BUSINESS UNIT: COURT SERVICES

EXTRACT FROM THE DEPT’S MEDIUM TERM STRATEGIC FRAMEWORK (MTSF): 2002 -2005: Court Services

Vision
To be the best model on the continent and internationally that is capable of providing responsive, modern and cost-effective court services whereby justice may be dispensed fairly and efficiently and confidence in the rule of law is promoted.

Mission
To contribute to the delivery of justice through support to the judiciary, prosecution and administration in ensuring justice for the people of South Africa; and ensuring that value is added in return for the funds allocated for the administration of justice by assuring proper utilisation of resources and efficiency

RESTRUCTURING OF COURT SERVICES

DECENTRALISED COURT SUPPORT SERVICES
The Business Unit: Court Services has embarked on an initiative to introduce a decentralised court support services co-ordinated by court managers. The Board of the Department of Justice and Constitutional Development endorsed the proposal for an investigation into a shared service operating model for Court Services. To effect this decision, the Business Unit, Court Services, appointed a consortium comprising the firms Pricewaterhouse Coopers and Manto Management to perform an organisation development study on the feasibility and benefits of implementing decentralised court support services within the Department of Justice.
The study was necessitated by a myriad of factors that included:
Unmanageable case backlogs and delays
Perceived poor strategic focus on core functions;
Fragmented approach within the criminal justice system
Business process deficiencies;
Poor institutional development; and
Integrated service delivery as part of the "seamless government" concept – this includes service integration based on value chains and process integration; for example from crime prevention and detection to criminal prosecutions, adjudication and correctional services and social welfare;
Transformation of the justice system – given the legacy of the past there is an urgent need to transform the judiciary as well as the general administration of structures and processes of justice;
Service delivery in terms of the Batho Pele principles – this implies that courts deliver justice to our communities in an efficient, effective, and transparent manner; and
Professionalising the administration of justice – as part of the process of enhancing service delivery and building administrative capacity.
It was within this context that the Department of Justice and Constitutional Development commissioned a study to look into better ways of managing the courts. PricewaterhouseCoopers and Manto Management conducted the study, which resulted in a high level operating Decentralised Court Support Services Model.
DECENTRALISED MODEL
The recommended model represents a local decentralised court support services option for delivering support services. The model is based on locating the delivery and processing of support services at the closest point to customers, i.e. court level, whilst still retaining the ability to exploit economies of scale by using a clustering arrangement for courts. It is a feature of this model that support services are not delivered from a regional level. The need for decentralisation has resulted from the inefficiencies at both the national and regional levels. The protracted and time-consuming bureaucratic processes contribute towards the bottlenecks and the tendency to pass the buck. The court manager and the decentralized court support services is intended to make the courts responsive to the needs of related departments and ensure that accountability is clearly specified. This entails the phasing out of regional offices and phasing in of hub courts.
INTEGRATED JUSTICE SYSTEM
The main challenge in delivering an efficient, effective and accessible justice service has to do with fragmented approaches. The bottlenecks encountered in the justice sector have to do with a mode of operation where matters are dealt with in ‘silos’. The introduction of the court managers and decentralized court support services is intended to coordinate the efforts from the police, prosecution, judiciary and correctional services in a goal directed manner. The intended functions of the court managers would include the coordination of the transportation of prisoners to court, the management of the services of the court orderlies and the management of the court calendar. The court manager is expected to account to the head of the court in terms of the management of the court resources.

INTRODUCTION OF COURT MANAGERS
The introduction of professional court managers creates a focal point for coordination of the court processes. It assists in focusing the business processes on the key strategic issue of processing cases expeditiously.

INTEGRATED CASE FLOW SUPPORT
The integration of the criminal justice is proceeding well at a strategic level but it has not yet permeated the operational level. Fragmentation is clearly seen in the management of cases. There are conflicting and uncoordinated systems to manage the flow of cases. The introduction of the new system will lead to a focused and integrated approach to the management of cases. This will help to clarify the roles and responsibilities of the different role players.
The clerk of the court and registrars will focus more on how to support the case processes. The preliminary work before the case is placed on the roll will receive prominence. The Integrated Court Centres will be strengthened by the use of the clerk of the court in conducting preliminary work before matters are put on the roll.

Benefits of the court manager and decentralized court support services:

The decentralized court support services have a wide range of benefits, depending on factors such as the scope of services included: Amongst the significant benefits are:
Efficient use of judicial and prosecutorial time
Better coordination of the criminal justice at the local and management level
Focus on the core businesses of investigation; prosecution; adjudication and incarceration.
Clarification of the accountability and reporting lines
Efficient use of the resources
Integration of common processes such as finance and procurement; human resources; technology and court support processes.
The ability to share resources
Improved access of data and information-hence greater transparency
Improved customer service.
Improved management of courts.

DECENTRALISED COURT SUPPORT SERVICES (HUB COURTS)
The recommended model represents a local decentralised court support services option for delivering support services. The model is based on locating the delivery and processing of support services at the closest point to customers, i.e. court level, whilst still retaining the ability to exploit economies of scale by using a clustering arrangement for courts. It is a feature of this model that support services are not delivered from a regional level.
Advantages
The model locates service delivery close to the end customers of support services, which should result in better administrative support skills at court level. Support staff would also gain greater insight into the exact nature of support services required by courts.
There is a strategic fit with existing working arrangements and current initiatives such as the clustering of lower courts and the recently implemented Court Manager pilot project.
Service delivery would be standardised, although variation would still be possible for different ‘clients’, e.g. high and lower courts.
Staff re-location could be minimised, depending on the location of Hub Court sites.
It will strengthen the current initiatives on Integrated Justice Court Centres, which to date has accounted for an improved co-ordination of the criminal justice agencies and productivity at court level.
Disadvantages
There could be significant infrastuctural requirements at court-level where support services will be located (particularly at Hub Court level). The available physical office space at court level will need to be assessed and compared with the facilities required.
Significant change management is likely to be required, especially at the regional level, which will be impacted most.
Conclusion
A decentralized court support services centre, option based on a clustered arrangement around Hub Courts appears to be the most appropriate model for the Department of Justice. The benefits of this option have the best fit with the Department’s objectives for supporting courts and can be integrated with existing initiatives within the Department. It is, therefore, recommended that a localised, clustered operating model be adopted for delivering support services to courts.

Adopting the recommended clustering option for delivering support services to courts will result in specific benefits, but will also require a significant change effort. Detailed recommendations and their potential benefits are documented for each functional area elsewhere in the report. At a strategic level, however, the adoption of this operating model would change the following key elements:
Process location and content
Processes will be initiated, processed and completed in different parts of the organisation than is currently the case. To improve the efficiency of processes, process content and levels of automation will also change as a result of re-engineering efforts. This may in turn require changes in job content with a need for staff training in changed processes.
Reporting lines
The separation of judicial and administrative responsibilities, re-allocation of responsibilities for processes and minimising of organisational layers will change existing reporting lines. The recently implemented Court Manager positions as well as members of the judiciary and regional management and staff will be specifically impacted.
Physical location
The movement of processes and the associated infrastructure and people will result in infrastructural requirements at court (particularly Hub Court) level. Selection of Hub courts will need to take these infrastructures implications into account.
Delegations
Clear delegations, underpinned by appropriate skills development and support will be essential for ensuring that new working arrangements are implemented and performed adequately. Based on the overall fit with the Department’s strategic objectives, the nature of its activities and current operating model, the localised, multifunctional, cluster-based operating model is recommended as the most suitable decentralised court support services option.
A clearer split between judicial and administrative staff will result, with the judiciary being able to increase the level of effort spent on judicial functions. Administrative components will focus exclusively on providing efficient support services to clients of support processes, with a decreased level of effort required for transactional processes. It is important to note that one of the implications of this initiative will be on the people and processes that are currently residing at Regional Offices. To minimise the impact of this process, the migration process will be conducted through phases. This phase migration simply means that the process will be divided either by processes or geographically. These ensure minimal interruption of day-to-day service delivery within Department of Justice.
CHANGE IMPLEMENTATION PLAN
Before actual implementation of a decentralized court support services environment can take place, it is necessary to design the detailed features of each element of the operating model. For this reason the implementation, regardless of the implementation approach, has to be preceded by a detailed design stage. The proposed implementation plan is based on the PriceWaterhouse Coopers Shared Services Methodology, which comprises, inter alia, the following stages:
Agenda - Detailed design of all decentralised court support services components.
Transition - Implementation and operationalisation of changes. This stage entails the migration of people and processes from the national and regional offices into the hub courts.
Mastery - Stabilising the organisation after the change and establishing continuous improvement tools.
DELIVARABLES
The main outputs of the project are:
Detailed role design for the court managers
Enhance the appointment of court managers at strategic areas.
Establishment of the hub courts (decentralised court support services). This involves the migration of people and processes from the national and regional offices to the courts.
Stabilisation through continuous improvement of the business processes.

INTEGRATED CASEFLOW MANAGEMENT SYSTEM PROJECT

In order to co-ordinate various aspects relating to caseflow management, Court Services has embarked on a (USAID) donor funded project relating to a Caseflow Management System.

BACKGROUND
One of the main challenges facing the Department is the lack of confidence in the court system by the public. Unacceptable delays in dispensing justice, accumulating case backlogs, increases in awaiting trial prisoners due to uncontrolled postponements with a tendency to pass the bug and lack of accountability characterize the system in courts. At the centre of the above, lies the manner in which cases are managed in the system. Therefore, an integrated approach to address these issues is inevitable.

PROJECT OBJECTIVE(S)
To develop a home grown integrated caseflow management system for our courts. In that respect, an international expert, Mr George Gish, from the USA was invited to our courts to assess our caseflow management system with a view to advise on the strategy to improve the system for future implementation with clear key focus areas and performance standards for all role-players in the system.

A full account of the interrogation of the current system will be contained in the report and notebook to be developed and submitted by the expert to the Managing Director.

PROJECT OUTPUTS
The project is expected to produce a notebook, seminar and caseflow management plans for the various courts to address the problems outlined above to improve the efficiency of the system and release resource wastage in the system.

PROJECT COSTS
The resource needs for each stage will be sourced from the United States Agency for International development.

THE RE-DEMARCATION OF MAGISTERIAL DISTRICT BOUNDARIES

As part of the transformation process in government, the Department began examining its functional or service delivery boundaries in 1994. This process was placed on hold while the Municipal Demarcation Board completed its task of re-drawing municipal boundaries. With the gazetting of the new municipal areas, the Department was able to re-institute the process of the re-demarcation of magisterial boundaries.

This process involved the constitution of representative Regional Steering Committees, whose task it was to consult with all stakeholders and examine the boundaries of every magisterial district in each province, with a view to, wherever possible, aligning the boundaries to those of the new municipal areas. The principles according to which this process was undertaken are the following:

Access to courts;
The numbers of people being serviced in an area (i.e. population density);
The prevalence of crime and civil litigation in the area;
Existing infrastructure (courts) in an area; and
The need to provide cost-effective services.

Representation on Regional Steering Committees included the SAPS, the prosecution, the Department of Correctional Services, the Municipal Demarcation Board, and the office of the Surveyor-General. In many instances, workshops were held during which members of the public, community leaders, NGOs and other stakeholders were invited to give input regarding the community’s needs in terms of access to court services, and problems being experienced in this regard as a result of current demarcation. In a number of cases, particularly where agreements could not be reached between two Regional Steering Committees on areas that cut across provincial boundaries, the political office bearers (ward councilors) were approached with the request that they canvass the views of their constituents regarding what arrangements would best suit the residents of "disputed" areas.

The findings and recommendations of the Regional Steering Committees were compiled in reports, which were submitted to a National Steering Committee for consideration. This Committee has representatives of all relevant government departments and organizations such as the Municipal Demarcation Board and the sheriff’s profession. To date, eight reports have been received and considered by the National Steering Committee namely, North West, Gauteng, Northern Province, Mpumalanga, Western Cape, KwaZulu-Natal, Eastern Cape and Northern Cape. Agreement has been reached on the majority of the proposed new magisterial districts.

Once all reports have been accepted by the National Steering Committee, they will be submitted to the Municipal Demarcation Board for their consideration and comment, and then to the Minister for Justice and Constitutional Development for his approval of the proposed new magisterial districts. Following approval by the Minister, the necessary legal work required to have the new magisterial district boundaries published in the government gazette will be undertaken.

It should be noted that in some cases, Regional Steering Committees have proposed the creation of new magisterial districts in which no infrastructure exists for the establishment of the seat of magistracy (i.e. the necessary court building is not in place). Although the National Steering Committee has approved most of these recommendations, a phased approach will be adopted in the sense that the status quo in respect of magisterial district boundaries will be maintained until the necessary infrastructure is in place to gazette and declare new magisterial districts as contained in the recommendations. The re-demarcation project is therefore a medium to long-term initiative that will follow a phased approach as and when funds become available to establish new courts for new districts, including the human resource requirements needed to manage such courts.
INTERIM RATIONALISATION OF JURISDICTION OF THE HIGH COURT ACT, 2001

The Interim Rationalisation of Jurisdiction of the High Court Act, 2001, has been passed to, among others, enable the Minister after consultation with the Judicial Service Commission to alter the area of jurisdiction of any High Court. The aim of the Act is to promote as a matter of urgency, the efficiency of and equity relating to the administration of Justice throughout the whole of the Republic. To implement this Act, the Director-General: Justice and Constitutional Development, requested Judge Presidents of various divisions of the High Courts to head teams to look into the matter. Provincial teams established comprised Judge Presidents, Directors of Public Prosecutions and Regional Heads.

GUIDING PRINCIPLES
Recommendations made by task teams were guided by inter alia the following principles:
Access to Justice:
The courts should be made easily accessible to communities they serve and be located nearer to where such communities live.
Utilization of resources:
There should be optimum use of available resources and equitable distribution of work to all Courts so as to make them sustainable.
Constitutional imperatives:
The alteration of areas of jurisdiction should be consistent with the greater objective of establishing a judicial system suited to the requirements of the Constitution as envisaged in item 16(6) of the Schedule 6 of the Constitution of the Republic of South Africa (Act 108 of 1996).
Availability of resources:
Numerical strength of the Bench, availability of accommodation and other facilities are factors to be considered before any jurisdiction could be altered.
Suitability of areas of jurisdiction:
Experience has proved that areas with more industries and highly economically active have a high number of litigations and whenever Courts are established areas regarded as economic hub should not be overlooked.
Financial implications:
Taking into consideration that the Act provides for an interim arrangement, unnecessary additional costs should be avoided at all cost. Subsistence and traveling costs incurred as a result of Circuit Courts should be minimised.
Disparities by the old demarcation system:
The retention of the old areas of jurisdiction is perpetuating the inequalities and disparities of the past undemocratic Government. It is therefore important to ensure that jurisdictions that are incompatible with the current democratic order are revisited.

PROPOSALS FOR ALTERATION OF JURISDICTIONS
Free State:
Current position:
Thaba'Nchu Magisterial district though in the Free State Province is still under Mmabatho High Court situated in the North West Province.
Recommendations:
The task team unanimously agreed that Thaba'Nchu district be excised from Mmabatho High Court and be incorporated into the jurisdiction of the Free State Provincial Division. This move will not only serve the interest of the administration of justice but will also benefit the entire Community of Thaba'Nchu.
Western Cape:
Current position:
The Cape of Good Hope Provincial Division has jurisdiction in the following districts outside its Provincial boundaries:
Willowmore District - Eastern Cape Province
Springbok District - Northern Cape Province
Williston District - Northern Cape Province
Sutherland - Northern Cape Province
Calvinia - Northern Cape Province
Frazerburg - Northern Cape Province

Recommendations:
The task team resolved that the Magisterial district of Willowmore be excised from the jurisdiction of the Cape of Good Hope Provincial Division and be incorporated to the Eastern Cape Division’s areas of Jurisdiction. The task team found that service delivery in respect of Springbok, Williston, Sutherland, Calvinia and Frazerburg, would be more efficient from Cape Town than from Kimberly. It is recommended that the status quo of the above-mentioned districts be retained.

Northern Cape:
Current position:
The Northern Cape Division has jurisdiction in all districts within the provincial boundaries except Springbok, Williston, Sutherland, Calvinia and Frazerburg, which are currently being served by the Cape of Good Hope Division. Northern Cape Division also serves Vryburg, which is in the North West Province.
Recommendations:
The task team recommended that all districts within the Provincial boundaries of Northern Cape be served by the Northern Cape Division. They are opposed to the recommendation of the Western Cape. They recommended that the following areas be excised from the Cape of Good Hope Division and be incorporated to the Northern Cape Division:
Springbok, Williston, Sutherland, Calvinia and Frazerburg.
The district of Vryburg should be excised from Northern Cape Division and be incorporated to the Bophuthatswana High Court.

TPD in the North West Province:
Current position:
The following districts in the North West Province that are currently served by the TPD:
Brits
Klerksdorp
Christiana
Lichtenburg
Koster
Delareyville
Bloemhof
Potchefstroom
Rustenburg
Schweizer Reneke
Ventersdorp
Swartruggens
Wolmaranstad
Marico (Zeerust)
Coligny

Recommendations:
The task team unanimously agreed with the proposal by Judge President Friedman of the Bophuthatswana High Court that although all districts mentioned in paragraph 4.3.1 fall in the North West Province, in the mean time, the representatives of North West are reserving their rights to claim the whole of the North West Province under the jurisdiction of its High Court until final rationalisation of High Courts. As an interim measure, the following districts should be excised from the jurisdiction of TPD and be incorporated into the jurisdiction of Bophuthatswana High Court:

Vryburg (currently under Northern Cape Division)
Lichtenburg
Coligny
Zeerust
Groot Marico
Swartruggens
Koster
Rustenburg
Brits
Delareyville

Concerns from office of the Director of Public Prosecution-TPD
In view of the envisaged passing of the final rationalisation of the High Courts Act before the end of 2002, a proposal to transfer districts mentioned above into the jurisdiction of the Bophuthatswana High Court cannot be supported as the move would have far-reaching consequences in as far as administration and personnel are concerned. The Office of the DPP- Pretoria, recommended that the status quo be maintained until the final rationalisation Act is implemented.

Other Concerns
The Judge President of the TPD raised concerns on the inconvenience currently suffered by people from e.g. Ga-Rankuwa, Mabopane, Moretele, etc, in that they must go to Bophuthatswana High Court in Mafikeng when Pretoria is so near. This issue will be re-visited when the final rationalisation is done.

TPD in the Limpopo Province:
Current position:
The current position is that TPD has jurisdiction over all districts in the Limpopo Province except those that fall in the former Republic of Venda. The second High Court operating in the Limpopo Province is the Venda High Court with Jurisdiction over the following districts:
Thohoyandou
Mutale
Vuwani
Tshitale
Dzanani
Tshilwavhusiku

The Venda High Court was established in terms of the Republic of Venda Constitution Act 9 of 1979, which is still in force.

Recommendations:
Possible extension of the Jurisdiction of the TPD to include all areas presently falling under the Jurisdiction of the Venda High Court.

Motivation for the view:
The extension of the Jurisdiction of the TPD to all areas under the Venda High Court would pave the way for the establishment of a Provincial Division. The move would also enable the two judges of the Venda High Court to interact with the judges of the TPD and thereby benefit from sharing experiences with the highly experienced judges of the TPD. This would especially be so if there were to be a Civil Circuit of the TPD in Polokwane. In this case, the two judges of the Venda High Court could be recommended (if they so wished) by the Judge President of the TPD to act in the Civil Circuit Court for more experience.

Possible extension of the Jurisdiction of the Venda High Court to cover certain areas currents falling within the Jurisdiction of the TPD.

Motivation for the view:
The move would promote access to that Court by surrounding communities. Areas such as Malamulele, Giyani, Zoutpansberg district, Messina, Bandelierkop, Alldays, Soekmekaar, Sekgosese, etc, are closer to the seat of the Court than the seat of the TPD. A contrary view was that those areas are in any case served by the Criminal Circuit Courts of the TPD, and, as far as civil matters were concerned, would be served by the forthcoming proposed Civil Circuit Court in Polokwane. Another view questioned the capacity of the Office of the Director of Public Prosecutions for the Venda High Court to cope with additional workload given its present staff complement.

Resolutions
After intensive deliberations, the task team came to the following conclusions:
Given the limited capacity of the Venda High Court at present (it has only two judges) and that the two judges are, as matters stand, not coping with the workload, the move to extend the jurisdiction of the Court would be inappropriate at this stage.
Rationalisation of Superior Courts Bill, to be passed soon, will address the present anomalies more adequately and on a final basis.

In view of the above-mentioned reasons, it is recommended that the status quo be retained. The jurisdiction of the Venda High Court and of the TPD be left as they are, pending the implementation of the Rationalisation of the Superior Court Bill to become an Act of Parliament in the near future.

Eastern Cape:
Current position:
In the Eastern Cape there are presently three High Courts of equal status namely, the High Court of Ciskei seated in Bisho, the High Court of Transkei seated in Umtata and the Eastern Cape Division seated in Grahamstown with a Local Division in Port Elizabeth and permanent Circuit Court in East London.

Recommendations:
Transkei High Court:
The task team resolved that the districts of Maclear, Ugie, Elliot, Indwe and Barkley East be incorporated to the jurisdiction of the Transkei Division and excised from the Eastern Cape Division. This is based on the proximity of these areas to the High Court in Umtata.

The Magisterial district of Sterkspruit should be excised from Transkei Division and incorporated to the Eastern Cape Division.

The Ezibeleni Township should be excised from the Transkei Division and be joined to the Magisterial district of Queenstown, which presently falls under the High Court in Grahamstown.

If the Mount Currie district remains eventually under the Natal Division of the High Court, the Umzimkulu district, which is an island under theTranskei, Division should be excised from the latter division and be incorporated to the Natal Division. If the Mount Currie district comes back to the Eastern Cape Province both it and Umzimkulu should fall under the Transkei Division.

Ciskei High Court:
The task team resolved that the Ciskei Division should retain its present area of jurisdiction and that certain areas, which presently fall under the Grahamstown court, be incorporated to it.
The areas of King Williamstown, East London, Komga, Stutterheim, Cathcart and Queenstown should be incorporated to the Ciskei Division.

Eastern Cape Division (Grahamstown)
In addition to Sterkspruit it was resolved that the High Court in Grahamstown be given the district of Willowmore which currently falls under the jurisdiction of the Cape Provincial Division in the Western Cape.

Colesburg and Hanover district within the boundaries of the Northern Cape Province should be excised from the jurisdiction of the Grahamstown Court and be incorporated to the Northern Cape Division in Kimberly.

Observations:
The task team observed that if the above-mentioned recommendations were implemented, there would be a need to increase the complement of the Bench in Bisho and Umtata, while the Grahamstown Court will have a surplus of judges. An immediate solution would be to transfer some Judges from Grahamstown to the other Courts. The success of this option would depend mainly upon the willingness of judges to be transferred.

The task team supports the implementation of the Interim Rationalisation of jurisdiction of High Courts Act but points out that when such implementation is effected consideration peculiar to the Eastern Cape Province should be taken into account.

VIEWS OF THE DEPARTMENT
Free State
The recommendations of the task team are supported.
Western Cape
Recommendations of the task team are not supported as it would cause under-utilization of resources in the Northern Cape Division.
Northern Cape
Recommendations by the task team are supported as it would ensure that resources in the Northern Cape Division are optimally utilized.

TPD in the North West Province
A proposal by Judge President Friedman is supported. The two Directors of Prosecutions in the TPD and Bophuthatswana High Court could address objections by the Director of Public Prosecutions administratively respectively. Even if the Rationalisation of Superior Courts Bill may be signed into Law this year, its implementation may take some time taking the budgeting cycle into account.

TPD in the Limpopo Province and the position of Venda High Court
The move to establish a Civil Circuit Court in Polokwane is supported by the Department and arrangements have been made to house such Court at the old magistrate court building.

The Department has reservations on the retention of the status quo because that would defeat the purpose of the Interim Rationalisation of Jurisdiction of the High Court Act. This approach is also against transformation, as it would perpetuate the inequities and disparities of the past undemocratic Government. Communities within proximity of the Venda High Court would be denied access to a court that is closer than the TPD circuit courts. The ideal situation would either be to extend the jurisdiction of the Venda High court to incorporate certain areas within its proximity that are currently being served by the TPD or to have both Courts have concurrent jurisdiction (a position not provided for in the Act) in all areas in the Limpopo Province.

The capacity of the Bench of Venda High court to deal with additional workload is a drawback in the initiative of extending the territorial jurisdiction of Venda High Court. This cannot be addressed by appointing additional new Judges for Venda High Court as when the final rationalisation is implemented, we may possibly end up with a surplus of judges. An attempt should be made to see if two judges from the TPD might not be appointed as acting Judges for Venda High Court until final rationalisation of the High Courts is done.

Extension of the jurisdiction of TPD to cover all area under Venda High Court has not been provided for in this Act. If an attempt to get judges on acting capacity to serve Venda High Court fails, the Department will have no option but to support the retention of the status quo.

Eastern Cape
The Department supports recommendations by the task team.
The three Judge Presidents should however still be in charge of the three Divisions of the High Court separately. The issue of having a single head of Judiciary will be addressed in the final rationalisation of High Courts.

RECOMMENDATIONS:
The following recommendations are made:
Free State:
Thaba Nchu district be excised from Bophuthatswana High Court and be incorporated to Free State Provincial Division.
Western Cape:
Magisterial district of Willowmore be excised from the Jurisdiction of the Cape of Good Hope Division and be incorporated to the Eastern Cape Division.
Northern Cape:
Magisterial districts of Springbok, (Namaqualand) Williston, Sutherland, Calvinia and Frazerburg be excised from Cape of Good Hope Division and be incorporated to Northern Cape Division. Magisterial district of Vryburg be excised from Northern Cape Division and be incorporated to the Bophuthatswana High Court.
TPD in the North West:
Magisterial districts of Lichtenburg, Coligny, Zeerust, Groot Marico, Swartruggens, Koster, Rustenburg, Brits and Delareyville be excised from TPD and be incorporated to the Bophuthatswana High Court. Magisterial district of Vryburg be excised from Northern Cape Division and be incorporated to Bophuthatswana High Court.
TPD in the Limpopo Province:
The current positions of Venda High Court and TPD respectively should be retained;

Alternatively
The jurisdiction of Venda High Court should be extended to incorporate the following areas: Soutpansberg, Malamulele, Giyane, Mussina, Bandelierkop, Sekgosese, Hlanganani, Soekmekaar and Alldays, which areas should be excised from the Jurisdiction of the TPD.

Eastern Cape:
Magisterial districts of Maclear, Ugie, Elliot, Indwe and Barkley East be excised from Eastern Cape Division and incorporated to the Transkei Division.

The Magisterial district of Sterkspruit be excised from Transkei Division and incorporated to the Eastern Cape Division.

The Ezibeleni Township should be excised from the Transkei Division and be joined to the magisterial district of Queenstown currently falling under the Eastern Cape Division.

Mount Currie district be excised from Natal Division and be incorporated to the Transkei Division.

be excised from Natal Division and be incorporated to the Transkei Division.

Magisterial districts of King Williamstown, East London, Komga, Stutterheim, Cathcart and Queenstown be excised from Easten Cape Division and be incorporated to the Ciskei Division.

Willowmore district be excised from Cape of Good Hope Division and be incorporated to the Eastern Cape Division.

Magisterial districts of Noupoort, Colesburg and Hanover be excised from the jurisdiction of the Eastern Cape Division and be incorporated to the Northern Cape Division

WAY FORWARD
THE TABLING OF THE RECOMMENDATIONS AT THE MEETING OF HEADS OF COURTS:
A report on the interim rationalisation of High Courts was tabled at the meeting of the Heads of Courts. Judge President of the Eastern Cape Division raised concerns in the implemnentation of the recommendations made indicating that the situation of High Courts in the Eastern Cape could properly be addressed by the Rationalisation of the Superior Courts Bill. The Minister instructed that for those areas where there is no consensus, further discussion be held until gaps are narrowed. A further discussion was held with the Chief Justice, who advised that for the undisputed areas the Department should go ahead implementing recommendations.

AREAS THAT ARE DISPUTED
TPD in the Limpopo Province
Eastern Cape Division
Transkei High Court
Bisho High Court

AREAS IN RESPECT OF WHICH CONSENSUS HAS BEEN REACHED
Free State
Thaba’Nchu district be excised from Bophuthatswana High Court and be incorporated to Free State Provincial Division.
Western Cape
(i) Magisterial district of Willowmore be excised from Cape of Good Hope Division and be incorporated to Eastern Cape Division
Magisterial districts of Springbok (Namaqualand) Williston, Sutherland, Calvinia and Frazerburg be excised from Cape of Good Hope Division and be incorporated to Northern Cape Division

Northern Cape
Magisterial district of Vryburg be excised from Northern Cape division and be incorporated to Bophuthatswana High Court.

TPD in the North West
Magisterial districts of Lichtenburg, Coligny, Zeerust, Groot Marico, Swartruggens, Koster, Rustenburg, Brits and Delareyville be excised from TPD and be incorporated to the Bophuthatswana High Court.

Eastern Cape Division
Magisterial districts of Noupoort, Colesburg and Hanover be excised from the jurisdiction of the Eastern Cape division and be incorporated to the Northern Cape Division.

IMPLEMENTATION
The Department is in the process of submitting recommendations for the undisputed areas to the Minister with draft notices. The Minister is expected after consulting the Judicial Service Commission, to table such notices before the Parliament for approval and then publishes them in Gazette. Discussions will continue in respect of the disputed areas until agreements are reached.

RESTRUCTURING OF REGIONAL COURTS

The Department of Justice and Constitutional Development are still busy with the re-alignment of the Regional Courts into Clusters within provincial boundaries. Meetings and discussions with various role-players have been finalized. Proposals received from the role-players were used to draw up charts how the structures of these new established Regional Courts should look like. In the mean time discussions regarding the creation of recommended posts were also finalized. Posts were created at various presidencies within the budgetary constrains of the Department. The Department is at this stage in the process of re-demarcating magisterial district boundaries. Although the process is already in an advanced stage it will still take a while to be finalized. The possibility that new district will be created whilst in some instances existing districts will be merged to create new one’s. This process does have a major influence on the re-alignment of the Regional Court Cluster due to the fact that the Regional Division is consisting out of districts and sub-districts. The re-alignment of the regional court structure can therefore only be finalized as soon as the re-demarcation process is finalized.

THE COURT PERFORMANCE REVIEW COMMITTEE

The Court Performance Review Committee was established early in 2001 to oversee performance and service delivery at courts by analyzing quality assessment (inspection) reports on the functioning of courts and to ensure that corrective measures are introduced to promote good performance and improved standards of service delivery. The Department has been receiving negative reports from the offices of the Auditor General, Internal Audit and Departmental Inspectorate with regard to inter alia work performance, office management, financial and provisioning matters at various Justice Offices including Magistrates Offices. Various shortcomings have been identified ranging from lack of discipline, irregularities, fraud and other financial mismanagement resulting mainly from lack of expertise and knowledge. The major cause of this has been found to be the lack of capacity of the staff dealing with these functions.

The Court Performance Review Committee (CPRC) took a resolution that emergency teams be established to assist in addressing poor performance and service delivery at identified courts. A number of courts that need functional and task oriented assistance and training have been identified.

Emergency teams are not on fact-finding missions, since the emphasis is on functional, practical and task oriented training, as well as assistance in rectifying problems identified. This is achieved through:

Identification of operational bottlenecks and shortcomings;
Identification of training needs;
Introduction of corrective measures to address operational bottlenecks and short-comings; and
Giving hands-on and on-the-job training and guidance.

Emergency teams consist of people exposed to Court Operational Systems and Procedures, who have training skills and experience in the various areas of focus.

The idea is to share best practices, with the long-term goal of compiling a document of best practices to be distributed to all courts to ensure high standards of performance and service delivery countrywide.

Emergency task teams attended inter alia to the following sub-offices:

Umtata, where it was found that the poor work performance and service delivery can mainly be ascribed to non-compliance with instructions, a lack of proper management and guidance, poor discipline, a lack of discipline and commitment in terms of the job content, insufficient checking and control and no overhead control. Various actions were taken to uplift service delivery at this office. A follow up inspection has already been conducted to ascertain whether service delivery has improved. The monitoring will continue until the office is in a satisfactory condition.

Randburg: during the emergency task team’s visit to this office it was found that human resources, office accommodation and a lack of proper management and guidance are the main problems at this office. Supernumeries from the Mpumalanga Province were re-located to this office to assist with the administrative work and a prefab office was erected to solve the accommodation problem.

Phuthaditjaba: after this office was inspected an emergency task team was established at provincial level. The provincial team instituted a number of actions, and Justice College was requested to train the Librarian. A follow up inspection of the office indicated that improvement of service delivery has taken place.

Brits: after the emergency task team visited this office the office manager at the office was relieved of his duties and misconduct steps are being taken at this stage. Procurement and more telephone lines were supplied, and the Head of the office: Judiciary is assisting with the checking and control and overhead control. An improvement has already been reported.

Other offices where interventions have taken place are as follows:
Emlazi, Kwamhlanga and Thohoyandou.

Reports that have been received from these offices show that the situation is improving. The remaining areas in the priority list will receive attention during the course of this year.

As a continuation of "Vusi goes to Court" initiative, Senior Managers have undertaken to visit courts to carry out "hands on" interventions to assist courts improve service delivery. Their focus will be on the identified "critical" courts where they are expected to introduce measures to address problems experienced.

The Inspectorate also prioritized the Quality Assessment of offices in the Northern Province. Inspections were conducted at the following offices:
Mutale
Thabamoopo
Nebo
Sekhukhuneland
Praktiseer
Mankweng
Malamulele
Thohoyandou

The work of the Court Performance Review Committee will continue indefinitely until the standard of service delivery at identified courts has reached an acceptable level. 52 "hot spots" for immediate attention have been identified as it will be seen in the following priority list:

Umtata (Eastern Cape)
Randburg ( Gauteng)
Phuthaditjhaba (Free State)
Emlazi (Kwazulu Natal)
KwaMhlanga (Mpumalanga)
Ganyesa (North West)
Hlanganani (Northern Province)
Upington (Northern Cape)
Somerset West ( Western Cape)
Mdantane (Eastern Cape)
Germiston (Gauteng)
Chatsworth (Kwazulu Natal)
Botshabelo (Free State)
Lehurutshe (North West)
Seshego (Northern Province)
Queenstown (Eastern Cape)
Ezibeleni (Eastern Cape)
Nsikazi (Mpumalanga)
Butterworth (Eastern Cape)
Lusikisiki (Eastern Cape)
Zwelitsha (Eastern Cape)
Thohoyandou (Northern Province)
Molopo (North West)
Madadeni (Kwazulu Natal)
Johannesburg (Gauteng)
Port Elizabeth (Eastern Cape)
Elliotdale (Eastern Cape)
Giyani (Northern Province)
Ditsobotla (Itsoseng) North West)
Soshanguve (Gauteng)
Mount Fletcher (Eastern Cape)
Mbibana (Mpumalanga)
Kathu (Northern Province)
Tabankulu (Eastern Cape)
Isingolweni (Kwazulu Natal)
Mkobola (Mpumalanga)
Tseki (Free State)
Tseseng (Free State)
Beaufort West (Western Cape)
Mount Ayliff (Maxesibeni) (Eastern Cape)
Thana Nchu (Frees State)
Mahlabathini (Kwazulu Natal)
Msinga (Kwazulu Natal)
Umbumbulu (Kwazulu Natal)
Kokstad (Kwazulu Natal
Eerstehoek (Mpumalanga)
Ekangala (Mpumalanga)
Mdutjana (Mpumalanga)
Nkomazi (Mpumalanga)
Ritavi Northern Province)
Segosese (Northern Province)
Tiyane (Northern Province)


IJS COURT CENTRES

Whereas the flagship court management project of the Integrated Justice System (IJS) is the Court Process Project, this project has a medium to long-term implementation time frame. As an interim solution, a semi-automated court and case management system is being implemented at a number of courts where case backlogs are unacceptably high. This initiative, termed the IJS Court Centre Project, aims to provide a single nodal point within the court from where the entire court process is managed. The overall objective is to reduce the average case cycle time.

The project is a joint initiative between the Department of Justice, the National Prosecuting Service and Business Against Crime. Each entity has specific project responsibilities, and a senior prosecutor heads the individual Court Centres.

The IJS Court Centre Project has been rolled out to 23 magistrates courts: Middelburg, Witbank, Ermelo, Odi, Port Elizabeth, Bloemfontein, Bellville, Empangeni, New Brighton, Germiston, Kimberley, Klerksdorp, Queenstown, Benoni, Welkom, Nelspruit, Kabokweni, Pinetown, Vereeniging, East London, Vanderbijlpark, Kroonstad and Upington. The system will be implemented at a further 9 magistrates offices throughout the country by the end of September 2002. The focus will be on those courts that are experiencing greater than average case backlogs, and the National Prosecuting Service was involved in the identification of the rollout sites. At that stage the project will be evaluated for further rollout.

One of the benefits of the initiative is the collection of monthly court management information. Although the data only relates to those courts where the project has been implemented, the pool of information is continuously expanding, as the project is rolled out. This will provide a valuable alternative to, and verification of, the statistics collected by the National Prosecuting Service. It provides information on a monthly basis on aspects such as average case preparation cycle time, the number of cases disposed of, the number of outstanding cases, and the number of prisoners awaiting trial for specific periods.

The value that the project is adding to the efficiency and better management of courts is continuously monitored. The latest management information stemming from the project indicates the following overall improvements from the date of inception at each site up to 30 April 2002:
Average case preparation cycle time (i.e. the date of first appearance until the date that the case is scheduled for hearing/trial) has been reduced on average by 64 days, i.e. from 152 to 88 days (or by 42,1%).

Percentage of cases on the court roll for less than 60 days has been increased on average by 0,45%, i.e. from 51,07% to 51,52%.

Average court hours per day per court Increased on average by 28 minutes, i.e. from 4h00 to 4h28 (or by 11,7%).
Average number of district court cases disposed of per magistrates’ court increased on average by 56 cases, i.e. from 349 to 405 (or by 16%).

Percentage of cases on the court roll that are trial ready and waiting to be tried decreased on average by 5,5%, i.e. from 41,4% to 35,9%.

In terms of individual court performance on various measures of excellence, the courts reflected in the table below have performed the best. The individual courts that have performed the best overall are Benoni, Pinetown, Nelspruit, New Brighton and Empangeni.

STATISTICAL INFORMATION ON THE IMPACT OF APPEALS

Following the Constitutional Court ruling that the provisions of sections 309B and 309C of the Criminal Procedure Act 51 of 1977 are unconstitutional, the Minister for Justice and Constitutional Development decided that the automatic right to appeal must once again take effect from 1 June 2001.

However, the Minister requested the Department to monitor the impact of the automatic right of appeal on the administration of justice. Objective evidence is needed to determine whether there are justifiable grounds for limiting an accused person’s automatic right of appeal.

Survey of lower and high courts

The Department instituted a survey of both the lower and the high courts to gather information (statistics) on –

Lower courts

The number of appeals entered with and without legal representation
The cost of the transcription of records relating to appeals
The outcome of outstanding requests for leave to appeal (prior to 1 June 2001)

High courts

The number of appeals dealt with, with and without legal representation
The number of appeals pending, withdrawn or struck off the roll, dismissed, upheld or partially upheld
The number of appeals remitted to lower courts, and
The time spent by judges on preparation and in court

This information was requested from lower courts (head of office) and high courts (registrars) for the four quarters June 2001 to August 2001, September 2001 to November 2001, December 2001 to February 2002, and March 2002 to May 2002 (the latter quarter is still to be received). This would give the Department information relating to a full 12-month period.
The rate of returns received from the lower courts was extremely poor. The analysis provided below refers only to the information received from the high courts, and refers only to the first three quarters of the 12-month period described above. Furthermore, not all high courts submitted the return. Unfortunately, Johannesburg High Court only submitted the return for the second and third quarters, and Cape Town High Court has not submitted at all – which is regrettable since these courts deal with large volumes of appeals, in particular from the regional courts. Follow-up work is presently being carried out to obtain the missing information.

The survey information relating to the high courts for three of the four quarters is contained in Table 1 below. If one looks at the number of cases pending at the Bloemfontein High Court, there is a clear escalation over the nine-month period namely from 69 to 191 in respect of the district courts and from 118 to 272 in the case of the regional courts. At the same time, the number of appeals actually dealt with appears to be declining. The information in respect of the Kimberley High Court shows a similar trend. The Pretoria High Court also appears to have dealt with a declining number of cases over the nine-month period, although the number of cases pending has not increased. A comprehensive analysis of the information once a full 12-months’ information is available would need to be conducted to draw definite conclusions regarding trends in the volumes of appeals being received by the high courts.

Other sources of information on appeals

The Department’s Annual Return
Annual Returns from the high courts

The Registrars of the high courts complete and submit to the Department an Annual Return that covers a range of information – including information on criminal appeals. The Department’s Annual Return information covers the 12-month period 1 July of one year to 30 June of the following year. The information reflected in Table 2 below is in respect of the high courts for which information is available. It would appear that the Cape Town, Grahamstown, Pietermaritzburg, Pretoria – and probably – Johannesburg High Court deal with the bulk of appeals. Unfortunately the latter High Court did not submit an Annual Return for the 2000/2001 reporting year – the return from which the information set out below was extracted.

If one takes the information relating to the Cape Town and Pretoria High Courts as an example, one can note that in respect of the number of appeals received from the district courts in particular declined during the three-year period under review. This would in all likelihood be evidence of the impact of the leave to appeal procedure that was in effect for two years. One should bear in mind that the reporting period reflected in the table below ends at 30 June 2001. This means that the next Annual Return (i.e. for 1 July 2001 to 30 June 2002) will give an accurate reflection of the impact of the automatic right of appeal. This information will only be available toward latter part of 2002.

Annual Returns from the lower courts
Annuals Returns are also completed by the head of office at all Magistrates’ Offices throughout the country. These returns also contain information in respect of the number of appeals sent from the lower courts to the high courts. Unfortunately, this information, which is shown in Table 3, is presently only available in respect of the 2000/2001 reporting year.

TABLE 1: INFORMATION ON APPEALS OBTAINED FROM REGISTRARS OF THE HIGH COURT

TABLE 2: INFORMATION ON APPEALS CONTAINED IN THE ANNUAL RETURNS RECEIVED FROM THE HIGH COURTS

TABLE 3: INFORMATION ON APPEALS CONTAINED IN THE ANNUAL RETURNS RECEIVED FROM THE LOWER COURTS

Information supplied directly by Deputy Judge President Flemming

The Deputy Judge President of the Johannesburg High Court (Judge Flemming), in a letter to the Minister (dated 25 September 2001), gives the following examples of appeal statistics for a six-week period (relating to the Johannesburg High Court):

Judge Flemming indicated that since the Constitutional Court judgment took effect, in general, appeals are received at more than double the rate at which they can be disposed of. Furthermore, new appeals that are received are enrolled for a date that is approximately two years in the future. The Deputy Judge President also refers to statistics that he had submitted to the President of the Constitutional Court in May 2001:

From the above table it is clear that there is an escalating gap between the number of appeals received and the number disposed of. Furthermore, Judge Flemming refers to the decline in the "incoming" figure for the year 1999 and the year 2000 (i.e. 1 002 as opposed to 543), and notes that this gives an indication of the impact of the leave to appeal procedure on the numbers of appeals received from 1999 to 2000. In the Judge’s most recent correspondence to the Minister (dated 5 February 2002), he provides the following statistics on appeals (relating to the Johannesburg High Court), for the last term of 2001. He notes that the number of arrears has increased by 123 in one term:

Conclusion
Although as yet incomplete, the statistical evidence available clearly points to an increase in the number of appeals being received, and being dealt with by the high courts.
The Bloemfontein High Court in particular has experienced a 177% increase in the number of cases received from district courts and a 131% increase in the number of cases received from the regional courts.
A comprehensive picture should emerge once a full years’ information is available in respect of the special survey being carried out by the Department, and from the next Annual Return (i.e. for the period 1 July 2001 to 30 June 2002) due from the lower and high courts.
Legislation will have to be considered to assist in dealing with these appeals in an improved manner.

REPORT ON THE APPOINTMENT OF MAINTENANCE INVESTIGATORS AND OTHER ISSUES RELATING TO THE PROTECTION OF CHILDREN IN THE LEGAL SYSTEM

The purpose of this report is to inform the Portfolio Committee on the progress relating to the appointment of maintenance investigators and maintenance officers in terms of sections 4(1), 4(2) and 5(1) of the Maintenance Act, 1998 (Act No. 99 of 1998), as well as progress relating to the training of maintenance officers and some of the other priorities of the Business Unit: Courts in relation to the protection of children in the legal system.

APPOINTMENT OF MAINTENANCE OFFICERS
The Unit of Sexual Offences and Community Affairs in the Office of the National Director of Public Prosecutions advertised maintenance officer posts in February 2002. One hundred posts were advertised nationally. Inclusive of 90 maintenance officers and 10 senior maintenance officer posts. Due to budgetary constraints the number of posts has been reduced to 80, which will be made up of 70 maintenance prosecutors and 10 senior maintenance prosecutors.

One senior maintenance prosecutor will be placed in each province to manage the maintenance prosecutors in that province. Maintenance prosecutors will be placed in identified courts across the country. The number to be placed in each province will vary depending on the need identified. Attached herewith is a list of courts where the maintenance prosecutors will be placed.

The National Prosecuting Authority is in the process of finalizing the appointment of 80 maintenance prosecutors and 10 senior maintenance prosecutors (interviews have already been conducted in all provinces). This will increase the capacity of the maintenance courts to deal with matters of this nature. Training on the Maintenance Act, 1998 (Act No 99 of 1998) for the newly appointed maintenance prosecutors will commence in July 2002. A Training Manual has been prepared by the SOCA Unit in the National Prosecuting Authority. The SOCA Unit is also in the process of training prosecutors currently dealing with maintenance and domestic violence matters. This training is on a decentralized level and has commenced. To date prosecutors in the Limpopo Province have been trained.
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THE TRAINING OF MAINTENANCE OFFICERS
Justice College has reported that relating to the training of maintenance officers, Justice College is continually training clerks and magistrates of the Maintenance Courts, who are now for the most part being used as maintenance officers. All Provinces are visited for training sessions at least twice a year by Justice College; where special requests are received from magistrates to handle crisis areas, ad hoc-training is given in the courts concerned, such as in Umtata and Rustenburg earlier this year. In Umtata in September 2001, two experienced maintenance court personnel from East London, were requested to train the Clerks in the Accounts Section of the Maintenance Court there and requested for a two weeks’ extension, in order to bring the Payments Section up to date.

The structure of the training courses is based on the assumption that candidates attending the courses have no or limited knowledge of the maintenance system. The practical approach would therefore be aimed at the basic principles and functions of the maintenance court. The legal as well as the practical side of the maintenance system would therefore be addressed through various topics and subjects dealt with during the seminar.

The purpose of the course is therefore to have a pool of experienced maintenance officers who will be able to deal with general maintenance issues professionally, at the same time sensitising them to various problems of the maintenance clients. The main idea is therefore to train candidates to solve problems of maintenance clients swiftly and efficiently in order to provide the community with maintenance services which is user friendly and inspire confidence in the maintenance system. About 110 aspirant magistrates and 180 clerks were trained during 2001.

Problems experienced by Justice College
The rotation system at magistrate’s offices remains a thorny issue. Clerks receive training, but after a few months, are transferred to another office. A new inexperienced clerk then takes over the maintenance office. This creates the perception that the Department is not training the personnel and that the issue of maintenance is not given the priority it deserves. The accommodation for maintenance clerks at courts is not satisfactory. In some instances clerks are sharing offices or in extreme circumstances must deal with the complainant in the passage without any privacy. Justice College recommends a definite career path for maintenance officers in the family court. In this way the Department will be able to promote a structured and dedicated pool of personnel dealing with a very specialised field of the law.

This recommendation is in keeping with the request made by Adv J de Lange, Chairperson of the Portfolio Committee that the Department develops a concept, which could be used for maintenance and domestic violence matters. Adv De Lange suggested, "A sort of one-stop shop at each court and asked the Department what it would comprise".

The vision of the National Family Court Task Team is to establish family courts that provide wide and specialized protection to the family as the fundamental unit in society. Quality service, which is accessible, both in terms of physical access and user-friendliness must be provided. Such services should be rendered by dedicated and specialist judicial officers, supported by sympathetic and trained support staff. The suggestion made by the Chairperson of the Portfolio Committee will be taken up by the National Family Court Task Team Meeting to be held on 29 May 2002.

APPOINTMENT OF MAINTENANCE INVESTIGATORS
Costing of necessary budget for the appointment of maintenance investigators

The Department of Justice is very conscious of the need to appoint maintenance investigators and treats it as a matter of top priority. As indicated to the Portfolio Committee on earlier occasions, a series of consultations with stakeholders have been held with a view to determining the policy of the appointment of maintenance investigators. These consultations generated a number of options for the Department in determining the profile of the maintenance investigators. The Department has advised the Director-General that a costing is absolutely necessary in determining which option will be the most cost effective.

The Swiss Development Corporation has sponsored such a costing exercise to be done by an economist. The project is well underway by gathering information on the number of maintenance cases that are likely to be referred to maintenance investigators. We expect the number of cases to differ from area to area depending on a range of social, economic and cultural factors. Visits are presently being made to a sample of courts to evaluate their maintenance case files in order to assess how many might have benefited from the services of maintenance investigators.

Appointing sheriffs in the interim
The Department acknowledges the delays experienced with the implementation of Section 5 and therefore recommends as an interim measure and part of the multi-disciplinary approach to the appointment of maintenance investigators, that sheriffs be used to perform the functions of the maintenance investigators in the interim. The Department is of the view that this can be linked to the National Action Plan for the Transformation of the Sheriffs’ Profession. One meeting was subsequently held with the Sheriff’s Profession. See discussion infra.

Whilst the costing exercise is underway, the Department also thought it prudent to commence the process of regulations for the full implementation of the Maintenance Act, 1998. A Task Team has been established to develop regulations on the appointment of Maintenance Investigators and to identify gaps which need to be improved in the Act. The Team consists of members from the Department of Justice and Constitutional Development, Sheriffs’ Profession, Rules Board, National Prosecuting Authority and Legal Aid Board. Various meetings have been held with the sheriffs’ profession relating to consider utilising their services in the interim, out of which several legal questions came up and are currently being addressed with the assistance of the Chief State Law Adviser.

The key legal questions relate to natural persons v juristic, jurisdiction of the maintenance investigators and most importantly the powers of the maintenance investigators. The Office of the Chief State Law Adviser has rendered a legal opinion, which is summarised hereunder:
(1) Appointment of maintenance investigators as natural persons v legal persona
The multi-disciplinary approach which was proposed to be the most suitable option for appointing maintenance investigators entails entering into contracts with sheriffs, electronic tracing companies, non-governmental organisations and community based organisations In terms of the empowering provision, section 5(1) of the Act, the Law Advisers are of the legal opinion that legal persona may not be appointed as maintenance investigators. Prima facie it would appear that the Department could in fact make appointments of natural persons as the Act may have intended. The problem arises in the instance where the Department may want to employ the services of an electronic tracing company or electronic verification company. Our consultation processes have shown that in certain instances a digital trace or digital verification maybe more efficient and cost effective.

(2) Jurisdictional Issues
Another serious problem foreseen by the State Law Advisers is the jurisdictional limitation under which the maintenance investigators have to function. In terms of section 5(1) of the Act a maintenance investigator is appointed for a maintenance court. In terms of section 3 of the Act every magistrate’s court shall within its area of jurisdiction be a maintenance court for the purposes of this Act. This means that an appointed maintenance investigator is only allowed to perform his or her duties within the borders of the district of that maintenance court .
In the view of the State Law Adviser this will be a major limitation in the successful execution of a maintenance investigator’s duties in many cases. More than often the defendant resides not within the boundaries of the maintenance court.

(3) Powers of the Maintenance Investigators
In the opinion of the State Law Advisers, although section 7(2) of the Act provides for the duties assigned to the maintenance investigators, the Act is silent on the powers necessary to implement these duties. It is clear that in order to be successful in performing their duties, a maintenance investigator will need extensive powers to investigate and request information from different sources like the Department of Home Affairs; financial records from the South African Revenue Service; and financial institutions; criminal records; employee and employer records; vehicle license details from the National and Provincial Governments of Transport and Local Authorities; ownership of fixed properties from the Deeds Office; etc. The reference in section 44 of the Act that enables the Minister to make regulations regarding the powers of a maintenance investigator is in our view not supported by any provision in the Act on what specific powers are needed to accomplish his or her duties. The State Law Advisers point out that powers of the nature contemplated in the aforegoing can only originate from legislation made by Parliament.

The State Law Advisers are therefore of the opinion that aforegoing matters can only be sufficiently addressed by amending the Act.
The Department has only received the legal opinion a few days ago and will assess the legal opinion in detail with the relevant stakeholders such as the Chief Directorate: Legislation. The Department however deems it necessary to bring this matter under the attention of the Justice Portfolio Committee.

However, notwithstanding the aforegoing, much progress has been made in relation to improving the maintenance system in general and the department would like to highlight some aspects in this regard:

The National Prosecuting Authority is in the process of finalizing the appointment of 80 maintenance prosecutors and 10 senior maintenance prosecutors (interviews have already been conducted in all provinces). This will increase the capacity of the maintenance courts to deal with matters of this nature.

A public/private partnership was formed in the Western Cape to deal with digital tracing of defaulters and if successful will be rolled out to other provinces. Plans are underway to extend this project to KwaZulu- Natal

The Department has furthermore prioritised maintenance within a project called the Footprint for Justice in South Africa. In this regard financial maintenance transactions will be diverted through automation (via banks, SA Post Office and/or ATM’s). Existing manual procedures will be fully automated and supplemented with on-line up to date data and will ensure best practices.

The Department in partnership with the Commission for Gender Equality has set up a Roundtable on Maintenance arising out of complaints received from the Commission.

Statistics compiled from the Annual Return 1 July 200 to 30 June 2001 show that even though there are problems in the system, there is a fair amount of successes that can be reported:

SUB-OFFICES : MAINTENANCE

WORK DONE WITH REGARD TO IMPLEMENTATION PLANNING AND BUDGETS FOR THE CHILD JUSTICE BILL

The Child Justice Bill is due for enactment during 2002. The Directorate: Children and Youth Affairs (Department of Justice and Constitutional Development), mindful of the importance of proper planning with regard to legislation, has embarked on a carefully developed process to ensure that the Bill is properly supported as it is considered by Cabinet, debated by parliament and thereafter effectively implemented. This support is focused on implementation planning and budgeting.

Inter-sectoral implementation strategy and budget:
The Department has co-ordinated an inter-sectoral forum dealing with Child Justice Issues, called the Inter-Sectoral Committee for Child Justice. This inter-sectoral committee has done a great deal of integrated planning towards the effective implementation of the Child Justice Bill.

When the Bill was placed before Cabinet it was accompanied by an implementation strategy framework. This document provided a gap analysis, and an indication of what each of the relevant government departments will need to do between now and when the Bill is put into operation in order to allow for smooth implementation.

This planning process has now gone an exciting step further. Assisted by economist the relevant departments have embarked on a detailed implementation strategy and budget, linked to the Medium Term Expenditure Framework.

A spread sheet has been prepared that includes a look at current budgetary allocations relating to children being taken through the criminal justice process, and then at new activities required by the Child Justice Bill. Budgets to cover these new activities are then set out under the rubrics of "reprioritized funds" and "new funds" with columns reflecting the first three years of the life of the new system. This allows for a phased approach to allocations for new requirements, although there are obviously certain fundamentals that are required for the system to work, and these will need to be available from the initial date of implementation. Donor funds are also indicated in a separate column, so that it is clear where donor funding is already earmarked for use in relation to certain activities such as training and monitoring. Each of the departments will complete their own spreadsheet, all using an identical template, and for the two departments that are provincial competencies (Social Development and Education), this entails the involvement of all nine provincial departments. The end result will be a spreadsheet which can provide a complete picture at one glance of the implementation plan and budget for the entire child justice system, but that can also be broken down by stages of the system and by the different departments.

The spread sheet will be very useful in demonstrating to parliament and the public as a whole that the implementation planning has been carefully integrated with the budgeting process – that government has a clear, detailed plan for implementation, and the necessary funds to do it.

This process is something of a first. For one thing, it is unusual because it is an inter-sectoral effort related to budgeting, and secondly because it is happening so early in the process of law making.

The best-laid plans will not be able to be put into action if the government departments have not included the necessary funds into their budgets. The budgets that are developed through the abovementioned process will be factored into the MTEF for each department.

Training for Commissioners of Child Welfare
The Department recently held social context training for 42 commissioners of child welfare, amongst others looking at the impact of HIV/AIDS on children’s courts. A number of topics were presented to the commissioners including a presentation by the South African Law Committee on the Review of the Child Care Act. The commissioners of child welfare appreciated the workshop as it created a forum for the time to come together as colleagues and to discuss pertinent issues that affect the children’s courts. Plans are underway to conduct these workshops in all the provinces.

One of the outstanding features of the workshop was the need for the Commissioners to urgently consult on the Review of the Child Care Act process. From a reading of the Discussion Paper on the Review of the Child Care Act, it is clear that there are far reaching implications for the courts.

Submission by the Department of Justice and Constitutional Development to the Parliamentary Task Group on Sexual Abuse of Children

On 12 March 2002 the Department of Justice and Constitutional Development and the National Prosecuting Authority made a joint presentation to the Task Group on sexual abuse of children outlining the steps taken to protect children who are victims of sexual abuse. The main focus of the presentation was on sexual offences investigation at the South African Law Commission, sexual offences courts, sentencing, and the rape strategy led by the SOCCA Unit. The priorities within this protection are remain strengthening and extending the project on sexual offences court, court preparation programme for child victims, specialised equipment at all courts for children to testify, effective implementation of Section 170A of the Criminal Procedure Act, 1977, speedy finalisation of sexual offences legislation, and child care legislation

UN Special Session on Children
A South African delegation headed by Minister Pahad attended the Special session, an end-of –decade follow up to the 1990 World Summit for Children. This presented world leaders with a detailed review of what has been achieved for children and what has not been achieved for children. The Special Session focused on how investment in children’s education, health and protection contributes to global stability and peace.

Minister Pahad in the Presidency provided an overview of the steps taken by the South African Government to improve the lives and well-being of children.
The Special Session on Children concluded with the adoption of a new set of global goals focused on children and an action plan to reach them. The 10 main principles adopted in the Declaration of the Special Session of the General Assembly on Children are:

Put children first;
Eradicate poverty: invest in children;
Leave no child behind;
Care for every child;
Educate every child;
Protect children from harm and exploitation;
Protect children from war;
Combat HIV/AIDS
Listen to children and ensure their participation;
Protect the earth for children

Implications for the Department of Justice and Constitutional Development
In 1996 the Presidency launched the National Programme of Action for Children in line with the 1990 World Summit Goals. The Presidency upon return from the United Nations will now embark upon the development of a new National Programme of Action for Children in line with the goals developed at the Special Session. The Department of Justice and Constitutional Development and the National Prosecuting Authority will be responsible for developing the area of special protection measures.

SMALL CLAIMS COURTS:
To date, a total of 139 Small Claims Courts have been established. Although there are still problems experienced with commissioners for small claims who resign, the following new Small Claims Courts have been established for the past year:

During 2001 = 5
During 2002 = 1

An increase in the establishment of Small Claims Courts is attributable to the voluntary service from commissioners who deserve a word of appreciation for their service to the communities.

The Department is attending to problems that are experienced by commissioners in particular in the execution of their duties.

Small Claims Courts also serve the rural areas and 17 such are situated in rural areas:

Eastern Cape: (2)
Umzimkulu
Zwelitsha

Free State: (1)
Phuthaditjhaba

KwaZulu-Natal: (2)
Umbumbulu
Emlazi

Northern Province: (7)
Thohoyandou (Thohoyandou, Vuwani, Dzanani, Mutali, Malamulele)
Giyani
Thabamoopo
Ritavi
Bolobedu
Bochum
Seshego


North West: (5)
Mafikeng
Bafokeng
Lehurutshe
Odi
Mankwe


SHERIFF TASK TEAM ON SECTION 3(2)(B) OF THE SHERIFF’S ACT, 1986

The Deputy Minister has appointed a Task Team to investigate the designation of particular areas as areas in which section 3(2)(b) of the Sheriff’s Act, 1986 could be implemented.

The Task Team consists of three (3) members, namely:
Mr A P Stemmet (Board for Sheriffs)
Mr E L Chuene (Department of Justice and Constitutional Development)
Mr V Weitz ((NAP) National Action Plan, Board for Sheriffs)

The Task Team has been given a period of two months within which to make investigation and submit a report to the Deputy Minister. The Task Team has already held preparatory meetings and actual investigations are planned to begin soon.

JUSTICES OF THE PEACE

In view of a request from the Office of the Deputy Minister a Task Team is in the process of being established to investigate the future role of Justices of the Peace. The Deputy Minister approved that the appointment of Justices of the Peace be put on ice, pending the outcome of the investigations from the Task Team. The formalisation of the Task Team by the Deputy Minister is still awaited.

MAGISTRATES COMMISSION ASPECTS

A. FILLING OF POSTS OF MAGISTRATE
The Appointments Committee and the Ethics Committee of the Magistrates Commission facilitated a Workshop that was conducted on 7 and 8 May 2002 in Pretoria. The purpose of the Workshop was to review the current procedure for the filling of posts of Magistrate and the misconduct procedure for magistrates. Delegates representing the following organisations / institutions attended the Workshop:
Magistrates Commission
JOASA (4 members)
ARMSA (2 members)
Department of Justice and Constitutional Development
Lower Court Management Committee
BLA (1 member)
NADEL (1 member)
S A Law Society (1 member)
Justice Portfolio Committee
Judicial Service Commission

At the conclusion of the Workshop there was general consensus that the Magistrates Act, 1993 and the Regulations for Judicial Officers in the Lower Courts, 1993 will have to be amended to allow for a new procedure for the filling of posts of Magistrate that will be in line with the Constitution and, as far as is possible, similar to the process which is followed by the Judicial Service Commission to appoint Judges. There was also consensus that the procedure whereby Provincial Judicial Committees are utilised to short-list and interview candidates for positions of Magistrate should be discontinued and that this function should be performed centrally by the Appointments Committee, which is a Committee of the Magistrates Commission, established in terms of section 6 of the Magistrates Act, 1993. This function cannot be delegated to Provincial Committees.

The Appointments Committee will in due course present draft proposals to the Magistrates Commission for consideration. The Department of Justice and Constitutional Development will then be requested to draft amendments to the Magistrates Act, 1993 and the Regulations for Judicial Officers, 1993 for consideration by the Commission.


COMPLAINTS AND MISCONDUCT INQUIRIES AGAINST MAGISTRATES

The Ethics Committee of the Magistrates Commission considered all the inputs and comments presented at the Workshop. It resolved that the Legislative Division of the Department of Justice and Constitutional should, in consultation with the Magistrates Commission, urgently review the provisions in the Magistrates Act, 1993 and the Regulations for Judicial Officers, 1993 pertaining to misconduct and incapacity of magistrates with a view to bring it in line with the Constitution.

The Ethics Committee of the Magistrates Commission met on 16 May 2002 and resolved that a delegation of the Committee should meet as soon as possible with the Deputy Director-General: Legislation Research of the Department of Justice and with the Chairperson of the Justice Portfolio Committee to discuss the various issues. One of the main concerns is the delay in the finalisation of misconduct inquiries and a final decision by the Minister of Justice regarding the imposition of sentence. It is envisaged that possible amendments to the Act and Regulations will address this problem.

In the meantime the Ethics Committee has taken steps to address the backlog. Cluster Heads will be requested to release magistrates to assist as presiding officers and to deal with investigations and the leading of evidence at misconduct inquiries. An establishment investigation will also be conducted by the Department of Justice with a view of creating a further post of Magistrate in the Ethics Division on the establishment of the Secretariat of the Magistrates Commission.

2. The following statistics can be noted: