1. Report
of the Portfolio Committee on Justice and Constitutional Development on Budget
Vote 21: Justice and Constitutional Development, dated 23 June 2009
The Portfolio Committee on Justice and Constitutional Development, having
considered the budget of the Department, Vote 21: Justice and Constitutional
Development, recommends that it be passed. The Democratic Alliance abstained
from voting because it had not yet discussed the Department’s budget in its
caucus. The Committee further reports as follows:
1.
Introduction
1.1.
The
briefings on the budget of the Department of Justice and Constitutional
Development and the National Prosecuting Authority (NPA) took place on 17 June
2009.
1.2.
Those
appearing before the Committee included: Director General (DG), M Simelane;
Deputy Directors General (DDGs), S Jiyane, D Rudman (Legislative Development)
and V Shabalala (Corporate Services); (Acting) Chief Financial Officer (CFO), J
Johnson; Chief Director, P Du Randt (Court Services), (Acting) National
Director of Public Prosecutions (NDPP), M Mpshe; (Acting) Chief Executive
Officer (CEO) - NPA, K De Wee; (Acting) Deputy National Directors of Public
Prosecutions, S Mzinyathi and S Ramaite; (Acting) Executive Manager: Strategy -
NPA, K van Rensburg; Director: Public Prosecutions, R de Kock; (Acting) Special
Advisor - NPA, T Matzke; (Acting) DDG - Justice College, Julian Marsh;
Executive Manager: Communications - NPA, B Makeke; Executive Manager: Human
Resource Management and Development - NPA, M Modise; Executive Manager: Finance
and Procurement - NPA, G Hollamby.
1.3.
This
report includes an overview of the presentations made by the Department and the
NPA to the Committee. These focused mostly on their respective Strategic Plans for
2009/10 – 2011/12. The presentations can be obtained from the Committee
Secretary, Mr V Ramaano.
1.4.
This
report should be located in the context that the Committee was faced with time
constraints flowing from the parliamentary programme. As a result, it is not as
rigorous and forward-looking as the Committee would have liked it to be.
1.5.
This
was also the first time that the Committee had sight of the Department’s Strategic
Plan for the MTEF, which is still a draft. As a result, it was difficult for it
to engage as thoroughly as it would have wished on the details of the
Department’s plans. The Committee intends to rectify this. The value, however,
of covering key aspects of the Department’s presentation in this report is that
it provides the Committee with a useful basis to more effectively monitor the
Department’s progress and more rigorously fulfill its oversight role.
1.6.
To
allow it to fulfill its oversight work more effectively, the Committee intends
to have quarterly meetings with the Department to review progress on the
implementation of its Strategic and Business Plans. Among others, these
meetings will provide it with the opportunity to pursue many of the concerns
that it did not raise at the budget briefings.
2.
Overview of Department’s Strategic
Plan
2.1.
The
DG, Adv M Simelane, presented the Department’s Strategic Plan, as well as an
overview of its allocation for 2009/10. At a programme level, the DG outlined
the strategic objectives for the Administration, Court Services, and State
Legal Services programmes. These three programmes are directly within the
Department’s control. Court Services, in particular, is responsible for
providing the Department’s core function of managing the criminal and civil
justice system. The NPA gave its own presentation of its Budget and Strategic
Plan, which is set out in section 2.9 below. The DG also gave a brief input on
the allocation to the Auxiliary and Associated Services programme.
2.2.
The
Department’s vision is to provide accessible and transformed justice services
committed to the promotion of Constitutional values. The DG referred to the
Department’s key policy priorities, which are to enable access to justice for
all; enhance organisational efficiency; and transform the legal and justice
system.
2.3.
To
ensure that justice is accessible to all, the Department aims to align the justice
system with constitutional requirements and to bring services closer to previously
disadvantaged communities. The DG mentioned a number of key objectives:
·
Building
courts and providing justice services to disenfranchised communities. The intention
is to build 11 new courts by 2011/12. It is questionable that this will be
enough. The DG reported that the Department has been allocated approximately
R450 million for buildings and other fixed structures, but that this amount is
inadequate. The Department is also in the process of transforming 46 of the 230
branch courts so that they can provide full court services.
·
Working
together with community organisations to improve the provision of services. The
DG mentioned that the Department works closely with community development
workers in this regard.
·
Ensuring
that courts use the language(s) common to the communities in which they are
located. People should be able to use their language of choice in courts where
possible. This, however, gives rise to logistical challenges and there are
costs implications, especially if the matter goes on appeal and the record must
be translated.
·
Informing
communities of their rights (together with the Chapter 9 institutions).
·
Protecting
the rights of women and children, the poor and others who are vulnerable.
·
Improving
access to courts and other justice services for persons with disabilities.
2.4.
The
DG emphasized the modernisation of the Department’s Information Technology (IT)
systems as key to enhanced organisational efficiency. This includes ensuring
that staff are provided with the appropriate ‘tools of trade’ to allow them to
perform their work optimally. An advantage of capturing documents
electronically is that they are more easily secured. This means, for example, far
fewer cases of dockets going missing. The Department, however, has recognised
that external users may experience difficulties accessing information, etc, now
available electronically. (External users do not always have the IT knowledge
or tools to access this information).
2.5.
On
the goal of transforming the legal and justice system, the DG commented on the need
for a common understanding of the transformation agenda. He mentioned the
following activities:
·
The
Criminal Justice System (CJS) Review is ongoing. More recently, the Department
has begun a process of reviewing the civil justice system in conjunction with
the Rules Board.
·
The
Master’s Office now uses an electronic system (it previously relied on a manual
system). While there has been an improvement in the services provided, a
challenge is to ensure that all services offered are available throughout the
country.
·
Promoting
judicial transparency. Engaging with the public on the reasons for court decisions
will promote judicial transparency and deepen public understanding of the
judicial process.
·
Implementing
the TRC’s recommendations. Regulations have been proposed to allow reparations
to be paid to communities.
2.6.
Programme 1: Administration
2.6.1.
The
Administration programme deals with the Department’s administrative functions;
and the development of strategies and policies for the efficient administration
of justice. It comprises five
sub-programmes, namely Minister, Deputy Minister, Management, Corporate
Services and Office Accommodation.
2.6.2.
It receives
R1.03 billion, which is 9.8% of the Vote (10.75% of the Department’s budget
excluding direct charges for magistrate’s and judges salaries). The Corporate
Services sub-programme dominates expenditure under this programme, consuming
50% of the programme’s budget. Office accommodation follows with 43%.
2.6.3.
A
challenge is the amount that the Department spends on office accommodation. The
DG commented that it may be more cost effective for government to buy its own
buildings instead of renting offices.
2.6.4.
The DG
highlighted the following key strategic objectives for this programme:
·
Building
human resource capacity, especially the filling of 2741 vacancies (this number excludes
the NPA). The DG mentioned that salaries are an important reason for
difficulties in retaining staff. The NPA is likely to lose Senior Prosecutors
to the Magistracy because of the recent increase in the Magistrates’ salaries,
although the Department hopes to curb this through the implementation of the Occupational
Specific Dispensation. Although overall the vacancy rate in the Department is
now about 12%, filling posts for magistrates, judges and prosecutors is a real
problem. Filling these vacancies is vital for dealing with crime
effectively. The DG noted that the
Department has not yet met employment equity targets of at least 50% women at
senior management level and 2% persons with disabilities.
·
Providing
training to staff (50%). The DG mentioned that training must take place in such
a way that there is minimal disruption to service delivery.
·
Strengthening
the Department’s financial management systems to ensure unqualified audits,
full compliance with the prescripts of the supply chain management procedures
and ensuring integrated reporting systems. The Department received a qualified
audit in 2006/07 and 2007/08, but is attending to the problems that were
raised. The DG noted the need to strengthen supply chain management procedures
but that the problems experienced could be resolved largely by training.
·
The
efficient management of Third Party Funds. This recurring problem, which has
contributed to the Department receiving unfavourable audit opinions in previous
years, is being rectified through the rollout of the Management of Monies in
Trust Public-Private Partnership (MMT PP) (by 2010/11).
·
Performance
management and reporting (annual and quarterly reports). Quarterly reports are
now available.
·
Modernising
the Department’s IT systems.
·
Managing
corporate risks and improving corporate compliance and accountability,
including securing 127 justice service delivery points with integrated justice
infrastructure. The DG highlighted that security at courts is a challenge that
needs greater attention. However, efforts at improving security are hampered by
a shortage of funds.
·
Promoting
international co-operation and complying with international obligations with
identified countries, including providing mutual assistance and extradition.
2.7. Programme 2: Court Services
2.7.1. The Court Services programme provides and
manages efficient court services, and facilitates the resolution of criminal,
civil and family law matters. The DG mentioned that this programme also plays a
role in developing policy, and that from next year its title would reflect
this.
2.7.2.
It is
a priority programme of the Department and receives 34% of the Vote. Court
Services has 10 sub-programmes:
2.7.3.
Court
Services receives R3.9
billion for 2009/10. The Lower Courts sub-programme dominates
expenditure receiving 65% of the overall programme allocation. This is in line
with the Department’s objective of improving access to justice and services,
and is correct given that the Lower Courts are the busiest. He also commented
that the allocation to the
2.7.4. Key strategic objectives identified by the
Department for this programme focus on:
·
Bringing
justice services closer to all by increasing the number of courts (11 courts by
2011/12); replacing 46 of the 230 branch courts with full court services; redesignating
and providing an extra 9 branch courts by 2011/12; ensuring that courts are
ready for the 2009 Confederations Cup and 2010 FIFA World Cup; and extending
the use of indigenous languages to at least 2 courts per province.
·
Promoting
and protecting the rights of children. This includes the implementation of the
Child Justice Act and improving child maintenance services by means of
Operation Isondlo.
·
Providing
adequate Family Law services through the office of the Family Advocate. The
Children’s Act has greatly increased the Family Advocate’s workload.
·
Designating
180 Small Claims Courts by 2010 to deal with civil claims for smaller amounts.
The Department will provide the relevant statistics.
·
Reducing
sexual and domestic offences, entailing the establishment of a Victim-Centred
Referral system; mainstreaming of specialised sexual offence courts; and
support for the establishment and management of the National Register for sex
offenders (which comes into effect on 1 July 2009).
·
Reviewing
the civil justice system in conjunction with the Rules Board, as well as
extending the civil jurisdiction of regional courts.
·
Increasing
the effectiveness and efficiency of the Criminal Justice System (CJS) by
implementing the solutions identified as part of the CJS Review. The Department
is able to provide regular reports on progress in implementing the Review.
2.8.
Programme 3: State Legal Services
2.8.1.
This
programme includes the Government’s legal and legislative services;
administration of deceased and insolvents estates and the Guardian’s Fund (the
Master’s Office); the preparation of legislation; and the introduction of
constitutional amendments. Spending on this programme is organised into four
sub-programmes, namely State Law Advisors; Litigation and Legal Services;
Legislative Development and Law Reform; and Master of the High Court.
2.8.2.
The
programme receives R570 million for 2009/10, which comprises 4.8% of the Vote.
Within the programme, the Master of the High Court sub-programme receives 51%
of the overall programme allocation. The DG noted that he expects increased
litigation against government and that it may be necessary for the Department
to reassess the allocation to this programme in future.
2.8.3.
Key
strategic objectives for this programme include:
·
Researching
and developing legislation to transform justice, state and society as well
promote access to justice. (The Department plans to submit 11 research
publications for consideration and approval, as well as introduce 12 Bills and
subordinate legislative instruments).
·
Developing
programmes giving effect to the Constitution. This entails developing
programmes aimed at promoting PAJA, PAIA and PERPUDA, as well as promoting
awareness of the rights contained in the Constitution.
·
Assisting
and enhancing collaboration with the Chapter 9 institutions.
·
Strengthening
participative democracy by strengthening the role of civil society in promoting
a human rights culture.
·
Reduction
of state liability by entering into service level agreements with client
departments and reducing reliance on private legal services. The DG mentioned
that there is draft legislation to address the
·
Providing
legal advisory services to government.
·
Administering
deceased and insolvent estates. Specific targets are to provide beneficiaries
of the Guardian’s Fund with access to their funds within 60 days of application;
as well as completing registered deceased estates worth less than R125 000
within 4 months. The target for completing estates worth more than R125 000 is
set at 12 months.
·
Co-ordinating
and implementing the TRC recommendations.
2.9.
Programme 4: National Prosecuting
Authority
2.9.1.
The
Acting National Director of Public Prosecutions, Adv M Mpshe, provided an
overview of the NPA’s Strategic Plan 2009-2012.
2.9.2.
This
programme provides for prosecution services, witness protection (particularly
in serious criminal cases), and the investigation and prosecution of serious,
complex and organised crime, and aims to remove the profit from crime.
Expenditure under this programme is organised into four sub-programmes: Public
Prosecutions, Witness Protection, Directorate of Special Operations, and the
Asset Forfeiture Unit.
2.9.3.
Adv
Mpshe highlighted that the NPA has recently adopted the following values
informing its work: Integrity, accountability; service excellence;
professionalism and credibility.
2.9.4.
The
National Prosecuting Authority (NPA) programme receives R2.5 billion for
2009/10. This is 12.1% of the Vote.
2.9.5.
The
challenge of filling vacancies was mentioned. The vacancy rate is 22%. This
affects achieving the target of employing two prosecutors for each court. While
the NPA is able to bring people in at the lowest level through its aspirant prosecutor
programme, it struggles to recruit more external candidates at a senior level,
although the hope is that the OSD will make a difference, allowing the NPA to
target practicing legal professionals. However, there is a shortage of funds to
implement the OSD, and the NPA will need to approach National Treasury to
request an additional allocation.
2.9.6.
A
related challenge is that the cost for each employee within the NPA far exceeds
the NPA’s budget for compensation of employees.
2.9.7.
The
shortage of office accommodation for prosecutors was once again highlighted.
2.10.
Programme 5: Auxiliary and
Associated Services
2.10.1.
This
programme provides for a variety of auxiliary services associated with the
Department’s aims. Expenditure under this programme is mostly in the form of
transfer payments to the Office for the Control of Interception and Monitoring
of Communication, the South African Human Rights Commission (SAHRC), the
Commission on Gender Equality (CGE), the Special Investigating Unit, the Legal
Aid Board (LAB), the Public Protector, Justice Modernisation (National Crime
Prevention Strategy), the President’s Fund and the Represented Political
Parties Fund.
2.10.2.
This
programme receives R1.7 billion in 2009/10. As has been the case in past
financial years, the Legal Aid Board sub-programme dominates expenditure,
receiving 50% of the allocation to the programme. The next biggest
sub-programme is Justice Modernisation, which receives 22% of the overall
programme allocation.
3. Overview of Department’s Budget
3.1.
The
main appropriation to the Department increases from R8.5 billion in the 2008/09
financial year to R9.6 billion in 2009/10. This amount does not include a
direct charge against the National Revenue Fund of R1.8 billion for judges and
magistrates’ salaries, which brings the main appropriation for 2009/10 to R11.3
billion.
3.2.
The
DG provided an overview of key financial aspects of the budget:
·
In
2008/09, the Department spent R8.4 billion or 99% of its final Budget, which is
a significant improvement on its expenditure in 2006/07, which was 92.4% of its
final Budget. Analysis of spending per economic classification reveals that
difficulties in expenditure occurred mainly in connection with “payments for
capital assets”.
·
Over
the MTEF, the Department receives new allocations to its baseline of R530.1
million in 2009/10; R684.3 million in 2010/11; and R812.7 million in 2011/12.
3.3.
The
following achievements relating to the Department’s financial management in
2008/09 were highlighted:
·
Expenditure
has increased from 92.7% in 2006/07 to 99% in 2008/09.
·
Within
the year, spending has improved and the March spending as a percentage of total
spending has decreased from 16% in previous years to 8.6% in 2008/09.
·
The
Department was able to absorb Occupational Specific Dispensation (OSD)
expenditure of R280 million within its baseline through reprioritization and
cost curtailment. The DG commented that a separate allocation for implementing
the OSD should be made available, and that the Department is keen to engage further
with the Committee on this.
·
Early
reprioritization of funds funded the OSD (R280 million), guarding services (R20
million), Cash-in-Transit (R20 million), Masters Office (R38 million) and the
opening of new courts (at Tiyani and Northam).
·
Efficiency
gains have been used to fund internships, learning and development and
recruitment; library services in various provinces and the Virtual Library; IT;
Constitutional development programmes; Language services; Risk management
(Cash-in transit, guarding services and security); enhancing financial capacity
in the regions; implementation of the Children’s Act and Criminal Law (Sexual
Offences) Amendment Act, including the appointment of intermediaries and
children’s court clerks.
3.4.
The
Department expects the following spending pressures in the medium term:
·
The
need for additional office accommodation and court infrastructure.
·
At
present, the Department is funding new courts without additional allocations
for personnel and operational expenditure.
·
Regions
also need additional capacity in the form of more personnel, particularly court
(interpreters), finance and supply chain management personnel.
·
Implementation
of the OSD for legally qualified personnel.
·
Additional
investment in IT infrastructure.
·
The
Department plans to replace 46 of the 230 branch courts to provide full court
services by 2010/11 to increase access to justice services especially in
townships and rural areas.
·
The
Department is also promoting increased multilingualism in the courts.
·
The
implementation of new legislation requires funding (Civil Jurisdiction of
Regional Courts Act; Child Justice and Children’s Act; Traditional Courts Bill;
Superior Court Bill).
·
127
justice service delivery points need to be secured by putting in place the
necessary infrastructure. Security for personnel, records and assets also need
enhancing.
·
The
implementation of the Review of the Criminal Justice system.
·
Increased
capacity to provide legal assistance to government to reduce state liability,
and to reduce reliance on private legal services from 70% to 30% by 2010/11.
3.5.
The
DG highlighted the number of vacancies of magistrates, judges and prosecutors
as a particular challenge. The need for additional court infrastructure and
accommodation for prosecutors was also identified as a key problem that might
require a separate/additional allocation.
3.6.
The
DG drew attention to an amount of R200 million which has been earmarked for the
reduction of the criminal case backlog.
4.
Committee’s Response
4.1.
As
mentioned previously, the Committee was unable to engage fully with all that
was presented to it at the briefing because of time pressures. We believe that continuing
interaction between the Committee and the Department in the form of quarterly meetings
will allow for more rigorous and forward-thinking dealings. The Committee also
welcomes the Department’s undertaking to make available written responses to
all the issues that the previous Committee had raised in its 2008/09 Budget
report, as well as make available to it the quarterly performance reports that it
now produces routinely. These, we believe, will be of great assistance.
4.2.
It
is essential for the Committee to have the input of Chapter 9 institutions and the
other institutions listed under the Auxiliary and Associated Services programme
on their budgets and strategic plans. In many instances, the Department merely
acts as a conduit when it comes to the allocation of funds. Accordingly, the
Department is not well placed to provide sufficient information on the planned
activities of these institutions for 2009/10. The Committee intends to engage
with each of these institutions on their respective plans for 2009/10 (and
beyond) as soon as possible.
4.3.
It
is a particular concern that the Committee did not hear from the Legal Aid
Board regarding its budget and plans, given the importance of the role it plays
in the criminal justice system. As mentioned in 4.2. above, the Committee will interact
with the Legal Aid Board on its Strategic Plan and Budget.
4.4.
The
Committee is concerned at matters that the Auditor-General raised. In 2007/08,
the Department received a qualified audit opinion for 2007/08, while the NPA
received a disclaimer. The Committee is pleased that work is being done to
address these problems, some of which are raised year after year. The Committee
looks forward to receiving a report from the Department on progress made, and
will continue to monitor this routinely. Similarly, the Committee will closely
monitor the NPA’s progress in addressing the AG’s concerns.
4.5.
The
Committee is pleased at the improvement in the Department’s financial planning
and management reported in 3.3 above. In particular, the Committee is very
pleased to hear of the Department’s progress in addressing the problem of its
under-expenditure, as well as its use of efficiency gains and reprioritised
funds. However, there needs also to be value in the money spent. This can only
be measured against clearly defined and measurable outputs and outcomes, as set
out in the Strategic Plan and Business Plan. While its objectives are laudable,
the Committee wishes to understand better how the Department intends to go
about reaching its goals, and intends to engage more closely with the
Department on the details of its Strategic and Business Plans at the next
quarterly meeting.
4.6.
While
it acknowledges that there has been some progress in addressing the problem of
vacancies, the Committee remains extremely concerned at the vacancy rates in
both the Department and the NPA. The vacancies in the ranks of magistrates,
judges and prosecutors are a severe problem. It is also particularly worrying
that so many of the NPA’s top management are appointed in an acting capacity,
or fill two positions. Given the seriousness of the problem, and its potential
to undermine the ability to deliver justice services, the Committee does not
accept the explanation given for the ongoing difficulties experienced in
filling vacancies. The Committee intends, however, to pursue this matter with
both the Department and the NPA.
4.7.
The
Committee is concerned that the construction of courts is so grossly
underfunded, as the construction of more courts and the transformation of
branch courts to full courts are important for the achievement of the Departments
high-level goals. While there appears to have been some progress in building a
High Court in Limpopo, the Committee does not accept the Department’s
explanation of its inability to secure a suitable location for a High Court in
4.8.
The
issue of office accommodation is an ongoing problem for the Department and the
NPA. The Committee intends to pay close attention to this matter in future. Although
the Committee was given an explanation regarding the situation at the Innes
Chambers building, it was not entirely clear to the Committee how this
situation came about. It was also not clear to the Committee what is being done
to address the problem. The Committee has requested that the NPA provide it
with a detailed report on this matter.
4.9.
The
Committee is very pleased to hear of the many initiatives aimed at modernising
the Department’s systems. In particular, the transition from a manual to an
electronic system in the Office of the Master of the High Court is extremely
welcome, although the Committee has received complaints from the public
regarding this Office. The Committee accepts that there are bound to be
problems initially as the system is rolled out, but requests quarterly reports
on progress made.
4.10.
The
Committee is very keen to engage further with the Department on the progress
made on the Criminal Justice System Review. It also welcomes the proposed Review
of Civil Justice System, and looks forward to hearing in more detail from the Department
on this.
4.11.
The
Committee is concerned that a lack of budget has hindered the Department in
addressing inadequate security at our courts.
The Committee will pursue this matter with the Department at the
Committee’s next quarterly meeting on progress on implementing the Department’s
Strategic and Business Plans.
4.12.
The
Committee notes that, if approved, the Regulations before Cabinet will allow
for the release of funds from the President’s Fund for community reparations.
4.13.
The
Committee questioned what is to happen to the allocation to the DSO. While it
understands the principle that ‘the funds will follow the function’, it
nevertheless requests that the Department and NPA keep it informed.
5.
Appreciation
5.1.
The
Committee thanks the Director General, Adv M Simelane, and the (Acting)
National Director of Public Prosecutions, Adv M Mpshe, and all those who
appeared before the Committee for the Budget briefings for their co-operation.
Report to be considered