Scorpions. This would surely have an impact on the thinking of the Hon Ginwala. He placed on record that he was somewhat surprised by Cabinet’s decision to comment on the issue, but accepted what the Minister said.
Mr S Swart (ACDP) added that there was a further difficulty in that this Committee would be called upon to deal with the legislation in the following week. He said that if the Ginwala Commission had not finished its work by then, the Committee would find itself in an awkward position, as it would need to receive a briefing by the Executive. He asked if the briefing and consideration of the legislation would be postponed in that event.
Deputy Minister Mr de Lange noted that there were in fact two separate issues. One was the relationship between the Minister and National Directorate of Public Prosecutions, including the relationship with the DSO. Although the Ginwala Commission would not decide whether the Khampepe report was correct, the two issues did impact on each other. It would be incorrect for the Minister to use this platform today to make any statements, prior to the hearing tomorrow. There was a different policy process in relation to the DSO, which would unfold in Parliament. The Speaker would decide how the process would evolve, but he would expect that the process would be driven by the Department of Safety and Security, and therefore by that Committee, although the Justice Portfolio Committee would obviously be involved as well. Mr de Lange added that there were also pending court cases. When the legislation was tabled, it would be dealt with. The process must be given due respect. He had not doubts that in the next month or so there would have to be open engagement on all these issues.
The Chairperson said that these two Bills were adopted by Cabinet last week. In relation to the Khampepe Commission, Cabinet had already held a press conference. Questions might well be posed to the Minister on her personal views in the future, but she could at this stage only state that the Cabinet had taken the decision.
The Chairperson noted that the Committee would be interested in looking at this year's strategic plan and budget, but would link this to observations made during the previous year. Parliament was not to be seen as micro-managing the Executive. However, the Committee was of the view that the Department was overstretched in the number of matters it had to handle. The Committee would like to hear specifically how the Department would prioritise, what were the main areas of focus, and how it was dealing with matters. He understood that there were problems in certain areas. Attention must be given to precisely how matters were allocated.
In relation to the Criminal Justice System, the Committee would like to hear how the Executive was intending to deal with issues and would like to have reports on progress, particularly so that the public could have its say. In relation to the transformation of the judiciary, the Committee felt strongly that the policy paper should be brought into the system before elections were held, and that it was vital to confer and consult with the existing judiciary, so that a reasonably consensual approach was adopted. He noted the Minister’s acknowledgment of the broad implications of this process, and welcomed her approach.
The Chairperson commended the positive aspects of court transformation. He said that the Committee recognised the challenges of the data system but was concerned that these must be sorted out. In dealing recently with the Child Justice Bill, this Committee had held extensive consultations with different departments, who were relying different data, different terminology, and different views. The security of the courts was also a major issue. He welcomed progress on gender matters. He commented that he personally was not overly concerned about the under expenditure, given the size of the budget. He felt that it was of greater importance to focus on how productively the money was being used.
Mr Swart agreed that the Department must be commended on its huge improvement.
The Chairperson noted that much work still needed to be done in relation to the court system. The Committee's researcher had done a very astute summary of the budget. The Committee would therefore concentrate on the issues identified by her as requiring answers. This summary would be forwarded to the Department. He noted that Mr Magwanishe would be taking charge of following up on many of the issues over the next six months.
The Minister, making her concluding remarks, thanked Members for their comments and said that she had taken note of their concerns, including the security aspects, which she agreed were priority issues. She was willing to attend before the Committee more frequently as she believed that this was the right approach. She noted that when speaking of efficiency within the system, it was necessary also to look at how the Department was interacting with other institutions.
Department of Justice (DOJ): Overview by Director General (DG)
Mr Menzi Simelane, Director General, Department of Justice, noted that the Department had historically handled a very wide range of business. He noted that some of the functions that were not core to the Department were to be removed, in a way that would not cause difficulty to other departments. This would be seen in the shifting profile of staff. It would always be difficult to try to narrow down issues.
Programme 1 was concerned with Administration, falling under Corporate Services. It covered human resources, information technology and similar issues, and the majority of the budget went towards payment of personnel. The main focus of Human Resources (HR) in the last year was on improving management of resources and recruitment. These results could be seen in the filling of vacancies, and he noted that the vacancy rate was in fact now below 12%, at around 6% to 9%. The largest part of the budget was allocated to Court Services and both this and the Master's Office had benefited from filling of posts.
The HR department had also dealt with grievances and performance management, which he felt was generally a sensitive area across the whole Public Service. There was a need to strengthen supervision of performance. Business Process engineering was also undertaken to support the improvement of recruitment, and would ensure that posts were created only when a real need was established. There were attempts to reconcile the posts and the PERSAL personnel systems.
About 110 disciplinary matters were dealt with in the past financial year. These were mostly old and ongoing matters, which had taken too long to finalise. In some of the long-outstanding matters the decision had been taken to close the matter, as it would be too time- and resource-consuming to proceed. Most matters were at the stage of hearing or appeal. There were still some cases where preliminary assessments had been made, and once that had been concluded the numbers of disciplinary matters might increase. The numbers looked large, but they must be seen in the context of the large staff contingent. Many cases concerned misappropriation of funds from the Courts; but few involved large amounts. In the past the Department had merely taken disciplinary steps where there was misappropriation, but was now moving to sue for recovery of funds, which would be a more effective disincentive.
Because of the challenges in management during the past years, the Auditor General had raised some matters of emphasis, and the internal auditors had also picked up some matters. The Department had therefore tried to strengthen its procedures. Despite the impression created by the Auditor General, some of the discrepancies arose through genuine mistakes, not through anything more serious. The supply chain management procedures had been clarified and steps were being taken to encourage people to pay better attention, and to understand how and why they must comply with procedures. It was hoped that these interventions would reduce the instances of non-compliance. There were anti-corruption strategies and risk management strategies in place.
The work of the IT Department was particularly relevant to Court Services. Every roll out of a new court would put some strains on the network. Theft of cables had an impact on the courts' network. However, there was good assistance being given by both Telkom and State Information Technology Agency (SITA).
There was still a challenge around availability of budget for human resources. Adjustments were made where it was clear that spending could not be achieved, to try to achieve greater efficiency. Human capital was a very important commodity for the Department.
In the area of Court Services, Mr Simelane noted the comments around the construction of courts. This was the largest area of work, but was limited by government processes. DPW would have to acquire land, ensure that it was suitable for construction of courts, and find the budget (which could be as high as R30 million per province for High Courts). This area had in the past received insufficient funding from National Treasury. Most of the courts in the townships were old schools converted to courts, and it was difficult to expand them. He asked that the Committee assist the Department in assessing how best to address these problems. In Mpumulanga there was little land available for purchase, except at hugely inflated prices. Around 90% of the capital works budget had been spent in the past in each year. There was perhaps a need now to revise that. The budget would also impact on security in the courts. This would be likely to cost around R600 million; and although it had been requested in the past it had not been given.
Mr Simelane said that staff at the courts were core to the Department’s services. The provision of legal services to the public was vital, and the trend whereby more administrative officials than legally qualified staff were hired must be changed. The services being offered were in fact not across-the-counter administrative services, but staff were required to dispense legal advice and legal interpretation. Accommodation was another issue, and the NPA had been debating whether prosecutors should perhaps not be housed in the Courts, as the conditions under which they were operating were not conducive; they required better resources in terms of libraries and private space, there was insufficient space for additional chambers for the increased numbers of judicial officers and there was a perception, fuelled by sharing of the building, that the prosecutors were not truly independent and separate from the judicial officers.
The question might further be asked whether a person should have to attend at the court to undertake some administrative steps, such as filling in a form to claim maintenance. Forms were now available on the Department's website and applications could be made online. Although e-mail facilities were not yet available, basic services had been available since February. The legal profession had been asked for their comments as to how this was working. This intervention would cut back on costs of personnel. The Department was also attempting to translate the form into different languages.
The posts of Master, Deputy Master and Assistant Master now required legal qualifications. The Master would shortly also be required to have right of appearance in court. By focusing on high level human capital, a more qualitative service should be delivered. This was a major strategic shift. People would in future be appointed at level 11, with average salaries of about R250 000. The type of work environment would then also change.
Mr Simelane suggested that any further points could be addressed during the discussions.
Adv Joubert commented that it was commendable that there were only 110 disciplinary matters. He asked whether performance bonuses had been paid and what amounts were involved.
Adv Joubert asked where the under spending had occurred.
Adv C Johnson (ANC) said that the Law Society, in its Annual Report, had commented upon access to justice, and had raised the point that the Chief Master had asked that the one-sixth share of the spouse in deceased estates be increased, as also that the threshold for administration of estates be raised. There were delays in resolving both issues, which were of concern.
Mr Jeffery asked if there was linkage with the Department of Justice in regard to training of community development workers. He thought that they should be trained to assist members of the public to fill out forms.
Mr Jeffery described a case in Kwazulu Natal, where money had been left in the Guardian's Fund, and the beneficiary, instead of being able to access the funds at his local Magistrate’s Court, was required to travel to Pietermaritzburg. This raised the question of integration of justice services.
Mr Jeffery also asked about the salary packages of prosecutors. He realised that the NPA was still to present on its budget, but asked for comment on what was being done in view of the numbers of prosecutors joining the Bench to access better salaries.
Mr Jeffery said that the question of the Legal Aid Board funding more civil work was under investigation, and that Cabinet would have to resolve the issue. However, he pointed out that there was a statutory requirement that government provide legal assistance in land issues, and although there had been some moves to address this, the matter was not moving forward with due speed. The State Attorneys were playing a role, but the majority of farm dwellers in rural areas were unlikely to be well educated, and had no resources to travel to major centres. He pleaded for assistance to be de-centralised. There seemed not to have been practicable solutions proposed.
The Chairperson noted that not all these questions would be able to be answered now, particularly since the Director General would need to leave shortly.
Mr Jeffery suggested that the Director General perhaps be asked to respond at a later meeting.
Mr Sibanyoni noted that a number of the commissioners from the Human Rights Commission would be ending their term of office early next year. He asked what proactive measures the Department would take this year to ensure that there was proper succession and the posts could be filled in time.
Mr Swart asked if those found to have misappropriated funds at disciplinary hearings would have criminal actions instituted against them, which he believed should be done.
Mr B Magwanishe (ANC) suggested that as a strategic step the Department should look at setting up open plan offices for any staff who were merely required to stamp papers and leave offices free for those who required privacy for consultations. He suggested that consideration be given to more efficient use of space.
Mr Magwanishe noted that in 2005 the Committee had discussed with the Chief Justice the question of air conditioning systems that had been procured by a judge without following correct tender procedures. He asked what had happened in this matter.
Imam G Solomon (ANC) noted that the IT programme fell under administration, but it was difficult for him to pick this up in the budget. He asked how IT was coordinated, who was in charge and what percentage was allocated to it. He also asked how progress was being monitored.
Imam Solomon noted the Minister’s remarks about periodic courts, and asked what steps were currently in place to create access to justice in remote areas.
The Chairperson agreed that the use of community development officers would be a positive step. He commented that the communications division of the Department was still not operating efficiently enough. There were still some matters outstanding from last year.
The Chairperson noted that the Committee agreed that it was necessary for the Legal Aid Board to broaden its role in the civil areas. It would not be necessary for the Department to respond to the comments at length. The principle was agreed; the issue was on what terms it would undertake the work. He suggested that the Committee raise the issue with Parliament and find out the parameters for requiring the Executive to put this into effect. He requested Mr Magwanishe to take charge of this issue, together with representatives of the Department. He also confirmed that this Committee fully supported the suggestion that the Human Rights Commission matter should be expedited to ensure continuity in the Commission, and requested Mr Jeffery and Imam Solomon to discuss the matter with the Speaker.
The Chairperson requested the Department to comment on the questions around the Guardian’s Fund, the Legal Aid Board and the Human Rights Commission.
Mr Simelane said that a memorandum had been drawn for presentation to the Minister on the Legal Aid undertaking civil work. It already did undertake some civil cases; the question was to determine the extent to which this should be done. In respect of the Guardian’s Fund, he confirmed that there had been some improvements. There were service providers in the offices where it operated, and hopefully the books would balance in the current financial year. Similar challenges had arisen in regard to maintenance matters. He agreed that as a matter of principle a beneficiary should not have to call at the Master’s Office to collect a cheque.
The Chairperson said that he had received visits from constituents who were literally crying for assistance from the Master’s Office. He was adamant that full comments must be given on these issues and would forward the relevant correspondence.
Mr Simelane said that obviously each case would have its own facts. However, as a matter of principle, claimants were encouraged to open bank accounts to receive direct payments into those accounts, so that the Department could move away from the practice of requiring claimants to attend at certain centres. This followed the general improvement in IT. As a first step, the right people would be appointed to the right posts to offer proper service. Other procedures would then improve.
Mr Simelane raised the question of funding and noted that there would be a special request to fund OSD as it could not be covered from the baseline. The Prosecution Service and Legal Aid Board clearly needed to get further funding, and it was hoped that an adjustment could be made to allow this.
Mr Simelane said that the 110 cases mentioned all related to funds that had been misappropriated. Other cases were still in the investigative stages, and the number of cases could increase. Recovery procedures would be taken.
The Chairperson suggested that the answers to other questions could be sent in writing, and he also requested that Members having further questions also convey those in writing. He then noted that City Press had recently run an article concerning a tender process, and he would expect the Chief Financial Officer to be prepared to address this on the following day. Finally he informed the Director General that Members had made some strong comments because they were acutely aware of their oversight responsibilities. He wished the Director General well in his difficult working conditions and thanked him for his address.
Budget Overview: Department of Justice and Constitutional Development (DOJ)
Mr Johan Johnson, Chief Director: Budgets, DOJ, highlighted the significant reduction in under spending achieved in the fiscal year 2007/8, which was fully supported by figures and percentages in the written presentation. The written presentation also highlighted the expenditure per economic classification, and he reported that spending on personnel as well as spending on goods and services reached 99,4% of the allocated amount. These in particular showed significant spending increases from the previous financial year. This improvement was in part due to the recent recruitment drive.
The year on year expenditure comparison showed expenditure broken down on a monthly basis. Although over a billion rands had been spent in the last month, this was a decrease when compared to the previous financial year. The expenditure per branch was dealt with, during which Mr Johnson highlighted the spending on Information Systems Management (ISM), the office of the Director General and the office of the Chief Financial Officer (CFO). While most of the branches achieved close to 100% spending, he noted that there was under spending from Court Services, at R120 million. This was primarily caused through under spending on fixed structures such as the buildings. Regional Expenditure was reported as being mainly intact.
Major achievements were listed as being improved departmental spending ( 5% increase in expenditure in 2007/8), the improved spending on compensation of employees, at 99,4% of the approved budget, early prioritisation effected to fund scanners, CCTV interface for Children's Courts and the funding of the Legal Aid Board (LAB).
Medium term spending pressures were said to be enhancing and accelerating capital expenditure for a number of capital work programmes in the pipeline. There would be roll over applications for approval by National Treasury. The impact of salary agreements were also of concern and Parliament would probably be approached for additional appropriation. Personnel recruitment would also prove difficult, with positions approved but not funded. In addition new courts were being funded with no concurrent additional allocations for personnel and operational expenditure.
Estimates of National Expenditure (ENE) over the Medium Term Economic Framework
Mr Johnson also presented this report on projected spending in the 2008/9, 2009/10 and 2010/11 financial years. The overall baseline adjustments were R256,3 million for 2008/9; R404,5 million in 2009/10 and R537,8 million in 2010/11. Priority areas were listed as increased capacity in the LAB, IT modernisation projects and the appointment of additional judges and magistrates. The most important efficiency gain the Department was targeting would be that at least R178,7 million should be saved without compromising existing, new and expanding frontline services over the next three years.
The indication of growth per baseline was broken down per programme. This projected substantial growth above inflation of 13,93% in 2008/9 and 13,04% in 2009/10, tapering off to 6,95% in the outer range of the period.
In regard to regional allocation of expenditure, Mr Johnson noted that funding would run directly to courts in the various regions.
He noted that funding would be provided to Chapter Nine institutions and public entities such as the Commission on Gender Equality and the Public Protector.
Facilities Management funding had been allocated, in part, directly to courts for basic maintenance needs.
He highlighted the ways in which the budget was linked to policy areas in the strategic plan. In particular he noted that funding had been allocated to case flow management, reduction of case backlog and rehabilitation of court facilities. Specifically he noted that 53 additional law researchers and 159 court interpreters had been appointed. He noted that much of personnel spending was not funded from the baseline budget, rather it arose from savings on the operational budget due to improvements in IT and systems.
Programme on Court Services Briefing:
Adv Simon Jiyane, Deputy Director General: Court Services, DOJ, stated the key areas of priority in the budget for Court Services. These were the ITS programme, budget utilisation to increase capacity at the court, with a focus on high court level, modernisation, and the new approach the Cluster was following to address the area of criminal justice. The achievement of an integrated justice system was a main priority. This was established, in conjunction with the National Treasury, to address concerns from the past years. Case management and integration was also a focus. This case management was to take place from police station level throughout the levels of the justice system, and would even encompass the management at the Department of Correctional Services – in other words, the system would cover all stages from arrest to incarceration. He highlighted the use of the CAS and E – Scheduler systems. In addition to this he said there was a move toward involving the Legal Aid Board at the stage of arrest rather than only at court level. He also said this should go some way to enable the Department to track a case once it fell within the Correctional Services ambit.
A critical issue for Court Services was to minimise the duplication of data that arose from a case moving through the levels of the justice system. This was to be achieved through an alignment with CRIMM system. Interdepartmental co-operation was a focus.
Adv Jiyane then touched on the rationalisation of courts, and noted the importance of forward planning. The areas of priority were highlighted as Mpumalanga and Limpopo. In these regions there would be a focus also on the Interim Circuit Court, as well as the amalgamation work from the former Venda. He noted that the Minister had prioritised the areas of Soweto and Mamelodi, and the functioning of the Judicial Training Institutes.
One of the Committee Researchers asked why there was a need for additional funding when the Department was overspending. She raised the need to spend more on personnel.
Mr Johnson replied that the under spending was now minimal. He added that the new courts had used up funding, leaving little for appointing new staff or other expansion.
Adv L Joubert (DA) asked if the excess budget remaining as a result of any under spending could be rolled over to the following financial year. He also asked about performance bonuses.
Mr Johnson said the R120 million rollover of the capital budget was being used to fund and finish the courts currently being built.
Mr Johnson said that 1,5% of the wage bill was dedicated to providing performance bonuses. He said that Human Resources adhered strictly to this and there was no way of allocating this money differently.
Imam G Solomon (ANC) noted the poor conditions of court buildings and asked how the maintenance money was managed or maintained.
Mr Johnson said that maintenance was the responsibility of the Facilities Managers at regional level.
Dr T Delport (DA) asked if the Department had been on a spending spree in the last two months, due to the high expenditure shown in the summary.
Mr Johnson said that the Department had been accused recently of fiscal dumping. As a result of this perception there was now re-evaluation of the budget on a quarterly basis. He suggested that perhaps alternate ways must be found for spending, such as revised allocations. He highlighted the fact that expenditure had improved significantly in the current financial year and that there were many constraints to spending, such as licensing fees.
The Chairperson asked if Court Services spending was adequate, taking into consideration the importance of these services. On the subject of National Prosecuting Authority (NPA) spending, he felt that this was inadequate. He suggested that perhaps the Executive should consider adjusting that. He also asked why Court Services’ spending, in real terms, was declining.
Mr Johnson acknowledged that there were no additional allocations for Court Services, although more money was deserved. He did, however, believe there was a case for increased funding. The Department was currently in the process of making requests to the National Treasury. He concluded by saying the Department had committed funds to other areas, such as the appointment of legal interns.
The Chairperson said that the Committee supported the expansion of the Court Services budget.
Adv C Johnson agreed.
The Chairperson noted concern about the case backlog and the need for faster processing. He asked what was being done to improve the systems.
Adv Johnson asked about the underperformance of the Equality Court.
Mr Jeffery asked why there was as yet no programme of action. He raised the State of the Nation Address and its commitment to reducing backlog by 30% by 2009. He noted that there was nothing about this in the documentation. He also asked, in relation to victim support, why there was no discourse on victims. He took issue with the lack of statistics, and said that it seemed that the DOJ could not provide those statistics. He wanted Court Services to explain vacancy situation among magistrates, more specifically why there were no vacancies. He finally wanted to know what was being done about the administration of the courts, and asked if the building maintenance questions had been resolved.
Adv Jiyane said that in regard to maintenance, alternative service providers had been contracted but they were awaiting legislation
Adv Joubert asked why there was an apparent disconnect in numbers with 69 operational courts and 200 court judges. He also asked to what extent did the availability of courts contribute to the case backlog.
Adv Jiyane responded that the courts were lacking, and that not all judges had a specific court allocated to them. For instance, circuit court work in rural areas would require judges to travel to those areas sporadically. This, and other duties undertaken by judges, was the reason why the figures did not seem to tally.
Adv Jiyane raised the issue of the awareness of services and capacity building as key to the DOJ. He said an audit revealed that these services were not available to people. The roll out of the Court planning had been considered as one solution. Often it had been found that further discrimination was arising out of the way in which criminal cases were being dealt with, and this highlighted the need to be pre-emptive in these cases. Although it was not the mandate of Court Services to provide for victim support, plans were in place to achieve this directive by the DoJ.
Adv Jiyane then moved to the questions around the case backlog. He said that systems integration was far more important as a final goal. Merely using the figures of case backlog was not a good enough gauge, and concentrating on systems was the way to go in realising real benefit. The Department was currently rolling out systems countrywide, focussing on the regional courts. The fragmentation of IMS was a problem across all levels of stakeholders and there was a need to measure performance. Lay assessors were said to increase sustainability and participation in the justice system.
The Chairperson asked for suggestions from the Members as to what questions could be addressed in a future session.
Mr Jeffery asked how race and gender breakdowns could be applied to vacant posts. He also asked where the funding was being found for the current appointments, and said that the statistics on magistrates’ posts were insufficient.
The Chairperson questioned the oversight capabilities. He said there was a need to revamp the auditing process. He also took issue with the way that senior officials moved too easily between organisations, positions and portfolios. He said that this hampered focus and progress.
Mr Jeffery asked about the office accommodation of State Prosecutors and what was happening in this regard. He wanted to know if the funds were available at all for accommodation, and if this was part of the mandate of Court Services.
Adv Jiyane said that district court prosecutors were the responsibility of the DoJ. The costs of leasing premises were very high. He asked the Committee to help motivate the National Treasury to allocate more funds
Mr Jeffery asked what the nature and extent of the accommodation problem was and how it was possible that more prosecutors would be appointed when there were not sufficient facilities to accommodate them. He enquired what the figures were, broken down area by area, and how many of those newly appointed would not be given desks in secure offices.
Mr Swart asked about the extent of the court backlog at district, regional, High, and Court of Appeal levels. He also questioned discrepancies in the case diversion numbers.
Mr Brian Graham, Chief Financial Officer, National Prosecuting Authority, replied to the questions around prosecutor accommodation. He said the problem was critical. In some cases the prosecutors were working in cramped conditions in their homes and even from the boots of their cars. He agreed that appointments should not be made without addressing facilities and accommodation. He also said that leasing was a problem in terms of the expense, especially as the money spent on leases did not amount to a long term investment.
Ms Karen Van Rensburg, Acting Executive: Strategy: National Prosecuting Authority, expressed her concern about prosecutors moving out of courts. She said there was a security risk if they did not have secure premises from which to operate, as they were dealing with sensitive cases as well as confidential documents.
Adv Johnson wanted to know if the Sexual Offences Court was established and running adequately. She also asked that further questions should be addressed in other meetings around about accommodation, closed circuit television, the treatment of children in court, court performance, periodical courts and spending in magistrate’s courts.
The meeting was adjourned.
- Summary and Analysis – Department of Justice and Constitutional Development Budget: Vote 21
- Medium Term Strategic Framework 2008/9-2010/11
- Department of Justice and Constitutional Development: Estimates of National Expenditure
- Overview of 2008 Programme:
- Court Services : Narrative Report and Background Information to the Court Services
- Unaudited 2007/8 Budget and Expenditure Status
- Court Services : Budget Review
- Committee Researcher’s summary and issues relating to the budget
- Minister of Justice: Briefing Notes
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