PCJusticeBRRR

7.   The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 24 October 2018

The Portfolio Committee on Justice and Correctional Services, having considered the performance and requests for additional allocations for the medium term period of the Department of Justice and Constitutional Development, National Prosecuting Authority, Information Regulator, Legal Aid South Africa, Special Investigating Unit, South African Human Rights Commission and Public Protector, reports as follows:

  1. Introduction

 

  1. The Money Bills Procedure Amendment and Related Matters Act 9 of 2009 requires portfolio committees to compile Budgetary Review and Recommendation Reports (BRRR) that assess service delivery performance given available resources; evaluate the effective and efficient use and forward allocation of resources. Portfolio Committees may make recommendations on the future allocation of resources. The annual review of expenditure and performance for 2017/18 forms part of this process.
  2. The Committee oversees the Department of Justice and Constitutional Development (the Department) and other entities and institutions that receive their allocation under the Justice and Constitutional Development Vote. These include the National Prosecuting Authority (NPA), Legal Aid South Africa, and Special Investigating Unit (SIU). The South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA), established in Chapter 9 of the Constitution as State Institutions Supporting Constitutional Democracy, also receive their allocation under Programme 5 of the Vote by means of a direct transfer.
  3. Section 39 of the Protection of Personal Information Act, 2013, (POPIA) establishes the Information Regulator as an independent juristic person that is accountable to the National Assembly. The Information Regulator has responsibilities in terms of both POPIA and the Promotion of Access to Information Act, 2000 (PAIA). Towards the end of 2016, the Members of the Regulator were appointed. At present, until fully operational, funding for the Regulator remains under Programme 3: State Legal Services.

 

  1. The Vote has five programmes:
  • The Department of Justice and Constitutional Development is directly responsible for the Administration, Court Services, State Legal Services and National Prosecuting Authority programmes.
  • Programme 5 contains allocations to various auxiliary and associated services, including transfer payments to Legal Aid South Africa and the Special Investigating Unit (SIU), as well as to two of the State Institutions Supporting Democracy – the South African Human Rights Commission (SAHRC) and the Public Protector South Africa (PPSA).
  • Programme 5 also includes the Justice Modernisation sub-programme, which is responsible for the design and implementation of IT infrastructure for the integration of business processes within the criminal justice system, involving Justice Crime Prevention and Security (JCPS) Cluster departments.

Method

 

  1. The Committee met with the Auditor-General on the audit outcomes for the Vote on 9 October 2018. The following day, the Deputy Minister of Justice and Correctional Services, Mr. John Jeffery, addressed the Committee, providing a political overview of the 2017/18 annual reports.
  2. The Committee engaged with the Department, NPA, Legal Aid SA, SIU, Information Regulator, SAHRC and PPSA on their respective annual performance and spending for 2017/18, as well as any additional funding needs for the 2019 MTEF. These briefings took place over a two-week period in October 2018, as follows:
  • Department of Justice and Constitutional Development – 10 October 2018.
  • National Prosecuting Authority – 10 October 2018.
  • Public Protector – 11 October 2018.
  • South African Human Rights Commission – 11 October 2018.
  • Information Regulator – 11 October 2018.
  • Legal Aid South Africa – 16 October 2018.
  • Special Investigating Unit – 17 October 2018.
  1. Copies of all the presentations are available from the committee secretariat.

 

Part 1

  1. Overview of key policy developments

 

  1. As the present Administration nears the end of its term, the focus is largely concerned with the consolidation of policies and legislation, and effective implementation of programmes aimed at responding to Government’s Programme of Action.
  2. To achieve its objective of delivering justice to all, the Department has placed considerable focus on transformation of the justice system in its entirety and of the legal profession as well. Priorities, therefore, include:
  • Finalising a policy to address the constitutional imperative of a single, integrated judicial system by migrating the administration of the Lower Courts to the Office of the Chief Justice.
  • Finalising a policy relating to judicial governance and court administration, which will be submitted to Cabinet for consideration.
  • The systematic development of a new body of law that is steeped in constitutional values as part of the ‘Renaissance Project’.
  • Overhauling the Magistrate’s Courts Act, 1944, as part of the Department’s broader transformation agenda.
  • Developing a policy and legislative framework for community courts and for the best use of community advice offices, as mechanisms that will enhance access to justice.
  • Continuing to establish dedicated sexual offences courts that meet the blueprint approved for these courts in 2013.
  • Continuing the process of aligning court jurisdictional boundaries with that of the applicable municipal and provincial boundaries.
  • Continuing to build, upgrade and maintain the court infrastructure to enhance access to justice for all.
  1. There is also a focus on the transformation of State Legal Services to strengthen the capability of the State to manage litigation and to address organisational challenges in the State Attorney environment. There has been progress in drafting a proposal for the establishment of State Legal Services as a government component and it is expected that the document will be submitted to Cabinet during 2018/19. In the State Litigation environment, a number of policies (addressing for example, the briefing of Counsel Briefing, Tariffs and Mediation) have been developed and will be submitted to Cabinet for approval by the end of 2018/19.
  2. A complete overhaul of the criminal justice system is planned. The review will address challenges that relate to the slow pace of modernization of court processes through the Integrated Justice System (IJS) programme and the lack of effective co-ordination across Justice Crime Prevention and Security (JCPS) Cluster departments. The Department has presented a plan to Cabinet on the re-engineering process, which the JCPS Forum of Directors-General will lead.
  3. Implementation of the Legal Practice Act, 2014, is well underway. The Act was amended to extend the three-year lifespan of the National Forum for it to complete its statutory mandate and to ensure a smooth transition to the new dispensation. The election of the Legal Practice Council is expected to take place at the end of October 2018.
  4. The Department has continued to roll out sexual offences courts: in 2018/19, an additional 17 court rooms were adapted in line with the sexual offences model, bringing the total number of adapted court rooms to 75.
  5. The rationalisation of magisterial districts continues: in 2017/18, magisterial districts were aligned in Kwa-Zulu Natal and Eastern Cape and the changes will be finalised in 2018/19. In addition, two divisions of the High Court were aligned with provincial boundaries, namely Gauteng and North West. The intention is to complete the rationalisation process by the end of 2019/20.
  6. Implementation of the recommendations of the Truth and Reconciliation Commission (TRC) remain important to bringing about healing and closure for crimes committed during apartheid. A key project that has been implemented has been educational assistance for the next-of-kin of TRC-identified victims. For the 2018 academic year, a total of 1 200 beneficiaries for basic education and 457 for higher education were positively verified and referred for payment of benefits.
  7. The Pretoria Gallows Exhumation project continued in 2017/18. Of the 83 people identified for exhumation, 46 remains have been exhumed. Of these 32 were completed in 2017/18. These included 15 UDF activists who were part of the political turmoil in the Eastern Cape in 1985 and 1986. The intention is to finalise this project in 2018/19.

 

  1. Audit outcomes for 2017/18

 

  1. The Auditor-General reports the following audit outcomes for the Justice Portfolio:
  • The Department received a qualified audit opinion with findings for the second consecutive year.
  • The CARA Fund, Guardian’s Fund, President’s Fund, Legal Aid SA, SIU and Third Party Fund all achieved clean audits.
  • The audit outcome for the Public Protector South Africa remained unchanged: the PPSA received an unqualified audit opinion with findings.
  • The South African Human Rights Commission’s audit opinion regressed from a clean audit to an unqualified audit opinion with findings.

 Table 1: Summary of audit outcomes for the Vote:  2014/15 – 2017/18

 

2014/15

2015/2016

2016/17

2017/18

Justice

Unqualified with findings on compliance

Unqualified with findings

(Material misstatements on the financial statements had to be corrected after being submitted for auditing; and compliance, including Supply Chain Management (SCM))

Qualified with findings

(Failure to account for immoveable capital assets)

Qualified with findings

(Leave entitlement (Magistrates);

Contingent liabilities;

Intangible assets)

NPA

Not applicable: Reports as part of the Justice Department

Legal Aid SA

Unqualified

Unqualified

Unqualified

Unqualified

Third Party Funds

Disclaimer

Qualified

Qualified

Unqualified

Guardian’s Fund

Unqualified

Unqualified

Unqualified

Unqualified

President’s Fund

Unqualified

Unqualified

Unqualified

Unqualified

SIU

Unqualified with findings (Compliance)

Unqualified with findings Compliance)

Unqualified

Unqualified

PPSA

Unqualified with findings (Compliance)

Unqualified with findings (Compliance)

Unqualified with findings

Unqualified with findings

SAHRC

Unqualified with findings (Compliance)

Unqualified

Unqualified

Unqualified with findings

 

  1. Department of Justice and Constitutional Development

 

  1. The Department received a qualified audit opinion for 2017/18 with the following findings:
  • Contingent liabilities stated at R2.2 billion. The Auditor-General found that the Department does not have adequate internal controls to estimate the likely settlement amounts for claims against the State. As a result, the Auditor-General was unable to determine the full extent of the overstatement on this item. Notably, in 2016/17, the Auditor-General emphasised significant uncertainties relating to the provision for contingent liabilities for claims against the Department amounting to R1.7 billion.
  • Leave entitlement for magistrates. The Auditor-General could not obtain sufficient evidence that all leave transactions for Magistrates had been recorded, as there were no adequate systems in place.
  • Intangible assets. The Auditor-General was unable to obtain sufficient evidence that all intangible assets had been recorded.

 

  1. The basis for the previous year’s qualification, which related to the failure to record work in progress for infrastructure, no longer applies, as departments are no longer required to disclose work in progress for infrastructure projects.

 

  1. On the usefulness and reliability of the reported performance information, the Auditor-General made the following material findings:
  • Sufficient appropriate audit evidence could not be provided in some instances, while in others the supporting evidence provided did not agree with the reported achievements. As the Auditor-General was unable to confirm the reason for the variances by alternative means, it was not possible to determine whether any adjustments were necessary to the following reported achievements of various indicators under Court Services and State Legal Services (The following indicators under Courts Services are affected: number of criminal cases on the backlog roll in lower courts; percentage of criminal cases postponed due to unavailability of administration staff; percentage of child justice preliminary inquiries finalised within 90 days of first appearance; percentage of maintenance matters finalised within 90 day of service; percentage of litigation cases and non-litigation backlog cases finalised; percentage of maintenance backlog cases finalised; percentage of unopposed taxations processed within 14 days from the date of set down (district courts). In the State Legal Services programme, the following indicators were identified: number of High Court appearances by the State Attorney; and reduction in the capital amount paid in medical negligence and unlawful arrest).

 

  1. On compliance with legislation, the Auditor-General reported as follows:
  • Material misstatements on the Annual Financial Statements required correction. Uncorrected material misstatements and supporting materials that could not be provided led to the qualified opinion.
  • Effective steps were not taken to prevent irregular expenditure. In addition, the value stated in the Annual Financial Statements is not complete.
  • Effective steps were not taken to prevent fruitless and wasteful expenditure of R52.7 million.
  • Creditors were not paid within the required 30 days.
  • Contracts were extended or modified without approval of a properly delegated official.
  • Some goods and services with a value of more than R500 000 were procured without inviting competitive bids although it was practical to invite bids.
  • Some goods and services with a contract value of less than R500 000 were procured without obtaining the required price quotations.
  • Procedures to ensure effective performance monitoring and corrective action through quarterly reports were not established.
  • The Accounting Officer did not effectively oversee financial and performance reporting and compliance, as well as related internal controls.
  • Management failed to review the Financial Statements adequately before they were submitted; there were insufficient monitoring controls in place to ensure compliance with legislation; and proper record management systems and internal processes were not in place to ensure timely, credible financial and performance reporting.

 

  1. The Department recorded increases in both irregular expenditure and fruitless and wasteful expenditure in 2017/18:
  • Irregular expenditure increased from R47 million in 2016/17 to R156.4 million in 2017/18. In addition, a further R364.2 million is under investigation as follows: R75 million for mobile courts (supply chain management bid procedures not followed; R287 million relating to the construction of the Mpumalanga High Court (variation orders were not approved); and R985 000 for fingerprint scanners (deliberate split of procurement to avoid tender processes).
  • Fruitless and wasteful expenditure of R49 million was identified in 2017/18.

 

  1. Third Party Funds (TPF)

 

  1. The Department’s efforts to clean-up the TPF environment over the past few years resulted in the Fund achieving an unqualified audit opinion, improving from a qualified audit outcome in 2015/16 and 2016/17 after years of disclaimers.

 

 

  1. Financial performance

 

  1. In 2017/18, the Vote was allocated R18.9 billion, as follows: programmes were allocated R16.8 billion and a further R2.2 billion was allocated for magistrates’ salaries. Following the Adjustment’s process in October 2017, the allocation was adjusted downwards by R100 million to R18.8 billion because of unspent funds that were intended for magistrates’ salaries. Therefore, the final allocation to the Vote for 2017/18 was R18.8 billion, as follows: Programmes were allocated R16.8 billion and R2 billion was allocated for Magistrates’ salaries.

 

Table 2: Vote 21 - Justice and Constitutional Development – Allocation for the 2018 MTEF per programme

Programme

(R ‘million)

Budget

2018 MTEF

2017/18

2018/19

2019/20

2020/21

Administration

1 786.9

2 211.7

2 247.2

2 382.9

Court Services

6 604.6

6 443.7

6 885.5

7 350.8

State Legal Services

1 232.3

1 251.5

1 343.8

1 440.6

National Prosecuting Authority

3 684.3

3 648.8

3 929.1

4 214.9

Auxiliary and Associated Services

3 478.8

3 587.6

3 777.0

3 985.0

TOTAL

16 786.8

17 049.4

18 182.7

19 374.1

Magistrates’ Salaries

2 040.5

2 215.5

2 383.7

2 560.2

Total

18 827.3

19 265.0

20 566.4

21 934.4

 

  1. Overall, the Department spent R16.6 billion or 98.9% of the R16.8 billion allocated to programmes for 2017/18. The underspending of R179 million was largely due to lower than anticipated expenditure on salaries as a result of natural attrition and a decision to only fill critical posts; delays in the finalisation of inter-governmental negotiations regarding an access road to the Mpumalanga High Court; and the implementation of strict expenditure containment measures relating to the acquisition of capital assets.

 

  1. A breakdown of programme spending and performance for 2017/8 was as follows:
  • The Administration programme spent R1.96 billion (or 99.3%) of the programme budget of R1.97 billion, underspending by R1.7 million. The underspending is because of delays in finalising the refurbishment of office buildings that affected the delivery of related office furniture and a less-than-anticipated transfer to SASSETA. The programme achieved 79% of its targets.
  • The Court Services programme spent R6.3 billion (or 98.5%) of the R6.4 billion allocated to it, underspending by R95 billion. The underspending is attributed to delays in the filling of vacancies, as well as the implementation of cost containment measures. The programme achieved 54% of its targets, compared with 95% in 2016/17. Furthermore, the Auditor-General raised a material finding about the usefulness and reliability of the performance information for seven of the programme’s performance indicators.
  • State Legal Services spent R1.1 billion (or 94.5%) of its budget, underspending by R67.3 million. The underspending is attributed to delays in filling vacant positions. The programme achieved 75% of its targets, compared with 78% in 2016/17. Furthermore, the Auditor-General raised a material finding on the usefulness and reliability of the performance information regarding two of the programme’s performance indicators.
  • The NPA spent R3.7 billion (or 100%) of the final appropriation to the Programme.
  • In the Auxiliary and Associated Services programme, expenditure in respect of the Justice Modernisation subprogramme was R810.6 million (or 100%) of the final appropriation to this subprogramme. The subprogramme reports achieving 100% of its targets.

 

  1. In respect of Magistrates’ salaries, an amount of R1.93 billion (or 94.8%) of the adjusted appropriation of R2 billion for 2017/18 was spent, resulting in under-expenditure of R107 million.

 

  1. In 2018/19, the Vote is allocated R19.3 billion, of which R17 billion goes to programmes and R2.2 billion is a direct transfer for Magistrate’s salaries.

 

  1. The constrained fiscal outlook has meant a decrease in the Vote’s baseline of R2 billion over the 2018 MTEF (R643 million in 2018/19; R667 million in 2019/20; and R705 million in 2020/21). The baseline reduction for 2018/19 is as follows: R43.7 million from the Administration programme; R200 million from Court Services; R49 million from State Legal Services; R200 million from the NPA; and R92.8 million from Legal Aid SA.

 

  1. In 2018/19, R41.8 million is reprioritised from unfilled Magistrates’ posts to operationalise the Mpumalanga High Court. Over the medium term, an additional R79.4 million is reprioritised to the Office of the Chief Justice to fund operational costs at the Mpumalanga High Court.

 

  1. In line with the commitment to reduce the headcount in the Public Service, personnel numbers for the Vote are expected to decrease from 24 094 in 2017/18 to 23 888 in 2020/21.

 

 

Part 2

 

  1. Overview of the Department of Justice and Constitutional Development’s strategic and operational environment

 

  1. The Department priorities are aligned with the NDP to address, in particular, chapters 12 (Building safer communities) and 14 (Promoting accountability and fighting corruption). The Department also has a role to play in implementing chapters 11 (Social protection), 13 (Building a capable state) and 15 (Transforming society and uniting the country).

 

  1. From a policy perspective, the Department has identified the following transformational themes:
  • The transformation of State Legal Services.
  • The transformation of the legal profession for access to justice for all.
  • The transformation of the criminal justice system and restoring public confidence.
  • Entity oversight and institutional arrangements.

 

  1. The Department’s strategic goals are as follows:
  • Optimisation of the use of people, processes and technology to ensure service delivery and good governance requirements.
  • People-centred justice services that are accessible, reliable and efficient.
  • Corporatised, cost effective and integrated quality legal services to protect the interest of the State proactively.
  • Promotion of constitutionalism, human rights and commitment to international legal relations.

 

  1. In 2017/18, the allocation for the programmes that the Department directly administers (excluding the NPA but including the Justice Modernisation sub-programme under Auxiliary and Associated Services) was R10.5 billion, compared to R10.2 billion in 2016/17. The bulk of spending remained directed towards Court Services, which is the Department’s main service delivery programme. The NPA received the next largest allocation.

 

  1. The Department’s spending focus for 2017/18 was on:
  • Improving access to the courts by building new courts.
  • Adapting courts in line with the sexual offences model.
  • Protecting vulnerable groups by rolling out the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances; and conducting provincial dialogues, among others, to improve constitutional awareness.
  • Transforming state legal services.
  • Deepening the protection of the right to privacy through the establishment of the Information Regulator.

 

  1. Key reported areas of achievement for 2017/18 included:

 

  1. The maps for the alignment of municipal boundaries and magisterial districts for Kwa-Zulu Natal were drawn and the consultative process begun. This was finalised in August 2018, and finalisation of the maps and proclamations is underway. Divisions of the High Courts were aligned with for Gauteng and North West.

 

  1. A total of 17 sexual offence courts were re-established in line with the Sexual Offences Court Model. This brings the total number of sexual offence courts to 74 (The Masoyi Court is functioning as a district court until capacity constraints are resolved).

 

  1. By the end of 2017/18, a total of 411 Small Claims Courts were established. In addition, 98 commissioners were appointed to reside over these courts and 148 Advisory Board members were appointed to assist with the functioning of these courts. A workshop to review the outdated enabling legislation for these courts is planned for October 2018.

 

  1. In the Master’s Office, the number of Magistrate’s Courts implementing the ’Paperless Estates Administration System’ (PEAS) increased from 206 in 2016/17 to 237.

 

  1. The Guardian’s Fund has grown by 45% in the past five years with more than 800 000 beneficiaries.

 

  1. A total of 48 Magistrates’ Courts were linked to 23 correctional centres and 17 272 criminal cases were remanded using the Audio-Visual Remand Technology (AVRT), increasing the use of AVRT by 44%.

 

  1. Court Recording Technology (CRT) was implemented at 2 145 fixed courtrooms and 47 mobile recorders for periodical courts were implemented.

 

  1. The Third Party management system solution – MojaPay - was implemented in eight provinces and 15 offices of the State Attorney. In these provinces, the turnaround time to pay maintenance beneficiaries improved to two working days in 93% of the beneficiaries paid.

 

  1. Key reported challenges for 2017/18 included:

 

  1. The constrained fiscal environment continues to affect the Department’s budget. As the Department’s services are highly labour intensive, a number of contract posts were initiated to uphold service delivery. However, with the budget constraints, the Department’s ability to retain contract staff is affected.

 

  1. The Department established a Human Resources Post Review Committee to identify critical posts to ensure that resources are deployed where they are most needed. The majority of posts identified for filling are for key service points and for critical support functions.

 

  1. The Department continues to provide administrative support to the Judicial Commission of Inquiry into Allegations of State Capture despite its limited resources.

 

  1. Budget cuts have affected the Department’s ability to deliver on certain programmes, including the conversion of backlog courts to permanent courts; the implementation of court-annexed mediation; the provision of security services at courts and justice service points; and the implementation of its infrastructure project to build and refurbish courts.

 

 

  1. Programme performance

 

  1. The Department directly administers three of the Vote’s programmes: Administration; Court Services, which is the Department’s core programme and consumes the majority of the Department’s budget; and State Legal Services. Under Auxiliary and Associated Services, the Justice Modernisation sub-programme funds the JCPS Cluster projects relating to the Integrated Justice System (IJS).

 

  1. Overall, the Department achieved 74% of the 95 planned targets for 2017/18, compared with 85% of the 105 planned targets in 2016/17. The explanation provided for the reduced performance was a lack of capacity and funding constraints.

 

  1. Programme 1 - Administration

 

  1. The Administration programme is responsible for the Department’s management and for the development of policies and strategies for the efficient adminstration of justice.

 

  1. The Administration programme was allocated R2.1 billion in 2017/18. After the Adjustment’s process, the allocation decreased to R1.78 billion. A virement of R187 million brought the final appropriation to R1.97 billion, with R16.1 million unspent.

 

  1. In 2017/18, the Programme met or exceeded targets for two of the three (or 66%) of the planned targets  (compared with 79% in 2016/17) and spent 99.2% of its budget. Unexpenditure for this programme of R16.1 million is attributed to delays in the filling of vacant positions, as well as a less than anticipated transfer claim to the Safety and Security Education and Training Authority (SASETA).

 

  1. Reported areas of underacheivement for 2017/18 are captured below:

 

Table 3: Administration - Selected performance 2017/18

Strategic Objective 1: Increased Compliance with prescripts to achieve an unqualified audit opinion

Performance 2017/18

Indicator: Unqualified audit opinion achieved and sustained on the Financial Statements

  • Vote and predetermined objectives - Qualified
  • Guardian’s Fund - Clean audit
  • CARA - Clean audit
  • President’s Fund - Clean Audit
  • Third Party Fund - Unqualified

 

  1. Programme 2 - Court Services

 

  1. The Court Services programme facilitates the resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts; and manages court facilities.

 

  1. The Court Services programme was allocated R6.3 billion for 2017/18, compared with R6.1 billion in 2016/17 (for the Lower Courts, Family Advocate, Magistrates Commission, Government Motor Transport, Facilities Management and Administration of Lower Courts sub-programmes) with a final appropriation of R6.4 billion. Actual expenditure for 2017/18 amounted to R6.3 billion (or 98.5%) of the appropriation, with an amount of R95.9 million unspent.

 

  1. In 2018/19, the Programme met or exceeded 15 of 23 or 65% of planned targets (compared with 95% of the 19 planned targets in 2016/17), and spent 98.5% of its budget (compared with 100% of its budget in 2016/17). The underspending of R95.9 million was attributed to delays in filling vacant posts, as well as cost containment measures.

 

  1. Reported areas of underachievement are captured below:

 

Table 4: Court Services – Selected performance 2017/18

Strategic Objective 2: Improved finalization of criminal cases in support of Outcome 3: All people in South Africa are and feel safe

Objective indicator 2: Number of criminal cases on the backlog roll

Not achieved

The number of backlog criminal cases in lower courts was 33 732 against a target of 30 344, compared to 30 925 against a target of 31 942 in 2016/17.

 

[Following the implementation of the Integrated Case Management System (ICMS) within the Integrated Justice System transversal, a number of challenges were experienced that prevented data from being captured timeously, which resulted in more cases than usual being identified as backlog cases.]

Performance indicator 2.1

ICJS finalized by target date 31 March 2018:

Target not met due to delays in identifying officials to participate.

Performance indicator 2.3

Number of case backlog courts converted to permanent courts:

Target not met as support staff to magistrates could not be appointed due to the salaries cap. The project has been put on hold going forward.

Strategic Objective 3: An efficient and effective victim and witness support system

Objective indicator 3: Percentage of victims satisfied with the lower court based services -

Not achieved

The target was not achieved due to cost containment measures: the indicator is suspended in 2018/19.

(In 2016/17, a baseline survey revealed that there is an overall increase in court-based services for victims of sexual offences accessing designated sexual offences courts (from 48% in 2015/16 to 69% in 2016/17)).

Strategic Objective 5: Increased access to justice to historically marginalised communities (facilities and infrastructure)

Objective indicator 5: Percentage of clients perceiving an increase in access to justice services –

Not achieved

The target was not achieved, as the proclamations and implementation dates for new courts completed are in successive years, and it was decided to conduct the intended impact assessment after a reasonable amount of time has passed.

 

(Note that in 2016/17, The baseline survey conducted in the Limpopo and Mpumalanga regions where courts were rationalised revealed that respondents appreciated the rationalisation initiative, as it brought services closer to where they stay).

Performance  Indicator 5.2

Number of new court buildings completed:

At the Port Shepstone Magistrate’s Court, there were outstanding activities in the Administration and Court Buildings and external works (parking, pedestrian walkways and landscaping).

The Mpumalanga High Court could not be handed over due to delays as a result of the dispute regarding an access road.

 

Further delays are expected as the contractor for the Port Shepstone court has applied for business rescue and the Mpumalanga High Court is delayed by a court action.

Strategic Objective 6: Efficient and effective civil justice system

Objective indicator 6: Percentage of annexed civil cases mediated

No data is available as the courts that will provide annexed civil mediation proclaimed courts were only proclaimed in February 2018. As a result, annexed mediation courts were operational only from 1 April 2018. There is need for further consideration of the high cost of mediation services.

Performance Indicator 6.2

Percentage of unopposed taxations processed within 14 working days from the date the matter is set down:

The target was not achieved. The Department processed 6 023 unopposed taxations, while 5 170 were finalized within 14 working days from set down. The Department experienced system challenges during the reporting period.

 

 

  1. Programme 3 - State Legal Services

 

  1. This Programme provides legal and legislative services to government; supervises the administration of deceased and insolvent estates; registers trusts and manages the Guardian’s Fund; and prepares and promotes legislation. In addition, the Programme faciliates constitutional development and undertakes research in support of this.

 

  1. The State Legal Services programme was allocated R1.2 billion in 2017/18, (compared with R1.1 billion in 2016/17) and spent R1.16 billion (or 94.5%) of the final appropriation of R1.23 billion (compared with 100% spending in 2016/17). As a result of savings under ‘Machinery and Equipment’, R15 million was transferred from State Legal Services to the PPSA.

 

  1. In 2017/18, the spending focus was largely on employees’ compensation, legal costs and claims against the State. Further, funding was set aside to establish the Information Regulator (R25 million in 2017/18; R27 million in 2018/19; and R28 million in 2019/20).

 

  1. The Programme has seven strategic objectives: increased efficiency in the provision of Master’s services to all beneficiaries; improved state litigation services; a transformed legal profession; provision of quality legal advisory services; increased compliance with international treaty obligations by the Department; development of legislative instruments that are consistent with the Constitutional; promotion of broad-based knowledge about and support for values of equality, human dignity and fundamental human rights.

 

  1. In 2017/18, the programme met or exceeded targets in 75% of the planned targets (compared with 78% in 2016/17) and spent 94.5% of the final appropriation to this Programme of R1.23 billion budget (compared with 78% in 2016/17).

 

  1. Reported areas of underachievement include:

 

Table 5: State Legal Services – Selected Performance 2017/18

Strategic Objective 8: Increased efficiency in the provision of Master’s services to all beneficiaries

Objective Indicator 8: Number of cases handled by the Master of the High Court

A total of 301922 cases were handled by the Master of the High Court against a target of 288 063 compared with 302 684 cases against a target of 279 673).

Performance  Indicator 8.7

Percentage of letter of authority issued in trusts within 14 days of receipt of all required documents -

Target not achieved: 83% against a target of 90% (compared with 2016/17 where met the target of 90%)

[Delays in retrieving documents from off-site storage facilities and unfilled vacancies led to the target not being met].

Strategic Objective 9: Improved management of litigation on behalf of the State to reduce litigation costs and transform the legal profession

Objective Indicator 9: Improved State Litigation Services

Strategic Objective 9: Number of projects implemented to transform state litigation services –

Three projects were implemented against a planned target of 3.

Performance  Indicator 9.1

Number of litigation cases settled through mediation:

Target not achieved: 4 against a target of 24.

Mediation is a voluntary process, meaning that parties cannot be forced to mediate.

Performance  Indicator 9.5

Percentage of briefs allocated to female counsel:

Target not achieved: 38% against a target of 40%.

During 2017/18, 2 386 /6 249 briefs were allocated to female counsel. The gender composition of the Bar is mostly male.

Performance Indicator 9.6

Percentage reduction in cost paid by the State Attorney:

Target not achieved. Costs paid increased by 12% against a planned target of 5%.

Litigation costs incurred in 2017/17 were R1.8 billion compared with R1.6 billion in 2016/17. An increase in cost orders against the State and high living costs account for the increase.

Strategic Objective 10: A transformed legal profession

Objective Indicator 10: Legal Practice Council function by target date (28 February 2018) –

Target not achieved.

[Intense consultations delayed the finalisation of the Regulations.]

Performance  Indicator 10.1

Legal Practice Regulations published in Government Gazette (31 July 2017):

Target not achieved

Performance Indicator 10.2

Council members appointed by target date (31 December 2017):

Target not achieved.

Performance Indicator 10.3

Transfer of assets from law societies to legal Practice Council (28 February 2018):

Target not achieved

Strategic Objective 12: Increased compliance with international treaty obligations

Objective indicator 12: Percentage compliance with treaties and international obligations

Target achieved: 80% against a target of 80%

[In 2016/17, a baseline information report revealed compliance with 80% of obligations.]

Performance Indicator 12.2

Percentage of valid requests for extradition and mutual legal assistance in criminal matters processed within 25 days -

Target not achieved.

[The complexity of requests prevented the processing of requests  within the set timeframes as consultations with various role-players were necessary.]

Performance Indicator 12.3

Number of bilateral agreements on mutual legal assistance negotiated –

Target not achieved. No agreements were negotiated against a target of two.

[Negotiations took longer than anticipated].

 

 

  1. Programme 5: Auxiliary and Associated Services Programme - Justice Modernisation subprogramme

 

  1. Programme 5 contains the Justice Modernisation subprogramme which has funds for the implementation of IT infrastructure for the Department and also includes the earmarked funds for IJS integration across the Cluster.

 

  1. The final allocation to Justice Modernisation for 2017/18 was R810.6 million, of which 100% was spent. However, Justice Modernisation was allocated R900 million for 2017/18 but this was adjusted down to R903 million. A virement of R93 million was affected from from this subprogramm, bringing the final appropriation to R810 million (compared to R826.35 million in 2016/17.)

 

  1. The Justice Modernisation sub-programme has the strategic objective: ‘Functional integrated criminal justice system (CJS) to monitor the performance of the criminal justice system established’. There were no changes to the planned targets in 2017/18.

 

  1. The subprogramme met all its targets:

 

Table 6: Auxiliary and Associated Services Programme - Justice Modernisation subprogramme – Selected performance 2017/18

STRATEGIC oBJECTIVE 18: Functional integrated criminal justice system (CJS) to monitor the performance of the criminal justice system established

PERFORMANCE Indicator

2017/18

18.1. Number of government departments and entities exchanging information electronically

ACHIEVED

7 against a target of 7.

18.2. Number of KPI data uploaded to the IJS data warehouse 

ACHIEVED

22 against a planned target of 22.

(A total of 4 new KPIIs were uploaded from 18 in 2016/17).

18.3 Total number of IJS departmental applications that form part of the integrated test lab process

ACHIEVED

3 against a target of 3.

 

 

  1. National Prosecuting Authority (NPA)

 

  1. In line with its constitutional mandate, the NPA provides a co-ordinated prosecuting service to ensure that justice is delivered to the victims of crime through general and specialised prosecutions, protects certain witnesses and removes the profit from crime.

 

  1. The NPA is a programme within the Justice and Constitutional Development Vote and the Director-General: Justice and Constitutional Development is its accounting officer. In the past, National Treasury provided an exemption that allowed the NPA to prepare its own annual financial statements separate from those of the Department until legislation regularising the practice was enacted but the exemption expired on 31 March 2014. Consequently, from 2014/15, the Department also reports on the NPA. However, in terms of the National Prosecuting Authority Act, 1998, the National Director of Public Prosecutions (NDPP) has submitted an annual report on operations for 2017/18.

 

  1. In 2017/18, the final appropriation to the NPA was R3.7 billion (compared with R3.6 billion in 2016/17) and spent 100% of its budget.

 

  1. The NPA is allocated R3.6 billion for 2018/19 compared with R3.7 billion in 2017/18.

 

  1. The NPA remains committed to the strategic direction it embarked on some years ago. This is informed by the NDP, the MTSF and the refined JCPS delivery agreement. The NPA has identified the following MTSF 2014-2019 priority areas as relevant: reduced levels of contact crime; strengthening the Criminal Justice System; securing cyberspace; ensuring domestic stability; and reducing corruption.

 

  1. The NPA’s strategic outcome-orientated goal is an improved prosecution service by rendering a prosecution service that is effective.

 

  1. The NPA has three strategic objectives, each specifically linked to a sub-programme:
  • Increased successful prosecutions (NPS): To increase the conviction rate in the lower courts and high courts.
  • Ensure that profit is removed from crime (AFU): To increase the number of completed forfeiture cases and increase the value of freezing orders.
  • Ensure that threatened witnesses are successfully protected (OWP): To ensure that no witnesses or related persons are harmed, threatened or killed while on the witness protection programme.

 

  1. The NPA achieved 77.8% of its planned targets for 2017/18. Performance relating to the following key MTSF targets was as follows:

 

Table 8: NPA - Summary of performance for MTSF indicators for 2017/18

Indicator

2014/15

2015/16

2016/17

2017/18

Conviction rate for sexual offences

Exceeded

69% against a target of 67%

EXCEEDED

70% against a target of 68%

(Actual achievement: 4 978)

EXCEEDED

71% against a target of 69% [reported at TCCs]

(Actual achievement: 4 780)

EXCEEDED

72.7% against a target of 69% [reported at TCCs]

(Actual achievement: 5 004)

Conviction rate for trio crimes

NOT ACHIEVED

82% against a target of 85%

NOT ACHIEVED

82% against a target of 85%

NOT ACHIEVED

83.5% against a target of 85%

83.5% (1 552) against a target of 85%

NOT ACHIEVED

82.9% against a target of 85%

Conviction rate for cybercrime

Exceeded

95% (232) against a target of 74%

EXCEEDED

96% against a target of 74%

EXCEEDED

97% (289) against a target of 74%

EXCEEDED

98.5% against a target of 74%

Number of persons convicted of corruption where the amount involved is more than R5 million

 

Actual achievement: 25

EXCEEDED

29 against a planned target of 25

EXCEEDED

37 against a target of 33

No. of officials convicted of corruption or related offences

 

Actual achievement: 206

EXCEEDED

224 against a target of 90

EXCEEDED

213 against a target of 210

 

  1. At subprogramme level, the NPS achieved 8 of 10 (or 80%) of its targets and the AFU met 5 of 7 (or 71%) of its targets. The OWP met its single target.

 

  1. Key challenges going forward include:
  • Budgetary constraints place severe strain on the NPA’s ability to function optimally and deliver services.
  • The NPA’s compensation of employees’ budget stands at 89% of its overall budget, with only 11% going towards operational costs. Although the NPA managed to not overspend on its compensation of employees’ budget in 2017/18, it was only a virement from the Department of Justice that prevented overspending of R34.5 million on this item. The NPA projects that it will experience a shortfall in its compensation of employees’ budget of R73 million for 2018/19.
  • The moratorium on the filling of posts since 2015/16 has affected staff morale negatively. In 2016/17, 157 officials resigned and a further 205 officals resigned during 2017/18. In this financial year, the NPA has already had 143 resignations. The vacancy rate stands at 19% of which 615 are prosecutorial posts. Vacancies impact on staff morale and seperation of functions, with increased absenteeism due to work pressure and an increased cost to the State in employee wellness services. In addition, the limited availability of prosecutors is likely to cause an increase in court backlogs and undermine court performance. There is also greater risk for witnesses, as protection services are reduced.
  • The NPA has had to suspend its Aspirant Prosecutor Programme due to funding constraints. The programme creates a gateway for prosecutions as a career and contributes to youth development.

 

Table 9: NPA Additional funding needs 2019 MTEF

Item

2019/20

2020/21

2021/22

Total

(R’000)

Shortfall on compensation of salaries budget

43 458

12 868

14 630

70 956

Aspirant Prosecutors (156 for 3 years)

29 706

31 488

33 377

94 571

Retention of Aspirants

-

45 133

47 841

92 974

Vacant posts

761 648

819 518

880 965

2 462 131

Other critical posts (244 posts)

144 417

154 526

165 342

464 285

Presidential appointments (DPPs)

5 597

6 006

6 444

18 047

 

 

  1. Information Regulator

 

  1. The Protection of Personal Information Act, 2013, (POPIA) regulates the processing of personal information by providing a framework that sets out the minimum standards that responsible parties must comply with when processing personal information. The Act applies to public and private bodies, including juristic persons, and aims to achieve a balance between the free-flow of information and the right to privacy. The Information Regulator is established in terms of section 39 of POPIA and has a wide range of powers and functions regarding promoting and enforcing the right to privacy.

 

  1. POPIA also transfers certain key responsibilities concerning the Promotion of Access to Information Act, 2000, (PAIA) to the Information Regulator. These include the handling of complaints, conducting investigations, and making assessments about compliance by public and private bodies.

 

  1. At present, only those parts of the Act relating to the establishment of the Regulator are operational. Only when the Regulator has reached a stage of operational readiness will the remaining provisions come into force.

 

  1. In terms of POPIA, the Regulator is given the power to determine its own administration in consultation with the Minister of Finance. It is in discussion with National Treasury on the establishment of its administration. At present, the Regulator has four staff members seconded from the Department of Justice and Constitutional Development. For now, the Minister of Finance has approved the recruitment of a Chief Executive Officer; Executive Officer (POPIA)’ Executive Officer (PAIA; Executive Officer (Communication and Provincial Offices); Executive Officer (Legal Services, Policy, Research and Technology Analysis); Executive Officer (Corporate Services); and Chief Financial Officer.

 

  1. The Regulator occupies temporary offices at the Department’s SALU Building but will sub-lease accommodation from the SAHRC from 1 January 2019.

 

  1. The Regulator has entered into a memorandum of understanding with the SAHRC regarding the transfer of PAIA functions and a joint committee is to develop an action plan to ensure a seamless transfer of these functions to the Regulator.

 

  1. The Regulator has encountered the following challenges:
  • The slow pace of its establishment, which has affected the commencement of the remaining sections of POPIA.
  • Delays in the finalisation of the organisational structure.
  • Limited capacity and a growing workload/demand for services.

 

 

Part 3

 

Programme 5: Auxiliary and Associated Services

 

This programme includes Legal Aid South Africa, the Special Investigating Unit (SIU), the South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA).

 

  1. Legal Aid South Africa

 

  1. Legal Aid SA is an autonomous statutory body that derives its mandate from the Constitution, 1996; the Legal Aid Act 39 of 2014; and other legislation requiring the government to provide legal assistance to the indigent. Its main objective is to make available legal representation to indigent persons at State expense, ensuring the right of all citizens to access to justice. Notably, the Legal Aid Act, 2014, provides that Legal Aid SA must render or make available legal aid and legal advice; provide legal representation at state expense; and provide education and information concerning legal rights and obligations, as envisaged in the Constitution. The new Legal Aid Regulations and Manual were finalised and are approved.

 

  1. The overall strategic shift in the 2015-2020 period focuses on increased organisational maturity, and sustainable high performance and excellence in all segments of the organisation over the next decade, positively touching the lives of many more South Africans to ensure the outcome of quality justice for all. This (2017/18) is the third year in which the Strategic Plan 2015- 2020  was implemented with delivery on more than 93% of the business targets.

 

  1. Legal Aid SA’s strategic objectives are as follows:
  • Empowered clients and communities making informed choices about their legal rights and responsibilities.
  • All poor and vulnerable persons able to access quality public funded legal services to protect or defend their rights.
  • An accessible, effective, fair, independent and efficient justice system serving all in South Africa, contributing to building safer communities.
  • Delivering on the constitutional and statutory shareholder mandate in an independent, accountable and sustainable manner.
  • An organisation embedding sustainable practices in every segment of the organisation, to positively impact on society, the economy and the environment.
  • Embedding good governance, high ethical standards and integrity, high performance and accountability.
  • Revised Legal Aid Act and its subsidiary legislation enacted and implemented.
  • An effective and efficient, economic and environmentally responsive supply chain management system supporting client services delivery and internal business processes.
  • An appropriately resourced national footprint reaching the poor and vulnerable persons requiring legal assistance.
  • An expanded and capacitated/resourced national footprint reaching the poor and vulnerable persons requiring legal assistance.
  • Competent, dedicated, motivated and empowered employees capacitated to deliver the constitutional mandate and organisational strategies.
  • A modern and appropriate, integrated, secure and cost-effective IT Platform supporting the provision of client services and linkages and enabling internal business needs.

 

  1. Human resources

 

  1. Legal Aid SA has a staff establishment of 2 761, of which total recruited staff at 31 March 2018 was 2 627, with a turnover rate of 6.04% (excluding candidate attorneys). Legal staff, including paralegals, account for 79.3% of the establishment.

 

  1. Delivery occurs nationwide through 64 Legal Offices and 64 satellite offices. In addition, Legal Aid SA has 1 249 accredited Judicare partners; eleven co-operation partners and five agency agreements with private law firms.

 

  1. Notably, Legal Aid SA received top employer accreditation for the ninth consecutive year and is industry winner of the public sector segment for the third year. In addition, Legal Aid SA was named among the Top 20 Top Employers in South Africa.

 

  1. Audit outcome. Legal Aid SA received its seventeenth consecutive unqualified audit opinion in 2017/178 and this is the twelfth consecutive year in which no matters of emphasis were reported (clean audit).

 

  1. Financial performance

 

  1. The grant allocation to Legal Aid SA for 2017/18 was R1.8 billion, although the overall budget was R1.9 billion. Of this, Legal Aid SA spent R1.8 billion (or 99%) of its budget.

 

  1. The entity is allocated R1.8 billion in 2018/19, which is only slightly more than its allocation for 2017/18.

 

Table 10: Legal Aid SA programme budget for the 2018 MTEF

Subprogramme

(R’million)

2017/18

2018/19

2019/20

2020/21

Legal Aid Services

1 425.8

1 444.6

1 530.3

1 601.5

Administration

310.7

299.9

310

326.5

Special projects

50.4.3

52.9

55.8

59.5

TOTAL

1 786.9

1 797.3

1 896.2

1 987.5

 

  1. Although the grant allocation to Legal Aid SA was not reduced in 2017/18, it had a budget shortfall of R45 million because the salaries budget was not fully funded.

 

  1. In 2018/19, Legal Aid SA’s baseline allocation is reduced by R92 million or 5.5%. However, once the difference between the National Treasury Macro increase and actual cost of living increases (COLI) is taken into account, Legal Aid SA has a budget shortfall/cut of R164 million in 2018/19; R180.7 million in 2019/2020; and R221.1 million in 2020/21. At present, over the medium term, Legal Aid SA will have a total budget shortfall/cut of R566 million.

 

  1. In 2018/19, Legal Aid SA has further reduced expenditure on various items but still projects a shortfall of R43.8 million.

 

Table 11: projected impact of budget reductions on posts, matters and court coverage (according to MTEF June 2018 Guidelines)

Year

Total posts reduced

 

Total staff at end FY

 

No. of matters reduced

Court coverage: District Court

Court coverage: Regional Court

2017/18

-110

2 755

-18 625

86%

95%

2018/19

-26

2 729

-5 175

85%

94%

2019/20

-128

2 601

-24 550

79%

87%

2020/21

-153

2 448

-29 125

79%

79%

2021/22

-181

2 267

-34 500

66%

69%

Total

-598

2 267

-111 975

66% (-20%)

69% (-26%)

 

 

  1. Service delivery performance

 

  1. In 2017/18, Legal Aid SA provided increased legal advice and legal assistance in 731 856 matters (compared with 767 656 matters in 2016/17). This included 426 617 new legal matters (compared with 444 962 new legal matters in 2016/17). A breakdown of these new matters is as follows: There were 371 202 new criminal matters (compared with 385 972 new criminal matters in 2016/17) (87%); and 55 415 new civil matters (13%) (compared with 58 990 new civil matters (13%) in 2016/17). A total of 420 061 matters were finalised during 2017/18, representing a clearance rate of 0.98% (compared with 1% in 2016/17).

 

  1. In 2017/18, Legal Aid SA provided advice in 305 329 matters (which is a 5.4% decrease in advice matters from 2016/17); and undertook 25 new impact litigation matters with a 79% success rate.

 

  1. In 2017/18, Legal Aid SA reduced its coverage at District Courts to 86% (coverage in 2016/17 was 87) and in the Regional Courts to 95% (which is a 2% reduction from 2016/17). Representation was provided in all matters that required legal aid in the High Courts. There was/is no relief capacity available.

 

  1. In 2017/18, assistance provided in civil matters decreased by 6% from 58 990 to 55 415 new civil legal matters. Representation given to vulnerable groups was provided as follows: children (16%), women (51%), mental health users (0.2%) and the elderly (12%), In addition, representation was provided in land/eviction matters (10%).

 

  1. Children were provided with assistance in 16 350 matters, of which 62% were children in conflict with the law and 38% were assisted in civil matters (estates). Assistance to children in civil matters decreased 6 % when compared to 2016/17. Of these, 3 409 cases related to estate matters.

 

  1. In 2017/18, the stability of the IT platform was maintained with system availability at 99%.

 

  1. General advice was provided in 305 239 matters.

 

  1. Legal Aid SA’s Annual Performance Plan 2018/19 was accompanied by a review of the Strategic Plan, which notes the impact of the budget reductions. Targets for 2018/19 have been revised downward because of the budget constraints. Further, any proposal to increase its current responsibilities is not viable.

 

  1. The following key challenges were reported:
  • Legal Aid SA has discontinued its court relief programme at criminal courts because of funding cuts. Notably, the absence of a relief component is also a concern of Legal Aid SA’s stakeholders, particularly those within the criminal justice system.
  • Fiscal constraints threaten service delivery.

 

 

  1.  Special Investigating Unit (SIU)

 

  1. The legislative mandate of the Special Investigating Unit (SIU) is derived from the Special Investigating Unit and Special Tribunals Act 74 of 1996 (as amended). The SIU’s principal function is to investigate serious malpractices, maladministration and corruption in connection with the administration of state institutions, state assets and public money, as well as any conduct, which may seriously harm the interests of the public. Matters are referred to the SIU through Presidential proclamations, which set out the scope of the investigation. The SIU also:
  • Institutes and conducts civil proceedings in any court of law or special tribunal, in its own name or on behalf of state institutions.
  • Brings potential disciplinary matters to the attention of state institutions.
  • Provides for the secondment of SIU officials to improve departmental systems.

 

  1. Human Resources. The SIU had a staff complement of 515 of 629 approved posts and an overall vacancy rate of 18%. Of particular concern is the vacancy rate at senior management level, which is at 23%. The SIU reports that it is now in a position to start filling vacancies.

 

  1. Audit outcome. The SIU maintained its clean audit outcome in 2017/18.

 

  1. Financial performance

 

  1. The SIU’s funding model provides for a baseline grant from National Treasury. In addition, the SIU charges state institutions for its services, thus raising additional revenue.

 

  1. In 2017/18, the SIU had a total income of R657.8 million (compared with a R522.2 million in 2016/17) that was made up of the grant allocation of R346.1 million and revenue from payments for services of R285 million. Actual expenditure was R536.9 million with a surplus of R120.9 million. (The SIU has requested that it be able to retain the surplus).

 

  1. The SIU’s projected total revenue for 2018/19 is R624.9 million, compared with R579.6 million in 2017/18. Despite baseline reductions (R9.2 million in 2018/19; R15.8 million in 2019/20; and R16.6 million in 2020/21), the SIU’s budget increases in real terms by 2.2% compared with 2017/18. A significant portion of the budget (R458 million or 73%) is for salaries (The SIU has a headcount of 516 staff at present and 88 vacancies).

 

  1. The intention is to reduce the SIU’s reliance on grant income over the medium term from a baseline of 62% in 2017/18 to 56% in 2020/21. This is reflected in a new performance indicator ‘Percentage reliance on government funding’.

 

Table 12: SIU Overview of budget and expenditure

Programme

Budget

(R’ million)

2017/18

2018/19

2019/20

2020/21

Revenue

283.5

244.2

276.8

304.8

Baseline grant

346.2

357.1

371.0

391.4

Other

22.2

23.6

25.1

26.6

Total

651.8

624.9

672.9

722.8

 

  1. The SIU reports irregular expenditure of R1.5 million for 2017/8, compared with R1.8 million for 2016/17 and R5.5 million in 2014/15. There was no fruitless and wasteful expenditure incurred., The SIU’s contingent liabilities have decreased from R32.1 million in 2016/17 to R7.9 million, of which the bulk

 

  1. Comparing performance with expenditure, the SIU achieved 75% of its targets for 2017/18.

 

  1. Performance

 

  1. The SIU’s planning is aligned to Outcome 3 (South Africans are and feel safe) and Outcome 12 (Efficient, effective and development oriented state). The Unit’s focus is on contributing significantly to the reduction of corruption and the perception of corruption. These outcomes are linked to the vision set out in the National Development Plan (NDP) that highlights the importance of building a resilient anti-corruption system.

 

  1. The SIU has three strategic objectives: quality forensic investigations; facilitate or initiate appropriate remedial action; and co-operate effectively with other role players. The SIU has shifted its focus to procurement matters. This means investigating fewer but more complex cases. In addition, the SIU participates in various multi‚Äźagency interventions.

 

Table 13: SIU performance for selected targets and indicators 2017/18

STRATEGIC OBJECTIVE

INDICATOR

2016/17

2017/18

Quality forensic investigations

 

No. of investigations closed out

(NEW)

EXCEEDED

1 186 against a target of 800

EXCEEDED

1 556 investigations against a target of 1000

No. of reports submitted to the Presidency (NEW)

EXCEEDED

6 against a target of 5

EXCEEDED

15 against a target of 8

Facilitate or initiate appropriate remedial action

Potential value of cash/assets recoverable

NOT ACHIEVED

R126 million against a target of R240 million

EXCEEDED

R299 million against a target of R200 million

Actual value of cash assets recovered

NOT ACHIEVED

R45.5 million against a target of R140 million

NOT ACHIEVED

R34 million against a target of R120 million.

The value of potential loss prevented

EXCEEDED

R106.5 million against a target of R18 million.

EXCEEDED

R407 million against a target of R21 million.

Value of contracts/administrative decisions set aside or deemed invalid

EXCEEDED

R4 billion against a target of R600 million.

EXCEEDED

R797 million against a target of R660 million.

Value of matters in respect of which evidence was referred for the institution or defence of civil proceedings

EXCEEDED

R3.8 billion against a target of R1.2 billion.

EXCEEDED

R2.7 billion against a target of R1.3 billion.

 

Co-operate effectively with other role players

Number of referrals made to the NPA

EXCEEDED

108 against a target of 60.

EXCEEDED

148 against a target of 75.

Number of referrals made for disciplinary action

EXCEEDED

137 against a target of 75

EXCEEDED

319 against a target of 75

 

  1. During 2017/18, the SIU embarked on an organisational review process that has led to its 2015-2020 strategic focus being revised. This, in turn, led to the SIU revising its ‘value chain’ and operating model to support the implementation of the revised goals, objectives and focus. Operational changes include standardisation of service quality; enhanced case registration and monitoring; and digital transformation to provide business intelligence for proactive decision taking. The SIU has also developed a new organisational structure to support the revised strategy. The implementation of this structure will take place during 2018/19.

 

  1. The 2018/19 Annual Performance Plan (APP) focuses on ensuring that the SIU plays a more proactive role and takes greater preventative measure to address maladministration and corruption. The APP, introduces a new programme – ‘Market data analytics and prevention’ in addition to the ‘Administration’ and ‘Investigations and Legal Counsel’ programmes with significant changes to the strategic objectives and performance indicators.

 

  1. The following operational challenges were identified and remedial measures were put in place:
  • The process to set up the Special Tribunal is receiving attention.
  • There has been difficulty in recovering monies owed to the SIU from state institutions for its services. The SIU has declared its funding model flawed in this regard and is exploring possible legislative amendments to its enabling legislation to remedy this.

 

 

Part 4

 

  1. South African Human Rights Commission (SAHRC)

 

  1. The SAHRC’s mandate is extremely broad, encompassing the promotion, protection and monitoring of human rights in South Africa.

 

  1. As from 3 January 2017, seven new commissioners were appointed to the SAHRC. Of these, five are appointed full-time and two in a part-time capacity. This was the first full performance cycle for most Commissioners.

 

  1. In 2017/18, the newly appointed commissioners elected to make few changes to the Strategic Plan 2015-2020. However, the strategic plan has been revised since and the focus areas of the commissioners are rearranged for 2018/19.

 

  1. Going forward, in recognition of South Africa’s core challenges – high levels of poverty, inequality, unemployment and violence – all areas of the SAHRC’s work will attempt to contribute to addressing each of these challenges.

 

  1. Human resources. The Commission reports that, in 2017/18, 186 posts were filled (of 198) with a vacancy rate of 6%. (Compared with 163 of 188 posts filled with a vacancy rate of 14% in 2016/17.)

.

  1. Audit opinion

 

  1. Although the SAHRC received an unqualified audit opinion for the fifth executive year, the outcome has regressed from the clean audit opinion it achieved last year.

 

  1. The Auditor General made findings in respect of the following issues:
  • Restatement of corresponding figures.
  • A material misstatement in the annual performance report was identified but was corrected.
  • The financial statements were not prepared in accordance with requirements of the PFMA. Material misstatements were corrected resulting in an unqualified opinion.
  • Some goods/services below R500 000 were procured without price quotations.
  • Management did not adequately review and monitor compliance with the financial reporting framework and properly review and monitor compliance with legislation.

 

  1. Financial performance

 

  1. The SAHRC was allocated R173.36 million for 2017/18, increasing from R153.4 million in 2016/17. (During the 2016 budget, an additional allocation of R11.5 million in 2017/18 and R12.2 million in 2018/19 was provided for advocacy work, particularly in respect of the challenges around xenophobia). Expenditure in 2017/18 was R167.2 million (96%) with an amount of R7.4 million unspent.

 

  1. The Commission recorded irregular expenditure in 2017/18 of R214 945, although there was a decrease in fruitless and wasteful expenditure from R59 000 to R3 808.

 

  1. The SAHRC is allocated R178.8 million for 2018/19. However, the SAHRC ability to deliver is constrained by its (relatively) small budget (compared to the mandate), which is now exacerbated by the budget reductions. Its baseline has been reduced by R4.6 million in the 2018/19 financial year; R4.8 million in 2019/20 and R5.1 million in 2020/21.

 

  1. Performance

 

  1. The SAHRC’s performance improved over the past five years from meeting 52% of its targets in 2009/10 to 84% in 2016/17 but declined in 2017/18 to 75%.

 

  1. The Commission continues to report on its performance in respect of five strategic objectives and performance indicators and targets are aligned to these objectives. Overall achievements when compared with 2016/17 are set out below:

 

Table 13: SAHRC performance for selected targets and indicators 2017/18

Performance Indicator

  •  

 

  1.  
  1.  

Promote compliance with international and regional obligations

100%

(2/2 targets)

100%

(3/3 targets)

Advance the realisation of human rights

100%

(4/4 targets)

80%

(4/5 targets)

Deepen the understanding of human rights and promote a human rights culture

100%

(2/2 targets)

100%

(3/3 targets)

Use and project a broader constitutional and legislative mandate

100%

(5/5 targets)

80%

(4/5 targets)

Improve the effectiveness and efficiency of the Commission to support delivery on the mandate

50%

(3/6 targets)

58%

(7/12)

 

  1. Key reported achievements for 2017/18 include:
  • The top five ‘human rights’ complaints lodged with the Commission in 2017/18 remain unchanged from the previous financial year namely: equality, health care, food, water, social security, arrested, detained, and accused people, labour relations, as well as just and administrative action.
  • The number of ADR cases continue to increase and the SAHRC has resolved 83% of matters successfully using ADR mechanisms.
  • The Commission produced research briefs on: A Basic Income Grant; the Management and Rights of Learners at Special Needs Schools; Gaps and Challenges in Addressing Gender-Based Violence; and the Status of Human Rights Defenders in South Africa.
  • Four investigative hearings were held during the year under review
  • The Commission reported on the implementation of its previous recommendations relating to water and sanitation (but the Department of Water and Sanitation failed to respond). (In respect of the Commissions 2017/18 Equality Report, the Commission also reported that it experienced challenges in obtaining information).
  • The Commission reported on impact litigation, including SAHRC and 19 Others v Madibeng Municipality Case No 21099/17 (access to water); SAHRC v Qwelane (hate speech) and Given Nkwane v Yvonne Nkwane (SAHRC as amicus curiae) concerning the banks application of reserve pricing.
  • The Commission conducted nine provincial indabas reaching 1108 stakeholders. (These indabas covered a range of issues including in the; Eastern Cape: school infrastructure; Free State: housing challenges; Gauteng: access to housing for migrants; Mpumalanga: evictions on farms; and Western Cape: rights of farm dwellers).
  • The Commission introduced public ‘road-shows’ in 2017/18 and conducted 19 (against a target of 11), as well as two cross border road-shows.
  • The Commission conducted 35 public outreach engagements (human rights clinics) focusing on human rights education and reaching 6290 people. (In 2016/17, 27 public outreach engagements reached a total of 4 240 people.)
  • The Commission held 27 capacity-building workshops to partner with 731 civil society stakeholders. Including community based non-governmental organisations, community development workers, traditional authorities (such as chiefs and headmen), ward councillors and ward committee representatives, community advice and paralegal offices, as well as youth coordinators.
  • In addition, 43 matters were instituted in the Equality Court.

 

  1. Over the medium term, the Commission intends to focus on the following:
  • Engaging with relevant government departments and other stakeholders on economic and social rights, as well as producing policy briefs to address identified policy gaps.
  • Improving the effectiveness of the complaints’ handling process.
  • Seeking to promote awareness of the human rights provisions found in the Bill of Rights.
  • Improving the application of protective legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
  • Extending the use of alternative dispute resolution mechanisms to speed up the resolution of complaints.
  • Making greater use of strategic litigation.
  • Continuing to work closely with other Chapter 9 institutions.
  • Intensifying advocacy and communication activities.
  • Strengthening its research capability.
  • Ensuring increased implementation of the SAHRC’s recommendations.

 

 

  1. Public Protector South Africa (PPSA)

 

  1. The Public Protector is an independent constitutional institution whose mandate, broadly, is to support and strengthen constitutional democracy by investigating maladministration or improper conduct in state affairs or the public administration in any sphere of government and to take appropriate remedial action. The Constitution also states that the Public Protector must be accessible to all persons and communities.

 

  1. Human resources. In 2017/18, at year-end, the PPSA had 361 employees (of 389 approved posts) with a vacancy rate of 7% (28 vacancies) compared to 14% in 2016/17. The most significant vacancy rate was at top management level at 33% (with three posts vacant), followed by the professional qualified at 8% (16 posts vacant). The PPSA continues to have a high turnover rate.

 

  1. Audit outcome

 

  1. The PPSA achieved an unqualified audit opinion with findings in 2017/18 (as in 2016/17):
  • Material uncertainty relating to the PPSA as a going concern: The PPSA incurred an accumulated deficit of R17.9 million at the end of 2017/18 (compared with R24.3 million in 2016/17). At 31 March 2018, the PPSA’s current liabilities exceeded its total assets by R25.9 million, which made the PPSA technically insolvent. The Auditor General expressed concern regarding the ability of the PPSA to continue to operate in the future.
  • Restatement of corresponding figures (financial statements had to be restated due to an error.) Although an action plan was developed to address external audit findings, the plan was not adhered to.
  • Performance management: There were material misstatements that were subsequently corrected in respect of performance information for the ‘Investigations’ programme.
  • Expenditure management: The Auditor General found that effective steps were not taken to prevent irregular expenditure of R19.9 million; and fruitless and wasteful expenditure of R1.48 million.
  • Payments of invoices within 30 days: The Auditor General found that some contractual obligations and monies owed were not settled within 30 days.
  • Procurement and contract management: Some of the goods and services with a transaction value below R500 000 were procured without obtaining the required price quotations. Some contracts were extended or modified without approval of the properly delegated official. Some goods and services of a value of more than R500 000 were procured without inviting competitive bids.
  • The Annual Financial Statements were not prepared in accordance with the prescribed financial reporting framework (PFMA) and material misstatements had to be corrected.
  • Internal Control: Non-compliance with legislation could have been prevented if Management had properly reviewed compliance. Both the misstatements found in the financial statements and performance report could have been prevented if there had been proper supervision and review by Management.

 

  1. Financial performance

 

  1. In 2017/18, the Public Protector received R301.8 million compared with R263.3 million in 2016/17 (a real increase of 7.8 %). The Department assisted the PPSA with an amount of R15 million. The PPSA spent R345 million in 2017/18 and had a budget deficit of R17.9 million. This brought the PPSA’s accumulated deficit to R29.6 million at year end.

 

  1. During the 2017/18 financial year, the PPSA recorded irregular and fruitless and wasteful expenditure: Irregular expenditure increased from R22.9 million in 2016/17 to R42.8 million in 2017/18 (in total), while fruitless and wasteful expenditure increased from R1.4 million in 2016/17 to R2.9 million in 2017/18 (in total).

 

  1. In 2018/19, the PP is allocated R311 million compared to R301.8 million in 2017/18 (in real terms, the budget decreases by 2.2% from 2017/18). The baseline has been reduced by R8 million in 2018/19. Of the revised budget amount, 80% or R250 million is for compensation of employees, while the goods and services budget is R53 million. The Public Protector, however, has indicated that there will be a total shortfall for 2018/19 of R33 million for operational costs.

 

Table 14: Public Protector Budget 2018 MTEF

Programme

Budget

(R’ million)

Real % change

2018/19

2017/18

2018/19

2019/20

2020/21

Administration

(38%)

113.9

118

120.5

127.1

-1.8%

Investigations (58%)

173.8

180.4

189.3

199.7

-1.6%

Stakeholder engagement

(4%)

14.1

13

13.7

14.5

-12.8%

Total

301.8

311.4

323.5

341.3

-2.2%

 

  1. The Public Protector has indicated that certain projects have been deferred as a result of the budget constraints, including:
  • The creation of an internal audit function (presently this is contracted out).
  • Implementation of the institutional effectiveness turnaround approach.
  • Improved security at offices.
  • Staff training.
  • The relocation of high-risk provincial offices.

 

  1. For some time now, however, the Public Protector has indicated that the institution is underfunded. The Public Protector has previously submitted the following request for/recommendations regarding additional funding, namely that:
  • An additional R33 million is made available to cover day-day operational costs.
  • An additional R43 million is made available to fund special projects. These include a case management system; security improvement; litigation costs; an integrated telephone system; subject matter experts; and a video conferencing facility.
  • An additional R883 million is allocated over the MTEF to fund the ‘key non-capital and equipment requirements so as to fulfil its mandate as per the Public Protector Act’. The ‘key non capital and equipment requirements’ referred to include the relocation of the head office; an IT master system plan; and complaints and stakeholder management.

 

  1. During the Budget hearings, the PPSA provided a breakdown of the amounts requested over the MTEF as follows:
  • The bulk of the additional funds requested over the MTEF – R746.5 million – is to fund the organisational structure: at present, the PPSA has funds for 393 of 707 posts.
  • Realignment of administrative staff and investigators salaries accounts for R5.4 million over the MTEF. The job evaluations carried out in 2016 should be implemented to avoid costly court battles at the CCMA and discouragement of staff. (The PP states that implementation of the OSD for senior managers and provincial representatives in 2016/17 was a contributing factor for the PPSA’s reported deficit in that year.)
  • Although implementation of the case management system is underway, a further R26.9 million is needed over the medium term for support and maintenance.
  • The allocation of R5 million for litigation costs is inadequate: an additional amount of R27 million over the MTEF is requested for this item.
  • The requests for security improvements, a video conferencing facility and integrated telephone system are R19.6 million, R7.5 million and R9 million, respectively, over the medium term.
  • An amount of R31.7 million over the MTEF is requested for subject matter experts.

 

  1. Performance

 

  1. In 2017/18, the PPSA embarked on a restructuring process to align its operations with the new vision, which prioritises the following over the medium term:
  • Broadening access by taking services to the doorstep of communities located at the grassroots in the margins of society.
  • Interacting with communities in their own languages for effective communication.
  • Reaching people with traditional leaders and councils.
  • Taking stock of all the Memoranda of Understanding between the Public Protector and other key stakeholders such as government departments.
  • Becoming a stronghold for the poor and marginalised.
  • Empowering the people of South Africa to be able to enforce their rights before approaching the Public Protector.
  • Encouraging organs of state to establish their own effective complaints resolution units or sector specific ombudsman institutions such as Health, Tax and Military Ombudsman.

 

  1. The PPSA made substantial changes in the 2017/18 APP, removing 31 performance targets. However, there is a decrease in the overall performance for 2017/18, which is attributed to inadequate funding.

 

Table 15: PPSA selected indicators and targets

PERFORMANCE TARGETS

2013/14

2014/15

2015/16

2016/17

2017/18

Number of planned targets during the financial year

63

54

21

45

14

Number of targets achieved

37

28

13

24

7

Number of target not achieved

26

26

8

21

7

Percentage level of performance

59%

52%

62%

53%

50%

 

  1. In 2017/18, the PPSA reports its case management was as follows:

 

Table 16: PPSA caseload management 2013/14 – 2018/19

CASE LOAD

2013/14

2014/15

2015/16

2016/17

2017/18

2018/19

Cases carried over

13 622

9 594

5 331

4 254

5 255

4 390

New cases

26 195

15 618

11 372

9 563

11 943

-

Finalized cases

24 642

20 231

12 735

10 787

13 572

-

Cases referred

3 072

2 740

1 159

929

1 746

-

 

  1. In 2017/18, Administration achieved only three (3) of its seven (7) (or 43%) planned targets, spending R149.3 million against the allocated budget of R139.3 million.

 

  1. The Investigations programme achieved three (3) or 60% of the five (5) planned targets for 2017/18. Performance is linked to the following four strategic objectives: adherence to defined turnaround times in investigations; promote a culture of good governance; and implementation of remedial action. The programme had a budget of R173.8 million in 2017/18, and spent R182 million, overspending by R8.2 million.

 

  1. The Stakeholder Management programme achieved one or 50% of two the performance targets in 2017/18. The programme had a budget of R14.1 million and spent R13.9 million, resulting in under-expenditure of R158 000.

 

 

Part 5

 

  1. Committee’s observations

 

The Committee makes the following observations:

 

  1. BRRR process: For a number of years, the Committee has expressed its dissatisfaction regarding the timeframes associated with the BRRR process. Although committees consider performance and spending on a quarterly basis in-year, this information is unaudited. The process of compiling Budgetary Review and Recommendation reports that include the evaluation of the audited annual performance reports, which in terms of the PFMA must only be tabled before 31 September of each year, requires a great deal more time than is permitted in order to comply with the Money Bills Amendment Procedure and Related Matters Act. The situation is especially difficult for committees, such as this, that oversee more than one department, in addition to associated entities and institutions. In addition, the timeframes severely limit any opportunity for interaction with the public on its assessment of the relevant sector. The Committee understands that there is a parliamentary process underway to review the provisions of the Money Bills Procedures Amendment and Related Matters Act to enhance the BRRR process and urges that this process be expedited.

 

  1. Budget reductions

 

  1. The Committee is well aware of the need for fiscal restraint at this time but argues that the implementation of any budget reductions must be sensitive to the nature and importance of the work that is affected.

 

There is a thin line between a so-called ‘lean’ organisation where the available resources – both human and financial - are used carefully and well and an organisation that is so starved of means that it is no longer able to perform its mandated task. The delivery of justice services is labour intensive: warm bodies are needed, for example, to argue on behalf of the State in criminal matters; to defend accused to ensure their right to a fair trial; to interview witnesses; to issue default judgements in undefended civil matters; to assist the public natigate the complexities of legal processes; and so on. Without knowledgable officials to ensure the delivery of a wide range of vital services, our legal system will eventually collapse and with it our democracy.

 

The adverse effects of the budget cuts are observed sharply in the reduced staff establishment. These staff reductions slow matters down, undermining the work that has been put into creating a transformed and responsive justice system. The Committee cannot help but wonder whether the reduced performance that it has observed in some instances cannot be attributed in some part to vacancies. Staff reductions can also increase the workload of officials unacceptably, creating high levels of stress, low staff morale, an increased demand for employee wellness services, and loss of key staff to other positions in government or to the private sector.

 

In 2017/18, the ‘compensation of employees’ budget for the Vote was cut by R429 million and 1 213 posts within the Department were terminated; while 205 officials left the NPA; and 110 posts were cut from the Legal Aid SA’s establishment. In 2018/19, the Vote’s baseline for this item is reduced by R671 million.

 

Although the Department has assured the Committee that, it will prioritise the filling of identified critical posts and sharing of support services wherever possible so that service delivery is not affected, the Committee remains concerned.

 

  1. It is alarming that the NPA’s vacancy rate has ballooned to 19%, of which almost 60% of the vacancies are prosecutorial posts. The Committee is told that the moratorium on the filling of posts has had a severe impact on staff morale at the NPA. During 2016/17 and 2017/18, 205 prosecutors left the NPA, while a further 143 officials have already left this financial year. The high number of vacancies places an intolerable burden on the remaining officials, who are buckling under the increased workload. In addition to a flood of resignations, the NPA reports that absenteeism and demand for employee wellness services have increased significantly. Furthermore, the suspension of the NPA’s Aspirant Prosecutor Programme, which is intended to create a pool of practitioners from which prosecutorial vacancies can be filled, raises concern about the sustainability of the delivery of prosecutorial services going forward.

 

  1. Legal Aid SA, which is managed with distinction on a relatively modest budget to achieve impressive results year-after-year, can no longer absorb the budget shortfall/cuts through further efficiencies and costs containment measures. It’s only recourse going forward is to reduce the staff establishment by retrenching its staff. The projected reduction in the number of its legal practitioners is substantial and will significantly affect court coverage and, therefore, service delivery capacity. The Committee is told that further budget cuts of 1.6%, 1.5% and 1.4% are planned over the 2019 MTEF, which will lead to the even greater reduction of its service delivery capacity.

 

The high demand for legal aid services already poses an enormous challenge for Legal Aid SA’s practitioners, especially as practitioner coverage at many courts is already insufficient and there is no relief capacity. With regard to its criminal work, Legal Aid SA is involved in more than 70% of criminal cases in the lower courts and more than 80% of criminal cases in the superior courts. Without representation, presiding officers will have no choice but to postpone matters until representation is available: to do anything else would undermine a defendant’s right to a fair trial. The budget reductions, therefore, have serious consequences for the functioning of the criminal justice system as a whole.

 

The Committee is informed that Legal Aid SA engaged the Department on the 5% baseline reduction for the 2018 MTEF and, together, the Department and Legal Aid SA have engaged with the Minister of Finance and the Director-General for National Treasury. The response was that, for legal reasons, it would not be possible to reverse the budget cuts for 2018/19. However, this could be reviewed during the 2018 MTEC process in which the Directors-General of several centre-of-government departments prepare recommendations for consideration by the Ministers’ Committee on the Budget (MINCOMBUD) and Cabinet. In the meantime, the Department has assisted Legal Aid SA with R30 million to mitigate some of the impact of the cuts on staffing.

 

The Committee is also afraid that a reduction in the availability of legal aid services may infringe on the constitutional rights of those who turn to Legal Aid SA for assistance, typically the indigent and most vulnerable persons in our society, and may, furthermore, expose the State to future litigation as a way to enforce the affected rights. The budget cut also affect Legal Aid SA’s ability to assist clients in civil matters.

 

The Committee, therefore, supports the reversal of the 5% budget reduction to Legal Aid SA’s baseline allocation amounting to R98.2 million and R103 million in 2019/20 and 2020/21, respectively. Further, the Committee does not support the implementation of additional planned budget cuts over the 2019 MTEF in the case of Legal Aid SA.

 

  1. Historically, the Chapter 9 institutions have been underfunded and this has had adverse consequences for their structure and operations. Furthermore, these institutions feel budget cuts especially severely. The Committee believes that the decision to apply the budget cuts to the baseline allocation of a Chapter 9 institutions should carefully consider the unique contribution that these institutions make towards strengthening our constitutional democracy, as well as the duty placed on other state institutions to assist these institutions. The matter of an appropriate funding model for the Chapter 9 institutions was mooted more than a decade ago when the ad hoc Committee on the Review of Chapter 9 and Associated Institutions (2007) recommended that the budgets for the constitutional institutions supporting democracy be contained in a separate programme in Parliament’s Budget Vote. Furthermore, the Committees wishes to draw attention to the resolution of the National Assembly in Fourth Parliament affirming this recommendation. Although there is not enough time to resolve the matter of the funding model before Parliament rises for the 2019 general elections, the Committee urges the new Parliament to consider undertaking a fresh review of the Chapter 9 institutions, in which consideration of an appropriate funding model is included.

 

  1. Audit outcome: Department of Justice and Consitutional Development

 

  1. The Committee is dismayed that the Department achieved a qualified audit outcome for the second year in a row. The Committee regrets that Management did not double up on its efforts to prevent an unfavourable outcome. The Committee notes that the Auditor General pointed to the failure of Management as a factor in the poor audit outcome. The Committee is also concerned that the moratorium on filling posts while the exercise to identify critical posts was undertaken affected the financial controls in respect of supply chain management and procurement. The Committee, therefore, specifically requests that:
  • The Director-General provide the Committee with details of the formal commitments made to address the audit findings by 30 November 2018.
  • The Department report on the implementation of the audit action plans as part of the initial report due on 30 November 2018, and continue to keep the Committee updated as part of the quarterly reporting.
  • Management confirms that in-year financial and performance reports have been adequately reviewed at the appropriate times.
  • At the appropriate time, the Director-General, Chief Financial Officer and Audit Committee all confirm that the annual financial statements have been reviewed prior to submission for auditing, with a particular focus on compliance with legislation and supply chain management.

 

  1. Irregular expenditure and wasteful and fruitless expenditure. The Committee is concerned at the increase in irregular expenditurea and the occurrence of fruitless an wasteful expemditure. The Committee requests that the Department provide a written report by 30 November 2018 on the steps that it is taking to prevent their re-occurrence; the status of investigations into unconfirmed amounts; and the status of disciplinary action taken against the officials responsible for such expenditure, including efforts to reclaim these amounts; and to continue to do so quarterly.

 

  1. Third Party Funds. The Committee congratulates the Department on the achievement of an clean audit opinion with respect to the Third Party Funds. This is a tremendous achievement that is the result of many years of dedication and effort to reach a solution to the management of these funds. The Mojapay system has been implemented in 277 courts in eight provinces and 15 State Attorney’s offices. According to the Department, the turnaround time to pay maintenance beneficiaries has improved to just two days.

 

Notably, the Justice Administered Fund Act came into effect on 1 April 2018, with the effect that Third Party Funds received and paid out will now be administered in terms of the Justice Administered Fund.

 

  1. Transformation towards access to justice

 

  1. Throughout the Fifth Parliament, this Committee has been concerned with the need for fundamental change of our legal system towards access to justice. In its view, the system at present does not adequately address the needs of our people: The complexities of negotiating the formal system requires a degree of expert knowledge that requires employing legal repesentation that is too costly for most. Far too often, those who appear before our court or visit justice service points do not experience justice: Their cases or disputes take too long to resolve; they must travel lengthy distances to access the courts (and incur travel costs that they cannot afford in doing so); they experience the courts or service points as unfriendly and overwhelming (the language used by the courts, for example, is not their own and the use of interpreters does not always assist). The Committee has regularly expressed its views on the need for substantive change to the entire legal system

 

  1. The Department has embarked on a ‘Renaissance Project’, which will transform the legal system. The project aims to overhaul old-order legislation, policies and precedent that continue to perpetuate the legacy of apartheid and colonialism; transform the various branches of the law; and put measures in place to ensure access to justice for all. The project encompasses restructuring the lower courts; a complete overhaul of the Criminal Procedure Act; reform of the civil justice system and family law with a focus on increased use of mediation; inceased access to justice through the use of paralegals/justices of the peace; and the use of language in our courts. The Department reports that a draft policy framework was submitted to the Minister for further discussion.

 

Given its importance and scope, the Committee, requests that the Department provide it with a comprehensive written report on the progress of this project by 30 November 2018. The Committee also asks that the Department to keep it regularly updated of further progress and any challenges, as part of the quarterly reporting process.

 

  1. Use of language in court proceedings. The Committee has noted the Judiciary’s view regarding the use of English as the language of record in our courts but maintains that the choice of language in official processes remains a fundamental barrier to access to justice that must be addressed holistically. The Committee intends to engage further with the Chief Justice and Heads of Court on this matter when it next meets with the them.

 

Furthermore, the Committee has reservations about the quality of the interpretation services offered in the courts. The Committee notes that the Department has developed the following draft language policies: Interpretation Service Policy, 2017 and Use of Official Languages in Courts Policy, 2017. The Committee is told that these are at an advanced stage and will be finalised in 2018/19 after consultations have taken place with key internal role-players, including the NPA, Legal Aid SA, and also with the legal profession broadly. The aim is to implement the policy through legislation, in particular the Lower Courts Bill.

 

In addition, processes to establish a Language Unit, envisaged by the Use of Official Languages Act, 2012, are underway.

 

The Committee requests that the Department provide a comprehensive written report by 30 November 2018 containing details of the progress of this project, with projected timeframes.

 

  1. Regulation of the paralegal sector and provision of funding for sustainability. The Committee acknowledges that the statutory recognition and funding of the paralegal sector is included in the Department’s transformation project but is frustrated at the lack of tangible results so far.

 

The Department has been working with the National Alliance for the Development of Community Advice Offices (NADCAO) and the Association of Community Advice Offices of South Africa (ACAOSA) to ensure the sustainability of community advice offices and to regulate the work of community-based paralegals. Although the Department reports that it has prepared a draft bill, it cannot be finalised until the issue of funding is resolved. In this regard, a task team was to have prepared a document on funding models by the end of September this year but it is unclear to the Committee whether it was able to do so in the given timeframe. The Department has also undertaken to engage with other relevant departments and local government, as well as donors, to resolve the issue of funding.

 

Throughout this parliamentary term, the Committee has maintained that the statutory recogntition of the paralegal sector is urgent, as paralegals and community advice centres play a major role in promoting access to justice. However, it is apparent that the necessary legislation will not be in place before Parliament rises for the 2019 general elections. Nonetheless, the Committee urges the Department to prioritise the finalisation of the funding model and the requisite legislation for introduction in the next Parliament.

 

For now, the Committee requests that the Department provide it with a comprehensive written report on the progress of this project by 30 November 2018.

 

  1. Policy on the design of the judicial governance and court administration model. In its BRRR of October 2017, the Committee noted that an Inter-Ministerial Committee (IMC), chaired by then Deputy President Ramaphosa, had been appointed to make recommendations to Cabinet on an appropriate Judicial Governance and Court Administration Framework. The Committee was informed that a technical task team, chaired by the Deputy General: Justice and Constitutional Development, was to assist the IMC’s work. The target date for the submission of the Policy to Cabinet was 28 February 2018. This target was not met although a draft policy was submitted to the Office of the Deputy President. This draft policy was to have been discussed at a meeting of the IMC scheduled for July 2018.

 

It is unclear what the stumbling blocks are and the Committee has become increasingly frustrated at the the continued lack of progress in resolving the Policy: the need for a judicial governance and court administration model was already mooted in the revious adminsitration and the Judiciary undertook extensive research and made proposals then. The Committee is, therefore, understandably keen that the Policy be finalised as soon as possible.

 

In the meantime, the Committee requests that the Department provide it with a comprehensive written report on the progress of this project by 30 November 2018, and continue to report on this item as part of the quarterly reporting process.

 

  1. Integrated Criminal Jusice Strategy (ICJS). The Strategy provides a mechanism to address the “silo” approach of the relevant departments and entities to strengthen co-ordination and co-operation among them. The ICJS is to incorporate the modernisation of the CJS and will address concerns raised at community level that include the implementation of the bail system and the lack of support for victims of crime.

 

The target date for the finalisation of the Strategy was 31 March 2018 but has been revised to 28 February 2019 (for submission to Cabinet). The reason provided was that there were ‘delays in the identification of all the officialswho were requested to participate’. The Committee has previously expressed its unhappiness at the ever-shifting targets and queries whether line departments are taking this project seriously enough.

 

The Department reports that an Integrated Task Team on Criminal Justice Reform (ITT-CJR), which is headed by Adv. Lungi Mahlathi and is made up of senior designaed officials from the line function departments and law enforcement agencies, has been established to accelerate the development of the ICJS and the overhaul of the Criminal Procedure Act.

 

The Committee requests that the Department provide it with a comprehensive written report on the progress of the project by 30 November 2018, with timeframes. The Committee will also endeavour to arrange a dedicated briefing as soon as its programme permits.

 

  1. Integration of IT systems (IJS). As previously stated, the ultimate goal of the IJS is to ensure seamless integration and consolidation of critical information between the entities that form part of the JCPS Cluster. The Committee has previously remarked on the pattern of slow spending in-year, as well as considerable underspending at year end, in respect of the earmarked funds allocated for the IJS. The Committee notes that this pattern was once more evident in 2017/18 during which National Treasury approved the shift of R94 million from the Justice Modernisation subprogramme due to projected savings.

 

The Committee is informed that the relevant Deputy-Generals and Heads of Department have met to develop a Governance Model that will include the establishment of an IJS Board at Deputy-General level, chaired by the DG: Justice. The Board will meet quarterly and report to JCPS Ministers.

 

The Committee acknowledges that there is progress but, given the length of time that the project has been in existence and the considerable resources that have been allocated to it over the years, is frustrated. The Committee is unclear as to when it can expect to see noticeable results in terms of a more effective and efficient criminal justice system.

 

For now, the Committee requests that the Department provide a comprehensive report of the progress of the project, with timeframes, by 30 November 2018, and continue to report on this item as part of the quarterly reporting process.

 

  1. Expanded court infrastructure for improved access to justice. The funding of new court infrastructure is a concern to the Committee, as the building of new courts remains a core element of the Department’s efforts to improve access to justice. However, given the current financial constraints, it is important that infrastructure budgets are managed well and deliver value.

 

The Committee has observed over the years that these courts take far longer to build than projected and, in the process, costs escalate hugely. Contractors go out of business requirng the appointment of a fresh contractor, which causes further delays and is costly. Problems (some of which should have been foreseen) emerge relating to the site chosen that delay project completion even further.

 

The Committee is concerned to learn of the challenges that are preventing completion in respect of the Limpopo High Court. At the Mpumalanga High Court, a solution was finally found for the access road. It is under planning, pending approval of the feasibility study and the variation order for construction, and is expected to take 2-3 months to complete.

 

The Committee has scheduled a joint briefing on all aspects of the infrastructure programme, including planned maintenance, for later this term.

 

The Committee requests that the Department provide a written report on its progress in implementing its infrastructure programme in preparation of that meeting. In addition, the Department is requested to report on progress as part of the quarterly reporting process.

 

  1. Transformation of State Legal Services. The Committee has previously noted that the State is the largest consumer of legal services in the country. It also employs hundreds of professionals who provide litigation and legal advisory services for the State in different capacities. For some time, there have been reports of disarray within the offices of the State Attorney and complaints regarding the provision of state legal work to young, previously disadvantaged legal practitioners in a context where there is currently no comprehensive set of clearly defined rules governing how litigation services are to be acquired, managed and monitored. Recently, it has emerged that there is corruption at certain offices and the matter has been referred to the SIU for investigation.

 

At present, a fragmented approach to the management of state litigation exists. Towards the end of the Fourth Parliament, legislative amendments were passed to provide for a ‘chief’ State Attorney – the Solicitor-General - but this appointment has been delayed because of challenges relating to the level of the post. More recently, the filling of the position was halted pending the restructuring of the entire state advisory and litigation offices. The Committee notes that the Department intends to table the finalised business case and a State Legal Services Bill during 2018/19.

 

  1. A transformed legal profession. There have been delays with the establishment of the Legal Practice Council as a result of prolonged consultations regarding the Regulations. However, the Regulations have been considered and referred to the House with the recommendation that it approves them. If all goes well, the Legal Practice Council will come into being on 31 October 2018, when the transitional National Forum ceases to exist. The Legal Practice Council has a mandate to promote transformation within the legal profession and the Committee urges it to engage with this as a matter of urgency. In particular, the Committee believes that a great deal more needs to be done to support Black legal practitioners, especially black women, wishing to make law their career. The many obstacles that all women legal practitioners encounter are well documented and require a comprehensive response from all stakeholders.

 

  1. Sexual offences matters. Although the NPA reports an increase in the conviction rate for sexual offences, the number of sexual offence cases in our courts that reach verdict is low. Indeed, the discepancy between the number of sexual offences reported to SAPS and the number of cases reaching our courts is of grave concern, indicating the need for an intervention. Although the Department reports the establishment of 17 more dedicated sexual offence court rooms, there are resource challenges that prevent the rollout of these courts at a greater pace and have led to a moratorium on the appointment of further intermediaties. Also, the Regulations for the Establishment and Management of Seual Ofence Courts have yet to be finalised.

 

The Committee notes that the Department has tabled its 2017/18 Report on the Implementation on the Criminal Law Sexual Offences and Related Matters Act and believes that discussion of its contents will provide an opportunity for focused engagement on this issue. The Committee will arrange a joint briefing on the Report as soon as its programme permits

 

 

  1. National Prosecuting Authority

 

  1. The Committee’s views on the impact of the budget shortfall and cuts for the NPA is set out more fully in paragraph 15.2.  Briefly, the Committee is of the view that insufficient weight is being given to the essential nature of prosecutorial services. The Committee, therefore, advocates that additional funds be made available to address the shortfall on the NPA’s salaries budget so that it can fill vacancies. A breakdown of the NPA’s funding needs in this regard are set out earlier in this report.

 

  1. The Committee notes too that the NPA’s Aspirant Prosecutor programme remains suspended. This programme not only provides young lawyers with an opportunity to gain critical experience and skills, but provides the institution with a stream of well-trained “new blood” as prosecutors already employed at the NPA progress within or even leave the institution. Further the creation of employment opportunities for the youth is a national priority. For all of the above reasons, the Committee supports that additional funds be made available to allow the NPA to resume its aspirant prosecutor programme going forward. A breakdown of the funds that are required for this item are set out earlier in this report.

 

 

  1. Information Regulator

 

  1. In the Committee’s view, the establishment of the Information Regulator is a priority. Unless the Regulator is adequately capcitated for it to be able to fulfil its functions, the remaining provisions of POPIA will not be declared operational. In this regard, the Committee is frustrated at the slow pace at which capacitation is taking place, given how important it is for South Africa to have a legislative framework that protects personal data. Worldwide, data protection legisalation is seen as a key component in securing information so that it does not fall into the wrong hands. The Committee also notes the significant cost of data breaches. In its view, while the MTSF focuses on cybersecurity, ensuring that personal data is properly secured, is a key aspect of cybersecurity, and will assist to prevent cybercrime.

 

  1. The Regulator informed the Committee that it has been given approval to appoint its senior management, which is a welcome development. At present, the Regulator is supported by four officials seconded from the Department o Justice. The Committee notes too that the Regulator plans to share accommodation with the South African Human Rights Commission as an interim measure. The Committee was pleased to hear of the support that the Ministry has provided the Regulator and requests that the Ministry continue to do so.

 

  1. The Committee notes that the Regulator has met with the SAHRC about the transfer of its Access to Information mandate: a memorandum of understanding has been finalised to ensure a seamless transition of functions from the Commission to the Regulator at the appropriate time.

 

 

  1. Legal Aid South Africa

 

  1. The Committee congratulates Legal Aid SA on receiving an unqualified audit for the past 17 years, with no matters of emphasis for the past thirteen years. In addition, Legal Aid SA was awarded Top Employer accreditation for the ninth consecutive year. Each year, Legal Aid SA impresses with its clear strategic vision and planning, management of resources and considerable achievements.

 

  1. Legal Aid SA has been able so far to absorb budget cuts (with some help from the Department) but can no longer do so. The shortfall is exacerbated by a 5% reduction of the baseline allocation for the 2018 MTEF. To address the budget shortfall/cut, Legal Aid SA has capped its compensation of employees’ budget and has implemented cost-cutting efficiency measures. Still, it will be necessary for it to cut posts, which will have an adverse effect in legal aid services. As it is, the Committee is aware that the high demand for legal aid services poses an enormous challenge to Legal Aid SA’s practitioners, especially as practitioner coverage at many courts is insufficient and relief capacity inadequate. This has serious consequences for the effective and efficient delivery of justice services. The Committee notes that Legal Aid South Africa has also made it clear that it is not in a position to take on any unfunded mandates. The Committee asks at what stage the lack of funds becomes a constitutional matter. The Committee, therefore, strongly, supports the reversal of the 5% baseline reduction to ensure that Legal Aid SA does not need to reduce its staff capacity.

 

  1. Legal Aid SA’s budget goes largely towards funding legal representation of accused in criminal matters, as there is a constitutional obligation on the State to assist accused persons without legal representation. The Committee remains concerned at the extent to which criminal matters are prioritised over civil matters. Without a greater balance between the criminal and civil work undertaken by Legal Aid SA, there is great risk of undoing our democracy as the legitimacy of a judicial system that does not speak to the needs of the people is brought into question. The Committee appreciates the many efforts that Legal Aid SA has taken to stretch its capacity to undertake civil work to the very limits. In past years, Legal Aid SA has done its utmost best and has slowly increased the amount of civil work that it does – now at about 13% of its caseload consists of civil matters. The Committee agrees that without additional funds, Legal Aid SA cannot significantly expand its civil work but feels very strongly that funding should at least support the continued provision of legal assistance in civil matters.

 

 

  1. Special Investigating Unit

 

  1. The Committee congratulates the SIU on obtaining an unqualified audit opinion with no findings for the second consecutive year.

 

  1. The Committee notes that the SIU intends to bring legislative amendments to its enabling legislation that will provide it with a clear legislative mandate to address its funding model; undertake pre-proclamation investigations; and monitor and enforce remedial measures. In addition, legislative amendments are required so that the SIU can provide the services/undertake the functions envisaged by the organisational review. For example, the SIU is not mandated at present to perform a market data analytics function.

 

  1. Further, the Committee is informed that since April 2017, 34 of the 99 files submitted by the SIU to the NPA have been converted to cases. These matters have been directed to the relevant Specialised Commercial Crime Unit offices. Five such cases have been finalised since April 2017. The Committee is of the view that it is necessary to arrange a joint meeting with the Portfolio Committee on Police and the SIU, NPA and the Directorate of Priority Crimes Investigations (SAPS) in order to arrive at a fuller understanding of the nature of the challenges that have caused delays in the criminal prosecution of the referred cases. In the meantime, the SIU is requested to continue to keep the Committee informed of measures to enhance collaboration between it and the NPA.

 

  1. The SIU has the power to conduct civil litigation in its own name or in the name of the affected state institution but heavy court rolls often result in its civil litigation work being delayed. The Committee is informed that there is progress in establishing a Special Tribunal that will allow the SIU to process matters faster than in the ordinary civil courts. It is envisaged that the Special Tribunal will effectively operate as a specialist division of the High Court. The Committee requests that it be kept informed of progress regularly. The Committee has previously expressed support for the establishment of the Special Tribunals and is of the view that these should be expedited.

 

 

  1. South African Human Rights Commission (SAHRC)

 

  1. The Committee is concerned that the SAHRC’s audit outcome has regressed. The SAHRC is urged to ensure that it puts in place the necessary controls to ensure that the indentified weaknesses are addressed.

 

  1. The Committee notes that the Commission has met with the Information Regulator to explore the modalities of handing over its responsibilities in terms of the Promotion of Access to Information Act, 2000, to the Regulator. The Committee requests that it be informed of progress in this regard.

 

  1. The Committee notes the SAHRC difficulties in obtaining responses from departments and other state institutions. The Committee will engage with the Office for Institutions Supporting Democracy on the need for a mechanism to assist Chapter 9 institutions in this regard.

 

 

  1. Public Protector South Africa

 

  1. The Committee is especially concerned at reports of institutional instability at the PPSA because of constant turnover and the redeployment of staff, particularly among senior staff. The Committee is unable to comment on the reasons for this but is of the view that this matter should receive urgent attention.

 

  1. The Committee notes that, although the PPSA received an unqualified audit opinion, there are findings. In fact, the Auditor-General has indicated that the audit outcome has regressed, despite the commitment to achieving a clean audit opinion. The Committee repeats its belief that, as an integrity institution, the PPSA should prioritise a clean audit outcome and requires a clear commitment from Leadership/Management in this regard. The Committee requests that the PPSA provide it with its audit action plans, with clear targets and timeframes, by 30 November 2018 and report in writing on progress quarterly.

 

  1. The Committee is once more concerned about the PPSA’s financial health, which has been precarious since 2013/14. At the end of 2013/14, the PPSA had an accumulated deficit of R25.9 million. In response, the PPSA implemented various austerity measures. These assisted to reduce the deficit. However, the trend has reversed and the PPSA’s financial health is once more a concern.

 

  1. The Committee notes that the PPSA continues to maintain that the current budget is inadequate. The Committee has expressed its view that the funding model applicable to the Chapter 9 institutions requires a complete overhaul. As part of that process, there should be an exercise to establish the true funding needs of these institutions. However, for now, the present funding constraints inform what funds are available. In this regard, institutional instability, poor audit outcomes and a mismatch between spending and performance continue to considerably weakens the PPSA’s case for additional funding.

 

  1. The Committee is of the view that the Public Protector Act needs to be reviewed, noting that PPSA agrees with it in this respect.

 

  1. The Committee agrees with the Public Protector’s view that litigation should be a measure of last resort but notes that the PPSA has reported that there has been an increase in the number of reviews since the powers of the Public Protector were clarified by the Courts. The Committee repeats its concern that should this trend continue, there is a risk that legal fees will eat into the PPSA’s budget going forward, adding to its funding difficulties.

 

 

  1. Reporting requests

 

Reporting request

Action required

Associated timeframe

Audit outcome: Department of Justice and Constitutional Development

Formal commitments and implementation of audit action plans.

[See paragraph 15.3.1]

Written report

30 November 2018

Quarterly

Irregular expenditure: Department of Justice and Constitutional Development

 

[See paragraph 15.3.2]

Written report

30 November 2018

Renaissance project:

Progress

 

[See paragraph 15.5.2]

Written report

30 November 2018

Use of Official Languages in Court Proceedings:

Progress towards finalising policies.

Establishment of a Language Policy Unit

 

[See paragraph 15.5.3.]

Committee to engage with Judiciary on its views on the use of language in court proceedings

Meeting to be arranged

Progress report on finalisation and implementation of Use of Official Languages in Court Proceedings Policy

30 November 2018

Written progress report on the establishment of a Language Policy Unit

30 November 2018

Regulation of the paralegal sector and provision of funding for sustainability:

 

[See paragraph 15.5.4]

Introduction of Paralegal Bill

2018/19

Comprehensive written report on progress to resolve issue of sustainability and funding

30 November 2018

Policy on the design of the judicial governance and court administration model

 

[See paragraph 15.5.5]

Written report

30 November 2018

Integrated Criminal Justice Strategy

 

[See paragraph 15.5.6.]

Comprehensive written report

 

Briefing

30 November 2018

 

As soon as the programme permits

Integration of IT systems (IJS)

 

[See paragraph 15.7.7]

Written report

30 November 2018

Court infrastructure

 

[See paragraph 15.5.8.]

Comprehensive written report

In preparation for meeting/

30 November 2018

Joint briefing (also planned maintenance)

As soon as the programme permits

State Legal Services

 

[See paragraph 15.5.9]

Comprehensive written report

30 November 2018

Sexual offences

Briefing on Report on Implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act

 

[See paragraph 15.5.11]

Joint meeting

As soon as the programme permits

Special Investigating Unit

Collaboration with NPA

 

[See paragraph 19.3]

Joint meeting

As soon as the programme permits

South African Human Rights Commission

Progress of handover of PAIA functions to the Information Regulator

[See paragraph 20.1]

Written report

30 November 2018

Public Protector

Audit outcome: Remedial actions

 

[See paragraph 21.2]

Written report

30 November 2018 and quarterly

 

 

  1. Recommendations

 

  1. The Committee recommends that Parliament consider undertaking a review of the timeframes associated with the compilation by portfolio committees of Budgetary Review and Recommendation Reports as required by the Money Bills Procedure Amendment and Related Matters Act 9 of 2009.

 

  1. The Committee makes the following recommendations relating to additional funding:

 

  1. The National Prosecuting Authority be provided with additional funding to address the shortfall on its compensation of employees’ budget; to fill vacancies; and to create capacity at new courts, as well as additional funds for the resumption of its Aspirant Prosecutors programme.

 

  1. Legal Aid South Africa receives additional funding to prevent it from having to cut posts with adverse consequences for service delivery and to ensure so that it is able to maintain its civil work despite the current fiscal environment.

 

 

Report to be considered