Inter-Departmental Annual Report 2013/14; Schedule determining rates: Department of Justice

Meeting report

Sexual Offences and Related Matters Act implementation: Presentation of Inter-Departmental Report by Department of Justice and Constitutional Development
Advocate Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups: Department of Justice and Constitutional Development, briefed the Committee about the implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (the Act). In order that this Act achieve its desired goals, the Department of Justice and Constitutional Development (DOJ&CD or the Department)  had co-opted the Departments of Women, Basic Education, Cooperative Governance and Traditional Affairs, and  Legal Aid of South Africa on to an inter-departmental committee, and was continuing with efforts to also co-opt the Department of Higher Education and Training.

Adv Kambula informed the Committee the Act was aimed at addressing gender-based violence and sexual offences. It encouraged and intersectoral response to sexual violence. As a result, One Stop Centres had been introduced to provide coordinated and specialised victim-support services. The Director General's Intersectoral Committee had noted the need to prioritise the appointment of youth and persons with disabilities so as to bridge the gap of unemployment among these categories.

The Act expressly required the Department of Health (DOH), National Prosecutions Authority (NPA) and South African Police Service (SAPS) to develop training courses which would include social context in sexual offences, so as to ensure sensitivity, care and dignity when dealing with victims of sexual violence. However, most of the stakeholders still lacked measures to evaluate the impact of their training.

In June 2012, the former Minister of Justice and Constitutional Development established the Ministerial Advisory Committee on Adjudication of Sexual Offences Matters (MATTSO) to investigate the feasibility of re-establishing Sexual Offences Courts (SOCs). During the period of August 2013 to 31 March 2014, 21 regional courts were upgraded into sexual offences courtrooms in terms of the new Sexual Offences Courts Model. The upgraded courts were selected from the National Resource Audit conducted by MATTSO in 2013. The selection criteria focused on courts in areas with a high rate of sexual offending. Most of the rural courts were found to have major infrastructural limitations to meet the requirements of the Model. As a result, the Department had been engaging the Department of Public Works (DPW) to include rural courts with capital works requirements in its batch system.

Adv Kambula outlined that the SOCs were mainly intended to:
- Reduce secondary traumatisation of victims
- Reduce the turnaround time in the finalisation of cases
- Increase the conviction rate in cases
- Reduce the incidence of sexual violence in the country



The SOCs were required to have the following physical features:
- Separate private waiting rooms for child victims and adult victims with relaxing furniture and information services
- Private toilet facilities for witnesses, to which accused persons had no access
- Information screens in the waiting rooms, to empower victims with witness court preparation and other court services
- Two -Way CCTV to enable the witness to identify the accused from the testifying room where the identity of the accused was in dispute
- Private Testifying Room to allow the victim to testify outside the physical presence of the accused
- A bench monitor to give the presiding officer a close view of the victim from the testifying room so as to assess her demeanour and quickly respond to possible signs of trauma and tiredness
- 2 x large screen monitors that could be titled and zoomed at 360 degrees to give a clear view of the courtroom and Private Testifying Room
- Standard Colours: Blue, orange and cream

She noted it was still early to determine the impact of the newly re-established SOCs as not all of these courts had as yet operated. The Department had started with the establishment of the statistical tool for the SOCs to assist in conducting the comparative analysis of court performance, and a National Strategic Plan for the Intersectoral Establishment and Management of the SOCs. This document outlined the different roles of stakeholders in the SOCs and identified the monitoring mechanisms. The Victim Service Satisfaction Survey would be conducted in 2015/16, in order to assess the effectiveness of the support services.

An analysis of national statistics indicated there had been a 0,64% increase in the number of new cases registered in the SOCs. This was viewed in a positive light, as it may indicate an improved reporting rate in these cases. Out of the 7 391 cases finalised, 4 401 cases resulted in a guilty verdict. This meant that 59,6% of the finalised sexual cases secured convictions. A decline of 8,73% on ‘not guilty’ verdicts had been recorded. This may be attributed to the positive impact of specialised training offered by NPA. A drop of 21,57% in finalised cases indicated that more cases were finalised with verdicts on sexual offences.

152 cases were removed from the roll, which explained the 4,16% decline in outstanding cases. A drop of 9,98% has been registered in cases struck off the roll.  A decline of 16,58% in warrants of arrests was noted positively, as it meant that more accused remained in the court system. A drop of 16,60% in withdrawn charges was recorded, and this was also viewed in a positive light as it may indicate that the case pre-screening process was improving.

The One Stop Centres were gradually showing strides in making significant intervention against sexual offences. They were located in rural, semi-rural and urban areas. The Thuthuzela Care Centres had been established at hospitals by the NPA, to ensure that crime reporting was done where medical services were available, so as to quickly capture the DNA evidence before it could be contaminated. These centres provided specialised services from police, prosecution, medical practitioners, counsellors, case managers and others.

The Khuseleka One Stop Centres were established by the Department of Social Development (DSD) to provide victims with counseling services, trauma debriefing services and other interventions. The Victim-Friendly Rooms established by SAPS at police stations provided private and victim-friendly environments for interviews, counselling services and statement-taking.

Public Awareness Programmes
Adv Kambula indicated that to date, the DOJ&CD had staged 643 events. It was estimated that 64 475 people were reached by the campaign or messages. The Ndabezitha Programme in rural communities, which was started in 2006 by the Department, together with the NPA and the National House of Traditional Leaders, sought to address cultural practices that may subject women and girls to domestic violence. It was now gradually taking a holistic approach to gender-based violence and sexual abuse. It focused on the training of traditional leaders to manage cases of gender-based violence in their communities in accordance to the applicable laws and it also encouraged them to refer serious cases to the courts. Rural men, women, girls and boys were being sensitised about practices leading to gender-based violence. These Ndabezitha izimbizos were held annually.

National Register for Sex Offenders (NRSO)
The Register for Sex Offenders was established within the DOJ&CD, and it contained the records of sex offenders convicted of sexual offences against children and persons with mental disability. Its primary objective was to restrict registered offenders from working in environments that would expose them to children and persons with mental disability.

The implementation of the NRSO had met several challenges. Only in 2013/14 did the Department experienced a breakthrough from the series of interventions against systematic blockages. The registrations increased by 11 926 and this figure included 8 376 historic convictions. In 2013/14 the Department initiated the Manual Data Verification Project to purify the outstanding 11 742 historic convictions, for registration process. These were the cases where the age or the mental status of the victim had to be verified manually from the case records.

Proposed merger of the NRSO and National Child Protection Register (NCPR)
Adv Kambula then outlined the proposals for the merger of the NSRO and the National Child Protection Register (NCPR), held by the Department of Social Development. In 2012 Parliament commissioned the DOJ&CD to investigate the feasibility of merging NRSO with the NCPR. In 2013 the Department established a Task Team to look into the merger of the registers, with the Department of Social Development. The investigation was fnalised in December 2014 and the Task Team submitted its report to the Ministers of Justice, Correctional Services, and Social Development for consideration and decision. The report was still being considered and would be submitted to Parliament upon approval by the Ministers.

Legal and Policy Developments
The Department published the National Policy Framework on the Management of Sexual Offences by a notice in Gazette No 36804, dated 6 September 2013. This Policy guided all stakeholders on the implementation of the Act.

She noted that the Judicial Matters Second Amendment Act, 2013 (Act No 43 of 2013) was signed into law in January 2014. It amended the Act by inserting a new section 55A . giving the Minister authority to designate a court as a sexual offences court. It also allowed the designation of any Division of the High Court as a sexual offences court.

On 3 February 2015 the Department briefed the Portfolio Committee on Justice and Correctional Services on the amendments to Sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

Physical and language accessibility to victims with disabilities
Adv Kambula noted that, out of 684 magistrate courts, 366 court buildings had facilities which accommodated the physical accessibility needs of people with disabilities. The Department was also in the process of establishing the Disability Desk to provide specialised services in the implementation of the UN Convention on the Rights of Persons with Disabilities.

In 2010 the Department initiated a sign language skills programme for interpreters. So far, 45 interpreters had gone through the 12 month Basic Sign Language Course. To ensure the availability of these services upon demand, each court kept a database of professional sign language interpreters, in addition to the ones trained by the Department.


Adv Kambula tabled a number of graphs and tables, showing the figures on human resources; statistics of sexual offences; courts with high volume of sexual offences cases; and high profile cases received (see attached presentation for full details).

Limitations
Adv Kambula then indicated that the limitations that had been cited were mainly to do with the lack of interface between the data capturing systems of the different implementing stakeholders. This was leading to imbalanced reporting on statistics. There was currently no baseline to measure the average case cycle in sexual offences. Without the baseline, it became difficult to determine whether or not there was a delay in the finalisation of the sexual offences cases.

There was also a lack of space in many court buildings to accommodate the specifications of the Sexual Offences Courts Model.

Specialisation had been identified as key when dealing with cases of sexual offences and should be introduced at all service points for the victim.

Adv Kambula concluded that there had been a progressive realisation of the Act, despite the admitted challenges. The Annual Sexual Offences Indaba hosted by the NPA continued to strengthen relations and augment collaborations with civil society. The return of the Sexual Offences Courts was expected to radically improve responses to sexual violence. The participation of the NGOs in the National Sexual Offences Courts Committee would strengthen the intersectoral approach and promote collective support against sexual violence.

Discussion
Mr G Michalakis (DA, Free State) asked why the reports from the Departments of Health and Basic Education were submitted late to the Department. Secondly, he wanted to know if lack of evidence was the main reason behind the failure of the NPA to prosecute cases. Thirdly, he enquired about the progress the Department had made regarding the recommendations of MATTSO.

An official from the Department of Basic Education indicated that late submission of documents was linked to the timelines for submission. The Department of Health had submitted its documents, but they were found to be unsigned.

Advocate Kambula answered that the NPA's failure to prosecute was indicated in respect of all cases, not only those involving children. SAPS had different specialised units, and the NPA did not. The NPA had certain priority areas that it must attend to, which included commercialised crime. The NPA was currently moving into a specialisation framework, to improve matters, and this should reduce the rate of cases being withdrawn.

Advocate Kambula then commented that in relation to the MATTSO recommendations, the Department had established Sexual Offences Courts, in order to implement the sexual offences model. Permanent intermediaries were already in the employ of these courts. Furthermore, a programme for trauma debriefing had been developed with the NPA and it was going to be rolled out to the DOJ&CD and other co-opted departments. Also, the DOJ&CD was in the process of developing an Act around the Sexual Offences Courts. In relation to capacity building, programmes had been reviewed so that they now complied with the MATTSO report. Lastly, the Department of Public Works had been approached to look at improving courts in rural areas so that they were able to deal with the sexual offences cases.



Mr J Mohapi (ANC, Free State) wanted to know what the retention strategy of the Department was and asked how effective the training was that the Department was providing to the intermediaries.

Advocate Kambula said it was difficult to retain component staff, but that many people serving in the Gender and Children's sectors were passionate about their work, and this was what was allowing them to be retained. The NPA had introduced specialisation for prosecutors who were showing an interest in sexual offences cases. It was believed that would help in retaining personnel. In answering questions on the impact of training on output, she said that the ISC of the Directors General had noticed that there was no common tool to measure how effective the training had been and so it was currently addressing the matter.

Ms T Mokwele (EFF, North West) enquired if there were mechanisms in place to enhance the proactive approach of the Department. Also, she wanted to find out how the specialised human resources were distributed to the provinces, and why numbers on specialised personnel service were dropping.

Advocate Kambula replied that the country was lacking in that respect. Good intervention programmes were to be crafted to enhance prevention but at this stage the DOJ&CD was waiting for a report on child and women abuse, which would make a determination on the crafting of these prevention programmes. In regard to specialised human resources, she noted that intermediaries were trained and placed according to the needs of the provinces. They had also been trained so that they were able to get promotion, and for the first time, permanent intermediaries had been employed, in a move away from the previous ad hoc system. The intermediaries were placed in all provinces but the numbers were not sufficient. More budget had to be allocated to increase the numbers. She further noted that specialisation was the main issue. There were very few candidates who were trained on sexual offences, and that was why the numbers were so low.

Ms G Manolope (ANC, Northern Cape) asked if resources were a factor in the decision of the Department to merge other One-Stop Centres; and enquired if the Department had plans to increase the Thuthuzela Centres.

Advocate Kambula said the main issue was to avoid duplication of duties and the question was really around consolidating resources. She indicated there were no plans to stop the roll-out of the Thuthuzela Centres. There were already 51 centres and no budget had been allocated to them. The centres relied on donor funding. There had also been no legislation enacted around them. The model of the Thuthuzela Centres was court-driven, in order to support victims.

Mr Mohapi wanted to know what happened in respect of incidents that police were alleged to have perpetrated against those held in police cells.

Brigadier Bafana Linda, Section Head and CS Operations: SAPS, informed the Committee this was perhaps the most difficult area of policing, and that such incidents "happen in dark alleys where there are no witnesses". The victim, after reporting the case, would be taken to a medical practitioner, but in court there was essentially the word of the victim against the word of the police official. This was traumatic for victims, and if happened that often the samples would be "lost" in the process, or perpetrators threatened the victims. It took time for the victim to open up and summon the courage to open a case.

Mr J Julius (DA, Gauteng) asked why there were still sexual offences not reported.

Advocate Vuyokazi Ketelo, Senior State Advocate, National Prosecuting Authority, told the Committee there were services that were offered within the Department, and most victims tended to opt to access those services but not to open a case. However, where children were involved the NPA was insistent that cases must be opened and pursued, not withdrawn.

Mr S Thobejane (ANC, Limpopo) commented that it appeared as if the focus of the Department was not on lessons learned from locally initiated programmes, like Ndabezitha, but on foreign models. He said some rural African communities had still not got any access to these facilities, yet they were living in peace, so it was important that lessons should be taken from those communities. He further noted there appeared to be a concern that criminals seemed to be more sophisticated than investigating officers. He also voiced a concern that public awareness programmes were inadequately intensified in order to educate the public, yet the Committee and departments must not lose sight of the fact that it was with public involvement that the situation would be able to improve.

Advocate Kambula responded that in fact sexual offences were perpetrated in both rural and urban areas. However, she agreed that it would be important for the Department to undertake research on indigenous structures or programmes from which it could learn lessons. She further informed Members that the need to emulate interventions from other countries came out of agreements signed with other countries. Sexual offences took place across the globe and it therefore made sense to learn also from other countries how they were dealing with the common issues. She was pleased to note that South Africa had two intervention programmes which other countries were now copying – the Thuthuzela Centres and Children Centres in courts.

Adv Kambula acknowledged that public education figures were not as high as the Department would like them to be. The concern of the Committee and its comment that it would like an intensification of the public awareness programmes would be taken back to the Department. It was hoped that this would persuade the Department to pump more money into the programme.

Brigadier Linda replied to some of the points raised by Mr Thobejane, indicating that investigative officers went through serious training which took a long time and it continued after the completion of the police officer training course. This particular training prepared them for the work they were doing. He too confirmed that it was passion that drove them, and nobody was actually deployed into investigation.

Advocate Kambula, in her conclusion, told the Committee that the Department of Correctional Services was introducing a programme of Restorative Justice, which aimed to keep offenders out of jail, but instead required them to do community service. However, this had not yet materialised. Input was being solicited from the traditional leaders and Department of Justice so that the National Policy Framework on Restorative Justice could be implemented. It was hoped that this would help partners in dispute, for the abused partner would be able to suggest whether it was appropriate for the abuser to be jailed or do community service. She further said the report the DOJ&CD received from the Department of Correctional Services highlighted that there were also rapes or sexual offences happening within the Correctional Services, and there were services that were offered to the victims. The concerns of the Committee would be thus also be shared with the Department of Correctional Services.

Determination of remuneration of judges and magistrates for 2014/15: DOJ&CD briefing
Advocate JB Skosana, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, presented the recommendations for the determination of the remuneration of magistrates and judges for the 2014/15 financial year. He noted that the President determined the salaries, allowances and benefits of magistrates and judges by notice in the Government Gazette, after taking into consideration the recommendations of the Independent Commission on Remuneration of Public Office Bearers (IRC). Parliament must then approve or reject the determination the President had made.

He indicated that the determination of the remuneration of judicial officers was a lengthy process, due to the legislative requirements. After approval, the Department must implement the determination on the system, but this took some time, because of the manual calculations that had to be done to consider the circumstances peculiar to each judicial officer. It was necessary that a timetable be worked out between all those involved to improve time efficiency.

He recommended that the Committee approved the Presidential determination, in line with the Notice that the President had addressed to Parliament. This set out a 6% increase in respect of judicial officers earning less that R1 million, and a 5% increase in respect of judicial officers earning more than R1 million.

(Graphs and tables illustrating the grades, pay levels, positions and total remuneration were shown)

The Chairperson recommended that the NCOP should approve both the Draft Notices and Schedules submitted determining the rate at which salaries are payable to Constitutional Court judges and judges and magistrates annually, with effect from 1 April 2014.

Discussion
Ms Manolope enquired how long the Department would take to finish the comprehensive review, and she suggested the Committee should approve the recommendations.

Advocate Skosana acknowledged the challenges regarding the timeframes. There would be engagements to speed up matters, but he warned the Committee the process was long because there were many stakeholders involved. Once they had been able to get together, they would present a realistic timeframe to the Committee.

Ms T Wana (ANC, Eastern Cape) wanted to know if there would be back-payments and asked for clarity on the issue of the medical aid.

Advocate Skosana said back payments would start from 2014. The comprehensive review would make a determination on the issues of pension fund and medical aid.

Mr Mohapi suggested that Parliament should expedite all the legislative issues surrounding this matter and suggested that the Committee adopt this as a recommendation.

The Chairperson noted the approval of Members that this Committee  recommend to the NCOP that the recommendations as outlined in the Government Gazette be approved.

The meeting was adjourned.