ATC090623: Report on Budget Vote 21
1. Report of the Portfolio Committee on Justice and Constitutional Development on Budget Vote 21: Justice and Constitutional Development, dated 23 June 2009
The Portfolio Committee on Justice and Constitutional Development, having considered the budget of the Department, Vote 21: Justice and Constitutional Development, recommends that it be passed. The Democratic Alliance abstained from voting because it had not yet discussed the Department’s budget in its caucus. The Committee further reports as follows:
1.1. The briefings on the budget of the Department of Justice and Constitutional Development and the National Prosecuting Authority (NPA) took place on 17 June 2009.
1.2. Those appearing before the Committee included: Director General (DG), M Simelane; Deputy Directors General (DDGs), S Jiyane, D Rudman (Legislative Development) and V Shabalala (Corporate Services); (Acting) Chief Financial Officer (CFO), J Johnson; Chief Director, P Du Randt (Court Services), (Acting) National Director of Public Prosecutions (NDPP), M Mpshe; (Acting) Chief Executive Officer (CEO) - NPA, K De Wee; (Acting) Deputy National Directors of Public Prosecutions, S Mzinyathi and S Ramaite; (Acting) Executive Manager: Strategy - NPA, K van Rensburg; Director: Public Prosecutions, R de Kock; (Acting) Special Advisor - NPA, T Matzke; (Acting) DDG - Justice College, Julian Marsh; Executive Manager: Communications - NPA, B Makeke; Executive Manager: Human Resource Management and Development - NPA, M Modise; Executive Manager: Finance and Procurement - NPA, G Hollamby.
1.3. This report includes an overview of the presentations made by the Department and the NPA to the Committee. These focused mostly on their respective Strategic Plans for 2009/10 – 2011/12. The presentations can be obtained from the Committee Secretary, Mr V Ramaano.
1.4. This report should be located in the context that the Committee was faced with time constraints flowing from the parliamentary programme. As a result, it is not as rigorous and forward-looking as the Committee would have liked it to be.
1.5. This was also the first time that the Committee had sight of the Department’s Strategic Plan for the MTEF, which is still a draft. As a result, it was difficult for it to engage as thoroughly as it would have wished on the details of the Department’s plans. The Committee intends to rectify this. The value, however, of covering key aspects of the Department’s presentation in this report 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.
1.6. To allow it to fulfill its oversight work more effectively, the Committee intends to have quarterly meetings with the Department to review progress on the implementation of its Strategic and Business Plans. Among others, these meetings will provide it with the opportunity to pursue many of the concerns that it did not raise at the budget briefings.
2. Overview of Department’s Strategic Plan
2.1. The DG, Adv M Simelane, presented the Department’s Strategic Plan, as well as an overview of its allocation for 2009/10. At a programme level, the DG outlined the strategic objectives for the Administration, Court Services, and State Legal Services programmes. These three programmes are directly within the Department’s control. Court Services, in particular, is responsible for providing the Department’s core function of managing the criminal and civil justice system. The NPA gave its own presentation of its Budget and Strategic Plan, which is set out in section 2.9 below. The DG also gave a brief input on the allocation to the Auxiliary and Associated Services programme.
2.2. The Department’s vision is to provide accessible and transformed justice services committed to the promotion of Constitutional values. The DG 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.
2.3. To ensure that justice is accessible to all, the Department aims to align the justice system with constitutional requirements and to bring services closer to previously disadvantaged communities. The DG mentioned a number of key objectives:
· Building courts and providing justice services to disenfranchised communities. The intention is to build 11 new courts by 2011/12. It is questionable that this will be enough. The DG reported that the Department has been allocated approximately R450 million for buildings and other fixed structures, but that this amount is inadequate. The Department is also in the process of transforming 46 of the 230 branch courts so that they can provide full court services.
· Working together with community organisations to improve the provision of services. The DG mentioned that the Department works closely with community development workers in this regard.
· Ensuring that courts use the language(s) common to the communities in which they are located. People should be able to use their language of choice in courts where possible. This, however, gives rise to logistical challenges and there are costs implications, especially if the matter goes on appeal and the record must be translated.
· Informing communities of their rights (together with the Chapter 9 institutions).
· Protecting the rights of women and children, the poor and others who are vulnerable.
· Improving access to courts and other justice services for persons with disabilities.
2.4. The DG emphasized the modernisation of the Department’s Information Technology (IT) systems as key to enhanced organisational efficiency. This includes ensuring that staff are provided with the appropriate ‘tools of trade’ to allow them to perform their work optimally. An advantage of capturing documents electronically is that they are more easily secured. This means, for example, far fewer cases of dockets going missing. The Department, however, has recognised that external users may experience difficulties accessing information, etc, now available electronically. (External users do not always have the IT knowledge or tools to access this information).
2.5. On the goal of transforming the legal and justice system, the DG commented on the need for a common understanding of the transformation agenda. He mentioned the following activities:
· The Criminal Justice System (CJS) Review is ongoing. More recently, the Department has begun a process of reviewing the civil justice system in conjunction with the Rules Board.
· The Master’s Office now uses an electronic system (it previously relied on a manual system). While there has been an improvement in the services provided, a challenge is to ensure that all services offered are available throughout the country.
· Promoting judicial transparency. Engaging with the public on the reasons for court decisions will promote judicial transparency and deepen public understanding of the judicial process.
· Implementing the TRC’s recommendations. Regulations have been proposed to allow reparations to be paid to communities.
2.6. Programme 1: Administration
2.6.1. The Administration programme deals with the Department’s administrative functions; and the development of strategies and policies for the efficient administration of justice. It comprises five sub-programmes, namely Minister, Deputy Minister, Management, Corporate Services and Office Accommodation.
2.6.2. It receives R1.03 billion, which is 9.8% of the Vote (10.75% of the Department’s budget excluding direct charges for magistrate’s and judges salaries). The Corporate Services sub-programme dominates expenditure under this programme, consuming 50% of the programme’s budget. Office accommodation follows with 43%.
2.6.3. A challenge is the amount that the Department spends on office accommodation. The DG commented that it may be more cost effective for government to buy its own buildings instead of renting offices.
2.6.4. The DG highlighted the following key strategic objectives for this programme:
· Building human resource capacity, especially the filling of 2741 vacancies (this number excludes the NPA). The DG mentioned that salaries are an important reason for difficulties in retaining staff. The NPA is likely to lose Senior Prosecutors to the Magistracy because of the recent increase in the Magistrates’ salaries, although the Department hopes to curb this through the implementation of the Occupational Specific Dispensation. Although overall the vacancy rate in the Department is now about 12%, filling posts for magistrates, judges and prosecutors is a real problem. Filling these vacancies is vital for dealing with crime effectively. The DG noted that the Department has not yet met employment equity targets of at least 50% women at senior management level and 2% persons with disabilities.
· Providing training to staff (50%). The DG mentioned that training must take place in such a way that there is minimal disruption to service delivery.
· Strengthening the Department’s financial management systems to ensure unqualified audits, full compliance with the prescripts of the supply chain management procedures and ensuring integrated reporting systems. The Department received a qualified audit in 2006/07 and 2007/08, but is attending to the problems that were raised. The DG noted the need to strengthen supply chain management procedures but that the problems experienced could be resolved largely by training.
· The efficient management of Third Party Funds. This recurring problem, which has contributed to the Department receiving unfavourable audit opinions in previous years, is being rectified through the rollout of the Management of Monies in Trust Public-Private Partnership (MMT PP) (by 2010/11).
· Performance management and reporting (annual and quarterly reports). Quarterly reports are now available.
· Modernising the Department’s IT systems.
· Managing corporate risks and improving corporate compliance and accountability, including securing 127 justice service delivery points with integrated justice infrastructure. The DG highlighted that security at courts is a challenge that needs greater attention. However, efforts at improving security are hampered by a shortage of funds.
· Promoting international co-operation and complying with international obligations with identified countries, including providing mutual assistance and extradition.
2.7. Programme 2: Court Services
2.7.1. The Court Services programme provides and manages efficient court services, and facilitates the resolution of criminal, civil and family law matters. The DG mentioned that this programme also plays a role in developing policy, and that from next year its title would reflect this.
2.7.2. It is a priority programme of the Department and receives 34% of the Vote. 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.
2.7.3. Court Services receives R3.9 billion for 2009/10. The Lower Courts sub-programme dominates expenditure receiving 65% of the overall programme allocation. This is in line with the Department’s objective of improving access to justice and services, and is correct given that the Lower Courts are the busiest. He also commented that the allocation to the Constitutional Court (R68 million or 1.70% of the total programme budget) may be high relative to the amount of work it has.
2.7.4. Key strategic objectives identified by the Department for this programme focus on:
· Bringing justice services closer to all by increasing the number of courts (11 courts by 2011/12); replacing 46 of the 230 branch courts with full court services; redesignating and providing an extra 9 branch courts by 2011/12; ensuring that courts are ready for the 2009 Confederations Cup and 2010 FIFA World Cup; and extending the use of indigenous languages to at least 2 courts per province.
· Promoting and protecting the rights of children. This includes the implementation of the Child Justice Act and improving child maintenance services by means of Operation Isondlo.
· Providing adequate Family Law services through the office of the Family Advocate. The Children’s Act has greatly increased the Family Advocate’s workload.
· Designating 180 Small Claims Courts by 2010 to deal with civil claims for smaller amounts. The Department will provide the relevant statistics.
· Reducing sexual and domestic offences, entailing the establishment of a Victim-Centred Referral system; mainstreaming of specialised sexual offence courts; and support for the establishment and management of the National Register for sex offenders (which comes into effect on 1 July 2009).
· Reviewing the civil justice system in conjunction with the Rules Board, as well as extending the civil jurisdiction of regional courts.
· Increasing the effectiveness and efficiency of the Criminal Justice System (CJS) by implementing the solutions identified as part of the CJS Review. The Department is able to provide regular reports on progress in implementing the Review.
2.8. Programme 3: State Legal Services
2.8.1. 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. Spending on this programme is organised into four sub-programmes, namely State Law Advisors; Litigation and Legal Services; Legislative Development and Law Reform; and Master of the High Court.
2.8.2. The programme receives R570 million for 2009/10, which comprises 4.8% of the Vote. Within the programme, the Master of the High Court sub-programme receives 51% of the overall programme allocation. The DG noted that he expects increased litigation against government and that it may be necessary for the Department to reassess the allocation to this programme in future.
2.8.3. Key strategic objectives for this programme include:
· Researching and developing legislation to transform justice, state and society as well promote access to justice. (The Department plans to submit 11 research publications for consideration and approval, as well as introduce 12 Bills and subordinate legislative instruments).
· Developing programmes giving effect to the Constitution. This entails developing programmes aimed at promoting PAJA, PAIA and PERPUDA, as well as promoting awareness of the rights contained in the Constitution.
· Assisting and enhancing collaboration with the Chapter 9 institutions.
· Strengthening participative democracy by strengthening the role of civil society in promoting a human rights culture.
· Reduction of state liability by entering into service level agreements with client departments and reducing reliance on private legal services. The DG mentioned that there is draft legislation to address the Constitutional Court judgment in Dingaan Hendrik Nyathi v Member of the Executive Council for the Department of Health, Gauteng and 2 others.
· Providing legal advisory services to government.
· Administering deceased and insolvent estates. Specific targets are to provide beneficiaries of the Guardian’s Fund with access to their funds within 60 days of application; as well as completing registered deceased estates worth less than R125 000 within 4 months. The target for completing estates worth more than R125 000 is set at 12 months.
· Co-ordinating and implementing the TRC recommendations.
2.9. Programme 4: National Prosecuting Authority
2.9.1. The Acting National Director of Public Prosecutions, Adv M Mpshe, provided an overview of the NPA’s Strategic Plan 2009-2012.
2.9.2. 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.
2.9.3. Adv Mpshe highlighted that the NPA has recently adopted the following values informing its work: Integrity, accountability; service excellence; professionalism and credibility.
2.9.4. The National Prosecuting Authority (NPA) programme receives R2.5 billion for 2009/10. This is 12.1% of the Vote.
2.9.5. The challenge of filling vacancies was mentioned. The vacancy rate is 22%. This affects achieving the target of employing two prosecutors for each court. While the NPA is able to bring people in at the lowest level through its aspirant prosecutor programme, it struggles to recruit more external candidates at a senior level, although the hope is that the OSD will make a difference, allowing the NPA to target practicing legal professionals. However, there is a shortage of funds to implement the OSD, and the NPA will need to approach National Treasury to request an additional allocation.
2.9.6. A related challenge is that the cost for each employee within the NPA far exceeds the NPA’s budget for compensation of employees.
2.9.7. The shortage of office accommodation for prosecutors was once again highlighted.
2.10. Programme 5: Auxiliary and Associated Services
2.10.1. 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.
2.10.2. This programme receives R1.7 billion in 2009/10. As has been the case in past financial years, the Legal Aid Board sub-programme dominates expenditure, receiving 50% of the allocation to the programme. The next biggest sub-programme is Justice Modernisation, which receives 22% of the overall programme allocation.
3. Overview of Department’s Budget
3.1. The main appropriation to the Department increases from R8.5 billion in the 2008/09 financial year to R9.6 billion in 2009/10. This amount does not include a direct charge against the National Revenue Fund of R1.8 billion for judges and magistrates’ salaries, which brings the main appropriation for 2009/10 to R11.3 billion.
3.2. The DG provided an overview of key financial aspects of the budget:
· In 2008/09, the Department spent R8.4 billion or 99% 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”.
· Over the MTEF, the Department receives new allocations to its baseline of R530.1 million in 2009/10; R684.3 million in 2010/11; and R812.7 million in 2011/12.
3.3. The following achievements relating to the Department’s financial management in 2008/09 were highlighted:
· Expenditure has increased from 92.7% in 2006/07 to 99% in 2008/09.
· Within the year, spending has improved and the March spending as a percentage of total spending has decreased from 16% in previous years to 8.6% in 2008/09.
· The Department was able to absorb Occupational Specific Dispensation (OSD) expenditure of R280 million within its baseline through reprioritization and cost curtailment. The DG commented that a separate allocation for implementing the OSD should be made available, and that the Department is keen to engage further with the Committee on this.
· Early reprioritization of funds funded the OSD (R280 million), guarding services (R20 million), Cash-in-Transit (R20 million), Masters Office (R38 million) and the opening of new courts (at Tiyani and Northam).
· Efficiency gains have been used to fund internships, learning and development and recruitment; library services in various provinces and the Virtual Library; IT; Constitutional development programmes; Language services; Risk management (Cash-in transit, guarding services and security); enhancing financial capacity in the regions; implementation of the Children’s Act and Criminal Law (Sexual Offences) Amendment Act, including the appointment of intermediaries and children’s court clerks.
3.4. The Department expects the following spending pressures in the medium term:
· The need for additional office accommodation and court infrastructure.
· At present, the Department is funding new courts without additional allocations for personnel and operational expenditure.
· Regions also need additional capacity in the form of more personnel, particularly court (interpreters), finance and supply chain management personnel.
· Implementation of the OSD for legally qualified personnel.
· Additional investment in IT infrastructure.
· The Department plans to replace 46 of the 230 branch courts to provide full court services by 2010/11 to increase access to justice services especially in townships and rural areas.
· The Department is also promoting increased multilingualism in the courts.
· The implementation of new legislation requires funding (Civil Jurisdiction of Regional Courts Act; Child Justice and Children’s Act; Traditional Courts Bill; Superior Court Bill).
· 127 justice service delivery points need to be secured by putting in place the necessary infrastructure. Security for personnel, records and assets also need enhancing.
· The implementation of the Review of the Criminal Justice system.
· Increased capacity to provide legal assistance to government to reduce state liability, and to reduce reliance on private legal services from 70% to 30% by 2010/11.
3.5. The DG highlighted the number of vacancies of magistrates, judges and prosecutors as a particular challenge. The need for additional court infrastructure and accommodation for prosecutors was also identified as a key problem that might require a separate/additional allocation.
3.6. The DG drew attention to an amount of R200 million which has been earmarked for the reduction of the criminal case backlog.
4. Committee’s Response
4.1. As mentioned previously, the Committee was unable to engage fully with all that was presented to it at the briefing because of time pressures. We believe that continuing interaction between the Committee and the Department in the form of quarterly meetings will allow for more rigorous and forward-thinking dealings. The Committee also welcomes the Department’s undertaking to make available written responses to all the issues that the previous Committee had raised in its 2008/09 Budget report, as well as make available to it the quarterly performance reports that it now produces routinely. These, we believe, will be of great assistance.
4.2. It is essential for the Committee to have the input of Chapter 9 institutions and the other institutions listed under the Auxiliary and Associated Services programme on their budgets and strategic plans. 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 2009/10. The Committee intends to engage with each of these institutions on their respective plans for 2009/10 (and beyond) as soon as possible.
4.3. It is a particular concern that the Committee did not hear from the Legal Aid Board regarding its budget and plans, given the importance of the role it plays in the criminal justice system. As mentioned in 4.2. above, the Committee will interact with the Legal Aid Board on its Strategic Plan and Budget.
4.4. The Committee is concerned at matters that the Auditor-General raised. In 2007/08, the Department received a qualified audit opinion for 2007/08, while the NPA received a disclaimer. The Committee is pleased that work is being done to address these problems, some of which are raised year after year. The Committee looks forward to receiving a report from the Department on progress made, and will continue to monitor this routinely. Similarly, the Committee will closely monitor the NPA’s progress in addressing the AG’s concerns.
4.5. The Committee is pleased at the improvement in the Department’s financial planning and management reported in 3.3 above. In particular, the Committee is very pleased to hear of the Department’s progress in addressing the problem of its under-expenditure, as well as its use of efficiency gains and reprioritised funds. However, there needs also to be value in the money spent. This can only be measured against clearly defined and measurable outputs and outcomes, as set out in the Strategic Plan and Business Plan. While its objectives are laudable, the Committee wishes to understand better how the Department intends to go about reaching its goals, and intends to engage more closely with the Department on the details of its Strategic and Business Plans at the next quarterly meeting.
4.6. While it acknowledges that there has been some progress in addressing the problem of vacancies, the Committee remains extremely concerned at the vacancy rates in both the Department and the NPA. The vacancies in the ranks of magistrates, judges and prosecutors are a severe problem. It is also particularly worrying that so many of the NPA’s top management are appointed in an acting capacity, or fill two positions. Given the seriousness of the problem, and its potential to undermine the ability to deliver justice services, the Committee does not accept the explanation given for the ongoing difficulties experienced in filling vacancies. The Committee intends, however, to pursue this matter with both the Department and the NPA.
4.7. The Committee is concerned that the construction of courts is so grossly underfunded, as the construction of more courts and the transformation of branch courts to full courts are important for the achievement of the Departments high-level goals. While there appears to have been some progress in building a High Court in Limpopo, the Committee does not accept the Department’s explanation of its inability to secure a suitable location for a High Court in Mpumalanga. The Committee 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.
4.8. The issue of office accommodation is an ongoing problem for the Department and the NPA. The Committee intends to pay close attention to this matter in future. Although the Committee was given an explanation regarding the situation at the Innes Chambers building, it was not entirely clear to the Committee how this situation came about. It was also not clear to the Committee what is being done to address the problem. The Committee has requested that the NPA provide it with a detailed report on this matter.
4.9. The Committee is very pleased to hear of the many initiatives aimed at modernising the Department’s systems. In particular, the transition from a manual to an electronic system in the Office of the Master of the High Court is extremely welcome, although the Committee has received complaints from the public regarding this Office. The Committee accepts that there are bound to be problems initially as the system is rolled out, but requests quarterly reports on progress made.
4.10. The Committee is very keen to engage further with the Department on the progress made on the Criminal Justice System Review. It also welcomes the proposed Review of Civil Justice System, and looks forward to hearing in more detail from the Department on this.
4.11. The Committee is concerned that a lack of budget has hindered the Department in addressing inadequate security at our courts. The Committee 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.
4.12. The Committee notes that, if approved, the Regulations before Cabinet will allow for the release of funds from the President’s Fund for community reparations.
4.13. The Committee questioned what is to happen to the allocation to the DSO. While it understands the principle that ‘the funds will follow the function’, it nevertheless requests that the Department and NPA keep it informed.
5.1. The Committee thanks the Director General, Adv M Simelane, and the (Acting) National Director of Public Prosecutions, Adv M Mpshe, and all those who appeared before the Committee for the Budget briefings for their co-operation.
Report to be considered
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