The various units within the Department of Justice continued to give their budget briefings to the Committee. Programme 1: Administration, reported upon the steps taken to improve supply chain management and handling of money in trust and the efforts to bring down the vacancy rate. The Department’s vision of enabling access to justice and improving efficiency in the justice system as a whole guided its programmes. Corporate Services focused mainly on improving efficiency. Interventions included advertising of posts, signature of performance agreements and financial disclosure by staff, skills development, internships and disciplinary matters. The IT network was increased. E-Scheduler was operating in 469 courts. The Video Postponement Project would commence as a pilot in May. A tender evaluation in respect of Monies In Trust had been concluded and the system should be implemented by January 2009. 284 asset controllers had been trained. Communication outreach and public education was taking place. He explained the Cyberia tender process that had attracted media attention recently and said that a legal opinion had been sought. Questions by Members related to the apparent systemic problems, the steps taken to address the issues, the projects relating to monies in trust, including maintenance, the nature of assets, and the communications tools being used. Further questions related to the relationship with Department of Public Works, the employment of those with disabilities, the budget for Justice College and the budget for the Bills expected to come into operation shortly.
A briefing was given on Programme 4, which encompassed the work of the SA Law Reform Commission and the legislative development. The Bills and research in progress were tabled and explained. Priority projects were identified. The Committee questioned progress on the Rules relating to the Promotion of Administrative Justice and Access to Information Acts, and discussed which Bills should receive priority. The Committee took a unanimous decision to reject the Judicial Officers’ Bill, which was technically still before Parliament, and to submit a report to Parliament, unless before that time the Minister formally withdrew the Bill. The Child Justice Bill and floor crossing legislation, as also the DSO Bill, were to be treated with priority. Briefings would be received on the Customary Succession and Traditional Courts Bills on the following Tuesday. The Department was asked to report back on the Sheriff’s regulations and on problems around recent housing legislation.
The Chief State Law Advisor tabled documentation relating to his office. He reported that four of the senior vacant posts had now been filled, and all five Deputy Chief State Law Advisors were now women. Dual drafting and certification of Bills in at least two languages was being done. This Office had also managed to extend services to municipalities and had achieved considerable State savings by doing so. There was a possibility that it would become involved in constitutional litigation. Members commended this Office, and questioned the relationships between the Parliamentary and State Law Advisers.
The Chief Litigation Office (State Legal Services) briefed the Committee on its staffing, noting that there were still challenges around vacancies and public relations. Lack of resources remained a problem. The briefing patterns and the image of the State Attorneys were being dealt with, and certain programmes and partnerships had been instituted to try to ensure that the State Attorneys were made aware of litigation against other departments to be able to make early and appropriate interventions. Questions by the Committee related to the number of successful and unsuccessful cases, the briefing of private firms and the need to ensure a strong independent private profession as well as in house attorneys and Counsel, billing arrangements and the workload carried by staff.
The Chief Financial Officer of the National Prosecuting Authority (NPA) noted the past qualifications to the audit report and set out how these had been dealt with, stating that the Authority was in consultation with National Treasury around irregular expenditure. The growth in costs of employees would be compounded by the Occupation Specific Dispensation, and there did not appear to be sufficient budget. This was a matter that would need to be resolved. The figures were tabled, but not presented specifically. It was noted that the move of the Directorate of Special Operations would also involve a shift of budget and that because funding was still to be returned to this Directorate some business units of the NPA had had to run lean. Questions related to the calculations of two prosecutors per court, the distinction between the levels of prosecutors.
Further progress reports were given on the roll out of the Sexual offences courts and Thuthuleza centres,
the problems around having certain matters tried in specialised courts, the decrease in court hours, the impact of load shedding, human resource management, the NPA’s efforts towards crime reduction through appointment of community prosecutors, steps put in place to address the need for 24 hour court services during the 2010 events, and the backlog project.
Department of Justice (DOJ): Programme 1: Administration briefing
Dr Khotso de Wee, Chief Operations Office, Department of Justice, reminded the Committee that in the last financial year there had been a major challenge in regard to vacancies, and under expenditure. There was now a supply chain management section, and the monies in trust were being dealt with. There had been some challenges in management. The IT network and communications network had required upgrading. The Department was guided by its vision of enabling access to justice and improving efficiency in the justice system as a whole. Corporate Services was focusing mostly on efficiency.
There were 16 450 staff, and the vacancy rate had dropped from 23% to 12%. Posts had been advertised, and within three months the vacancy rate was expected to drop further to around 9%. Everyone at level 13 had submitted financial disclosures, and the majority of the other levels had done so also, except for some staff who were on suspension. Similarly, performance agreements had been signed. There were a number of areas of focus under skills development, including internships, learnerships, frontline staff and management leadership. A table of disciplinary matters was given, showing statistics of the numbers and age of the cases. Most of these concerned fraud, theft and loss of State money.
It had been decided to increase the capacity of the IT network, because of the additional staff. There were currently 529 networked sites, and there had been provision for literacy training. The E-Scheduler had been implemented in 469 courts and five out of the outstanding six were under construction. The Video Postponement Project had been submitted to tender, and this would commence in Port Elizabeth as a pilot from May 2008.
In respect of Monies in Trust a tender evaluation process had been concluded and it was hoped that the successful bidder would be able to finish system development by September 2008, with full implementation due to commence in January 2009.
An Asset Management register was to be completed by 15 May. 284 asset controllers had been trained and an audit action plan had been formulated. In respect of procurement there had been a revised personnel establishment and 15 posts had been advertised. In communications, there had been outreach and public education. A Court Security tender had been advertised and it was hoped to appoint a service provider within the next few weeks. 127 Courts would be upgraded.
Dr de Wee circulated a copy of the media report in City Press. This dealt with an incorrect tender process. Most of the issues had been identified by internal auditors. A legal opinion had been obtained on whether the contract could be terminated. A second opinion would probably be sought, as there was likelihood that any action would be contested. The Department should shortly be able to make a decision.
Report on Communications
Ms Bulelwa Makeke, Executive Manager: Communications, NPA, noted that there were a number of programmes. There had recently been a human rights programme also launched. It was hoped to engage with youth, particularly around issues of xenophobia and racism. This would be rolled out to all provinces. The DOJ was also finalising a contract with SABC Education, to run a programme called "Justice on the Airwaves". A programme called "Legal Talk" was run on KFM, covering topics such as maintenance, administration of estates and Presidential pardons. The Department was in the process of translating all court forms, which would be put up on the website so that people could send the completed forms back electronically. Pamphlets were being translated also into indigenous languages.
Adv C Johnson (ANC) raised a question on the Cyberia tender reported on in City Press. She noted that this report seemed to indicate that the problems were not limited to this tender alone, and that that there seemed to be general systemic problems. She asked what mechanisms had been put in place to ensure that the systems were running properly.
Dr de Wee responded that these issues were of concern to the Ministry and Department. There were various management plans made, as well as appointment of a properly functioning internal audit unit, which had highlighted some of the weaknesses. The allegation had been made that there was not proper scrutiny. The issues arose because of staffing problems. The Director General had now approved a new structure and 15 positions were being filled in this unit, in line with National Treasury Supply Chain Management requirements. New delegation authority had been issued to ensure that people at the right level would deal with matters. There had been concerns about the size of the bid committee, which had now been strengthened. There was now a clear indication that all branches must constitute a bid specification committee to check that specifications for the bids were appropriate. The DOJ was insisting on regular declarations of non-interest from those in the bid committee.
The Chairperson related a recent media report showing that contracts were still being given to people without any checks as to whether they had the capacity or facilities to carry them out. He wondered why, 14 years after democracy, there should be such systemic problems. He said that the answer by the DOJ sounded convincing for this specific case, but he asked for a written report on what was to be done to avoid such tender problems in future. He noted that the reports to Parliament by the Committee would reflect the recommendations, and that this should be covered in the DOJ quarterly report to Parliament.
Dr de Wee said that he did not think the problem was widespread. A bigger issue was in fact the fraud and theft by staff at the Court level, which had arisen from the manual systems. That was being addressed by eliminating cash from the process and introduction of better accounting methods. The implementation of the methods must still be finalised, and he stressed that he was not saying there would be no further problems, but merely that the situation would improve..
Imam G Solomon (ANC) questioned Monies in Trust, which included maintenance. A programme was launched, but he did not know how far it had gone. He hoped that the programme was actually running, as he thought that there must be substantial amounts of money due to mothers of children.
Dr de Wee said that this project was continuing. There were challenges in tracing beneficiaries and those who should be paying maintenance. Many villages in the rural areas had no addresses, and claimants had changed their address. Maintenance investigators and tracing agents had been appointed and this should assist the project. It would be monitored on an ongoing basis.
Mr Johan Johnson, Chief Director: Budgets, DOJ, said that he would ask for a full report to be given to the Committee.
Imam Solomon pointed out that the question of the asset register had been outstanding for many years, and was due for completion the following week. He asked what was the nature of assets.
Dr de Wee said that more than 80% of the work had already been done. He did not believe that the identification of buildings was a problem, but there was some difficulty in tracing moveable assets and in their valuation. The Department was hoping to meet the deadline of 15 May.
Mr Johnson added that he would be happy to provide a report on the status. In addition to tracing, it was necessary to improve the reporting on movement of the assets, as well as their valuation.
Mr J Sibanyoni (ANC) asked how broadly communications encompassed the various languages and asked if community radio stations were being used. He suggested that perhaps it would be possible to get assistance from Department of Communications.
Mr Neville Gawula, Director: Office of the Chief Litigation Officer, DOJ, said that languages had been identified in certain provinces, and clear distinctions had been made in terms of memoranda to the public. The DOJ was running partnerships in communications matters with departments such as the prison authorities, around translation of forms and so on. Section 327 applications for Presidential Pardons were also being dealt with in this way.
Ms Tsolo added that Justice on the Airwaves did use all languages. DOJ was compiling statistics on use of community radio stations.
Mr B Magwanishe (ANC) asked about the budget, noting that there had been various adjustments, and asked for explanation on the decreases and how the units would fulfil obligations.
Dr de Wee said that there was a problem in finding space; that was why there were discussions around accommodation of prosecutors. National Treasury had held the view that the Department did not deserve to have additional allocations because of its track record of under spending. Although he understood the historical basis for this, the spending had improved. There was still under spending in capital areas. The relationship with the Department of Public Works was not good. There were problems in getting land to build new courts. Recently, instead of relying on that provincial Department, Dr de Wee himself had visited the Municipal offices. Although he held regular meetings with the Director General of Public Works nothing was happening.
The Chairperson said that he would be happy to phone the Director General if he could assist.
Mr Johnson said that the adjustments had not really taken full account of the current rate of inflation. However, certain allocations had increased year on year - such as the Master's Office and Justice College. The Department would have to look at its priorities. It would have to rely upon additional allocations.
Mr Magwanishe noted that people with disabilities were being treated rather as recipients of services than as part of the system. He noted that there was no stated strategy to recruit disabled people to higher positions, and noted that not only should this be in the strategy, but should be stated as a separate category in the staffing profile.
Ms Karen van Rensburg, Acting Executive Manager, Strategy, NPA, agreed that this was a concern. There were problems around disclosure as many of those living with disabilities were reluctant to disclose. The statutory 2% appointment was being monitored, but must also be seen in the context that the disability could not impede the work to be done.
Ms Hannelie van Niekerk, Acting Chief Director: Human Resources, DOJ said that accessibility of facilities was also a challenge, and DOJ was working on it.
The Chairperson asked about the decrease in respect of the sub programme on the Justice College.
Mr Johnson said that the budget was drawn in response to the training needs. In fact Justice College itself would get a 30% increase, although the general budget for Administration, under which it fell, would overall decrease..
The Chairperson asked how the additional programmes of the College would be funded.
Mr Johnson explained that Administration was seen a support services by Treasury, not a line function. More needed to be put into Court services and other programmes. In fact additional funding had also been set aside, under Court Services, for implementation of the Judicial Education Institute legislation, once this was passed. This would grow over the Medium Term Expenditure Framework (MTEF).
The Chairperson asked if there was any budget anticipated also for implementation of the Jurisdiction of Regional Courts Amendment Bill.
Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ, noted that there would be a phasing in of the Bill
Adv Johnson asked if the issue of the office accommodation would go in to the report. She suggested that the Occupation Specific Dispensation (OSD) should also be mentioned in the report.
The Chairperson suggested that all points to be incorporated into the report should go to the CGT (the compilers of the report) by Monday.
The Chairperson asked why the budget for the Witness Protection Programme had been increased by 14%.
Mr Brian Graham, Chief Financial Officer, National Prosecuting Authority (NPA) said that this unit was taking over all the protection from South African Police Services (SAPS). The budget had moved with the SAPS services.
The Chairperson noted that real percentage increase of budget to the Asset Forfeiture Unit (AFU) and said this was a very focussed unit deserving of high commendation.
Mr Johnson said that additional funding may need to be secured, although some budgets had been made.
Adv L Joubert (DA) noted that although part of the mandate of the Department was Constitutional Development, he did not see anything on constitutional education in the budget.
The Chairperson agreed, and noted that certain of the other figures did not seem to tie into the policy issues. He would furnish further written questions to the Department.
Programme 4 Briefing
Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ, said that the areas covered by Programme 4 included law reform, under the Secretariat of the SA Law Reform Commission (SALRC) and the Rules Board. He tabled the research programme, as approved by the Minister, of the SALRC. He highlighted the statutory law revision, which was a review of all legislation enacted between 1910 and 1994. The SALRC had identified about 2 800 statutes to be reviewed for constitutionality and possible discriminatory provisions. Experts were being appointed to assist. These statutes related to the work of fourteen departments. The project was lengthy, but interim reports would be provided. Each department would be given recommendations for amendment and would then deal with them.
Another important project concerned privacy and data protection. A Protection of Personal Information Bill would be drafted, to comply with international standards. Trafficking of persons was another important project. Some trafficking provisions (in respect of children) had been included in the Criminal Law (Sexual Offences and Related Matters) legislation, but the trafficking investigation looked at broader aspects, and it may be that when a holistic law was drafted the provisions in the Sexual Offences legislation would be replaced. A draft report would be produced in May 2008. Although this was not part of the programme, it was quite an urgent matter.
Mr Rudman noted that the Rules Board undertook making of rules for the functioning of courts. Rules approved by the Rules Committee, under the Promotion of Administrative Justice Act (PAJA) and Promotion of Access to Information Act (PAIA), were submitted to this Committee. Rules relating to appeals had also been tabled.
The Chairperson asked the Committee Secretary to check whether these rules had been received through the system, as some Members were not aware of them.
Mr Rudman also tabled the legislative programme. He noted that nine Bills had been introduced into Parliament, of which three were finalised. Others were still before the Portfolio and Select Committees. The Judicial Service Commission Amendment Bill had been approved on the previous day by the Select Committee on Security and Constitutional Affairs. A number of other Bills were pending before Parliament, and others to be introduced, which would include the Bill dealing with the Directorate of Special Operations (DSO or Scorpions).
Mr Enver Daniels, Chief State Law Advisor, noted that this Bill should be ready within the next few days.
Mr Rudman added that a Bill dealing with expungement of criminal records would be approved this week by Cabinet. Other matters were at the point of being referred to Cabinet. The floor crossing legislation would be published in the Gazette this week, and one month for comment from date of publication was required.
Mr Rudman noted two queries raised by Adv Johnson on the previous day in connection with outstanding amendments to the deceased estates legislation and said that he would revert to her on these. The equality regulations had been drafted and referred to the Minister of Finance, who had requested the DOJ to subject the regulations to a Regulatory Impact Assessment, to asses the costs and benefits of the proposals. That was being done. The matter would then be taken further with the Minister of Finance. The Judicial Matters Amendment Bill would have to be passed to extend deadlines in respect of the pending Traditional Courts legislation. The Human Rights Commission Act and the Gender Commission Act were to be brought in line with the Constitution, and provisions from the Interim Constitution, that had not been carried over into the final Constitution, must be inserted specifically into those Acts, and the Commissions brought in line with each other. Although these appeared on the programme for this year, it was unlikely that there would be time to bring them before the Committee, as there would be lengthy consultation processes.
The Chairperson noted that the Committee Report would detail what had to be done on the various Bills. It was possible that technical or simple bills might also be able to be dealt with by the Committee.
Mr J Jeffery (ANC) noted that the Judicial Officers Bill was technically still with Parliament, but did not appear on the lists.
The Chairperson was adamant that this Bill was certainly not up for discussion by this Committee. By resolution of the Committee at the end of 2007 this Bill was to be removed from the lists. The Superior Courts Bill would be reviewed by the end of the first quarter, and he would be raising with the Minister her recent comments about this Bill. He expressed annoyance about the matter. The Committee Report would set out those Bills to be finalised and which it was still handling or referring for public hearings.
Mr Jeffery noted that procedurally the Committee must reject the Bill, and report to the House, or the Minister must withdraw it.
The Chairperson said again that the Judicial Officers Amendment Bill did not exist, and stated that the Ministry of Justice should be acting consistently with other ministries. Mr Doidge had been asked whether the removal of the Bill should not be in the ATC, and he had said that there was a resolution of parliament. Notwithstanding this, officials from Mr Doidge’s office kept phoning Mr Carrim to query why the Bill was not in the programme. He proposed formally that this Committee reject the Bill.
The Committee took a unanimous decision to do so.
Mr Rudman said that he had reported already to the Minister on the Committee’s decision last year, but could convey this specific resolution to her.
Mr Jeffery noted that the Minister could still withdraw the Bill, in which case the Report to the House would not be necessary. He noted that there was an “A” and “B” list, drawn up after consultation between the Chairperson, the Minister and the leader of government business. Both must get approvals. The Presiding Officer had asked that all Bills that needed to be passed before Parliament rose must be sent through by 2 June. It was unfortunate that the legislation on floor crossing would not meet this deadline; although it had been finalised on 16 April, it had not been published for public comment immediately, and therefore the 30 days required for public comment would expire only after 2 June. In the later part of the year the election campaigns would made it difficult to get the two thirds majority in the House to pass the Bill. Mr Jeffery remarked that the Committee used to get reports on the implementation legislation. He had not seen those for a while. That was unfortunate and he would like to revert to the situation where they were received.
The Chairperson said that some bills should be passed in the NA, even if the NCOP could not pass them, and he wondered if it was possible to pick up a bill when the new Parliament came into effect.
Mr Jeffery said that normally all the legislation would lapse. Even if a Bill, having been passed in the current NA, were to start in the new NCOP in 2009, it would still have to come back to the new NA, and be considered by a new portfolio committee, which would be problematic with complex bills.
The Chairperson asked that the Committee agree to pass the Child Justice Bill as its first priority, and said that he would meet also to discuss the urgency with the Chairperson of the Select Committee.
Mr Jeffery said that the floor crossing legislation must also be passed, before 1 September 2009. The Traditional Courts Bill was a section 76 bill, but he did not think it was complex, and suggested that, depending on what came out at the public hearings, the Committee should perhaps also try to pass this Bill.
Mr Magwanishe noted that it was necessary also to look at the “B” list and consider the programme of the NCOP before being able to assess which bills could be passed.
Mr Rudman suggested that the Department brief the Committee on both the Customary Succession and Traditional Courts Bills on the following Tuesday.
Mr Jeffery asked that this briefing should detail how the Traditional Courts bill would change the existing statutory and customary laws, and the reasons for the clauses.
The Chairperson added that he would like to hear what consultation had been carried out. Not only the amakhosi, but also women’s groups in civil society, and other stakeholders, should be consulted.
Mr Rudman noted that the Criminal Procedure Amendment Bill was also fairly urgent, although it was on the “B” list. It dealt with audio visual trials, relating to projects that were already ongoing but whose legal status was a little uncertain. Expungement of criminal records was another issue to be covered.
Mr Jeffery said that the bottleneck in the NCOP would be discussed. He questioned capacity at the DOJ, since Mr Bassett was supposed to be dealing with all these matters. He reminded the Committee that since the Traditional Courts Bill would not be passed by 30 June the Committee would have to bring a Bill to extend the operation of the still operative portions of the Black Administration Act, so that there was no lacuna.
Adv Johnson said that there was nothing on the programme about the Sheriff’s regulations, which were apparently still outstanding and she had not heard from Mr JB Skosana in this regard.
The Committee resolved that within one month a report should be made on this matter. It would be mentioned in the Committee’s Report..
Mr Jeffery noted that there were apparently some problems around housing legislation passed last year, in terms of which a tribunal could make orders having the same force and effect as an Order of the Magistrate's Court. Apparently the Sheriffs were not recognising the orders of the Tribunal and would not enforce them.
Mr Daniels said that he had heard that the tribunals were apparently trying to mediate, and that was causing problems of implementation.
Mr Jeffery said that this was not quite the same issue. He would write a report and asked that the matter be placed before the Study Group.
Office of the Chief State Law Advisor: Briefing by Chief State Law Advisor
Mr Enver Daniels, Chief State Law Advisor, tabled a batch of documentation relating to his office. He reminded the Committee that last year there had been a number of senior posts still vacant. He was pleased to report that four of the senior vacant posts had now been filled. There were now five Deputy Chief State Law Advisors, all of whom were female. Five additional Principal State Law Advisors were appointed, bringing the total to 15. The composition of the staff was set out. Dual drafting in two languages was being done and since the beginning of this year 11 Bills had been drafted in at least three official languages. This
enabled the office to do its work faster. The Office had also managed to extend services to municipalities, and in particular had been able to assist in reviews of a number of by laws. The greatest need seemed to be at municipal level. Cost benefit analyses were undertaken and he believed his Office was able to do this work more quickly, efficiently, and more cheaply than the private sector. Municipalities often complained about inability to access justice because of high costs. The work of his Office was therefore addressing this problem. The Office also did work for the provinces; a meeting had been held to try to formalise the arrangement. It could also render assistance to the parastatals.
Mr Daniels noted that he was acutely aware that any extension of services must not compromise the principal client, the national government. He had argued for some time that his Office should become involved in Constitutional litigation. It had been decided to set up a Constitutional Litigation Office and his Office would perhaps also become involved in constitutional appeals. This was a suggestion that he would be discussing with his principals.
Mr Daniels said that other matters were contained in the full written report and overview.
Adv Johnson said that the work outputs were impressive, as were the legislation reports, and she commended Mr Daniels on the savings reflected in the figures.
Imam Solomon believed that the extension of services to municipalities should be commended in the Committee’s Report. Transformation was vital at Municipal level.
The Chairperson agreed and complimented Mr Daniels, saying that to the extent that resources allowed, the assistance to Municipalities should continue. The level of services at many municipal offices was very poor and any assistance must be welcomed and encouraged.
Adv Joubert also commended the translation of legislation. He noted, however, that amendments to the Constitution were as yet only available in English.
Mr Daniels said that he was trying to expedite the passage of Bills and it was for this reason that the Bills were being certified in at least two languages. He pointed out that in addition to their office work the staff would attend at least ten Committee meetings a week in Parliament. He hoped to expand the staffing.
The Chairperson noticed that the percentage of budget for the Master of the High Court was high. He was worried that there was under performance, that the Guardian's Fund was not performing and that there had been demonstrations by the public at some Master’s Offices. He asked how Parliament would be able to monitor progress and whether anyone had any views on the matter. He wondered how the management systems would improve the Guardian’s Fund. He would like to nominate a Member of the Committee to take charge of these queries.
Dr De Wee said that the budget had been increased for the Guardian's Fund precisely so that it could expand its reach and establish offices in areas where it presently relied on satellite offices and periodic courts. Office space had been acquired in Mpumalanga. He would give a more detailed written report. He suggested that perhaps the Cape Town Master should also be asked to come to the meeting. He said that this must be seen as work in progress. He was not in a position to comment in detail on the impact of the management system, but would send a written comment.
Mr Jeffery hoped that the work of the Office of the State Law Adviser would take into account the number of Bills to be certified and passed. He asked about the relationships between the Parliamentary and State Law Advisors, saying that the State Law Advisers would certify the legislation, but were likely to become removed from the matters once the Bills reached Parliament.
Mr Daniels agreed that the roles did need some clarity and he had developed a protocol to define the roles more clearly. His Office did not see itself in competition with the Parliamentary Law Advisers. His Office would primarily guide the Executive and help it to achieve its objectives, and when certifying Bills the staff would examine them from the perspective of the State.
Mr Jeffery said that when committees and departments effected amendments there might be further questions around constitutionality. He did not recall that Mr Daniel’s office sat in on the meetings and certainly was not represented during the deliberations on the Child Justice Bill. The Parliamentary Law Advisers did not have capacity to assist.
Mr Daniels said that previously this Committee had discouraged his Office's participation, although other Chairpersons would seek advice on amendments. There were sometimes differences of opinion between the various law advisers, particularly on questions of tagging, but he did not think this was of serious concern.
Programme 3: State Legal Services Briefing
Mr Neville Gawula, Director, Chief Litigation Office, DOJ, said that there were still some challenges with the vacancy rate in his unit. He noted that the staffing profile showed 491 posts, of which 57 were vacant, including administrative and professional staff across 10 offices. There were challenges of both a short and long term nature. A major problem was lack of resources. Skills development still needed to be boosted. There had been poor case management, which was resulting in prescription, and default judgments being taken against government. Public relations was a further issue needing attention. His unit was trying to improve the relationships with client departments. It was also looking at the lines of communication, including briefing of Counsel, and at the image projected by all State Attorneys' offices through all court judgments. It was operating in the context of a highly litigious society.
The Chairperson asked for a report on whether the State was generally winning or losing its cases, particularly in regard to social services matters.
Mr Gawula acknowledged that the Chairperson was certainly aware of the challenges. His unit had conducted some research, which showed that many State Departments had failed to comply with PAJA and PAIA legislation. The DOJ had met with the attorneys bringing applications; the DOJ admitted the challenges in the procedures of Department of Home Affairs in particular, and had in many of these cases agreed to settle rather than pursue court actions. It had now been agreed that all outstanding applications for ID documents must then be captured, so that if there was an application DOJ would also be able to pick it up and follow up on the matters.
The Chairperson commented that this was a positive step, and it would be monitored.
Mr Gawula noted that SAPS was the biggest consumer of legal services, because of unlawful arrests and detention. The DOJ had therefore entered into an agreement in terms of which all matters involving SAPS should be directed straight to the State Attorney’s Office to avoid prescription and to move away from the tendency whereby SAPS would appoint Counsel outside the State Attorneys’ Office. He noted that there was concern that where the claims were justified, the awards for damages were often very high. SAPS and DOJ must therefore in future take joint decisions on the approach to be taken, and his unit was now providing training to SAPS offices on what must be done if a letter of demand was received. No defences must be lodged where there was lack of merit. Internal counsel within the DOJ were now being used, so that this cut down on the fees. Experts from the practising profession could be called in if necessary.
Mr Gawula noted that statistics were contained in his report. Targets had been set for briefing patterns in terms of race, gender and seniority. He was not at this stage able to give full information on the year, as he was still busy consolidating all statistics. However, there was less reliance on outsourcing to private practitioners and the in-house expertise was starting to show good results.
There was further an internship programme; legally qualified candidates would be placed under candidateship for two years. His unit was also appointing interns as paralegals and legal secretaries to try to alleviate the administrative burdens of the professionally qualified staff, who should be focusing on litigation. Training was being undertaken specifically on litigation on behalf of the State and many attorneys now had the confidence to appear in High Court. In Constitutional matters, privately practising Counsel would be briefed, but would undertake the cases in partnership with internal staff, so that there was transfer of skills and confidence building.
Mr Gawula noted that a National Litigation Management Forum Conference would shortly be held. Service agreements would be signed, which would be approved by Cabinet and brought to the Conference for final adoption. A policy document would also be brought to Cabinet, which would address the question of wider briefing to transfer skills. A directory of everyone responsible for litigation in all State departments, including National and Provincial departments (but not yet the municipalities) had been developed. The Forum would be in existence for as long as the challenges remained.
Mr Gawula tabled a brief report on Presidential pardons, including representations made to the President. The terms of reference had been broadened to include those denied amnesty by the TRC, those not formally charged and applicants who were still being prosecuted. The President had said that one of the options was to refer the matter to Parliament for debate, or get a legal opinion, but he was adamant that there should not be any undermining of the Truth and Reconciliation Commission. 920 applications for pardon had been received and 42 had been processed, of which one had been granted. Next week another 40 would be considered. That was work in progress.
Adv Johnson said that in the previous year the huge workload carried by the State Attorneys was raised. She asked that a breakdown of cases handled be given, across all offices.
Mr Gawula noted that the study had shown that each State Attorney was handling around 250 files. Business Process Improvement had been asked to investigate the work and realised that the load was too high. One recommendation had been to increase capacity. He noted that his presentation did demonstrate the number of professionals in each office. Posts would be advertised shortly. A new office was to be opened in Mthatha to relieve the Bisho office.
Mr Magwanishe would like there to be careful consideration given to the briefing patterns, to ensure that a vibrant private legal profession was still able to operate. Many of the disadvantaged professionals might be reliant on State work. This must also be taken into consideration. He would like an assurance that some of the work would still be referred to private practitioners.
Mr Gawula confirmed that it was true that many previously disadvantaged graduates would, on completing their university studies, choose to go the Bar. However, this could be expensive if they were not able to attract work, as they would have to pay rental for Chambers and the like. The State Attorneys Office was prepared to target for employment those who were unable to establish a private Bar practice. They would work for the State Attorney for a few years, building their own skills and capacity within the Office, and could later, with their savings and new confidence, establish their own practices. At the same time, the State Attorney did not want to create expectations that practitioners should rely solely on government work. The first pilot project was trying to recruit young disadvantaged advocates. He noted also that private attorneys’ firms would be used as correspondents of the State Attorney, because of the 8km service rule. The State Attorney did not want to stifle the private practitioners.
Adv Joubert asked about billing arrangements when work was done for other departments.
Mr Gawula said that each department had a budget for litigation. The State Attorney, when defending matters, would incur costs, and would be reimbursed from the departmental budget, as agency fees or services.
National Prosecuting Authority (NPA): Chief Financial Officer’s (CFO) report
Mr Brian Graham, Chief Financial Officer, NPA, noted that the audit report had been qualified in the previous year. As reported in February, there was a project plan in place to ensure that all matters were dealt with. A joint venture service provider was appointed to undertake asset counts. It had done work in other Government departments. The NPA insisted on strict deadlines and a count was done of all assets across the country. However, it subsequently appeared that there had been errors, and when there was non delivery, after demand, the contract was terminated, and the work given over to another partner in the joint venture. The service provider that was terminated was the head of the joint venture, and was currently withholding payment from the joint venture partner, and the matter was therefore under dispute. The Auditor General had advised that payment should be made and the money reclaimed. There were therefore delays, although Mr Graham was confident that this would not carry over to the next audit report.
The irregular expenditure reported on by the Auditor General had in general related to leases. National Treasury confirmed that it was still giving its final consideration as to whether to give condonation of most of the items, as Treasury had been working with NPA. There was one item still outstanding but this should be sorted out shortly.
In relation to expenditure, Mr Graham noted that an additional R75 million had been received from Department of Justice and there were some savings achieved.
The growth in costs of employees would be compounded in the current year because of the Occupation Specific Dispensation (OSD). When NPA advertised for prosecutors, it was likely that 85 to 90% of vacancies would be filled internally, unless the posts were at a very low level. That meant that the salaries were rising but the numbers of prosecutors were not being increased. In terms of the Estimates of National Expenditure he doubted whether there would be either the funding or available personnel to fill all posts. Prosecutors had an expectation that they would receive the specific dispensation approval, but the reality was that there did not appear to be a budget, unless Treasury were to give the money, and this was unlikely, as the Minister of Finance had approved this on condition that there was no change to the baseline. He thought that there would be internal disputes and grievances unless this was resolved.
Mr Graham tabled the figures but said that he would not comment specifically unless there were questions. He said that in the past the DSO allocation had not been able to be spent in the first few years while this unit was still establishing itself. The NPA had therefore been using the money. As time went on the NPA had to refund to the DSO. About R9 million still had to be returned to the DSO and other business units of the NPA had had to run lean to make up the DSO allocations.
Adv Joubert asked if the removal of the DSO would mean that more funds were available.
Mr Johnson said that the funds would follow the function.
Imam Solomon asked where the directive of two prosecutors per court had emanated.
Mr Graham said that this was a long-standing directive, which assumed that one prosecutor could prepare while the other was running a prosecution, to achieve greater efficiency.
Ms Karen van Rensburg stated that 2:1 had been adopted then as the ideal. However, that had been based on current and not optimal performance. Currently the NPA was undertaking a more scientific survey and analysis of what was needed, what type of personnel were required, and the optimal numbers as it seemed that in other units where the ratio was higher – around 9 prosecutors per court – the success rate was much higher. This scientific survey was intended to support an NPA application to Treasury for increased funding.
Mr Magwanishe referred to the matters raised on page 12 of the Committee Researcher’s summary of questions, and asked for details of the investigation into senior managers in the Witness Protection sub-prgoramme.
Ms van Rensburg said that the investigation had been finalised and the charge sheet was being drafted. The investigation in respect of the Director and Deputy Director was not yet finalised. There would be joinder of other persons. Special Investigating Unit (SIU) was doing the investigation and this was a matter of prioritisation for the organisation.
Mr Magwanishe said that he did not understand the discrepancies in salaries and status between the various prosecuting posts.
Ms van Rensburg responded that the Senior Public Prosecutor would perform management functions and might have a number of people reporting to him – for instance in Port Elizabeth there were numerous staff reporting to the Senior Public Prosecutor. A Senior State Advocate would do chamber work, but would not have managerial functions. A Chief Prosecutor managed a Cluster, and would have to manage senior prosecutors, and this might involve staff of 200 to 500. A Deputy Director might have a huge staff too, but usually a Deputy Director at a High Court might only manage around 10 staff. However, the cases were of a different nature.
Imam Solomon asked about the proportion of prosecutors, noting that the criminal justice system was not showing sufficient performance. He asked when Treasury would finalise the funding.
Ms van Rensburg noted that there would be phased-in appointments. In the NPA there was a vacancy rate of 14% an the money allocated would not touch the vacancies in Court. The calculation was done on the number of courts, with an allocation of two prosecutors per court. However, this did not take into consideration the chamber work and dockets. That was why the scientific study had been undertaken so that NPA could make out a business case for more funding and more prosecutors to be appointed.
Ms van Rensburg noted that there had been a planned roll out of the sexual offences courts. Although addressing sexual offences was a national priority, there was nonetheless heavy reliance on donor funding, which had only come through in December. Over the next two and a half years 42 Thutuzela Centres were to be set up. A full project plan had been developed, under a newly appointed Project Manager. All stakeholders had been asked to identify where the 15 centres that were to be opened this year should be placed. She would forward a full project plan in this week
Mr Carrim asked what was happening on the upgrading of IT infrastructure.
Ms van Rensburg said that this was part of the integrated system. The NPA was also working on a Master Business Plan that was to talk to the strategy, annual plans and processes. Most of these had been mapped to determine the requirements to be supported through systems. She would send information to the Committee.
Ms van Rensburg addressed the question of the specialised courts. The NPA did not have control in this area and it was of concern. The judiciary often had a problem with specialisation in one court. Many of the specialised cases were being “lost” through reluctance to implement the system fully, and many rape cases were being dealt with in mainstream Magistrate’s Courts, which meant that there was not a good enough understanding being developed of the special nature of the cases. The specialist prosecutors were finding themselves having to travel between different courts.
Ms van Rensburg noted that a question had been asked about the Special Investigation Unit. Since she did not have the full information she would ask Mr Willie Hofmeyr to forward the full plan.
Ms van Rensburg noted that the comments about branding made earlier had been taken to heart and the Communications Unit had been given a significant increase and had a communications strategy.
Ms van Rensburg said that the preliminary findings of the NPA were that Court hours had decreased, and it was certain that the Eskom load-shedding had had a huge impact as finalisation rates were also lower. However, the conviction rate was around 91%. This year there would be a focus on improving operational efficiency, by implementing “lean thinking” and removing wastage from the processes. It had been found that once a case reached the Court there was minimal delay; the problem lay in getting people to Court. The NPA was working on the problems with the DOJ and the Legal Aid Board (LAB). However, it must be seen as a long term project in which the results would not be seen immediately.
Human Resource Management strategies had also been raised as an issue in the previous discussions. There was a project ongoing to try to ensure that the right people were placed in the right positions. Although the NPA was not actively involved in crime prevention, having a more reactive role, there were now nine community prosecutors, and there had been much success in reducing crime through this intervention. Two “hotspot” areas had been identified and removed. NPA was working with SAPS, local government and local communities and interventions could be in such matters as providing separate toilets at shebeens, to reduce the instances of rape, to cutting grass so that criminals could not hide. NPA had not looked at the displacement of crime. For this year it would be doing footwork to create posts to go forward. She noted that there was a 520 page report available, which would be forwarded to the Committee.
The NPA continued also to plan for 2010 as a joint project. It was attempting to reduce opportunities for crime, and when crime did occur, there would be 24-hour prosecution services available at certain courts to finalise cases immediately if necessary. Organised crime was a major concern and additional capacity was being appointed.
Ms van Rensburg stated that the backlog project would continue, but this should be seen as a short term intervention, as in the longer term it was necessary to address the root causes of delays. The roles of prosecutors were also being addressed, and ensuring an accredited service. The Department was continuing to work with all stakeholders and increasing collaborative efforts.
Adv Johnson asked whether the 2020 Strategy was still in existence.
Ms van Rensburg confirmed that it was. It set the direction for the shorter term strategies; for instance the strategy for the next three years fitted in to Horizon 2 of the overall strategy.
Ms Kedibone Tsolo, Acting Chief Director, Communications, DOJ, said that the communications strategy focused on internal communications and marketing, in line with Government communications strategies, media relations, and management. Over the past few years the focus was on cleaning up and replenishing; there had only been six people to run the unit until recently. There were now regional managers appointed, which would assist also with community outreach. The focus was in line with government communications, focusing on women and children, and thus there was close work with the Sexual Offences Unit, as also a focus on human trafficking, which would also become important in 2010, and developing more awareness. The DOJ had in the last few years done communications outreach at exhibitions and events attended by communities, such as the Rand Show, the Grahamstown Arts Festival and others. The advantage was also that the community would then, in discussions, advise what issues they would like to have addressed. The recent media coverage over the Directorate of Special Operations (DSO) activities required interventions to ensure that the status of the NPA was properly explained, and that it was not adversely affected. There was a need to have greater awareness around branding. Many people felt that the DSO or NPA were an alternative to the police, and that they could approach them if they were not satisfied with police services and this must still be addressed through public education.
The Chairperson agreed that there was a need to explain the roles. The Committee felt that it was not in anyone's interest to have the NPA undermined.
The Chairperson said that the 2010 event and the seriousness of the AIDS crisis raised the question of whether perhaps sex workers should be legalised. Other sensitive issues had been addressed, and he believed that there should be some tempered public discussion on the issue.
Adv Joubert pointed out that the SA Law Commission had done some work on this. There were apparently no prosecutions being instituted although the crime of prostitution was still on the statute books.
Imam Solomon pointed out that many crimes such as prostitution had a socio-economic basis.
The Chairperson felt that the matter needed to be taken further. He pointed out that many decisions had already been taken by Parliament that were far ahead of the views of the public, such as the same sex marriages.
The morning session was adjourned.
- National Prosecuting Authority : CFO Report
- Office of Chief State Law Adviser: Work register 2007
- Office of Chief State Law Adviser: Work register 2008
- South African Law Reform Commission research programme
- Revised Legislative Programme for Department
- Briefing Notes: Reference Group on Presidential Pardons
- Office of Chief Litigation Officer: Progress report on Apex Priorities
- Office of the Chief Litigation Officer presentation
- Article published in City Press on 13 April "Questionable Tender will not be rescinded"
- Corporate Services Presentation
- We don't have attendance info for this committee meeting