ATC110608: Report Budget Vote 24: Justice and Constitutional Development

NCOP Security and Justice

Report of the Select Committee on Security and Constitutional Development on Budget Vote 24: Justice and Constitutional Development, dated 08 June 2011

 

1. Introduction

 

The Select Committee considered the strategic plan of the Department of Justice and Constitutional Development (the department) and its budget allocation on 12 April 2011 and reports as follows:

 

The officials presenting on behalf of the Department of Justice and Constitutional Development comprised:

 

·      Dr K De Wee, Chief Operations Officer

·      Mr P Du Rand, Acting Deputy Director General

·      Mr D Mpholo, Chief Director: Human Resources

·      Ms T Ramanyimi, Chief Director: Facilities manager

·      Mr L Basson: Acting Chief Master

·      Ms K Pillay: Acting Chief

·      Mr D Rudman: DDG Legislative Development

·      Mr S Robbertse: State Law Advisor

·      Mr J Johnson: Acting Chief Financial Officer

 

This report provides an overview of the presentations made by the Department of Justice and Constitutional Development.  The focus of the briefings included Budget Vote 24 and the Strategic Plan for 2011/16.[1] 

 

2.       Overview of Proceedings

 

2.1 Summary of the vote

 

The department has five programmes:

·      Administration;

·      Court Services;

·      State Legal Services;

·      National Prosecuting Authority allocation; and

·      Auxiliary and Associated services

 

Table 1: Overall programme allocation for the MTEF: 2010/11 – 2013/14

 

Budget 2010/11 – 2013/14
Programme
R thousand	2010/11	2011/12	2012/13	2013/14
Administration	1 427.4	1 625.2	1 728.9	1 833.1
Court Services	3 994.2	4 341.7	5 096.1	5 408.7
State Legal Services	722.1	750.7	782.2	806.1
National Prosecuting Authority	2 684.3	2640.3	2 770.7	2 914.6
Auxiliary and Associated Services	1 959.5	2 055.7	2 296.4	2 446.7
Total	10 787.5	11 413.6	12674.3	13 409.2
Direct charge for Judges and Magistrates’ salaries	1 929.8	2 104.1	2 401.8	2 575.7
Total	12 717.2	13 517.6	15 076.1	15 984.9

 

 

 

2.2 Strategic Priorities

 

Dr De Wee provided an overview of the DoJ&CD strategic objectives and allocations for the 2011 – 2016 MTEF cycles. 

 

The DoJ&CD strategic plans were drafted according to the new National Treasury Framework that describes a strategic plan as a plan that identifies strategically important outcomes and orientated goals and objectives against which the public institutions’ medium term results can be measured and evaluated by Parliament, provincial legislatures and the public.

 

2.2.1 The mandates of the DoJ&CD informing its strategic priorities

 

a) Within the DoJ&CD’s broader Constitutional mandate, the department had distilled its mandate into two parts namely,

 

i.         to provide an environment  for the effective and efficient administration of justice; and

 

ii.       to promote constitutional development through the development of legislation and to implement  programmes to deepen and nurture our constitutional democracy.

 

b) The DoJ&CD has legislative mandates that are relevant to its strategic priorities.

 

These are:

i.         The establishment and functioning of the superior courts, magistrate’s courts and special courts;

ii.       The appointment of judges and magistrates, their conditions of service, discipline and training;

iii.      The establishment and functioning of the National Prosecuting Authority, the conduct of criminal proceedings, investigation of organised crime and corruption and the forfeiture of assets obtained through illicit means;

iv.      The establishment and functioning of bodies responsible for legal aid, law reform;

v.        The support to Chapter Nine institutions (the Human Rights Commission Act, 1994, and the Public Protector Act, 1994).

vi.      The appointment of masters of the high courts and the administration of the Guardian’s Fund and deceased and insolvent estates;

vii.     The provision of legal advisory services to government departments;

viii.   The enforcement of people’s rights (the PAJA, PAIA and PEPUDA);  and

ix.     The protection of vulnerable groups (the Child Justice Act, 2008, Sexual Offences and Related Matters Amendment Act, Maintenance Act, etc.

 

c) The DoJ&CD also aligns the policy mandates of government within its strategic objectives.

 

These are:

 

i.         JCPS Cluster Delivery Agreement

 

The Minister has an executive responsibility of coordinating and leading the JCPS cluster. Through its leadership of the cluster, the department monitors and coordinates the overall implementation of cluster strategies and activities. 

 

ii.       Transformation of the judicial system

 

The transformation of the judicial system entails the following key programmes:

 

•          Institutional reforms to strengthen the Office of the Chief Justice (R117 million in 2011/12)

The Constitution Eighteenth Amendment seeks to affirm the Chief Justice as the head of the judiciary with the responsibility of developing and monitoring the implementation of norms and standards for the exercising of judicial functions. Other initiatives include the Judicial Service Commission Act 2008, which establishes a Code of Judicial Conduct, regulations on Judges’ Registrable Interests and establishment of the Judicial Education Institute.

 

•          Rationalisation of the superior courts

The Constitution Amendment Bill and the Superior Courts Bill seek to give effect to the Constitutional Court as the apex court in the Republic and regulating the jurisdiction of the Constitutional Court and the Supreme Court of Appeal to provide a single “High Court of South Africa” with various provincial divisions.

 

•          Re-alignment of magisterial districts with municipal districts (R10 million in 2011/12)

The department continues to implement programmes that seek to correct the old magisterial districts that were based on homelands and the former RSA territory. The transformation entails giving adequate jurisdiction to these courts to function as fully fledged courts.

 

•          Review of the civil justice system (R5 million in 2011/12)

Intermediate legislative interventions have been implemented to address some of the pressing gaps in the lower courts. These include the amendment of the Magistrate’s Courts Act, 1944, to extend civil and divorce jurisdiction to regional courts and increase the number of Small Claims Courts.

 

2.3. Challenges faced by the Department in fulfilling its mandate

 

The department reported that it faced a number of challenges in meeting its legislative and constitutional mandates. These are grouped together under the following headings:

 

·      Financial challenges

·      Internal processes

·      Customers

·      People issues

 

2.3.1 Financial challenges

 

The departmental operational budget was reduced by over R2.1 billion for the MTEF period from 2009/10 onwards. The following areas were adversely affected:

 

a) Information and Communication Technology (R260 million in 2011/12)

 

Investment in IT has been identified as one of the key enablers for the department.  The budget cuts affected the maintenance plan of IT infrastructure resulting in the following problems:

 

•          Ageing servers and other infrastructure;

•          Out of warranty servers that pose a high operational risk;

•          An inadequate business continuity plan; and

•          Slow network impacting negatively on the turn-around in service delivery.

 

To address these challenges, the department will:

•          Continue to engage the donor community for  funding of the shortfall; and

•          Consider  IT services that can be performed in-house and save costs

 

 

 

b) Escalating safety and security costs

 

The department has experienced serious crime related incidents against staff members and the public on its premises such as intimidation, murder, theft of state assets, theft of case dockets, court records, escapes and robberies with aggravating circumstances. 

 

To curb these costs, a decision was taken to explore the possibility of using the South African National Defence Force (SANDF) to secure the department’s service points. Discussions are underway and are expected to be concluded during the tenure of the current security contracts. 

 

c) Infrastructure and expansion of justice services (R640 million in 2011/12)

 

The department must address the historical imbalances relating to court infrastructure. This is complicated by the following:

 

i.         Escalation of infrastructure costs above inflation, which means the cash flow for building new courts is often insufficient and results in postponements in construction;

ii.       Balancing the need for additional courts with the maintenance and accessibility programmes of existing courts;

iii.      Using infrastructure budget for additional accommodation; and 

iv.      The growth in the establishment numbers and new areas of services.

 

To address the above challenges, the department will explore alternative funding methods, such as:

i.         Build, operate and transfer (BOT); and

ii.       Public-private partnerships (PPP).

 

d) Litigation against the state (R257 million in 2011/12)

 

Litigation against the state has increased due to the following factors:

i.         Progressive demands regarding the rights of citizens due to increased awareness;

ii.       Opportunistic litigation against the state;  

iii.      Fragmented approach in the management of state litigation resulting in ineffectiveness; and

iv.      Lack of an effective framework to invoke alternative dispute resolution mechanisms.

 

The following interventions will be implemented to curb the spiralling cost of litigation:

i.         Develop a policy framework for the efficient management of state litigation.

ii.       Capacitate and enhance the Office of the State Attorney by increasing resources (human, financial and infrastructure).

iii.      The preparation and implementation of standardised fee structures for the payment of private counsel.

iv.      Development of an alternative dispute resolution process to either avert litigation or enable the settlement of matters outside the formal court process.

 

e) Other financial pressure points

 

Other areas that have been severely affected by budgetary constraints are the following:

 

i.         Increasing the establishment of the lower courts and providing the Judiciary (especially the Magistracy) with adequate tools of trade. (R220 million over MTEF period)

ii.       Expansion of the support personnel establishment in the courts (interpreters, finance and supply chain management personnel) as well as the personnel who perform quasi-legal functions relating to default judgments, court orders, warrants of execution, etc.

iii.      Implementation costs of new and proposed legislation. (R86 million (2011/12), R202 million (2012/13) and R213 million (2013/14))

iv.      Document and record management. (R50 million p.a. over 3 years)

v.        Adequate provision of library services to the various courts and support services to the Judiciary.

vi.      Enhancement of constitutional development programmes. (R64 million in 2011/12)

 

 

2.3.2 Internal processes

 

a) Financial Management

 

The Auditor General has expressed qualified opinions relating to financial management and non-compliance with procedures.

 

In 2008/09 the department improved on its qualifications and brought the Third Party Funds, assets, leases, leave and irregular expenditure down. The department has two issues: Third Party Funds and irregular expenditure (PPPFA compliance) during 2009/10.

 

Indications are that the department may have a repeat finding on the Third Party Fund for the 2010/11 financial year but is aiming for an unqualified audit finding in 2012/13. 

 

b) Fraud and corruption

 

The department experienced an increase in the number of fraud and corruption cases in comparison to the previous two financial years.

 

The department is committed to the implementation of the Minimum Anti-corruption Capacity Requirements (MACC) set as a public service anti-corruption standard, and is involved in a number of public service anti-corruption fora and interventions driven by the JCPS cluster.

 

The department is increasing its capacity in enterprise risk management to deal with fraud risk assessments in an improved manner and conduct more environmental scans to assist individual managers to manage their risks better.

 

 

2.3.3 Customers

 

a) Masters’ Services (R324 million in 2011/12)

 

The department entered into an agreement with Legal Aid South Africa to assist in the administration of the estates of child-headed households to:

•          Minimise deceit and fraud against minor heirs;

•          Improve the speedy access of minors to the benefits of the estate to alleviate their suffering; and

•          Limit the exposure of small estates involving minors to legal fees.

 

 

 b) MOVIT Project (Master’s Branch)

 

The Home Affairs National Identification System (HANIS) was adapted through the Integrated Justice System (IJS) to suit the Master’s environment to verify clients. The use of this technology has substantially improved the turnaround time of payments.  In addition, the Integrated Case Management Systems (ICMS Master) has been deployed to all 402 magistrate’s offices that deal with deceased estates.

 

The Master’s turnaround project aims to:

 

i.         rebrand the Master's services to deliver a highly professional service;

ii.       build a strong service ethos, which include, among others, identification tags, uniforms and contact details of senior managers;

iii.      identify and up-skill frontline staff to handle a wide range of enquiries; and

iv.      increase accountability within all offices of the Master and the department.

 

In addition, the department will:

•          Maximise the IT systems that have been implemented; and

•          Initiate disciplinary hearings against cases of fraud by members of staff and refer matters to SAPS where necessary.

 

c) Maintenance Services

 

In 2011/12, a turnaround plan for maintenance services will be implemented. This includes expediting application procedures, application processing, payments and punitive measures for defaulting parents.

 

The maintenance turnaround project that will be implemented during the 2011/12 financial year will address the following:

 

•          Service improvement

•          Upgrading of skills for frontline staff

•          Improved management of customer complaints

•          Launch of an improved media and awareness campaign

•          Business process improvements

•          Amendment of legislation

 

d) The Case Backlog Project (R224 million for DOJ, NPA and LASA for 2011/12)

 

The case backlog reduction intervention is aimed at reducing the number of backlog cases in the regional and district courts. The aim of the backlog intervention is to ensure that the inflow of the number of new cases is balanced by the number of matters concluded.

 

From the inception of the backlog reduction intervention in November 2006 until the end of December 2010, 32 650 criminal cases were disposed of in the additional backlog courts comprising:

•          21 706 cases finalised with a verdict;

•          9 708 cases withdrawn; and

•          1 236 cases transferred.

 

For the 2010 financial year (April to December 2010), the total number of cases disposed of by the district and regional court rolls was 12 702. The backlog interventions are continuing in 2011/2012.

 

The department provided resources in the form of Infrastructure, court personnel, magistrates and budget.

Finalisation of these cases is largely influenced by the Judiciary and Prosecution.

 

 

 

 

 

 

 

e) Implementation of the JCPS delivery agreement and the CJS 7-Point  Plan

 

 

The cluster has adopted an integrated approach to the fight against crime, and will continue to improve prevention, detection, investigation and prosecution of crime in the pursuance of cluster coordination and activities relating to Outcome 3.

 

Various protocols have received attention in terms of the implementation of the Seven-point Plan, e.g.

•          The Bail Protocol;

•          The Reduction of Regional Court Case Backlogs Project;

•          The Forensic Chemistry Laboratories (FCL) Protocol;

•          The Court Screening Protocol; and

•          The Legal Aid Court Protocol.

 

 

f) Customer Service

 

The department reported that it finalized the consultative process on the Service Charter and Service Standards. The department is waiting for approval by the Executive Committee.

 

The department is currently strengthening its capacity to address the complaints received via the Presidential Hotline. It reported that it has skill shortages, and under-representation of women and people with disabilities, low productivity and low moral that impact service delivery.

 

2.3.4 People issues

 

a) Relationship with Chapter 9 institutions

 

Section 181(2) of the Constitution provides for the independence of the Chapter 9 institutions and section 181(3) requires that “other organs of state through legislative and other measures must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”.

 

The department will continue to assist and protect Chapter 9 institutions by:

•          Facilitating the budgetary process and assisting with financial arrangements;

•          Promoting proposals emanating from the reports of those institutions;

•          Ensuring compliance with section 181(3) of the Constitution (assistance to Chapter 9 institutions);

•          Evaluating and investigating the legislation establishing Chapter 9 institutions; and

•          Promoting and maintaining communication channels between Chapter 9 institutions and the state.

 

3.  Committee Response: Questions/Issues to Consider

 

Members of the Committee raised a number of questions and issues to the department.

 

3.1 Transformation within the department

 

The committee welcomed the presentation but noted that the presentation did not speak to the matter of transformation within the Magistrates Commission and the department’s commitment to eradicate the acting positions. The committee requested the department to provide figures for magistrates that were appointed in an acting capacity in the whole of South Africa, how long they had been in these positions, and when these appointments would be made permanent. The committee noted that there were still not enough black magistrates in the magistracy. There were none, or very few, black magistrates in the Pretoria magistrates court dealing with civil service cases.

 

3.1 a) Department’s response

 

The department explained the process for appointing a permanent magistrate. There were three different categories of acting posts within the department.

i.         There were magistrates acting whilst the posts were vacant. In the past financial year there were 91 vacant posts that were filled by acting magistrates whilst the department advertised to fill the positions.

ii.       The second category of acting position was when the department had to appoint acting magistrates for other sick magistrates. This occurred on a daily basis.

iii.      The third category was acting magistrates appointed on a contract basis to provide additional capacity within the department. This occurred when the department addressed the case backlogs. The department received additional money from National Treasury to fund this specific project. The department had appointed 56 regional court magistrates, 17 district court magistrates and would continue with those appointments in the new financial year. When the department appoints acting magistrates it also appoints a prosecutor, an interpreter, a clerk and a Legal Aid representative to ensure a full complement that would allow the court to function.

 

The department advertised the third category posts as contract posts that would be periodically renewed. The department deals with it on a contractual basis because the National Treasury had ring fenced the monies for a specific purpose and time period. The National Treasury can withhold that money at any time and it was for this reason that the department contracts on a year to year basis. At the end of the year National Treasury assessed the performance of the backlog courts and either allocated funding or removed it.

 

Many of the magistrates that applied were attorneys or advocates or private practitioners. The magistrates may, at any point, when there were vacancies for permanent positions in the department, apply for such positions. It was up to the magistrate to decide whether he wanted to stay in the contractual acting position.

 

The department had identified a need for additional capacity within the establishment. It needed a further 12 regional court posts on a permanent basis. These posts were created and advertised and were in the process of being filled. The department committed to supplying a written report on all the vacancies in the country per court. The department noted the committee’s frustrations but also noted that the money covered in the presentation was for the additional magistrates on an acting appointment in terms of the backload case reduction programme. The salary for magistrates comes from the state revenue fund and was a direct charge that was not included in the department’s budget.

 

The department requested that the committee bear in mind that it did not appoint the magistrates. Appointments were dealt with by the Magistrates Commission. The vacancies would therefore fall within the Magistrates Commission’s scope of work. The removal of a magistrate was also not the department’s mandate and would fall to Parliament to authorise. The Minister had appointed a new head of the Magistrates Commission and the department therefore expected to see the transformation agenda move forward.

 

The department had 1694 magistrates.  There were 442 African male magistrates or 26% of the total. There were 249 African female magistrates amounting to 15%. There were 60 Indian males, 89 Indian females, 77 Coloured males, 52 Coloured females, 478 White males, and 247 White females. Black generic males amounted to 34%, white males 28%. Black generic females amounted to 23% and white females 15%.

 

The judges total 226. There were 70 African males, 22 African females, 14 Coloured males, 7 Coloured females, 10 Indian males, 12 Indian females, 73 White males and18 White females.

The department noted that there had been improvement in the figures but not as much as expected.

 

3.2 New court infrastructure

 

The committee noted that the proposed new court in Mamelodi had soil turned by the previous minister but the budget to implement the building project was not allocated. The department was requested to clarify the slow pace of delivering new courts buildings. There also appeared to be a trend whereby the affluent areas received new services and upgrades but the rural areas, where the need was, received nothing. The committee requested information on the upgrades to courts to facilitate access by disabled individuals to court complexes.

 

3.2 a) Department’s response

 

The department agreed that 2 courts per annum were not enough. The department agreed that the FIFA World Cup experience taught valuable lessons but the problem lay with the department’s insufficient budget allocation. The department not only had to build capital projects but also had to maintain existing structures. This severely constrained the department in building more courts. The department also had to rehabilitate other courts and therefore some new courts, like Mamelodi, had to be delayed. The department was currently working on maintaining three courts; the Ntuzuma court in Kwa-Zulu Natal, a court in Mpumalanga, and the Polokwane High Court.

 

The department agreed that infrastructure and courts still reflected the previous government order and courts were therefore situated in affluent areas. The Mamelodi court only catered to criminal matters and therefore you would not find civil courts in Mamelodi.  The department admitted that there was no concerted effort to address the problem although soil was turned at Mamelodi. The department had hoped that the planning would be completed that would allow the department to go on tender. The department depended on the Department of Public Works (DPW), as the implementing agent, to finalise the planning. They were not ready with the planning and therefore the moneys were shifted to a project that would be ready. When the Mamelodi project was ready to go to tender the department could not carry the cash flow related to the expenditure. The budget allocated was thus set aside for a number of projects and not one specific project and if DPW was not ready for implementation then the funds were committed to other projects. This was the case in Mamelodi. Construction projects were multi-year projects and once funds were committed to projects ready for funding, the department could not take on other projects because it could only carry a certain amount of cash flow.

 

The department acknowledged that the problem was poor planning as it had not aligned its planning to that of the DPW. The department admitted that government in general had a problem with regularly maintaining its infrastructure. Buildings in disrepair were more expensive to rehabilitate. The department had to juggle its resources carefully and could only build 2 courts per annum. It needed to take into account the projects that were already running and determine whether it could carry the cash flow needed to build a new court.

 

3.3 Department’s slow pace of delivery

 

The committee noted that the department, in becoming financially compliant, appeared to be losing focus on delivering a service.

 

3.3 a) Department’s reply

 

The department confirmed that in terms of the Public Finance Management Act (PFMA) and relevant treasury regulations it had to be financially compliant but in terms of its mandate it had to deliver services.  Although the department had prioritised a clean audit qualification its strategic plan commits itself to maintaining courts, building new courts and rendering services.

 

The department indicated that for the financial year 2008/2009 the department was qualified on 5 issues namely, Third Party Funds, irregular expenditure, leases, leave, and assets. It managed to reduce the qualifications from 5 issues to 2. The department was dealing with Third Party Funds and irregular expenditure. The department had a long term plan to achieve a clean audit by financial year 2012/2013. The department would achieve this by improving its accounting systems and automating some services at courts thereby doing away with the manual system of accounting.

 

The department, since end 2010, had started applying the correct legislation to deal with irregular expenditure relating to supply chain management. It had also significantly increased its human capacity within the supply chain management area and in the office of the Chief Financial Officer. The department had appointed 3 Chief Directors, 1 Director and staff at the appropriate levels.

 

The department noted that in line with its desire to be financially compliant its expenditure had also improved significantly since 2008, and in the last two financial years it was at 99% expenditure.

 

3.4 Department’s assistance to Chapter Nine institutions

 

The committee queried the department’s relationship with Chapter nine institutions and whether the Chapter Nine institutions were protected by the department in any way. The department rendered no assistance to protect the Public Protector who was left alone to face the backlash of her report. 

 

3.4 a) Department’s reply

 

The Minister had a mandate to oversee Chapter Nine institutions and therefore there was an obligation imposed on the department. The Chapter Nine institutions still maintained their independence as enshrined in the Constitution. The report by Professor K Asmal dealt with the matter of the independence of Chapter Nine institutions but the report was still in Parliament and had not been finalised.

 

The department acknowledged that more could have been done to assist the Public Protector and would raise the matter with the Director General.

 

The South African Human Rights Commission (SAHR) amendment Bill would also go a long way to ensure the independence of the Chapter Nine institutions. The amendments would bring it in line with the new Constitution. The Ad Hoc Committee headed by Prof Asmal tabled a report that made recommendations but the report had not been adopted by Parliament. The department, however, had looked at the report and were including some of the recommendations into the amendment bill.

 

3.5 Department’s efforts to contact victims of human rights abuses

 

The committee queried whether the department had contacted the people who were declared victims of human rights abuses during the Truth and Reconciliation Commission (TRC) process.

 

3.5 a) Department’s reply

 

The department still needed to do a lot more to contact victims identified during the Truth and Reconciliation process. The department had only dealt with Parliament and Non-Governmental Organisations to contact the victims. The department committed itself to engaging community radio stations to reach the victims whose reparation payments were still outstanding. The department acknowledged that it needed to be more active on this issue.

 

3.6 Reduction of case backlogs

 

The committee queried the reduction of the case backlogs. The committee enquired how many cases were still outstanding and how many had been dealt with thus far. The committee is concerned that awaiting trial prisoners were waiting too long for their cases to be finalised. Many people had been found innocent after spending years in jail awaiting trial.

 

3.6 a) Department’s response

 

The backlogs were reduced by about 10% per annum. There were 38 000 backlog cases country wide for 2009/10 financial year but these were reduced to 35 000 by 31 December. The last financial year the department managed to reduce the backlogs by 12 000 cases. The acting appointments helped to reduce the backlogs. Productivity at the courts was identified as a problem. The courts need to sit more often than they were sitting now. The committee agreed with the department but noted that the high case load of magistrates and judges exacerbated the problem.

 

The department reported that remand detainees or awaiting trial prisoners were causing overcrowding in the correctional facilities. There were approximately 47 000 remand detainees country wide. There were 676 prisoners longer than 21 months in prison. The majority of the people were less than 18 months in a remand detention facility. 79% were there for 1 – 9 months and this amounted to 39 238 people.

 

4. Recommendation

 

The Select Committee, having considered Budget Vote 24: Justice and Constitutional Development and the strategic plan of the Department of Justice and Constitutional Development supports the budget vote and recommends its approval.

 

 

5. Appreciation

 

The Committee expresses their thanks to the Department of Justice and Constitutional Development for the comprehensive presentations.

 

 

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[1] Full presentations can be obtained from the Committee Secretary, Mr G Dixon, at 021 – 403 3771.