Question NW4137 to the Minister of Justice and Correctional Services

Reply:

1. Yes, there are mechanisms in place to address cases in courts which are regularly postponed. These include the quarterly meetings of senior members of the Department of Justice and Constitutional Development, with the Regional Court Presidents’ Forum as well as separately with the Chief Magistrates’ Forum, as Magistrates are in charge of Case-flow Management in courts. These meetings discuss blockages in the system and measures to address such blockages. The relevant actions on backlog cases, are further discussed at such meetings.

a) Please would the Hon member give me the details of the case that has been postponed in excess of 75 times, so that I can request the Department to follow up on such with the relevant Regional Court Presidents’ Forum or Chief Magistrates’ Forum, as well as the relevant Provincial Head of the Department of Justice and Constitutional Development? I would not regard postponement of a case in excess of 75 times, as acceptable, but I do not know the reasons for such, i.e., it may have been caused by the accused himself or herself, by changing attorneys every now and then, which forces postponements because attorneys need to learn the history of the case.

(b) Legal Aid South Africa has informed me as follows:

(i) The mandate of Legal Aid SA in so far as the representation of accused persons in criminal matters are concerned, derives from section 35(3) of the

South African Constitution.

(ii) The accused in a criminal matter has the choice to conduct their own defence, alternatively, appoint a legal representative of own choice and, if they cannot afford a legal representative of their own choice, to apply for legal aid, in which case a legal representative will be appointed for them at no cost to them.

(iii) In the 2022/2023 Financial Year, Legal Aid South Africa represented a total of 322 337 accused persons in criminal matters across all courts. Legal

representation is provided using mainly salaried legal practitioners in the full-time service of Legal Aid SA. However, a small portion of matters, being 2% in

the 2022/23 Financial Year, are allocated to independent legal practitioners using Legal Aid SA’s Judicare and agency model.

(iv) In criminal matters, the state is dominus litis and all prosecutions are at the behest of the National Director of Public Prosecutions.

(v) Very few criminal cases are capable of finalization at the first appearance and most criminal cases will be postponed at least once, the number of postponements and the reasons therefore differing from case to case.

(vi) It must be understood that a matter may be postponed, whether or not substantive proceedings were conducted on the day the matter was postponed, ad whether or not substantive proceedings are to be conducted on the next date of appearance. The word ‘postponement’ therefore does not equate to wasted court time.

(vii) The postponement of a case impacts productivity and cost-effectiveness, only if it is unnecessary. It must be noted however, that what may be unnecessary for one court stakeholder may be seen as necessary by another. Presiding officers have the overall responsibility to see to the efficient operation of the courts and therefore, a party seeking a postponement, must provide sufficient reasons for the request.

(viii) Legal Aid SA has a comprehensive Quality Management Program and as part of this program, every practitioner’s case is reviewed so that no unnecessary postponements are caused by the practitioner. The practitioner is also required to oppose all requests for postponements by the prosecution, which are unnecessary, or are likely to prejudice the client. The quality management program is applied to all legal practitioners dealing with legal aid work, notwithstanding the fact that they may practice independently.

(ix) A productivity monitoring program is also in place and all practitioners’ cases exceeding targeted turnaround times, are monitored. This ensures that legal practitioners keep postponements to a minimum, so that their cases may be finalized speedily. On average for Legal Aid SA Internal Practitioners, there are 2.8, 3.5 and 2.4 postponements per District, Regional and High Court matter, respectively, as per Legal Aid SA Management Information Systems. In regard to Judicare Practitioners (Private Practitioners) there are on average 3.3, 4.3 and 3 postponements per matter in the District, Regional and High Courts, respectively.

(x) Both the quality and productivity targets form part of our practitioner’s performance contracts as well as those of their managers and supervisors.

(xi) Legal Aid SA also has stakeholder engagement programs aimed at improving efficiencies in the court system. These include Local Case Flow Management Committees, as well as National and Provincial Efficiency Enhancement Committees.

(xii) Legal Aid SA shares data trends with other court stakeholders in a bid to promote an inter-sectoral approach in fighting case backlogs.

(xiii) Because the bulk of Legal Aid SA’s work (97%) is done by their own internal practitioners, the cost of postponing a case cannot be distinguished from the cost of any other work performed by an employee on a given day. However, where a matter is handled by Judicare, every postponement is remunerated according to approved tariffs, currently being R295 per postponement but was R276 in the 2022/23 financial year.

(xiv) There were 18 137 and 13 324 court sitting days in the year where the District and Regional Courts, respectively, sat when Legal Aid SA did not cover the Courts due to capacity constraints. This will result in postponement of matters where accused persons require legal aid representation but there is no legal aid practitioner scheduled to appear at the court on these days. This will result in the postponement of matters to a date when a legal aid practitioner is scheduled to appear in the Court.

(xv) The estimated cost of postponements, without considering the rationale, is

estimated to amount to R266 million for the 2022/23 financial year in respect

of Legal Aid SA.

2. (a); and (b) I have been informed by the Secretary-General of the Office of the Chief Justice that the Office of the Chief Justice does not maintain a performance dataset on the number of postponements per case in the Superior Courts. However, the OCJ continues to embrace the advantages that technology presents and leverages on it. The modernization of court processes remains a key priority area for the OCJ, not only to improve access to justice for all in accordance with section 34 of the Constitution but to enhance effective record management. As such, the Court Online system has been rolled out to the Gauteng Division of the High Court in Pretoria and Johannesburg and a further rollout is imminent.

The Provincial Efficiency Enhancement Committee (PEEC) chaired by the Judge President of a Division interrogates the blockages and constraints that impact on the speedy resolution of cases. The performance of judicial functions falls however under the purview of the Judiciary and the Chief Justice. It was advised that requests for information relating to the performance of judicial functions, be directed to the Chief Justice.