REPORT OF THE JOINT BUDGET TASK TEAM

February 2005

1. Introduction

 

1.1 The effective delivery of justice in this country is constrained by budget limitations. A scientific cost analysis indicating accurately how much it will cost to deliver such justice services to the people has not yet been performed and this report is a first step in that direction.

1.2 The justiciable Bill of Rights enshrined in Chapter 2 of the Constitution which forms the foundation for the establishment and sustenance of a rights culture in the country, the numerous pieces of legislation passed to fast-track the transformation and the transformative judgments delivered by our Constitutional Court and High Courts continue to extend the Department's role arising from its constitutional mandate. The promulgation of the Equality and Administrative Justice Acts and recent Constitutional Court judgements in Moseneke and Bhe cases establishing a uniform regime for handling estates under customary law and civil marriages to end the discriminatory practices between whites and Blacks estates have a huge impact on the current capacity of the courts.

1.3 It is for that reason that the Minister for Justice and Constitutional Development requested a meeting with the Ministers of Finance and Public Service and Administration (DPSA) to discuss the matter relating to the budget and capacity challenges facing the Department of Justice and Constitutional Development (Justice). A joint departmental team made of senior officials from Justice DPSA and National Treasury has been established to review the budget allocation of the Department in its entirety and identify crucial areas of under funding and compile a report in preparation for the meeting of the Ministers of the three departments involved. It has been suggested that the meeting of the Ministers be preceded by a meeting of the Directors-General the three Departments before its submission to the Ministers in order to come with recommendations which could then be presented to the Ministers for their consideration.

1.4 In compiling the report we have had regard to the substantial additional budget allocated to the Department for the current 2005 MTEF allocation made by the Minister of Finance during his budget speech on 24 February 2005. The Department welcomes the additional allocation with much appreciation as it will go a long way towards enhancing the quality of service to the beneficiaries of the justice services. We also take cognisance of the fact that budget allocation involves a continuous process of prioritisation against a set of strategic priorities and we will continue to do so in our quest to deliver more and better services with the funds at our disposal. We however need to flag some of the areas which had been part of our past legacy which require considerate attention if we are to make a difference to the lives of people. In this report we have shown how the additional funds allocated in the 2005 MTEF will be diverted towards some of the areas which are hugely under funded.

 

2. The terms of reference of the Budget Review Task Team

 

2.1 A joint budget task team was mandated to analyse the adequacy of the Department's budget in relation to the areas listed hereunder and to submit a detailed report:

 

2.1.1 The restructuring of the Department in relation to the implementation of the separation of functions to create an effective court management system where magistrates and judges no longer perform administrative functions. (Re Aga Boswa).

2.1.2 The historic under-funding of the courts personnel and the Department's lack of capacity to deliver some of the essential services including failure to provide best security services at the courts.

2.1.3 The impact of moving the personnel budget for the magistracy to be a direct charge against revenue in terms of the amendment to the Remuneration of Public Office-bearers legislation to advance the independency of the magistracy.

2.1.4 The need to hasten the transformation of the judiciary and the justice sector at large through the revitalisation of Justice College to become an academy of learning to expose practitioners to scarce legal skills and thereby create a pool from where Blacks and female practitioners can be drawn for appointment to the bench and key positions in the justice sector in order to promote transformation.

2.1.5 The impact of the rationalisation of courts, including the establishment of additional High Courts for Mpumalanga and Limpopo and the alignment of the lower courts with the re-demarcated areas to maintain a court system that is in keeping with the Constitution and the needs of people.

2.1.6 Enhancing the efficiency of the Justice cluster through the modernisation of the justice delivery system including case management to eradicate case backlogs and reduce case cycle times.

2.1.7 The cost of establishing a legislative costing unit to cost all legislation before they are passed by Parliament;

2.1.8 The restructuring of the Master's Office to provide, among others, for the revival and rescue of corporate business from insolvencies and liquidation and thereby sustain economic growth and promote a developmental state.

 

2.2 The task team established sub-committees to look at the different aspects identified under the terms of reference above and the report below elucidates the outcome of the budget review process.

 

3. The restructuring of the Department in view of the separation of powers

 

3.1 Prior to 1994, Chief Magistrates and magistrates designated as Heads of Courts were responsible and accountable for the management of the administration of courts by virtue of the old dispensation in terms of which magistrates were appointed as senior public servants. In respect of High Courts, the Judges President exercised limited administrative control functions through the Registrars of the High Courts.

 

3.2 The 1996-Constitution protects the independence of the judiciary and embraces the principle of separation of powers. In terms of this principle members of the judiciary are required by law to perform judicial, as opposed to administrative functions. The distinct roles of the executive (policy-formulation), the legislature (oversight) and judiciary (interpretation of the law and judicial review) provides the necessary constitutional checks and balances. The Public Finance Management Act, 1999 (PFMA) places the responsibility for the management of public resources on the Accounting Officer (the Director-General) and thereby absolves judicial officers of the administrative functions they performed prior to 1994. As a result of these imperatives it became necessary to develop management capacity at court level to substitute for the rediverted lost capacity.

 

3.2 The Re Aga Boswa project ("We are rebuilding") is the Department's mainstay project aimed at building the management and operational capacity at court level for optimal delivery of services. The following are some of the strategic objectives of the project:

3.3.1 To build management capacity at court level and the institutionalisation of the Court Managers to assume responsibility for court management which function was previously performed by Chief and Senior Magistrates

3.3.2 to contribute towards the reduction by 2007 of the casebacklog by 10%; and case cycle times from 15 to 9 months in respect of criminal cases and from 18 to 9 months in respect of civil cases by 2007 through the institutionalisation of an effective case flow management system.

 

3.4 The new court management model establishes a three-layer management structure in each province, namely: Court Managers (at Administration Officer level) at a local court level (excluding branch and periodical courts) who are given basic delegations to manage basic court operations, such as procurement of stationary for courts to operate unhindered; Area Court Managers (Assistant and Deputy Director level, depending on the work volume of the area concerned), at area level with extended delegations for higher responsibilities and decision-making in relation to the courts within the area concerned. At this level delegations will include procurement of commodities of a capital nature (furniture, computers, etc) as well as entry-level appointments; and Senior Court Managers (at Senior Management level) who are appointed to coordinate administrative support services at provincial level and are accorded advanced delegations for strategic management and provincial accountability in respect of all courts with a particular province. The diagram below depicts the three layer configuration:

Levels of Court Management [PMG note: Diagram not included]

35 In addition, there will be a Court Services Shared Centre (CSSC) managed by an official at Assistant or Deputy Director level (depending on the work volume of the CSSC concerned) in each province. The manager of the CSSC will be given delegations relating to the shared services offered at the CSSC. Other branches of the Department and the National Prosecuting Authority would receive back-office services support relating to high volume transactions (procurement, Persal administration, etc) at these centres, as well as at the courts.

3.6 Apart from strengthening the management capacity at the court level, the model redefines the roles and functions of clerks of court and Registrars of the High Courts to focus on case flow management. This will expedite the processing of cases and assure that the judiciary takes control of the management of the litigation process in the courts. This intervention will address to a great extent the problem of case backlogs and enhance the legitimacy of the judicial system from the public court users' perspective. The intervention will also enhance the capacity of the Justice Crime Prevention and Security Cluster (JCPS) in ensuring the integration of services at the delivery points and create efficiency and effectiveness of the crime and civil court system.

3.7 The approach taken to do the cost analysis of the Re aga Boswa management model entailed the following:

3.7.1 The refined court management model as tested in KwaZulu Natal was costed, taking into account the (volumetric) relating to population dimension, distances between residential areas and courts and the volume of work of each court. The costed KwaZulu Natal model was customised to every other province taking into account the proportional population and number of courts and capacity required for every court of similar grading in the province concerned. The average-cost-to-employer-basis was used to determine salary scales. This includes medical and housing allowances for qualifying post classes.

 

3.7.2 The costing of the KZN management model [PMG note: yable not included]

3.7.3 KZN Court Services Support Centre (CSSC) [PMG note: yable not included]

3.8 Prior to the rollout of Re Aga Boswa in KwaZulu Natal the personnel budget for the KZN Regional Office was RiS 574 000. With the rollout of the management model the CSSC accounts for R8 778 987 with the difference of R6 795 012 re-diverted to the courts to augment the court management capacity. The additional amount required for the implementation of the full establishment is R3 731 604. The same principle has been applied in respect of all other provinces to come to the global additional figure of R69 690 000 required for the rollout of Re Aga Boswa. This amount should secure the creation of management capacity at court level. The benefit of this new court management model is that it phases out regional offices structures which have proven to be an inefficient way of managing the courts and redivert all resources located within regions to the courts where they are required.

 

3.9 The exercise of customising the kwaZulu Natal personnel cost for the implementation of the new court management model to other provinces present the following budget need:

[PMG note: table not included]

3.10 To summarise, the amount required for the institutionalisation of the new court management model country-wide from a personnel budget perspective is an estimated R69 690 000 additional. To this must be added administration costs for the institutionalisation of the management model (furniture, telephones, etc). It is also important to note that some of the administrative costs will de re-diverted from regional offices to the courts.

4. Personnel under4unding

 

41 The Portfolio Committee budget hearing in the past three consecutive years on Justice and Constitutional Development acknowledged that under4unding of the personnel budget for Court Services was a great area of concern and needed urgent attention. Courts account for the biggest proportion of the Department's expenditure. Using one estimate, personnel in Court Services is currently under-funded to the amount of R397 million. This figure is derived by:

4.1.1 That R 1, 420 billion is required, only should the full establishment of Court Services be filled. This includes costs for salary, service bonuses, car allowances, pension funds contributions, medical aid contributions and housing allowances. This figure does not make provision for temporary units which are additional to the establishment, leave gratuities, merit awards, qualification acquisition bonuses, Central Bargaining Council contributions and other miscellaneous costs.

4.1.2 The budget allocated to courts is R 1, 250 billion for personnel costs (of which R 87 million are for personnel costs related to projects).

4.1.3 The shortage for courts was calculated as below:

R 170 million (R 1, 420 billion minus R 1, 250 billion)

R 87 million (for projects)

R 21 million for merits (R 1, 420 X 1, 5%)

R 1 million (Court Stenographers)

R 1 million (Overtime for e.g. Small Claims Courts)

R 500 000 (Qualification bonuses)

R 11 million (Leave Gratuities)

R 500 000 (Recognition for long term service)

R 300 000 (Other miscellaneous costs)

R 64 million (Cost of if 6% increase w.e.f 1 July 2004)

TOTAL: R 357 million

4.1. 4 The estimated costs for National and Regional Offices this year is R160 million and the allocated budget comes to R120 million (R40 million short).

4.1.5 The total shortage on personnel costs for Court Services is thus approximately R 397 million.

4.2 These projections need to be seen in context of current and historical budgetary allocations, characterised by over-budgeting on goods and services and under-budgeting on compensation of employees in Court Services. The concern is that previous savings in other branches might not materialise which would remove the cushion that Court Services enjoyed in the previous financial years. It is common knowledge that Regional Offices were never fully funded and Court Services is working with the possible Savings transformation derives as per their Human Capital Plan. The Human Capital Plan is self explanatory; however it disregards any salary increments, which is predicted to be a R64 million cost to the Department.

4.3 According to previous negotiations Treasury undertook to provide Court Services with an additional budget allocation of R220 million of which only P150 million was received in the previous financial year. Clearly from a Court Services perspective they are seeking to indicate to all role players that should the remaining P70 million (deficit) not be allocated it will amount to that projected over-expenditure.

4.4 The investigation of court establishments through the Re Aga Boswa rollout focuses on two elements, namely:

· The investigation of the management capacity

· The investigation of the capacity required for production.

4.5 While the costing for the management structures at all the courts country-wide has been done using the sample of courts selected in KZN, the investigation of the production capacity is a long term exercise which may be completed beyond the time required to complete this report. The task team was therefore of the view that the recommended posts in all courts up to the time of the commencement of the Re Aga Boswa rollout should be considered the cost of the production posts, with a view that after the completion of the rollout (and aligned to the MTEF cycle) the revision of the establishment may be considered, taking into account the effect of the modernisation programme. The exercise of re-investigating the whole court establishment may have demoralising effect on the courts due to the fact that recommendations of the Rationalisation Committee of 1998 has not been implemented due to budget constraints.

4.6 The following table sets out the current position as regards the Department (NPA excluded) personnel budget:

[PMG note: table not included]

4.7 The Task Team recommends, as a first stage, that discussions should be concentrated on rectifying the shortfall as per the 1998 recommended establishment given current infrastructure limitations. This will also allow the Department to fully evaluate the impact of modernisation and automation on current workloads and the skills required to perform those (new) functions. Some of the branches are still in discussion with Human Resources and the Director-General on their structures - costings are therefore subject to change. It goes without saying that the appointment of such additional personnel must be accompanied by operational funding.

4.8 The Budget Review Committee raised concerns about the filling of posts additional to the establishment (R87 million in 2004/05). It further registered as a concern the under-budgeting of compensation of employees and the over-budgeting on goods and services. As a consequence, mechanisms are being put in place to ensure that budgets are right-sized. Additional amounts of R85 million, R195 million, and R273 million have been provided in the 2005 MTEF for the employment of additional magistrates, prosecutors, and court services personnel. National Treasury requested quarterly progress report on the appointments made in this regard.

 

The impact of moving the personnel budget for the Magistracy from that of Court Services

 

4.9 The Independent Commission for the Remuneration of Public Office-bearers Act, 1997 (Act 92 of 1997) (the Act) provides for the establishment of the Commission for the Remuneration of Public Office-bearers (the Commission) to make recommendations concerning the salaries, allowances and benefits of office-bearers; and for matters connected therewith. With effect from 1 November 2003 the Act was amended so as to extend the definition of office-bearer" to include judges and magistrates.

4.10 Section 8(4) of the Act provides that the Commission shall, after taking into consideration the factors referred to in sub-section (6), publish in the Gazette recommendations concerning the salaries, allowances and benefits of judges and magistrates.

4.11 The Commission, whenever performing its functions in terms of the Act must have regard to the provisions of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001) and the Magistrates Act ,1993 (Act 90 of 1993).

 

4.12 Section 2 of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001) provides that:

Any person who holds office as a Constitutional Court judge or as a judge, whether in acting or permanent capacity, shall in respect thereof be paid an annual salary at a rate determined by the President by proclamation in the Gazette,"

whilst Section 12(1) (a) of the Magistrates Act, 1993 (Act 90 of 1993) provides that;

"Magistrates are entitled to such salaries, allowances or benefits ... as determined by the President from time to time by notice in the Gazette, after taking into consideration the recommendations of the Independent Commission for the Remuneration of Public Office-bearers .. and approved by Parliament

 

4.13 he 6,2% budget increase given to Magistrates in comparison to the 6% given to judges need to be factored in as we plan to move the budget of the magistracy to be a direct charge against the National Revenue Fund.

 

4.14 The cost of the current approved and recommended establishment of magistrates is:

[PMG note: table not included]

4. 15 From the Departmental perspective, the move of the compensation of magistrates to the Revenue Fund should take into account the fact that magistrates' salaries for years have been subsidized by vacancies in the Department and Court Services in particular. The amount to be transferred to the Revenue Fund should therefore be less than R720 million. The Department agreed to transfer an amount of R647 100 000 to the National Revenue Fund with effect from 1 April 2005. This amount provides for a 10% vacancy rate and excludes performance awards for magistrates.

4 .16 It must also be noted that the removal of administrative functions previously performed by the magistrates as a result of the Van Rooyen-judgment has caused a serious vacuum in management capacity at a court level. It is the object of the Re aga Boswa process to address this vacuum. On the other hand, court efficiency is set to improve as magistrates are no longer burdened with administrative functions relating to the administration of the courts.

 

[Action: A letter to the DPSA to highlight the effect of the transfer of the salaries of magistrates to the National Revenue Fund and matters related thereto (service benefits, car and pension allowances, performance bonuses, etc) prepared].

 

 

 

 

5. Court infrastructure and maintenance

 

    1. The allocations made to the Department of Justice and Constitutional Development for capital works projects and maintenance and upgrading of court infrastructure over the 2003/04 - 2005/06 MTEF period are:
 

2003/4

2004/05

2005/06

 

R’000

R’000

R’000

Capital Works

229 739

243 523

258 134

Infrastructure: Maintenance and upgrading

65 000

665 900

69 854

Total

294 739

309 423

327 988

This excludes the amounts on the budget of the Department of Public Works (DPW).

 

5.2 The Department of Justice and Constitutional Development is one of the largest departments in terms of facilities in the public service. The national Department of Public Works (DPW), as custodian of all immoveable state assets, and therefore also responsible for the upkeep of court buildings, has not been and currently is not in a position to effectively address the full routine building maintenance needs of all the departments. This problem is exacerbated by a historical backlog in respect of routine maintenance of state buildings.

 

5.3 DPW's total budget for planned maintenance for 2004/05 is R733, 253 million1 of which an amount of R78, 1 million has been allocated to the Department of Justice and Constitutional Development. This amount is insufficient to properly address the backlog. A proposal has therefore been made to DPW that Justice's allocation on its maintenance budget drastically be increased, and that Justice's total allocation for maintenance be transferred to its Vote with effect from the 2005/06 financial year, in order to ensure direct control over its allocations. This is in accordance with the suggestion made by Minister Manual in his letter to the previous Minister of Justice and Constitutional Development, Dr Maduna in his letter (M.3115/16 (2649/03)) dated 19 August 2003.

 

5.4 In an effort to bring relief where working conditions due to deficient facilities have become dangerous and non-conducive to proper service delivery, the Department of Justice and Constitutional Development embarked on an three

 

This is substantially more than the figure of P527 266 352 provided by DPW to Court Services. year repair and maintenance programme (RAMP) in collaboration with DPW during 2001 During Phase 1 of this programme all repairs and renovation are effected to make the building fully functional again, where after proper maintenance for the rest of the 3 year period is ensured by means of term contracts. Such term contracts provide for the maintenance of court buildings in future.

 

5.5 It obviously makes economic sense to properly maintain existing state buildings and court buildings in particular. In order to properly maintain the court buildings listed (and to service the existing maintenance contracts), the Department will require the following additional allocation over the MTEF period:

2005/06 2006/07 2007/08

NT R 72 000 000 R 75 000 000 R 80 000 000

DPW R 78 000 000 R 88 000 000 R 99 000 000

Total R150 000 000 R163 000 000 R179 000 000

This amount includes the request to DPW to transfer the R78,1 million budget and carry-through allocated for this purpose to the Department. Please note that these amounts are not sufficient to cover the maintenance of all court buildings as current capacity constraints in the Department limit our ability to spend more than this in the short-term.

 

5.6 The Department of Justice and Constitutional Development is in principle responsible for all maintenance work to its buildings up to a value of RSOOO. The Department pays the service provider and claims the total amount paid back from DPW. The total amount spend on day-to-day maintenance is substantial and the outstanding balance due to the Department by DPW on 31 March 2004 was R20 million. As with the case of planned maintenance, the Department is negotiating with DPW to transfer to it the budget.

 

5.7 A backlog in construction of new court buildings has developed due to inheritances of the past and inadequate budget allocations. Issues such as Batho Pele, accessibility to our services in rural and township areas, specialized courts, etc. were only attended to post 1994. Through the construction of new court buildings the Department has been able to bring justice to the people in areas such as khayelitsha, Blue Downs, Tembisa, Thembalethu and others. However, the demands to access for justice from communities such as e.g. Orange Farm, Mabopane, Ntuzuma, kathlehong and Soweto remain unsatisfied.

 

5.8 The Superior Court Bill that rationalises the High Courts and establishes a High Court division per province, is due for submission to Cabinet and should be passed into law by Parliament this year. The Bill provides for two additional High Courts for Limpopo and Mpumalanga and funds are required to put the necessary infrastructure in place in anticipation of the envisage registration. A detail costing of the Bill and its implementation plan is being prepared. However the actual building of the courts will require an estimated amount of R198 million.

 

5.9 Linked to the rationalisation of the High Courts is the re-demarcation of magisterial districts to redefine the apartheid-delivery points which are insensitive to people's needs and makes justice inaccessible to communities in some parts of the country. Priority areas which will require urgent focus are the proclamation of Soweto as a magisterial district which will justify a fully fledged court infrastructure to be put in Soweto to serve the estimated 2.8 million inhabitants of the biggest township in the southern part of Africa. Currently the Soweto population is largely served by the Johannesburg Magistrate's Court. Johannesburg itself has seen huge increases in its population, caused largely by migration from rural areas to Egoli". The current infrastructure of the Johannesburg Magistrate's Court (built in 1949) is totally inadequate for today's needs.

 

5.10 A similar situation prevails in respect of Mamelodi where an estimated 1.6 million people receive services in Pretoria North with which they have no economic or sentimental link. It is now recognised that the decision to provide justice services for the Mamelodi community in Pretoria North is fundamentally flawed. The people of Mamelodi work and shop in Pretoria which is easily accessible through all modes of public transport. Travelling further to Pretoria North for services such as maintenance, estates, small claims court applications, domestic violence, and protection orders, has brought untold hardships for the Mamelodi community. Therefore funds are required to reverse the situation.

 

5.11 The additional capital expenditure required to build the two new court buildings is R194 million. Other consequential expenditure such as human resources and the operational costs (telephones, witness fees, etc) also needs to provided for.

 

5.12 The task team notes the point made by the Budget Review Committee that construction of new court buildings should be delayed to cater for the maintenance and renovation of existing court buildings. It is also important to align the security needs of individual court buildings to capital works and renovations plan and to integrate the demand for more service points by the Master's Office with this plan.

 

Court security

 

6.1 The Department of Justice and Constitutional Development continues to experience increasingly complex security problems such as escapes from lawful custody, burglaries, thefts, armed robberies, cash-in-transit heists, arson, weak / poor access control, bomb threats and all types of risks and other criminal activities on a daily basis in its court houses The physical layout and the organisational structure of each of the court houses do not facilitate the implementation of effective security measures. There is therefore a dire need for the upgrading and installation of physical security measures such as fencing, gates, X-ray machines, walk-through metal detectors, etc to protect assets, information, staff members and the public who visit the courts on a daily basis.

 

6.2 The following table reflects the Security and Protection Services funding needs:

[PMG note: table not included]

6.3 It must be noted that the successful conclusion of the envisaged Monies in Trust public private partnership will transfer the risk of cash handling at court level to the private sector. Cash-in-transit services may in future therefore no longer be necessary. The Budget Review Committee questioned the need for some of the above offerings and recommended that the Department should conclude service level agreements with SAPS on especially guarding and protection services.

 

6.4 National Treasury made available an additional R65 million, R90 million, and R140 million for the physical security of courts as part of the 2005/06 to 2007/08 MTEF allocation. These amounts are over and above those already included in the baselines of the Department. National Treasury requested a business plan on how these amounts will be utilised. National Treasury has also advised that the funds allocated for rehabilitation of court buildings and infrastructure development can be used for physical infrastructure at court level. Given previous allocations and by re-prioritising the Department should be in a position to improve the basic security infrastructure at the courts. However, currently only 230 of the 749 courts have basic security infrastructure in terms of fencing, burglar proof doors and windows and alarm systems. This implies that peoples lives and property valued at millions at the balance of the courts are exposed to dangers of attack and theft on a daily basis.

 

6.5 Due to the spate of attacks on some of the judges and magistrates in recent years there has been repeated calls from members of the judiciary to have basic security infrastructure such as alarms, walled fences and burglar proof doors, etc installed at their homes. This stems from the pre-1994 policy when the state provided basic alarm system to the homes of all judges. This policy could not be sustained given the increase in the number of judges and similar demands from the magistracy. The Department is in discussion with SAPS and Public Works whose line function it is to address matters of static and in-transit protection and physical security respectively. The budget articulated above excludes any form of security to judges and magistrates.

 

7. Transformation of the Judiciary

 

7.1 The transformation of bench to reflect the race and gender demographics of the South African society has been a thorny issue and compounded by a lack of an adequate pool from which potential blacks and female judges could be drawn. The resolution of this challenge requires medium to long term plans which must be based on an aggressive Human Resource Development Strategy. The development of such a strategy will require among others the broadening of the current judicial education programme to empower female and black legal practitioners to be eligible for appointment to the bench.

 

7.2 The restructuring of Justice College to accommodate training programmes for induction and advanced courses for magistrates and judges is key to this envisaged Human Resource Development Strategy. Currently the College has been providing limited orientation and advanced training programmes to magistrates. The extension of the programme of the College to prospective and current serving judges will require an additional R9, 2 million. So far all training programmes for new judges have been funded by donors. Donor fund contributions have reduced substantially due to the strengthening of the rand/dollar exchange rate. The completion of Canadian-SA Linkage project has put further strain on a major donor funding source.

 

7.3 The revitalisation of Justice College requires the reconfiguration of the current organisational structure to establish an effective governance and management structure. The organisational reconfiguration will result in the establishment of three faculties to co-ordinate the education programmes relating to the following three areas: judicial prosecutorial and legal administration. It is envisaged that a well respected and experienced senior judge (presumably retired) will head the judicial education faculty while senior officials from the prosecution and administration will have to be appointed to lead the other two faculties. It is envisaged that the revitalised Justice College will be managed by a senior public servant (presumably at Deputy Director level) to maintain the stature of the College as the new centre of learning for the entire justice family (NPA, Legal Aid Board, Sheriffs profession, etc). A comprehensive report on the revitalisation strategy for Justice College is being prepared.

 

7.4 It is proposed that a Judicial Advisory Council composing mostly of judges and magistrates should guide the development of the judicial education programme and the judicial education curriculum. This will ensure the protection of the independence and integrity of the judiciary as required by the Constitution.

 

7.5 A well resourced and capacitated Justice College will enhance our legal research capacity and thereby:

 

7.5.1 Create a critical mass of judicial leadership to play a leading role in the transformation of our judicial system and enhance the integrity and respect for the bench.

 

7.5.2 Develop and sustain a professional and accountable court management system which is sensitive to the needs of society.

 

7.5.3 Acquire and enhance scarce skills within the judiciary and prosecution especially in relation to the field of civil law (contract, commercial law, patents and insolvency).

 

7.5.4 Instil and advance a human rights culture within the judiciary and the courts by providing social context and advanced human rights training with special emphasis on the sensitivity gender based offences.

 

7.5.5 Advance the development of our jurisprudence especially with regard to the further development of customary law which apply to the majority of our rural communities.

 

7.6 The implementation of learnerships and internship programmes to prepare new entrants to the legal field to build legal and judicial exposure also requires additional funding. Estimates for a sustainable internship programme are being worked-out.

 

7.7 The establishment of a Justice Trust Fund to further enhance the transformation of the judiciary and expand the pool of potential entrants to the bench is a further Departmental priority. It is expected that the Department will be required to contribute to this Fund.

 

7.8 The Department is engaging with institutions of Higher Learning (deans of the Law Schools) and the Education Department with a view to interrogate the strategic relevance to the transformation of the justice system and judicial practice into the curriculum. In this regard the focus falls on scarce skills (legal drafting skills; intellectual property law; international trade law, etc). In addition, the Department has embarked upon a skills audit and development initiatives for broader judiciary technical training: this includes prosecution and magistrates.

 

8. Automation I modernisation

 

8.1 The Department migrated from the Financial Management System (FMS) to the Basic Accounting System (BAS) on 1 April 2004. This migration to BAS was imposed on the Department, as BAS is the financial system used by most Government departments. As a consequence, the Department did not plan or budget for the migration to BAS.

 

8.2 The BAS implementation plan agreed upon with National Treasury earlier this year only provides for BAS enablement at 129 Justice sites. Of these, 82 had network connectivity and the remainder of the targeted sites was connected using a dial-up option. The dial-up option leads to slow system response. More critical, however, is the need to connect the rest of the Department's offices, of which there are 497 countrywide. The lack of universal on-line connectivity has been the subject of ongoing internal and external discussions.

 

33 The monthly BAS running costs include the SITA data processing fees and access to their training database. In addition, offices using dial-up functionality in some instances had to install an additional telephone line and are incurring additional telephone expenditure. The actual figures for running BAS in the period April to September 2004 in this regard are:

[PMG note: table not included]

On average, the Department spends R715 170 per month on BAS. This equates to R8 582 044 per annum. It is further expected that BAS training at an annual cost of R3 million per annum will be required on an ongoing basis for the foreseeable future.

 

8.4 The migration to BAS requires considerable investment in training of officials. In this regard, it is accepted that basic computer skills throughout the Department is rather limited. BAS and basic PC skills training will have to be provided on an ongoing basis for the foreseeable future.

 

8.5 RS million was transferred to the Office of the Accountant General to assist the Department in developing a BAS implementation plan. Some of this money was used to pay for the expenses of the Treasury officials providing technical and project management support to the Department during BAS implementation earlier this year. The balance of this amount needs to be returned to the Department.

 

Establishing a virtual private network (VPN) for the Department

 

8.6 For BAS to work effectively, the Department requires universal connectivity. This requirement (for connectivity) has become critical and places financial management and the implementation of the Monies in Trust public-private partnership (MMT PPP) at serious risk. In order to provide this connectivity, SITA was requested to develop a VPN for the Department. A pre-payment of R94 million was made to SITA in terms of an agreement signed in February 2002. The Department was not satisfied with the progress made on the VPN and has notified SITA of its intention to find an alternative provider for a VPN and demanded the return of the unutilised funds and interest that had been given to SITA as an advance for the development and deployment of a VPN. The Budget Review Committee noted that a similar pre-payment was made to SITA by GCIS also for a VPN.

 

8.7 The Department is following the ITAC process with SITA in order to go to open tender for a VPN implementation. After discussions with SITA this process has been identified as taking a period of +/- 90 days before the tender process starts. This timeframe is not in keeping with the urgency of the project. Therefore, the business case has been submitted to SITA and once SITA have provided an ITAC project Plan pressure will be exerted to shorten this delivery time.

 

3.8 The tender document is still in draft form, but should be finalized shortly. Telkom was requested to present a viable solution to the Department with a view to move core services to this solution as quickly as possible as there are no vendors in this market space. All solutions will have to be provided via Telkom as this is the only fixed line operator currently. This proposal was received and meets all DOJ requirements from a core service level. Therefore if no tender was required the core services could be moved in a realistic timeframe of three months.

 

8.9 Although the ITAC process is being followed for the VPN tender, there is an urgent requirement to provide a stable environment to the BAS and JYP users. Three quotes have been requested from market leaders to offer an interim solution for the period of six months renewable on a monthly basis to meet this requirement. This solution will then be incorporated into the VPN and either switched into this private network or will remain as a dialup solution where the VPN infrastructure does not exist. The quotations will be compared and a recommendation made as to which quotation offers the most suitable solution to the Department.

 

8.10 The cost outline for VPN requirements is:

[PMG note: table not included]

 

8.11 The Department of Justice and Constitutional Development spends about R62 million a year on voice connectivity and it is estimated that the data spend is in the region of RiS million per year. By obtaining a (PTN) license the Department could achieve cost saving by combining voice and data requirements, estimated to be in the region of a 15% savings on voice costs alone. Discussions in this regard are underway.

 

DNS Project - Establishment of IT Plafform and Infrastructure

 

8.12 The DNS project provides the IT platform and infrastructure for the Department.

As such it provides basic connectivity, infrastructure and training to users.

The number of users and sites that have received infrastructure to date comprising of the following:

 

1) Network Deployment 191Sites

2) Server Deployment To 9 nodal’s as well as 191 Sites

3) Desktop Deployment 10 000 Users received desktops

4) Training Delivery 8 000 Users received training

The remaining requirement still to be completed is:

1) Network Deployment ± 400 Sites still to be deployed

2) Server Deployment As required in terms of architecture design

3) Desktop Deployment ± 4 000 Desktops still to be deployed

4) Training Delivery ± 6 000 Users to received training

 

    1. The cost per annum is as follows:

[PMG note: table not included]

8.14 The Budget Review Committee noted with concern that the donor funded activities of ISM may not be sustainable in the long term. The Committee further requested an exposition of the value for money received the last 5 years, given its R1 billion plus vote allocation over this period.

 

Roll-out of a new JDAS solution to identified sites

8.15 The migration from a manual system to an automated system will have the following impact:

Reduction in fraud / corruption

Electronic filing of information and data

Extended footprint - faster service to the community

 

8.16 This project is important for the modernization of the Department. If there is no funding for the project the expectations of Court Services and the public will not be met. The project is also key to the successful implementation of the Monies in Trust public private partnership. Without an integrated JDAS module, the continued possibility of fraud with monies handled in courts remains as it will not be possible to accurately file and report on all data and transactions.

Total cost (50 sites):

RoII-Out of new JDAS solution to identified Sites R23,000,000

Change Management and Communication

8.17 The E-Justice Programme is still underway and the Change Management and Communication initiatives are critical for the success of the E-Justice Programme.

Total Cost (per annum):

Change Management and Communication 10,000,000

Court Process Project

8.18 The implementation of the revised Court Process Project to more DOJ sites is required in order for the Integrated Justice System partners to utilize the above solution. Adjudication and prosecution process falls within the ambit of the DOJ. If the solution is not implemented at our courts, the other Departments will not receive much benefit from this integration.

Total Cost (per annum: 14 sites):

Implementation of revised Court Process Project to more DOJ sites R9,000,000

ISM: The impact of diminished donor funding

 

8.19 The modernisation of the Department and the e-justice programme in particular has been generously supported by donor funding. This funding ends at the end of the 2005/2006 financial year. The Vote Fund Budget Allocation for SM for 2006/2007 is R230,089,000. This budget will only cover the following costs:

Operational Costs

Personnel Costs

Annual Hardware Maintenance Costs (servers)

Annual Software Maintenance Costs (All licences for the whole

Department e.g. Oracle Database licences, Microsoft Licences etc)

Jutastat Law Publications (All DOJ sites on the network, excluding those sites which are not on the network)

Change Management Initiatives

WAN costs/Dataline costs

Server Housing Costs at SITA Nodals

Outsource Contractual Commitments

Technical & Distributed Services Maintenance and support costs Application maintenance and support costs (only existing systems - new systems which will be developed during the next financial year support costs not included).

Service Delivery Management costs.

8.20 It is clear from this that the Department will not be able to:

Roll-out infrastructure to those sites which are not covered during the next

financial year

Develop new solutions or critical solutions which may be required

Maintain and support new solutions

Roll-out existing solutions (e.g. JDAS, Court Scheduler, Case Management

Solution etc) to sites that are not covered during the next financial year.

Pay for the utilisation of costs of the Transversal systems e.g. BAS, PERSAL

Re-engineering of Business Processes which have not been re-engineered and mapped as yet.

8.21 The unfunded priority projects of ISM are:

Digital Network System (DNS) R326 000 000

DNS II R23 000 000

Roll-out Justice Deposit Account System (JDAS) R48 000 000

Change management and communication R21 000 000

Roll-out Court Processes Project (CPP) R24 000 000

Purchase software licences R35 000 000

Business processes re-engineering project R10 000 000

Roll-out case management system R60 000 000

Total R547 000 000

9. Costing of legislation

9.1 Parliament passed 761 pieces of legislation since 1994. The contribution of the Department of Justice and Constitutional Development to this tally is on average 12 per annum. The successful implementation of legislation turns on the availability of funds. Such funding may become available only after the passing of the legislation if at all. Without appropriate and focused costing implementation of legislation becomes a hit and miss affair. Where a department has not budgeted for nor envisaged the enactment of a particular piece of legislation, the only way to give effect to the will of the people as represented in Parliament and to make good on promises made to the electorate society is to reprioritise within existing baseline allocations. This invariably involves a reduction in service delivery somewhere else. The consequences of not preparing an integrated budget and implementation plan are clearly illustrated by the implementation hurdles that beset the Domestic Violence Act (Act No. 116 of 1998) and the Maintenance Act (Act No.99 of 1998).

 

9.2 Departments should cost legislation at various stages of the legislative process. First, draft legislation should be costed at the policy conception phase to determine general feasibility. Should a decision be taken to proceed with the preparation of draft legislation, due cognisance should be taken of potential cost drivers. Such an approach will limit the tendency to emasculate especially cross-cutting legislative proposals with financial implications involving other Departments. This usually happens when draft Bills are submitted for comment. Thirdly, Cabinet requires Departments that submit draft Bills for introduction into Parliament to set out the financial and human resource implications of introducing such Bills in the accompanying Cabinet memorandum. If draft Bills are costed properly before they are introduced in Parliament, as they should be, Parliament will be better informed. Lastly, once adopted by Parliament legislation should be costed to ensure effective implementation. This process should be supported by a communication strategy and an implementation plan. It is trite that few, if any, legislative proposals are subjected to the rigours of such a costing approach.

 

9.3 The Department currently has a Costing and Decision-Support sub-directorate in the Office of the CFO. This sub-directorate provides budget coaching services to business units at National Office; prepares the zero-based Budget (ZBB); costs the Unfunded priority protects (UPP's) as part of the MTEF process; and assist with the budget process. The sub-directorate consists of a Deputy Director, three Assistant Directors, and a State Accountant. The State Accountant's and one Assistant Director posts are vacant. The sub-directorate focuses on costing in general and not legislation specificlly.

 

9.4 The Committee proposes the establishment of a dedicated legislative costing unit in the Department of Justice and Constitutional Development. This unit should cost Departmental legislation at the policy level stage, draft Bills prepared / circulated for comment, draft Bills submitted to Cabinet of introduction and the implementation and communication strategies of Departmental legislation once adopted by Parliament. Ideally, the unit should consist of some legal drafters (Senior State Law Advisers) and financial staff. The head of such unit should ideally possess both legal drafting and costing skills. Two staffing options are presented:

[PMG note: table not included]

9.5 The Department received R2 million, R3 million and R4 million over the 2005/06 to 2007/08 MTEF period for the establishment of a legislative costing unit. This allocation is reflected in the above schedule.

9.6 In addition, the Committee proposes the establishment of a national legislative costing unit. The purpose of this costing unit would be to provide training on the costing of legislation to other departments, to coordinate the costing of draft Bills requiring inter-departmental co-operation and collaboration, and to referee on budget responsibility in such cases. Such a central office could be housed in National Treasury, the Office of the Presidency, or Parliament.

 

10. Possible fiscal dumping during March in the last three financial years

 

10.1 It has been said at MTEC and other fora that the Department's spending for March (the last month of the financial year) suggests some form as fiscal dumping, as spending in this month far exceeds that in the rest of the financial year. On a quarterly basis, the following items show more than 40% growth in expenditure in the last quarter of the financial year:

 

10.2 Accommodation, Advertisements, Registration fees - courses, GG transport. Security apparatus, Office equipment, Furniture, Departmental vehicles, Computers and printers, Printing, Computer software, NPA Land and buildings, Capital works, Losses, Psychiatric observation, Widow allowance: Judges Salaries: Judges remuneration, Bank charges, Work contracted out

 

10.3 Some of these items (NPA Land and Building, capital woks, psychiatric observation, widow allowance: Judges and Salaries: Judges) are treated as transfer payments and are paid over in March every year. The write-off of losses is dependent upon being savings being available and traditionally happens in March. The increase in Printing, Departmental vehicles and GG Transport in the last quarter is as a result of the late billing by the service providers. Steps are being taken to address this problem. Computer software licences traditionally are paid on the last day of the financial year. In direct response to the criticism of possible fiscal dumping, an investigation is underway to determine the cost benefit of a discount for early payment versus payment on the last day of the financial year for computer software licences. The increase in expenditure for security apparatus, office equipment, furniture, computers and printing is budget driven and will in future be limited once the commitment based procurement system is fully implemented.

10.4 These are some of the reasons for the increased expenditure towards the end of the financial years in the past three years:

 

Capital projects, such as new courts, have coincided with the end of the financial year. The completion of these projects necessitate procurement of furniture, PABX systems, recording machines and installation of security systems, thus resulting in the increased spending patterns just before the end of the financial year. Examples of the courts completed during March in the last three years include Khayelitsha, Blue Downs and the Constitutional Court.

 

Most offices process performance bonuses towards the end of the financial year to avoid the carry over of the previous personnel budget against the new financial year.

 

Action taken: Draft formal response to the Minister of Finance prepared for the Minister.

11. Master's Office

11.1 The Master of the High Court is currently repositioning itself to properly align its people, systems and processes to its strategic objectives. As one of the core business units of the Department of Justice and Constitutional Development, the unit interfaces directly with the public through services.

 

11.2 Annually, approximately R18 billion circulate through the offices of the Masters by means of Deceased and Insolvent Estates, Companies and Close Corporations in Liquidation, Trusts and minors/mentally challenged persons funds. The economic engine of the country may be seriously affected if these funds are not administered expeditiously and efficiently.

 

11.3 The Department has taken a conscious decision to capacitate the Masters Office to meet the modern demands. The strengthening of the Master's office will lead to the reconfiguration of the current branch of the Master of the High Court into an office of the Chief Master with offices established at provincial level to enhance efficiency

[PMG note: table not included]

 

11.4 One of the key statutory functions of the Masters is the Management of the Guardian's Fund which is entrusted with the funds of minors, mentally challenged persons, unknown and/or absent heirs and creditors for administration on their behalf. The Master exercises a value judgement (guardianship) in the overall management of the fund hence the name "Guardian's Fund". The Guardian's Fund originates from and is regu~ated, inter ala, by the Administration of Estates Act no 66 of 1965, as amended.

 

11.5 The Fund is currently standing at approximately R2.5bn but likely to double (R5bn) in the next 5 to 10 years. This is mainly due to some of the critical factors such as the impact of HIV/AIDS, Government policies such as the recent policy on the SAPS personnel killed in the line of duty where a R200,000 will be paid into the Guardian's Fund in favour of the surviving children of the victim. In addition, the fact that the Fund attracts a more favourable interest rate in comparison with the going rate is another dimension to the projected growth in the fund.

 

11.6 The current organization structure for the Guardian's Fund does not promote our service driven business model. In order improve the situation, a proposed Guardian's Fund structure has been developed. This proposed structure calls for the creation of the following posts at National Office level:

[PMG note: tabled not included]

11.7 The estimated cost for the regions could not be determined in time as further work needs to be done to determine the correct levels and numbers in terms of the volumes, complexity etc of operations / activities at region/office level. It is however estimated to be in the region of R4,298,000, bringing the total for the Guardians Fund to R7,038,000.

 

12. Summary

12.1 In summary, the budget needs of the Department of Justice and Constitutional Development are (paragraph references refer to the text above):

Total R2,597,682,288