ATC121031: The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Constitutional Development, dated 30 October 2012

Justice and Correctional Services

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Constitutional Development, dated 30 October 2012

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Constitutional Development, dated 30 October 2012

The Portfolio Committee on Justice and Constitutional Development, 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, Legal Aid South Africa , Special Investigating Unit, South African Human Rights Commission and Public Protector, reports as follows:

1. Introduction

1.1. The Committee oversees the activities of the Department of Justice and Constitutional Development and a number of other institutions, all of which receive their allocation under the Justice and Constitutional Development Vote. These other institutions, which are either statutorily or constitutionally independent, include the National Prosecuting Authority (NPA); Legal Aid South Africa ; Special Investigating Unit (SIU); South African Human Rights Commission (SAHRC) and Public Protector (PP).

1.2. Briefly , the core functions of the Department, NPA, LASA, SIU, SAHRC and PP are as follows:

  • Department of Justice and Constitutional Development: The Department’s core function relates to the management of the criminal and civil justice systems. It is also responsible for several activities that are not necessarily related to the management of criminal and civil justice system, for example, the provision of legal services to government, the management of funding for political parties and the reparations policy flowing from the Truth and Reconciliation Commission (TRC) process.
  • National Prosecuting Authority (NPA): The NPA institutes criminal proceedings on behalf of the State.
  • Legal Aid South Africa provides independent legal representation to the poor and vulnerable at State expense. Although the main thrust of its work is to provide legal representation to criminal accused, more recently LASA has begun to expand its services to provide representation in civil matters.
  • Special Investigating Unit (SIU): The SIU recovers and prevents financial losses to the state that is due to acts of corruption, fraud and maladministration; and can assist departments with systemic improvements that will improve service delivery. The SIU has civil litigation powers to correct any wrongdoing it uncovers in its investigations. Investigations are authorised by Presidential proclamation.
  • South African Human Rights Commission (SAHRC): The Commission’s mandate is extremely broad, encompassing almost every aspect of civil, political, economic and political rights. It must promote respect for human rights; promote the protection, development and attainment of human rights; and monitor how well human rights are observed. The Constitution also provides that each year the Commission must require relevant organs of state to provide it with information on measures taken towards the realisation of the socio-economic rights contained in the Constitution. The Commission has specific obligations in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Promotion of Access to Information Act 2 of 2000.
  • Public Protector: The Office of the Public Protector (OPP) was established to ensure government’s accountability and to provide remedies for maladministration and abuse of authority. The Public Protector is empowered to investigate, report on, and suggest remedial action for a wide range of wrongdoings in the public administration.

1.3. Each year, as part of its oversight function, the Committee considers and reports on the Department of Justice and Constitutional Development’s annual report, as well as those of the other institutions referred to it.

1.4. The Money Bills Procedures and Related Matters Amendment Act (Act 9 of 2009) sets out the process that allows Parliament to make recommendations to the Minister of Finance to amend the budget of a national department. In October of each year, portfolio committees must 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; and make recommendations on forward funding allocations. The BRRR are also source documents for the Standing Committee on Finance when it makes recommendations to the House on the Medium-Term Budget Policy Statement (MTBPS). The annual review and analysis of performance forms part of this process.

1.5. This is the third year that the Committee is undertaking the BRRR process. The Committee engaged with the Justice Department, NPA, Legal Aid South Africa, SIU, SAHRC and PP and believes that the discussions were robust during which it was briefed on the annual performance and spending for 2011/12. The meetings also addressed additional funding needs for 2013 and over the medium term.

1.6. The briefings took place over a two-week period from 9 – 19 October 2012. The Committee also met with the Auditor-General on the audit outcomes on 16 October 2012. Copies of the presentations are available from the committee secretary.

1.7. The Committee remains firmly of the view, which it has expressed in previous reports that it is not enough to engage on performance annually: monitoring needs to be an ongoing process. However, this year the Committee’s legislative workload precluded it from meeting as regularly as it had intended with the Department and other institutions to ascertain their performance against predetermined objectives, as well as related expenditure. The Committee has already considered and reported in detail on the respective strategic plans and budget proposals of the Justice Department, NPA, Legal Aid South Africa, SIU, SAHRC and PP for 2012/13. During both that process and that of the BRRR 2011, the Committee made extensive reporting requests on specific issues which it had identified as requiring further monitoring. The Department and other institutions have provided substantive responses, which form part of this report. In addition, expenditure for the Vote has been monitored.

1.8. This Report comprises five parts:

  • Part 1 provides:

o An overview of the allocation to the Justice and Constitutional Development Vote for the 2010/11 2011/12, 2012/13, 2013/14 and 2014/15 financial years.

o A discussion of expenditure patterns for 2011/12 and the 1 st quarter 2012/13.

o An overview of the reported additional financial needs for the MTEF.

o A summary of key issues raised by the Auditor-General relating to the audit outcome for the Department’s financial statements, as well as those of the relevant institutions, for 2011/12.

  • Part 2 gives an overview of the Department’s strategic and operational environment.
  • Part 3 gives selected performance information, as reported to the Committee for each programme for 2011/12.
  • Part 4 contains the Committee’s observations and recommendations.
  • Part 5 contains a summary of the Committee’s requests for additional information and its recommendations relating to the requests for additional funding for the medium term expenditure period.

Part 1

2. Justice and Constitutional Development Vote 2011/12: Budget allocation and expenditure

2.1. In 2011/12, the main appropriation for the Justice and Constitutional Development Vote was R11.4 billion, which excluded a direct charge against the National Revenue Fund of R2.1 billion for judges’ and magistrates’ salaries. During the adjustment period, an additional allocation of R168.2 million increased the appropriation for the Vote’s programmes to R11.6 billion. (In 2010/11, the final appropriation to the Vote was 12.6 million).

2.2. The Vote has five programmes:

2.2.1. The Department of Justice and Constitutional Development administers three of the Vote’s five programmes: Administration; Court Services; and State Legal Services. (Together these three programmes were allocated R6.8 billion for 2011/12, which was just less than 58% of the allocation to programmes).

2.2.2. Programme 4: National Prosecuting Authority received an adjusted appropriation of R2.7 billion (approximately 23% of the allocation). As has been the case since 2001, separate financial statements were prepared for the NPA, although the Director-General: Justice and Constitutional Development is the Accounting Officer.

2.2.3. Programme 5: Auxiliary and Related Services includes two state institutions supporting constitutional democracy - the South African Human Rights Commission and Public Protector. Also included under this programme are the Special Investigating Unit and Legal Aid South Africa . This Programme received R2.2 billion for 2011/12 (approximately 19% of the allocation).

2.3. Additions to the baseline for 2011/12 amounted to R329 million, which included R30 million for the Presidential Initiative; R50 million for OSD Phase 2 funding (R45 million was allocated to the NPA and R5 million to the Department); R249 million for improved conditions of service and R30 million for municipal services. Unfortunately, the baseline was reduced by R114 million and R33.2 million as a consequence of the cancellation of the Third Party Funds Public-Private Partnership and further savings by Cabinet. In the final instance, therefore, additions to the baseline were R249 million.

2.4. Notably, the following amounts were added to the baseline from 2012/13 in response to the Committee’s BRRR recommendations in 2010:

· Accommodation, specifically to build a high court in Mpumalanga at Nelspruit and to address related infrastructure issues, such as maintenance of buildings. The additional amounts allocated are R240 million and R250 million in 2012/13 and 2013/14 respectively.

· Information Communication Technology, specifically to replace obsolete equipment and to expand its network. Additional amounts of R100 million in 2012/13 and R110 million in 2013/14 are allocated for this.

2.5. Unforeseen and unavoidable expenditure (adjustments) in 2011/12: The Vote was adjusted by R168 million during the adjustments period - R60 million was for salary increases; R10 million was for increased investigative capacity for the Public Protector; and R97 million was for technical assistance to the SIU.

2.6. Virements in 2011/12: There were supplementary virements between programmes after the Adjustments’ appropriation :

· An amount of R90.4 million that went unspent on compensation of employees and goods and services in Court Services was shifted to the goods and services budget in the Administration programme.

· An amount of R19.8 million that went unspent on compensation of employees and goods and services in State Legal Services went to the goods and services budget in the Administration programme to fund excess expenditure.

· Increased transfers of R30 million (from the NPA’s budget) and R2.2 million were made to the SIU and International Criminal Court respectively .

2.7. 2011 Budgetary Review and Recommendation Report

2.7.1. In 2011, the Committee recommended that additional funds be set aside over the MTEF for court security, increased capacity at the National Prosecuting Authority, the rollout of Thuthuzela Care Centres and the institutionalisation of donor-funded positions, payment of curator fees, and to provide for the implementation of new legislation.

2.7.2. The Minister of Finance tabled the following response to these recommendations:

· Additional capacity at the NPA : Although funding has been allocated for increased capacity at the NPA in past years, the entity has experienced difficulty in attracting and retaining staff. There is corresponding under-spending on its budget, especially for compensation of employees (even after virements from the compensation of employees budget to other programmes).

· Rollout of Thuthuzela Care Centres and institutionalisation of donor-funded positions . Going forward, additional funding could be considered for this project. However, there is a high vacancy rate within the NPA that could be used to employ those staff on a permanent basis. Notably, National Treasury did not receive a funding request from the NPA for this item.

· Payment of curator fees over the 2012 MTEF : In the 2011/12 financial year, R20 million was allocated to the NPA from the Criminal Assets Recovery Account to deal with challenges relating to financing of curator fees.

· Implementation of legislation relating to vulnerable groups . In the past substantial amounts were allocated for the implementation of legislation that aims to protect the right of vulnerable groups, such as the Criminal Procedure (Sexual Offences and Related Matters) Amendment Act, the Child Justice Act and the Children’s Act.

· Additional capacity at Legal Aid South Africa . Additional funding has been allocated over the MTEF to expand capacity. The importance of expanding Legal Aid South Africa ’s footprint is acknowledged but the National Treasury recommends that Legal Aid South Africa look at the possibility of sharing court space as well. Cost saving measures in 2011/12 could be redirected to improve the information technology infrastructure.

· Additional funding to the SAHRC for their advocacy and access to information mandates. The Committee’s recommendation is noted but the National Treasury is of the view that the restructuring process underway at the SAHRC is likely to realise savings, which could be redirected towards funding thee mandates.

2.8. Spending trends during 2011/12 . Although 99.5% of the allocation to the Vote for 2011/12 was spent, at programme level there are significant variations in spending:

  • Higher than expected spending occurred in Administration (107.2%) and Auxiliary and Associated Services (100.5%). In Administration overspending arose as a result of payments for security services. Although the services were rendered in 2010/11, the outstanding claim was settled in the 2011/12 financial year. In Auxiliary and Associated Services, the overspending is attributed to the SIU’s cash flow problems.
  • Court Services (96.8%) and State Legal Services (97.2%) both under-spent. Underspending for both these programmes is attributed to unfilled posts:
    • There were 1438 funded posts that remained unfilled in Court Services at the end of March 2012.
    • In State Legal Services, there were 219 funded posts that remained unfilled.
  • The NPA also under-spent marginally (98.7%). The under-spending is attributed to a deliberate savings on ‘machinery and equipment’ (R30 million) to assist the SIU with cash flow problems.
  • Under the Direct Charge, there was less than expected spending on judges and magistrates salaries (98.6%) attributed to delays in filling vacant magistrate’s positions.

3. Financial performance for 2012/13

3.1. Budget allocation for 2012/13 and over the MTEF

Table 1: Overall programme allocation for the MTEF - 2011/12 – 2014/15

Budget 2011/12– 2014/15

Programme

Medium-term estimates

(R thousand)

2011/12

2012/13

2013/14

2014/15

Administration

1 686258

1762 562

1 853 292

1 962 437

Court Services

4 331 830

5 283 592

5 608 579

5 952 329

State Legal Services

721 387

768 156

806 831

851 841

National Prosecuting Authority

2 651 665

2 815 791

2 964 563

3 145 170

Auxiliary & Associated Services

2 190 059

2 448 506

2 580 696

2 709 389

Total

11 581 199

13 078 607

13 813 961

14 621 166

Direct charge

(Judges and Magistrates’ salaries)

2 104 162

2 401 870

2 575 723

2 730 266

Total

13 685 361

15 480 477

16 389 684

17 351 432

3.1.1. The main appropriation increases from R11.6 billion in 2011/12 to R13.1 billion in 2012/13. This does not include the direct charge for judges and magistrates’ salaries of R2.4 billion. The overall appropriation for 2012/13 is therefore R15.5 billion. However, overall growth for the MTEF is 5.4%, which is below inflation.

3.1.2. An amount of R253 million is added to the Department’s and NPA’s baseline for 2012/13. Additional amounts are for court infrastructure (R100 million) and improved conditions of service (R167.6 million).The Department, however, has made R14.4 million available to LASA from its baseline for carry through costs of the Children’s Act and Child Justice Act.

3.1.3. A cumulative amount of R152.1 million is allocated to the independent bodies in addition to their baselines. The bulk goes to the SIU and the Public Protector for increased investigative capacity (R100 million and R15 million respectively) and, as mentioned above, to LASA for the carry through costs of the Children’s Act and Child Justice Act (R14.4 million). The remainder is for improved conditions of service.

3.1.4. A total amount of R41 million is set aside for priority projects in 2012/13. Specifically, R16 million is for the Commission of Enquiry: Strategic Defence Procurement Package; R2.5 for the Assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on South African law and jurisprudence; and R22.4 million is for the Transformation of State Legal Services.

3.2. Spending for the 1st Quarter 2012/13

3.2.1. Actual spending in the Administration programme is greater than expected and is attributed to payment of invoices from previous years for security services that were paid in the first quarter. Underspending occurred in the Management subprogramme (at 21.3%) because of vacancies for senior managers.

3.2.2. Overall, there is underspending for the Court Services programme at 19.9%. There was higher than expected spending for the SCA (at 32%), High Courts (at 29%) and Specialised Courts (at 31%) subprogrammes attributed to travel and subsistence for judges. Underspending occurred in the Constitutional Court, Government Motor Transport and Facilities Management subprogrammes because of delays in procuring vehicles. However, there is also less than expected spending under the Lower Courts subprogramme (at 21%).

3.2.3. Overall there was slightly less than expected spending in State Legal Services at 22.9% because of delays in receiving legal costs claims from private law firms.

3.2.4. For the most part, actual spending for Administration, Court Services and State Legal Services was far less than projected in terms of economic classification, including ‘compensation of employees’ at 22.4% (because of non-filling of vacant posts). Under payments for capital assets, actual spending for ‘Buildings and fixed structures’ is at 12.2% because of delays on receiving claims from the Department of Public Works.

3.2.5. Spending under the National Prosecuting Authority programme was largely on track. There was higher than expected spending under the Witness Protection subprogramme (at 25.9%) because of lease of vehicles for witness transportation; and the AFU subprogramme (at 29%) attributed to the appointment of two senior managers and consultancy fees. Under Goods and Services, spending was at 25.2% because of the Imperial Court settlement.

3.2.6. Although spending was largely on track for Auxiliary and Associated Services, there was higher than expected spending for the SIU (at 34.8%) attributed to non-renewal of existing contracts and non-invoicing of clients for work done as a result of legal opinion preventing the SIU from charging its clients. There was also less than expected spending under Justice Modernisation (at 13.9%) attributed to delays in receiving claims from JCPS Cluster departments.

3.3. Reported spending pressures : According to the Department, spending pressures have affected the following areas adversely:

  • Escalating security costs in service points and offices. The Department continues to identify crime against staff and public at service points and offices to be a risk. Despite budget cuts it intends to improve safety and security. In 2011/12, the Department was able to complete 50 security infrastructure projects in courts that it prioritised after a threat and risk assessment. Over the course of the next two years, the Department intends to stretch its resources to rollout security systems to 70 additional courts. (Notably, the Committee recommended in its Budgetary review and recommendation report (BRRR) that the Department receive an additional amount of R319 million for improved security for courts and justice service points. This amount was not made available as substantial amounts had been allocated in past MTEFs to improve security at courts and, in addition, the Department did not include a request in its 2011 MTEF submission).
  • Increases in rental costs and municipal service rates exceed the official inflation rate.
  • Increasing facilities to improve access to justice. A major challenge is to address historical imbalances in terms of court infrastructure and is further complicated by factors such as the escalation of infrastructure costs above inflation impacting on cash flows for the building of new courts; balancing the needs of new courts with the maintenance and repair of existing courts; using the infrastructure budget for additional accommodation and growth in the establishment and new areas of services. (The Committee recommended in the 2011 BRRR that the Department be granted R224 million for accommodation. National Treasury responded that substantial funding had been recommended for the construction of new courts).
  • Infrastructure support to other stakeholders. Spending pressures include increasing the establishment of the lower courts and providing judicial officers with tools of trade.
  • The Department has identified investment in information technology as a key enabler. It has been allocated R100 million towards ICT infrastructure for 2012/13. Part of this will be used for the Business Continuity Programme. Additional budget is needed for software development and implementation of IT systems.
  • Increased capacity. This related to costs for the expansion of support personnel establishment in the courts (interpreters, finance and supply change management personnel), as well as staff performing quasi-judicial functions (default judgements, court orders, warrants of execution, etc.).
  • The implementation costs of proposed and new legislation

4. Financial needs for 2013/14 and the MTEF

4.1. The 2013 MTEF cycle, as directed and regulated by the National Treasury, does not provide for any requests for additions to the baseline but instead directs the implementation of baseline reductions of 1% (or R163.9 million) in 2013/14, 2% (R347 million) in 2014/15 and 3% (R544.5 million) in 2015/16. Over the MTEF, the Vote’s budget is reduced by R1 billion. The Department, however, argues that there is little manoeuvrability within the budget as the main cost driver is personnel. Any cuts will need to be made on operations, which may negatively impact on service delivery.

4.2. T he Department reports the following critical funding priorities over the medium term:

4.2.1 The appointment of more judges and magistrates requires additional court administration, prosecution services and legal aid capacity consistent with the capacity increases in magistracy and judiciary. If the appointment of new judges and magistrates are staggered over a three-year period, at fifty new appointments a year, the Department has calculated that it will require R200 million in 2013/14; R420 million in 2014/15 and R660 million in 2015/16 to address additional capacity needs.

4.2.2 Start-up and operational cost funding for new lower courts funded through investment in Capital Works programme (Tsakane, Kathlehong, Kagiso and Ntuzuma, etc.) A finalised court building merely provides the structure and requires a large input of start-up costs, which relate to furnishing and equipping of the court building (IT, furniture, security and inventory). There are also costs related to the employment of judges/magistrates, prosecutors, legal aid practitioners and administrative staff for salaries and operational costs (the average magistrates’ court, for example, has four magistrates, 26 staff members, 8 prosecutors and 4 legal aid practitioners) In the past twelve months, the Department has opened three courts at Tsakane, Palm Ridge and Galesewhe; and is about to commission another two magistrates courts at Ntuzuma and Kagiso. The additional funds required are R91.5 million in 2013/14; R95 million in 2014/15 and R100 million in 2015/16.

4.2.3 Funding shortfall on municipal rates, taxes and leased accommodation . In the past four to five years, the budget for leasehold expenditure has grown on average by 5.5% per annum, while actual expenditure charges have escalated by more than 8% per annum. In real terms, the shortfall on the budget has increased from R31.7 million in 2009/10 to more than R185.7 million in 2012/13. It is projected that the shortfall will increase to around R242 million by 2014/15. The Department is no longer able to absorb the shortfall within its baseline without compromising service delivery. Similarly for rates and taxes, all municipalities have increased their property taxes at a rate that is higher than inflation. From 2009/10 to 2012/13, the shortfall between the allocation and actual accounts has grown 172% from R9.8 million to R58.9 million. If the current trend continues, the deficit will be R102.9 million by 2015/16. The Department, therefore, requests the following additional amounts for municipal rates and taxes and leased accommodation: R250 million in 2013/14; R293.3 million in 2014/15 and R345 million in 2015/16.

4.2.4 Critical baseline adjustments for security services. In recent years, it has become vital for the Department to secure its assets, judicial officers, prosecutors, as well as court records. Through reprioritisation of its budget, the Department has increased the budget for security services by 12% over an eight -year period from 2008/09 to 2015/16. This reprioritisation has, however, adversely affected service delivery areas in the Department. The cost of guarding services has grown exponentially. (Notably, the latest information indicates that the Department requires a total of 5896 security officers to cover key areas of the Department, including the prosecutions services and their National Office). Also, the general infrastructure costs have escalated. Limited funds have led to some of the security projects planned being reduced. The National Security Infrastructure project, which was meant to reduce reliance on external service providers and build sustainable capacity in the Department, was initially intended to cover 127 courts in phase 1 of a 3 to 4-phase approach. Projected expenditure patterns indicate that only 90-98 sites can be covered. In addition, finalising the plan remains a challenge and this affects preventative maintenance of security equipment. The Department has requested that the following amounts be allocated for security: R361.5, R399.2 and R441.4 million for 2013/14, 2014/15, 2015/16 respectively.

4.3. The NPA reports the following additional funding needs for the MTEF:

Table 2: NPA - Additional funding needs for the MTEF

(R’000)

2013/14

2014/15

2015/16

Total

Funding of vacant posts

120 000

306 000

328 950

754 950

Job creation

45 954

48 358

50 888

145 200

Labour Court judgment for OSD implementation

200 000

42 400

44 944

287 344

AFU- curator fees and increase in capacity

41 270

43 672

46 214

131 156

Institutionalisation of donor funded positions with TCCs

31 727

33 356

35 022

100 105

Increase in SCCU capacity to achieve JCPS putput 3 and 5

3 505

3 715

3 937

11 157

Accountability status of the NPA

200 000

50,000

65 000

315 000

OWP- increase in capacity and acquisition of covert armoured vehicles

112 508

119 132

125 815

357 456

Security and risk business unit- purchasing of capital and security equipment

5 000

6 000

7 000

18 000

Total

759 964

652 633

707 771

2 120 368

4.4. Legal Aid South Africa reports the following additional funding needs for the MTEF

Table 3: Legal Aid South Africa - Additional funding needs for the MTEF

Description

2013/14 (R’000)

2014/15 (R’000)

2015/16

MTEF (R’000)

Increase in practitioner per court ratio (153 posts at District Courts, Regional Courts and High Courts to increase coverage to 100%, 110% and 125% respectively)

59 193.3

62 744.9

70 509.6

188 447.8

Increased civil capacity (40 new posts)

18 832.6

19 962.6

21 160.3

59 955.5

Expansion of the national footprint

33 600

28 620

32 502.4

92 557.2

IT infrastructure (upgrading of)

7 600

2 100

2 166

11 866

Total

119 225.9

113 427.5

120 173.1

352 826.5

4.5. The SIU made no requests for additional funding for the medium term.

4.6. The South African Human Rights Commission reports the following additional funding requirements for 2013/14 - 2015/16:

Table 4: SAHRC - Additional funding needs for the MTEF

Budget Item

(R’000)

2013/14

2014/15

2015/16

Legal Services

Legal services human resources capacity for complaints handling

R12. 3

R1.14

R1.14

Internal capacity building of legal practitioners

R1.5

R1.75

R1.75

Procurement of Experienced Legal Expertise for litigation of complaints

R1.5

R2.18

R2.18

Revamping Legal Case Management System

R2.13

R1.12

R1.12

Setting-up a call centre for complaints processing

R1.7

R1.84

R1.84

Human Rights Advocacy

Developing Advocacy and Education capacity and materials

R1.6

R1.9

R1.9

Research

Research reports, namely ESR, Equality and Focus Areas

R1.95

R2.14

R2.14

Promotion of access to information

Monitoring, compliance and advocacy of PAIA

R6,7

R2.7

R2.7

IT Infrastructure

R3.43

R1.7

R1.7

Total

R32,81

R16. 4

R16.4*

* The budget will be reduced as a result of savings in rental and related costs

4.6.1. In addition, the following items were identified as requiring additional funding during the BRRR process:

  • Commissioner’s travel – R2.21 million for 2013/14; R2.43 million for 2014/14 and R2.67 million for 2015/16.
  • Chairing the National Human Rights Institutions International Co-ordinating Committee – R2.33 million annually.

4.7. The Public Protector reports the additional funding needs for the MTEF:

Table 5: PP - Additional funding needs for the MTEF

Budget Item

(R’000)

2013/14

2014/15

2015/16

Systemic investigations

16 000

25 000

30 000

Realignment of legal professionals to the OSD

8 000

8 500

9 000

Investigator Trainee programme

3 600

7 200

7 200

Call centre

5 000

2 000

1 200

Additional regional offices

1 500

1 900

Mobile office

3 600

1 000

1 800

Automation and re-engineering of electronic systems

20 000

10 000

4 000

Going concern

5 300

Cost of living at 7%

1 620

1 733

1 911

Strategic alignment project

1 200

1 400

1 700

TOTAL

64 320

58 333

58 711

5. Audit outcome for 2011/12

5.1. The Department received a qualified audit outcome for 2010/11 as for previous years. Notably, the Department cleared the prior years’ audit qualifications relating to Human Resource Management, Assets and Irregular Expenditure: the remaining qualification relates to Third Party Funds (TPF). The Auditor-General reports that the qualification matter of the Third Party Funds is mainly due to inadequacy of the systems to ensure proper controls and financial reporting. The JDAS system in place for reporting on transactions in the TPF environment is inadequate to prove reliable information for ensuring accuracy of financial reporting. The TPF audit for 2011/12 has not been conducted as the financial statements for that year have not yet been submitted.

5.2. Other key other matters highlighted are non compliance, supply chain management and material misstatements in the Annual Financial Statements.

5.3. R epeated areas of concern in financial management and governance can be summarised as follows:

· Failure to achieve planned performance targets.

· Material misstatements in the annual performance report.

· Failure to follow prescribed financial reporting framework.

· Proper asset control not in place.

· Failure to prevent irregular expenditure (R223 million where procurement and tender procedures were not followed; R2.1 in fruitless and wasteful expenditure).

· Failure to pay invoices within 30 days (accruals of R448 million).

· Failure to obtain price quotations (below R500000).

· Failure to invite competitive bids (above R500000).

· Revenue management not timely.

· Leadership inadequate in respect of the TPF; monitoring performance information and addressing audit findings.

· Financial and performance management lacking; poor record keeping; no proper filing system; failure to prepare regular and accurate reports and insufficient internal controls.

· Audit Action plans are not being implemented properly (for instance although the Department developed a plan to address internal and external audit findings adherence to the plan was not monitored by appropriate levels of management).

5.4. An unqualified audit outcome was achieved for both Guardians Fund and the Criminal Assets Recovery Account (CARA).

5.5. To clear the qualification on the TPF, the Department reports that it intends to address risk areas identified at the conclusion of the baseline and historical financial reporting Annual Financial Statements for 2009/10 and 2010/11 respectively. These are opening balances, supporting document management and follow-up and management of shortages and losses. Other key initiatives include finalisation of the 2011/12 AFS, as well as planning and concluding the 2012/13 AFS; finalisation of the future operating model for TPF; and tabling of legislation to address the legal status of TPF AFS.

5.6. The Department reported the following key initiatives to improve the audit outcome in the 2012/13 financial year:

· Establishment of a Compliance Unit and development of a compliance policy.

· Implementation of a national audit action plan.

· Debriefing workshops for executive management, regional heads and regional finance directors.

· Comprehensive audit action plans, supplemented by regional audit action plans on identified audit risk areas.

· Establishment of internal control component for expenditure management and monitoring, adherence to financial prescripts and reporting.

· Additional human resource capacity in supply chain management and asset management.

· Task teams deployed in regions for training and technical guidance.

· Enhancing departmental policies and prescripts – especially three quotes, delegations and tax compliance of service providers.

· Monthly progress reporting to Executive management on status of implementation of approved audit action plans.

· Quarterly financial statements preparation, which are quality reviewed by the senior manager in financial reporting services. Exceptions are investigated and followed through.

· Periodic budget and expenditure reviews to ensure expenditure within the appropriation and effective management of accruals and commitments.

Part 2

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

6.1. Outcomes-based approach to service delivery

In January 2010, Government adopted an outcomes-based approach to performance. The Justice Department leads the Justice Crime Prevention and Security (JCPS) Cluster, which is responsible for the outcome ensuring that ‘All People in South Africa are and feel safe’. Specific outputs and measures have been identified for the JCPS cluster, and focus largely on measures to combat crime and corruption.

The JCPS Cluster is addressing blockages identified in the Criminal Justice Review, implementing the recommendations that form part of the Seven-point transformation plan. Most of these elements have been incorporated in the Cluster’s service delivery agreements. In addition, the Cluster has focused on broadening access to justice for all, improved efficiency in courts and on combating violence and crimes against the vulnerable.

6.2. Overview of (revised) Strategic Plan 2011-2016

6.2.1. The Department revised its strategic plan 2011-2016 to comply with the National Treasury Framework for Strategic Plans and Annual Performance Plans, which focuses on outcomes-based planning.

6.2.2. The Department retained the following four strategic goals:

  • Goal 1: To increase the Department’s accountability, effectiveness and efficiency. (Improved compliance with legal and good practice requirements in respect of governance across all branches and structures towards an unqualified audit.)
  • Goal 2: To improve the effectiveness and efficiency in the delivery of justice service.(Courts and justice service points are supported to improve finalisation rates, efficiencies and backlogs in respect of all criminal, civil and family matters.)
  • Goal 3: To transform legal services to protect and advance the interests of government and citizens and to promote constitutional development. (The exposure of government to legal risk is reduced, citizens have access to quality guardian and probate services, the state has access to legal advice and services and constitutional development is promoted.)
  • Goal 4: To effectively coordinate the JPCS Cluster in the delivery of Outcome 3.

6.2.3. There are seventeen strategic objectives (aligned to 72 performance indicators) that give effect to these goals and relate to the three programmes that the Department is directly responsible for administering, as well as its obligations to the JCPS Cluster relating to Outcome 3.

6.2.4. The strategic plan refers to three projects that were prioritised for 2011/12. These are to achieve an unqualified audit outcome in 2012/13; service turnaround in maintenance services; and service turnaround in the Masters’ Branch.

6.2.5. The spending focus over the MTEF period is on reviewing the civil justice system, implementing approved legislation (such as, the Children’s Act, 2005; the Child Justice Act, 2008; and the Sexual Offences Act, 2008). In addition, rolling out the Constitutional Development branch, repositioning the Master of High Court, turning around audit qualifications, Third Party Funds accounting systems, building high courts in Nelspruit and Polokwane and further modernisation of the systems and procedures in the courts are areas on which spending will focus.

6.3. Overview of developments in the organisational and service delivery environments for 2011/12

6.3.1. The following key policy developments informed the organisational and service delivery environments for the year under review:

  • Transformation of State legal Services.
  • Capacitating the Office of Chief Justice (OCJ).
  • Analysis of the judgements of the Constitutional Court and the Supreme Court of Appeal .

6.3.2. There was a strong focus on turning around the Department’s administration to obtain an unqualified audit opinion on the Vote account. Initiatives to do so specifically addressed the qualification on Third Party Funds and the preparation of annual financial statements for the Funds; the putting in place of systems to identify and manage irregular expenditure; and the putting in place of systems to improve performance information.

6.3.3. In addition, the following major issues affected performance in 2011/12:

· The Masters Offices in Pretoria and Pietermaritzburg and the State Attorneys’ Office in Pretoria were relocated to new premises.

· Preparation for the Commission of Inquiry into the Strategic Defence Procurement Packages.

· Delays in appointing key top management (DDG: Corporate Services; CFO; DDG: Constitutional Development) because of insufficient quality of applications received.

· Budget cuts that continue to affect projects.

6.3.4. Services delivered at key service points included:

· South Africa has 13 High Courts and 766 magistrate’s courts.

· In 2011/12, the Department provided support for:

o The management of over 875 000 criminal cases

o More than 100 000 civil cases in the High Courts, Supreme Court of Appeal and Labour and Labour Appeal Courts.

o The finalisation of 141 land claims and 123 constitutional matters

· Initiatives to improve access to justice include:

o Case-flow management (CFM), which is now under the leadership of the Judiciary and has seen improvements. The Chief Justice is personally championing many case flow management initiatives. The CFM forums at regional and local level have begun to work together for improved planning and management purposes. Monitoring and evaluation of court performance has been strengthened and escalated to the highest level with the Chief Justice also being involved.

  • The digitisation of court records is showing good progress and will help improve security, file integrity and alleviate space problems in the courts.

· In 2011/12, the Masters of the High Court had 170 150 deceased estates matters, 9 958 liquidations and insolvencies, 16 376 trusts and 1 277 curatorships enrolled.

Part 3

7. Performance information for each Programme 2011/2012

Department of Justice and Constitutional Development

7.1. Programme 1- Administration

7.1.1. The Administration programme is responsible for the management of the department, and development of policies and strategies for the efficient adminstrion of justice.

7.1.2. Strategic objectives under this programe include increased compliance with prescripts to achieve and sustain an unqualified audit and improved management of fraud and corruption cases.

7.1.3. P rogramme performance. Met or exceeded target in 7 of 19 (37%) of the performance indicators.

Table 6: Administration- Selected targets and actual performance 2011/12

Administration 2011/12

Selected targets

Performance

Percentage completion of activities on the approved Audit Action plan towards an unqualified audit.

NOT ACHIEVED

90.3% of this plan was implemented against the target of 100%.

Completion of key outputs to address the Third Party Fund qualification

NOT ACHIEVED

Only four of the five outputs were completed.

The fifth output was diverted to the 2012/13 and 2014/15 financial years due to the fact that the Department spent more time on producing financial statements.

Percentage of the Audit Action Plan completed by Internal Audit

ACHIEVED

The Department exceeded its target. It completed 82% of the Plan against the target of 80%.

Number of fraud and corruption awareness workshops conducted

NOT ACHIEVED

21 workshops conducted against the target of 30.

Percentage completion of integrity competency of senior management (vetting)

NOT ACHIEVED

Achieved 50% against the target of 65%.

Percentage of courts with case management systems deployed and supported.

NOT ACHIEVED

Actual performance was 55% against the target of 100%.

Risk management activities

NOT ACHIEVED

64% of risk mitigation plans were finalized by December 2011, against the target of 100% by the same period.

Reduce vacancy rate to 7%.

NOT ACHIEVED

The vacancy rate stood at 11.14%, excluding judges and magistrates and 10.52% including judges and magistrates. The overall performance in the reduction of vacancies was impacted on by an unexpected increase in terminations, transfers and promotions to other departments.

Reduction in misconduct and grievance cases

ACHIEVED

With regard to the reduction of grievances, the Department exceeded its target of 50% by 15. It achieved its 65% target in misconduct cases.

Number of outstanding TRC victims give access to the President’s Fund in terms of individual reparations

NOT ACHIEVED

Paid 219 people against the target of 250

7.1.4. Key achievements in 2011/12 include :

· Improved finalisation of new and older forensic investigation cases.

· The distribution of R250 million of CARA funds.

· Targeted completion rates of grievance and misconduct cases were exceeded .

7.1.5. challenges arising during 2011/12

· The Department still has various human resource related challenges, including high vacancies at SMS level. Also, the target for the overall vacancy rate (7%) was not met. Overall vacancies at 31 March 2012 were at 10.52%.

· The inadequate use of IT business solutions remains a source of concern for the Department. Limited training was identified as a major contributor to the poor use of IT systems.

· Vetting of employees has been slow. Only 50% of the 154 senior managers had been vetted against the target of 65%.

· Budgetary constraints created challenges for continuous improvements of safety and security initiatives.

7.2. Programme 2- Court Services

7.2.1. The Court Services programme facilitate the resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts and managing court facilities.

7.2.2. Programme performance: Met or exceeded taget in 7 of 22 (34%) performance indicators.

Table 7: Court services - Selected targets and actual performance 2011/12

Court Services 2011/12

Performance indicator and target

Performance

· Number of key activities for the implementation of the criminal Law (Sexual Offences and related Matters) Amendment Act

NOT ACHIEVED

3 out of 4 activities completed.

· Percentage utilisation of the National Register for Sexual Offenders (NSRO) by the courts (Phase 1)

TARGET ACHIEVED

· Percentage completion of implementation of NSRO (Phase 2)

NOT ACHIEVED

4% against the target of 40%

· Number of additional one-stop child justice centres designated

NOT ACHIEVED

Nil (0) against the target of two.

Number of priority courts improved through the Rehabilitation and Maintenance Programme (RAMP)

NOT ACHIEVED

All RAMP targets were put on hold. No Repair and Maintenance Projects were undertaken during the period under review due to budget being used on pressing capital projects.

· Number of priority courts to which the integrated security system is rolled out

TARGET ACHIEVED

50 against the target of 50.

Number of safety and security incidents

TARGET ACHIEVED

93 against the target of <110

7.2.3. Court services recorded the following key achievements in 2011/12:

· The number of cases on the backlog roll decreased to 34 926 against the target of less than 37 034. From the inception of the backlog reduction intervention in November 2006 until the end of March 2012, 59 232 criminal cases were removed from the regional and district court rolls and processed by these additional backlog courts.

  • Following the roll-out of the ICMS NRSO system, usage for the system reached 70% of all courts reporting relevant offences. The number of cases on the backlog decreased to 34 926 against the target of < 37 034. From the inception of the backlog reduction intervention in November 2006 until the end of March 2012, 59 232 criminal cases were removed from the regional and district court rolls and processed by these additional backlog courts.
  • Case flow management is having a positive impact in the criminal justice system. The number of awaiting trial persons decreased from 53 901 in 2003/04 to 46 188 in 2012. Monitoring and evaluation of court performance has been strengthened. The Chief Justice is personally spearheading many of the case flow management activities.
  • The digitisation of court records is showing good progress and will help improve security, file integrity and alleviate space problems in the courts.
  • The Office of the Chief Family Advocate managed to finalise 32% of family law cases against the target of 33%.

7.2.4. Key challenges arising in 2011/12:

· The workload of the Office of the Chief Family Advocate has increased with the introduction of new legislation. This has resulted in a shortage of staff given the workload.

7.3. Programme 3 - State Legal Services

7.3.1. This programme provides legal and legislative services to government,, supervises the administration of deceased and insolvent estates and the Guardian’s Fund, and prepares and promotes legislation and undertakes research in support of this.

7.3.2. Programme performance: Met or exceeded target in nine of 31 (29%) performance indicators.

Table 4: State Legal Services - Selected targets and actual performance 2011/12

State Legal Services 2011/12

Performance Indicator

Actual Performance

Percentage of large estates administered to a stage where heirs and creditors could receive their dues within 12 months

NOT ACHIEVED

49% against the 95% target.

Percentage of small estates administered to a stage where heirs and creditors could receive their dues within 12 months

TARGET ACHIEVED

95% against the set target of 90%.

Percentage of beneficiaries in receipt of services within 40 days (Guardian’s Fund)

NOT ACHIEVED

82.4% against the target of 90%

Percentage of liquidation cases finalised within 15 months of registration.

NOT ACHIEVED

38% against target of 90%

Reduction of legal costs against the state by target date

NOT ACHIEVED

33% increase against 15% decrease target

Level of compliance with PAIA by the Department

NOT ACHIEVED

18% against the target of 100% compliance (141 requests were granted from a total of 792 received).

7.3.3. Selected achievements for 2011/12 include:

· A total of 259 officials who provide Masters’ services have been trained in service excellence by the Justice College.

· Electronic fund transfers for Guardian’s Funds were implemented in four offices to improve the turnaround time of payments to beneficiaries.

· The department exceeded its target on the percentage of small estates (<R125 000) finalised within 4 months.

· 70.3% of the value of briefs was issued to previously disadvantaged individuals, against the target of 70%. This percentage translates into an amount of R263 739 311 in monetary terms. This is an improvement on the previous year’s performance of 69%.

· The department has improved its recovery of legal costs from other state departments. The balance owing is reducing faster than the amount of current expenses incurred and this is a positive step towards reducing the total amount outstanding.

7.3.4. Key challenges arising during 2011/12

· Performance on cases enrolled- 5 893 cases were enrolled, of which only 1 856 were finalized. There was a decline of 2.1% in the number of cases finalized in comparison to the previous year’s performance.

· Serious underachievement in respect of meeting PAIA targets was a result of the PAIA Unit struggling to cope with the number of requests relating to lost records.

7.4. Programme 4 - National Prosecuting Authority

7.4.1. The National Prosecuting Authority 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. Although the Director-General: Justice Constitutional Development is the accounting officer, the NPA reports separately on its perfomance.

7.4.2. Programme performance:

Table 5: NPA Achievement of selected targets and indicators 2011/12

Indicator

Target 2011/12

Actual 2011/12

Deviation

Number of criminal court cases finalised excluding ADRM

365 087

316 098

-13.4%

Number of criminal court case filalised through ADRM

131 117

132 695

1.2%

Conviction rate: High Courts

87% (1 127)

84.6% (963)

-2.4%

Conviction rate: Regional Courts

74% (29 773)

74.3% (28 665)

0.9%

Conviction rate: District Courts

87% (292 654)

90.8% (251 030)

0.1%

Number of new completed forfeiture cases

310

301

-5.9%

7.4.3. Key achievements for 2011/12 include:

· Lower and high courts maintained a 3.7% positive clearance ration during the year under review. A total of 897 842 new cases were enrolled with 930 932 cases were disposed.

· Regional courts improved their conviction rates in an effort to curb serious crimes.

· Better screening mechanisms resulted in a reduction of 12.2% in the number of cases withdrawn and assisted in the enrolment of trial ready cases.

· The number of cases finalised through ADRM increased from 129 846 in 2010/11 to 132 693 in 2011/12.

· A total of 15 886 cases were finalised by the backlog courts.

· Specialised services to victims of sexual offences were delivered in 30 fully operational Thuthuzela Care Centres (TCCs). The number of fully operational TCCs increased from 27 to 30.

7.4.4. Key challenges identified during 2011/12:

· Lack of accommodation and other resources in lower courts as a result of budget constraints faced by the JCPS cluster.

· The prosecutorial vacancy remains high although it has dropped to 11.4%.

7.5. Programme 5 Auxiliary and Related Services

7.5.1. This programme includes Legal Aid South Africa, the Special Investigating Unit, the South African Human Rights Commission and Public Protector.

7.5.2. Legal Aid South Africa

7.5.2.1. Selected achievements, as reported, include:

  • Successfully completing the third and final year of its 2009-2012 Strategic Plan period and achieving most of the strategic shifts it had set to achieve in that period.
  • Providing access to legal aid to indigent clients, with 682 962 legal and legal advice matters handled.
  • Increasing civil legal aid matters handled by 48% due to increased civil practitioner capacity.
  • Strong financial management and governance were reflected in the eleventh unqualified audit and seventh year with no matters of emphasis. The non-compliance on tax clearance certificates in Judicare matters is being attended to.
  • A peoples-development focus continued as confirmed by Legal Aid South Africa’s successful accreditation for the third year as a Best Employer.
  • A total of 99, 8% of the budget was spent as planned, with no under-expenditure. This has been the expenditure trend for the past seven years.

7.5.2.2. Key challenges arising during 2011/12:

  • Non-compliance on tax clearance certificates in Judicare matters listed in the Auditor General’s Report.
  • Dependence on Candidate Attorneys to render services at district courts negatively impacts on perception of the quality of services rendered and sometimes on service delivery.
  • Insufficient civil capacity to meet increasing demand for civil legal aid services.

7.5.3. Special Investigating Unit

7.5.3.1. The SIU funding model provided for its baseline grant from National Treasury. In addition to the grants from National Treasury, the service-level agreements that SIU entered into with state institutions that required investigation made provision for SIU to charge for the services rendered, thus raising additional revenue. A legal opinion was obtained in 2011 to the effect that the SIU Act did not specifically empower such a model and that the SIU as a creature of statute could not continue with that model. The Unit was able to invoice on a limited basis between September 2011 and June 2012. This challenge has since been overcome by amendments to the Act, which are now enacted.

7.5.3.2. The SIU received an unqualified audit opinion. However, there were matters of emphasis relating to the restatement of corresponding figures and the manner in which the SIU operations were funded.

7.5.3.3. The SIU incurred irregular expenditure as a result of performing functions that were outside its mandate, such as providing training services to GEMS.

7.5.3.4. The SIU exceeded targets in respect of:

7.5.3.5. Evidence prepared: This includes civil litigation (acknowledgement of debt); criminal action; disicplinary action; and other remedial action. Actual achievement was 17 073 against a target of 10 000.

7.5.3.6. Cash (and assets) recovered: Actual achievement was R224 million out of a target of R30 million (this target was substantially exceeded due to seizure of farms in the land affairs investigation).

7.5.3.7. Total recovery (millions): Actual achievement was R408 million out of a target of R260 million. (This consists of savings (R30 million), prevention of future losses (R169 million) and cash (assets) recovered (R224 million).

7.5.3.8. The following challenges were identified in 2011/12:

· Present cash flow challenges are unlikely to be swiftly resolved as invoicing does not translate into immediate payment.

· Compensation of employees will soon be more than the grant received.

7.5.4. South African Human Rights Commission

7.5.4.1. The Commission received a clean audit opinion for 2011/12, with no emphasis of matter.

7.5.4.2. Key achievements as reported by the Commission for 2011/12 include:

· A total of 89% of the Commission’s strategic objectives were achieved (in contrast with 67% in 2010/11 and 52% in 2009/10).

· There were improvements in the finalisation of complaint cases, with 87% of cases finalised compared to 72% in the previous financial year. (Finalised cases include rejected, referred, resolved, and closed cases, as well as once-off enquiries).

7.5.4.3. Key challenges reported for 2011/12 include:

· The North West province finalised the least proportion of its cases. (For the rest, each of the provinces finalised more than 70% of their cases). This is primarily due to ongoing capacity challenges in the North West province and the difficulty in finding suitably qualified candidates to manage legal complaints.

7.5.5. Public Protector

7.5.5.1. The year under review was the first year of implementation of the Public Protector’s new vision: Public Protector 2020 and Strategic Plan 2010-13.

7.5.5.2. The Public Protector’s activities continued to be anchored in the constitutional mandate to investigate, report on and take appropriate remedial action in respect of alleged or suspected improper conduct in all state affairs

7.5.5.3. The Public Protector received an unqualified opinion with emphasis of matter on the following :

· Restatement of corresponding figures.

· Going concern: the Public Protector’s current liabilities exceeded its assets by R11 073 858.

· Significant uncertainties due to lawsuits.

· Performance information. Source documents not available for some of the targets.

· Creditors were not paid within 30 days .

7.5.5.4. The major form of service failure reported continues to be the right to a decision experienced at all levels of government. The r ight to be given reasons for a decision is the second major form of service failure and administrative injustice. The r ight to recourse when standards are not met was a major source of grievances.

7.5.5.5. Key achievements as reported by the Public Protector for 2011/12:

· A total of 16 251 complaints were received or initiated and 14 148 were finalized; 5608 cases were carried over; and 1 709 complaints were out of jurisdiction.

· A total of 52 % of cases were finalised within 1-3 months and 22% cases were finalised within 4-6 months.

· A total of eight systemic investigations were finalised in 2011/12, five cases are on-going.

· A total of ten own initiative investigations were identified: three were finalised, while seven are ongoing.

· A total of 41 reports were published.

· A good governance conference was held in October 2011.

7.5.5.6. Key challenges for 2011/12:

· Investigative capacity remains the main challenge. Additional investigators were appointed and 17 senior Investigator posts are to be advertised. The lack of sufficient investigators impacts on attempts to balance rigor with promptness in the conduct of investigations or implementation of alternative dispute resolution.

· Spec ialisation has mitigated but not solved the challenge of ensuring expeditious high quality investigations.

· Staff retention remains a problem and remuneration is the main reason given in exit interviews.

· Pre-constitution thinking hamstrings investigations and the realisation of justice and accountability through remedial action. .

Part 4

8. Committee’s observations

8.1. The Committee makes a number of observations relating to the performance of the Department, the NPA, Legal Aid South Africa, SIU, PP and SAHRC.

8.2. This is the third year that the Committee is undertaking the Budgetary Review and Recommendation process and believes that sufficient time has elapsed for it to be possible – desirable even - to critically reflect on the process, with a view to identifying refinements. In particular, the Committee has found the time allocated to the process hugely challenging, despite having systems in place to monitor performance and spending throughout the year. Specifically, the conflation of the formal process of evaluating annual performance with consideration of requests for additional funding is problematic. The short space of time between the date for the formal submission of annual reports and the BRRR hearings leaves the Committee with little time for prior critical engagement with the reports and discussion of key focus areas. The process also provides little opportunity to canvas the public’s views on performance, which would be invaluable. The Committee is of the view that, as a first step, consideration should be given to esablishing whether it is feasible to require Departments and institutions to table their annual reports far earlier in the year – the end of August was mooted as a possible date.

Department of Justice and Constitutional Development

Technical issues

8.3. Technically, the Department’s Annual Report for 2011/12 has several shortcomings. As the Committee observed last year, important data relating to court performance, found in previous annual reports, has been omitted. Specifically, court statistics relating to maintenance and domestic violence cases are not reported. In general, coverage of the Departments activities in respect of vulnerable groups in 2011/12 is dismaying. The Department has responsibilities in respect of key pieces of legislation, such as the Domestic Violence Act; Maintenance Act; Sexual Offences Act, Children’s Act, and Child Justice Act. Although separate reports have been tabled regarding impementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Child Justice Act, statistical reporting on key legislation afffecting vulnerable groups is minimal. The Committee is unclear as to why this is so and specifically requests that it is included in future annual reports.

8.4. Once more, the Committee notes inconsistencies in the statistical data presented by the Department and the NPA, which makes it very difficult for the Committee to assess performance. It is unclear why this is so. Discrepancies in the statistics presented by the various JCPS Cluster departments and institutions is, in the Committee view, related to the broader concern that the various Cluster departments are unable to track information throughout the criminal justice system in a seamless fashion, as their key performance indicators and targets are not aligned, and IT systems remain unintegrated.

8.5. There are also some inaccuracies in the report: on page 34, in respect of TRC matters, payments were made to 216 rightful next-of-kin but the table on page 41 reflects that payments were made to 227 rightful next-of-kin; on page 46, the Office of the Family Advocate managed to finalise 32% of family law cases but, on page 50, the Family Advocate’s actual performance is reflected as 31%; and on page 31, R30 million was transferred from CARA funds to the SIU but the CARA financial report on page 162 reflects that R20 million was transferred to the SIU.

Funding proposals

8.6. Budget reductions . The Committee notes the directive to all government departments to reduce baseline allocations by 1% in 2012/13, 2% in 2013/14 and 3% in 2014/15 respectively through ‘savings’. In the case of the Justice Vote, this is a reduction in the baseline of R1 billion over the medium term. Although the Committee is sensitive to the broader context that informs the directive, blind application of the directive, giving insufficient weight to the circumstances in which justice services are rendered, is likely to undermine effective and efficient delivery. Specifically, the main cost driver for the Vote is personnel, which - as observed - leaves little room for trimmings.

As it is, the Auditor-General has ‘flagged’ the financial health of both the Department and the NPA. The Department’s cashflow problems can be seen, for example, in the matter of accruals: in both 2011/12 and 2012/13, the Department deferred paying some creditors beyond 30-days, settling these debts in the next financial year. The Auditor-General reports that the Department would have incurred unauthorised expenditure if it had paid its creditors in the same financial year that the debts arose. The consequences of late payments for the administration of justice can be extremely serious. The Committee heard, for example, how shortage of funds disrupted service delivery in the South Gauteng High Court. Delays in paying the service provider for an off-site document storage project resulted in the service provider being unable to pay storage fees at the warehouse where case records were being housed. The landlord refused access to the records, in turn, leading to delays in the hearing of cases. As the Auditor-General notes these accruals also adversely affect cashflows going forward in a snowball effect.

In addition, although the Committee accepts that there is no deliberate strategy on the part of the Department to leave vacancies unfilled and, indeed, commitments were made to address the high vacancy rate at senior management level and in critical occupations, unspent funds arising from unfilled posts are redirected to operations. In 2011/12, unspent funds in Court Services - largely flowing from vacancies – were shifted to Administration to pay for security costs. But without personnel, the efficient and effective delivery of justice services is likely to be compromised. The vacancy rate, especially at senior management level (almost 20%), is an area of concern. Of course, the Department also requires sufficient funds to ensure that additional staff are adequately accommodated and resourced. The Committee is of the view that the budget cuts are likely to exacerbate the problems that the Department faces in this regard.

The Department informed the Committee of its measures to contain costs. Some of the target areas that the Department has trimmed include reduced travel and subsistence costs; optimal use of resources (sharing printers); use of video conferencing; optimisation of ICT. Other cost containment measures, however, are a concern as they are directly related to approved priorities and service delivery, such as implementation of legislation affecting vulnerable groups; and postponement of Master’s services (service points in Mpumalanga and Guardian’s Fund capability in Johnannesburg).

8.7. Additional capacity. The Committee agrees that the appointment of new judges and magistrates should be matched with additional capacity, specifically more prosecutors and legal aid practitioners, as well administrative staff, if case finalisation rates are to be increased.

8.8. The funds that the Department has requested for additional capacity are substantial - more than R1.2 billion over the medium term expenditure period. The Committee notes that the Department suggested that in light of budget pressures it may be necessary to to re-evaluate the number and/or timeframes for the appointment of judges and magistrates. The Committee is dismayed that both the NPA and LASA have indicated that they are not in a position to appoint additional prosecutors and legal aid practitioners going forward. The NPA told the Committee that it is unable to provide prosecutors for new courts. LASA is, in in fact, looking at having to reduce its legal aid capacity to service the courts and its clients to absorb the proposed budget cuts. It is also unable to service new courts without the necessary budget without impacting on court performance. In the Committee’s view, without provision for additional capacity, the benefits of appointing more judges and magistrates for the administration of justice is likely to be undermined.

8.9. Start up costs for new court infrastucture and the maintenance of court buildings

8.9.1. The Committee notes that a number of new lower courts have been built and several others will be completed soon through investment in Capital Works (Tsakane, Kathlehong, Kagiso and Ntuzuma, etc.). The Department has requested that it be allocated additional funds to cover start-up and operational cost funding for these new lower courts. A finalised court building merely provides the structure and requires a large input of start-up costs, which relate to furnishing and equipping of the court building (IT, furniture, security and inventory). There are also costs related to the employment of judges/magistrates, prosecutors, legal aid practitioners and administrative staff for salaries and operational costs. In short, the directive to focus on infrastructure – in this context, building new courts – must also take into account start-up costs, otherwise the investment in infrastructure is wasted. The additional funds required are R91.5 million in 2013/14; R95 million in 2014/15 and R100 million in 2015/16.

8.9.2. The Committee acknowledges the need for new courts but in light of increased funding pressure believes that going forward it may be prudent to focus more on maintaining the court infrastructure that is already in place (The Committee, in its 2012/13 budget report, recommended the need to strike a balance between maintenance and building new courts). It is aware that changing priorities midstream is not always easily achieved. In addition, although the Department is struggling to spend its CAPEX budget, largely because of delays on the part of DPW, only a limited amount of these unspent funds may be shifted between programmes. The Committee, however, is of the view that if the Department intends to continue with its capital works projects, it must build its own capacity to manage/drive projects of this nature to ensure that projects are delivered on time, within budget, and are of quality. The Committee requests that the Department provide it with a comprehensive written report, by 30 January 2013, on progress made with its capital projects with targets and timeframes; details of challenges experienced; as well as actual expenditure compared to projected expenditure. It also requests that the Department look at conducting an assessment of the impact that new courts have had on the communities they are intended to serve and for access to justice as a whole.

The Committee is told that court buildings are typically old: unless maintained routinely, the state of these building quickly deteriorates to the extent that major work is needed to restore them. In this regard, the Committee finds it questionable that in the year under review no RAMP projects were undertaken (four were scheduled), as funds were diverted to the capital projects. The Committee is also informed that DPW has now discontinued the RAMP project although planned maintenance will still be undertaken. Further, DPW is negotiating for the Department to take over cleaning and gardening services – but with no accompanying transfer of funds! The Committee requests that the Department provide it with a comprehensive written report on progress with regard to planned maintenance of court buildings by 30 January 2013 and be prepared to report on this matter at the next quarterly meeting in February 2013.

8.9.3. The Committee is concerned that in the light of the high expenditure needed to maintain existing courts, that the Minister should give serious consideration to placing a moratorium on the building of new courts, whilst the current pressures on the current budget exists. It is of no use to create more courts if the existing courts cannot administer justice effectively, through the lack of working infrastructure.

8.10. Muncipal rates and taxes. The Department has also requested additional amounts over the medium term to address the difference between the allocation for increases for leases and rates and taxes and actual increases, which are well above inflation). Given the size of the Department’s footprint, above inflation increases have a disproportionately large impact on the Department’s operational costs. The Committee supports the request but notes that the Department has asked National Treasury for a ‘once off payment window’ in which funds from the CAPEX budget can be used to meet the backlog for municipal rates and taxes, which the Committee supports.

8.11. Unfunded mandates. The Committee is concerned at the consequences that unfunded mandates have for the Department’s cashflow, especially those relating to commissions of inquiry. Although the Department is ‘refunded’ later, these commissions do not form part of the Department’s planned activities for the year. The resources required are substantial – the recently appointed commission of inquiry into the tragic incident at or near the areas commonly known as the Marikana mine in Rustenburg, North West province is estimated to require R75 million. These funds are drawn from the Department’s already stretched operational budget. The Committee believes that a process or strategy needs to be found to deal with commissions of inquiry when they arise that will not require the Department to find funds from its operational budget. Alternatively, a special appropriation bill should be tabled.

Audit outcome

8.12. The Committee believes that overall the Department’s performance has improved, although not as much as it would wish for. Despite the recurring qualified audit opinion, the Department’s ongoing efforts to address the underlying causes has led to improvement on the audit outcome. The qualification continues to relate to the adequacy of the Third Party Funds’ financial and control system: last year’s item relating to irregular expenditure no longer appears as a qualification. Still, the Department has had difficulties: the Auditor-General noted that of 72 planned targets, only 20 were achieved (a performance rate of 28%). The Department admitted that performance over the review period has been seriously compromised by the focus on audit issues, with many of the targets set by the Department either partially or not achieved. The Auditor-General observed (in passing) to the Committee that the worst performers in terms of predetermined objectives (the Department, the NPA and the SIU) also experienced the greatest financial pressure. The Committee is unable to comment on this observation but notes it.The Auditor-General also reported problems relating to monitoring, as well as the failure to act swiftly to ensure that targets were met – despite a new performance monitoring system (TROUX), which is consistent with the Department’s admission that the focus has been on addressing the audit qualification.

In addition, the Committee queries whether all the targets that the Department had set for itself in 2011/12 were realistic, as its impression of peformance was far more positive than suggested by the audit outcome. The Committee is aware that, in 2011/12, the Department was still aligning its strategic and annual perfomance plans with the new requirements related to outcomes-based planning. Several indicators were revised in 2012/13. The Committee, however, will monitor actual peformance against predetermined objectives quarterly.

8.13. Management of Third Party Funds .

8.13.1. Although the repeat qualified audit outcome on Third Party Funds is disappointing, the Committee believes that there has been improvement in managing the Third Party Funds. The Department’s strategy has not only focussed on compiling credible baseline financial statements, but also at addressing risk by reducing cash handling at court level, encouraging instead use of EFT as a payment method. This has led to improved service delivery – turnaround times for payments to maintenance beneficiaries have reduced substantially. In addition, capacity has been improved within the TPF Unit, more staff have been appointed at both national regional level and various training initiatives have been undertaken. The Committee was told that annual financial statements have been prepared for 2011/12, but had been held back while waiting for the Auditor-General’s findings on the annual financial statements submitted for 2010/11 (with 2009/10 submitted for comparison). The 2011/12 statements will be submitted for audit shortly.

8.13.2. The Committee is unclear why the legal status of the TPF has not yet been resolved. It notes that the accounting framework for TPF was finalised with the Office of the Accountant General, which it is told is tacit approval to submit TPF annual financial statements separately from the main vote account. The Department has prepared a Bill that addresses the legal status of TPF but the Committee believes that it would be preferable for the Department to redouble its efforts to engage with National Treasury to resolve whether it would be preferable to register the TPF as a trading entity. The Committee requests that the Department inform it of its progress in engaging with National Treasury on this matter within one month of this report being tabled so that, if necessary, it can intervene to facilitate the process.

8.14. On the audit outcome, the Committee supports the Auditor-General’s recommendation that in-year controls are strengthened and that financial statements are prepared montlhy (or at a minimum quarterly) with full disclosure notes. It intends to monitor that this is done. In additon, the Committee the specifically requests that, by 30 January 2013:

· The Director-General provide the Committee with details of the formal commitments made to address the audit findings.

· The Department provide written details of all its audit action plans and reports quarterly on progress made.

· The Department also address the Auditor-General’s recommendation that monthly financial statements are compiled with full disclosure notes and reports to the Committee on this quarterly.

Governance and operational issues

8.15. Vacancies. The Committee notes once more the high vacancy rate, especially at SMS level (20%). The Department reports that it has been unable to make appointments of key top management, including the positions of DDG: Corporate Services; CFO; and DDG: Constitutional Development, because the quality of applications were insufficient. The filling of senior management posts should be prioritised: the Committee does not understand how the Department hopes to argue that it is able to manage its operations with maximum effectiveness and efficiency without managers. These vacancies, in the Committee’s opinion, present a stumbling block to requests for an increased budget allocation, especially as funds from the compensation of employees budget continue to be redirected to cover operational shortfalls. While sympathetic to the challenges that recruitment processes entail, the Committee urges the Department to make its appointments urgently. The Committee requests that the Department report to it, in writing, by 30 January 2013, on progress in filling vacancies at senior management level and in critical areas. Further, the Department should be prepared to continue to report quarterly, in writing, until target vacancy levels are achieved.

8.16. Delayed implementation of legislation and policy priorities. The Department indicated that it may need to reprioritise the implementation of approved legislation and polciy priorities, including the the National Register for Sexual Offenders esablished in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Child Justice Act, Victim’s Charter, the one-stop child justice centres and the Protection of Personal Information Bill (once enacted)) in order to address the financial pressures. The Committee, however, does not support this repriotitisation. With the exception of the Protection of Personal Information Bill, the legislation and policies address the needs of the most vulnerable and are a priority. Nor does the Committee agree that the legislation that will establish a framework for the protection of protection of personal information, once enacted, should be delayed – the legislation creates a framework that gives effect to the constitutional right to privacy and, in addition, will contribute to improved IT governance in South Africa, with corresponding positive implications for effective and efficient systems and, ultimately, for improved service delivery.

8.17. Security at court. The Committee appreciates that the Department’s budget to secure courts and justice service points is stretched, despite the allocation of additional funds from 2012/13 over the medium term. Secur ity at courts has become a high priority as a result of increased criminal incidents relating to the Department’s property and personnel.. The Committee is supportive of the Department’s bid for additional funds but is alarmed at exponential growth in the cost of securing courts: t he Department has calculated that it needs R361.4 million; R399.3 million and R441.3 million for 2013/14, 2014/15 and 2015/16 respectively to address its security needs. Over the medium-to-long term, the Committee questions whether it is feasible to spend these amounts on security alone. The Committee is aware that the Department has engaged with other departments, including SAPS, to see if they can assist but with limited success.

The Committee requests that the Department provide a written report by 30 January 2013 on progress made in rolling out of the National Security Infrastructure project, as well as its plans to secure the remaining courts at identified sites where the project is not being implemented because of lack of funds. The Department is also asked to be prepared to brief the Committee on spending and performance relating to security at the next quarterly meeing in February-March 2013.

8.18. Integration of IT systems. The Committee notes that the Department has taken steps since last year to address challenges relating to the rollout of the integrated justice system (IJS) but is unhappy regarding the slow pace of progress. The need for improved co-ordination and integration of the JCPS Cluster departments’ ICT systems has long been identified as key to the effective implementation of the Criminal Justice System’s Seven-Point Plan. A JCPS Cluster review late last year revealed that there were significant problems, including with the governance and leadership of the IJS Board, which have been addressed. The Committee notes that, for many years, large sums of money have been earmarked for this project. While the Committee is pleased that there appears now to be limited progress - project plans are in place with targets and timeframes - it is unclear whether spending of earmarked funds in previous years has realised any value.

The Committee, therefore, requests that the Auditor-General performs a performance audit on IJS and CJS projects across all JCPS Cluster departments for the past ten years. In addition, it requests that the Department continue to provide a written report on progress made relating to with the IJS, clearly indicating any revised targets and timeframes and the reasons for this, by 30 January 2013, and be prepared to address the Committee at the next quarterly meeting in February 2013.

8.19. Office of the Chief Justice (OCJ). The Committee notes that the process of capacitating the Office of the Chief Justice (OCJ) is well underway. Staff were initially seconded from the Department to capacitate the OCJ and 132 posts are in the process of being filled, including the appointment of a Secretary-General to head the Office, and four Deputy Chiefs. In November 2011, the OCJ submitted a budget structure to the Department for approval and this was then submitted to National Treasury, although it will have its own vote only from March 2013. The OCJ was proclaimed a government department in September 2011. The Committee welcomes these developments and understands that this is the only way to establish the OCJ in the short-term but urges the Minister to expedite the tabling of legislation establishing a separate Office of the Chief Justice. The Committee requests that it be kept informed of progress.

Performance/service delivery

8.20. Case backlogs/court performance . The Committee finds it hard to usefully evaluate the limited statistics presented to it relating to court performance. The criminal case backlog project has seen the number of backlog cases in the regional and district courts stabilising between 34 000 and 35 000 cases per month on an outstanding roll of about 200 000 cases. (In June 2006, outstanding cases in Regional Courts were approximately 47 000 cases, of which approximately 20 400 were backlogs. This has dropped to 17 272 backlog cases on an outstanding roll of 49 387 cases at end March 2012; in the District Courts, the backlog intervention (since April 2010) has seen a 22.29% reduction in the number of backlog cases to 17 280 on an outstanding roll of 149 872 at end March 2012). But the project, which attracts earmarked funds, was intended as an interim measure and the Department has indicated that it intends to explore the possibility of creating permanent capacity. The Committee wishes to engage further with the Department on this, given that backlog cases remain high.

The Committee addresses its concerns regarding premature enrolment of cases later under the NPA but notes the solutions suggested, including the need for better resourced courts, high calibre court administrators and improved case flow management.

The Committee is informed that Chief Justice has actively begun to co-ordinate the roleplayers in addressing case flow management and welcomes this.

8.21. Truth and Reconciliation Commission process. Parliament approved assistance measures for victims identified in terms of the Truth and Reconciliation process. The Committee has on several occasions expressed its dismay/displeasure/frustration at ongoing delays in giving effect to the assistance measures that the Department must implement. The Committee welcomes the continued progress in identifying and locating beneficiaries but is less pleased at the slow pace at which the regulations are being finalised. The Committee is concerned at the length of time it is taking to finalise the regulations. The Committee expects the regulations relating to educational assistance and medical benefits, in particular, to be promulgated before the end of the current financial year. It is informed that consultation with stakeholders on the housing regulations is ongoing. The lack of finality - after so long – remains unacceptable.

Regarding the rehabilitation of communities, the Committee has noted the Department’s proposals and urges the Minister to facilitate wide consultation with interested and affected communities to ensure the best procedure to be followed.

The Committee requests that the Department continue to keep it informed, in writing, by 30 January 2013, of the progress made in identifying and making payments to outstanding beneficiaries, as well as the progress relating to the finalisation of the Regulations. The Department should also indicate any difficulties it may be experiencing in obtaining the necessary co-operation from other roleplayers. Further, the Department should be prepared to comprehensively brief the Committee on progress at the next quarterly meeting early next year (February – March 2013).

8.22. Constitutional Development. The Department informed the Committee that it is unclear whether donor funds will be available to run advice centres established as part of its constitutional development programme. The Committee is concerned about the sustainability of donor-funded projects and does not support the overlap of state resources. It has questioned previously whether this donor-funded programme for the promotion of awareness of constitutional rights, which the Fooundation for Human Rights administers, does not duplicate the work of the South African Human Rights Commission. Furthermore, although, 45 advice offices have been established, Legal Aid South Africa not only has a call-centre but also the necessary national footprint making it possibly better placed to offer advice. Given the scarcity of resources, it is vital that these be used to best effect and without duplication.

8.23. Training of magistrates to adjudicate in Promotion of Access to Information Act (PAIA) matters. The Committee understands that, despite the Rules allowing magistrate courts to hear PAIA cases having come into operation, a lack of training as required by the Act has prevented these courts from being used to adjudicate PAIA matters. The Committee asks the Department to advise the Committee when PAIA disputes will be able to be mediated in the Magistrate’s Courts.

8.24. Vulnerable groups . Increased access to justice of women, children and persons with disabilities is a priority of government and of the Department. The Committee has been briefed in the year on improvements in payment of maintenance to beneficiaries, as well as improvements to service delivery in the Master’s Office and welcomes these. The Committee requests that the Department continue to provide a break-down of expenditure (against planned expenditure) for vulnerable groups quarterly.

8.24.1. Maintenance. Despite the improvements that the Department has initiated to the maintenance system, members continue to receive complaints from members of the public. The Committee recommends that, together, the Department and the NPA develop a plan for improved handling of maintenance cases, paying particular attention to the co-ordination of activities of justice officials and maintenance prosecutors. In addition, the Committee is of the view that the present system for determining the amount of maintenance is unsatisfactory but is unclear whether this relates to implementation or whether the law requires amending. The Committee understands that the South African Law Reform Commission are investigating reforms to the Maintenance Act and welcomes this. The Committee supports more stringent enforcement mechanisms for defaulters, for example, restrictions on defaulters who travel abroad.

The Committee notes that the Annual Report did not contain statistics on maintenance cases. It requests the Department to provide these to the Committee by 22 November 2012 .

8.24.2. Guardian’s Fund. The Committee is unclear regarding the impact of the budget shortfalls on plans to rollout Guardian’s Fund services to identified sites. The rollout was planned for this financial year but the Department indicated that expansion of Guardian’s Fund capability to Johannesburg may be postponed. It is unclear as to how far the Department has come in rolling out serives at any of the other previously identified sites. The Committee has previously expressed dismay that there are only six offices at present (in Grahamstown; Pretoria; Kimberley; Pietermaritzburg; Bloemfontein and Cape Town) and these are not located at the largest urban centres. Identified sites for rollout include Master’s Offices at Mahikeng; Nelspruit; Thohoyandou; Polokwane; Durban; Port Elizabeth; Bisho; and Mthatha and Magistrate’s Courts at Nelspruit; Atteridgeville; Johannesburg; George; Madadeni; Empangeni; Port Shepstone; Butterworth and East London. The Committee views the rollout of Guardian’s Fund services as a priority and would not support any reprioritization of funds from this project. At a minimum, the Department should at least explore using existing service points as a document point but is aware that this is not ideal. It requests that the Department report in writing by 30 January on progress to expand Guardian’s Fund services, with targets and timeframes. The Department should also be prepared to address the Committee on this at the next quarterly meeting in February- March 2013).

8.24.3. Domestic Violence. The Committee is unable to comment on performance relating to domestic violence as the annual report contains no statistical information on this. The Committee specifically requests that the Department provide these statistics for 2011/12 by 22 November 2012.

In addition, the Committee asks that it be kept informed of the findings of the Interdepartmental Domestic Violence Task Team. A progress report, in writing, is requested by 22 November 2012.

8.24.4. Child Justice Act. The Committee is not satisfied overall with progress in implementing the Child Justice Act. The Committee is in possession of the second report on the implementation of the Child Justice Act, which was referred to it recently. It intends to focus on this matter in detail early next year, engaging with all stakeholders on the implementation of the Act. In addition, there have been a number of academic reports evaluating implementation of the Child Justice Act, which will form part of the Committee’s enquiry. The Committee notes, in the meantime, the continued downward trend in the number of children who are being assisted in terms of the Act but is unclear as to why this is so or whether this is a positive development.

The Committee notes too that the planned rollout of two One-Stop Child Justice Centres in 2011/12 did not take place, although four were planned for this year at a cost of R26 million. The Committee was told now that two were to be established in Klerksdorp and East London but was not informed of any scientific basis for the selection of these areas. It urges the Department to ensure that any new One-Stop Child Justice centres are placed in the areas where they will be of maximum benefit.

The Committee is pleased that the One-Stop Child Justice Centre at Mangaung was provided with desperately needed resources at the beginning of 2012 and that a process to extend its jurisdiction for it to be able to deal with regional court criminal matters is underway as a matter of priority. The Committee requests that the Department continue to keep it informed of progress on the rollout of the One-Stop Child Justice Centres and on the extension of jurisdiction at the Mangaung Centre, in writing, by 30 January 2013.

8.24.5. Dedicated sexual offence courts. The Committee is appalled at the low conviction rate for sexual offences and has expressed its view previously on this. It remains firmly of the view that sexual offence matters require specialist skills and, for this reason, it supports dedicated sexual offence courts. The trend, however, has been to ‘mainstream’ these courts. The Committee is informed that a Task Team on Sexual Offences Courts (consisting of representatives from the NPA, Regional Court judiciary; Judiciary; Justice Sector Strengthening Programme; LASA & Foundation for Human Rights) has been established to investigate the feasibility of re-introducing dedicated Sexual Offences Courts. Preliminary findings were to be available at the end of August 2012. The Committee requests that it is briefed, in writing, on the Task Team’s progress in writing, by 22 November 2012. Further, that it is briefed on the Team’s findings, once finalised, when these become available.

9. National Prosecuting Authority

9.1. The Committee once again congratulates the NPA for the excellent effort in maintaining an unqualified audit opinion (with emphasis of matter). It has already commented on the Auditor-General’s findings relating to the NPA’s financial health and, more generally, of its concern regarding the impact of further budget reduction for service delivery and the combating of crime. The NPA has indicated very clearly that it will need to revise its targets downwards to accommodate the budget reductions, which will negatively affect effectiveness in combating crime.

9.2. The Committee was informed that the NPA’s current compensation of employee’s budget for 2012/13 is under severe strain: the NPA is not able to fill any vacancies at present; nor is it able to provide prosecutors for new courts. (The Committee notes that the NPA has ‘solved’ the problem of overall high vacancy rates by no longer counting posts for which it has no funds, reducing the overall vacancy rate from 15% for 2011/12 to 0.3% this year). The NPA requests an additional amount of R755 million over the medium term for the funding of additional capacity, which the Committee supports. The Committee is concerned that the budget cuts will adversely affect the ability of the NPA to perform its key function of prosecuting.

9.3. The Committee is concerned at the high number of acting positions within the NPA, including that of the acting CEO. The Committee urges that the NPA (and, in the case of the position of the CEO, the Director-General: Justice and Constitutional Development) ensure that these positions are filled on a permanent basis as a matter of urgency.

9.4. The Committee notes the NPA’s potential financial liability in connection with a recent court ruling on job evaluation. The Committee is informed that the NPA is petitioning the Constitutional Court on the decision and requests that it is kept informed of the outcome.

9.5. Concerns have been raised relating to the NPA’s accounting status and governance arrangements. At present, although the NPA’s prosecutorial independence is constitutionally guaranteed; empowering legislation provides that its accounting officer is the DG: Justice and Constitutional Development. In addition, the NPA requires an exemption annually for it to prepare separate annual financial statements. Amendments to the National Prosecuting Authority are being prepared to resolve these problems, further strengthening the NPA’s independence.

9.6. The Committee has already indicated its concerns relating to court performance and unnecessary delays in court processes. It believes that the conduct of all justice officials, prosecutors and public defenders needs to be strictly monitored and, if they are responsible for the causing unnecessary/unjustifiable delays, they should be sanctioned.

9.7. The NPA agreed that the discrepancies between the number of arrests, the number of cases enrolled and the number of criminal cases finalised is an area of concern. The NPA reports that on the issue of premature enrolment of investigations, there are policies in place but these are not being followed. The Committee does not understand why this is and requests that the NPA provide it, in writing, by 30 January 2013, with more information on the policies and the challenges that it is facing with their use. The Committee does agree that the NPA can play an important role in earlier stages before matters are enrolled and notes that, in the past, it has done so, working effectively as part of project teams with SAPS.

9.8. The NPA has requested that it receive additional funds (R100 million over the medium term) for the institutionalisation of donor-funded positions within the Thuthuzela Care Centres (TCCs). The Committee notes that the National Treasury’s response to its previous recommendation regarding funding of TCC’s was favourable (although only R10 million was allocated), as well as its suggestion that existing vacancies within the NPA could be used to absorb the donor-funded positions. Although as the NPA has no vacancies, having done away with unfunded posts, and cannot afford to employ additional capacity from its existing compensation of employees’ budget, this argument no longer seems applicable. Given the priority on combating violent crime, especially sexual violence against women and children, the Committee strongly supports the NPA’s request for additional funding for the institutionalisation of donor-funded positions.

10. Legal Aid South Africa

10.1. The Committee congratulates Legal Aid South Africa on receiving an unqualified audit for the past 10 years, with no matters of emphasis for the past seven years. Once again, LASA impressed the Committee greatly with its strategic vision and planning, management of resources and considerable achievements. It notes, however, that Auditor-General had raised the issue of non-compliance with prescripts and regulations, specifically that the Legal Aid South Africa had made use of some Judicare practitioners, who did not have tax clearance certificates but that this had not affected Legal Aid South Africa’s audit outcome. The Committee is satisfied that Legal Aid South Africa has taken steps to address the problem as soon as it was brought to its attention: Judicare practitioners, without tax clearances certificate, are no longer eligible to be briefed.

10.2. The proposed budget cuts will reduce Legal Aid South Africa’s baseline allocation by R84.5 million over the medium term. Although a key stakeholder in the criminal justice system, Legal Aid South Africa’s budget is considerably smaller than that of the NPA and feels budget cuts disproportionately. Further, the majority of its allocation is committed to salaries, which leaves it with very little room to cut costs without reducing posts. Legal Aid South Africa reports that it is able to absorb the R13 million reduction of its 2013/14 budget without it having any impact on court coverage in the next financial year but that – worryingly - there is no provision for additional capacity for new courts. Further, from 2014/15 onwards, the budget cuts will directly impact on court coverage (court coverage will be reduced by 23 posts in 2014/15 and 60 posts in 2015/16). In addition, the Judicare budget will be reduced by 6% for both 2014/15 and 2015/16. The current coverage of courts is already inadequate and the reductions will exacerbate this. The Committee is extremely concerned about the impact of the reductions on the efficiency and effectiveness of the criminal justice system as a whole.

10.3. The Committee supports the need for more practitioners to increase coverage in all courts. It strongly feels that insufficient capacity (including relief capacity) has a considerable adverse effect on case-flow, contributing to backlogs and, generally, to delays in the criminal justice system. The Committee, therefore, supports the additional funding request to increase practitioner capacity at courts at district and regional court level and at the High Court Units by R70.4 million, R81.6 million and R36.5 million respectively over the medium term.

10.4. Further, it is alarmed that Legal Aid South Africa will be unable to provide additional capacity. Preliminary figures presented estimate that Legal Aid South Africa will need R12.7 million to provide legal aid support at the newly established Palm Ridge, Tsakane and Kagiso Magistrates Courts. This does not appear to take into account the costs of these additional posts going forward, nor does it into account new courts being planned for other provinces or civil regional courts. The Committee supports Legal Aid South Africa in its request that in future any court expansion programmes factor in a budget allocation for legal aid capacity to service those courts if they are to be functional.

10.5. The Committee continues to support Legal Aid South Africa ’s goal of expanding expand its civil work and impact litigation, despite the financial constraints that it faces in this regard. It supports its request for additional funding for increased capacity of R60 million over the medium term.

10.6. The Committee also notes that Legal Aid South Africa did not get an additional R7.5 million that the Committee recommended for its IT needs in 2012/13. It is disappointed at National Treasury’s response: The Committee feels that Legal Aid South Africa uses its IT resources extremely effectively and should be supported in this.

11. Special Investigating Unit

11.1. The Committee congratulates the SIU on its unqualified audit. However, there is some deterioration in the audit outcome, as the Auditor-General reported two matters of emphasis, whereas in previous years there were none.

11.2. The Committee understands that the legislation to amend the SIU’s enabling legislation to address the challenges with its funding model was enacted in October 2012. The Committee is told that the SIU is still experiencing some difficulties with its revenue flows, despite having received additional funding to tide it over until the necessary legislation was in place. The SIU expects that it will take some time for the situation to be rectified and is engaging with National Treasury on this.

11.3. The Committee notes that the position of the Head of the SIU remains vacant and is presently being filled in an acting capacity. It urges that the appointment is made speedily.

11.4. The SIU reported that it had to terminate the services of more than 100 consultants providing specialised forensic skills. In addition, the filling of permanent positions to grow internal capacity was put on hold until the necessary statutory amendments were enacted. The Committee understands the SIU’s reluctance to take on permanent staff if it cannot cover salaries from the government grant. However, given the importance of SIU’s contribution to fighting corruption, the Committee believes that it will need to address capacity (whether permanent or contractual) in the near future. The Committee also notes that there have been several resignations of experienced/senior staff members and urges that these positions are filled. The Committee requests that the SIU addresses it on its establishment, including vacancies, at its next meeting in February or March 2013.

12. South African Human Rights Commission

12.1. The Committee congratulates the Commission on receiving an unqualified audit opinion with no emphasis of matter for 2011/12 for the third year in a row.

12.2. The Commission’s performance has improved, although the Committee queried whether the Commission had reached 89% of its performance targets (a significant increase from 52%) as claimed. However, it accepts the explanation that the Commission provided to clarify its concern and welcomes the Auditor General’s assurance (sought by the Commission) that the matter raised by the Committee would not have any material impact on his opinion. The Committee does note small inconsistencies in the legal statistics presented, which it feels detract from the quality of the report. The Committee requests that the Commission ensure that, in future, all statistics are carefully checked for consistency and accuracy before the report is tabled.

12.3. The Commission has argued persuasively that reduction of its baseline allocation in the short term is not ideal if it is to fully realise its aims when embarking on a three year reprioritisation process. It also highlights the positive relationship between budget allocation and performance levels: The Commission has had modest increases to its budget allocation since 2008/09 and its performance has improved. It advocates that its funds are not reduced and that it is allocated additional funds for it to achieve its short term goals, especially in 2013/14. However, the Commission also makes important proposals to implement significant cost savings in rental and related costs from 2015/16: a proposal that which the Committee approves in principle. The Committee requests that it is kept updated on progress relating to the proposal to share office space with other Chapter 9 institutions quarterly.

12.4. The Committee requested that the Commission report separately on its PAIA mandate, which the Commission has done. The Committee finds the report useful and suggests that the Commission brief it separately on this. It suggests that, in future, that when the Commission produces substantive reports of this kind, it formally tables them with a request that the reports be referred for consideration and report to the House. The Committee notes that the Commission intends to formally table several important reports (including the PAIA report) in the near future and would support that where possible they are referred to the relevant committee for consideration and report.

12.5. The Committee will also engage formally with the Office on Institutions Supporting Democracy and Related Institutions in the Deputy-Speaker’s Office to clarify its role in supporting these institutions. It notes the attendance of officials from the OISD at relevant committee meetings, which it has found useful.

12.6. The Commission has requested almost R6.7 million for its PAIA mandate. However, proposed amendments will transfer the Commission’s mandate relating to PAIA matters to a newly created Information Regulator at a later date once the relevant legislation is enacted. This is likely to take some time and the Commission will need to be appropriately capacitated in the meantime. Funds allocated would need to take into account the proposed changes to ensure that resources are not wasted.

12.7. The Commission has requested additional funds to enhance its legal services capacity. The Commission has appointed new senior legal offices and legal officers but proposes that additional legally qualified persons are employed on short-term contracts of between 1-3 months to assist in reducing the complaint workload while these newly appointed staff members are being trained and orientated to take up their positions. It estimates that it will need R12.3 million for this. In addition, the Commission has requested additional funds to develop resources and training materials for personnel to reduce dependency and expenses incurred by reliance on external service providers. The Commission seeks R1.5 million for this.

12.8. The Commission told the Committee that it has a number of cases that require resolution through formal processes in the Equality Court but has been unable to initiate proceedings because of budget constraints. The Committee has suggested that the Commission seek assistance from LASA, which has increasingly capacity to engage in civil litigation, including high impact litigation. The Committee is pleased that the Commission has contacted LASA at its suggestion and requests that it is kept informed of developments.

12.9. The Commission has a new complaints-handling procedure but its systems are inefficient and ineffective, lacking an electronic case management system. The Commission has requested R2.13 million to upgrade the system’s hardware and infrastructure. This would also include training staff on using the new system. The Committee supports this request as it agrees that it will promote the Commission’s greater efficiency and effectiveness in fulfilling its protection mandate.

12.10. The Committee also supports additional funds to improve the Commission’s IT infrastructure (email and internet system), which is dysfunctional. The Commission has requested R3.43 million for this purpose.

12.11. The Committee notes the Commission’s request that it proposes a plan of action to assist the Commission to hold non-compliant departments accountable (This relates to either non-compliance with the Commission’s request for information in terms of section 184(3) of the Constitution or outstanding international reporting obligations). The Committee notes the list provided of non-compliant government departments, has agreed that a plan of action should be forthcoming and intends to place this matter on the agenda when it holds its strategic planning session at the beginning of next year. In the meantime, it has requested its support staff to compile draft proposals to form the basis for discussion.

12.12. The Committee was appalled to learn that commissioners lack the budget to travel internally to undertake investigations, meet with stakeholders, etc. It requested that the Commission provide it with funding proposals, which was done. The following amounts are proposed: R2.21 million for 2013/14; R2.43 million for 2014/14 and R2.67 million for 2015/16.

12.13. The Committee supports the opportunity for the Chairperson of the Commission to chair the International Co-ordinating Committee of National Human Rights Institutions (ICC) and agrees that it would bring not only prestige but also important opportunities for sharing of knowledge in the international arena. The Commission informed the Committee that it has the necessary institutional framework to house the ICC Chairperson. The travel associated with the Chairperson and related costs will be covered by the ICC’s budget. The Commission would be required to take on additional human resources and related incidental expenses to assist the Chairperson in carrying out his functions. The Commission does not have surplus funds in its current budget and as requested the Justice Department, as well as the Department of International Relations and Co-ordination for assistance. Estimated costs are R2.33 million annually.

13. Public Protector

13.1. The Committee congratulates the Public Protector on its unqualified audit opinion but notes the matters of emphasis. The first relates to the impairment of the case management system resulting in an impairment loss and, the second, to the PP as a ‘going concern’, in which an accumulated loss of R5.3 million, with current liabilities, exceeded its total assets by R1.18 million). The PP provided details of the management audit plan to address these two matters. The Committee requests that the PP update it quarterly on progress made, as well as actual expenditure when compared to projected expenditure.

13.2. The Committee notes that the PP requests additional funding for more investigators and to increase its footprint. Further, the Adjustments Appropriation Bill [B32 – 2012] allocates an additional R8 million for ‘investigations that target the systemic causes of problems and complaints of organs of state’. The Committee is, however, concerned that neither the PP’s annual report or the presentations to the Committee provide much in the way of information regarding the systemic causes of problems against organs of state. For example, the PP produced figures showing that the top state institution repeatedly complained against in 2011/12 was Justice – with 1254 complaints. After questioning, the PP produced a breakdown of this figure which divided these complaints into categories such as ‘appeals/applications for leave to appeal not heard/ not on the roll’, ‘delay in processing various maintenance cases’ and ‘Master’s Office’. This categorisation did not assist the Committee to understand what the systemic causes of the problems were. The Committee was eager to put some of the issues to the Department, for example, during its hearings the following week. Although the PP promised to provide the Committee with the information, what the Committee received did not assist it any further and the Committee is none the wiser as to what the problems actually are. Indeed, from the categorisation provided, the Committee is concerned that a number of cases appear to relate to matters outside the PP’s jurisdiction, such as delays in judgements and labour relations matters within the Department.

The Committee, therefore, believes that the PP could have a greater impact on the lives of South Africans if the Office were to focus more on identifying the systemic problems that need to be addressed rather than investigating almost every complaint that is made. This approach would ensure that Departments could be directed as to the areas that need to be corrected in order to improve service delivery.

The parliamentary committees can play an invaluable role in monitoring the implementation of the recommendations to address these systemic problems.

The Committee is also concerned that there appears to be inadequate communication between the PP and senior officials of the Department of Justice and Constitutional Development regarding the PP’s reports (The Committee’s attention was drawn in particular to the Special Report (No. 4 of 2011/12: Department, President’s Fund entitled to pay victims their dues with interest). The PP is urged to ensure that the Director General of a Department that is being complained about is timeously informed of the complaint, allowed to respond to it, and that the findings are also communicated to both the Director-General and the Minister.

13.3. The Committee queries the geographic spread of capacity at present, with least populated provinces (such as, Northern Cape and North West) having considerable capacity. The Committee has in the past raised its concern over the manner in which the PP has distributed resources and the need for rationalisation, which does not appear to have been heeded.

13.4. Surprisingly, the Committee was told that the PP is unlikely to be required to implement budget reductions, unlike all the other institutions that report to it. The Committee notes too that the PP has received additional funds for 2012/13 for systemic investigations.

13.5. On the matter of opening more offices, the Committee does not support the expansion of the PP’s footprint in the medium term, although in the absence of a plan it accepts that it cannot fairly evaluate the proposed expansion. The Committee strongly believes that the PP is not using its present resources as effectively and efficiently as it could. Given the scarcity of resources, the Committee strongly believes that the PP needs to investigate alternative/innovative ways of expanding its footprint in the meantime.

Part 5

14. Summary of reporting requests

14.1. Department of Justice and Constitutional Development

Reporting matter

Action required

Timeframe

Progress with regard to planned maintenance of court buildings.

(See paragraph 8.9.2)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Third Party Funds: Progress regarding finalising legal status, including engagement with National Treasury.

(See paragraph 8.13.2)

Written report

Briefing

Within one month of this report being tabled

Next quarterly meeting in January – March 2013 (see Committee programme)

Audit outcome:

· Details of the formal commitments made to address the audit findings.

· Details of all its audit action plans.

· Quarterly progress reports.

· Progress in complying with AG’s recommendation to compile monthly (or at minimum quarterly) financial statements with full disclosure notes.

(See paragraph 8.14)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Progress report on filling vacancies at senior management level

(See paragraph 8.15)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Security. Progress made rolling out of National Infrastructure Porject and plan sto secure remaining courts at identified sites.

Expenditure relating to security.

(See paragraph 8.17)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Criminal Justice Revamp: IJS - Progress to date, clearly indicating any revised targets and timeframes and the reasons for this.

(See paragraph 8.18)

Written report

Briefing

30 January 2013,

Next quarterly meeting in January – March 2013 (see Committee programme)

Offcie of the Chief Justice: Progress in establishing the OCJ

(See paragraph 8.19)

Written report

30 January 2013

Truth and Reconciliation process: Progress made in identifying and making payments to outstanding beneficiaries, as well as the progress relating to the finalisation of the Regulations.

(See paragraph 8.21)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Provision of m aintenance case statistics 2011/12

(See paragraph 8.24.1)

Wriiten report

22 November 2012

Progress on expansion of Guardian’s Fund services, with targets and timeframes. The Department should also be prepared to address the Committee on this at the next quarterly meeting.

(See paragraph 8.24.2)

Written report

Briefing

30 January 2013

Next quarterly meeting in January – March 2013 (see Committee programme)

Domestic Violence:

Provision of statistics for Domestic Violence cases for 2011/12.

Progress report on findings of the Interdepartmental Domestic Violence Task Team.

(See paragraph 8.24.3)

Written report

Written report

22 November 2012

22 November 2012

Child Justice: Progress on the rollout of the One-Stop Child Justice Centres and on the extension of jurisdiction at the Mangaung Centre.

(See paragraph 8.24.4)

Written report

30 January 2013

Specialised sexual offence courts: Progress made by Task Team.

(See paragraph 8.24.5)

Written report

Briefing

22 November 2012

Refer to Committee programme

15. Summary of recommendations relating to requests for additional funding for the MTEF

15.1. The Committee recommends that the Department of Justice be provided with the following additional funds for the MTEF period:

Description

(R 000)

2013/14

2014/15

2015/16

Additional capacity

200 000

420 000

660 000

Start-up and operational costs of new courts

91 500

95 000

100 000

Municipal rates and taxes and leased accommodation

250 500

293 300

345 100

Security

361 488

399 238

441 337

Total

903 488

1 207 538

1 546 437

15.2. The Committee recommends that the National Prosecuting Authority be provided with the following additional funds for the MTEF period:

Description

(R’000)

2013/14

2014/15

2015/16

Total

Funding of vacant posts

120 000

306 000

328 950

754 950

Job creation

45 954

48 358

50 888

145 200

Labour Court judgment for OSD implementation

200 000

42 400

44 944

287 344

AFU- curator fees and increase in capacity

41 270

43 672

46 214

131 156

Institutionalisation of donor funded positions with TCCs

31 727

33 356

35 022

100 105

Increase in SCCU capacity to achieve JCPS putput 3 and 5

3 505

3 715

3 937

11 157

Accountability status of the NPA

200 000

50,000

65 000

315 000

OWP- increase in capacity and acquisition of covert armoured vehicles

112 508

119 132

125 815

357 456

Security and risk business unit- purchasing of capital and security equipment

5 000

6 000

7 000

18 000

Total

759 964

652 633

707 771

2 120 368

15.3. The Committee recommends that the Legal Aid South Africa be provided with the following additional funds for the MTEF period to:

Description

(R’000)

2013/14

2014/15

2015/16

MTEF

Increase in practitioner per court ratio (153 posts at District Courts, Regional Courts and High Courts to increase coverage to 100%, 110% and 125% respectively)

59 193.3

62 744.9

70 509.6

188 447.8

Increased civil capacity (40 new posts)

18 832.6

19 962.6

21 160.3

59 955.5

Expansion of the national footprint

33 600

28 620

32 502.4

92 557.2

IT infrastructure (upgrading of)

7 600

2 100

2 166

11 866

Total

119 225.9

113 427.5

120 173.1

352 826.5

15.4. The Committee recommends that the South African Human Rights Commission be provided with the following additional funds for the MTEF period:

Description

(R’000)

2013/14

2014/15

2015/16

Legal Services

Legal services human resources capacity for complaints handling

R12. 3

R1.14

R1.14

Internal capacity building of legal practitioners

R1.5

R1.75

R1.75

Procurement of Experienced Legal Expertise for litigation of complaints

R1.5

R2.18

R2.18

Revamping Legal Case Management System

R2.13

R1.12

R1.12

Setting-up a call centre for complaints processing

R1.7

R1.84

R1.84

Human Rights Advocacy

Developing Advocacy and Education capacity and materials

R1.6

R1.9

R1.9

Research

Research reports, namely ESR, Equality and Focus Areas

R1.95

R2.14

R2.14

4. Promotion of access to information

Monitoring, compliance and advocacy of PAIA

R6,7

R2.7

R2.7

IT Infrastructure

R3.43

R1.7

R1.7

Total

R32.81

R16. 4

R16.4

15.4.1. In addition, the following items were identified as requiring additional funding during the BRRR process:

  • Commissioner’s travel – R2.21 million for 2013/14; R2.43 million for 2014/14 and R2.67 million for 2015/16.
  • Chairing the National Human Rights Institutions International Co-ordinating Committee – R2.33 million annually

16. Appreciation

16.1. The Committee thanks the Director General and all officials who appeared before the Committee for their co-operation.

16.2. The Committee thanks the Acting National Director of Public Prosecutions and her staff for their co-operation in this process.

16.3. The Committee also wishes to thank the Public Protector, the Chairperson and Commissioners of the South African Human Rights Commission, the Chairperson (in absentia) and Board of Legal Aid South Africa, and the Acting Head of the Special Investigating Unit, as well as all respective staff members that appeared before the Committee for their co-operation.

Report to be considered

Documents

No related documents