ATC210219: Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 19 February 2021

Justice and Correctional Services

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 19 February 2021

 

The Portfolio Committee on Justice and Correctional Services, having considered the financial and non-financial performance information for 2019/20 and the First Quarter of 2020/21 of the Department of Justice and Constitutional Development, National Prosecuting Authority, Information Regulator, Legal Aid South Africa, Special Investigating Unit, South African Human Rights Commission and Public Protector, reports as follows:

 

  1. Introduction

 

  1. The Money Bills ProcedureAmendment and Related Matters Act 9 of 2009, as amended, (the Money Bills Act) requiresportfolio committees to compile Budgetary Review and Recommendation Reports (BRRR) each year.

 

  1. In particular, section 5(1) of the Money Bills Act provides that committees mustmake their assessment of the performance of national departments and institutions, with reference to the following:
  • The medium term estimates of expenditure of each national department, its strategic goals and measurable objectives, as tabled in the National Assembly with the national budget;
  • Prevailing strategic plans;
  • The expenditure reports or statements relating to a vote appropriating funds for such department;
  • The financial statements and annual report of such department;
  • The reports of the Standing Committee on Public Accounts relating to a department; and
  • Any other information requested by or presented to a House or Parliament.

 

  1. Committees may make recommendations on the future allocation of resources, having assessed service delivery performance to date; evaluated the effective and efficient use of the resources already allocated; and considered the planned forward allocation of resources.

 

  1. Each year, committees will ordinarily schedule meetings to prepare for the BRRR in the first two weeks of October, right after the annual reports are tabled at the end of September.

 

  1. This year,the Minister of Financeextended the time-frame for the tabling of the annual reports and financial statements by two months to address the delays in compiling the annual reports on account of the Covid-19 pandemic.

 

  1. However, the extension granted to Executive Authoritieshasaffected the work of committees as they could not finalise the Budgetary Review and Recommendation Reports (BRRRs) without the audited information and financial statements contained in the annual reports.

 

  1. Nonetheless, the Committee did meet with the Department, entities and institutions that fall under the Vote in October to conduct preliminary assessments of performance and expenditure for the relevant period, making use of the information that was available. The information presented and the related observations form part of this report.

 

  1. Once the annual reports were tabled, the Committee met with the Minister of Justice and Correctional Services on 20 November 2020.

 

  1. The Committee also met with the Auditor General South Africa on the audit outcomes for Vote 25: Justice and Constitutional Development on 17 November 2020 and was briefed by the Department of Justice and Constitutional Development on 18 November 2020.

 

  1. Copies of all the presentations made are available from the committee secretariat.

 

 

  1. Mandate

 

  1. The Committee oversees the Department of Justice and Constitutional Development (the Department) and other entities and institutions that receive their allocation under the Justice and Constitutional Development Vote (Vote 25). These include the National Prosecuting Authority (NPA), Legal Aid South Africa and Special Investigating Unit (SIU). The Vote also contains the allocations to the South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA), both established in Chapter 9 of the Constitution as State Institutions Supporting Constitutional Democracy.

 

  1. The Department is directly responsible for the Administration, Court Services and State Legal Services programmes, as well as the Justice Modernisation sub-programme found under Programme 5: Auxiliary and Associated Services. At present, funding for the Information Regulator remains under Programme 3: State Legal Services.

 

  1. The NPA appears as Programme 4 under the Vote. Notably, despite the Constitution guaranteeing the NPA’s prosecutorial independence, the National Prosecuting Authority Act, 1998, provides for the Director General: Justice and Constitutional Development to be its accounting officer.

 

  1. 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 the South African Human Rights Commission (SAHRC) and the Public Protector South Africa (PPSA).

 

 

  1. Context

 

  1. Consideration offinancial and non-financial performance takes place in the context of the declaration of a state of national disaster on 15 March 2020 as a result of the Covid-19 pandemic, followed by the announcement of a hard lockdown from 26 March 2020. From 1 May 2020, Government has cautiously eased restrictions, adopting a risk-adjusted strategy.

 

  1. In addition, since the Minister of Finance tabled the Budget in February, Government announced a R500 billion economic and social support package to help battle the impact of the coronavirus pandemic. There was also a massive reprioritisation of funds across government. Consequently, a special appropriations bill was tabled on 24 June 2020 affecting the Vote. In October 2020, the AENE provides for further downward revisions.

 

  1. Strategic Plans and Annual Performance Plans, which were drafted prior to the declaration of a state of national disaster, had also to be adjusted to reflect the new circumstances and have since been re-tabled.

 

 

  1. Overview of key policy and operational developments

 

  1. In 2019/20, the 6th Administration focused largely on wrapping up the work of the 5th Administration, while developing new five-year strategic plans totake effect from 2020/21 that address the priorities of the new administration.

 

  1. The Medium Term Strategic Framework (MTSF) 2019-2024 identifies seven priorities and related interventions. Justice has particular responsibilities in respect of two priorities: namely Priority 1 ‘A capable, ethical and developmental state’ and Priority 6 ‘Social cohesion and safe communities’.

 

  1. In addition, theMTSF identifies a lack of access to resources and opportunity for Women, Youth and People with Disabilities as cutting across all sectors, requiring a variety of interventions, including legislative amendments.

 

  1. Key interventions for which the Justice Department is allocated responsibility for the MTSF period include:
  • Instituting a programme to prevent and fight corruption in government in partnership with anti-corruption agencies and non-state actors to resolve reported incidents of corruption in the Government through disciplinary measures and criminal interventions.
  • Coordinating engagements between the leadership of the executive, legislature and judiciary in order to develop a social compact by 2021 and implement the compact by 2024.
  • Developing a system to ensure consistent barrier-free access to justice for persons with disabilities across the justice value chain.
  • Coordinating the Implementation of the National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance.
  • Establishing Specialised Commercial Crime Courts (SCCC’s) in five (5) provinces (Limpopo, North West, Mpumalanga, Eastern Cape and the Free State).
  • Ensuring an efficient, modernised and co-ordinated criminal justice system through integrated digital information systems.

 

  1. Whenintroducing the budget on 18 May 2020, the Minister of Justice and Correctional Services referred to the following priorities:
  • Addressing vacancies in the Department of Justice and Constitutional Development. In order to build a capable estate, critical vacancies are to be filled by year-end.
  • Addressing audit and investigative findings. The findings of the Auditor General and SIU, as well as those of other oversight bodies, will be acted on.
  • Replacing colonial/Apartheid era justice-related legislation. Such legislation will be reviewed, repealed and replaced. In the 2020/21financial year, the Department will begin the process of reviewing the Criminal Procedure Act, 1977.
  • Strengthening land justice. There is a process to transfer the legal representation function and related budget currently undertaken by the Land Rights Management Facility in the Department of Agriculture, Land Reform and Rural Development to Legal Aid SA. This will place Legal Aid SA at the centre of the efforts towards land justice in South Africa and the transfer will ensure that Legal Aid SA has both the finances and capacity that is required. Further, a Land Court Bill is to be introduced this year. The Bill will broaden the mandate of the Land Claims Court and allow the appointment of permanent judges to enable the court to effectively adjudicate in land disputes in this country.
  • Transforming the State Legal Services. The State Attorney Amendment Act, 2014, was operationalised in February 2020. As an interim measure, an Acting Solicitor-General has been appointed.
  • Addressing Gender-based Violence and Femicide. The Department is preparing three bills proposing amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Domestic Violence Act, and the Criminal Procedure Act. Rollout of sexual offences courts and Thuthuzela Care Centres will continue.
  • Buildingconstitutionalism and respect for human rights and the rule of law. Next year, 2021, marks 25 years since the adoption and final certification of the Constitution. Programmes will be put in place to observe this milestone. In the next five years, efforts will be made to increase and deepen constitutional and human rights awareness.
  • Achieving modernized, accessible courts and people-centred services. ICT infrastructure will be prioritised so that it can be responsive to the digital transformation initiatives and improved service delivery. Digitising legal processes by, for example, E-filing, is at an advanced stage.
  • Improving child maintenance services. Although there have been improvements in the processes relating to maintenance applications, the Department plans to improve speed and efficiency in finalising maintenance orders. Similarly, the finalisation of cases involving children are prioritised.
  • Establishing a single judicial system. The Constitution mandates the establishment of a single judicial system that is in line with the provisions of section 166 of the Constitution. The introduction of Bills to replace the Magistrates Act, 1993, and the Magistrates’ Courts Act, 1944, remains a priority for 2020/21. The Department will intensify support to the Magistrates Commission in the filling of vacant offices of magistrates to further strengthen capacity in the lower courts.
  • Digitising and automating the Masters' office. The digitisation and automation of insolvency registrations and appointments began in 2019/20 and it is envisaged that Trust online services will be implemented in 2021/22.

 

  1. Impact of COVID-19on functioning of the courts and service delivery:

 

  1. TheCOVID-19 pandemic continues to affect the delivery of justice services. Although the courts remained open throughout the lockdown period, only services relating to the essential functioning of the courts were permitted at the start of the lockdown and, as a result, most matters were postponed. From 4 May 2020, the Directions relating to the Courts adopted a phased return to full functionality as the restrictions eased.

 

  1. However, service delivery is interrupted whenever a case of Covid-19 is reported, as the affected courts and offices must be closed for decontamination.

 

  1. This has resulted in a significant increase in backlog cases, especially in District and Regional Magistrates Courts. The Department has initiated a Criminal Case Backlog Plan with the participation of stakeholders to address the backlogs.

 

 

  1. Budgetary Review and Recommendation Report (BRRR) October 2019 and Minister of Finance’s response to Parliament

 

  1. In the Budgetary Review and Recommendation Report (October 2019), the Committee made a number of observations, including:

 

Table 1: Overview of Committee’s observations contained in the October 2019 BRRR

  •  

Observations

Audit outcome - Department of Justice and Constitutional Development

  • The Committee was dismayed that the Department received a qualified audit outcome for the third consecutive year.
  • The Committee identified vacancies, especially in senior management and in critical occupations, such as the supply chain management and finance, as having been a significant factor in the unfavourable audit outcome.
  • The Committee urged the Department to address its vacancies.

Irregular expenditure and wasteful and fruitless expenditure

  • The Committee expressed concern about the sharp increase in irregular expenditure.
  • The Committee noted that much of the irregular expenditure is under investigation.

Policy on the design of the judicial governance and court administration model and Policy on Lower Court Reform

  • The Policy on Judicial Governance was submitted to Cabinet in March 2019. Once Cabinet approved the Policy, the Minister planned to consult with the Chief Justiceon the proposals to reach agreement on a framework for the implementation.
  • The Committee noted that the finalisation of the Policy on Lower Courts Reform formed part of the Department’s annual plan for 2019/20.
  • The Committee requested the Department to report on progress quarterly.

Integrated Criminal Justice Strategy (ICJS)

  • A framework was presented to the Directors-General of the JCPS Cluster.
  • The next step was to develop an implementation plan for submission to Cabinet.
  • The Committee requested the Department to report on progress quarterly.

Integration of IT systems (IJS)

  • The Committee requested the Department to report on progress quarterly.
  • A dedicated briefing would be arranged as soon as the programme permitted.

Court infrastructure

  • The Committee noted the Department’s written progress report on its infrastructure projects, dated 30 August 2019.
  • The Committee requested the Department to report on progress quarterly.
  • A dedicated briefing would be arranged as soon as the programme permitted.

Transformation of State Legal Services

 

  • The Committee noted the Department’s written progress report on its initiatives to transform State Legal Services.
  • Details of the plans to address the procurement of state legal services were included in the report.
  • A dedicated briefing would be arranged as soon as the programme permitted.

A transformed legal profession and briefing patterns

 

  • The Committee observed that practitioners continue to complain that they lack work to sustain viable practices despite initiatives to transform briefing patterns.
  • The Committee intended to arrange a stakeholder engagement on this topic.

Sexual offences matters

  • The Committee noted that the Department had tabled the 2018/19 Report on the Implementation on the Criminal Law Sexual Offences and Related Matters Act.
  • A dedicated briefing would be arranged as soon as the programme permitted.

Master’s Office

 

  • The Committee was informed of some of the challenges found at the Master’s Offices in Cape Town, Johannesburg and Pretoria, and requested a full report from the Department.
  • A dedicated briefing would be arranged as soon as the programme permitted.
  1.  

Strengthening the independence of the NPA

The Committee supports an independent prosecuting authority but needs to fully understand the scope of what is involved.

Measuring the impact of performance

The Committee looked forward to the new planning cycle in which the NPA intended to introduce impact measures.

Ethics and Accountability mechanism

The Committee welcomes the NPA’s intention to introduce an Ethics and Accountabilty mechanism as provided for in section 22 of the National Prosecuting Authority Act, 1998.

Gender-based violence

  • The Committee noted the need for specialist prosecutors to prosecute sexual offences cases and for revitalised TCCs.
  • The Committee noted the high vacancies at the TCCS, in particular for site co-ordinators, victim assistance officers and case managers.
  • The Committee understood that R1.1 billion was to be reprioritsed within government to address gender-based violence; and requested a written report on the breakdown of funds that are to be made available to the NPA for this priority.

Information Regulator

Commencement of POPIA

  • The Committee was concerned by the slow pace at which capacitation of the Information Regulator is taking place. Worldwide, data protection legislation is seen as a key component in securing information.
  • The Committee also noted the significant cost of data breaches.
  • The Committee requested the Ministry to continue to provide all the necessary support to assist the Informatiom Regulator in its efforts to get up and running.

Legal Aid SA

Civil work.

The Committee noted that the proposed cuts in funding put the civil work undertaken by Legal Aid SA at risk.

  1.  

Legislative amendments

The Committee noted that the SIU intended to bring legislative amendments to its enabling legislation that will provide it with a clear legislative mandate to address its funding model; undertake pre-proclamation investigations; and monitor and enforce remedial measures. In addition, legislative amendments are required so that the SIU can provide the services/undertake the functions envisaged by the organisational review.

Debt recovery

The Committee noted the ongoing difficulties that the SIU has recovering monies owed to it for its services (The amount owed by state institutions stood at approximately R500 million).

Memoranda of understanding and referral of matters to the NPA

  • The Committee noted the announcement of a co-operation agreement between the SIU and the Financial Intelligence Centre in June 2018.
  • The MOU with the NPA was being reviewed to address certain legal issues that arise when matters are referred.

Special Tribunal

The Committee welcomed the announcement that the Special Tribunal was finally operational.

  •  

The Committee welcomed the SIU’s report on the progress of investigations at the Office of the State Attorney; and in connection with the construction of various courts and the acquisition of land for the Mpumalanga High Court and related payments.

Equity targets

The Committee noted the SIU poor performance with regard to equity targets, especially with respect to women employees in the professional qualified category and persons with disabilities.

  1.  

Non-responsiveness of state institutions

  • The Committee noted the SAHRC difficulties in obtaining responses from departments and other state institutions.
  • The Committee would raise the need for a mechanism to assist Chapter 9 institutions where state insitutions are unresponsive to requests for information and/or ignore the recommendations made in their reports with the Speaker.

PAIA Annual Report

The Commission had tabled the Promotion of Access to Information Act, 2000, Annual Report 2018/19, which was referred for consideration and report.The Committee would engage with the Commission on the Report as soon as the programme permitted.

National Preventative Mechanism

  • The Commission was appointed to co-ordinate the National Preventative Mechanism established in terms of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  • The Committee noted that the Commission had received a small budget from the Justice Department for 2019/20 for this purpose and supported additional funding for this new mandate going forward.

Moot Court competition

The Committee noted that the Commission was to host the Schools Moot Court Competition to promote public awareness of the Constitution and the Bill of Rights in schools. However, the competition was at risk as a result of the proposed budget reductions.

Promotional mandate

The Committee noted the Commission’s funding constraints and the lack of capacity, especially with respect to its advocacy mandate, as concerning.

  1.  
  •  

The Committee requested that the the PPSA provide a breakdown of its backlog cases, including the number of these cases, when the complaint was lodged and the nature of the complaint.

  •  
  • The Committee was concerned that only one of the PPSA’ s offices has security.
  • Given the nature of the work that the PPSA undertakes,this item should be adequately funded.

Lack of co-operation from state institutions

The Committee would raise the need for a mechanism to assist Chapter 9 institutions where state institutions fail to co-operate or respond to findings with the Speaker.

Quality Assurance mechanism

The Committee noted the Deputy Public Protector’s advice that a quality assurance mechanism be reinstated at the PPSA. Although the Committee appreciated the Public Protector’s concern to stay within budge, every effort should be taken to ensure that reports are water-tight. Furthermore, the chances of being successfully taken on review would be considerably reduced.

 

  1. In particular, the Committee expressed concern about the consequences of possible budget cuts for service delivery. The Committee was especially concerned that a reduced staff establishment could undermine the work needed to create a transformed and responsive justice system.

 

  1. The Report, therefore, recommended that additional funding be allocated to:
  • The NPA to address the shortfall in its compensation of employees’ budget; fill critical post vacancies; create capacity in the Asset Forfeiture Unit, Specialised Commercial Crimes Unit and the Office of Witness Protection; and to resume its aspirant prosecutor programme.
  • Legal Aid SAto prevent it from having to cut posts and to ensure that it can maintain its civil work and assist in land claims matters.

 

  1. In the case of the PPSA and SAHRC, the Committee recommended thatzero budget reductions be applied and, further, additional funding be provided to:
  • The SAHRC to fulfil its coordinating role in respect of the National Preventative Mechanism established in terms of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.
  • The Public Protector SA to fill vacancies, employ professional services, and improve security.

 

  1. The Minister of Finance responded to the recommendations as follows:
  • The 2020 Budget provides additional funding of R1.2 billion for the MTEF to the NPA to improve prosecutorial capacity, rejuvenate the aspirant prosecutor programme and operationalise the new Investigative Directorate.
  • Over the medium term, Legal Aid SA will receive additional funding.
  • The baselines of the SAHRC and PPSA were not reduced over the medium term.

 

 

  1. Financial performance

 

  1. Allocation

 

  1. In 2019/20, the Justice and Constitutional Development Votewas allocated R21.1 billion, which includedMagistrates’ salaries. The total for programmes was R18.7 billion (compared with R17.5 billion in 2017/18).

 

  1. Notably, the 2019 MTEF included the following increases to the baseline:
  • R853 million was shifted from SAPS’ Integrated Justice System (IJS) programme budget to Justice in order to consolidate the IJS funding (this was ring-fenced).
  • An additional R300.3 million was allocated to Legal Aid SA.
  • An additional amount of R272.9 million was allocated to allow the State Capture Commission of Inquiry to continue its work.

 

  1. In 2020/21,R22.4 billion was allocated to the Justice and Constitutional Development Vote, including the Direct Charge for Magistrates’ salaries. However, the allocation was revised downwards by -R416 million, from R22.4 billion to R21.9 billion in July 2020.Notably, the downward revision of the allocation did not affect the MTEF baseline.

 

  1. In October 2020, the AENE announced further downward revisions of the Vote allocation by -R886.1 million, largely from the compensation of employees’ budget, affecting all programmes.

 

Table 2: Justice and Constitutional Development – Allocation for the 2020 MTEF per programme

Programme

(R ‘million)

Budget

2020 MTEF

2019/20

Final Appropriation

2020/21

2021/22

2022/23

Administration

2 589.5

2 356.5

2 491.9

2 600.7

Court Services

6 595.4.

7180.3

7 688.4

8007.3

State Legal Services

1 544.8

1 431.9

1 529.3

1 612.9

National Prosecuting Authority

4 134.7

4 583.9

4 906.0

5 096.2

Auxiliary and Associated Services

3 917.2

4 308.0

4 553.2

4 766.8

Magistrates’ Salaries

2 263.7

2 550.2

2 715.6

2 816.0

Total

21 045.2

22 410.8

23 884.4

24 899.9

 

  1. Financial performance 2019/20

 

Table 3: Justice and Constitutional Development – Projected vs Actual Expenditure 2019/20

Programme

 

(R’million)

Appropriation

2019/20

Expenditure

2019/20

Main

Final

Actual

%

Under/

(Over)

Administration

2504.5

2 589.5

2 537.7

98%

(51.8)

Court Services

6 824.9

6 595.4

6 428.7

95%

166.7

State Legal Services

1 349.8

1 544.8

1 295.1

94%

249.7

NPA

3 929.1

4 143.7

4 009.2

97%

125.5

Auxiliary and Associated Services

4 108.8

3 917.2

3 917.2

100%

-

Magistrates’ Salaries

2 383.7

2 263.7

2 100.2

93%

163.6

Total

21 100.8

21 045.2

20 285.8

96%

759.4

 

  1. Vote spending for 2019/20 was as follows:
  • An amount of R20.3 billion (or 96%) of the finalallocation of R21.05 billion was spent, with an amount of R759.4 million going unspent.

 

  1. Key areas of underspending were:
  • Compensation of employees. The under-expenditure of R293.8 million under this item can be attributed to continued vacancies.
  • Payments for Capital Assets. R257.8 million went unspent under Payments for Capital Assets as a result of delays in the implementation of the Department’s court infrastructure programme under Court Services by the Department of Public Works and Infrastructure (DPWI).
  • Magistrates salaries. An under-expenditure of R163.6 million under the Direct Charge was due to vacant magisterial posts.

 

  1. Financial performance First Quarter 2020/21

 

  1. R4.2 billion (or 18.7%) of the allocation was reportedly spent in the First Quarter of 2020/21.This includes spending on magistrate’s salaries,

 

  1. Spending for the First Quarter was R1.1 billion less than projected, mainly due to:
  • Lower than planned spending on compensation of employees, goods and services and buildings and other fixed structures, as a result of delays in the filling of vacant posts due to Covid-19.
  • Delays in the receipt of invoices for leases and municipal services, and non-receipt of invoices for infrastructure projects from the Department of Public Works (DPW).

 

 

Part 2

 

  1. Department of Justice and Constitutional Development

 

  1. The Department administers three 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. Under Auxiliary and Associated Services, the Justice Modernisation sub-programme funds the JCPS Cluster projects relating to the Integrated Justice System (IJS).

 

  1. Audit outcome

 

  1. Audit Committee -
  • The end of term of the Audit Committee coincided with the retirement of the Accounting Officer whose office would have been responsible for the recruitment of the Audit Committee. As a result, a vacuum occurred for from October 2019 to January 2020. The non-compliance was rectified during February 2020.
  • The Department is currently in the process of recruiting a long-term Audit Committee as the present arrangement ends in February 2021.

 

  • The Audit Committee reported as follows for the 2019/20 financial year:
  • The breakdown of key controls relating to accounting of assets and contingent liabilities continues to be a concern despite some improvements. These deficiencies contributed to the negative audit outcome and were brought to the attention of management. Management was advised to prioritize the setting up of a task team to address the audit findings, the implementation of which will be monitored by Internal Audit and Audit Committee throughout the financial year.
  • The Audit Committee was satisfied that Internal Audit had discharged its responsibilities as set out in the Internal Audit plan approved by the Audit Committee.
  • Although satisfied with the content and quality of monthly and quarterly reports prepared by the Accounting Officer during the year under review, improvements are needed on certain areas as discussed with management.

 

  1. Auditor General’s report. The Department received a qualified audit opinion for 2019/20 –

 

Table 4: Department of Justice and Constitutional Development audit outcome

Audit Focus Area

2018/19

2019/20

Audit opinion

Qualified on the basis of:

  • Movable tangible capital assets.
  • Contingent liabilities.

Qualified on the basis of:

  • Contingent liabilities. Included in contingent liabilities is R3.1 billion (2019: R3.7 billion) for claims against the Department. The Department did not have adequate internal controls to estimate the likely settlement amounts for claims against the state

Emphasis of matter

Restatement of corresponding figures as a result of errors in the financial statements.

  • Movable tangible capital assets under investigation. These were assets of R181.4 million that could not be located during the verification processes.
  • Material impairments of R1.7 billion (2019: R875 million) were reported. This was due to long outstanding balances owed by various client departments for legal fees paid by the State Attorney offices on their behalf and poor collection practices.

Quality of submitted performance reports

Material misstatements in performance reporting:

  • In some cases, the Auditor General could not find sufficient appropriate audit evidence and in other cases the audit evidence did not agree with the reported achievements.
  • The Auditor General was unable to determine whether any adjustments were required to the reported achievements on certain indicators in the Court Services and State Legal Services programmes.

Material misstatements in performance reporting:

  • In some cases, the Auditor General could not find sufficient appropriate audit evidence and in other cases the audit evidence did not agree with the reported achievements.
  • The Auditor General was unable to determine whether any adjustments were required to the reported achievements in respect of two indicators in the State Legal Services Programme (under the State Attorney).

Annual Financial Statements

Non-compliance with the PFMA: Uncorrected material misstatements resulted in the financial statements receiving a qualified opinion.

Non-compliance with the PFMA: Uncorrected material misstatements resulted in the financial statements receiving a qualified opinion.

Expenditure management

  • Effective steps were not taken to prevent irregular expenditure as required by the PFMA. The majority of the irregular expenditure relates to non-compliance with supply chain management legislation.
  • Effective steps were not taken to prevent fruitless and wasteful expenditure amounting to R5 274 000. The majority of the fruitless and wasteful expenditure was caused by Asset Forfeiture curator fees.
  • Effective steps were not taken to prevent irregular expenditure as required by the PFMA. The majority of the irregular expenditure relates to non-compliance with supply chain management legislation.

Payment of invoices (accruals)

-

Payments were not made within 30 days or an agreed period after receipt of an invoice, as required by Treasury regulations.

Procurement and contract management

  • Some contracts were extended or modified without the approval of a properly delegated official.
  • Some goods and services with a contract value above R500 000 were procured without inviting competitive bids and deviations were approved by the Accounting Officer although it was practical to invite competitive bids.
  • Some goods and services with a contract value below R500 000 were procured without obtaining the required price quotations.
  • In some instance, persons in service of the Department whose close family members, partners or associates had a private or business interest in contracts awarded by the department failed to disclose such interest, as required.
  • Some goods and services with a transaction value below R500 000 were procured without obtaining the required price quotations.
  • Some of the goods and services of a transaction value above R500 000 were procured without inviting competitive bids and deviations were approved by the accounting officer but it was practical to invite competitive bids.
  • Some quotations and contracts were accepted from prospective suppliers who did not submit a declaration on whether they are employed by the State or connected to any person employed by the State, as prescribed.
  • Some quotations and contracts were awarded to suppliers whose tax matters had not been declared.
  • The preference point system was not applied in some of the procurement of goods and services above R30 000 as required.
  • Some ICT-related goods and services, classified as mandatory, were not procured through SITA as required.

Revenue management

The Auditor Generalwas unable to obtain sufficient audit evidence that effective and appropriate steps were taken to collect all money due, as required.

The Auditor General was unable to obtain sufficient audit evidence that effective and appropriate steps were taken to collect all money due, as required.

Internal control

  • The accounting officer did not effectively oversee financial and performance reporting and compliance, as well as related internal controls.
  • Management did not adequately monitor the implementation of action plans to address internal control deficiencies.
  • Management did not implement proper record keeping in a timely manner to ensure that complete, relevant and accurate information is accessible and available to support financial and performance reporting.
  • Management did not implement controls over daily and monthly processing and reconciling of leave transactions.
  • Management did not adequately review and monitor compliance with applicable legislation.
  • Management did not implement controls over daily and monthly processing and reconciling of leave transactions.
  • Management did not design and implement formal controls over information technology systems to ensure the reliability of the systems and the availability, accuracy and protection of information.
  • The accounting officer did not effectively oversee financial and performance reporting and compliance as well as related internal controls.
  • Management did not adequately monitor the action plan to address prior year findings resulting in similar findings in the current financial year.
  • Management did not implement proper record keeping in a timely manner to ensure that complete, relevant and accurate information is accessible and available to support financial and performance reporting.
  • Management did not adequately review and monitor compliance with applicable legislation.

Investigations

  • At the Department’s request, an independent consultant is investigating allegations of possible procurement irregularities in the risk and security environment for the period 2008/09 to 2018/19. This investigation was still in progress.
  • The President has authorised the SIU to investigate the Office of the State Attorney. This investigation, which covers the period 2012/13 to 2018/19, is still in progress.
  • At the Department’s request, an independent consultant is investigating allegations of possible procurement irregularities in the risk and security environment for the period 2008/09 to 2018/19.
  • Two reports into the procurement processes relating to specific security related awards were issued in February 2020 and resulted in disciplinary proceedings being instituted. These proceedings and the remaining scope of the investigation are still in progress.
  • The President of the country has authorised the SIU to investigate (i) the Office of the State Attorney (2012/13-2018/19)and (ii) the Masters Office. Both investigations are still in progress.

 

  1. This is the third consecutive year in which the Department has received a qualified audit opinion. The Auditor General attributes the stagnation in the Department’s audit outcome to inadequate implementation and review of the initiatives contained in the Department’s post audit action plan.

 

  1. The Department received one audit qualification for 2019/20 on contingent liabilities:
  • Significant deficiencies were identified in the accounting for contingent liabilities as has been the case for the past three financial years. While action plans have been developed in the past, these plans have not been implemented and monitored with the necessary care. Addressing the qualification will require collaboration between the State Attorney, Legal Services, NPA and the Finance Unit, which has not always been the case.
    1. Although the Department managed to address deficiencies in the asset management environment, this area remains a concern as R181 million of assets could not be verified during the year-end asset count.

 

  1. The Department’s top four areas of non-compliance areas are: Quality of financial statements; quality of financial statements; procurement and contract management; prevention of irregular, fruitless and wastefulexpenditure;and expenditure management to ensure the timeous payment of service providers.

 

  1. The Auditor Generalhighlighted the Department’s difficulties/inability to collect monies for legal fees due from client departments. The outstanding amount increased by R400 million from 2018/19 to R2.4 billion as at 31 March 2020. This adversely affects the Department’s cash balance.

 

  1. Irregular expenditure by the Department decreased in 2019/20 (R563 million was identified in the current year of which R223 million relates to prior years). However, a further R867 million of potential irregular expenditure is yet to be confirmed (R197 million relating to procurement of legal services by thestate attorney; R561million relating to allegations of fraudulent documentssubmitted by suppliers; the remaining transactions primarily relate to instances whereNational Treasury approval for extensions/deviations was not obtained).

 

  1. The Auditor General identifies the following as being the root causes of the Department’s poor audit outcome:
  • Slow or no response by Management to improving key controls.
  • Instability or vacancies in key positions.

 

  1. The Guardians Fund, Presidents Fund and Justice Administered Fund retained their clean audit outcomes

 

  1. The Auditor General makes the following recommendations:

To the Department -

  • There should be the required urgency by management in responding to messages about addressing risks identified and improving internal controls.
  • Internal audit should be assigned the responsibility for tracking and verifying the progress against the audit action plan.
  • Leadership stability and the right tone at the top is essential to positive outcomes.

To the Committee -

  • The Committee should request the accounting officer and the Minister to provide feedback on the implementation and progress of action plans to ensure improvement in the audit outcomes.
  • Governance challenges between the Department and the NPA remain a stumbling block in achieving clean administration.

 

  1. Minister’s overview

 

  1. On 20 November 2020, the Minister addressed the Committee on the Department’s performance for the period under review, highlighting his concern about the continuous decline in the Department’s performance.

 

  1. The Minister attributes the decline as stemming “from the fact that over the past couple of years, a culture of underperformance and little accountability without consequences has entrenched itself. Most concerning, the department has at times unreasonably delayed filling critical vacancies across the board”.The Minister stated that there is a process in place to rebuild the administration. At senior management level, the appointment of a Director-General is at an advanced stage and a Chief Master and the DDG for Corporate Services have been appointed.

 

  1. Senior Management was tasked with conducting a root cause analysis of the Department’s problems as part of developing a “rescue plan”. The identified root causes within senior management are as follows:
  • The high levels of leadership instability.
  • The lack of capacity.
  • A lack of proper performance management.
  • A lack of decisive decision-making.
  • There is no defined organisational culture leading to a culture of non-performance.
  • A lack of ethical tone.

 

  1. The following actions will be undertaken by the end of the 2020/21 financial year: (i) re-align the macro structure; (ii) implement corrective action and consequence management; and (iii) conduct a skills audit will be conducted to assess the skills set of our middle and senior management.

 

  1. Concerning the NPA, the Minister undertook to continuing “to find every Rand and Cent in the system to capacitate this institution. Capacitating the NPA is an investment to not only regain confidence for the rule of law, but also to recoup all the monies which have been lost to corruption.”

 

  1. Non-financial performance 2019/20

 

  1. Overall, in 2019/20, the Department achieved51% (or 57 of 112) of its planned indicators, compared with 73% for 2018/29. If the indicators for the NPA are removed, the Department achieved only 49% of the planned indicators:

 

Table5: Department of Justice and Constitutional Development - overall performance 2019/20

  •  

Percentage performance

Actual performance

Planned Targets

  •  

18 %

  1.  
  1.  

Court Services

40 %

  1.  
  1.  

State Legal Services

60 %

  1.  
  1.  
  1.  

57 %

  1.  
  1.  

Auxiliary and Associated Services: Justice Modernisation

  1.  
  1.  
  1.  
  •  
  1.  
  1.  
  1.  

 

  1. Overall,performance steadily declined as the 2019/20 financial year progressed, particularly so for the Administration and Court Services programmes:

 

Table 6: Department of Justice and Constitutional Development - quarterly performance 2019/20

2019/20

Quarterly performance

Programme

Quarter 1

Quarter

2

Quarter 3

Quarter 4

Administration

25%

17%

14%

18%

Court Services

53%

47%

35%

40%

State Legal Services

66%

67%

70%

60%

Auxiliary and Associated Services: Justice Modernisation

100%

100%

100%

67%

 

  1. Programme 1 - Administration

 

  1. TheAdministration programme is responsible for the Department’s management and for the development of policies and strategies for the efficient administration of justice.

 

  1. In 2019/20, the Administration programme spent R2.5 billion or 98% of its allocated budget.

 

  1. Overall, the Programme met or exceeded 18% of the planned indicators (compared with 43% for 2018/19).

 

Table 7: Administration – Selected performance 2019/20

Indicators

Five year Target

2019/20

Sub-programme

Unqualified audit opinion achieved (Objective indicator)

Unqualified

Not Achieved

Management

Percentage of significant findings resolved on key specific issues

-

71% against a  target of 100%

Percentage of undisputed and valid invoices paid within 30 days

-

99% against a  target of 100%

No. of priorities implemented to improve administrative capacity to deliver

(Objective indicator)

3

0 against a target of 3

Corporate Services

No. of realigned organisational substructures

-

2 against a target 5 substructures

No. of people appointed on internship and learnership programmes

-

0 against a target of 300

Repositioning strategy for Justice College finalised by target date 31 February 2020

-

Not finalised by target date

 

  1. Linking financial and non-financial performance information: The programme achieved only 18% of planned indicators in 2019/20 but spent 98% of the programme budget. Performance has declined from 2018/19 where the Department achieved 43% of its planned indicators.

 

  1. Programme 2 - Court Services

 

  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.

 

  1. The Programme has the following strategic objectives:
  • An efficient and effective integrated criminal justice system that enhances public confidence in the criminal justice system.
  • Enhancing a victim-centric criminal justice system.
  • Enhanced and integrated Family Law services.
  • Increased access to courts by historically marginalised communities.
  • An efficient and effective civil justice system.
  • Transformation of the South African legal system enhanced.

 

  1. In 2019/20, the Programme met or exceeded 40% (or 10 of 25) of planned indicators (compared with 75% in 2018/19).

 

Table 8: Court Services - Selected performance 2019/20

  •  

Five-year Target

  1.  

Related sub-programme or directorate

No. of criminal cases on the backlog roll in Lower Courts

(Objective indicator)

47 332

NOT ACHIEVED

(57 049 against a target of <48 223)

Chief Directorate:Court Performance

No. of recorded criminal cases updated on ICMS criminal

 

Not achieved

(6 292 against a target of <1800)

No. of magisterial districts with a supplier database for Foreign language interpreters

 

NOT ACHIEVED

(0/25)

Court Services

Percentage of victims and witnesses satisfied with the lower court-based support services

(Objective indicator)

60%

-

Lower Courts

(Chief Directorate: Promotion of the Rights of Vulnerable Groups)

 

No. of courtrooms adapted in line with sexual offences model

 

NOT ACHIEVED

(13 against a target of 16)

Percentage of work in progress (WIP) cases updated on ICMS: NSRO

 

NOT ACHIEVED

26% against a  target of 90%

Percentage of clients perceiving an increase in access to justice services

(Objective indicator)

68%

-

Facilities Management

Number of new court buildings completed

 

NOT ACHIEVED

(2 against a target of 3)

No. of courts where upgrading and extensions are completed

 

NOT ACHIEVED

(3 against a target of 6)

Percentage of annexed civil cases mediated

(Objective indicator)

75%

NOT ACHIEVED

(0 against 65%)

Court Services

 

No. of courts providing court- annexed mediation

-

NOT ACHIEVED(0 against target of 34)

No. of transformational policies developed(Objective indicator)

3

NOT ACHIEVED

(0 against a target of 3)

Court Services

 

  1. Linking financial and non-financial performance information:
  • The Programme met 40% (or 10 of 25) of planned indicators (compared with 75% in 2018/19) while spending 95% of the adjusted appropriation. Underspending is even higher when reprioritised funds are taken into account.
  • The Department reports that vacancies affected its performance in 12 of the 15 unachieved indicators. For the remaining three unachieved indicators, non-performance is attributed to non or slow-delivery on the part of the Department of Public Works and Infrastructure.
  • Notably, none of the transformational policy frameworks or discussion documents were submitted to the Minister by the target date.

 

  1. Programme 3 - State Legal Services

 

  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. In addition, the Programme faciliates constitutional development and undertakes research in support of this.

 

  1. In 2019/20, the programme met or exceeded 60% of its planned indicators (compared with 86% in 2018/29).

 

Table 9:State Legal Services - Selected performance 2019/20

Indicators

Five-year target

2019/20

Related

Sub-programme

No. of Previously Disadvantaged Individuals (PDI) advocates briefed

(Objective indicator)

1 600

ACHIEVED

(1971 against a target of 1600)

Litigation and Legal Services

 

Percentage value of briefs distributed to PDIs

-

NOT ACHIEVED

(82% against a target of 83%)

Percentage rand value of briefs allocated of female counsel

-

NOT ACHIEVED

(27% against a target of 29%)

Percentage of briefs allocated to female counsel

-

NOT ACHIEVED

(39% against a target of 41%)

Percentage reduction of litigation costs against the State

(Objective indicator)

5% reduction

(2019/20 based on estimated performance 2018/19)

NOT ACHIEVED

(13% increase against a target of 5% reduction)

Litigation and Legal Services

 

Percentage reduction in capital amount claimed in medical negligence, unlawful arrest and detention claims

-

NOT ACHIEVED

(65% against a target of 97%)

Percentage of litigation cases settled

-

NOT ACHIEVED

 

(57% against a target of 65%

Project plan for repeal of apartheid era legislation submitted to Minister by target date

31 March 2020

NOT ACHIEVED

 

Legislative Development and Law Reform

Percentage of people indicating awareness on the right to equality (sexual orientation) as entrenched in S9 of the Constitution

(Objective indicator)

(Baseline 2017/18 is 74%)

N/A

Constitutional Development

No. of progress reports submitted to National Task Team on handling of reported LGBTI hate crimes cases

-

NOT ACHIEVED

 

(11 against a target of 12)

No of targets in the implementation plan for the NAP implemented

(Objective indicator)

2019/20 –

3 initiatives

NOT ACHIEVED

(1 initiative against a target of 3)

 

  1. Linking financial and non-financial performance information:
  • Overall, programme performance decreased from 86% in 2018/19 to 60% in 2019/20. Under-performance is observed in the Litigation and Legal Services and Constitutional Development sub-programmes in particular.
  • Spending also decreased from 95% in 2018/19 to 94% of the adjusted budget of R1.39 billion in 2019/20, with R100 million left unspent.
  • The Department reports that vacancies affected performance, as the 18 unachievedindicators are largely personnel driven.

 

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

 

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

 

  1. The Justice Modernisation sub-programme has the strategic objective: ‘Functional integrated criminal justice system (CJS) to monitor the performance of the criminal justice system established’.

 

  1. The sub-programme met 67% or 2 of 3 indicators (compared to 100% in 2018/19):

 

Table 10: Justice Modernisation –Selected performance 2019/20

Indicators

5-Year Target

2019/20

Responsibility

No of KPIs on the integrated Criminal Justice systems

(Objective indicator)

28

ACHIEVED

(26 against a target of 26)

Justice Modernisation

No. of government departments and entities exchanging information electronically

-

ACHIEVED

(9 against a target of 9)

Total no. of IJS departments applications that form part of integrated test lab process

-

NOT ACHIEVED

(8 against a target of 9)

No. of branches/sites/service centres of government departments and entities where PIVA services deployed

-

ACHIEVED

684 against a target of 280

 

 

  1. Overview of First Quarter 2020/21 non-financial performance

 

  1. Overall, in the First Quarter of 2020/21, the Department achieved 27 of 59(or 45.7%) of planned indicators:

 

Table 11: Programme performance 2020/21 Quarter 1

  •  

No. of indicators with planned targets

Actual Performance

% Performance

  •  
  1.  
  1.  
  1.  

Court Services

  1.  
  1.  
  1.  

State Legal Services

  1.  
  1.  
  1.  
  1.  
  1.  
  1.  
  1.  

Justice Modernisation

  1.  
  1.  
  1.  
  •  
  1.  
  1.  
  •  

 

 

  1. National Prosecuting Authority (NPA)

 

  1. In line with its constitutional mandate, the 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.

 

  1. 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 exemption 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 the exemption expired on 31 March 2014. However, in terms of the National Prosecuting Authority Act, 1998, the National Director of Public Prosecutions(NDPP) has submitted an annual report on operations for 2019/20.

 

  1. Strategic and operational developments. There have been a number of developments that have impacted on the NPA’s strategic and operational environment:
  • In February 2019, Adv. Shamila Batohi was appointed NDPP, filling the vacancy that had arisen from the Court judgement.
  • A key government commitment in the period under review has been to intensify the fight against corruption with a focus on the swift investigation, prosecution and recovery of stolen public money, especially where evidence of criminal activity has emerged from the various commissions of inquiry. An investigating directorate was established by proclamation in the Office of the NDPP to deal with serious corruption and associated offences on 4 April 2019. the Investigating Director, Adv. H Cronje was appointed a month later. The Directorate was given a specific mandate to focus on State Capture-related corruption that emerged from the various commissions of enquiry, including the State Capture Commission led by the Deputy Chief Justice, Judge Raymond Zondo. The Directorate is intended as a temporary and focused intervention and, therefore, strengthening capacity and skills in the Specialised Commercial Crime Unit (SCCU) and the Asset Forfeiture Unit (AFU), which also deal with corruption, is vital.
  • A further key priority/commitment has been to work to end gender-based violence.

 

  1. For the 2020-2025 term, the NPA has aligned its strategy with the Department’s impact statement of ‘Improved public perception, confidence in the justice system and respect for the rule of law’ and to the Department’s Outcomes 2 and 7, namely ‘Modernised, accessible courts and people-centred services’ and ‘Crime and corruption significantly reduced through effective prosecution’. The NPA has also committed to making the following impact: ‘A South Africa in which crime is significantly reduced and everyone feels safe and abides by the law’. The intended outcome is ‘Crime and corruption significantly reduced through effective prosecution.

 

  1. The NPA’s analysis of performance trends found that, while the organisation has consistently maintained good conviction rates, it is performing less satisfactorily in terms of the actual number of convictions attained. A key factor has been the high vacancy rate as a result of the freeze on recruitment since 2015. Moreover, the Aspirant Prosecutor Programme was suspended. With an additional allocation, the NPA has been able to embark on a recruitment drive to fill critical vacancies and increase capacity. At Senior Management level, several key appointments havebeen made. Adv. R de Kock to head the National Prosecuting Service and Adv. Rajbaji-Rasethaba to head the AFU.

 

  1. Personnel. As at 31 March 2020, the NPA’s overall vacancy rate was 27%. Notably, the vacancy rate for the AFU was 46%; the SOCA Unit was 38%; and the SCCU 33%. The Table below sets out the vacancy rates for each functional responsibility.

 

Table 12: NPA -  Vacancy rate at 31 March 2020

 

Functional

Responsibility

  •  
  •  

Vacant Unfunded

Vacancy rate

  1.  
  •  

3 861

2 975

  1.  
  1.  

Legal Administration Support (AFU Investigators, CPO & VAOs, etc.)

  1.  
  1.  
  1.  
  1.  

Administrative Support

  •  
  1.  
  1.  
  1.  

Office of Witness Protection

  1.  
  1.  
  1.  
  1.  
  •  
  1.  

4 224

1 531

  1.  

 

  1. Financial performance

 

  1. The NPA was allocated R4.1 billion for 2019/20 (compared with R3.8 billion for 2018/19),and spent R4.0 billion (or 97%) of the final budget, underspending by R125.6 million.

 

Table 13: NPA - Expenditure report 2019/20

Programme

(R’million)

Final Appropriation

Actual Expenditure

(Over)/under

expenditure

National Prosecutions Service

3 221.1

3 215.8

5.3

Asset Forfeiture Unit

153.1

126.9

26.3

Office of Witness Protection

192.8

192.8

-

Support Services

567.6

473.8

93.8

Total

4 134.7

4 009.2

125.5

 

  1. Expenditure on Compensation of Employees was at 98% (R3.4 billion) with an underspending of R62.6 million. During the AENE process the NPA was allocated a further R102 million to establish the Independent Directorate, capacitate the AFU and the SCCU, and to increase safety, security and witness protection services with respect to the prosecution of corruption matters for the NPAThe underspending is attributed to the recruitment process not being finalised in the year under review.

 

  1. As a result of budget challenges, the Department transferred R21.5 million to address overspending under the Goods and Services budget. Before the virement, expenditure was at 104% due to thepayment of contractual obligations.

 

  1. During 2019/20, the Department also allocated an additional R90 million to the NPA for the replacement of outdated laptops for prosecutors. However, the outbreak of COVID-19 prevented delivery of these laptops before the end of the financial year. This led to underspending of R62.8 million reflected under Payments for Capital Assets.

 

  1. The NPA received additional funding of R1.2 billion over the MTEF through the 2019 AENE process to: establish the Independent Directorate, capacitate the AFU and the SCCU; and increase safety, security and witness protection services with respect to the prosecution of corruption matters.

 

  1. In 2020/21, the NPA is allocated R4.2 billion.At the end of the First Quarter, the NPA reported spending R1.04 billion or 24.7% of the allocation. Overspending under Machinery and Equipment relates to laptops purchased in 2019/20 but only delivered and paid for in 2020/21.

 

  1. Non-financial performance

 

  1. Overall, in 2019/20, the NPA achieved 17 or 61% of 28 planned indicators and collected baseline data for one new indicator.

 

  1. At the end of the First Quarter 2020/21, the NPA achieved 6 of 12 or 50% of planned indicators.

 

  1. Linking financial and non-financial performance information. In 2019/20, the NPA achieved 61% of its indicators and spent 97% of its budget. The performance of the AFU was particularly poor, achieving only 2 of the 11 planned indicators for 2019/20. The high vacancy rate in the AFU is reported as having contributed to the poor performance. In this regard, the appointment of Adv Rajbaji-Rasethaba to head the AFU was afirst step in the AFU’s turnaround strategy. In addition, the NPA has created an additional 37 posts at the AFU and made 55 contract appointments.

 

  1. Budget reductions.TheNPA reports that the proposed budget reductions will negate the increased allocation over the MTEF intended to fill vacancies and increase the NPA’s capacity, as well as for its Aspirant Prosecutors programme. Although the NPA can absorb the cuts for this financial year and for 2021/22, the NPA will not be able to fill positions to pay those who it has recruited now or to increase its capacity as it will have a shortfall on its salaries budget in the outer years. The NPA projects that it will have to employ 585 fewer officials, about 10% of its present staff establishment, which will seriously undermine its ability to deliver on its mandate.

 

 

 

 

  1. Information Regulator

 

  1. The Protection of Personal Information Act, 2013, (POPIA) regulates the processing of personal information by providing a framework that sets out the minimum standards that responsible parties must comply with when processing personal information. The Act applies to public and private bodies, including juristic persons, and aims to achieve a balance between the free-flow of information and the right to privacy.

 

  1. The Information Regulator is established in terms of section 39 of POPIA and has a wide range of powers and functions regarding promoting and enforcing the right to privacy.

 

  1. POPIA also transfers certain key responsibilities concerning the Promotion of Access to Information Act, 2000, (PAIA) to the Information Regulator. These include the handling of complaints, conducting investigations, and making assessments about compliance by public and private bodies.

 

  1. On 17 June 2020, the President issued a Proclamation bring into operation certain outstanding sections of POPIA on 1 July 2020. The remaining sections will come into effect on 1 July 2021. In terms of section 114(1), public and private bodies have until 30 June 2021 to comply with POPIA.

 

  1. The Regulator has reported that the institution has enough time to ensure its readiness before 1 July 2021 and has developed the necessary plans. PAIA functions, however, will be transferred from the SAHRC to the Information Regulator after 30 June 2021 as soon as it becomes possible. The SAHRC and the Regulator will jointly develop a plan of action forthe handing over of the function.

 

  1. In terms of POPIA, the Regulator is given the power to determine its own administration in consultation with the Minister of Finance. The Regulator has an approved structure of 430 posts and plans to appoint 41 staff members in 2020/21.

 

  1. The Regulator’s funding is ring-fenced under the Justice Departments’ State Legal Services programme. An amount of R45.5 million is allocated to the Information Regulator for 2020/21, compared with R28.9 million in 2019/21. The allocation for the remainder of the 2020 Medium Term Expenditure Framework (MTEF) is as follows: R57.7 million in 2021/22; and R63.7 million in 2022/23.

 

  1. The Regulator reports a shortfall on its allocated budget: it requires R84.9 million in 2021/22; R138.4 million in 2022/23; and R306.3 million in 2023/24if it is to grow the establishment to the planned 383 employees.

 

 

Part 3

Auxiliary and Associated Services

 

  1. Legal Aid South Africa

 

  1. Legal Aid SA is an autonomous statutory body that derives its mandate from the Constitution, 1996; the Legal Aid South Africa Act 39 of 2014; and other legislation requiring the government to provide legal assistance to the indigent. Its main objective is to make legal representation available to indigent persons at State expense, ensuring the right of all citizens to access to justice. Notably, the Legal Aid South Africa Act, 2014,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.

 

  1. The main objective of Legal Aid SA is to render or make available legal representation to indigent persons at state expense as contemplated in the Constitution, ensuring the rights of citizens to access to justice.

 

  1. The Strategic Plan 2020-2025 sets out the policy priorities, programmes and project plans for the period, as well as the related outcomes, outcome indicators and five-year targets. Legal Aid SA’s plans are aligned with the MTSF priority ‘Social cohesion and safer communities’:

 

  1. Legal Aid SA’s strategic outcomes for 2020-2025 are to provide quality justice for all, especially, the poor and vulnerable, and to be a respected, high performance, sustainable and accessible public entity that will have a positive impact on society, the economy and the environment.

 

  1. In carrying out its mandate, Legal Aid SA continues to identify the following priority groups: children; every detained person, including sentenced prisoners; every accused person who wishes to appeal or review a court decision in a higher court; women, particularly in divorces, maintenance and domestic violence cases; and the landless, especially in eviction cases.

 

  1. The Legal Aid SA Plans have factored in the new responsibility that arises as a result of government’s policy direction related to justice in land matters and the new Land Court Bill. The Board approved the position of a Legal Executive: Land Rights Management who will be responsible for the delivery of the land-related matters legal services offering, as envisaged in the Land Court Bill. A number of meetings have been held with the Department of Agriculture, Land Reform and Rural Development and the Department of Justice and Constitutional Development, relating to the Land Court Bill. The interim transfer of the Land Rights Management Facility to Legal Aid SA, pending the implementation of theLand Court Bill, has formed part of these discussions

 

  1. Budget constraints continue to affect the operations of Legal Aid SA. The salaries budget is also negatively impacted by the cost of living increases which are higher than the macro increases and these have to be absorbed within the baseline allocation. The operating expenditure budget has not been increased by the macro over the five-year period, except for expenditure linked to contractual obligations. A key area of concern is the lack of relief capacity.

 

  1. At 31 March 2020, Legal Aid SA reports a staff establishment of 2 551 with budgeted posts at 2 799. Legal staff, including paralegals, account for 80% of the establishment.

 

  1. Legal Aid SA received Top Employer accreditation for the eleventh consecutive year.

 

  1. Delivery continues to occur nationwide through 64 Local Offices and 64 satellite offices. In addition, Legal Aid SAmakes uses of accredited Judicare partners; co-operation partners and agency agreements with private law firms to deliver services. This ensured a mixed model delivery system in which 96% of all new matters were handled by the Local Offices; 3% by Judicare practitioners and Agency Agreements; and 1% by co-operation partners.

 

  1. In 2019/20, Legal Aid SA achieved an unqualified audit opinion for the nineteenth consecutive year and a clean audit opinion for the fourteenth consecutive year.

 

  1. Financial performance

 

  1. Legal Aid SA is allocated R2.1 billion for 2020/21, an increase from R1.99 billion in 2019/20. Over the 2020 MTEF, it is allocated an additional R75 million (R20 million in 2020/21; R25 million in 2021/22 and R30 million in 2022/23). However, anticipated budget reductions will create a budget shortfall that affects the Compensation of employees’ budget, in particular.

 

Table 14: Legal Aid SA programme budget for the 2020 MTEF

Sub-programme

(R’million)

2019/20

2020/21

2021/22

2022/23

Legal Aid Services

334.8

390.5

402.1

427.4

Administration

600.3

1 656.1

1 757.8

1 833.8

Special projects

55.8

59.5

63.3

66.7

TOTAL

1 991.0

2 106.1

2 223.2

2327.9

 

  1. Legal Aid SA reported that it spent R2.01 billion or 98% of the revised budget of R2.06 billion in 2019/20.

 

  1. In 2020/21, Legal Aid SA’s budget has been reduced by R23 million to contribute to the Covid-19 fund.

 

  1. Non-financial performance

 

  1. Legal Aid SA reports the following key achievements for 2019/20:
  • Legal advice and assistance was provided in 668 293 matters, of which 402 238 were new criminal matters, 266 055 advice matters and 25 impact litigation matters.
  • Court coverage in the District Courts was 86% against a target of ≥80% and in the Regional Courts was 94% against a target of ≥90%.
  • 97.1% of Internal Legal Practitioners met the legal quality targets for both matter files and court appearances.
  • Owing to prudent financial management, 98% (R2.01 billion) of the annual budget of R2.06 billion was spent.
  • Sound financial management and good governance culminated in thenineteenth consecutive unqualified audit with no material findings.
  • The staffing level was 91.9% (2571 personnel) against a target of ≥95%; and the turnover rate was 5.8%, excluding Candidate Attorneys and temporary/contract staff.
  • Human Resource practices benchmarked against Top Employer standards resulted in Top Employer accreditation for the eleventh consecutive year during 2019/20 and Industry Leader of the Public Sector category for fifth successive year.
  • The Employment Value Proposition (EVP), relating to the Group Life Scheme, Learning and Development, and Performance Management, Reward and Recognition were improved within the available budget.
  • eLAA, the newly developed electronic Legal Aid Administration System Legalwent live in Quarter 3.
  • Community outreach programmes surpassed the target. This covered branding at Prison Cells, Police Cells and Court Precincts as well as community events at government key points. A well-established social media presence has enhanced the Legal Aid SA brand.

 

  1. In the First Quarter 202/21, Legal Aid SA reports that:
  • It achieved 8 or 53% of 16 planned indicators. Of the remaining indicators, 6 were partially achieved, 1 indicator was not achieved and 1 indicator was not scheduled.
  • As a result of the Covid-19 pandemic, it assisted fewer clients in both criminal and civil matters. However, all courts that were operational during the lockdown were covered by Legal Aid SA practitioners (General legal advice services were not available under Level 5 of the National Lockdown. Under Levels 4 and 3, general advice was available through the Advice Line for matters permitted in terms of the Regulations and Court Directions. General advice services at Local and Satellite Offices were restricted and only available by prior appointment.)

 

  1. Budget reductions

 

  1. The total projected baseline cut and shortfall over the MTEF period will be as follows:
  • 2020 Adjusted Estimates of National Expenditure: The Compensation of Employee adjustment for Legal Aid SA is R104.2 million. As communicated by National Treasury transfer payments to Legal Aid SA will be reduced with effect from January 2021.
  • The 2020 MTEF Guidelines (2021/22 – 2023/24).The 2020 MTEF Guideline stipulated baseline reductions of 5,7%, 8,5 % and 17,6 % for the upcoming three years: The total budget cut over the 2021 MTEF period is R695.1 million.

 

  1. Pending budget cuts will have a negative impact on the staffing levels and the number of matters undertaken by Legal Aid SA with the following cumulative effect:
  • Staff numbers will have to be reduced over the MTEF period. The cost of retrenchment of staff will be calculated and funds for this will have to be identified.
  • Coverage of courts will reduce over the MTEF period and this will affect all courts.
  • The impact of the reduction in the staff numbers will also be reflected in the (reduced) number of legal matters undertaken over the MTEF period.
  • There will also be a reduction in the number of advice matters undertaken.
  • It is estimated that 1079 staff members may be retrenched and court coverage will be reduced by more than 30% if the proposed budget cuts are effected.

 

  1. Special Investigating Unit (SIU)

 

  1. The legislative mandate of the Special Investigating Unit (SIU) is derived from the Special Investigating Unit and Special Tribunals Act 74 of 1996 (as amended). The SIU’s principal function is to investigate serious malpractices, maladministration and corruption in connection with the administration of state institutions, state assets and public money, as well as any conduct, which may seriously harm the interests of the public. Matters are referred to the SIU through Presidential proclamations that set out the scope of the investigation. The SIU also:
  • Institutes and conducts civil proceedings in any court of law or special tribunal, in its own name or on behalf of state institutions.
  • Brings potential disciplinary matters to the attention of state institutions.
  • Provides for the secondment of SIU officials to improve departmental systems.

 

  1. Although the SIU does not have the power to arrest or prosecute offenders for criminal conduct, it reports matters to the Directorate for Priority Crime Investigation (DPCI/the Hawks), the South African Police Service (SAPS) and the National Prosecuting Authority (NPA). The SIU works closely with the Asset Forfeiture Unit (AFU) in the NPA, where its powers are more appropriate or effective in recovering the proceeds of crime. The MTSF also identifies the investigative reports of the Financial Intelligence Centre as key in the identification of high priority cases. The SIU is part of the Anti-Corruption Task Team (ACTT), which was established to fast–track investigations and prosecutions of serious corruption cases.

 

  1. The SIU locates its role under the MTSF priorities: ‘Social Cohesion and Safe Communities’ and ‘A capable, ethical and developmental state’. The MTSF envisages an improvement in corruption perception by the end of the five-year period. The SIU is to contribute by reducing levels of fraud and corruption in the private and public sectors; freezing money and assets; establishing and strengthening the capacity of the Special Tribunal for civil recoveries; and increasing the use of Financial Intelligence Reports in identifying high priority cases.

 

  1. The SIU has identified the following as key risks:
  • Inability to financially sustain SIU operations in the short to medium term due to shortcomings in the funding model.
  • Inability to timeously commence SIU investigations due to protracted approval process for proclamations.
  • Failure by state institutions to implement the SIU’s legal recommendations.
  • Inability to pro-actively assist public institutions to prevent corruption and maladministration practices.
  • Insufficient preparedness to respond to physical threats to investigators and security breaches.
  • Inability to achieve forensic investigations legal outcomes.
  • Inability to conduct forensic investigations according to predetermined standards.
  • Inability to attract an adequate and high performing workforce that is suitably skilled and properly managed.
  • Ineffective collaboration with external and internal stakeholders.
  • Failure to process and finalize civil matters enrolled in the Special Tribunal Court.
  • Inability to provide appropriate ICT services across SIU business.

 

  1. Audit outcome.The SIUmaintained a clean audit outcome in 2019/20 (its fourth consecutive clean audit).

 

  1. Financial performance

 

  1. The SIU’s funding model provides for a baseline grant from National Treasury. In addition, the SIU charges state institutions for its services, thus raising additional revenue. The recovery of debts from state institutions for services has proven to be a challenge that requires legislative amendments (On average, the SIU has only been able to recover about 25% of the outstanding debt over the past seven years. The value of outstanding debtors, however, has decreased since 2018/19 from R493 million to R420 million.)

 

  1. The approved budget allocation in 2019/20 was R683 million, consisting of R363 million received from a government grant, R285 million in project funding and R37 million in other non-tax revenue.

 

  1. In 2020/21, the SIU’s projected total revenue is R820.4 million, compared with R683.3 million in 2019/20. Additional funding in the amount of R225 million is made available to the SIU over the medium term (R70 million in 2020/21; R75 million in 2021/22; and R80 million in 2022/23). The grant allocation is R452.9 million or 55.2% of the total projected revenue, while the SIU has projected that, in the 2020/21, it will receive R367.6 million in payments from state institutions for services rendered.

 

  1. In 2019/20 and the First Quarter 2020/21, the SIU’s expenditure compared with the projected budget was as follows:

 

Table 15: SIU – expenditure

(R’000)

2019/20

2020/21

Quarter 1

Actual

Final Budget

Variance

%

Q1

Actual

Q1

Budget

Variance

Income

696.4

685.0

11.4

2

151.4

205.1

/820.4

53.7

Expenses

502.9

685.2

182.1

27%

119.5

205.1

85.6 (42%)

Surplus/

(Deficit)

193.5

-

193.5

-

0

32.1

-

 

  1. The explanation for the differences between the final budget and actual expenditure is as follows:
  • Income -
  • CARA Funds: Cabinet approved the recommendations of the Criminal Asset Recovery Committee (CARC) to allocate R16 million to the SIU, to support corruption fighting and other forms of economic crimes as part of the Anti-Corruption Task Force (ACTT) and activities relating to the SIU Special Tribunal. An amount of R 5.8 million had already been spent on these costs and was, therefore, recognised as income. However, the amount was not budgeted for as it was only approved in December 2019.
  • Interest Received: The positive balance was due to higher than expected average bank balances.
  • Expenses -
  • Salaries: The SIU underwent an organisational review process to develop a new structure, which it intends to capacitate over the MTEF period. The recruitment process was started in 2019/20 but could not be finalized.
  • Travel and operational costs: The underspending related to the recruitment process, which is still ongoing. 
  • Administration Costs: The debt impairment projection is based on the evaluation of each state institution’s circumstances, including the historic payments, any application for exemptions made to National Treasury not to pay the SIU, payments received after 31 March 2020, and is consistent with previous financial years. A major portion of the debts impaired during 2018/19 (R100 million) were recovered as a result of the SIU’s on-going efforts to recover debts.

 

  1. The Unit’s main cost driver is compensation of employees. The Unit reported spending R478 million on its salaries budget for 2019/20. (The SIUintends to increase its personnel from 516 in 2019/20 to 630 in 2020/21 and 722 in 2021/22 to enable it to conduct more investigations and to improve the turnaround times of investigations.)

 

  1. Non-financial performance

 

  1. The SIU’s Strategic Plan 2020 – 2025 identifies certain high impact initiatives and interventions for the MTSF period:
  • Pursuing Priority High-Impact Targets to optimise the deployment of its resources.
  • Rejuvenating the organisation by investing in critical parts of the business.
  • Differentiating the SIU through its ‘unique offerings’.
  • Enforcing consequence management measures through a monitoring and evaluation competency (with the Auditor General).
  • Pursuing civil litigation.
  • Applying cutting-edge data analytics and technology.
  • Optimising the uniqueness of the Special Tribunal.

 

  1. The SIU has identified the following impact statement, organisational outcomes and five-year targets for 2020-2025:

 

Table 16: SIU – Impact statement, outcomes and five-year targets 2020-2025

IMPACT STATEMENT:

Ridding society of fraud and corruption in state institutions

  1.  

FIVE-YEAR TARGET

A compliant, high performance SIU that is well capacitated to rid society of corruption, maladministration and fraud in State institutions

  • Achieve and exceed all set performance targets
  • Maintain positive AG audit outcomes

State assets and cash resources are protected from maladministration, fraud and corruption for the realisation of full value for money for state programmes

Estimated R10 billion

Confidence in the governance systems, structures and policies of the State is restored and maintained

An established index on confidence in the state’s ability to effectively combat corruption and maladministration

Corruption, maladministration and fraud deterred through proactive preventative mechanisms and effective enforcement of consequence management measures

A minimum 10% annual decrease (aligned to the MTSF Priority Five-year target)

 

  1. The SIU has three programmes:

 

Table 17: SIU – programmes

  •  
  •  
  •  

Responsible for the provision of business oversight and enablement services to the core business units of the SIU.

Investigations and Legal Counsel

Responsible for ensuring the adequate execution of the mandated service delivery of the SIU.

Market Data Analytics and Prevention

Responsible for the implementation of relevant and proactive initiatives to prevent the reoccurrence of fraud and corruption cases as a result of systemic weaknesses in the public sector and to positively influence the behaviour of South African citizens

 

  1. At programme level, the SIU reports that, in 2019/20, it achieved 69% of its planned targets, while 20.7% of targetswere not achieved and required an intervention and 10.3% were not achieved but significant work had been done.

 

  1. All targets that were not achieved related to the Administration programme.

 

  1. At the end of First Quarter 2020/21, the SIU reports that it achieved 25 % of targets;did not achieved 50% of targets (requiring an intervention) and partially achieved 17%. Two targets did not form part of planned reporting for the Quarter. The lockdown as a result of the Covid-19 pandemic significantly affected performance as the SIU was not designated an essential service.

 

Table 18: SIU - Selected performance 2019/20 and Quarter 1 2020/21

 

Performance Indicators

2019/20

2020/21

Quarter 1

Target

Actual

Target

Actual

Percentage of vacancies in funded posts

12%

23%

14%

18.6%

Percentage implementation of an approved ICT Plan

75%

31%

80%

 

Rand value of actual cash and/or assets to be recovered

R140 million

R400 million

R148 million

Q1: R37 million

R637,087.75

Rand value of actual cash and/or assets recovered

R30 million

R345.6 million

R60 million

Q1: R5 million

R1.4 million

Value of contract(s) and/or administrative decision(s)/action (s) set aside or deemed invalid

R800 million

R4.3 billion

R900 million

Q1: R225 million

R0

Rand value of potential loss prevented

R30 million

R4 billion

R300 million

Q1: R60 million

R0

Number of referrals made for disciplinary action against official

100

638

150

Q1: 38

9

No. of referrals made to the relevant Prosecuting Authority

75

451

200

Q1: 98

96

Value of matters in respect of which evidence was referred for the institution or defence/opposition of civil proceedings

R1.5 billion

R2.1 billion

R1.6 billion

Q1: 400 million

R0

 

  1. Linking financial and non-financial performance:
  • In 2019/20, the SIU achieved 69% of planned targets (all unachieved targets related to the Administration programme).Under the Investigations and Legal Counsel programme, the SIU far exceeded its targets in many instances.Although the SIU had a surplus of R193 million, R100 million was related to recovered monies in relation to project expenses incurred in 2018/19.
  • Despite the challenges in achieving planned targets in the Administration programme, the SIU was able to maintain its clean audit opinion.

 

 

  1. SouthAfrican Human Rights Commission (SAHRC)

 

  1. The SAHRC’s mandate is extremely broad, encompassing the promotion, protection and monitoring of human rights in South Africa. The Commission derives its mandate from the Constitution and South African Human Rights Act, 2014. The Commission also has specific obligations in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and Promotion of Access to Information Act, 2000.

 

  1. In recognition of South Africa’s core challenges – high levels of poverty, inequality, unemployment and violence – all areas of the SAHRC’s work attempt to contribute to addressing each of these challenges.The identified strategic focus for the period under review includes: children and migration; civil and political rights; disability and social security; education; equality and social cohesion; health care; land, environment and the right to food; and water, sanitation and housing. Its interventions include complaints handling, strategic impact litigation, investigative hearings, public outreach, monitoring recommendations and research.

 

  1. Parliament ratified the Optional Protocol to the Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) at the end of March 2019. The OPCAT obliges State parties to establish national preventative mechanisms (NPM) to monitor places of prevention of liberty through regular visits. The Commission is the co-ordinating body for the NPM in South Africa, in accordance with Article 17 of the OPCAT. The Commission received R1.68 million in 2019/20 from the Justice Department for this work.

 

  1. The SAHRC has also been accredited as an Independent Monitoring Mechanism (IMM) under the Convention on the Rights of People with Disabilities (CRPD). This obligates the Commission to fully establish and ensure the functionality of the IMM, monitor and report on compliance with the requirements of the CRPD to the United Nations Committee on the Rights of Persons with Disabilities.

 

  1. The MTSF highlights the need for social cohesion and a key outcome under the priority ‘Social Cohesion and Safe Communities’ is the implementation of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. In addition, the MTSF identifies the Commission as contributing to:
  • The promotion of the Constitution and its values in schools, awareness campaigns, public engagements and dialogues.
  • The development of a system to ensure consistent barrier free access for persons with disabilities to justice across the justice value chain.
  • Strengthening and expanding protection measures for children and for adults with disabilities in institutionalised settings, such as special school boarding facilities, mental health care facilities and residential facilities.

 

  1. The SAHRC’s Strategic Plan 2020-25 provides for mandate-linked strategies:
  • Promotion - Enhancing human rights advocacy, visibility and awareness programmes by conducting high impact engagements to influence policy, legislation and its application; establishing strategic partnerships for capacity and collaboration; empowering communities and the public to proactively engage with human rights issues; and utilising media platforms to raise awareness and increase visibility.
  • Protection – Increasingly using redress mechanisms to minimise human rights violations by instituting strategic impact litigation and proactively conducting investigative inquiries and hearings.
  • Monitoring – Comprehensive human rights monitoring and impact evaluation by strengthening and applying a comprehensive monitoring system to assess the state of human rights.

 

  1. The Commission has four programmes: Administration; Promotion of human rights; Protection of human rights; and Monitoring observance of human rights.

 

  1. The Commission reports a current vacancy rate of 15% with 168 posts filled out of 198 approved posts.

 

  1. Audit outcome. In 2019/20, the SAHRC received an unqualified audit opinion.However, the Auditor General noted that while the quality of submitted financial statements has been maintained, the challenges within the supply chain management environment and performance information reporting remain. The Auditor General urged the Commission complete investigations into instances of irregular expenditure with the necessary urgency so that corrective action can be implemented.

 

  1. Financial performance

 

  1. The Commission is allocated R213 million for 2020/21, increasing from R190.3 million in 2019/20. This includes an approved National Treasury surplus rollover from 2019/20 of R9.1 million for special projects, which include:
  • Additional support for the OPCAT National Preventative Mechanism.
  • A human rights monitoring system for the Commission.
  • The 25th year Anniversary commemoration.
  • PAIA mandated functions.

 

  1. Salaries dominate expenditure: In 2019/10, R125.8 million (or 70.2%) of expenditure was for this item.Corporate Support costs amounted to R43.9 million (or 24.5%) of actual expenditure. A similar breakdown applies to the Commission’s 2020/21budget and expenditure patterns.

 

 

  1. Non-financial performance

 

  1. Overall, in 2019/20, the SAHRC achieved36 or 88% of 41 targets, a significant improvement when compared to 2018/19 when it achieved 22 of 30 or 73% of planned targets.

 

Table 19: SAHRC – Performance 2019/20

  •  
  •  
  •  
  •  

Percentage achievement

  •  
  1.  
  1.  
  1.  
  •  
  1.  
  1.  
  1.  
  •  
  1.  
  1.  
  1.  
  •  
  1.  
  1.  
  1.  

Monitoring International

  1.  
  1.  
  1.  

Total

  1.  
  1.  
  1.  

 

  1. Key achievements for 2019/20 include:
  • Hosting the schools Moot Court Commission (in collaboration with the Departments of Justice and Basic Education.) (Notably, the South African team went on to win an international moot court competition.)
  • 224 public outreach engagements, reaching over 19 000 people.
  • 700 strategic stakeholder engagements and collaborations, which reached in excess of 20 000 people.
  • Finalising 8891 (75%) of complaints/enquiries out of a total caseload of 11 803. (Although the finalisation rate is lower than the 81% achievement in 2018/19, it was the highest number of cases finalised by the Commission since 2015/16 and the finalisation rate was significantly above the annual target for 2019/20 of 7000 cases finalised.)

 

  1. First Quarter 2020/21 performance:
  • The Commission reports that it achieved 68% of its targets in the First Quarter 2020/21. Much of the Commission’s focus was on human rights matters emanating from Covid-19 (particularly in respect of the issues of health, education, human settlements, water and sanitation) and the consequent lockdown. The monitoring programme of the Commission was the most affected by the lockdown. (Of a total number of 11 targets for this programme, the Commission achieved six (55%).)
  • On 14 April 2020, the Commission established an advisory Committee to assist in monitoring the enforcement of the Covid-19 lockdown and its impact on human rights. The Committee is chaired by Mr Chris Nissen and consists of a number of civil society organisations and individuals.
  • The Commission also reports that:
  • It developed guidelines in response to the human rights implications arising from the Covid-19 situation. In the process, the Commission engaged with the Minister of Cooperative Governance and Traditional Affairs on the Regulations, resulting in an agreement to cooperate on issues of concern and ensure the protection and promotion of human rights.
  • Through its NPM mandate, it has issued advisory recommendations to relevant state departments to strengthen the protection of children who are deprived of their liberty in the context of Covid-19.

 

  1. Budget reductions

 

  1. AlthoughtheCommission did not experience a budget cut in the Supplementary/Special Adjusted Budget in July 2020, the Commission has been advised of:
  • An “in-year” budget cut in the 2020/21 financial year of R8.4 million, to be funded from Compensation of Employees allocations. (this will affect cost of living increases; notch increases and the performance bonuses budget).
  • Proposed downward baseline adjustments in 2021/22 of R12.5 million in respect of compensation of employees and ‘hairline cuts’ of R11.5 million.

 

  1. The proposed cuts will have variousconsequences for operations, including:
  • Restricted delivery on the constitutional mandate, with adverse impact on the realisation of human rights. The State of Disaster has increased human rights vulnerabilities and, therefore, there is higher demand for the Commission’s interventions and resources.
  • The inability to address systemic human rights violations.
  • Inadequate monitoring of the state of human rights in the country - Economic and social rights; Civil and Political Rights; Equality; International and regional human rights monitoring obligations.
  • The inability to host the Schools Moot Court Competition.
  • Minimal funding for the NPM.
  • An inability to sustain the establishment of the CRPD and Child Rights Units, and restricted related monitoring activities.
  • An inability to fulfil the requirement of the Protection of Personal Information Act (POPIA): Digitisation of operations and legal records.
  • An inability to evaluate human rights interventions to ensure greater impact.
  • Increasing costs of ensuring the safety of personnel.
  • Risks international recognition as an A-status National Human Rights Institution.

 

  1. The Commission reports the following spending pressures and related forward funding needs:

 

Table20: Spending pressures and forward funding needs 2020 MTEF

Project

2020/21

2021/22

2022/23

School Moot Court Competition

1.3 million

R1.3 million

R1.3 million

OPCAT NPM (Ring-fence ends 21/22)

-

-

R2.4 million

CRPD unit set-up costs

-

1.6 million

-

Child Rights Unit set-up costs

-

1.6 million

-

Sub-Total

R1.31 million

R4.51 million

R3.72 million

Additional minimum capacity:

9 human rights officers and 9 legal officers.

R10.5 million

R10.5 million

R10.5 million

Total

R11.8 million

R15.1 million

R14.2 million

 

 

  1. Public Protector South Africa (PPSA)

 

  1. The Public Protectoris an independent constitutional institution whose mandate, broadly, is to support and strengthen constitutional democracy by investigating maladministration or improper conduct in state affairs or the public administration in any sphere of government and to take appropriate remedial action. The Constitution also states that the Public Protector must be accessible to all persons and communities.

 

  1. The PPSA’s Vision 2023 is underpinned by the following pillars:
  • Enhancing access to (PPSA) services.
  • Engaging targeted communities in their mother tongue.
  • Expanding the (PPSA’s) footprint.
  • Leveraging stakeholder relations and formalising those relationships in Memoranda of Understanding.
  • Projecting the image (of the PPSA) as being a safe haven for the downtrodden.
  • Empowering people to understand their rights.
  • Encouraging organs of state to establish effective internal complaints resolution units.
  • Turning communities into their own liberators.

 

  1. The PPSA has adopted a Strategic Plan 2020-2025 in terms of which it seeks to have the following impact: ‘Empower everyone at all levels of society to effectively engage organs of state about any injustice, service delivery failure or improper conduct and assist organs of state to establish and maintain efficient and effective governance and administration’.

 

Table 21: PPSA – Impact statement, outcomes, outcome indicators and five-year targets

IMPACT STATEMENT:

Empower everyone at all levels of society to effectively engage organs of state about any injustice, service delivery failure or improper conduct and assist organs of state to establish and maintain efficient and effective governance and administration

  1.  
  1.  

FIVE-YEAR TARGET

Accessible PPSA services

Number of outreach methods employed to reach people and communities

4

(Clinics, Roadshows, Radio interviews and Mobile Referral Application)

Number of new service points established

  1.  

Investigations finalised within turnaround times

Percentage of investigations finalised within approved turnaround times

80%

Number of systemic investigations finalised

6

Clean audit achieved and maintained

Number of clean audit outcomes over a 5 year period

  1.  

Implementation of ICT systems to optimally support business objectives

Functional Mobile Referral Application

Implement a functional Mobile Referral Application

Functional Case management Application

Implement a functional Case Management Application

Ongoing engagements with  ombudsman and organs of state

Number of bodies being engaged on Ombudsman related matters

6 (AOMA, and 4 institutions to be identified)

 

  1. Due to the Covid-19 pandemic and measures in place to deal with it, the PPSA had to adjust its targets, especially within the Stakeholder Management Programme. A revised 2020/21 Annual Performance Plan was tabled in the National Assembly in August 2020.

 

  1. Audit outcome. The PPSA achieved a clean audit opinion for the first time in 2019/20.

 

  1. Non-financial performance. The PPSA reports that it achieved 79% of targets for 2019/20 and 70% of targets for the First Quarter 2020/21.

 

  1. Financial performance

 

  1. In2019/20, total revenue for the PPSA was R368 million. Of this, R252.8 million went to Compensation of employees and R108.9 million to Goods and services.

 

  1. In2020/21, the PPSA is allocated R341.8 million, compared to R322.6 million in 2019/20. A total of 77.8% or R266 million is for compensation of employees, while the goods and services budget is R72.6 million or 21.2% of the overall budget.

 

Table 22: Public Protector SA Allocation 2020 MTEF

Programme

(R’MILLION)

2019/20

2020/21

2021/22

2022/23

Administration

(38%)

170.1

135.2

142.6

148.8

Investigations (58%)

183.0

192.4

203.5

213.8

Stakeholder engagement

(4%)

13.9

14.3

14.5

13.0

Total

368.0

341.8

360.6

377.9

 

  1. Notably, the PPSA’s budget was not affected by the Special Adjustment Budget which was required as part of the government’s economic response to the Covid-19 pandemic in July 2020. However, the PPSA reports that it has cuts for 2020/21 of R16.1 million (as part of the AENE process); R72.7 million in 2021/22; R96.8 million in 2022/23; and R23.8 million in 2023/24.

 

  1. For some years, the PPSA has indicated that it requires additional funding for the following priorities:

 

 

Table 23: Public Protector – additional funding needs

Details

(R’million)

2020/21

2021/22

2022/23

Reason

Critical positions

16.5

17.6

18.5

Unfilled vacancies (33) as a result of budget constraints

Subject matters experts

10.0

10.5

15.5

Subject-matter experts needed for complex investigations requiring specialised skills.

Training

4.00

4.2

4.4

Cannot meet the 1% of the payroll budget as per the Skills Development Act.

E-library (Lexis Nexis)

0.3

0.3

0.3

Access to tools of trade required to ensure the quality and efficiency of investigations

Electronic Case Management system

15.0

1.0

1.0

Cases are monitored and managed manually.

PPE

0.9

0.9

-

 

Insurance for servers

0.1

0.1

0.2

Unable to replace uninsured servers if breakdown

Security

6.1

6.4

9.5

No security at 17/18 offices.

Capped leave

1.3

1.6

2.0

No provision for this contingent liability relating to staff seconded form Justice Department

Employee Health and Wellness

0.3

0.3

0.4

-

Total

54.5

43.0

51.9

 

 

 

Part 4:

Committee Observations

 

  1. Committee observations

 

The Committee makes the following observations:

 

  1. Budget reductions

 

  1. The Committee is acutely aware of the extremely constrained fiscal environment. (Notably, when meeting with the Department and each entity and institution, the Committee asked what plans they had to mitigate the impact of the proposed budget reductions. It was concerning that very few appeared to be prepared in this respect.) As the Committee has said many times, the delivery of justice services is labour intensive. Of course, there is scope for improved use of resources. Nonetheless, in carrying out the proposed budget reductions, there should be careful consideration of how, in particular, the reduced salaries’ budget, implying a further reduction of capacity, will affect the overall effectiveness of the judicial system.

 

  1. At the NPA, the Committee notesthat a committed leadership and the allocation of more resources for additional prosecutorial capacity has begun to make a difference. The NPA’s presentation of its performance, its frank engagement with the Committee on the challenges it has and the measures it has already, or plans to, put in place reflects well on the institution and were refreshing. For far too long, insufficient weight has being given to the essential nature of prosecutorial services. The NPA has been crippled by the loss of managers, prosecutors and legal administrative and investigative staff who have left the organisation in droves. This has increased the workload on the remaining officials intolerably. There are high expectations of the NPA to deliver but without the resources to address obstacles, such as the high vacancy rate (particularly in the AFU and SCCU, as well as the SOCA Unit), these expectations are and will remain unreasonable. The Committee, therefore, repeats its opposition to any attempt to cut the NPA’s budget as a reduction will reverse the gains that the recent additional allocation of R1.2 billion for the MTEF has made possible.

 

  1. Legal Aid SA, which is managed with distinction on a relatively modest budget to achieve impressive results year-after-year, can no longer absorb the budget shortfall/cuts through further efficiencies and cost containment measures. The only recourse going forward is to reduce the staff establishment and it is preparing for the possibility of retrenchments. The projected reduction in the number of its legal practitioners is substantial and will significantly impact on service delivery, resulting in an increase in pending matters and case backlogs in criminal courts, a reduction in the number of clients assisted in civil matters and advice matters and the further effect of compromising the quality of legal services. All of this compromises the constitutional obligations to make State-funded legal services available if substantial injustice would otherwise result. The Committee does not believe that it is an efficient or effective use of resources within the criminal justice system to reduce the number of legal aid practitioners, as it is likely to lead to more postponed criminal matters due to the unavailability of legal representation, in so doing increasing the number of awaiting trial detainees in our correctional centres and the length of their stay (for all of which the State pays). The reductions will also affect Legal Aid SA’s ability to render services to the most vulnerable in our society through it civil work programme.

 

The Committee, therefore, does not support the implementation of planned budget reductions in the case of Legal Aid SA.

 

  1. The Committee also does not support the proposed reductions in the case of the SIU, whose performance trajectory is most pleasing. As part of the ACTT and also of the Fusion Centre set up to deal with cases of Covid-19 corruption, the SIU does not work in isolation. The budget reductions will, therefore, not only adversely affect its operations but the impact will be felt by all the related law enforcement agencies engaged with the task of combatting corruption. The SIU is also instrumental to the present efforts to swiftly recover monies lost to the State through the Special Tribunal. These efforts have so far proven to be successful and any budget reductions may, in addition, undermine the SIU’s capability in this regard.

 

  1. The Committee has noted previously that the Chapter 9 institutions are historically underfunded. In some instances, their constitutional and/or statutory mandates are for all intents and purposes unfunded. (The SAHRC, for example, has an unfunded mandate for its responsibilities with regard to the Promotion of Access to Information Act (PAIA), 2000). This has had adverse consequences for their structure and operations and, arguably, restricted their impact.

 

These institutions have relatively modest budgets and, therefore, feel budget cuts/reductions especially severely. In the case of the SAHRC, it already has budget shortfalls and the proposed budget reductions threaten, for example, the Moot Court competition, which is an initiative to raise awareness of human rights aimed at Grade 10 and 11 students at all public schools in the country and has considerable impact. The money required to run the competition is a relatively small amount, yet the SAHRC reports that it will not be able to afford to do so going forward.

 

The Committee notes as well that the PPSA has asked for increased funding for critical posts, professional fees for subject matter specialists and security. This is not the first time the PPSA has asked for funding for these purposes.

 

The Committee repeats its view that the decision to apply the budget cuts to the baseline allocation of a Chapter 9 institutions should carefully consider their unique contribution towards strengthening our constitutional democracy, as well as the duty placed on other state institutions to assist these institutions. The Committee, therefore, does not support the application of baseline reductions in the case of the SAHRC and PPSA.

 

The Committee observes once more that the matter of an appropriate funding model for the Chapter 9 institutions needs to be addressed.

 

  1. Department of Justice and Consitutional Development

 

  1. The Committee is gravely concerned about the Department’s negative audit outcome and dismal performance - both financial and non-financial - in the period under review. The Department received a qualified audit opinion and achieved less than 50% of its planned indicators, while considerably underspending in 2019/20. Despitethe commitment during last year’s BRRR hearings to address the Department’s poor performance and audit outcome, it appears that matters have further deteriorated. In this regard, the Committee notes that leadership instability and high vacancy rates are identified as among the root causes of the challenges that the Department faces presently.

 

The Committee appreciates the Minister’s forthrightness about the state of affairs within the Department and notes the plans that are being put in place to address the situation. The Committee intends to continue to monitor progress very closely. Concerning the audit action plan, the Committee requests that it be briefed on progress as part of the quarterly meetings between it and the Department.

 

The Committee welcomes the Minister’s assurance that rebuilding the administration is part of the Department’s renewal plans. The Committee has long expressed the view that the high vacancy rate in the Department’s senior management – now at 23.4% - is at the heart of the Department’s present troubles and must be addressed as a matter of priority. Furthermore, the Department is without a Director-General and has been so for more than a year. It is evident that, from an administrative perspective, the Department is rudderless. There have been some positive developments. A recommendation has been made for the appointment of a Director-General and the matter is now with the Department of Public Service and Administration before going to Cabinet. In addition, the positions of the Chief Master and the Deputy Director-General: Corporate Services now been filled.

 

  1. Investigation of Department’s non-performance. In addition, the Committee intends to request assistance from the Public Service Commission (PSC) to identify the Department’s non-performance and systemic challenges and to report to Parliament on its findings in this regard. The Public Service Commissionderives its mandate from sections 195 and 196 of the Constitution, as well as thePublic Service Commission Act, 1997. Broadly, the PSC is charged with safeguarding the public interest through the effective monitoring and evaluation of government practices. More specifically, the Public Service Commission is vested with oversight responsibilities for the public service, and monitors, evaluates and investigates public administration practices. It is also charged with promoting the values and principles governing public administration contained in section 195 of the Constitution. As such, the Committee believes that the PSC is the appropriate body to conduct such an investigation.

 

  1. Irregular expenditure expenditure.The Committee is interested in the underlying causes of the irregular expenditure; the steps that the Department plans to take to prevent re-occurrences; the status of investigations into unconfirmed amounts; and the status of disciplinary action taken against the officials responsible, including efforts to reclaim these amounts. As such, the Committee requests that the Department include a report on this item as part of the Committee’s meetings with the Department on quarterly performance.

 

  1. Accountability.The Committee notes the Minister’s concern about the lack of accountability within the Department. The Committee has time after time highlighted the importance of consequence management and therefore, asks that it be given a consolidated report of all outstanding disciplinary matters in order that it may track progress going forward.

 

  1. Expanded court infrastructure for improved access to justice. The building of new courts remains a core element of the Department’s efforts to improve access to justice. Each year, the Department is allocated a substantial budget for this purpose. Typically, around this time, the Department announces ‘savings’ as a result of the Department of Public Works’s inability to deliver and informs the Committee that it intends to request Treasury’s permission to reprioritise the funds elsewhere to meet other (more pressing) priorities. (As these funds are ringfenced they cannot be shifted to the salaries budget for more capacity.) A review of committee reports over the past decade or more, reveals continued frustration about the tardy delivery of the infrastructure programme and the waste that inevitably accompanies this. The Committee understands that, for now, the Department must rely on the Department of Public Works and Infrastructure to deliver its building programme but is extremely unhappy at the lack and/or quality of the results. As a first step, the Committee intends to arrange a dedicated briefing on (i) the scope of Department’s infrastructure programme; (ii) the allocation of resources (past and present; (iii) the nature of the relationship with the Department of Public Works and related responsibilities; and (iii) the extent of the Department’s in-house capacity.

 

  1. Transformation of State Legal Services. The Committee has previously noted the appointment of the Acting Solicitor-General and appreciates his input during the briefings on initiatives to transform State Legal Services. The Committee notes that many of the State Attorney’s Offices do not have a Head and agrees that filling these vacancies is critical. The Committee notes the sharp increase in the amounts owed by client departments for legal fees. The Committee willarrange a dedicated meeting in order to deepen its understanding of the operations of this Office countrywide and the challenges it faces, as well as the plans to transform State Legal Services as a whole, as soon as the programme permits.

 

The Committee has been briefed previously on the progress of the SIU investigation of the Office of the State Attorney and will continue to regularly monitor the progress of the investigation.

 

  1. A transformed legal profession and briefing patterns. The Committee believes that a great deal more needs to be done to support black legal practitioners, especially black women, wishing to make law their career. The Committee notes the Department’s initiatives to ensure that briefing patterns support previously disadvantaged individuals. Nevertheless, the impact of this does not seem to be felt by practitioners who complain that they lack work to sustain viable practices. The Committee is of a view that there is a need to ask why this is so and looks forward to engaging with the Acting Solicitor General on this topic.

 

  1. Court-annexed mediation. The Committee notes the failure to meet the targets related to the court-annexed mediation project for 2019/20.

 

  1. Sexual offences matters. In the period under review, President Ramaphosa announced the introduction of the Gender-based Violence and Femicide (GBVF) Emergency Response Action Plan (ERAP), which was to be funded by a reprioritised budget of R1.6 billion. The Committee notes that the Department reports that it has actively participated in the GBVF Intersectoral Steering Committee, which was tasked to monitor the multisectoral implementation of the GBVF. The Department reports also that, in 2019/20, it installed dual-view CCTV systems in 26 Regional Courts (a lack of budget prevented the Department from meeting this target in 2018/19). In addition, 13 more sexual offences courts were established. Furthermore, now that section 55A of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 was signed into operation, for the first time Sexual Offences Courts will be established in accordance with statute. During the same month of February 2020, the Minister gazetted the Regulations relating to sexual offences courts. The intention is to designate all 102 sexual offences courts established since 2013.

 

The Committee notes that the Department has vetted 12 758 of its officials against the National Register for Sex Offenders to ensure that no registered sex offenders work as officials at service points that have direct access to children and persons with mental disabilities and has also drafted and tabled legislation to tighten the laws relating to GBVF.

 

The Committee notes further that the Department has tabled its 2019/20 Report on the Implementation on the Criminal Law Sexual Offences and Related Matters Act and believes that consideration of its contents will provide an opportunity for focused engagement on this issue. The Committee will arrange a briefing on the Report as soon as its programme permits.

 

  1. Master’s Office. The Committee is increasingly concerned by reports of the chaos that exists at the Master’s Office. While the appointment of the Chief Master is a step in the right direction, the Committee is of the view that much more will need to be done to address the problems and at the soonest possible opportunity will engage with the Master’s Office on improvements to rectify the challenges that are being experienced.

 

The Committee has been briefed previously on the progress of the SIU’s investigations of the Master’s Office but will continue to regularly monitor the progress of the investigation.

 

The Committee also notes the recent cyber-security breach at the Master’s office in Pietermaritzburg, which is now the subject of a criminal investigation. As a result of the breach, the Department had to shut down the system and payments from the Guardian’s Fund were affected at that Office. The Department reported that alternative arrangements were made to ensure that funds are disbursed but the Committee requests the full report on the incident.

 

  1. National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP). The MTSF continues to prioritise social cohesion. The Committee has previously noted the Department’s plan to contribute to building a human rights culture and to giving effect to constitutional values by driving campaigns to increase constitutional awareness and change societal attitudes in the areas of racism, xenophobia and related intolerances. The Committee notes the limited progress surrounding the implementation of the NAP and repeats its intention to engage with the Department on this item.

 

  1. Integrated Criminal Justice Strategy/Integrated Justice System (IJS). This year has highlighted the need for systems in place that will allow for the sharing of information between departments and entities within the JCPS Cluster. The strategy is to incorporate the modernisation of the criminal justice system and will address concerns raised at community level that include the implementation of the bail system and the lack of support for victims of crime.. The ultimate goal of the IJS is to ensure the seamless integration and consolidation of critical information between the entities that form part of the JCPS Cluster. The Committee requests that it be provided with a detailed progress report with timeframes on the Integrated Justice System (IJS) programme. The Committee will also arrange a dedicated briefing on this item as soon as its programme permits.

 

  1. Justice College. The Committee welcomes the plans to rebuild Justice College as part of measures to improve the quality of the services offered to the public by justice officials.

 

 

  1. National Prosecuting Authority

 

  1. Budget reductions. The Committee opposes any reduction of the NPA’s budget and discusses this in parapgraph 14.1 above. Furthermore, the Committee also wishes to highlight that the NPA plays a role in recovering money for the State, as part of efforts to rebuild our economy and society.

 

  1. The NDPP told the Committee that she had found the NPA under-resourced in terms of skills, capacity and funding. This has affected the NPA’s credibility and staff morale was low. The Committee notes that the initiatives reportedly underway to address these challenges extend far beyond the filling vacancies, including ways to promote sound workplace relations. The first step undertaken in turning the NPA around has been to address the challenges at top management and to appoint individuals who are committed and are of the utmost integrity. The next step has been to vist all divisions and cluster so that officals could raise their concerns. An action plan has been developed and progress reports are regularly communicated to staff.

 

  1. Innovation and Policy Support Office.  The Committee notes that the NPA reports that it has established an Innovation and Policy Support Office, which is meant to be a space where innovative ideas are developed to allow the NPA to rebuild its structures and reputation.

 

  1. NPA’s performance. The Committee welcomes the NDPP’s honesty about the NPA’s performance not being at the level it should be. Although the Committee would have liked to have been presented with a better performance report, it accepts that it will need to be patient so that the many interventions that have been put in place in the past year or so can bear fruit. The Committee agrees that the NDPP’s assessment of the AFU’s performance as dismal. The Committee understands that, as many of the AFU’s prosecutors and investigators were moved to the Independent Directorate, the AFU has a high vacancy rate among its prosecutors and even higher vacancies among investigators. The appointment of Adv. Rabaji Rasethaba to head the AFU is the first step in addressing the situation and there is a process underway to develop a turnaround strategy. The Committee notes too that the NPS’ performance, which was on an upward trajectory under the leadership of Adv. de Kock, has been affected by the pandemic.

 

  1. Strengthening the independence of the NPA. At the beginning of the 6th Parliament, the NDPP indicated that it is not satisfactory for the NPA to have the Director-General: Justice and Constitutional Development as its accounting officer. The NDPP updated the Committee of the progress that has been made, informing the Committee that a comprehensive report has been compiled and the next step is to draft a memorandum for the Minister’s attention. The Committee welcomes the NDPP’s undertaking to share the relevant documents once the discussion with the Minister has taken place.

 

  1. Backlogs.The Committee notes the view that case backlogs are a measure of how well or badly the justice system in its entirety is working. There are a number of actors that interact with the system and at the very heart is the Judiciary. It is for this reason, that the Judiciary is responsible for case management as it is the Judiciary that leads court discipline. The NPA reports that it participates fully in the relevant judiciary-led national and provincial co-ordinating structures. However, the absence of a well-functioning electronic case management system is highly problematic. Furthermore, the onset of Covid-19 has seriously disrupted the functioning of our courts, particularly as officials have become sick or are sick and some have even passed away. The Committee notes too the warning that, for some time to come, it is to be expected that there will be red flags concerning the NPS’ perfromance.

 

  1. Gender-based Violence. The Committee agrees with the NPA’s reflection that the improved conviction rate for sexual offences – although welcome –isconsiderably less impressive when measured against the number of reported sexual offences.The Committee believes that a great deal more attention and resources need to be directed towards supporting survivors in taking their cases forward. The Committee welcomes that further Thuthuzela Care Centres (TCCs) are to be established. The Committee is also pleased to hear that NDPP has asked that the findings and recommendations of previous evaluative reports on the functioning of the TCCs be collated for action. The Committee notes too that the TCCs remain largely funded through donor funding as the funding model has not yet been resolved.

 

The Committee is pleased to learn that the NPA has engaged with SAPS, with the assistance of the respective Ministries, to address the backlogs at the forensic laboratories, particularly in respect of sexual offences cases. The NPA has been given a commitment from SAPS that it will prioritise the processing of these cases. The Committee asks that the NPA keep it informed of progress in this regard.

 

Furthermore, the Committee notes that NPA has contributed to 2019/20 Report on the Implementation on the Criminal Law Sexual Offences and Related Matters Act andwill arrange a dedicated briefing on the Report as soon as its programme permits.

 

  1. Corruption-related cases. The Committee welcomes thestrong focus on the identification of 81 priority corruption cases for swift finalisation and the reorganisation of resources to that end. The Committee agrees that recent arrests suggest that the NPA is on the right trajectory.

 

  1. Covid-19 corruption. Regarding theCovid-19investigations into fraud, corruption and non-compliance with the PFMA, the Committee is impressed by the results so far and believes that this shows what can be achieved when law enforcement agencies work together.

 

  1. Asset Forfeiture Unit. The Committee is extremely concerned by the AFU’s performance. In this regard, the Committee notes the explanation that was put forward. The Committee supports the steps that are being taken to address these capacity challenges. The Committee notes also the AFU’s concern that the empowering legislation is lagging behind and requires legislative attention.

 

  1. Independent Directorate. The Committee is pleased that the recent amendment of the Regulations for Commission of Inquiry into State Capture has greatly assisted the Independent Directorate. The Committee notes too that the Commission has a state of the art digital forensic capability that is now available to the Independent Directorate.

 

 

  1. Information Regulator

 

  1. The Committee welcomes the commencement of certain sections of POPIA with effect from 1 July 2020, while noting that the remaining provisions will become operational on 1 July 2021. The Information Regulator reported previously that it would be ready for the full operationalisation of the Act as from 1 July 2021. However, the Committee fears that the current budget constraints, combined with rising incidents of reported data breaches,risk the success of the plans, as the Regulator may not have the requisite capacity to play the role that is envisaged.

 

  1. It should not be forgotten that the Regulator is a relatively new organisation and, as such, is still busy setting itself. With the full operationalisation of the Act, the demand for its services/guidance has the potential to outstrip what can reasonably be expected of the Regulator to deliver without a considerable injection of resources. This mismatch may well undermine the Regulator’s authority/legitimacy going forward.In terms of recruitment, the Regulator has identified a phased-approach to recruitment.. The Committee notes, however, that there is a substantial shortfall in the budget to fund the expansion that is envisaged and this will adversely affect the Regulator’s capability going forward.The Committee, therefore, repeats its view, that it is vital for the Information Regulator to be provided with adeqaute funding so that it is able to provide guidance as South Africa goes about setting up its data protection regime. Furthermore, the Committee believes that a well functioning data protection regime isvital to international trade and, therefore, will contribute to South Africa’s access to economic opportunities and growth.

 

  1. The risks of not having an adequate data protection regime were sharply highlighted with the Experion data breach that resulted in the personal details, including identity numbers and bank details, of millions of South Africans and thousands of South African businesses being ‘dumped’ on the dark web. Cyber-attacks are reportedly on the increase (and even more so since the COVID-19 pandemic as we adapt to living increasingly online), targetting South African individuals and public and private sector organisations in orchestrated attacks that could havedevastating consequences, not to mention financial losses. The risks are serious and, consequently, the Committee emphasises its belief that the necessary resources must be allocated to prevent South Africa from becoming a haven for cybercriminals, in particular.

 

  1. The Committee notes that the Information Regulator submitted a report to Parliament that focuses on the protection of personal information of a data subject processed during the management of the Covid-19 pandemic. The Committee welcomes the report and will engage with the contents as soon as its programme permits.

 

 

  1. Legal Aid South Africa

 

  1. Budget reductions. The Committee does not support budget reductions to Legal Aid SA’s budget, and discusses its reasons for this in paragraph 14.1.Briefly, Legal Aid SA is an exemplary organisation that performs extremely well. (In this regard, the Committee wishes to highlight the positive relationship between the excellance of its governance and Legal Aid SA’s ability to perform its mandate with distinction). A reduction in its budget will affect not only its capability to deliver on its constitutional mandate but will negatively affect the entire criminal justice system, most obviouslycontributing to further backlogs. The reduction of its capacity to perform civil work (already limited by the lack of resources to only 13% of its caseload) will mean that the most vulnerable in our society will largely be unable to access the legal services and assistance they require.

 

  1. Audit outcome. The Committee congratulates Legal Aid SA onits achievement in maintaining a clean audit opinion.

 

  1. Awards. In addition, Legal Aid SA was once more awarded Top Employer accreditation. Without fail,Legal Aid SA impresses with its clear strategic vision and planning, management of resources and considerable achievements.

 

  1. Budget. So far, Legal Aid SA has been able to manage the budget shortfall and baseline reductions(with some help from the Department) through reduced court coverage and a lower recruitment rate. However, if it must implement the proposed budget reductions over the medium term, it will need to retrench satff and this will have a significant impact on the availability of legal aid services in all courts. As it is, the Committee is aware that the high demand for legal aid services poses an enormous challenge to Legal Aid SA’s practitioners, especially as practitioner coverage at many courts is insufficient and there is no longer a relief capacity. The Committee has asked before at what stage the lack of funds for legal representation becomes a constitutional matter. Legal Aid SA’s funding needs are set out elsewhere in this report.

 

  1. Civil work. 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 remains concerned at the extent to which criminal matters are prioritised over civil matters. The Committee appreciates the many efforts that Legal Aid SA has taken to stretch its capacity to undertake civil work to the very limits – now at about 13% of its caseload consists of civil matters. The Committee notes that there is now the risk that Legal Aid SA will no longer be able to maintain its current caseload in respect of civil matters, let alone significantly expand its civil work. The Committee, however, feels very strongly that funding should at least maintain the current level of legal assistance provided in civil matters.

 

  1. Land justice. The Committee welcomes the update from Legal Aid SA on the progress of the negotiations to transfer the legal representation function and, importantly, the related budget currently undertaken by the Land Rights Management Facility in the Department of Agriculture, Land Reform and Rural Development to it.

 

  1. Employment equity targets. The Committee notes that Legal Aid SA conducted an employment equity audit in 2019 identifying the most prominent areas of under-representation that require attention are that of African females at Top and Senior Management levels. Employees with disabilities are also under-represented at 1.75% of the total workforce. The Committee appreciates Legal Aid SA’s efforts to address the under-representation going forward and will monitor progress.

 

 

  1. Special Investigating Unit

 

  1. Budget reductions. As discussed under paragraph 14.1, the Committee is opposed to budget reductions in the case of the SIU. The SIU is a key roleplayer in efforts to (i) bring those responsible for fraud, corruption and non-compliance to book, (ii) recover monies on behalf of the State; and (iii) prevent wrongdoing by instilling a culture of compliance within our society. The SIU also brings money back to the State. Budget reductions will affect its capacity and undermine the State’s anti-corruption agenda.

 

  1. Audit outcome. The Committeenoted the positive relationship between good governance within an institution and its impact.In this regard, it congratulates the SIU for its excellent audit results. The Committee is also pleased that the Audit Committee was able to provide the assurance that, from its perspective, there are no concerns.

 

  1. Personnel.The Committee notes the SIU’s commitment  to address its human resources-related challenges. The Committee has expressed itself previously on the need for the SIU to meet employment equity targets, in particular, regarding the employment of women in the professional qualified category and persons with disabilities. The SIU has also acknowledged that its working environment does not adequately support persons with disabilities. The Committee appreciates the SIU’s commitment to address its challenges in this regard, as reflected in its plans, and will monitor progress closely.

 

  1. Funding model. The Committee understands that legislative amendments to, among others, address the challenges concerning the SIU’s present funding model are at advanced stage. The Committee is aware that, for several years, there have been proposals to amend the SIU’s enabling legislation and, therefore, urges the SIU prioritise finalisation of these amendments.

 

  1. Debt recovery. The Committee notes the ongoing difficulties that the SIU has recovering monies owed to it by state institutions for its services and that this poses a significant risk going forward. This is especially concerning given the the possibility that the SIU, like all organs of State, may have budget reductions in future. The Committee appreciates the SIU’s efforts to address some of the reasons it has identified as contributing to non-payment, which have had some effect. The Committee is also told that National Treasury will send letters to the entities that owe the SIU money. A further proposal is that, where applicable, the Audititor-General record the SIU as a creditor when it audits state institutions. However, as mentioned in the previous paragraph, the need for legislative amendments to address the problem is key.

 

  1. Collaboration and co-operation concerning investigations. The Committee is pleased about how effective the co-operation and collaboration between law enforement agencies particpating in the Fusion Centre has been and that it is clear that already there have been significant benefits. The Committee notes, as well, the SIU’s assurance that the memorandum of understanding (MOU) between it and the NPA is showing results. In this regard, the Committee welcomes the suggestion that the MOU also include the HAWKS so that when the SIU begins an investigation, the HAWKS can be brought in at that early stage.This should expedite the prosecution of cases.

 

  1. Special Tribunal. The Committee notes that the value of matters enrolled at the Special Tribunal  is presentlyaround R5 billion.

 

 

  1. South African Human Rights Commission (SAHRC)

 

  1. Audit outcome. The Committee welcomes the SAHRC’s achievement in receiving an unqualified audit outcome but urges the Commission to address the Auditor General’s recommendation that it finalise investigations of instances of irregular expenditure with the necessary urgency.

 

  1. Budget reductions. The Committee does not support the proposed budget reductions in the case of the SAHRC or the PPSA and discusses its reasons in paragraph 14.1. In the case of the SAHRC, a cut next year will reduce the baseline by R10 million, which the Commission will have difficulty absorbing. The Covid-19 pandemic has laid bare the extreme inquality that characterises our society. The need for the Commission’s intervening presence, given the degree of social conflict that is evident within our society, is more important than ever before.The Committee notes too the Commission’s investigations and hearings have resulted in a deep understanding of the challenges that our society faces, which has the potential for many positive interventions towards upholding human rights. An example, has been in the area of water and sanitation, which is a complex issue that affects municipalities countrywide. The Committee believes more should be done to ensure that the Commission’s reports are taken up and acted upon.

 

  1. Budget shortfall. The Committee notes the Commission’s presentation of its forward funding needs, the details of which are captured elsewhere in this report.

 

  1. Non-responsiveness of state institutions. The Committee notes the SAHRC difficulties in obtaining responses from departments and other state institutions. The Committee is also dismayed that many of the issues raised at the Commission’s public hearings are not new and were addressed in previous reports. However, these recommendations were never implemented. The Committee, therefore, welcomes the Commission’s commitment to monitor and ensure implementation of its recommendations going forward.The Committee willraise the need  to develop a mechanism to assist the SAHRC and other Chapter 9 institutions in the event that government agencies are unresponsive to their requests with the Speaker.

 

  1. Moot Court Competition. The Committee supports the SAHRC initiative concerning the schools’ Moot Court Competition as a flagship intervention in its efforts to promote public awareness of the Constitution and the Bill of Rights. The Committee congratulates the scholars who represented South Africa internationally, doing so well in winning the competition. The Committee is gravely concerned that the competition is now at risk as a result of the proposed budget reductions.

 

 

  1. Public Protector South Africa

 

  1. Audit Outcome. The Committee commends the PPSAfrom achieving a clean audit opinion for the first time ever.

 

  1. Budget reductions. The Committee does not supportbudget reductions in the case of the SAHRC and PPSA and discusses it reasons in paragraph 14.1.

 

  1. Budget shortfall. The Committee notes that the PPSA continues to maintain that the current budget is inadequate. The PPSA’s funding needs are recorded elsewhere in this report. In this regard, the Committee has previously supported increased funding for the PPSA.

 

  1. The Committee notes the PPSA’s intention to encourage state organisations to establish in-house complaints units. The reduction of the number of complaints that the PPSA has to deal with will allow it’s investigators to focus on more complex matters. This should also assist to reduce the number of service delivery protests.

 

  1. Performance.The Committee notes the PPSA’s report that it has improved its performance in 2019/20 to achieve 79% of its targets. This is an improvement on the previous year when 72% of performance targets were achieved.

 

  1. Litigation.The Committee once more requests that the PPSA keep it informed of the number and progress of review applications and the associated litigation costs.

 

 

  1. Recommendations

 

  1. TheCommittee makes the following recommendations–

 

  1. The Committee does not support budget reductions in the case of the NPA, Legal Aid South Africa, and the SIU. The Committee is gravely concerned at the potential of the reductions to undermine the contributions of each of these organisations to the maintenance of the rule of law. The Committee gives detailed reasons to support its recommendations in each instance previously in the report.

 

  1. The Committee supports the additional forward funding needs presented to it by the Information Regulator to allow it to recruit staff as planned.

 

  1. Likewise, the Committee does not support the proposed application of budget reductions in the case of the case of the SAHRCto prevent any further loss of human resource capacity and to enable it to maintain its existing activities. The Committee gives detailed reasons to support its recommendation elsewhere in the report.

 

  1. The Committee supports the additional forward funding needs presented to it by the SAHRC.

 

  1. The Committee does not support the application of budget reductions at the PPSA and provides reasons for this elsewhere in the report.

 

  1. The Committee also recommends that special consideration be given to allocating additonal funds to allow the PPSA to address the absence of security at its offices.

 

  1. The Committee recommends that the Public Service Commission be approached with the request that it evaluate the Department with a view to identifying the reasons for the Department’s non-performance and any systemic challenges, and report to the House on its findings and recommendations before the annual budgetary review and recommendation report processes take place in October 2021.

 

 

  1. Appreciation

 

  1. The Committee thanks the Minister and Deputy Minister, the Director General and all officials who appeared before the Committee for their co-operation.

 

  1. The Committee thanks the National Director of Public Prosecutions and all officials who appeared before the Committee for their co-operation in this process.

 

  1. 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 Board Members of Legal Aid South Africa; the Head of the Special Investigating Unit; and the Chairperson and Members of the Information Regulator, as well as all respective officials that appeared before the Committee for their co-operation.

 

  1. The Committee thanks the representatives of the various audit committees that appeared before the Committee.

 

  1. The Committee wishes to thank the Auditor General South Africa for the support it provided to the Committee.

 

 

Report to be considered

 

 

Documents

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