ATC161026: Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 26 October 2016

Justice and Correctional Services

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 26 October 2016

 

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

 

1. Introduction

 

1. The Money Bills Procedures and Related Matters Amendment 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 may make recommendations on the future allocation of resources. These BRRR are also source documents for the Standing Committee on Appropriations when it makes recommendations to the National Assembly on the Medium-Term Budget Policy Statement (MTBPS). The annual review of expenditure and performance for 2015/16 forms part of this process.

 

1. The Committee oversees the Department of Justice and Constitutional Development and several other institutions that receive their allocation under the Justice and Constitutional Development Vote. These other institutions include the National Prosecuting Authority (NPA); Legal Aid South Africa; Special Investigating Unit (SIU); South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA).

 

 

 

1. The Justice and Constitutional Development Vote has five programmes:

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

 

Method

 

1. The Committee engaged with the Justice Department and NPA, Legal Aid SA, SIU, SAHRC and PPSA on their respective annual performance and spending for 2015/16. The meetings also addressed service delivery performance and spending to date (until the end of the First Quarter 2016/17), as well as their additional funding needs for the 2017 MTEF.

 

1. These briefings took place over a two-week period in October 2016, as follows:

• Department of Justice and Constitutional Development – 12 October 2016.
• National Prosecuting Authority – 12 October 2016.
• Special Investigating Unit -18 October 2016.
• Public Protector - 19 October 2016.
• Legal Aid South Africa - 19 October 2016.
• South African Human Rights Commission - 19 October 2016.

 

1. The Committee met with the Auditor-General on the audit outcomes for the Vote on 11 October 2016. On the same day, the Minister of Justice and Correctional Services addressed the Committee, providing a preview of the 2015/16 annual reports. He also introduced the new Director-General: Justice and Constitutional Development, Adv. Vusi Madonsela, to the Committee.

 

1. Copies of all the presentations are available from the committee secretary.

 

Structure of the report

 

1. This Report comprises five parts:

• Part 1 provides:
  • An overview of the key policy focus areas and developments.
  • An overview of the allocation to the Justice and Constitutional Development Vote for the period under review.
  • A discussion of expenditure patterns for 2015/16 and the First Quarter 2016/17.
  • A summary of reported funding challenges
  • A summary of the audit outcomes for the Vote for 2015/16.

 

• Part 2 gives:
  • An overview of the strategic and operational environment that informs the delivery of justice services by the Department; and
  • Selected performance information, as reported to the Committee, for Programme 1: Administration; Programme 2: Court Services and Programme 3: State Legal Services; Programme 4: National Prosecuting Authority; and Programme 5: Justice Modernisation.
• Part 3 contains selected performance information for Programme 5: Legal Aid SA; SIU; SAHRC and PPSA.
• Part 4 sets out the Committee’s observations.
• Part 5 sets out the Committee’s reporting requests and recommendations.

 

Part 1

 

1. Overview of key policy focus areas and developments

 

1. Among others, the National Development Plan (NDP) requires that we build safer communities; promote accountability and fight corruption; and strengthen judicial governance and the rule of law. To give effect to the NDP, Government has developed actions and targets, which are found in the Medium Term Strategic Framework (MTSF) 2014-2019. Departments began to align their strategic and operational planning to the MTSF in 2014/15 with full alignment from 2015/16 onwards.

 

1. In terms of the MTSF, it is possible to assign responsibilities to Justice in four key areas:

• Safety (by contributing to an efficient and effective Criminal Justice system; securing cyberspace; and reducing corruption in the public and private sectors).
• Public Service (by strengthening protection of whistle-blowers and creating an open, responsive and accountable public service through the Promotion of Access to Information Act, 2000).
• Social protection (by providing certain justice services to the public, such as maintenance services and the administration of the Guardian’s Fund).
• Nation building and social cohesion (by promoting knowledge of the Constitution and fostering constitutional values, and enabling participation and communication).
• 1. There is need to accelerate transformative processes to ensure a justice system that is able to deliver on constitutional imperatives.

 

1. On 1 April 2015, the Office of Chief Justice (OCJ) became a fully-fledged Department with its own Vote. This was accompanied by important change to the structure of the Vote for Justice and Constitutional Development. The administration and allocation for the Superior Courts, Judicial Services Commission (JSC) and South African Judicial Education Institute (SAJEI) were transferred to the OCJ, together with personnel. The funds for judges’ salaries were also transferred to the new Vote.

 

1. The transformation of the Lower Courts to advance access to justice is being addressed. The Superior Courts Act, 2013, sets out a blueprint that will guide the revision of the Magistrates Court Act, 1944. The overhaul will also look at less adversarial forms of adjudication, including community courts and court-annexed mediation.

 

1. The project to rationalize magisterial boundaries has been finalized in four provinces (Gauteng, North West, Limpopo and Mpumalanga) and will be completed in the Free State and Northern Cape provinces in 2016/17.

 

1. The Limpopo High Court will be officially opened in November 2016, although it has operated since the beginning of 2016.

 

1. To boost access to justice, the Department is also looking into establishing multi-door precincts at the seats of the Magistracy where local seats of the High Court are established, albeit with separate entrances. The Lephalale and Upington Magistrates’ Courts have been earmarked as pilot sites.

 

1. Transformation of the legal profession remains a key priority. In this regard, the Department is developing policies to address the allocation of State legal work to attorneys and advocates in private practice.

 

1. The Legal Practice Act, 2014, provides a framework for the fundamental transformation of the legal profession to advance access to justice. A transitional body – the National Forum of the Legal Profession – came into operation in February 2015 and has submitted two reports to Parliament.

 

1. Multi-lingualism as a constitutional imperative requires parity of languages and, in the legal sector, calls for development of the use of indigenous African languages in our courts. The Department has changed its approach to focus on court proceedings and legal process rather than on the language of record. A discussion document on the use of African Languages in court proceedings and court processes is being developed and, together with legislation to amend the Magistrates Court Act and Rules Board Act, will serve as a resource document at a Conference to be convened before the end of 2016/17.

 

1. The Department has a renaissance project. The Constitution envisages a renaissance of our legal system that still bears the hallmarks of Roman Dutch law and English Law. This renaissance calls for the systematic creation of a new body of law, through legislation and a progressive jurisprudence, that is predicated on the supremacy of the Constitution and the Rule of Law.

 

1. The Department intends introducing a number of bills that are key to the transformative agenda:

 

1. The traditional justice system has a vital role to play in the administration of justice. Although traditional courts do not need legislation to exist, legislation is needed to regularize the courts and to bring them in line with the Constitution, as well address the procedural differences of traditional courts. Following the introduction of a Traditional Courts Bill to Parliament in 2008 and then again in 2012, it became evident that it was necessary to revisit certain policy considerations that formed the basis of the Bill, in particular the participation of women in traditional justice systems; defining the nature of the courts including the use of terminology in the Bill; jurisdictional boundaries of the courts; jurisdiction in respect of conflict resolution; and opting out. Significant progress has been made and it is expected that a Bill will be tabled in Parliament during 2016/17.

 

1. Legislation that will recognise paralegals as professionals is at an early stage: the intention is to finalise a draft policy document by the end of March 2017 for consultation. The document will inform the preparation of a draft bill. In the meantime, the Department has identified a number of areas where the services of paralegals can advance access to justice (For example as: mediators; mediation officers or representatives of parties to mediation in court-annexed mediation; designated practitioners at the Equality Courts; and providers of general community-based and quasi-judicial legal services.).

 

1. Legislation that criminalises racism and hate crimes is at an advanced stage. The Department has published a draft Bill for public comment.

 

1. Further, the draft National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances has undergone an extensive public consultation process. The collation and synthesis of inputs and the finalisation of the NAP, including the action plan, is the next step.

 

1. Overview of Justice and Constitutional Development Vote: Budget allocation and expenditure 2015/16 and 2016/17

 

1. Appropriation 2015/16 and 2016/17

 

1. The Department was allocated R16.86 billion in 2015/16. Budget reductions in the amount of R1 billion were made to the 2015 MTEF baseline allocation, as follows: R287 million in 2015/16, R406 million in 2016/17 and R330 million in 2017/18. This was as a result of cost containment measures and underspending of funds in capital works and justice modernisation projects.

 

1. In October 2015, the Justice budget was adjusted downwards to R16.84 billion. Unspent funds of R110 million were returned to the Fiscus, as follows:
2. R60 million on computer services went unspent due to delays in the implementation of the Integrated Justice System projects; and
3. R50 million on compensation of employees went unspent due to delays in the filling of vacant magistrates’ posts.

 

1. The allocation to the Justice and Constitutional Development Vote for 2016/17 is R18.09 billion (compared with R16.8 billion for 2015/16), including magistrates’ salaries. Over the medium term, the allocation increases to R20.1 billion in 2018/19. In 2016/17, the total for programmes is R16.05 billion.

 

Table 1: Vote 21 - Justice and Constitutional Development for the 2016 MTEF per programme

 

Programme (R ‘000)	Budget 2016 MTEF
	2015/16	2016/17	2017/18	2018/19
Administration	1 872.9	2 079.9	2 118.8	2 197.4
Court Services	5 579.1	6 121.6	6 463.6	6 827.1
State Legal Services	1 045.7	1 1278	1 221.2	1 285.7
National Prosecuting Authority	3 394	3 557.5	3 684.3	3 836.8
Auxiliary and Associated Services	3 118.5	3 162.7	3 495.2	3 698.1
TOTAL	15 010 8	16 049.7	16 983 2	17 845.2
Magistrates’ Salaries	1830.8	2 040.2	2 140.5	2 264.7
Total	16 841.5	18 089.9	19 123.7	20 109.9

 

1. Spending trends 2015/16

 

During 2015/16 and the First Quarter 2016/17, the following spending trends emerged:

 

1. By the end of 2015/16, the Department spent R16.7 billion (or 99.1%) of the adjusted appropriation (inclusive of magistrates’ salaries), leaving unspent funds amounting to R148 million. This is a considerable improvement compared to previous years (In 2014/15, a total of 97.1% of allocated funds were spent). The unspent funds are attributed mainly to delays in the filling of vacant posts (in the State Legal Services programme and Magistrates) and slow progress by the JCPS Cluster in the implementation of Criminal Justice System Review/Revamp (CJS) and Integrated Justice System (IJS) projects. These are areas where slow spending is regularly observed.

 

1. Most of the unspent monies are found under the Direct Charges:
2. An amount of R109 million went unspent under Direct Charges (Magistrates’ salaries).
3. Other underspending is attributed to the late submission of March invoices from DPW for office accommodation and from SITA for computer services, as well as the non-filling of vacancies.

 

1. In 2015/16, slow spending of Earmarked Funds was observed once more for the First to Third Quarters of 2015/16 for the IJS and CJS Review/Revamp projects. However, the budget for this item was reduced following the Adjustments’ process in October 2015: A total of R20 million was moved to the OCJ and R50 million was surrendered to the Fiscus. By the end of the year, spending on the IJS/CJS Review/Revamp was at 98%, with only R9.4 million remaining unspent.

 

1. Also under earmarked funds, the Department spent R987.9 million or 99% of the R1 billion set aside for accommodation charges, leases and municipal services. However, at year end, there were outstanding invoices for office accommodation.

 

1. Spending for the First Quarter 2016/17

 

1. During the first quarter of 2016/17, the Department’s overall expenditure was R4.1 billion, representing 22.9% of the approved budget of R18.1 billion, inclusive of Direct Charges. The Department was below the approved projections by 2.2 %, which is equivalent to R95.4 million.

 

1. Programme spending for the First Quarter 2016/17 was as follows:
2. Slightly higher than planned spending occurred mainly in the Administration, National Prosecuting Authority and Auxiliary and Associated Services programmes.
3. Lower than projected spending can be observed under the Court Services and State Legal Services programmes.
4. The spending on magistrates’ salaries was also less than projected as a result of delays in filling of vacant positions.

 

1. For Court Services, all subprogrammes show lower spending but particularly so under the Magistrates Commission and Facilities Management subprogrammes. The lower than anticipated spending on buildings and other fixed structures is mainly due to delays in finalising the assessment of reconciliations, as the Independent Development Trust (IDT) failed to promptly respond to the Department’s queries.

 

1. In State Legal Services, spending on this programme was slightly behind the approved projection of 23.3% as a result of delays in the filling of vacancies.

 

1. The NPA spent 25.1% of the approved projections of 24.3%. Higher than projected spending occurred mainly under the budgets for compensation of employees and goods and services.

 

1. Higher than planned spending occurred under the Justice Modernisation subprogramme (by R28.3 million), mainly due to the settlement of invoices in respect of the IJS/CJS projects that were carried over from the previous financial year as a result of the late submission of March 2016 invoices by SITA.

 

1. With regard to Earmarked Funds, higher than projected spending was recorded on leases as a dispute with the Department of Public Works (DPW) was resolved at the beginning of 2016/17 and payment was made. Spending on municipal services is very low because of delays in the submission of invoices by the DPW.

 

1. Spending on Direct Charges in the first quarter of 2016/17 was 22% of the R2 billion appropriated. This is R29.4 million lower than the approved projections mainly due to delays in the filling of vacant positions.

 

1. Reported funding challenges

 

1. The Department reports that once the Direct Charges and Earmarked Funds are excluded, its Compensation of Employees budget is very close to the ceiling for this item.

 

1. The Department projects overspending on human resources in Court Services at R30 million and in the NPA at R60 million. During this year’s Budget hearings, the Department reported that it expected to be able to absorb the budget cuts for 2016/17, feeling the pressure only in 2017/18. However, in light of the projected overspending, the Department reports now that it will need to look at cutting posts.

 

1. Audit outcomes for 2015/16

 

1. The Table below summarises the audit outcomes for the Justice Vote for 2015/16 and provides a comparison with previous years (2013/14 and 2014/15):

 

 

 

 

Table 2: Summary of audit outcomes for the Justice Portfolio 2013/14 – 2015/16

	2013/14	2014/15	2015/2016
Justice	Unqualified with findings (Compliance)	Unqualified with emphasis of matter (National Treasury has exempted the Department from accounting for fines and recoveries by the State Attorney until 31 March 2015 (TPF)) and findings (Compliance)	Unqualified with findings (Material misstatements on the financial statements had to be corrected after being submitted for auditing; and compliance, including Supply Chain Management (SCM))
NPA	Unqualified	Not applicable: Reported as part of the Justice Department	Not applicable
Legal Aid SA	Unqualified	Unqualified	Unqualified
Third Party Funds	Disclaimer	Disclaimer	Qualified
Guardian’s Fund	Unqualified	Unqualified	Unqualified
President’s Fund	Unqualified	Unqualified	Unqualified
SIU	Unqualified with findings (PDOs and compliance)	Unqualified with findings (Compliance)	Unqualified with findings (Compliance)
PPSA	Unqualified with findings	Unqualified with findings (Compliance)	Unqualified with findings (Compliance)
SAHRC	Qualified with findings (Payables; property, plant and equipment)	Unqualified with findings (Compliance)	Unqualified

 

1. For the Justice portfolio, the Auditor-General reports overall progress in the audit outcomes: The Third Party Funds (TPF) have moved away from a disclaimer to a qualified audit opinion and the SAHRC improved from an unqualified audit opinion with findings to a clean audit opinion.

 

1. Third Party Funds

 

1. In 2015/16, the Auditor-General issued a qualified audit opinion for the TPF. The qualification is attributed to the following root causes: Inadequate financial reporting systems and proper record keeping processes and reconciliations to support and enable preparation of complete and accurate financial statements.

 

1. The Auditor-General has made the following recommendations:

• Upgrading of current information systems to ensure both administrative management of funds held in trust, as well as to generate reliable and timeous financial reports (A new accounting system to replace JDAS has been procured and is being tested).
• Improved records management at court level to ensure that all amounts disclosed in the financial statements are supported by credible audit evidence.
• Discipline of daily and monthly reconciliations of cash, bank and beneficiary accounts to ensure the validity and completeness of all transactions in the accounting records.

Part 2

 

1. Overview of the Department of Justice and Constitutional Development’s strategic and operational environment 2015/16 and 2016/17

 

1. From 2015/16, the Department fully aligned its priorities with the NDP to address, in particular, chapters 12 (Building safer communities) and 14 (Promoting accountability and fighting corruption). The Department also has a role to play in implementing chapters 11 (Social protection), 13 (Building a capable state) and 15 (Transforming society and uniting the country).

 

1. The Department has the following strategic outcome-orientated goals:

• An efficient, effective and development-orientated administration (aligned to Outcome 12: an efficient, effective and development-orientated Public Service).
• Improved administrative support to the justice system enabling efficient resolution of cases (criminal, civil and family law) (aligned to Outcome 3: all people in South Africa are and feel safe, and Outcome 13: An Inclusive and responsive social protection system).
•  Provision of quality legal services that strengthens the capacity of the State (aligned to Outcome 12: an efficient, effective and development-orientated Public Service).
• Promote constitutionalism and social justice to contribute to social cohesion (Outcome 14: nation-building and social cohesion).
• Improved prosecution services.

 

1. Notably, in 2015/16, the Department shifted its internal priorities. Although the focus on good governance and service turnaround in Maintenance Services remained, service turnaround in the Master’s Office fell away as a priority area. Instead, the Department has prioritised service turnaround in the State Attorney’s Office and the creation of youth employment opportunities.

 

1. Also, from 2014/15, the NPA has reported together with the Justice Department. The NPA has the following strategic objectives:

• Increased successful prosecutions.
• Improved successful prosecution of cases that require specialised prosecution.
• Ensure that profit is removed from crime.
• Ensure that threatened witnesses are successfully protected.

 

1. Overall, the Department’s performance has regressed. This decline in performance is attributed to the following:

• The migration of identified officials to the OCJ: When the OCJ became a Vote Department from 1 April 2015, a number of senior posts, particularly in the court environment, were transferred to the OCJ to allow it to operate optimally within a relatively short space of time. The Department has created additional posts to close this capacity gap.
• Challenges with the implementation of the OSD continued to affect performance, particularly in the State Attorney’s Office and the Office of the Chief State Law Advisor due to an inability to fill critical posts. The Department has worked with the Department of Public Service and Administration to mitigate the effect that the moratorium on the filling of vacant posts has had on its efforts to fill these LP10 posts.
• Following the appointment of the new National Director of Public Prosecutions (NDPP), the NPA underwent a restructuring process that adversely affected its performance.
• A large number of high profile cases diverted capacity and resources away from other areas.

 

1. The following performance information sets out progress relating to the MTSF targets.

 

 

Table 3: Summary of performance for MTSF targets for 2015/16 and First Quarter 2016/17

ACTION	INDICATORS	TARGET	RESULT
Implement integrated activities in terms of the Criminal Justice System (CJS) Seven Point Plan (7PP) to make the CJS more efficient and effective.	A CJS Business Plan (2014- 2019) aligned with Departmental Strategic Plans /Annual Performance Plans	Plan to be implemented by all Departments by April 2015	Not achieved By the end of the 2015/16 financial year a draft plan had been finalised but consultations were still ongoing around sign-off
Establish an integrated electronic CJS system to provide accurate and timely management of information.	Integrated Case Management	CAS/ECMS/ICMS case outcome integration rollout to 40 courts (Fully established and functional by 2018/19)	In progress National system deployed in March 2016. Footprint expanded to 509 courts and all SAPS stations. The system can now produce an electronic charge sheet from the Electronic Case Management System at the NPA.
	Integrated Person-related Information System (PIVA)	Fully established and functional by 2017	In progress PIVA delivered to five sites in Limpopo and two in Mpumalanga for the SAPS specialised crime units: Rhino poaching and stock theft Units
	Key Performance Indicators Measurement System for the Criminal Justice System	13 of 28 KPIs approved by Cabinet by 2015   Target changed Sept 2015: 18 of 28 KPIs approved by Cabinet	Not achieved 14 of 28 KPIs have been achieved. The additional 4 KPIs targeted for 2015/16 were not achieved (Accused Verdict Rate; Court Room Utilization Rate; Trial Certainty Rate as well Adjudication Time were not achieved during the reporting period)
Implement practical short and medium term measures to address backlogs and to improve the all-round performance of courts	No. of criminal backlog cases in court	25 338 (2015/16)   21 788 (2018/19)	Not Achieved 47 324 cases on backlog roll by end 2015/16 The Department reports that the calculation to determine a backlog case has changed to align with the judicial norms and standards.
Enact holistic Cybersecurity Legislation	Cyber-security Bill	Bill approved by Cabinet for public comment and introduction to Parliament (2014/15)	in progress Cybercrimes and Related Matters Bill was only approved by Cabinet in August-2015. Bill was published for comment by 30 November 2015. A reference group has been established to take the process forward.
Strengthen anti-corruption legislation	Prevention of Corrupt Practices Act	Reviewed, amended and implemented by December 2015	Not achieved No explanation provided
Strengthen protection of whistle-blowers	Protected Disclosures Act	Amended by 2014/15	in progress Bill introduced on 8 December 2015

 

 

1. Programme performance 2015/16 and First Quarter 2016/17

 

1. The Department administers four of the Vote’s programmes: Administration; Court Services, which is the Department’s core programme and consumes the majority of the Department’s budget; and State Legal Services. From 2014/15, the NPA reports on its spending together with the Department. Under Auxiliary and Associated Services, the Justice Modernisation sub-programme funds the JCPS Cluster projects relating to the Criminal Justice System Review/Revamp and Integrated Justice System.

 

1. Overall, in 2015/16, the Department achieved 70% of the planned indicators (compared with 85% in 2014/15).

 

1. The tracking of new objective indicators was not completed timeously because of capacity constraints.

 

1. The Department reports that it achieved 68% of its planned indicators for the First Quarter 2016/17.

 

1. Programme 1 - Administration

 

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

 

7.5.2.         The programme has four strategic objectives: Increased compliance with prescripts for good governance; implementation of programmes aimed at creating employment opportunities; reduction of fraud and corruption cases in the Department; and increased number of public bodies compliant with the Promorion of Access to Information Act, 2000.

 

7.5.3.         Programme performance for 2015/16: Met or exceeded targets in 69% of performance indicators (compared with 90% of performance indicators in both 2014/15).

 

 

 

 

 

 

 

Table 4: Administration- Selected targets and actual performance 2015/16 and First Quarter 2016/17

INDICATORS	TARGETS
	2014/15	2015/16	First Quarter 2015/16
% interventions to resolve internal and external audit	NOT ACHIEVED 86% achieved against a target of 88%	NOT ACHIEVED 81% against a target of 90%	Not applicable to the Quarter
% of forensic investigations finalised	EXCEEDED 86% against a target of 70%; 180/210 cases received finalised	NOT ACHIEVED 91% against a target of 92%	EXCEEDED 74% against a target of 35%
No. of people appointed on internship and learnership programmes.	-	EXCEEDED 808 against a target of 800	Not applicable for the Quarter, but the output was 55 with an annual target of 850
No. of employment opportunities created for the youth	-	NOT ACHIEVED Baseline information report not completed	Not applicable for the Quarter
% compliance with PAIA by Department	EXCEEDED 88% against a planned target of 70% (297/338)	EXCEEDED 99% against a target 75% (204/206)	EXCEEDED 94% against a target of 90%

 

 

 

1. Programme 2 - Court Services

 

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

 

7.6.2.         The Programme has five strategic objectives: Improved finalisation of activities in support of Outcome 3 (backlog courts); improved court based services to achieve client satisfaction within vulnerable groups; increased protection of children and promotion of family cohesion through mediation; increased access to justice by under-serviced communities (facilities and infrastructure); and improved levels of compliance with quasi-judicial services.

 

7.6.3.         Programme performance for 2015/16: Met or exceeded 76% of performance indicators compared with 2014/15 when 92% of performance indicators were met.

 

Table 5: Court Services - Selected targets and actual performance 2015/16 and First Quarter 2016/17

 

INDICATORS	TARGETS
	2014/15	2015/16	First Quarter 2015/16
No. cases on the backlog role	NOT ACHIEVED 29 480 against a target of 29 952	NOT ACHIEVED 47 324 against a target of less than 25 338	Baseline information report compiled
CJS Business plan completed by target date	-	NOT ACHIEVED
% of complainants satisfied with court based services		ACHIEVED Baseline survey completed
% of maintenance cases finalised within 90 days after proper service of process	EXCEEDED 90% against a target of 15%. 8650/9588 cases finalised	EXCEEDED 85% against a target of 55%	EXCEEDED 83% against a target of 60%
No. of re-established sexual offences courts completed	EXCEEDED 14 courts completed against a target of 12	EXCEEDED 14 court rooms completed against a target of 12	NOT ACHIEVED I court room established against a target of 2 (50%)
% of convictions recorded on the NSRO	EXCEEDED 100% against a target of 78%	EXCEEDED 100% against a target of 92%	EXCEEDED 100% against a target of 95%
% of clients perceiving an increase in access to justice services (Baseline Survey report)	-	NOT ACHIEVED
% of clients satisfied with quasi-judicial services (Baseline survey report)	-	NOT ACHIEVED
No. of small claims courts established	EXCEEDED 39 against a target of 25	EXCEEDED 40 of a target of 30)	No target for the Quarter but 7 courts established with an annual target of 30

 

 

1. Programme 3 - State Legal Services

 

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

 

7.7.2.         The Programme has eight strategic objectives: Increased efficiency in the provision of Master’s services to all beneficiaries; improved management of litigation on behalf of the State to reduce litigation costs and transform the legal profession; enhanced reintegration of petty offenders into the socio-economic environment; provision of quality legal advisory services; fulfilment of international obligations by the Department; development of legislative instruments that withstand constitutional challenge; promotion of broad-based knowledge about and support for values of equality, human dignity and fundamental human rights; and implementation of the Truth and Reconciliation Commission’s (TRC) recommendations, as approved by Parliament.

 

7.7.3.         Programme performance for 2015/16: Met or exceeded target in 77% of performance indicators.

 

Table 6: State Legal Services - Selected targets and actual performance 2015/16 and First Quarter 2016/17

INDICATORS	TARGETS
	2014/15	2015/16	First Quarter 2016/17
% of letters of appointment issued in deceased estates within 15 days of receiving all required documents	NOT ACHIEVED 89% against a target of 91%	NOT ACHIEVED 92% against a target of 95%	EXCEEDED 96% against a target of 92%
% of beneficiaries in receipt of services within 40 days (Guardian’s Fund)	EXCEEDED 92% against a target of 90%. This is 42 399/45 887 beneficiaries	EXCEEDED 93% against a target of 91%	NOT ACHIEVED 71% against a target of 92%
No. of positions filled (State Attorney)	-	EXCEEDED 176 against a target of 73	-
% value of briefs distributed to PDIs	ACHIEVED 76% against a target of 76%	EXCEEDED 80% against a target of 77%	EXCEEDED 78% against a target with 77%
% of expungements completed within 3 months		NOT ACHIEVED 75% of expungements completed against a target of 80%	ACHIEVED 75% against a target of 75%
No. of needs analysis completed in TRC identified communities	NOT ACHIEVED 6 communities against a target of 8. Not achieved in 2 communities because of unavailability of stakeholders	NOT ACHIEVED 0 against a target of 6 communities	NOT ACHIEVED 0 against a target of 1
% of people with awareness of the Constitution	-	NOT ACHIEVED 46% against a target of 54%	No target for the Quarter against an annual target of 4 million

 

 

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

 

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

 

7.8.2.         In 2015/16, there are three indicators for this sub-programme: Number of key performance indicators on the integrated CJS; % completion of ICMS Criminal Modernisation; and number of criminal cases postponed via the Audio Visual Remand system.

 

Table 7: Auxiliary and Associated Services Programme - Justice Modernisation subprogramme: Selected targets and performance 2015/16 and First Quarter 2016/17

INDICATORS	TARGETS
	2014/15		2015/16	First Quarter 2015.16
% of CJS Performance Dashboard completed	ACHIEVED System developed for 14 Key Performance Areas – piloted and deployed.		NOT ACHIEVED 14 of a target of 18	-
% of ICMS criminal modernisation	-		ACHIEVED 50% of a target of 50%	NOT ACHIEVED 0% against a target of 15%
No. of cases postponed via the Audio Visual Remand (AVR) system		EXCEEDED 10 019 cases against a target of 8 000	NOT ACHIEVED 11 329 against a target of 12 000	NOT ACHIEVED 2495 against a target of 3000

 

 

1. National Prosecuting Authority

 

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

 

8.2.        The NPA is a programme within the Justice and Constitutional Development Vote and the Director-General: Justice and Constitutional Development is its accounting officer. In the past, National Treasury provided an exempion that allowed the NPA to prepare its own annual financial statements separate from those of the Department until legislation regularising the practice was enacted but this exemption expired on 31 March 2014. Consequently, from 2014/15, the Department of Justice and Constitutional Development also reports on the NPA. The National Director of Public Prosecutionssubmitted a report on the operations of the prosecuting authority for 2015/16.

 

8.3.        For the 2015/16 financial year, the NPA received a budget allocation of R3.37 billion. Funds were reprioritised from within the Justice Vote to fund the appointment of 41 new prosecutors over the medium term. In October 2015,  the NPA’s budget was adjusted upward to R3.39 billion. However, after this, there was a virement of R20.1 million from the NPA’s budget to the Justice Department’s programmes. This left the NPA with a final allocation of R3.37 billion.

 

8.4.        The NPA spent 100% of its allocation for 2015/16 as follows (a comparison with 2014/15 is included):

 

Table 8: NPA Budget allocation and spending 2014/15 and 2015/16

	2014/2015		2015/2016
R’000
Sub-programme	Final appropriation	Actual expenditure	Final appropriation	Actual expenditure
NPS	2 144 150	2 144 150	2 326 444	2 326 444
NSPS	269 485	269 485	299 038	299 038
AFU	133 568	133 568	133 138	133 138
OWP	160 737	160 737	183 689	183 689
Support	546 183	546 183	423 037	423 037
Total	3 354 123	3 254 123	3 374 346	3 374 346

 

8.5.        The NPA remains committed to the strategic direction it embarked on some years ago. This is informed by the NDP, the MTSF and the refined JCPS delivery agreement. The NPA has identified the following MTSF 2014-2019 priority areas as relevant: strengthening the Criminal Justice System; building safety using an integrated approach; and building community participation in community safety.

 

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

 

8.7.        The NPA has four strategic objectives, each specifically linked to a sub-programme: National Prosecutions Service (NPS), National Specialised Prosecutions Services (NSPS), Asset Forfeiture Unit (AFU); the Office for Witness Protection (OWP) and Support Services (SS).

 

8.8.        The strategic objectives are as follows:

• Increased successful prosecutions (NPS): To increase the number of criminal court cases finalized, including ADRM, to 504 489 by 2019/20.
• Improved successful prosecution of cases that require specialised prosecution (NSPS): To increase the conviction rate of complex commercial crime cases to 93% (966) by 2019/20 and expand the number of Thuthuzela Care Centres (TCCs) to 75 by 2019/20.
• Ensure that profit is removed from crime (AFU): To increase the number of completed forfeiture cases to 450 by 2019/20 and increase the value of freezing orders to R1.3 billion by 2019/20.
• Ensure that threatened witnesses are successfully protected (OWP): To ensure that no witnesses or related persons are harmed, threatened or killed while on the witness protection programme.

 

8.9.        NPA performance relating to the following key MTSF targets is as follows:

 

 

Table 9: NPA - Summary of performance for MTSF indicators for 2015/16

Indicator	2014/15 Achievement	2015/16 acheivement
Conviction rate for sexual offences	Exceeded 69% against a target of 67%	EXCEEDED 70% against a target of 68%
Conviction rate for trio crimes	NOT ACHIEVED 82% against a target of 85%	NOT ACHIEVED 82% against a target of 85%
No. of criminal cases finalised with verdict	Not achieved 319 149 against a target of 324 276	NOT ACHIEVED 310 850 against a target of 319 149
No. of criminal cases finalised with ADRM	Exceeded 184 314 against a target of 149 204	EXCEEDED 166 952 against a target of 152 188
Conviction rate for cybercrime	Exceeded 95% (232) against a target of 74%	EXCEEDED 96% against a target of 74%

 

8.10.     The NPA met 64% of its targets. This is a decline in its performance from 2014/15 when it reached 70% of its performance targets. At subprogramme level: The NPS achieved 50% of its targets; the NSPS achieved 71% of its targets; the AFU met 67% of its targets; and the OWP met 100% of its targets.

 

8.11.     Key achievements for 2015/16 include:

• An improved conviction rate for sexual offences of 70%.
• An increase in the number of Thuthuzela Care Centres established from 44 to 55.
• High conviction rates were maintained in all courts, with an overall conviction rate of 93%.
• The target relating to the conviction of persons of corruption where the benefited amount is more than R5 million was exceeded (25 persons convicted against a target of 20)
• No witnesses were harmed or threatened while on the witness protection programme.

 

8.12.     Key challenges identified during 2015/16 include:

• The NPA has been the subject of ‘bad press’.
• In the Criminal Justice System:

• The implementation of pre-trial hearings has been slow in gaining traction.
• The ‘Norms and Standards’ for monitoring court performance have not been fully implemented.

• Not all annual targets in the Annual Performance Plan were achieved.
• Case-flow management remains a challenge and impacts negatively on court performance. Too few trials are placed on the criminal court rolls, resulting in wasted court hours.
• Inadequacies of roleplayers in the system remains a concern as it impacts on the finalisation of cases.
• A decline in levels of experience among SAPS detective services places a burden on prosecutors to guide investigations.
• The average number of criminal court hours fell by 7% across all lower courts compared to previous years.
• Fewer cases were finalised in all lower courts.

 

 

 

 

 

 

 

 

Part 3

 

Programme 5 Auxiliary and Associated Services

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

 

9.         Legal Aid South Africa

9.1.        Legal Aid SA is an autonomous statutory body that derives its mandate from the Constitution, 1996; the Legal Aid Act 39 of 2014; and other legislation requiring the government to provide legal assistance to the indigent. Its main objective is to make available legal representation to indigent persons at State expense,  ensuring the right of all citizens to access to justice. Notably, the Legal Aid Act, 2014, which replaces the Legal Aid Act 22 of 1969, provides that Legal Aid SA must render or make available legal aid and legal advice; provide legal representation at state expense; and provide education and information concerning legal rights and obligations, as envisaged in the Constitution. The Legal Aid Manual must be promulgated by the end of February 2017, while the Draft Regulations have been submitted to the Minister for approval and tabling in Parliament.

 

9.2.        Legal Aid SA had a final budget of R1.7 billion in 2015/16 and spent 99.1% of this. National Treasury introduced baseline reductions during the 2015 MTEF process as follows: R62 million in 2015/16 and R92.7 million in the 2016/17. Legal Aid SA was able to absorb these from its cash reserves so that service delivery has not been affected so far. Legal Aid SA is allocated R1.6 billion in 2016/17.

 

1. Legal Aid SA reports, however that the budget reductions will result in a shortfall of R45 million in 2017/18. If a further 1% is added to the reduction, the shortfall grows to R63 million, while a 2 % reduction increases the shortfall to R85 million. Legal Aid SA will need to reduce its recruitment budget by R10 million in 2017/18 and R49 million over the MTEF. This requires that Legal Aid SA decrease its staff by 32 in 2017/18 with a total of 140 posts lost over the MTEF. In terms of service delivery, Legal Aid SA reports that the reduction means that it will be unable to provide assistance in 5 375 matters in 2017/18 and 21 975 matters over the MTEF, while coverage of both the District and Regional Courts will be reduced by 208 and 96 days respectively for 2017/18. This will have adverse consequence for the functioning of courts.

 

1. Legal Aid SA received its fifteenth consecutive unqualified audit opinion in 2015/16; and the eleventh consecutive year in which no matters of emphasis were reported (clean audit).

 

1. Legal Aid SA has an establishment of 2 722 with a turnover rate of 7.2% in 2015/16. The recruitment rate was at 95.4%, which was slightly less than the target of 96%. Legal staff, including paralegals, account for 79% of the establishment.

 

1. The number of matters in which assistance was provided decreased by 3.9% compared to 2014/15. However, no one was turned away. Rather, the demand for general advice has stabilised.

 

1. In 2015/16, Legal Aid SA provided legal aid and legal assistance in 749 619 matters, which included 441 056 new legal matters (12% of which were civil matters); 308 563 advice matters; and 15 new impact litigation matters (of which 14 were finalised with a 93% success rate).  

 

1. Legal Aid SA achieved 88% coverage in the District Courts and 97% in the Regional Courts by better aligning staff with demand in the District Courts and maintaining high staffing levels in the Regional Courts. Coverage in the Regional Courts benefitted from the introduction of a relief component. Representation was provided in all matters that required legal aid in the High Courts.

 

1. Legal Aid SA provided assistance in 52 364 new civil legal matters. Representation given to children, women and in land/eviction matters increased.

 

1. A total of 17 701 children received legal aid in 2015/16, of which 68% were children in conflict with the law. There was a 2.8% increase in children’s new criminal matters and legal aid was provided to a total of 11 978 children in conflict with the law (a total of 3 441 children were represented in preliminary inquiry matters). However, the number of children in conflict with the law assisted has declined significantly since 2009/10, when 59 266 children were assisted.

 

1. Assistance was provided to 5 732 children in civil matters increasing by 18.5% when compared to 2014/15. Of these, 3 477 related to estate matters.

 

1. Legal aid was also provided in 308 563 advice matters, compared with 321 241 advice matters in 2014/15. Justice Centres and satellite offices provided advice in 242 045 matters and also provided advice to 30 574 remand detainees in 2015/16. The Call Centre provided advice in 35 944 matters.

 

1. In 2015/16, the following key challenges were reported:

• Limited relief capacity.
• A small percentage of practitioners did not meet the quality standard.
• Pending legal matters in the Regional and High Courts exceeded turnaround times.
• The number of advice matters did not meet the target by 8.5%.
• Sustainable marketing for the Legal Aid Advice Line.
• Recruitment of civil staff was below the target.
• Low economic growth and efficiency measures introduced by National Treasury continued to impact on the Budget.
• Cancellation of the Electronic Legal Aid Administrative System tender in May 2015 delayed the procurement of a new system.
• Budget reductions of R62 million in 2015/16 and R93 million in 2016/17.

 

10.       Special Investigating Unit (SIU)

 

1. The SIU has a new Head, Adv. Jan Lekhoa Mothibi, who was appointed in April 2016.

 

1. The SIU’s funding model provides for a baseline grant from National Treasury. In addition to this grant, the SIU charges state institutions for its services, thus raising additional revenue. In 2015/16, the SIU had a budget of R499 million; actual expenditure was R494.7 million with a surplus of R50 million. The SIU’s project income was reduced as there were fewer active proclamations in 2015/16 compared to 2014/15.

 

Table 11: SIU Overview of Budget and spending for 2015/16, compared with 2014/15

SIU BUDGET	2014/15	2015/16
TREASURY ALLOCATION	R296.8 million	R304.4 million
CARA FUNDING	R5.1 million	R4.1 million
CHARGES FOR SERVICES RENDERED	R227 million	R2174.0million
TOTAL	R534 million	R 494.7million
ACTUAL EXPENDITURE	R462. 2 million (87%)	R444.8 million
UNDER-EXPENDITURE	R71.7 million	R50 million

 

1. In 2015/16, the SIU maintained an unqualified audit opinion with findings.

 

10.4.     The SIU reported irregular expenditure of R2.5 million for 2015/16, compared to R5.5 million in 2014/15:

 

1. With regard to fruitless and wasteful expenditure, an amount of R8 780 was incurred in 2015/16: The SIU incurred interest on the late payment of employees’ PAYE to SARS; and payment of traffic fines by the SIU incurred by employees. This last amount will be recovered from the employees.

 

1. The SIU bases its performance around two strategic goals: quality forensic investigations and civil litigation; and strategic partner relations developed and maintained. The SIU has shifted its focus to procurement matters. This means investigating fewer but more complex cases. In addition, the SIU participates in various multi‐agency interventions. The Unit also reports on eight strategic drivers/enablers:

• Achieve optimal institutional form.
• Foster excellent cooperation with its law enforcement partners and stakeholders.
• Develop effective, accountable and engaging leadership.
• Secure appropriate capacity and funding.
• Align and improve systems and processes.
• Invest in appropriate technological capacity.
• Build an engaged, diverse and competent organisation.

 

Table 12: SIU Achievement of selected targets and indicators 2015/16 compared with previous years (2013/14 and 2014/15)

 

STRATEGIC OBJECTIVES	PERFORMANCE INDICATORS	TARGETS
		2013/14	2014/15	2015/16
Quality forensic investigations and civil litigation	No. of proclamations issued (New indicator from 2014/15)	-	NOT ACHIEVED (12 proclamations issued against a target of 20)	NOT ACHIEVED 5 proclamations issued against a target of 12
	Percentage of issued proclamations finalised (New indicator from 2014/15)	-	NOT ACHIEVED (0% of proclamations finished against a target of 66%)	NOT ACHIEVED 0 proclamations finalised against a target of 60%
	No. of civil matters instituted in court or the special tribunal (New indicator from 2014/15)	-	NOT ACHIEVED (4 civil matters litigated against a target of 20)	NOT ACHIEVED 5 matters against a target of 15
	Potential value of cash/assets recoverable	EXCEEDED (R261 million against a target of R100 million)	EXCEEDED (R844 million against a target of R200 million)	NOT ACHIEVED R73 million against a target of R220 million
	Actual value of cash assets recovered	EXCEEDED (R75.8 million against a target of R32 million)	EXCEEDED (R145 million against a target of R100 million)	NOT ACHIEVED R52 million against a target of R120 million
Strategic partner relations developed and maintained	No. of referrals made to the NPA	EXCEEDED (273 against a target of 50)	EXCEEDED (171 referrals to the NPA against a target of 50)	EXCEEDED 307  referrals against a target of 45
	No. of instances where potential disciplinary matters are brought to the attention of the relevant state institution	EXCEEDED (326 against a target of 120)	EXCEEDED (3769 disciplinary matters referred against a target of 100) (3456 of these matters relate to ESKOM)	68 against a target of 60

 

1. Performance for the first two quarters of 2016/17 is as follows:

	2013/14	2014/15	2015/16	YTD Actual	Annual Target
No. of investigations closed out	0	0	Baseline established	14	800
No. of reports submitted to the Presidency	0	0	Baseline established	-	5
Value of money/assets potentially recoverable	R261m	R844m	R73m	R21 m	R240m
The actual value of money/assets recovered	R75.8m	R145m	R52m	R3.6 m	R140 m
Value of potential loss prevented	0	0	Baseline established	R83.4 m	R18 m
Value of contract(s)/ administrative decision(s)/ action(s) set aside/ deemed invalid	0	0	Baseline established	R756 m	R600 m
Value of matters in respect of which evidence was referred for the institution of civil proceedings (including arbitration or counter civil proceedings)	0	0	Baseline established	R2.5 bn	R1.2 bn
No. of referrals made to NPA	Baseline established	171	307	19	60
No. of referrals made for disciplinary, executive and/or administrative action	Baseline established	3,769	68	9	75
No. of SIU member(s) participating in Joint Operation(s) or seconded to assist State Institutions	0	0	Baseline established	14	30

 

1. The SIU reports the following key performance highlights for 2015/16:

• A total of 20 final investigation reports were finalised and submitted to the Presidency.
• A total of five proclamations were published.
• Potentially an amount of R73 million may be recovered for the State.
• An amount of R52 million was recovered (in cash or assets) for the State.
• The value of the five civil matters instituted in 2015/16 amounts to R583 million. One matter, to the amount of R139.4 million has been finalised.
• The value of the 307 matters referred to the NPA amounts to R6.8 billion.
• The value of three contracts set aside amounts to R717 million.
• The value of payments not made as a result of the SIU’s intervention amounts to R310 million.

 

1. The SIU has a staff complement of 534 as at 31 March 2016, compared with 546 in March 2015. Of these, there are 419 operational and 115 non-operational staff. A total of 19 members of staff left the SIU and five new appointments were made. Of particular, concern are vacancies at senior management level with a vacancy rate of 23%.
2. The following operational challenges were identified and remedial measures put in place:

• The SIU had previously indicated that it experienced certain ‘practical difficulties’ in setting accurate targets. To address non achievement of targets in the APP and Strategic Plan, the SIU has refined its KPIs and improved on its targets for 2016/17.
• There has been a low flow in proclamations issued: The SIU has taken certain steps to improve business development initiatives and stakeholder relations. These include: entering into Memorandums of understanding (MoU) (with National Treasury (Office of the Chief Procurement Officer), the Department of Justice; and the Presidency); legislative changes; and a centralised approach to expedite motivations. In 2016/17, a total of nine new proclamations have been issued so far.
• The process to set up the Special Tribunal is receiving attention. Consultations with the Office of the Chief Justice (OCJ) have begun.
• The SIU is to receive feedback on the implementation of referred disciplinary actions and systemic recommendations by state institutions from the Presidency.
• The SIU has engaged with the NPA regarding the poor turnaround times for implementation of remedial actions by the NPA. A MoU has been drafted and includes a monitoring structure.
• The risk of cash flow challenges exists as a result of markedly prolonged payment times/non-payment by state institutions.
•  Key specialist resources, such as senior forensic lawyers, are in short supply. A recruitment process has been finalised.
• Measures to address ineffective collaboration with other law enforcement entities include targeted meetings with relevant stakeholders to ensure co-operation and protocols to regulate relationships.
• The current legislative framework does not provide for a pre-proclamation phase to investigations, which are often required to develop new opportunities. Draft amendments to the enabling legislation have been prepared.
  1. The SIU reports a new strategy to improve turnaround times: it intends to obtain very specific proclamations and will only investigate matters that directly relate to the allegations received. (Some investigations, however, consist of a large number of sub-investigations: Proclamation R5 of 2014, for example, includes the procurement and administration of 2162 leases at the DPW.) Where there are multi-year-investigations, the SIU will submit interim reports to the Presidency. In addition, the SIU has introduced project reviews that aim to fast-track the finalisation of investigations.

 

11.      South African Human Rights Commission (SAHRC)

 

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

 

1. The Commission was allocated R147.5 million for 2015/16 with expenditure of R152.7 million (103.5%).

 

1. The Commission reports that 169 posts were filled (of 185) with a vacancy rate of 9% (compared with 2014/15 when 162 posts were filled (of 180) with a vacancy rate of 10 %).

 

1. Performance in 2015/16 is measured through five strategic objectives (and associated targets), namely:

• Promote compliance with international and regional obligation: This strategic objective focuses on the Commissioners’ participation in international and regional activities. The Commission has been Chair of the Global Alliance of Human Rights Institutions for the past three years and assisted to strengthen the work of this body. The Commission developed and launched a monitoring framework and toolkit aimed at promoting the rights of persons with disabilities in line with the requirements of the Convention on the Rights of Persons with Disabilities. It also co-hosted a regional seminar to find practical solutions to end discrimination and violence based on sexual orientation and gender identity. Performance under this objective was 100%, with all targets achieved.

 

• Advance the realisation of human rights: In order to achieve this objective, the Commission engages with stakeholders, hosts public hearings and handles complaints. The Commission achieved 85% of targets. The Commission reported on its involvement in two strategic litigation cases. In addition, the Commission released reports in respect of four investigative hearings: emergency medical services; safety in farming communities; older persons; and housing and local governance.

 

• Enhance and deepen the understanding of human rights and promote a human rights culture: During 2015/16, the Commission commemorated the twenty years of the Commission’s existence by hosting a conference on racism. The Commission also hosted a roundtable discussion on Children and business rights. The Commission achieved all six targets set for this strategic objective.

 

• Use and project a broader constitutional and legislative mandate: The Commission seeks to advance the right to equality and right to access to information under this strategic objective and reports that it achieved targets set in respect of all seven indicators.

 

• Improve the effectiveness and efficiency of the Commission to support delivery on the mandate: This objective seeks to improve the Commissions efficacy and efficiency. The Commission achieved 83% of targets.

 

1. Overall, the SAHRC’s performance has improved over the past five years from meeting 52% of its targets in 2009/10 to 92% in 2014/15. In 2015/16, performance dipped slightly in that 90% of targets were met. The Commission attributes this decline to the following:

• An increase in incidents of xenophobic violence and hate speech led to an increase in complaints, which required that resources be diverted.
• The term of Deputy Chairperson, Commissioner P Govender, ended on 1 December 2015. Parliament’s failure to act timeously to replace the Commissioner impacted on stakeholder engagements.

 

1. Key achievements, as reported by the SAHRC, for 2015/16 include:

• Maintained a third consecutive unqualified audit opinion.
• Embarked on litigation with rulings in its favour dealing with the provision of school textbooks and emoluments attachment orders.
• Commemorated 20 years of the SAHRC, with a focus on racism.
• Participated in international and regional human rights mechanisms to promote state accountability for due obligations.
• Conducted two national investigative hearings relating to the situation of indigenous peoples and unfair discrimination in the workplace.
• Finalised 98% of cases against a target of 85%.
• Produced annual research outputs reflecting on the state of human rights in the country (including economic and social rights, equality and access to information reports).

 

1. Following a qualified audit opinion from the Auditor-General in 2012/13, the SAHRC has steadily improved its audit outcome so that for 2015/16 it achieves a clean audit.

 

12.      Public Protector South Africa

 

1. In 2015/16, the PPSA reports that its activities remained anchored in the constitutional mandate to support and strengthen constitutional democracy by ‘investigating any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action. The Public Protector has additional statutory mandates, including those derived from the Executive Members Ethics Act; Promotion of Access to Information Act; Prevention and Combating of Corrupt Activities Act; Protected Disclosures Act; and the Housing Consumers Protection Measures Act.

 

1. In addition, section 182 of the Constitution requires that the Public Protector must be accessible to all persons and communities.

 

1. In 2015/16, the PPSA was allocated a budget of R245 million. Finance and other income received brought the total revenue to R255 million. Total expenditure for the year came to R237.2 million (93%) with an operating surplus of R17.8 million.

 

1. At the end of 2013/14, the PPSA had an accumulated deficit of (R25.9 million) and current liabilities exceeded total assets. In response, the PPSA has implemented various austerity measures. By the end 2015/16, the deficit was significantly reduced to R515 442 (An operating surplus of R17.8 million assisted to reduce the deficit.).

 

1. During the 2015/16 financial year the PPSA recorded irregular and fruitless and wasteful expenditure: The amounts of irregular expenditure have increased from 2014/15 to R5.5 million, while fruitless and wasteful expenditure is at R2 000.

 

1. For the 2015/16 financial year, the PPSA reports that compensation for employees was R166.8 million (72% of total expenditure) against projected expenditure of R183.1 million. This underspending is a consequence of efforts to build up an operating surplus in order to further reduce the deficit.

 

1. The PPSA has 329 funded posts with an approved structure of 556 posts. At the end of 2015/16, the vacancy rate had risen to 10.9%, with 294 posts filled.

 

1. Notably, the 2015-2020 Strategic Plan and 2015/16 Annual Performance Plan were reviewed and targets revised in line with the institution’s budget constraints.

 

1. In 2015/16, the PPSA retained the following five strategic objectives:

·         Strategic Objective 1 - Accessible to and trusted by all persons and communities.

·         Strategic Objective 2 - Prompt justice including remedial action.

·         Straegic Objective 3 - Promotion of good governance in the conduct of state affairs. 

·         Strategic Objective 4 - An efficient and effective organisation.

·         Strategic Objective 5 - Optimal performance and purpose-driven culture.

 

1. The achievement of these goals is measured through three programmes:

·         Administration: Performance in respect of the Administration programme is measured through eight indicators (compared to 18 in 2014/15). Of the set targets, only one was not achieved.

·         Investigations: This programme seeks to ensure finalisation of investigations and implementation of remedial action. Performance is measured through 10 indicators. Targets were not achieved in respect of six of these indicators (constituting a 40% performance rating). In 2014/15, the institution had 23 targets for this programme but achieved only nine(a 39% performance rating).

·         Outreach: The indicators for this programme were reduced from 12 in 2014/15 to three, of which one was not achieved (Compared with an achievement of eight of 12 targets in 2014/15). Outreach activities were scaled down to contain costs.

 

 

 

 

 

1. There is an improvement in overall performance for 2015/16:

 

PERFORMANCE TARGETS	2013/14	2014/15	2015/16
Number of planned targets during the financial year	63	54	21
Number of targets achieved	37	28	13
Number of target not achieved	26	26	8
Percentage level of performance	59%	52%	62%

 

1. In 2015/16, the PPSA reports its case load was as follows:

 

CASE LOAD	2013/14	2014/15	2015/16	2016/17
Cases carried over	13 622	9 594	5 331	4 251
New cases	26 195	15 618	11 372	-
Finalised cases	24 642	20 231	12 735	-
Cases referred	3 072	2 740	1 159	-

 

 

 

 

 

 

 

 

 

 

 

 

 

Part 4

 

13.Committee’s observations

 

The Committee makes the following observations:

 

13.1.          BRRR process generally: For many years, the Committee has raised its concerns regarding the BRRR process and, more particularly, the timeframes associated it. Although committees already consider performance and spending on a quarterly basis in-year, this information is unaudited. The conflation of the formal process of evaluating the (audited) annual performance reports with the consideration of the future funding needs of departments, entities and institutions creates a process that simply needs more time than the parliamentary programme permits. The situation is especially difficult for committees, such as this one, who oversee more than one department, in addition to entities and institutions. The Committee also finds that the opportunity to interact with the public on its assessment of the relevant sector is curtailed by the timeframes. The Committee, therefore, believes that Parliament should explore the need to review the provisions of the Money Bills Procedures and Related Matters Amendment Act to enhance the BRRR process.

 

Department of Justice and Constitutional Development

 

13.2.          Transformation towards access to justice

 

13.2.1.      The Committee has in the past expressed frustration at the slow pace to realise substantive change to our legal system. The Committee, therefore, is very pleased about the steps that the Department has taken to move beyond structural reforms to advance a transformative agenda that will see substantive change to our legal system. The Committee has repeatedly warned that a legal system that does not speak to the needs of the society it serves will, in time, become no longer be regarded as legitimate, undermining respect for state institutions and putting the rule of law in jeopardy. Unfortunately, because of the time constraints that accompany the BRRR process, the Committee was unable to devote as much time as it would have wished to the Department’s presentation on this aspect of its work but will make time in its programme for a dedicated briefing.

 

13.2.2.      This transformative agenda recognises, among others, the vital role that traditional and community courts play in promoting access to justice, especially for those who live in rural communities. Further, these courts are largely “geared” towards restorative justice principles, which is in accordance with the NDP’s vision of promoting a cohesive society. The Committee notes that the Department has undertaken to introduce the Traditional Courts Bill, which will regularise traditional courts and bring them in line with Constitution, before the end of 2016/17. Although the Department has taken more time in bringing the legislation than anticipated, the Committee appreciates that there was a need to resolve the issues that had stalled the passage of the Bill in Parliament previously. The Committee is, therefore, pleased that the Department reports that it has largely addressed these aspects through its reference group and is now in a position to introduce the legislation by the end of 2016/17. It trusts that it will not be disappointed in this regard. The Committee is informed that the traditional courts will also provide a blueprint for the establishment of community courts going forward.

 

13.2.3.      The Committee welcomes steps taken by the Department to give effect to the constitutional imperative that people are able to participate in court proceedings in the language that they understand best. In this regard, thehe Department reports that it has begun work on a discussion document and has identified particular legislative amendments required that will address flexibility in the use of languages in court.The Committee recognises that there are challenges but in its view these are all problems that can be surmounted.

 

13.2.4.      The Committee repeats its view that it cannot be that institutions of higher learning continue to produce lawyers, who are unable to speak directly with their clients, nor do they understand the society they serve. The Committee urges that consideration be given to making knowledge of at least one indigenous language and of indigenous law a requirement for obtaining a  legal qualification.

 

13.2.5.      The Committee is pleased at the progress that the Department is making towards addressing the status of para-legals within the legal profession. It will continue to monitor progress in this regard and requests that the Department continue to keep it informed on a quarterly basis.

 

13.2.6.      The Committee notes too that draft legislation criminalising hate speech and crimes has been published for public comment. Also, the NAP has been subject to an extensive consultative process which was concluded at the end of August 2016. The Committee is pleased at the progress but urges that the Department keep to its promised timeframes.

 

13.2.7.      The Committee is interested to hear more from the Department regarding its  Renaissance project and will schedule a meeting accordingly.

 

13.3.          Budget reductions. The Committee is acutely aware of the broader fiscal context that shapes the funds that are available for spending. In light of this, the Committee commends the Department for doing the best that it can. The Department drew the Committee’s attention to a projected shortfall in its compensation of employees budget for 2016/17 of R20 million as the Department was not able to fully anticipate the impact of negotiated salary increases on its wage bill. The Department informed the Committee that it may need to shed posts to address this. The Committee understands the need to adhere to budgetary policy. However, after enaging with the Department, the Commisttee is of the view that, as the Department and NPA are engaged with provision of essential services, additional funds should be made available to avoid the loss of posts. It is also very clear to the Committee that the present funding constraints ensure that there is very little available to give effect to key policy measures that will see substantive transformation of the justice system so that access to justice becomes the lived reality for all.

 

13.4.          Audit outcome. The Committee welcomes the Department’s unqualified audit outcome for the fourth consecutive year but notes the Auditor-General’s observation that repeat findings may eventually place the audit outcome at risk. Certain weaknesses remain, largely relating to compliance with legislation in the area of supply chain management and the late payment of creditors. The Committee agrees with the Auditor-General that Management must ensure that there are consequences for poor performance and transgressions as key to improving the audit outcome. The Committee supports the Auditor-General’s recommendation that leadership should ensure that policies and consequences are clearly communicated to employees; a no-tolerance approach in situations of non-compliance, fraud and corruption is enforced; and a formal disciplianry process is in place and enforced. Where necessary, corrective measures should be put in place to assist struggling employees. Further, Management should have clear processes and delegations in place to ensure timeous response to findings. Adequate action plans must be implemented within strict timeframes, and the implementation of action plans should be reviewed at least quarterly by the audit committee. Internal Audit should assess if implementation has achieved the required outcome. The Committee, therefore, specifically requests that:

• The Director-General provide the Committee with details of the formal commitments made to address the audit findings by 30 January 2017.
• The Department provide written details of progress made in implementing its audit action plans to ensure resolution of audit findings with particular focus on compliance with legislation and supply chain management quarterly.

 

13.5.          Late payment to suppliers. Although the Department has significantly decreased the number of creditors that are paid in excess of 30 days, the Committee urges the Department to continue to ensure that the payment of creditors is closely monitored to ensure compliance. The Committee requests that the Department report quarterly on creditors who are not paid within the prescribed period, the amounts involved, and the reasons for late payment.

 

13.6.          Irregular expenditure. The Committee notes that the Department continues to incur irregular expenditure, albeit that the amounts involved have declined from R113 million in 2013/14 to R25 million in 2015/16. The Committee agrees with the Auditor-General that  Management ensure that there are consequences for those who transgress. The Committee asks that the Department provide an initial written report by 30 January 2017 on the steps that it has taken to prevent the occurrence of irregular expenditure and on the outcome of disciplinary action taken against officials who are responsible for such expenditure and be prepared to report quarterly.

 

13.7.          Management of Third Party Funds (TPF). The Committee welcomes the improvement in the audit opinion for the Third Party Funds (TPF) from a disclaimer to a qualified audit opinion. The Committee notes the various interventions to remedy the many challenges existing within the TPF environment. Historically, the TPF did not have adequate information systems and proper record keeping processes to support the financial results presented in its financial statements. In November 2014, the Department appointed a private sector service provider to develop a new financial and accounting system to manage the TPF and reports that the system is being piloted. However, the process has been delayed and the Department has revised its initial target of an unqualified audit opinion for the TPF to 2018/19. The Committee also notes the Auditor-General’s observation that in order to move the TPF forward, a solution needs to be found as to how the historical amounts that cannot be substantiated are to be dealt with. Until this happens, the audit outcomes will not change positively.The Committee supports the Auditor-General suggestions to improve the management of TPF in the short-term, advocating discipline in undertaking daily and monthly reconciliations accompanied by in-year recordkeeping to ensure the accuracy of closing balances.

 

The Committee specifically requests that the Department brief it on the rollout of its Mojapay solution and the associated timeframes as soon as the programme permits and also that it continue to report on its progress in managing the TPF quarterly.

 

13.8.          Expansion of justice services for improved access to justice

 

13.8.1.          The Committee welcome the establishment of the new High Court at Polokwane in Limpopo as a milestone in our democracy. The Limpopo High Court began operations in January 2016 and the President will officially open the Court in Novemeber 2016. The construction of the Mpumalanga High Court is at an advanced stage but the projected completion date has been revised to June 2017. This is not the only court where completion dates have had to be revised. Building work at the South Gauteng High Court continues: the orginal contract was to be completed in September 2011 but has been extended with a revised completion datein December 2016. Further, the completion date for the Port Elizabeth High Court has been extended to January 2017, as the contractor had cash flow problems.

 

The Committee remains concerned at these costly delays in completing infrastructure projects  and supports the Department’s initiatives to invest in creating “in-house” capacity to manage these projects going forward. In this regard, the Committee notes the Department’s work generally to address backlogs and challenges in the delivery of capital infrastructure projects, including the decentralisation of facilities management functions to regions and the establishment of joint task teams of senior officials from the Department, the DPW and the OCJ to ensure joint planning, implementation and monitoring and evaluation of capital projects.

 

The Committee requests the Department to continue to provide a written report on progress made in implementing its infratructure programme, with timeframes, by 30 January 2017, as well as quarterly.

 

13.8.2.          Also, with regard to maintenance of justice service points, the Committee requests that the Department provide it with a comprehensive written report of the schedule of, and progress made relating to, planned maintenance of court buildings by 30 January 2017, and be prepared to report on both on a quarterly basis.

 

13.8.3.          The Committee is also interested in the impact of newly established courts for the communities they are intended to serve and requests that the Department share its findings once the report is available.

 

13.8.4.          The Committee notes that the Department has established 40 new small claims courts. Again, the Committee would be interested in learning more regarding service delivery perfromance in these courts, as well as their impact in improving access to justice for the communities they serve. The Committee requests that the Department provide it with a comprehensive written report on this by 30 January 2017.

 

13.9.          Performance in achieving the MTSF targets. The Committee notes that overall there is slow progress in achieving the MTSF targets, and requests that going forward the Department report on progress for these targets on a quarterly basis.

 

 

 

 

13.10.       Court performance

 

13.10.1.  The Committee is concerned about certain aspects of court performance: Fewer cases are being enrolled; court hours are down; and there are fewer case finalisations (whether with ADRM or with verdict) in the Lower Courts, etc. The reason given for the decline suggests the difficulties associated with ensuring the provision of a range of services across the criminal justice value chain: Every role-player must be able to deliver as and when required. If there is a break in services, the entire system is compromised. The Committee is well aware that case-flow management is primarily the responsibility of the judiciary and intends to take the matter up with the Office of the Chief Justice. (Notably, that the implementation of judicial norms and standards and the establishment of the National Efficiency Enhancement Committee (NEEC), under the direction of the Chief Justice, and Provincial Efficiency Enhancement Committees (PEECs), under the direction of the respective Judges Presidents, are among the Judicary-led measures introduced to improve court performance.) the Committee notes that the administration of the Magistrates’ Courts has yet to be transferred to the Judiciary although the magistracy reports to the Judges Presidents. The Committee is unclear whether this in itself creates some difficulties in driving improvements to the system. Further, the Committee is told that the norms and standards have not been fully implemented. The Committee intends to call all roleplayers together to brief it on the challenges that are being experienced so that it can gain a better understanding of where the problems lie.

 

13.10.2.  The Committee notes that the number of backlog cases has increased significantly from 29 480 in 2014/15 to 47 324 in 2015/16. The Committee is informed that although the increase can largely be attributed to a change in the manner in which backlog cases are determined, there has been an increase in backlog cases. New norms and standards to determine timeframes for criminal case finalisation were introduced: From date of first appearance to plea (no more than 3 months); and from plea to finalisation (no more than 6 months). The Department is to collect baseline information during 2016/17. Once a baseline is established, the Committee will monitor this going forward.

 

13.10.3.  The Committee notes the high vacancy rate among Magistrates, despite the efforts to address this. Given the extent of the backlog in appointments, however, the Committee is concerned at the pace with which these appointments are made and asks that the Department, with the Magistrates Commission, look into putting in place the necessary mechanisms to fast-track appointments until the backlog is addressed.

 

13.11.       Vulnerable groups

 

1. Office of the Family Advocate. The Committee welcomes the greatly improved performance in the Office of the Family Advocate. The Committee notes that the targets for this Office are low as there was a time when it experienced severe challenges necessitating a focused intervention. The Committee is pleased however that the Department was able to achieve a turnaround by creating additional Offices and capacity, as well as taking steps to create awareness about the services that the Office of the Family Advocate offers.

 

1. Dedicated sexual offence courts. The Committee notes that in 2015/16 the Department was able to upgrade a further 14 courtrooms to dedicated sexual offences courts bringing the total to 47 courts. The Committee is pleased at the progress as these courts reinforce the establishment of a victim-centred court system but is troubled that funding constraints adversely affect the pace at which this project can be rolled out.

 

13.12.       Transformation of State Legal Services: The Committee has raised its concerns previously regarding certain aspects relating to state litigation. At present, a fragmented approach to the management of state litigation exists. Towards the end of the Fourth Parliament, legislative amendments were passed to provide for a ‘chief’ State Attorney – the Solicitor-General - but this appointment has been delayed as a result of challenges relating to the level of the post. A job evaluation resulted in the level of the post being pitched at the level of a Deputy Director-General. The Minister, however, felt that this would not attract a suitably qualified and experienced incumbent and it would be more appropriate for the post to be remunerated at least at the level of a Judge of the High Court. The Department has sought technical assistance from the Government Technical Advisory Centre (GTAC) and is deliberating on the policy options in this regard. The Committee urges the Department to prioritise this matter as, in the meantime, the area of state lititgation lacks a champion to drive important aspects of the transformation agenda.

 

13.13.       Truth and Reconciliation Commission: The Committee is dissatisfied at the slow progress in finalising the regulations relating to medical benefits and housing assistance, despite these being in the pipeline for many years now. With regard to community rehabilitation, the Committee notes that resistance from communities appears to have stalled the process: In July 2016, the Department reported that the Draft Regulations have been revised in order to address some of the concerns raised by stakeholders. These revised Draft Regulations are in the process of being submitted to the Minister for approval so that they can be published for public comment. A major concern of stakeholders was that only 18 communities were prioritised and listed in the Draft Regulations as communities eligible for community rehabilitation. The Department reports that it has explored other avenues in an attempt to secure more funding for community rehabilitation. Cabinet has endorsed the Department’s recommendation to solicit contributions from relevant stakeholders (public and private) in order to secure adequate resources to bring about holistic interventions in all 128 communities. The Committee asks that the Department keep it informed of progress in finalising all of the Regulations on a quarterly basis and intends to convene a meeting with the Department and the IDT as soon as its programme permits.

 

 

13.14.       Constitutional Development. The Committee welcomes the appointment of the new DDG: Constitutional Development to take charge of what it believes to be a neglected but vital aspect of the Department’s mandate. The Committee feels strongly that not enough is being done to promote knowledge of our Constitution and that this should be prioritised. The Committee has expressed a wish to engage with the Foundation for Human Rights (FHR) to learn more about the work that it does but has not managed to do so yet. It intends to convene a meeting with the Department and FHR as soon as its programme permits.

 

13.15.       Integration of IT systems (IJS)

 

As at the end of the First Quarter 2016/17, the Department reports significant progress in implementing the IJS, in particular with respect to the following three integration priorities: Person Management Integration, which was delivered to five sites in Limpopo and three sites in Mpumalanga for the two specialised crime units within the South African Police Services (SAPS), specifically the Rhino Anti-Poaching and Stock Theft Units; Case Management Integration, which was deployed nationally in March 2016 to 509 Courts and all police stations across all nine provinces; and Business Integration, in which the 28 Key Performance Indicator (KPI) Dashboard was deployed to a production environment with the capability to measure 14 of the 28 KPI’s approved by Cabinet. The Committee welcomes the progress but notes that it is made against a background of many years of revised targets and slow spending.

 

The Committee is pleased that the IJS Board has focused on improving the under-expenditure observed in previous years. Although there was only R9.4 million unspent at the end of 2015/16 (as a result of delayed invoicing by SITA for computer services), it is worth noting that, as in previous years, the overall budget for the IJS/ JS Revamp reduced following the Adjustments’ process.

 

The Committee welcomes the request from the IJS Board that a joint sitting of the Portfolio Committees on Justice and Correctional Services, Police, Home Affairs and Social Development is convened for a collective briefing on the progress made by IJS. The Committee views this as a priority and will arrange for this as soon as its programme permits.

 

Further, given the critical role that this project plays in driving improvements to the criminal justice system, the Committee requests that the Department continue to provide a written report on progress made, clearly indicating any revised targets and timeframes and the reasons for this on a quarterly basis.

 

1. National Prosecuting Authority

 

14.1.          The Committee congratulates Adv. Shaun Abrahams on his appointment as NDPP. The Committee notes his frankness regarding low morale at the NPA at the time of his appointment and welcomes the promise of stability that his appointment brings to the institution.

 

14.2.          The NPA projects an overspending of R45 million on its compensation of employees’ budget at the end of 2016/17 and is unable to fill vacancies let alone create further capacity at new courts. The NPA reports that it is developing a number of interventions to address this (such as re-deploying legal professionals and senior prosecutors to courts) but the impact of capacity constraints on prosecutorial services is a concern. Already the NPA has capacity challenges (The vacancy rate for prosecutors in National Prosecuting Service is already at 17%, the Asset Forfeiture Unit 20%; the SOCA Unit at 29.5%; and the PCLU at 43%) and the consequences of not having enough prosecutors include increased backlogs and poor court performance. The Committee is of the view that budget reductions give insufficient weight to the essential nature of prosecutorial services and their pivotal role in contributing towards the Nation’s priorities. The Committee, therefore, supports that additional funds be made available to allow the NPA to staff the new DPP Office at Polokwane and  Mpumalanga.

 

14.3.          The Committee notes too that the NPA has had to abandon its aspirant prosecutor programme for 2016/17 and will need R34 million if it wishes to take on 200 new aspirant prosecutors for 2017/18. This programme not only provides young lawyers with an opportunity to gain critical experience and skills, but provides the institution with a stream of well-trained “new blood” as prosecutors already employed at the NPA progress within or even leave the institution. Further the creation of employment opportunities for the youth is a national priority. For all of the above reasons, the Committee supports that additional funds be made available to allow the NPA to resume its aspirant prosecutor programme going forward.

 

14.4.          The Committee engaged with the NPA on its views regarding court performance and notes that it has identified the shortage of magistrates and the workload as reasons for bottlenecks. Also, the Committee is told that case flow management works in some areas but not others. The Chief Justice has established national and provincial efficiency enhancement committees in which all relevant stakeholders participate. These structures are relatively new and, therefore, it is difficult at this stage to gauge what impact they have had on improving court performance. The Committee will engage with the Judiciary to gain a better understanding of the challenges that are emerging and the interventions that these committees have identified.

 

14.5.          The Committee notes that, although the AFU was able to meet six of its nine targets for 2015/16, it did not maintain the level of achievement of the previous year - its best year ever. The NPA refers to the AFU as being in dire need of resources, which is a concern to the Committee as it forms a vital part in the State’s anti-corruption machinery and, further, is one of the few institutions that recovers money for the State. The Committee requests that the NPA provide it with more detail in the form of a written report by 30 January 2017 on what resources are required and how this has affected or threatens to impact on performance.

 

14.6.          The Committee welcomes that the conviction rate for sexual offences (70%) has improved.  In total 7 098 sexual offences matters were finalised with verdict with an improved conviction rate of 70%. Similarly, the convivtion rate for Thuthuzela Care Centre (TCC) cases has increased from 68.4% in 2014/15 to 70.8% in 2015/16. Still, these improvements should be viewed cautiously as a great many cases never make it to trial.

 

The Committee is pleased that the number of TCCs increased from 44 to 55 in 2015/16. Further, the number of matters reported to the TCCS increased by 2 384 cases or 7.8% from 30 402 to 32 786. However, it is worrying that of these only 6 854 cases were referred to court for prosecution.  The NPA cites a considerable increase in the number of non-arrest dockets and stranger rapes reported as the reason as these cases are not trial and court ready. The Committee is interested to hear more but will have an opportunity to engage further with the NPA and other roleplayers when it is briefed on the Inter-Departmental Annual Reports on the Implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

 

14.7.          The NPA reports that in the year under review it identified the need to improve the facilitation of the Victim Impact Statements (VIS) by Court Preparation Officers, as well as their use by prosecutors. This entailed additional training of both prosecutors and court preparation officers, as well as Peer Review sessions to ensure the quality of these statements. A VIS register was implemented and Court Preparation Officers were trained on report writing if asked by the Court to compile an affidavit. In 2015/16, court preparation officers completed 8 362 VIS (2 203 more than in 2014/15). Of these, prosecutors used a total of 2 047 VIS in court.

 

The Committee, however, notes with concern the findings of the Supreme Court of Appeal in Mhlongo v The State (140/6) [2016 ZASCA 153 (3 October 2016)], in which the Court highlighted the failure by the State to obtain a VIS for the purposes of sentence, as well as the failure of the State to cross appeal the sentence imposed by the trial court which was too lenient in the circumstances. The Court had previously pronounced on the importance of VIS, which was “disregarded wantonly and without fear of any repercussion” by the State. To address the “lackadaisical” manner in which the State has treated victims of violent crimes and, in particular, rape, the Court held that the NDPP must draft comprehensive guidelines, protocols and model VIS instruments to ensure the permanent infusion of the VIS in the justice process. The Court also warned that unless this is dealt with decisively, there will come a time when victims of violent crime will hold the State accountable for the failure to perform its duty. Also, the Court had harsh words to say about the State’s failure to cross appeal the sentence imposed by the trial court. The State failed to lead expert evidence on the impact of rape on the victim and, in particular, on the possible link between the rape and her death of HIV/AIDS.

 

The Committee engaged with the NPA on this matter but requests that the NPA provide it with a comprehensive written report by 30 January 2017 on the corrective measures that it has taken to ensure that the necessary protocols, documents and model instruments are put in place, and to sensitise its prosecutors regarding the impact of violent crime on victims.

 

14.8.          The Committee notes that the Priority Crime Litigation Unit did not meet its target for 2015/16 (it achieved a 60% conviction rate against a target of 80%). The Committee also notes that the PCLU houses the Missing Persons Task Team (MPTT) and is very interested in the work that it does. As soon as its programme permits, the Committee intends to ask the MPTT to provide it with a dedicated briefing.

 

 

1. Legal Aid South Africa

 

15.1.          The Committee notes that so far Legal Aid SA has been able to absorb budget reductions from its cash reserves. To address the shortfall, the Committee notes that Legal Aid SA has made reductions to its operating budget but these will not be enough. Legal Aid SA, therefore, will need to reduce its recruitment budget by R10 million in 2017/18 and R49 million over the MTEF. Should there be a further 1% budget reduction, these amounts increase to R24 million in the salaries and R4 million in the operating budgets for 2017/18 and total R66 million over the MTEF. The Committee is aware that the high demand for legal aid services already pose an enormous challenge to Legal Aid SA’s practitioners. The impact of a reducing the salaries budget is that Legal Aid SA will not be able to provide assistance in as many matters and court coverage will be reduced. This has serious consequences for the effective and efficient delivery of justice services, as gaps in court coverage place strain on the criminal justice system as a whole and can result in postponements, among others. The Committee asks at what stage does the lack of funds become a constitutional matter, and for this reason cannot support the reductions. The Committee, therefore, strongly, supports that additional funding be given to Legal SA so that it does not need to reduce its staff capacity.

 

15.2.          Legal Aid SA’s budget goes largely towards funding legal representation of accused in criminal matters, as there is a constitutional obligation on the State to assist accused persons without legal representation. The Committee is concerned at the extent to which criminal matters are prioritised over civil matters. This paradigm is rooted in the past and doesn’t necessarily speak to the current challenges that the country is facing. If we are unable to ensure greater balance between the criminal and civil work undertaken by Legal Aid SA, there is great risk of undoing our democracy as the legitimacy of the judicial system is brought into question. The Committee appreciates the many efforts that Legal Aid SA has taken to stretch its capacity to undertake civil work to the very limits. In past years, Legal Aid SA has done its best and has slowly increased the amount of civil work that it does – about 12% of its caseload consists of civil matters. Without additional funds, the Committee cannot see how Legal Aid SA can significantly expand its civil work, despite the very real need of South Africans for assistance in this regard. The Committee feels very strongly that Legal Aid SA should receive additional funds to ensure that does not need to reduce its civil mandate despite the fiscal environment. In addition, the Committee has previously noted Legal Aid SA’s willingness to assist in land claims matters and, therefore is of the view that a dedicated budget should be allocated for Legal Aid SA to do so.

 

15.3.          To better address the need to provide legal assistance and advice in civil matters to those who cannot otherwise afford it, the Committee repeats its position that community structures, such as traditional and community courts, can do much to relieve the burden on Legal Aid SA. These structures, which are made up of community members, operate in terms of restorative justice rather than the adversarial stance of formal courts, so doing away with the need for legal representation in certain cases.

 

15.4.          The Committee congratulates Legal Aid SA on receiving an unqualified audit for the past 15 years, with no matters of emphasis for the past eleven years. Yet again, Legal Aid SA impressed the Committee greatly with its strategic vision and planning, management of resources and considerable achievements.

 

1. Special Investigating Unit

 

16.1.          The Committee welcomes the appointment of Adv Jan Lekhoa Mothibi as Head of the SIU and wishes to take the opportunity to thank Adv Visagie for his efforts as Acting Head of the SIU. The Committee hopes that the appointment of the new Head will facilitate the SIU’s rejuvenation.In this regard, the Committee notes that the SIU intends to undertake a full organisational review, which will begin in November 2016, to map out a way forward. This is particularly important given the key role that the SIU plays as part of a multi-prong strategy to combat corruption.

 

16.2.          The Committee notes that the SIU obtained an unqualified audit opinion with findings for the 2015/16 financial year. The Committee repeats its view that it is unaccepatble for a body, which addresses corruption, maladministration and abuse of power, to obtain anything other than a clean audit. The SIU should lead by example. Although the Committee accepts the SIU’s explanation for the findings and welcomes the commitments to improve on these, it requests that the Unit provide written details of the formal commitments made to address the audit findings and its audit action plans in this regard by 30 January 2017, and report on progress quarterly.

 

16.3.          The Committee is dismayed that the SIU’s overall performance declined once more in 2015/16. The Committee appreciates that the SIU has reported certain practical difficulties in formulating targets and has taken steps to address these from 2016/17. The Committee is aware that SIU has experienced a number of other challenges, such as leadership attrition and the lack of critical capacity. In addition, the SIU has identified the need for urgent organisational review and rejuvenation. The Committee, therefore, asks that the SIU provide it with written performance reports on a quarterly basis going forward.

 

16.4.          The SIU reports that in 2015/16 a total of 307 matters were referred to the NPA but cites the poor turnaround time by the NPA in implementing the remedial actions as a challenge. The Committee is pleased that a draft MoU has been drafted with the NPA and that the SIU intends to approach the NDPP to put in place a joint monitoring structure to track progress. The Committee asks that the SIU report to it on the outcome of the intended engagement.

 

16.5.          The Committee notes that for some time the SIU has experienced difficulties in collecting monies owed to it by state organs. Although it is not yet a risk to the SIU’s operations, it is possible that in future this may be the case. The SIU has engaged with National Treasury about the possibility of creating a mechanism that will allow the SIU to recover monies from Departments via Treasury. The Committee requests that the SIU provide it with a comprehensive written report on the extent of the problem that includes a debtor’s analysis and the interventions put in place by 30 January 2017.

 

16.6.          The Committee supports the establishment of Special Tribunals and is of the view that these should be expedited. The Committee will also engage with the Chief Justice on this matter when it meets with the Judiciary soon. The Committee requests that the SIU provide it with a full written report on its challenges experienced in this regard as a matter of urgency.

 

16.7.          The Committee is concerned at the high vacancy rate but is pleased that the SIU is now in in the process of filling critical vacancies. The Committee also welcomes the undertaking that going forward the SIU will ensure that appointments advance the SIU’s employment equity targets.

 

16.8.          The Committee notes that the SIU has undertaken a situational analysis which among others points to an increased perception among South Africans that corruption is on the rise. Although perception based, the Committee agrees that the information is useful, particularly in creating a measure of the impact of any intervention to combat corruption. Still the Committee is of the view that the discourse surrounding corruption in South Africa would be enriched by being more evidence-based. The Committee is, therefore, very interested to hear more from the SIU of its analysis of corruption in South Africa and its view of how the anti-corruption machinery can be strengthened and will arrange a dedicated briefing as soon as its programme permits.

 

 

 

 

 

1. South African Human Rights Commission (SAHRC)

 

17.1.          At present, the Commission has only one commissioner with seven vacancies. However, the Committee is seized with this and the process of nominating suitable candidates to be recommended for appointment is at a very advanced stage. The Committee regrets the interruption of the Commission’s work as a result of these vacancies. The Committee is pleased to hear that there is a handover report available for the incoming commissioners.

 

17.2.          The Committee believes that the Commission should look carefully at the focus of its work going forward. While the Commission does valuable work with regard to international and regional human rights instruments, the Committee feels that the Commission should work harder to elevate its profile among the South African public to avoid being seen to be aloof.

 

17.3.          The Committee is concerned at the lack of awareness of our Constitution and of the Bill of Rights. The Committee urges that the Commission make the promotion of constitutional awareness and literacy a priority.

 

17.4.          The Committee notes that the Commission celebrated twenty years of existence. It strikes the Committee that the inclusion of some form of assessment (even if only a summary) of the changing human rights environment in South Africa and some reflection on the Commission’s role over that period in the Annual Report would have been of great interest.

 

17.5.          The Committee welcomes the steady progress that the SAHRC has made to achieve a clean audit opinion and hopes that this is maintained. It notes, however, that concerns relating to IT governance remain, and that the IT governance framework has not been not approved and implemented. The SAHRC is urged to ensure that it puts in place the necessary controls to ensure that the weaknesses are addressed.

 

1. Public Protector

 

18.1.          The Committee wishes to take the opportunity to thank the former Public Protector, Adv. Thuli Madonsela, for her leadership of this important constitutional institution, and also to welcome the the new Public Protector, Adv. Busisiwe Mkhwebane , to the position.

 

18.2.          The Committee notes that the PPSA received an unqualified audit opinion with findings and has committed to achieving a clean audit opinion in 2016/17. The Committee was dismayed when the Public Protector informed the Committee that the target for a clean audit will need to be revised to 2017/18. The Committee notes that the Auditor-General has emphasied the need for Leadership/Management of an institution to ensure that there is an adequately resourced and functioning internal audit unit that identifies internal control deficiencies and recommends corrective action effective. The Audit Committee expressed concern in previous years that Internal Audit was not functioning and that there were similar challenges for part of 2015/16. The Committee notes too that the Audit Committee highlighted the need for the PPSA to prioritise the adequate and effective implementation and frequent monitoring of previous and current years’ audit action plans.The Committee reiterates its belief that, as an integrity institution, the PPSA should prioritise attaining a clean audit and requires a clear commitment from Leadership/Management in this regard. The Committee requests that the PPSA provide it with its audit action plans, with clear tagets and timeframes and report on progress quarterly.

 

18.3.          The Committee is pleased that the PPSA has made concerted and successful effort to reduce the budget deficit, implementing austerity measures. The Committee observes that these efforts to reduce the deficit may have come at a cost: The PPSA did not meet targets for three key indicators under its Investigations programme, namely systemic investigation reports; the backlog of cases; and executive member’s ethic reports were not achieved. Investigations also spent only 92% of its allocation. This underexpenditure is linked to delays in the filling of vacant posts in an effort to save funds to off-set the deficit. Further, outreach activities were scaled down in 2014/15 to contain costs.

 

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

 

18.5.          The Committee notes the challenges that the PPSA experiences relating to the implementation of the OSD and requests that the PPSA provide it with a comprehensive written report on this.

 

18.6.          The Committee notes that the PPSA has reported that it had to close four regional offices (Mabopane, Newcastle, Vryburg and Siyabuswa) and suspend some other offices (including Empangeni, Queenstown and Beaufort West) as a cost cutting measure. The Committee was also told  that the PPSA intends to enter in a MoU with the Justice Department to create a presence at the Magistrates Courts. The Committee is unclear about what is envisaged when entering into this MoU, and requests that the PPSA provide it with a comprehensive written report regarding what the MoU would encompass as well as its accessibility plan by 30 January 2017.

 

18.7.          The Committee welcomes the PPSA’s intention to address case backlogs. The Committee requests that the PPSA provide it with further details regarding its caseload, including the number of backlogs and its plans to reduce these. The Committee also requests that the PPSA provide it with a written report on the status of its case management system

 

18.8.          The Committee agrees with the Public Protector’s view that litigation should be a measure of last resort but notes that the PPSA has reported that there has been an increase in the number of reviews since the powers of the Public Protector were clarified by the Courts. The Committee is concerned that should this trend continue, there is a risk that legal fees will eat into the PPSA’s budget going forward. The Committee is interested in learning from the PPSA what measures it has put in place to lessen this risk.

 

18.9.          The Committee notes that the PPSA, like any other institution, is operating under financial constraints and that it needs more money to adequately discharge its mandate. It, however, welcomes the Public Protector’s commitment to refrain from making use of donor funding going forward.

 

 

 

 

 

Part 5

 

1. Table of reporting requests

 

Details of reporting request	Action required	Timeframes
Department of Justice and Constitutional Development
Policy developments towards legal transformation	Dedicated briefing   Quarterly progress report	Refer to Committee programme Quarterly
Improving the audit outcome: Audit commitments and progress against action plans	Written report	30 January 2017 and quarterly
Late payment of creditors	Written progress report	30 January 2017 and quarterly
Irregular expenditure: Disciplinary steps taken against officials who incur irregular expenditure, and other measures taken to prevent its occurrence.	Written progress report	30 January 2017 and quarterly
Progress with regard to Third Party Funds	Comprehensive briefing on rollout of Mojapay solution with associated timeframes Written progress reports	Refer to Committee’s programme     Quarterly
Infrastructure and planned maintenance programme	Written progress report   Joint briefing with PC: Public Works with Justice, DPW and IDT	30 January 2017 Quarterly   Refer to Committee programme
Service delivery performance and impact of newly established courts in increasing access to justice of communities they serve: Limpopo High Court Small Claims Court	Written report	30 January 2017
Progress towards achieving MTSF targets	Written progress report	Quarterly
Challenges to improved court performance	Written report   Dedicated briefing with all roleplayers	30 January 2017   Refer to Committee programme
Mechanism to fast-track appointments of magistrates	Written report	When available
Appointment of the Solicitor-General	Progress report	Quarterly
TRC	Written progress report	30 January 2017 and quarterly
Constitutional awareness and development	Dedicated briefing	Refer to Committee programme
Implementation of the IJS/CJS Review	Dedicated briefing by IJS Board with all roleplayers   Progress reports	Refer to Committee programme 30 January 2017 and Quarterly
Missing Persons Task Team	Dedicated briefing	Refer to Committee programme
NPA
Capacity challenges at the AFU	Written report	30 January 2017
Sexual Offences: conviction rates; the performance of the TCCs, etc.	Dedicated briefing with all roleplayers	Refer to Committee programme
Victim Impact Statements: Protocols/Guidelines/Model instruments	Comprehensive written report with timeframes on measures to address the SCA’s comments in Mhlongo	30 January 2016
SIU
Improving the audit outcome: Audit commitments and progress against action plans	Written report	30 January 2017 and quarterly
Performance against indicators	Analytical progress reports	Quarterly
Relationship with NPA	Briefing on progress/outcome	Be prepared to brief the Committee on this at scheduled Committee meetings
Recovery of monies owed	Written report	30 January 2017 and quarterly
Situational analysis of corruption	Dedicated briefing	Refer to Committee programme
Public Protector
Improving the audit outcome: Audit commitments and progress against action plans	Written report	30 January 2017 and quarterly
Accessibility	Written report setting out accessibility plan	30 January 2017 or as soon as the plan becomes available
Case load, including strategy to reduce backlogs and status of the case management system	Written report	30 January 2017
Managing litigation	Written report	30 January 2017

 

 

1. Recommendations

 

The Committee makes the following recommendations with the Democratic Alliance reserving its position:

 

20.1.          The feasibility of amending the Public Finance Management Act and the the Money Bills Procedures and Related Matters Amendment Act to address the difficulties raised by the timeframes contained in these Acts be explored.

 

20.2.          The the National Prosecuting Authority be provided with additional funding for additional prosecutorial and other capacity, as well as for resumption of its aspirant prosecutors programme.

 

20.3.          Legal Aid South Africa receives additional funding to prevent it from having to cut posts with adverse consequences for service delivery.

 

20.4.          Legal Aid SA receive additional funds to ensure so that it is able to increase its civil work despite the current fiscal environment and, in particular, it is allocated a dedicated budget so that it is able to assist in land claims matters.

 

20.5.          The Public Protector South Africa is allocated funds for additional capacity.

 

 

1. Appreciation

 

21.1.          The Committee thanks the Minister of Justice and Correctional Services and the Deputy Minister of Justice and Constitutional Development, as well as the Director General and all officials who appeared before the Committee for their co-operation.

 

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

 

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

 

21.4.          The Committee finally wishes to thank the Auditor-General South Africa for its assistance in this process.

 

Report to be considered