ATC090219: Report on Budget Vote 21
Report of the Portfolio Committee on Justice and Constitutional Development on Budget Vote 21: Justice and Constitutional Development, dated 19 February 2009
The Portfolio Committee on Justice and Constitutional Development, having considered Budget Vote 21: Justice and Constitutional Development, reports as follows:
1.1 The briefings on the budget of the Ministry and Department of Justice and Constitutional Development took place on 6 and 7 May 2008.
1.2 Those who appeared before the Committee for the briefings on the budget included Minister B Mabandla; Deputy Minister J de Lange; Director General (DG), M Simelane; Deputy Directors General (DDGs), S Jiyane, and D Rudman (Legislative Development); Acting Chief Financial Officer (CFO), J Johnson; Chief Directors, P Du Randt (Court Services), JB Skosana (Policy), B Mbonani ((Acting) Strategy), T Ramanyimi, M Sejosengwe, N Makuhubele; Chief State Law Advisor, E Daniels; Deputy Chief State Law Advisor, A Johaat; Director: Office of the Chief Litigation Officer, N Gawula; (Acting) National Director of Public Prosecutions, M Mpshe; (Acting) Deputy National Director of Public Prosecutions, S Mzinyathi; (Acting) Chief Executive Officer - NPA, B Simelane; Chief Financial Officer - NPA, B Graham; Executive Manager - NPA, D Mvelase; (Acting) Executive Manager: Strategy - NPA, K van Rensburg.
1.3 The DG, was only able to attend the Budget briefings for most of the first day and not at all on the second day, as he had to attend the Ginwala Inquiry hearings on the suspension of the National Director of Public Prosecutions. In view of the importance of the Ginwala Inquiry, the Committee agreed that the DG could absent himself from part of the briefings. It is only because of the exceptional circumstances that the Committee agreed to this, but we are clear that in general a parliamentary committee’s processing of a Department’s budget cannot be done without the full presence and participation of a DG.
1.4 This report gives a brief summary of the presentations made by the Department to the Committee, focusing mostly on its achievements in the previous financial year, the key activities planned for 2008/09, and the challenges to be dealt with. The presentations can be obtained from the Committee Secretary, Ms P Sibisi.
1.5 This report should be located in the context of the Committee’s “Report on the Annual Report of the Department of Justice and Constitutional Development” published in the ATC of 21 November 2007 and the Committee’s 2008 programme, “Managing the Challenges: Too Much Legislation, Too Little Oversight, Too Limited Time”. The programme notes: “This year is special because: this is the final year of our five-year term; we have a huge legislative load; this is an “election year”; and Parliament will be sitting for a shorter period than usual”. Given the huge workload of the Committee, we were not able to adequately engage with the Department’s budget; and the time period allocated for considering the budget was too short; and so the report is not as rigorous and forward-looking as we would like it to be; but we hope it will be of some use to the new Committee after the next elections as it decides to take matters forward.
1.6 This report reflects too much of what the Department had to say and not enough of the Committee’s views. This is largely an outcome of the pressures referred to above, and the inadequate way in which we managed the exchange with the Department during the briefings. The Committee did not effectively engage with the Department on its Strategic Plan and needs to do so at the next quarterly budget briefing with the Department. The value, however, of covering the Department’s presentations in such detail is that it provides the Committee with a useful basis to more effectively monitor the Department’s progress and more rigorously fulfill its oversight role.
1.7 The Committee is meant to have a quarterly briefing from the Department to review progress on the implementation of its Strategic and Business Plans. The first quarterly briefing for the year was called off because of time constraints, but despite the difficult year ahead, the Committee must continue to have quarterly briefings from the Department; and we should pursue many of our concerns that we did not raise at the budget briefings, at these quarterly briefings.
2. Minister’s Political Overview
2.1. The Minister referred to the Department’s key policy priorities, which are to enable access to justice for all; enhance organisational efficiency; and transform the legal and justice system. These priorities guide the work for which the Budget is allocated and for which the Department must account.
2.2. The Minister provided an overview of certain weaknesses in the Department’s financial management, which have required the Department’s urgent attention, namely asset management, the management of Monies-in-Trust, under-spending and supply chain management. The Minister informed the Committee on the following progress:
· An independent stock-take of moveable assets has been performed and it is expected that an accurate asset register will be compiled by mid-May 2008.
· A tender evaluation process for the Monies-in-Trust has been concluded. The tender process should be finalised by July 2008. The chosen service provider is expected to conclude the system development by September/October 2008 and full implementation should begin in January 2009.
· The Accounting Officer has approved a revised personnel structure for the supply chain management division in compliance with the framework prescribed by National Treasury. Fifteen positions have been advertised, while an additional nineteen positions will be advertised once the job evaluation process has been completed.
· There has been an improvement in the Department’s ability to spend its budget (from 92.7% in 2006/07 to 97.7% in 2007/08). A further breakdown of spending per economic classification reveals that in 2007/08, the Department spent 99.4% of its budget for personnel and operational expenditure. However, it only spent 77% of its budget for the procurement of buildings and fixed structures. A major reason for the under-expenditure is that the Department relies on the Department of Public Works (DPW) for the timely submission of invoices.
2.3. The Minister highlighted key achievements for 2007/08 aimed at improving access to justice for all, which is closely linked to the Department’s transformation agenda. Of particular importance is that the Department is providing courts where previously there were none. Four courts have been completed and are ready for opening this year (in Daveytown, Middledrift, Sekgosese and Waterval). In 2008/09, the Department intends to complete the construction of five courts, as well as add to or convert five existing courts. The Department has also begun the process of developing a further six courts, of which the Soweto Magistrates’ Court, and the Mpumalanga and Limpopo High Courts have been prioritised.
2.4. The redesignation of certain courts is a priority. The spatial distribution of the magistrates’ courts still reflects the old system of demarcation which was based on racial and geo-political separation, creating vast disparities in the court infrastructure and resources of formerly White and Black areas. Typically, communities living in townships and former Bantustans were served by branch and periodical Courts, which provided limited criminal law adjudication. There are 90 branch Courts and 246 periodical courts. These courts exercise the jurisdiction of the main court in the district and do not have a budget or any staff of their own. Most of the periodical courts are in police stations, while a few were on private farms. While the periodical courts on private farms have ceased to operate, processes are underway to replace those in police stations with circuit courts. Twenty-three of the branch Courts will be redesignated as full courts with effect from 1 August 2008 or as soon as it is practical. This will have a huge impact on service delivery as these courts will provide a full range of services (criminal, civil, family law and the services of the Master of the High Court).
2.5. The immediate benefits of the redesignation of these identified branch Courts include: the reduction of traveling costs; the alleviation of congestion in the main courts; meeting the needs of communities in certain rapidly growing areas, such as Midrand and Khayelitha; and the more efficient management of resources.
2.6. The Minister informed the Committee that the Department has been able to reduce its vacancy rates from 23% to 12%. This includes the recruitment of key administrative staff (court managers, clerks of court and maintenance officers) as well as judges and magistrates.
2.7. The modernisation of courts has also been a priority. In this regard, the Minister informed the Committee that large numbers of officials have been trained to use the justice deposit account system. This, in turn, has improved its ability to process maintenance payments.
2.8. A review of the criminal justice system is currently being undertaken in conjunction with Business Against Crime. This initiative focuses on establishing:
· A new coordinating and management structure for the criminal justice system.
· An integrated and seamless information technology system and database.
· The modernisation of all aspects of the criminal justice system.
2.9. The Minister informed the Committee that the Department introduced nine Bills in 2007/08. Other Bills, including on floor-crossing, the Directorate of Special Operations, and the regulation of video-postponements and the expungement of criminal records will be introduced in this financial year.
2.10. A policy document on the transformation of the judiciary is being drafted and will be released soon. Also, a key aspect of the transformative agenda is the establishment of professional skills within the judiciary.
2.11. The Minister reported that there has been some progress in improving the representation of women on the Bench. Nineteen women practitioners recently underwent a specially designed judicial education programme and will soon be appointed as acting judges. A further intake of 23 women to undergo the same programme is planned for June 2008. The Department has also been active in the formation of the South African Women Lawyers Association (SAWLA).
2.12. The Department has also engaged in activities involving foreign jurisdictions, for example it has embarked on a programme to assist the Democratic Republic of Congo (DRC) in improving its court system.
2.13. While recognizing the challenges, the Committee feels that the work on the overhaul of the criminal justice system should be accelerated, and the key proposals, even if they are still tentative, should be brought before the parliamentary committees in the Peace and Stability cluster as soon as possible. The public, through Parliament and by other means, should also be given space to comment on the emerging new integrated criminal justice system, especially as the new system will, it seems, provide for greater public participation through enhanced Community Policing Forums and Community Safety Forums and other means. In any case, a new integrated criminal justice system is of major interest to the public – and, surely, it is in the interest of the executive to communicate its work on this and get responses from the public, organised civil society stakeholders, academic and other experts, and others?
2.14. The Committee welcomes the progress in rectifying the matters that were raised by the Auditor-General in his report for the year ending 31 March 2007, as well as a number of other issues that the Committee had identified flowing from its review of the Department’s Annual Report for 2006/07. Such matters include the management of Third-Party Funds, asset management, the tightening of internal control to reduce fraud, improving controls relating to the Department’s information systems, progress in automating the management and administration of the Guardian’s Fund, and the implementation of the Justice Account Deposit system. The Committee is not fully apprised of these issues and will pursue them further with the Department, and also send representatives to the meeting of the Standing Committee on Public Accounts to be held in June to monitor progress in this regard.
2.15. The Committee welcomes progress on the building and renovation of courts as well as the re-designation of courts. While recognizing that the Department is dependent on DPW for this, the Committee feels that this sub-programme needs to be accelerated, especially in view of the importance of ensuring greater access to justice. The Committee wants to see far more progress in respect of periodical courts, especially in police stations being phased out. Of course, the court-building and renovation projects needs to be closely linked to other aspects of ensuring greater access to justice, for example, by ensuring that the new buildings are adequately staffed and properly equipped to fulfill their functions.
2.16. The Committee believes that it is crucial that the Ministry effectively consults judges and other relevant stakeholders before finalizing its policy framework on the transformation of the judiciary and the Bills flowing from this.
2.17. The Committee welcomes the reduction in the Department’s vacancy rates and expects that this will lead to it being more effective.
2.18. The Committee commends the improvement in the representation of women on the bench and is keen to see more effective progress in this regard.
2.19. The Committee fully supports the Department’s assistance to the DRC referred to in section 2.12 above.
2.20. The Committee feels that there is not enough of an alignment between the President’s “State of the Nation” address and the Department’s plans and would like to see greater synergy in this regard, and will certainly monitor developments in this regard. In considering next year’s budget, the Committee will expect to see greater alignment between the “State of Nation” address and the Department’s plans.
3. Overview of the Budget
3.1. The DG, Mr M Simelane, expanded on the Minister’s overview, providing further details. He told the Committee that, as a result of historical processes, the Department deals with many extraneous matters that do not form part of its core business. While it is slowly trying to reduce its role in such matters, this remains a challenge.
3.2. With regard to Court Services, the construction of courts should be the Department’s biggest area of work. It is, however, constrained by the processes that surround capital works projects. The DG also informed the Committee that the Department is grossly underfunded in this regard. An added factor is that the Department’s previous under-spending has impacted negatively on the allocation of funds to it by National Treasury.
3.3. The DG addressed the problem of the shortage of office accommodation, particularly for judicial officers. He informed the Committee that the Department is discussing with the National Prosecuting Authority (NPA) the possible relocation of prosecutors to office accommodation that is not situated within court buildings.
3.4. The DG also informed the Committee of the need for more professional staff within the Department, particularly at the Courts and in the Master’s Office. While historically certain functions have been performed by administrative staff, these, he argued, would be more usefully done by legal graduates.
3.5. The Department has now made all of its forms available electronically so that the public no longer need to go to a court to get the forms they need. Unfortunately, as yet, these forms cannot be submitted to the Department electronically but the intention is that, in future, it will be possible to do so.
3.6. The DG informed the Committee that there are approximately 110 disciplinary matters involving fraud and theft. Very often it is poor financial management in the courts that has contributed to the theft of monies. To address this problem, the Department has not only focused on strengthening its financial procedures but also on creating a culture of compliance through awareness, training and discipline. In addition to laying a criminal charge, the Department intends suing for the recovery of monies that have been stolen.
3.7. The Chief Financial Officer, Mr J Johnson, provided an overview of the key financial aspects of the budget:
· In 2007/08, the Department spent R7.36 billion or 97.7% of its final Budget, which is a significant improvement on its expenditure in 2006/07, which was 92.4% of its final Budget. Analysis of spending per economic classification reveals that difficulties in expenditure occurred mainly in connection with “payments for capital assets”.
· The main appropriation to the Department increases from R7.5 billion in the 2007/08 financial year to R8.3 billion in 2008/09. This amount does not include a direct charge against the National Revenue Fund of R1.4 billion for judges and magistrates’ salaries, which brings the main appropriation for 2008/09 to R9.7 billion.
· Over the MTEF, the Department receives new allocations to its baseline of R256.3 million in 2008/09; R404.5 million in 2009/10; and R537.8 million in 2010/11.
3.8. These new allocations are for the following policy priorities:
· Increased capacity in the Legal Aid Board.
· IT modernization projects via the Integrated Justice System (IJS) programme.
· Implementation of the Public Service Co-ordinating Bargaining Council (PSCBC) Resolution 1 of 2007, which sets out the agreement reached concerning salaries and other conditions of service for the years 2007/08 to 2010/11, in the Department.
· Charges for rental accommodation.
· The appointment of additional magistrates and judges.
3.9. The CFO highlighted the following achievements relating to the Department’s financial management in 2007/08:
· As mentioned above, expenditure has increased from 92.7% to 97.7%.
· Within the year, spending has improved and the March spike has decreased from 16% of total expenditure in previous years to 13% in 2007/08.
· Early re-prioritisation of monies was used to fund scanners (R36 million), CCTV interface for children’s courts (R25 million), and the funding of Legal Aid Board cases (R16.8 million).
3.10. The Department expects the following spending pressures in 2008/09:
· A number of capital works projects are due to be finalised during the first quarter of the new financial year.
· The Department intends submitting a rollover application of R117 million for approval by National Treasury. This is R117 million for the payment of capital work projects in progress.
· The impact of salary agreements (specifically, the Occupation Specific Dispensation (OSD) for legally qualified personnel) will most likely require that the Department request an additional appropriation later in the year.
· The Department is funding new courts with no concurrent additional allocations for personnel and operational expenditure.
3.11 The Committee, as noted in 1.6 above did not adequately engage with the Department on its Strategic Plan.
3.12 The Committee welcomes the reduction in under-spending. Obviously, though, it is the quality of the spending that is also crucial.
3.13 As noted in 2.15 above, the Committee would like to see greater progress on the court-building project. We support an increase in funding for the court-building sub-programme. We note with concern that there is no concurrent additional allocations for personnel and operational expenditure despite the building of new courts, and will pursue this matter with the Department at the Committee’s next quarterly meeting on progress on implementing the Department’s Strategic and Business Plans.
3.14 The Committee is not clear about the implications of moving prosecutors from the court buildings and will pursue this further with the Department.
3.15 The Committee welcomes the availability of forms electronically that people would otherwise have to go to the courts to get. Obviously, these forms should be able to be submitted electronically as well, and this should be made possible as soon as possible.
3.16 The Committee welcomes the increased allocations for the appointment of additional magistrates and judges, and for increased capacity of the Legal Aid Board. The Committee will pursue further with the Department exactly what the full needs are in regard to this and how these increased allocations measure up to these needs.
3.17 The Committee would like to be briefed on developments in respect of the disciplinary matters on fraud and theft at the next quarterly budget briefing.
3.18 The Committee is keen to see progress on the capital works projects referred to in 3.10 above.
4. Programme 1: Administration
4.1. The Administration programme includes the management of the Department; development of strategies and policies for the efficient administration of justice; and research, including on improving legislation and making Constitutional amendments. It comprises five sub-programmes, namely Minister, Deputy Minister, Management, Corporate Services and Property Management.
4.2. The Administration programme receives R941 million, which comprises 11.6% of the Department’s budget.
4.3. The Corporate Services sub-programme dominates expenditure under this programme, consuming 51% of the programme’s budget. Property Management follows, with 41%.
4.4. The Administration programme achieved the following in 2007/08:
· The approved staff establishment as at 31 March 2008 was 16 415 with 2 716 vacancies, of which 1 978 (12%) were funded vacancies. The funded vacancy rate has been significantly reduced from 23% in 2006/07 to 12% in 2007/08.
· With regard to the rollout of basic IT infrastructure, 529 (94%) sites country wide have been networked. This has included the provision of ICT infrastructure, hardware, various applications and IT literacy training. Seven sites are outstanding – six of which are under construction, while the remaining site is waiting for Telkom connectivity.
· E-scheduler, which is an electronic case management system that allows courts to schedule cases properly and to identify and address backlogs and blockages, has been implemented in 469 courts. There are six e-scheduler sites that are outstanding, five of which are under construction.
· The Justice Deposit Account System (JDAS) was rolled out to 431 sites, while the ‘Payment Anywhere’ module has been developed and is ready for implementation.
· To strengthen the functioning of procurement activities, a revised personnel establishment for the supply chain management division in full compliance with the management framework prescribed by National Treasury has been approved.
· On the issue of court security, 127 courts are to be secured. The tender process is at the final stages of evaluation.
· On the Cyberia group matter, there is a full internal audit report and a second legal opinion is being obtained before a final decision is made.
4.5. Key concerns that have been identified by the Department for this financial year include the filling of vacancies, strengthening the Department’s financial management systems, addressing limitations in the Department’s IT and improving its communications section.
4.6. The Committee welcomes the significant reduction in vacancies, but, of course, the real test will be improvements in service delivery flowing from the increased staff. The Committee is concerned that the Department’s human resource development plan remains outstanding contrary to Public Service Regulations and requests the Department to report on the progress it has made on this at the next quarterly budget briefing
4.7. The Committee welcomes progress on the e-Scheduler and other technological roll-outs.
4.8. The Committee discussed quite extensively with the Department the controversy that surrounds the award of a tender to the Cyberia Group, as well as the steps that it has taken to deal with matter. It would seem that there may be systemic problems in the award of tenders that require addressing. The Committee was told that there is a report of the internal audit committee dealing with the matter. If possible, the Committee would like to be briefed on this report. We certainly expect to be briefed on progress regarding this matter at the next quarterly budget briefing.
4.9. The Committee will monitor progress in regard to achieving the goals set out in 4.5 above.
5. Programme 2: Court Services
5.1. The Court Services programme provides and manages efficient court services, and facilitates the resolution of criminal, civil and family law matters.
5.2. The allocation to Court Services allows it to further the Department’s key strategic priorities by:
· Ensuring that there are sufficient and appropriate court buildings, facilities and infrastructure so as to facilitate access to justice.
· Providing support to vulnerable groups.
· Implementing an effective court management system, including case flow management and ensuring quality and cost effective court services.
· Transforming and improving customer relations/services, thereby promoting greater confidence in the justice system.
· Creating the space for the Department to participate in Justice and Crime Prevention Strategy (JCPS) cluster activities, including through implementing the Integrated Justice System (IJS) programmes, improving the effectiveness of the criminal justice system, reducing the backlog of cases and dealing with sexual offences.
5.3. It is a major priority programme of the Department and receives 42% of the overall budget. Court Services has 10 sub-programmes: Constitutional Court; Supreme Court of Appeal; High Courts; Specialised Courts; Lower Courts; Family Advocate; Magistrate’s Commission; Government Motor Transport; Facilities Management; and Administration of Courts.
5.4. The Court Services programme receives R3.4 billion for 2008/09. The Lower Courts sub-programme once again dominates expenditure receiving 64% of the overall programme allocation. This is in line with the Department’s objective of improving access to justice and services.
5.5. The presentation highlighted a number of achievements in 2007/08, as well as continuing activities in 2008/09:
· Six courts were completed and are ready for official opening. In addition, this year (2008/09) construction of five courts, as well as additions or conversions to five existing courts is planned. During 2008/09, the development process for six more courts will begin.
· Ongoing activities to improve court efficiency include the rollout of the digital court recording system, the piloting and further extension of the audio video postponement project, the continued implementation of the case flow management system, the further development of a Justice Management Information System to enhance capacity to collect information for the purposes of monitoring court performance and initiation of the case backlog reduction project.
5.6. The Court Services programme’s focal areas for 2008/09 include:
· Facilities management and Restoration and Maintenance Project (RAMP).
· Family advocacy, maintenance, child justice and alternative dispute resolution (ADR).
· Monitoring and improving court performance.
· Improving budget expenditure and project management.
5.7. Some of the priorities identified by the Department for 2008/09 include the need to improve its case flow management system, reduce case backlogs and improve the facilities and infrastructure of the courts.
5.8. The Committee’s views on the building of courts are noted in sections 2.15 and 3.13 above, The Committee further notes the Department’s intention to re-designate certain branch courts, as this will not only enhance access to justice, but improve operational efficiency by allowing court managers to plan the optimal use of their courts. This should extend the number of hours the courts sit, contributing to enhanced court performance.
5.9. The Committee, once again, notes its concern at the general decline in court performance, as well as the high number of outstanding and backlog cases, particularly in the regional courts. This concern was expressed in the Committee’s report on the Department’s Annual Report referred to in section 1.5 above. Obviously, the reduction of case backlogs is a major priority.The Apex Priorities set by Government aims to reduce the number of pending trial cases by 30% by 2009. According to the Estimates of National Expenditure 2008, the aim, over the Medium Term Expenditure Framework (MTEF), is to reduce the number of backlog cases by 5% each year, and the outstanding court roll from 196 183 in 2007/08 to 186 374 in 2008/09. While the Committee appreciates that the Department has put in place many measures to address the problems relating to overall court performance and, specifically, to the reduction of case backlogs, webelieve that there needs to be more concentrated attention on this and, even more, definite, definable, concerted, if incremental, progress in this regard. We understand that improvement of court performance is a major priority in the new integrated justice system being worked on by the executive. The Committee is especially keen on a comprehensive briefing on the new system, as we indicated in our 2007 report on the Department’s Annual Report, and are to negotiate an appropriate date for this briefing with the Department – which, as we previously indicated, should also involve other parliamentary committees in the JPCS cluster.
5.10. The Committee notes the recent major break-ins at the courts and expresses its concern about the lack of adequate security at the courts. Of course, we realise the Department has to work with the SAPS and other state structures on this, but we urge the Department to do more in this regard. We welcome the advanced stage of planning to upgrade security in 127 courts and will monitor progress.
6. Programme 3: State Legal Services
6.1. This programme includes the Government’s legal and legislative services; administration of deceased and insolvents estates and the Guardian’s Fund (the Master’s Office); the preparation of legislation; and the introduction of constitutional amendments.
6.2. Accordingly, spending on this programme is organised into four sub-programmes, namely State Law Advisors; Litigation and Legal Services; Legislation and Constitutional Development; and Master of the High Court.
6.3. This programme receives R503 million for 2008/09, which comprises 42% of the overall allocation to the Department for its programmes. Within the programme, the Master of the High Court sub-programme receives 47% of the overall programme allocation, followed by the Litigation and Legal Services sub-programme, which is allocated 37%.
6.4. The DDG, Mr D Rudman, provided an overview of the Bills that have been prepared, some of which are before the Committee and others which are still to be introduced.
6.5. Details of the projects with which the South African Law Reform Commission is busy were also provided. Its priority projects are those relating to Statutory Law Revision (Project 25), Privacy and Data Protection (Project 124) and Trafficking in Persons (Project 131).
6.6. The Chief State Law Advisor, Mr E Daniels, advised the Committee that it has now filled all senior posts in the Office. In the past year, the Office has begun to extend its services to municipalities, as well as to the provincial legislatures. The Office has also attended to 61 Bills and has received 32 Bills this year. In addition, it has completed 609 opinions, international agreements and regulations.
6.7. In an increasingly litigious society, the services offered by the Office of the Chief Litigation Officer are of great importance to the State. The Office has identified a number of challenges, including a poor image and poorly managed relations with its stakeholders. It plans to address these challenges by:
· Strengthening its internal capacity (through improved physical resources; a skills audit and skills development plan; and appointing more administrative and professional staff).
· Taking on legal interns (candidate attorneys, legal secretaries and para-legals).
· Strengthening its relationship with stakeholders (A State Litigation Management Forum is to be established to improve communication between State Attorneys and their client departments. Also, Service Level Agreements between State Attorneys and their client departments are planned).
· A State litigation blueprint is to be developed to ensure the efficient management of litigation involving the State.
· A litigation risk analysis is to be conducted.
6.8. The Committee welcomes the money the State Law Advisors Office has saved for the State. In addition, to the extent that its resources allow, the Committee welcomes the plans to extend the services of the State Law Advisors to the municipalities. Also, the translation of legislation into at least three official languages is commendable.
6.9. The Committee supports the initiatives of the Office of the Chief Litigation Officer to manage the course of litigation brought against government departments. The Committee strongly believes that government departments should not waste valuable resources defending cases that are obviously indefensible and are inconsistent with the principles, values and content of our Constitution and legislation. There have been outrageous examples of this over the years – and it simply must come to a stop. The Committee feels that the Directors General should be personally held accountable for cases that have obviously no chance of being won in court and are inconsistent with our transformation goals. The role that the Office of the Chief Litigation Officer has to play in countering the tendency towards pursuing indefensible cases is extremely important and the Committee commends the steps it has taken and hopes to see significant progress.
6.10. The Committee remains concerned about the state of the Masters Offices, even if there might be some improvements in the past few months. MPs are often approached by their constituents about the appalling service they receive from the Master’s Office. The Committee believes that there is an urgent need for significant improvement in the provision of services by the Masters Office, and will arrange a specific briefing on this with representatives of the Masters Office and the Department.
6.11. The Department used to report on the implementation of legislation. It is unclear to the Committee why this practice has fallen away. We will raise this with the Department with a view to reinstating it so that we can more effectively fulfill our oversight role.
6.12. The Committee is also concerned about the delay in finalising the regulations pertaining to the Sheriff’s Board and requests that the Department provide it with a written progress report within the next month.
7. Programme 4: National Prosecuting Authority
7.1. This programme provides for prosecution services, witness protection (particularly in serious criminal cases), and the investigation and prosecution of serious, complex and organised crime, and aims to remove the profit from crime. Expenditure under this programme is organised into four sub-programmes: Public Prosecutions, Witness Protection, Directorate of Special Operations, and the Asset Forfeiture Unit.
7.2. The National Prosecuting Authority (NPA) programme receives R2.1 billion for 2008/09. This is 23.9% of the overall departmental allocation, which is slightly more (1.5%) than in 2007/08. The allocation increases in real terms by 9.8%, which is well above the inflation rate. This increase is significantly more than the case for any of the other programmes in the Vote.
7.3. The NPA’s CFO, Mr B Graham, highlighted a number of challenges, particularly relating to the target of employing two prosecutors for each court. The cost for each employee within the NPA far exceeds the NPA’s budget for compensation of employees. Very few external applications have been received for the vacancies. He believes that there are neither sufficient funds nor enough external applications to meet the target.
7.4. There is the expectation among prosecutors that they will receive the OSD. However, there are not enough funds in the NPA’s budget for this and it will need to approach National Treasury to request an additional allocation.
7.5. In respect of office accommodation, the NPA strongly opposes the move of its prosecutors from the courts. While it acknowledges that there is a critical shortage of space (which makes the proposed appointment of 280 additional prosecutors in this financial year extremely difficult), there are considerable difficulties in securing rental accommodation, not least of which is that DPW stipulates that no lease can be taken out for longer than two years. This not only creates problems in securing rental properties, it also results in wasteful expenditure. Also, from an operations management perspective, the NPA is concerned about the security risks associated with dockets being moved from one building to another.
7.6. More generally, the NPA expressed its concern at the mainstreaming of the sexual offences courts. The NPA is of the view that this may deter the specialisation of presiding officers in sexual offence matters. The NPA, however, has received donor funding to build 47 Thuthuzela Care Centres in the next 36 months. Seven of the 47 are planned to be delivered by the end of March 2009. Thuthuzela Care Centres are 24 hour one-stop service centres where victims have access to all services that include police, counselling, doctors, court preparation, and a prosecutor so as to ensure a strong therapeutic effect on victims. They are aimed at turning victims into survivors. These multi-disciplinary care centres have been established to streamline the process of reporting, care–giving, investigation of cases and the subsequent prosecution of the case. It has proved to be an appropriate system designed to effect changes in women’s experiences and to provide a clear focus on the preservation of the integrity of the evidence, with a view to securing a conviction rate and providing support for the survivor through prosecutor-led investigations. A victim-centred approach is adopted, where reporting and management of rape cases is removed from police stations to a victim friendly centre situated within a hospital. In this way, the survivor is in a position to access assistance from the medical staff, investigating officers, prosecutors, counsellors, and emergency support services on 24-hour basis. These Centres aim to eliminate secondary victimisation, reduce case cycle time, and increase convictions. Currently there are ten such Centres operating.
7.7. The NPA briefly highlighted a number of its strategic priorities and projects for 2008/09. These include:
· An increased focus on operational efficiency: The NPA has started to investigate the benefits of implementing “lean thinking” in the NPA. “Lean thinking” is a management approach which focuses on maximising output by eliminating wastage. “Lean thinking” is increasingly being applied in government in England and in South Africa in Health Care, SARS and Home Affairs, Transnet etc. Waste is eliminated by removing all activities that do not add value or are imperative to perform although they do not add any value. The NPA is currently implementing “lean thinking” at two sites: the recruitment section of the HRM&D at head office as well as at the magistrates’ court in Pinetown. Stakeholders and partners are participating in the last-mentioned site.
· The promotion of crime prevention at community level: The NPA recognises that the SAPS is the lead agency in crime prevention, but believes that it needs to assist the SAPS through the execution of its own mandate. The NPA has embarked on a project to investigate this role and the findings indicate that the NPA can have a significant role in problem-solving in the community that positively impacts on the fight against crime. This role is not intended to encroach on the work of the SAPS but to engage in a symbiotic relationship with them and other partners. The approach is one in which the prosecutor works pro-actively within a particular geographic area, to develop long-term, pro-active partnerships between the prosecution, law enforcement, public and civic organisations and the community, with a view to solving particular community crime problems, improving public safety and enhancing the quality of life in these neighborhoods. The NPA will prepare for the institutionalisation of the concept of a community prosecutor by defining their roles and responsibility, establishing the posts and procuring the funds to appoint community prosecutors.
· The NPA is required by the DPSA to develop Human Resources strategies which integrate with future strategies and operational plans, in order to ensure that the future staffing needs are met. Developing an HR plan is essential in order to enable the NPA’s human resources to meet its strategic and operational objectives and to ensure it obtains its vision. The objectives of the project are to determine the attributes and quantity of staff required; develop plans to enable the organisation to optimally utilise its human resources; allow the organisation to forecast surplus and shortage of staff based on fluctuations in demand; and develop a multi-skilled, representative and flexible workforce that will enable the NPA to rapidly respond to changes in the operational environment. The project includes the design of processes, systems and plans.
· The prevailing justice system in South Africa is retributive. Since the crime rate in South Africa still remains high in spite of the Criminal Justice System’s punitive and rehabilitative focus, a paradigm shift to restorative justice and its applications is necessary and may hold promise. According to restorative justice literature, the problem posed by a crime should be considered through the harm it causes. Therefore the primary function of the response should not be to punish, nor to rehabilitate, but to repair or compensate for the harm caused. A shift to a system in which the court-based, adversarial system and restorative justice complement each other, can meet the needs of communities by confronting the offenders, and holding them accountable for their actions. A more effective and satisfactory response to crime will also be provided through this approach since the needs of the victims are taken into consideration and offenders are assisted in taking responsibility for their actions on an individual level. The NPA is piloting the implementation of Restorative Justice to determine its impact.
7.8. The Committee feels that the NPA presentation was very useful and welcomes some of the innovative and promising projects that the NPA is undertaking aimed at improving its services. The Committee is particularly interested in the NPA’s work on community prosecutors and restorative justice, and will pursue this further.
7.9. The Committee expresses its concern about the difficulties that the NPA anticipates in meeting the target of two prosecutors per courtroom; this includes the failure to attract many external applicants, the shortage of office accommodation, and an inadequate budget for the compensation of employees. When asked why two prosecutors per courtroom in particular, the NPA informed the Committee of its intention to carry out a scientific study to determine maximum operational efficiency. Such a study is most welcome, although it obviously should have been carried out much earlier.
7.10. The Committee is also concerned that the budget is insufficient to meet the expectations of prosecutors that they will receive the OSD. This will negatively impact on the NPA’s capacity to attract and retain staff with the necessary skills and experience, which has already been identified as a challenge. The Committee supports the NPA’s decision to approach National Treasury for additional allocations to meet this commitment.
7.11. The Committee requires a greater insight into the full extent of the problems of office accommodation, as well as the proposal by the Department to relocate prosecutors from the courts. It is also unclear to the Committee how this will impact on the plans to increase the number of prosecutors to two per court. In this regard, the Committee intends requesting the Department to brief it fully on the matter, and that this include its reasoning for the proposed move, the implications for the NPA, what is being done to solve the challenges raised in connection with the proposal, and the relevant timeframes.
7.12. The Committee does not fully understand the reasoning for mainstreaming sexual offences courts, as well as the implications of doing this. The Committee will pursue the matter further.
7.13. The project to build new Thuthuzela Care Centres, which provide care centres for victims of child abuse and rape, as well as establishes, renovates and launches sexual offence courts, is most welcome. The Committee is keenly interested in the project plans and would like to be informed periodically of the progress that is made.
8. Programme 5: Auxiliary and Associated Services
8.1. This programme provides for a variety of auxiliary services associated with the Department’s aims. Expenditure under this programme is mostly in the form of transfer payments to the Office for the Control of Interception and Monitoring of Communication, the South African Human Rights Commission (SAHRC), the Commission on Gender Equality (CGE), the Special Investigating Unit, the Legal Aid Board (LAB), the Public Protector, Justice Modernisation (National Crime Prevention Strategy), the President’s Fund and the Represented Political Parties Fund.
8.2. This programme receives R1.4 billion in 2008/09. Within the programme, itself, there has been little change in spending priorities. As has been the case in past financial years, the Legal Aid Board sub-programme dominates expenditure, receiving 47% of the allocation to the programme. The next biggest sub-programme is Justice Modernisation, which receives 24.67% of the overall programme allocation.
8.3. The increased allocations over the MTEF are largely in the form of transfers to the LAB for the appointment of additional public defenders, as well as for the justice modernisation programme.
8.4. The allocation to the Special Investigating Unit over the MTEF is to allow for its growth so as to address its capacity issues.
8.5. The Committee published reports on the 2006-07 Annual Reports of the SAHRC, CGE in the ATC on 13 February 2008 and the LAB on 21 November 2007. The Committee’s views on these organisations are set out in these reports and the Committee is acting on decisions it took that are contained in these reports. The Committee will be meeting with these organisations shortly, and will not, in the circumstances, pursue issues further in this report
8.6. The Committee remains of the view that the Legal Aid Board should play a limited role in providing legal representation in civil matters, especially in the case of farm workers, especially in respect of evictions. The Committee has been engaging with the Department and the Land and Agriculture Portfolio Committee on this and is to take this matter forward. We also feel that the LAB should play a role in civil matters in specific categories affecting children, In particular, in the case of farm workers who are being evicted, the Committee is adamant that the legal obligation imposed on the State to provide legal representation by the relevant legislation needs to be fulfilled and has taken up the matter with all the relevant stakeholders.
9. Overview of Committee’s Response to the Budget
9.1. The Committee’s views raised in this section relate to more general matters. Our views on specific matters relating to the Department’s programmes and budgets can be found in the relevant sections of this report, and will not be repeated here.
9.2. As we noted in our Report of 21 November 2007 on the Department’s 2006-07 Annual Report, the Committee recognises the scope and magnitude of the tasks that the Department has to attend to and is acutely aware of its capacity and other constraints. It may be that the Department has taken on too many responsibilities? Certainly, it is not clear to the Committee that the Department is effectively prioritising its activities or sufficiently focused on a set of core functions. Is the Department being strategic enough in its allocation of energy and resources to its different functions? Should the Department really be taking responsibility for Third Party Funds, or should these be dealt with by other public and private sector structures?” The Department is moving towards gradually shedding itself of direct responsibility for Third Party funds, but we are still not clear that it is being strategic or focused enough in its fulfillment of its mandate. The link between the Department’s Medium Term Strategic Plan, Annual Business Plan, programmes and budget was not clearly set out. We believe that within the context of the Department’s overall strategy there should be a limited, more definable, measureable set of targets with clearer deadlines that are prioritised and that serve as a “building block” to develop greater capacity to identify and more effectively achieve other targets within its mandate.
9.3. The Committee is very pleased to hear of the Department’s progress in addressing the problem of its under-expenditure, and accepts that many of its difficulties in this regard arise from government processes relating to capital works projects. Nevertheless, the Committee wishes to caution the Department that although the progress it has made in this regard is praiseworthy, merely reducing under-spending is in itself not enough. What is spent must obviously be spent productively. The Committee will try to ensure that it receives quarterly reports from the Department not only of what has been spent but how and where it is being spent.
9.4. The Committee is pleased that the presently fragmented system by means of which information is collected across the JCPS cluster is receiving attention and, in this regard, supports the suggestion of a need for a national database. Indeed, when considering the Child Justice Bill, for example, the Committee experienced firsthand how difficult it is to obtain reliable statistics for the purposes of making informed decisions. The Committee does, however, recognise that the problems associated with the creation of a seamless system capable of gathering meaningful information across the JCPS cluster makes this an extremely challenging task.
9.5. As mentioned in 2.13 above the Committee is very keen to engage further with the Department on the proposed overhaul of the CJS, and feels strongly that the views of the public on the new CJS must be canvassed as soon as possible.
9.6. Without infringing on the independence of the Chapter 9 institutions, the Committee acknowledges that, in future, it will be useful to have their input, as well as that of the other institutions listed under the Auxiliary and Associated Services programme, on their budgets and strategic plans for 2008/09. In many instances, the Department merely acts as a conduit when it comes to the allocation of funds. Accordingly, the Department is not well placed to provide sufficient information on the planned activities of these institutions for 2008/09.
10. Towards an Exit Report
10.1. This report, together with other recent reports of the Committee, should serve as the basis for the “exit report” of the Committee and contribute, without being presumptuous, to the post-2009 elections Justice Committee’s shaping of it’s programme for it’s initial year. Obviously, there are many issues taken up by the current Committee that we will not be able to fully address by the end of our term, and we would hope that the incoming Committee will take these matters further. In any case, we will raise these and other issues in the proposed “exit report”.
11.1 The Committee thanks the Minister, Deputy Minister, DG and all those who appeared before the Committee for the Budget briefings for their co-operation.
11.2 The Committee acknowledges with appreciation the very valuable work done by Ms Christine Silkstone in shaping this report.
Report to be considered.
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