Report of
the Select Committee on Security and Constitutional Development on Budget Vote 24:
Justice and Constitutional Development, dated 08 June 2011
1. Introduction
The Select Committee considered the strategic plan of the Department of
Justice and Constitutional Development (the department) and its budget
allocation on 12 April 2011 and reports as follows:
The officials presenting on behalf of the Department of Justice and
Constitutional Development comprised:
·
Dr K De Wee, Chief Operations Officer
·
Mr P Du Rand, Acting Deputy Director General
·
Mr D Mpholo, Chief Director: Human Resources
·
Ms T Ramanyimi, Chief Director: Facilities manager
·
Mr L Basson: Acting Chief Master
·
Ms K Pillay: Acting Chief
·
Mr D Rudman: DDG Legislative Development
·
Mr S Robbertse: State Law Advisor
·
Mr J Johnson: Acting Chief Financial
Officer
This report provides an overview of the presentations made by the Department
of Justice and Constitutional Development.
The focus of the briefings included Budget Vote 24 and the Strategic
Plan for 2011/16.[1]
2.
Overview
of Proceedings
2.1 Summary of the vote
The department has five
programmes:
·
Administration;
·
Court
Services;
·
State
Legal Services;
·
National
Prosecuting Authority allocation; and
· Auxiliary and Associated services
Table 1: Overall programme
allocation for the MTEF: 2010/11 – 2013/14
|
Budget 2010/11 – 2013/14 |
||||
|
Programme |
||||
|
R
thousand |
2010/11 |
2011/12 |
2012/13 |
2013/14 |
|
Administration |
1
427.4 |
1
625.2 |
1
728.9 |
1
833.1 |
|
Court
Services |
3
994.2 |
4
341.7 |
5
096.1 |
5
408.7 |
|
State
Legal Services |
722.1 |
750.7 |
782.2 |
806.1 |
|
National
Prosecuting Authority |
2
684.3 |
2640.3 |
2
770.7 |
2
914.6 |
|
Auxiliary
and Associated Services |
1
959.5 |
2
055.7 |
2
296.4 |
2
446.7 |
|
Total |
10
787.5 |
11
413.6 |
12674.3 |
13 409.2 |
|
Direct charge for Judges and Magistrates’ salaries |
1 929.8 |
2 104.1 |
2
401.8 |
2
575.7 |
|
Total |
12
717.2 |
13
517.6 |
15 076.1 |
15 984.9 |
2.2
Strategic Priorities
Dr De Wee provided an overview of the DoJ&CD
strategic objectives and allocations for the 2011 – 2016 MTEF cycles.
The DoJ&CD strategic plans were drafted according
to the new National Treasury Framework that describes a strategic plan as a
plan that identifies strategically important outcomes and orientated goals and
objectives against which the public institutions’ medium term results can be
measured and evaluated by Parliament, provincial legislatures and the public.
2.2.1 The mandates of the
DoJ&CD informing its strategic priorities
a) Within the DoJ&CD’s broader Constitutional
mandate, the department had distilled its mandate into two parts namely,
i.
to
provide an environment for the effective
and efficient administration of justice; and
ii.
to
promote constitutional development through the development of legislation and to
implement programmes to deepen and
nurture our constitutional democracy.
b) The DoJ&CD has legislative mandates that are
relevant to its strategic priorities.
These are:
i.
The
establishment and functioning of the superior courts, magistrate’s courts and
special courts;
ii.
The
appointment of judges and magistrates, their conditions of service, discipline
and training;
iii.
The
establishment and functioning of the National Prosecuting Authority, the
conduct of criminal proceedings, investigation of organised crime and
corruption and the forfeiture of assets obtained through illicit means;
iv.
The
establishment and functioning of bodies responsible for legal aid, law reform;
v.
The
support to Chapter Nine institutions (the Human Rights Commission Act, 1994,
and the Public Protector Act, 1994).
vi.
The
appointment of masters of the high courts and the administration of the
Guardian’s Fund and deceased and insolvent estates;
vii.
The
provision of legal advisory services to government departments;
viii.
The
enforcement of people’s rights (the PAJA, PAIA and PEPUDA); and
ix.
The
protection of vulnerable groups (the Child Justice Act, 2008, Sexual Offences
and Related Matters Amendment Act, Maintenance Act, etc.
c) The DoJ&CD
also aligns the policy mandates of government within its strategic objectives.
These are:
i.
JCPS Cluster Delivery Agreement
The Minister has an executive responsibility of
coordinating and leading the JCPS cluster. Through its leadership of the
cluster, the department monitors and coordinates the overall implementation of
cluster strategies and activities.
ii.
Transformation of the judicial system
The transformation of the judicial system entails the
following key programmes:
•
Institutional reforms to strengthen the Office of
the Chief Justice (R117 million in 2011/12)
The Constitution Eighteenth Amendment seeks to affirm the Chief Justice
as the head of the judiciary with the responsibility of developing and
monitoring the implementation of norms and standards for the exercising of
judicial functions. Other initiatives include the Judicial Service Commission
Act 2008, which establishes a Code of Judicial Conduct, regulations on Judges’
Registrable Interests and establishment of the Judicial Education Institute.
•
Rationalisation of the superior courts
The Constitution Amendment Bill and the Superior
Courts Bill seek to give effect to the
•
Re-alignment of magisterial districts with municipal
districts (R10 million in 2011/12)
The department continues to implement programmes that
seek to correct the old magisterial districts that were based on homelands and
the former RSA territory. The transformation entails giving adequate jurisdiction
to these courts to function as fully fledged courts.
•
Review of the civil justice system (R5 million in
2011/12)
Intermediate legislative interventions have been
implemented to address some of the pressing gaps in the lower courts. These
include the amendment of the Magistrate’s Courts Act, 1944, to extend civil and
divorce jurisdiction to regional courts and increase the number of Small Claims
Courts.
2.3. Challenges faced by the Department in fulfilling
its mandate
The department reported that
it faced a number of
challenges in meeting its legislative and constitutional mandates. These are
grouped together under the following headings:
·
Financial
challenges
·
Internal
processes
·
Customers
·
People
issues
2.3.1
Financial challenges
The departmental operational budget was reduced by over R2.1 billion for the MTEF
period from 2009/10 onwards. The following areas were adversely affected:
a) Information and
Communication Technology (R260 million in 2011/12)
Investment in IT has been identified as one of the
key enablers for the department. The
budget cuts affected the maintenance plan of IT infrastructure resulting in the
following problems:
•
Ageing
servers and other infrastructure;
•
Out
of warranty servers that pose a high operational risk;
•
An
inadequate business continuity plan; and
•
Slow
network impacting negatively on the turn-around in service delivery.
To address these challenges,
the department will:
•
Continue to engage the donor community for funding of the shortfall; and
•
Consider IT
services that can be performed in-house and save costs
b) Escalating safety and
security costs
The department has experienced serious crime related
incidents against staff members and the public on its premises such as
intimidation, murder, theft of state assets, theft of case dockets, court
records, escapes and robberies with aggravating circumstances.
To curb these costs, a decision was taken to explore
the possibility of using the South African National Defence Force (SANDF) to
secure the department’s service points. Discussions are underway and are
expected to be concluded during the tenure of the current security
contracts.
c) Infrastructure and
expansion of justice services (R640 million in 2011/12)
The department must address the historical imbalances
relating to court infrastructure. This is complicated by the following:
i.
Escalation
of infrastructure costs above inflation, which means the cash flow for building
new courts is often insufficient and results in postponements in construction;
ii.
Balancing
the need for additional courts with the maintenance and accessibility programmes
of existing courts;
iii.
Using
infrastructure budget for additional accommodation; and
iv.
The
growth in the establishment numbers and new areas of services.
To address the above challenges, the department will
explore alternative funding methods, such as:
i.
Build,
operate and transfer (BOT); and
ii.
Public-private
partnerships (PPP).
d) Litigation against the
state (R257 million in 2011/12)
Litigation against the state has increased due to the
following factors:
i.
Progressive
demands regarding the rights of citizens due to increased awareness;
ii.
Opportunistic
litigation against the state;
iii.
Fragmented
approach in the management of state litigation resulting in ineffectiveness;
and
iv.
Lack
of an effective framework to invoke alternative dispute resolution mechanisms.
The following interventions will be implemented to
curb the spiralling cost of litigation:
i.
Develop
a policy framework for the efficient management of state litigation.
ii.
Capacitate
and enhance the Office of the State Attorney by increasing resources (human,
financial and infrastructure).
iii.
The
preparation and implementation of standardised fee structures for the payment
of private counsel.
iv.
Development
of an alternative dispute resolution process to either avert litigation or
enable the settlement of matters outside the formal court process.
e) Other financial pressure
points
Other areas that have been severely affected by
budgetary constraints are the following:
i.
Increasing
the establishment of the lower courts and providing the Judiciary (especially the
Magistracy) with adequate tools of trade. (R220 million over MTEF period)
ii.
Expansion
of the support personnel establishment in the courts (interpreters, finance and
supply chain management personnel) as well as the personnel who perform
quasi-legal functions relating to default judgments, court orders, warrants of
execution, etc.
iii.
Implementation
costs of new and proposed legislation. (R86 million (2011/12), R202 million
(2012/13) and R213 million (2013/14))
iv.
Document
and record management. (R50 million p.a. over 3 years)
v.
Adequate
provision of library services to the various courts and support services to the
Judiciary.
vi.
Enhancement
of constitutional development programmes. (R64 million in 2011/12)
2.3.2 Internal processes
a) Financial
Management
The Auditor General has expressed qualified opinions
relating to financial management and non-compliance with procedures.
In 2008/09 the department improved on its
qualifications and brought the Third Party Funds, assets, leases, leave and
irregular expenditure down. The department has two issues: Third Party Funds
and irregular expenditure (PPPFA compliance) during 2009/10.
Indications are that the department may have a repeat
finding on the Third Party Fund for the 2010/11 financial year but is aiming
for an unqualified audit finding in 2012/13.
b) Fraud and corruption
The department experienced an increase in the number
of fraud and corruption cases in comparison to the previous two financial
years.
The department is committed to the implementation of
the Minimum Anti-corruption Capacity Requirements (MACC) set as a public
service anti-corruption standard, and is involved in a number of public service
anti-corruption fora and interventions driven by the JCPS cluster.
The department is increasing its capacity in
enterprise risk management to deal with fraud risk assessments in an improved
manner and conduct more environmental scans to assist individual managers to
manage their risks better.
2.3.3
Customers
a) Masters’ Services (R324
million in 2011/12)
The department entered into an agreement with Legal
Aid
•
Minimise
deceit and fraud against minor heirs;
•
Improve
the speedy access of minors to the benefits of the estate to alleviate their
suffering; and
•
Limit
the exposure of small estates involving minors to legal fees.
b) MOVIT
Project (Master’s Branch)
The Home Affairs National Identification System
(HANIS) was adapted through the Integrated Justice System (IJS) to suit the
Master’s environment to verify clients. The use of this technology has
substantially improved the turnaround time of payments. In addition, the
Integrated Case Management Systems (ICMS Master) has been deployed to all 402
magistrate’s offices that deal with deceased estates.
The Master’s turnaround
project aims to:
i.
rebrand the Master's services to deliver a highly
professional service;
ii.
build a strong service ethos, which include, among
others, identification tags, uniforms and contact details of senior managers;
iii.
identify and up-skill frontline staff to handle a wide
range of enquiries; and
iv.
increase accountability within all offices of the
Master and the department.
In addition, the department
will:
•
Maximise the IT systems that have been implemented;
and
•
Initiate disciplinary hearings against cases of fraud
by members of staff and refer matters to SAPS where necessary.
c) Maintenance Services
In 2011/12, a turnaround plan for maintenance
services will be implemented. This includes expediting application procedures,
application processing, payments and punitive measures for defaulting parents.
The maintenance turnaround
project that will be implemented during the 2011/12 financial year will address
the following:
•
Service improvement
•
Upgrading of skills for frontline staff
•
Improved management of customer complaints
•
Launch of an improved media and awareness campaign
•
Business process improvements
•
Amendment of legislation
d) The Case Backlog Project
(R224 million for DOJ, NPA and LASA for 2011/12)
The case backlog reduction intervention is aimed at
reducing the number of backlog cases in the regional and district courts. The
aim of the backlog intervention is to ensure that the inflow of the number of
new cases is balanced by the number of matters concluded.
From the inception of the backlog reduction
intervention in November 2006 until the end of December 2010, 32 650 criminal
cases were disposed of in the additional backlog courts comprising:
•
21
706 cases finalised with a verdict;
•
9 708
cases withdrawn; and
•
1 236
cases transferred.
For the 2010 financial year (April to December 2010),
the total number of cases disposed of by the district and regional court rolls
was 12 702. The backlog interventions are continuing in 2011/2012.
The department provided resources in the form of
Infrastructure, court personnel, magistrates and budget.
Finalisation of these cases is largely influenced by
the Judiciary and Prosecution.
e) Implementation of the
JCPS delivery agreement and the CJS 7-Point
Plan
The cluster has adopted an integrated approach to the
fight against crime, and will continue to improve prevention, detection,
investigation and prosecution of crime in the pursuance of cluster coordination
and activities relating to Outcome 3.
Various protocols have received attention in terms of
the implementation of the Seven-point Plan, e.g.
•
The Bail Protocol;
•
The Reduction of Regional Court Case Backlogs Project;
•
The Forensic Chemistry Laboratories (FCL) Protocol;
•
The
Court Screening Protocol; and
•
The
Legal Aid Court Protocol.
f) Customer Service
The department reported that
it finalized the consultative process on the Service Charter and Service
Standards. The department is waiting for approval by the Executive Committee.
The department is currently strengthening its
capacity to address the complaints received via the Presidential Hotline. It
reported that it has skill shortages, and under-representation of women and
people with disabilities, low productivity and low moral that impact service
delivery.
2.3.4
People issues
a) Relationship with
Chapter 9 institutions
Section 181(2) of the Constitution provides for the
independence of the Chapter 9 institutions and section 181(3) requires that
“other organs of state through legislative and other measures must assist and
protect these institutions to ensure the independence, impartiality, dignity
and effectiveness of these institutions”.
The department will continue to assist and protect
Chapter 9 institutions by:
•
Facilitating
the budgetary process and assisting with financial arrangements;
•
Promoting
proposals emanating from the reports of those institutions;
•
Ensuring
compliance with section 181(3) of the Constitution (assistance to Chapter 9
institutions);
•
Evaluating
and investigating the legislation establishing Chapter 9 institutions; and
•
Promoting
and maintaining communication channels between Chapter 9 institutions and the
state.
3. Committee Response: Questions/Issues to
Consider
Members of the Committee raised a number
of questions and issues to the department.
3.1
Transformation within the department
The committee welcomed the presentation but noted that the
presentation did not speak to the matter of transformation within the
Magistrates Commission and the department’s commitment to eradicate the acting
positions. The committee requested the department to provide figures for
magistrates that were appointed in an acting capacity in the whole of
3.1
a) Department’s response
The department explained the process for appointing a
permanent magistrate. There were three different categories of acting posts
within the department.
i.
There
were magistrates acting whilst the posts were vacant. In the past financial
year there were 91 vacant posts that were filled by acting magistrates whilst
the department advertised to fill the positions.
ii. The second category of acting position
was when the department had to appoint acting magistrates for other sick
magistrates. This occurred on a daily basis.
iii. The third category was acting magistrates
appointed on a contract basis to provide additional capacity within the department.
This occurred when the department addressed the case backlogs. The department
received additional money from National Treasury to fund this specific project.
The department had appointed 56 regional court magistrates, 17 district court
magistrates and would continue with those appointments in the new financial
year. When the department appoints acting magistrates it also appoints a
prosecutor, an interpreter, a clerk and a Legal Aid representative to ensure a
full complement that would allow the court to function.
The department advertised the third category posts as
contract posts that would be periodically renewed. The department deals with it
on a contractual basis because the National Treasury had ring fenced the monies
for a specific purpose and time period. The National Treasury can withhold that
money at any time and it was for this reason that the department contracts on a
year to year basis. At the end of the year National Treasury assessed the
performance of the backlog courts and either allocated funding or removed it.
Many of the magistrates that applied were attorneys or
advocates or private practitioners. The magistrates may, at any point, when
there were vacancies for permanent positions in the department, apply for such
positions. It was up to the magistrate
to decide whether he wanted to stay in the contractual acting position.
The department had identified a need for additional capacity
within the establishment. It needed a further 12 regional court posts on a
permanent basis. These posts were created and advertised and were in the
process of being filled. The department committed to supplying a written report
on all the vacancies in the country per court. The department noted the
committee’s frustrations but also noted that the money covered in the
presentation was for the additional magistrates on an acting appointment in
terms of the backload case reduction programme. The salary for magistrates
comes from the state revenue fund and was a direct charge that was not included
in the department’s budget.
The department requested that the committee bear in mind
that it did not appoint the magistrates. Appointments were dealt with by the
Magistrates Commission. The vacancies would therefore fall within the
Magistrates Commission’s scope of work. The removal of a magistrate was also
not the department’s mandate and would fall to Parliament to authorise. The
Minister had appointed a new head of the Magistrates Commission and the department
therefore expected to see the transformation agenda move forward.
The department had 1694 magistrates. There were 442 African male magistrates or
26% of the total. There were 249 African female magistrates amounting to 15%.
There were 60 Indian males, 89 Indian females, 77 Coloured males, 52 Coloured
females, 478 White males, and 247 White females. Black generic males amounted
to 34%, white males 28%. Black generic females amounted to 23% and white
females 15%.
The judges total 226. There were 70 African males, 22
African females, 14 Coloured males, 7 Coloured females, 10 Indian males, 12
Indian females, 73 White males and18 White females.
The department noted that there had been improvement in the
figures but not as much as expected.
3.2
New court infrastructure
The committee noted that the proposed new court in Mamelodi
had soil turned by the previous minister but the budget to implement the
building project was not allocated. The department was requested to clarify the
slow pace of delivering new courts buildings. There also appeared to be a trend
whereby the affluent areas received new services and upgrades but the rural
areas, where the need was, received nothing. The committee requested
information on the upgrades to courts to facilitate access by disabled
individuals to court complexes.
3.2
a) Department’s response
The department agreed that 2 courts per annum were not
enough. The department agreed that the FIFA World Cup experience taught
valuable lessons but the problem lay with the department’s insufficient budget
allocation. The department not only had to build capital projects but also had
to maintain existing structures. This severely constrained the department in
building more courts. The department also had to rehabilitate other courts and
therefore some new courts, like Mamelodi, had to be delayed. The department was
currently working on maintaining three courts; the Ntuzuma court in Kwa-Zulu
Natal, a court in Mpumalanga, and the Polokwane High Court.
The department agreed that infrastructure and courts still
reflected the previous government order and courts were therefore situated in
affluent areas. The Mamelodi court only catered to criminal matters and
therefore you would not find civil courts in Mamelodi. The department admitted that there was no
concerted effort to address the problem although soil was turned at Mamelodi.
The department had hoped that the planning would be completed that would allow
the department to go on tender. The department depended on the Department of
Public Works (DPW), as the implementing agent, to finalise the planning. They
were not ready with the planning and therefore the moneys were shifted to a
project that would be ready. When the Mamelodi project was ready to go to
tender the department could not carry the cash flow related to the expenditure.
The budget allocated was thus set aside for a number of projects and not one
specific project and if DPW was not ready for implementation then the funds
were committed to other projects. This was the case in Mamelodi. Construction
projects were multi-year projects and once funds were committed to projects
ready for funding, the department could not take on other projects because it
could only carry a certain amount of cash flow.
The department acknowledged that the problem was poor
planning as it had not aligned its planning to that of the DPW. The department
admitted that government in general had a problem with regularly maintaining
its infrastructure. Buildings in disrepair were more expensive to rehabilitate.
The department had to juggle its resources carefully and could only build 2
courts per annum. It needed to take into account the projects that were already
running and determine whether it could carry the cash flow needed to build a
new court.
3.3
Department’s slow pace of delivery
The committee noted that the department, in becoming
financially compliant, appeared to be losing focus on delivering a service.
3.3
a) Department’s reply
The department confirmed that in terms of the Public Finance
Management Act (PFMA) and relevant treasury regulations it had to be
financially compliant but in terms of its mandate it had to deliver
services. Although the department had
prioritised a clean audit qualification its strategic plan commits itself to
maintaining courts, building new courts and rendering services.
The department indicated that for the financial year
2008/2009 the department was qualified on 5 issues namely, Third Party Funds,
irregular expenditure, leases, leave, and assets. It managed to reduce the
qualifications from 5 issues to 2. The department was dealing with Third Party
Funds and irregular expenditure. The department had a long term plan to achieve
a clean audit by financial year 2012/2013. The department would achieve this by
improving its accounting systems and automating some services at courts thereby
doing away with the manual system of accounting.
The department, since end 2010, had started applying the
correct legislation to deal with irregular expenditure relating to supply chain
management. It had also significantly increased its human capacity within the
supply chain management area and in the office of the Chief Financial Officer.
The department had appointed 3 Chief Directors, 1 Director and staff at the
appropriate levels.
The department noted that in line with its desire to be
financially compliant its expenditure had also improved significantly since
2008, and in the last two financial years it was at 99% expenditure.
3.4
Department’s assistance to Chapter Nine institutions
The committee queried the department’s relationship with
Chapter nine institutions and whether the Chapter Nine institutions were
protected by the department in any way. The department rendered no assistance
to protect the Public Protector who was left alone to face the backlash of her
report.
3.4
a) Department’s reply
The Minister had a mandate to oversee Chapter Nine
institutions and therefore there was an obligation imposed on the department.
The Chapter Nine institutions still maintained their independence as enshrined
in the Constitution. The report by Professor K Asmal dealt with the matter of
the independence of Chapter Nine institutions but the report was still in
Parliament and had not been finalised.
The department acknowledged that more could have been done
to assist the Public Protector and would raise the matter with the Director
General.
The South African Human Rights Commission (SAHR) amendment
Bill would also go a long way to ensure the independence of the Chapter Nine
institutions. The amendments would bring it in line with the new Constitution.
The Ad Hoc Committee headed by Prof Asmal tabled a report that made
recommendations but the report had not been adopted by Parliament. The
department, however, had looked at the report and were including some of the
recommendations into the amendment bill.
3.5
Department’s efforts to contact victims of human rights abuses
The committee queried whether the department had contacted
the people who were declared victims of human rights abuses during the Truth
and Reconciliation Commission (TRC) process.
3.5
a) Department’s reply
The department still needed to do a lot more to contact
victims identified during the Truth and Reconciliation process. The department
had only dealt with Parliament and Non-Governmental Organisations to contact
the victims. The department committed itself to engaging community radio
stations to reach the victims whose reparation payments were still outstanding.
The department acknowledged that it needed to be more active on this issue.
3.6
Reduction of case backlogs
The committee queried the reduction of the case backlogs.
The committee enquired how many cases were still outstanding and how many had
been dealt with thus far. The committee is concerned that awaiting trial
prisoners were waiting too long for their cases to be finalised. Many people
had been found innocent after spending years in jail awaiting trial.
3.6
a) Department’s response
The backlogs were reduced by about 10% per annum. There were
38 000 backlog cases country wide for 2009/10 financial year but these were
reduced to 35 000 by 31 December. The last financial year the department
managed to reduce the backlogs by 12 000 cases. The acting appointments helped
to reduce the backlogs. Productivity at the courts was identified as a problem.
The courts need to sit more often than they were sitting now. The committee
agreed with the department but noted that the high case load of magistrates and
judges exacerbated the problem.
The department reported that remand detainees or awaiting
trial prisoners were causing overcrowding in the correctional facilities. There
were approximately 47 000 remand detainees country wide. There were 676
prisoners longer than 21 months in prison. The majority of the people were less
than 18 months in a remand detention facility. 79% were there for 1 – 9 months
and this amounted to 39 238 people.
4. Recommendation
The Select Committee, having considered Budget
Vote 24: Justice and Constitutional Development and the strategic plan of the Department of Justice and Constitutional
Development supports the budget vote and recommends its approval.
5.
Appreciation
The Committee expresses their thanks to the Department of Justice and
Constitutional Development for the comprehensive presentations.