The
Budgetary Review and Recommendation Report of the Portfolio Committee on
Justice and Constitutional Development, dated 30 October 2012
The
Portfolio Committee on Justice and Constitutional Development, having
considered the performance and requests for additional allocations for the
medium term period of the Department of Justice and Constitutional Development,
National Prosecuting Authority, Legal Aid
1. Introduction
1.1.
The Committee oversees the
activities of the Department of Justice and Constitutional Development and a
number of other institutions, all of which receive their allocation under the
Justice and Constitutional Development Vote. These other institutions, which
are either statutorily or constitutionally independent, include the National
Prosecuting Authority (NPA); Legal Aid South
1.2.
Briefly, the core functions of the
Department, NPA, LASA, SIU, SAHRC and PP are as follows:
1.3.
Each year, as part of its oversight
function, the Committee considers and reports on the Department of Justice and
Constitutional Development’s annual report, as well as those of the other
institutions referred to it.
1.4.
The Money Bills Procedures and Related Matters
Amendment Act (Act 9 of 2009) sets out the process that allows Parliament to
make recommendations to the Minister of Finance to amend the budget of a
national department. In October of each year, portfolio committees must compile
Budgetary Review and Recommendation Reports (BRRR) that assess service delivery
performance given available resources; evaluate the effective and efficient use
and forward allocation of resources; and make recommendations on forward
funding allocations. The BRRR are also source documents for the Standing
Committee on Finance when it makes recommendations to the House on the
Medium-Term Budget Policy Statement (MTBPS). The annual review and analysis of
performance forms part of this process.
1.5.
This is the third year that the Committee is
undertaking the BRRR process. The Committee engaged with the Justice
Department, NPA, Legal Aid South Africa, SIU, SAHRC and PP and believes that
the discussions were robust during which it was briefed on the annual
performance and spending for 2011/12. The meetings also addressed additional funding
needs for 2013 and over the medium term.
1.6.
The briefings took place over a two-week period from 9
– 19 October 2012. The Committee also met with the Auditor-General on the audit
outcomes on 16 October 2012. Copies of the presentations are available from the
committee secretary.
1.7.
The Committee remains firmly of the view, which it has
expressed in previous reports that it is not enough to engage on performance
annually: monitoring needs to be an ongoing process. However, this year the
Committee’s legislative workload precluded it from meeting as regularly as it
had intended with the Department and other institutions to ascertain their
performance against predetermined objectives, as well as related expenditure.
The Committee has already considered and reported in detail on the respective
strategic plans and budget proposals of the Justice Department, NPA, Legal Aid
South Africa, SIU, SAHRC and PP for 2012/13. During both that process and that
of the BRRR 2011, the Committee made extensive reporting requests on specific
issues which it had identified as requiring further monitoring. The Department
and other institutions have provided substantive responses, which form part of
this report. In addition, expenditure for the Vote has been monitored.
1.8.
This Report comprises five parts:
o
An overview of the allocation to the Justice
and Constitutional Development Vote for the 2010/11 2011/12, 2012/13, 2013/14
and 2014/15 financial years.
o
A discussion of expenditure patterns for 2011/12 and
the 1st quarter 2012/13.
o
An overview of the reported additional financial needs
for the MTEF.
o
A summary of key issues raised by the Auditor-General
relating to the audit outcome for the Department’s financial statements, as
well as those of the relevant institutions, for 2011/12.
Part 1
2. Justice and Constitutional Development
Vote 2011/12: Budget allocation and expenditure
2.1.
In 2011/12, the main appropriation for the Justice
and Constitutional Development Vote was R11.4 billion, which excluded a direct charge
against the National Revenue Fund of R2.1 billion for judges’ and magistrates’
salaries. During the adjustment period, an additional allocation of R168.2
million increased the appropriation for the Vote’s programmes to R11.6 billion.
(In 2010/11, the final appropriation to the Vote was 12.6 million).
2.2.
The Vote has five programmes:
2.2.1. The Department of Justice
and Constitutional Development administers three of the Vote’s five programmes:
Administration; Court Services; and State Legal Services. (Together these three
programmes were allocated R6.8 billion for 2011/12, which was just less than
58% of the allocation to programmes).
2.2.2. Programme 4: National
Prosecuting Authority received an adjusted appropriation of R2.7 billion
(approximately 23% of the allocation). As has been the case since 2001,
separate financial statements were prepared for the NPA, although the
Director-General: Justice and Constitutional Development is the Accounting
Officer.
2.2.3. Programme 5: Auxiliary
and Related Services includes two state institutions supporting constitutional
democracy - the South African Human Rights Commission and Public Protector.
Also included under this programme are the Special Investigating Unit and Legal
Aid South
2.3.
Additions to the baseline for 2011/12 amounted to R329
million, which included R30 million for the Presidential Initiative; R50
million for OSD Phase 2 funding (R45 million was allocated to the NPA and R5
million to the Department); R249 million for improved conditions of service and
R30 million for municipal services. Unfortunately, the baseline was reduced by
R114 million and R33.2 million as a consequence of the cancellation of the
Third Party Funds Public-Private Partnership and further savings by Cabinet. In
the final instance, therefore, additions to the baseline were R249 million.
2.4.
Notably, the following amounts were added to the baseline
from 2012/13 in response to the Committee’s BRRR recommendations in 2010:
·
Accommodation, specifically to build a
high court in
·
Information Communication
Technology, specifically to replace obsolete equipment and to expand its network.
Additional amounts of R100 million in 2012/13 and R110 million in 2013/14 are
allocated for this.
2.5.
Unforeseen
and unavoidable expenditure (adjustments) in
2011/12: The
Vote was adjusted by R168 million during the adjustments
period - R60 million was for salary increases; R10 million was for increased
investigative capacity for the Public Protector; and R97 million was for
technical assistance to the SIU.
2.6.
Virements in 2011/12: There were supplementary
virements between programmes after the Adjustments’ appropriation:
·
An amount of R90.4 million that went unspent on compensation
of employees and goods and services in Court Services was shifted to the goods
and services budget in the Administration programme.
·
An amount of R19.8 million that went unspent on compensation
of employees and goods and services in State Legal Services went to the goods
and services budget in the Administration programme to fund excess expenditure.
·
Increased transfers of R30 million (from the NPA’s budget)
and R2.2 million were made to the SIU and International Criminal Court
respectively.
2.7.
2011 Budgetary Review and Recommendation
Report
2.7.1. In
2011, the Committee recommended that additional funds be set aside over the
MTEF for court security, increased capacity at the National Prosecuting
Authority, the rollout of Thuthuzela Care Centres and the institutionalisation
of donor-funded positions, payment of curator fees, and to provide for the
implementation of new legislation.
2.7.2. The
Minister of Finance tabled the following response to these recommendations:
·
Additional capacity at
the NPA:
Although funding has been allocated for increased capacity at the NPA in past
years, the entity has experienced difficulty in attracting and retaining staff.
There is corresponding under-spending on its budget, especially for
compensation of employees (even after virements from the compensation of
employees budget to other programmes).
·
Rollout of Thuthuzela
Care Centres and institutionalisation of donor-funded positions. Going forward,
additional funding could be considered for this project. However, there is a
high vacancy rate within the NPA that could be used to employ those staff on a
permanent basis. Notably, National Treasury did not receive a funding request
from the NPA for this item.
·
Payment of curator fees over the 2012 MTEF: In the 2011/12 financial year, R20 million was
allocated to the NPA from the Criminal Assets Recovery Account to deal with
challenges relating to financing of curator fees.
·
Implementation of
legislation relating to vulnerable groups. In the past substantial amounts
were allocated for the implementation of legislation that aims to protect the
right of vulnerable groups, such as the Criminal Procedure (Sexual Offences and
Related Matters) Amendment Act, the Child Justice Act and the Children’s Act.
·
Additional capacity at
Legal Aid
·
Additional funding to the
SAHRC for their advocacy and access to information mandates. The Committee’s
recommendation is noted but the National Treasury is of the view that the
restructuring process underway at the SAHRC is likely to realise savings, which
could be redirected towards funding thee mandates.
2.8.
Spending trends during
2011/12. Although
99.5% of the allocation to the Vote for 2011/12 was spent, at programme level
there are significant variations in spending:
3. Financial performance for 2012/13
3.1.
Budget allocation for
2012/13 and over the MTEF
Table 1:
Overall programme allocation for the MTEF - 2011/12 – 2014/15
Budget
2011/12– 2014/15 |
||||
Programme |
||||
|
|
Medium-term
estimates |
||
(R thousand) |
2011/12 |
2012/13 |
2013/14 |
2014/15 |
Administration |
1 686258 |
1762 562 |
1 853 292 |
1 962 437 |
Court Services |
4 331 830 |
5 283 592 |
5 608 579 |
5 952 329 |
State Legal Services |
721 387 |
768 156 |
806 831 |
851 841 |
National Prosecuting Authority |
2 651 665 |
2 815 791 |
2 964 563 |
3 145 170 |
Auxiliary & Associated Services |
2 190 059 |
2 448 506 |
2 580 696 |
2 709 389 |
Total |
11 581 199 |
13 078 607 |
13 813
961 |
14 621
166 |
Direct charge (Judges and Magistrates’ salaries) |
2 104 162 |
2 401 870 |
2 575 723 |
2 730 266 |
Total |
13 685 361 |
15 480 477 |
16 389
684 |
17 351
432 |
3.1.1. The main appropriation
increases from R11.6 billion in 2011/12 to R13.1 billion in 2012/13. This does
not include the direct charge for judges and magistrates’ salaries of R2.4
billion. The overall appropriation for 2012/13 is therefore R15.5 billion.
However, overall growth for the MTEF is 5.4%, which is below inflation.
3.1.2. An amount of R253 million
is added to the Department’s and NPA’s baseline for 2012/13. Additional amounts
are for court infrastructure (R100 million) and improved conditions of service
(R167.6 million).The Department, however, has made R14.4 million available to
LASA from its baseline for carry through costs of the Children’s Act and Child
Justice Act.
3.1.3. A cumulative amount of
R152.1 million is allocated to the independent bodies in addition to their
baselines. The bulk goes to the SIU and the Public Protector for increased
investigative capacity (R100 million and R15 million respectively) and, as
mentioned above, to LASA for the carry through costs of the Children’s Act and
Child Justice Act (R14.4 million). The remainder is for improved conditions of
service.
3.1.4. A total amount of R41
million is set aside for priority projects in 2012/13. Specifically, R16
million is for the Commission of Enquiry: Strategic Defence Procurement Package;
R2.5 for the Assessment of the impact of the decisions of the
3.2.
Spending for the 1st Quarter 2012/13
3.2.1.
Actual spending in the
Administration programme is greater than expected and is attributed to payment
of invoices from previous years for security services that were paid in the
first quarter. Underspending occurred in the Management subprogramme (at 21.3%)
because of vacancies for senior managers.
3.2.2.
Overall, there is underspending
for the Court Services programme at 19.9%. There was higher than expected
spending for the SCA (at 32%), High Courts (at 29%) and Specialised Courts (at
31%) subprogrammes attributed to travel and subsistence for judges.
Underspending occurred in the Constitutional Court, Government Motor Transport
and Facilities Management subprogrammes because of delays in procuring
vehicles. However, there is also less than expected spending under the Lower
Courts subprogramme (at 21%).
3.2.3.
Overall there was slightly less
than expected spending in State Legal Services at 22.9% because of
delays in receiving legal costs claims from private law firms.
3.2.4.
For the most part, actual spending
for Administration, Court Services and State Legal Services was far less than
projected in terms of economic classification, including ‘compensation of
employees’ at 22.4% (because of non-filling of vacant posts). Under payments
for capital assets, actual spending for ‘Buildings and fixed structures’ is at
12.2% because of delays on receiving claims from the Department of Public
Works.
3.2.5.
Spending under the National
Prosecuting Authority programme was largely on track. There was higher than
expected spending under the Witness Protection subprogramme (at 25.9%) because
of lease of vehicles for witness transportation; and the AFU subprogramme (at
29%) attributed to the appointment of two senior managers and consultancy fees.
Under Goods and Services, spending was at 25.2% because of the Imperial Court
settlement.
3.2.6.
Although spending was largely on
track for Auxiliary and Associated Services, there was higher than expected
spending for the SIU (at 34.8%) attributed to non-renewal of existing contracts
and non-invoicing of clients for work done as a result of legal opinion
preventing the SIU from charging its clients. There was also less than expected
spending under Justice Modernisation (at 13.9%) attributed to delays in
receiving claims from JCPS Cluster departments.
3.3.
Reported spending
pressures: According to the Department, spending pressures have
affected the following areas adversely:
4.
Financial needs for 2013/14 and the MTEF
4.1.
The 2013 MTEF cycle, as directed and regulated by the
National Treasury, does not provide for any requests for additions to the
baseline but instead directs the implementation of baseline reductions of 1%
(or R163.9 million) in 2013/14, 2% (R347 million) in 2014/15 and 3% (R544.5
million) in 2015/16. Over the MTEF, the Vote’s budget is reduced by R1 billion.
The Department, however, argues that there is little manoeuvrability within the
budget as the main cost driver is personnel. Any cuts will need to be made on
operations, which may negatively impact on service delivery.
4.2.
The Department reports the
following critical funding priorities over the medium term:
4.2.1
The
appointment of more judges and magistrates requires additional court
administration, prosecution services and legal aid capacity consistent with the
capacity increases in magistracy and judiciary. If the
appointment of new judges and magistrates are staggered over a three-year
period, at fifty new appointments a year, the Department has calculated that it
will require R200 million in 2013/14; R420 million in 2014/15 and R660 million
in 2015/16 to address additional capacity needs.
4.2.2
Start-up
and operational cost funding for new lower courts funded through investment in
Capital Works programme (Tsakane, Kathlehong, Kagiso and Ntuzuma, etc.)
A finalised court building merely provides the structure and requires a large
input of start-up costs, which relate to furnishing and equipping of the court
building (IT, furniture, security and inventory). There are also costs related
to the employment of judges/magistrates, prosecutors, legal aid practitioners
and administrative staff for salaries and operational costs (the average
magistrates’ court, for example, has four magistrates, 26 staff members, 8
prosecutors and 4 legal aid practitioners) In the past twelve months, the
Department has opened three courts at Tsakane, Palm Ridge and Galesewhe; and is
about to commission another two magistrates courts at Ntuzuma and Kagiso. The
additional funds required are R91.5 million in 2013/14; R95 million in 2014/15
and R100 million in 2015/16.
4.2.3
Funding
shortfall on municipal rates, taxes and leased accommodation.
In the past four to five years, the budget for leasehold expenditure has grown
on average by 5.5% per annum, while actual expenditure charges have escalated
by more than 8% per annum. In real terms, the shortfall on the budget has
increased from R31.7 million in 2009/10 to more than R185.7 million in 2012/13.
It is projected that the shortfall will increase to around R242 million by
2014/15. The Department is no longer able to absorb the shortfall within its
baseline without compromising service delivery. Similarly for rates and taxes,
all municipalities have increased their property taxes at a rate that is higher
than inflation. From 2009/10 to 2012/13, the shortfall between the allocation
and actual accounts has grown 172% from R9.8 million to R58.9 million. If the
current trend continues, the deficit will be R102.9 million by 2015/16. The
Department, therefore, requests the following additional amounts for municipal
rates and taxes and leased accommodation: R250 million in 2013/14; R293.3
million in 2014/15 and R345 million in 2015/16.
4.2.4
Critical
baseline adjustments for security services. In recent
years, it has become vital for the Department to secure its assets, judicial
officers, prosecutors, as well as court records. Through reprioritisation of
its budget, the Department has increased the budget for security services by
12% over an eight-year period from 2008/09 to 2015/16. This reprioritisation has,
however, adversely affected service delivery areas in the Department. The cost
of guarding services has grown exponentially. (Notably, the latest information
indicates that the Department requires a total of 5896 security officers to
cover key areas of the Department, including the prosecutions services and
their National Office). Also, the general infrastructure costs have escalated.
Limited funds have led to some of the security projects planned being reduced.
The National Security Infrastructure project, which was meant to reduce
reliance on external service providers and build sustainable capacity in the
Department, was initially intended to cover 127 courts in phase 1 of a 3 to
4-phase approach. Projected expenditure patterns indicate that only 90-98 sites
can be covered. In addition, finalising the plan remains a challenge and this
affects preventative maintenance of security equipment. The Department has
requested that the following amounts be allocated for security: R361.5, R399.2
and R441.4 million for 2013/14, 2014/15, 2015/16 respectively.
4.3.
The NPA reports the following
additional funding needs for the MTEF:
Table 2: NPA - Additional funding needs for the MTEF
(R’000) |
2013/14 |
2014/15 |
2015/16 |
Total
|
Funding of vacant posts |
120 000 |
306 000 |
328 950 |
754 950 |
Job creation |
45 954 |
48 358 |
50 888 |
145 200 |
Labour Court judgment for OSD implementation |
200 000 |
42 400 |
44 944 |
287 344 |
AFU- curator fees and increase in capacity |
41 270 |
43 672 |
46 214 |
131 156 |
Institutionalisation of donor funded positions with
TCCs |
31 727 |
33 356 |
35 022 |
100 105 |
Increase in SCCU capacity to achieve JCPS putput 3
and 5 |
3 505 |
3 715 |
3 937 |
11 157 |
Accountability status of the NPA |
200 000 |
50,000 |
65 000 |
315 000 |
OWP- increase in capacity and acquisition of covert
armoured vehicles |
112 508 |
119 132 |
125 815 |
357 456 |
Security and risk business unit- purchasing of
capital and security equipment |
5 000 |
6 000 |
7 000 |
18 000 |
Total
|
759
964 |
652
633 |
707
771 |
2
120 368 |
4.4.
Legal Aid South Africa reports the
following additional funding needs for
the MTEF
Table 3: Legal Aid South Africa - Additional funding needs for the MTEF
Description |
2013/14 (R’000) |
2014/15 (R’000) |
2015/16 |
MTEF (R’000) |
Increase
in practitioner per court ratio (153 posts at District Courts, Regional
Courts and High Courts to increase coverage to 100%, 110% and 125%
respectively) |
59 193.3 |
62 744.9 |
70 509.6 |
188 447.8 |
Increased
civil capacity (40 new posts) |
18 832.6 |
19 962.6 |
21 160.3 |
59 955.5 |
Expansion
of the national footprint |
33 600 |
28 620 |
32 502.4 |
92 557.2 |
IT
infrastructure (upgrading of) |
7 600 |
2 100 |
2 166 |
11 866 |
Total |
119 225.9 |
113 427.5 |
120 173.1 |
352 826.5 |
4.5.
The SIU made no requests for
additional funding for the medium term.
4.6.
The South African Human Rights Commission reports the
following additional funding
requirements for 2013/14 - 2015/16:
Table 4: SAHRC - Additional funding needs for the MTEF
Budget
Item (R’000) |
2013/14 |
2014/15 |
2015/16 |
Legal Services |
|||
Legal services human resources capacity
for complaints handling |
R12. 3 |
R1.14 |
R1.14 |
Internal capacity building of legal
practitioners |
R1.5 |
R1.75 |
R1.75 |
Procurement of Experienced Legal
Expertise for litigation of complaints |
R1.5 |
R2.18 |
R2.18 |
Revamping Legal Case Management System |
R2.13 |
R1.12 |
R1.12 |
Setting-up a call centre for complaints
processing |
R1.7 |
R1.84 |
R1.84 |
Human Rights Advocacy |
|||
Developing Advocacy and Education
capacity and materials |
R1.6 |
R1.9 |
R1.9 |
Research |
|||
Research reports, namely ESR, Equality
and Focus Areas |
R1.95 |
R2.14 |
R2.14 |
Promotion
of access to information |
|||
Monitoring, compliance and advocacy of
PAIA |
R6,7 |
R2.7 |
R2.7 |
IT Infrastructure |
R3.43 |
R1.7 |
R1.7 |
Total |
R32,81 |
R16. 4 |
R16.4* |
*
The budget will be reduced as a result of savings in rental and related costs
4.6.1. In addition,
the following items were identified as requiring additional funding during the
BRRR process:
4.7.
The Public Protector reports the additional funding needs
for the MTEF:
Table 5: PP - Additional funding needs for the MTEF
Budget
Item (R’000) |
2013/14 |
2014/15 |
2015/16 |
Systemic investigations |
16 000 |
25 000 |
30 000 |
Realignment of legal professionals to the
OSD |
8 000 |
8 500 |
9 000 |
Investigator Trainee programme |
3 600 |
7 200 |
7 200 |
Call centre |
5 000 |
2 000 |
1 200 |
Additional regional offices |
|
1 500 |
1 900 |
Mobile office |
3 600 |
1 000 |
1 800 |
Automation and re-engineering of
electronic systems |
20 000 |
10 000 |
4 000 |
Going concern |
5 300 |
|
|
Cost of living at 7% |
1 620 |
1 733 |
1 911 |
Strategic alignment project |
1 200 |
1 400 |
1 700 |
TOTAL |
64
320 |
58
333 |
58
711 |
5.
Audit outcome for 2011/12
5.1.
The Department received a qualified
audit outcome for 2010/11 as for previous years. Notably, the Department
cleared the prior years’ audit qualifications relating to Human Resource
Management, Assets and Irregular Expenditure: the remaining qualification
relates to Third Party Funds (TPF). The Auditor-General reports that the
qualification matter of the Third Party Funds is mainly due to inadequacy of
the systems to ensure proper controls and financial reporting. The JDAS system
in place for reporting on transactions in the TPF environment is inadequate to
prove reliable information for ensuring accuracy of financial reporting. The
TPF audit for 2011/12 has not been conducted as the financial statements for
that year have not yet been submitted.
5.2.
Other key other matters highlighted
are non compliance, supply chain management and material misstatements in the
Annual Financial Statements.
5.3.
Repeated areas of concern in financial management
and governance can be summarised as follows:
·
Failure to achieve planned performance targets.
·
Material misstatements in the annual performance report.
·
Failure to follow prescribed financial reporting framework.
·
Proper asset control not in place.
·
Failure to prevent irregular expenditure (R223 million where
procurement and tender procedures were not followed; R2.1 in fruitless and
wasteful expenditure).
·
Failure to pay invoices within 30 days (accruals of R448
million).
·
Failure to obtain price quotations (below R500000).
·
Failure to invite competitive bids (above R500000).
·
Revenue management not timely.
·
Leadership inadequate in respect of the TPF; monitoring
performance information and addressing audit findings.
·
Financial and performance management lacking; poor record
keeping; no proper filing system; failure to prepare regular and accurate
reports and insufficient internal controls.
·
Audit Action plans are not being implemented properly (for
instance although the Department developed a plan to address internal and
external audit findings adherence to the plan was not monitored by
appropriate levels of management).
5.4.
An unqualified audit outcome was
achieved for both Guardians Fund and the Criminal Assets Recovery Account
(CARA).
5.5.
To clear the qualification on the TPF, the Department
reports that it intends to address risk areas identified at the conclusion of
the baseline and historical financial reporting Annual Financial Statements for
2009/10 and 2010/11 respectively. These are opening balances, supporting
document management and follow-up and management of shortages and losses. Other
key initiatives include finalisation of the 2011/12 AFS, as well as planning
and concluding the 2012/13 AFS; finalisation of the future operating model for
TPF; and tabling of legislation to address the legal status of TPF AFS.
5.6.
The Department reported the following
key initiatives to improve the audit outcome in the 2012/13 financial year:
·
Establishment of a Compliance Unit and development of a
compliance policy.
·
Implementation of a national audit action plan.
·
Debriefing workshops for executive management, regional
heads and regional finance directors.
·
Comprehensive audit action plans, supplemented by regional
audit action plans on identified audit risk areas.
·
Establishment of internal control component for expenditure
management and monitoring, adherence to financial prescripts and reporting.
·
Additional human resource capacity in supply chain management
and asset management.
·
Task teams deployed in regions for training and technical
guidance.
·
Enhancing departmental policies and prescripts – especially
three quotes, delegations and tax compliance of service providers.
·
Monthly progress reporting to Executive management on status
of implementation of approved audit action plans.
·
Quarterly financial statements preparation, which are
quality reviewed by the senior manager in financial reporting services.
Exceptions are investigated and followed through.
·
Periodic budget and expenditure reviews to ensure
expenditure within the appropriation and effective management of accruals and
commitments.
Part
2
6. Overview of the Department of
Justice and Constitutional Development’s strategic and operational environment
6.1.
Outcomes-based
approach to service delivery
In January
2010, Government adopted an outcomes-based approach to performance. The Justice
Department leads the Justice Crime Prevention and Security (JCPS) Cluster,
which is responsible for the outcome ensuring that ‘All People in South Africa
are and feel safe’. Specific outputs and measures have been identified for the
JCPS cluster, and focus largely on measures to combat crime and corruption.
The JCPS
Cluster is addressing blockages identified in the Criminal Justice Review,
implementing the recommendations that form part of the Seven-point
transformation plan. Most of these elements have been incorporated in the
Cluster’s service delivery agreements. In addition, the Cluster has focused on
broadening access to justice for all, improved efficiency in courts and on
combating violence and crimes against the vulnerable.
6.2.
Overview
of (revised) Strategic Plan 2011-2016
6.2.1.
The Department revised its strategic plan 2011-2016 to
comply with the National Treasury Framework for Strategic Plans and Annual
Performance Plans, which focuses on outcomes-based planning.
6.2.2.
The Department retained the following four strategic goals:
6.2.3. There
are seventeen strategic objectives (aligned to 72 performance indicators) that
give effect to these goals and relate to the three programmes that the
Department is directly responsible for administering, as well as its
obligations to the JCPS Cluster relating to Outcome 3.
6.2.4. The strategic plan refers
to three projects that were prioritised for
2011/12. These are to achieve an unqualified audit outcome in 2012/13; service
turnaround in maintenance services; and service turnaround
in the Masters’ Branch.
6.2.5.
The spending focus over the MTEF period is on reviewing the
civil justice system, implementing approved legislation (such as, the
Children’s Act, 2005; the Child Justice Act, 2008; and the Sexual Offences Act,
2008). In addition, rolling out the Constitutional Development branch,
repositioning the Master of High Court, turning around audit qualifications,
Third Party Funds accounting systems, building high courts in Nelspruit and
Polokwane and further modernisation of the systems and procedures in the courts
are areas on which spending will focus.
6.3.
Overview
of developments in the organisational and service delivery environments for
2011/12
6.3.1.
The following key policy
developments informed the organisational and service delivery environments for
the year under review:
6.3.2.
There was a strong focus on turning
around the Department’s administration to obtain an unqualified audit opinion
on the Vote account. Initiatives to do so specifically addressed the
qualification on Third Party Funds and the preparation of annual financial statements
for the Funds; the putting in place of systems to identify and manage irregular
expenditure; and the putting in place of systems to improve performance
information.
6.3.3.
In addition, the following major
issues affected performance in 2011/12:
·
The Masters Offices in Pretoria and
Pietermaritzburg and the State Attorneys’ Office in Pretoria were relocated to
new premises.
·
Preparation for the Commission of Inquiry into the
Strategic Defence Procurement Packages.
·
Delays in appointing key top
management (DDG: Corporate Services; CFO; DDG: Constitutional Development)
because of insufficient quality of applications received.
·
Budget cuts that continue to affect
projects.
6.3.4.
Services delivered at key service
points included:
·
South Africa has 13 High Courts and
766 magistrate’s courts.
·
In 2011/12, the Department provided
support for:
o
The management of over 875 000
criminal cases
o
More than 100 000 civil cases in the
High Courts, Supreme Court of Appeal and Labour and Labour Appeal Courts.
o
The finalisation of 141 land claims and
123 constitutional matters
·
Initiatives to improve access to
justice include:
o
Case-flow management (CFM), which is
now under the leadership of the Judiciary and has seen improvements. The Chief
Justice is personally championing many case flow management initiatives. The
CFM forums at regional and local level have begun to work together for improved
planning and management purposes. Monitoring and evaluation of court
performance has been strengthened and escalated to the highest level with the Chief Justice also being
involved.
·
In 2011/12, the Masters of the High
Court had 170 150 deceased estates matters, 9 958 liquidations and
insolvencies, 16 376 trusts and 1 277 curatorships enrolled.
Part 3
7.
Performance information
for each Programme 2011/2012
Department of Justice and
Constitutional Development
7.1.
Programme 1-
Administration
7.1.1.
The Administration programme is responsible for the management of the department, and
development of policies and strategies for the efficient adminstrion of
justice.
7.1.2.
Strategic objectives under this programe include increased
compliance with prescripts to achieve and sustain an unqualified audit and
improved management of fraud and corruption cases.
7.1.3.
Programme performance. Met or
exceeded target in 7 of 19 (37%) of the performance indicators.
Table 6:
Administration- Selected targets and actual performance 2011/12
Administration 2011/12 |
|
Selected
targets |
Performance |
Percentage completion of activities on the approved Audit Action plan
towards an unqualified audit. |
NOT ACHIEVED 90.3% of this
plan was implemented against the target of 100%. |
Completion of key outputs to address the Third Party Fund qualification |
NOT ACHIEVED Only four of the five outputs were completed. The fifth output was diverted to the 2012/13 and 2014/15 financial
years due to the fact that the Department spent more time on producing
financial statements. |
Percentage of the Audit Action Plan completed by Internal Audit |
ACHIEVED The Department exceeded its target. It completed 82% of the Plan
against the target of 80%. |
Number of fraud and corruption awareness workshops conducted |
NOT
ACHIEVED 21 workshops conducted against the target of 30. |
Percentage completion of integrity competency of senior management
(vetting) |
NOT
ACHIEVED Achieved 50% against the target of 65%. |
Percentage of courts with case management systems deployed and
supported. |
NOT ACHIEVED Actual
performance was 55% against the target of 100%. |
Risk
management activities |
NOT ACHIEVED 64% of risk mitigation plans were
finalized by December 2011, against the target of 100% by the same period. |
Reduce
vacancy rate to 7%. |
NOT ACHIEVED The
vacancy rate stood at 11.14%, excluding judges and magistrates and 10.52%
including judges and magistrates. The overall performance in the reduction of
vacancies was impacted on by an unexpected increase in terminations,
transfers and promotions to other departments. |
Reduction
in misconduct and grievance cases |
ACHIEVED With
regard to the reduction of grievances, the Department exceeded its target of
50% by 15. It achieved its 65% target in misconduct cases. |
Number of
outstanding TRC victims give access to the President’s Fund in terms of
individual reparations |
NOT ACHIEVED Paid 219
people against the target of 250 |
7.1.4.
Key achievements in 2011/12 include :
·
Improved finalisation of new and
older forensic investigation cases.
·
The distribution of R250 million of
CARA funds.
·
Targeted completion rates of
grievance and misconduct cases were exceeded.
7.1.5.
challenges arising during 2011/12
·
The Department still has various
human resource related challenges, including high vacancies at SMS level. Also,
the target for the overall vacancy rate (7%) was not met. Overall vacancies at
31 March 2012 were at 10.52%.
·
The inadequate use of IT business
solutions remains a source of concern for the Department. Limited training was
identified as a major contributor to the poor use of IT systems.
·
Vetting of employees has been slow.
Only 50% of the 154 senior managers had been vetted against the target of 65%.
·
Budgetary constraints created
challenges for continuous improvements of safety and security initiatives.
7.2.
Programme 2- Court
Services
7.2.1. The Court Services programme facilitate the resolution of
criminal, civil and family law disputes by providing accessible, efficient and
quality administrative support to the courts and managing court facilities.
7.2.2. Programme performance: Met
or exceeded taget in 7 of 22 (34%) performance indicators.
Table 7:
Court services - Selected targets and actual performance 2011/12
Court Services 2011/12 |
|
Performance
indicator and target |
Performance |
·
Number of key activities for the
implementation of the criminal Law (Sexual Offences and related Matters)
Amendment Act |
NOT ACHIEVED 3 out of 4
activities completed. |
·
Percentage utilisation of the
National Register for Sexual Offenders (NSRO) by the courts (Phase 1) |
TARGET ACHIEVED |
·
Percentage completion of
implementation of NSRO (Phase 2) |
NOT ACHIEVED 4% against
the target of 40% |
·
Number of additional one-stop
child justice centres designated |
NOT ACHIEVED Nil (0)
against the target of two. |
Number of
priority courts improved through the Rehabilitation and Maintenance Programme
(RAMP) |
NOT ACHIEVED All RAMP
targets were put on hold. No Repair and Maintenance Projects were undertaken
during the period under review due to budget being used on pressing capital
projects. |
·
Number of priority courts to which
the integrated security system is rolled out |
TARGET ACHIEVED 50 against
the target of 50. |
Number of
safety and security incidents |
TARGET ACHIEVED 93 against
the target of <110 |
7.2.3.
Court services recorded the
following key achievements in 2011/12:
·
The number of cases on the backlog
roll decreased to 34 926 against the target of less than 37 034. From the
inception of the backlog reduction intervention in November 2006 until the end
of March 2012, 59 232 criminal cases were removed from the regional and district
court rolls and processed by these additional backlog courts.
7.2.4.
Key challenges arising in 2011/12:
·
The workload of the Office of the Chief Family Advocate has
increased with the introduction of new legislation. This has resulted in a shortage
of staff given the workload.
7.3.
Programme 3 - State Legal
Services
7.3.1.
This programme provides legal and legislative services to
government,, supervises the administration of deceased and insolvent estates
and the Guardian’s Fund, and prepares and promotes legislation and undertakes
research in support of this.
7.3.2. Programme performance: Met
or exceeded target in nine of 31 (29%) performance indicators.
Table 4:
State Legal Services - Selected targets and actual performance 2011/12
State Legal Services 2011/12 |
|
Performance
Indicator |
Actual
Performance |
Percentage
of large estates administered to a stage where heirs and creditors could
receive their dues within 12 months |
NOT ACHIEVED 49%
against the 95% target. |
Percentage
of small estates administered to a stage where heirs and creditors could
receive their dues within 12 months |
TARGET ACHIEVED 95%
against the set target of 90%. |
Percentage
of beneficiaries in receipt of services within 40 days (Guardian’s Fund) |
NOT ACHIEVED 82.4%
against the target of 90% |
Percentage
of liquidation cases finalised within 15 months of registration. |
NOT ACHIEVED 38%
against target of 90% |
Reduction of legal costs against
the state by target date |
NOT ACHIEVED 33% increase against 15% decrease
target |
Level
of compliance with PAIA by the Department |
NOT
ACHIEVED 18% against the target of 100% compliance (141
requests were granted from a total of 792 received). |
7.3.3. Selected achievements for 2011/12 include:
·
A total of 259 officials who provide Masters’ services have
been trained in service excellence by the Justice College.
·
Electronic fund transfers for Guardian’s Funds were
implemented in four offices to improve the turnaround time of payments to
beneficiaries.
·
The department exceeded its target on the percentage of small
estates (<R125 000) finalised within 4 months.
·
70.3% of the value of briefs was issued to previously
disadvantaged individuals, against the target of 70%. This percentage
translates into an amount of R263 739 311 in monetary terms. This is
an improvement on the previous year’s performance of 69%.
·
The department has improved its recovery of legal costs from
other state departments. The balance owing is reducing faster than the amount
of current expenses incurred and this
is a positive step towards reducing the total amount outstanding.
7.3.4.
Key challenges arising during 2011/12
·
Performance on cases enrolled- 5 893 cases
were enrolled, of which only 1 856 were finalized. There was a decline of 2.1%
in the number of cases finalized in comparison to the previous year’s
performance.
·
Serious underachievement in respect of meeting PAIA
targets was a result of the PAIA Unit struggling to cope with the number of
requests relating to lost records.
7.4.
Programme 4 - National
Prosecuting Authority
7.4.1. The National Prosecuting Authority
provides a co-ordinated prosecuting service to ensure that justice is delivered
to the victims of crime through general and specialised prosecutions, protects
certain witnesses and removes the profit from crime. Although the
Director-General: Justice Constitutional Development is the accounting officer,
the NPA reports separately on its perfomance.
7.4.2.
Programme performance:
Table 5:
NPA Achievement of selected targets and indicators 2011/12
Indicator |
Target 2011/12 |
Actual 2011/12 |
Deviation |
Number of
criminal court cases finalised excluding ADRM |
365 087 |
316 098 |
-13.4% |
Number of
criminal court case filalised through ADRM |
131 117 |
132 695 |
1.2% |
Conviction
rate: High Courts |
87% (1
127) |
84.6%
(963) |
-2.4% |
Conviction
rate: Regional Courts |
74% (29
773) |
74.3% (28
665) |
0.9% |
Conviction
rate: District Courts |
87% (292
654) |
90.8%
(251 030) |
0.1% |
Number of
new completed forfeiture cases |
310 |
301 |
-5.9% |
7.4.3.
Key achievements for 2011/12 include:
·
Lower and high courts maintained a 3.7% positive clearance
ration during the year under review. A total of 897 842 new cases were enrolled
with 930 932 cases were disposed.
·
Regional courts improved their conviction rates in an effort
to curb serious crimes.
·
Better screening mechanisms resulted in a reduction of 12.2%
in the number of cases withdrawn and assisted in the enrolment of trial ready
cases.
·
The number of cases finalised through ADRM increased from
129 846 in 2010/11 to 132 693 in 2011/12.
·
A total of 15 886 cases were finalised by the backlog
courts.
·
Specialised services to victims of sexual offences were
delivered in 30 fully operational Thuthuzela Care Centres (TCCs). The number of
fully operational TCCs increased from 27 to 30.
7.4.4.
Key challenges identified during 2011/12:
·
Lack of accommodation and other resources in lower courts as
a result of budget constraints faced by the JCPS cluster.
·
The prosecutorial vacancy remains high although it has
dropped to 11.4%.
7.5.
Programme 5 Auxiliary and
Related Services
7.5.1.
This programme includes Legal Aid South Africa, the Special
Investigating Unit, the South African Human Rights Commission and Public
Protector.
7.5.2. Legal Aid South Africa
7.5.2.1.
Selected
achievements, as reported, include:
7.5.2.2.
Key challenges arising during 2011/12:
7.5.3.
Special Investigating Unit
7.5.3.1.
The SIU funding model provided for its baseline grant from
National Treasury. In addition to the grants from National Treasury, the
service-level agreements that SIU entered into with state institutions that
required investigation made provision for SIU to charge for the services
rendered, thus raising additional revenue. A legal opinion was obtained in 2011
to the effect that the SIU Act did not specifically empower such a model and
that the SIU as a creature of statute could not continue with that model. The
Unit was able to invoice on a limited basis between September 2011 and June
2012. This challenge has since been overcome by amendments to the Act, which
are now enacted.
7.5.3.2.
The SIU received an unqualified audit opinion. However,
there were matters of emphasis relating to the restatement of corresponding figures
and the manner in which the SIU operations were funded.
7.5.3.3.
The SIU incurred irregular expenditure as a result of
performing functions that were outside its mandate, such as providing training
services to GEMS.
7.5.3.4.
The SIU exceeded targets in respect of:
7.5.3.5.
Evidence prepared: This includes civil litigation
(acknowledgement of debt); criminal action; disicplinary action; and other
remedial action. Actual achievement was 17 073 against a target of 10 000.
7.5.3.6.
Cash (and assets) recovered: Actual achievement was R224
million out of a target of R30 million (this target was substantially exceeded
due to seizure of farms in the land affairs investigation).
7.5.3.7.
Total recovery (millions): Actual achievement was R408
million out of a target of R260 million. (This consists of savings (R30
million), prevention of future losses (R169 million) and cash (assets)
recovered (R224 million).
7.5.3.8.
The following challenges were identified in 2011/12:
·
Present cash flow challenges are unlikely to be swiftly
resolved as invoicing does not translate into immediate payment.
·
Compensation of employees will
soon be more than the grant received.
7.5.4. South
African Human Rights Commission
7.5.4.1.
The Commission received a clean audit opinion for 2011/12,
with no emphasis of matter.
7.5.4.2.
Key achievements as reported by the Commission for 2011/12
include:
·
A total of 89% of the Commission’s strategic objectives were
achieved (in contrast with 67% in 2010/11 and 52% in 2009/10).
·
There were improvements in the finalisation of complaint
cases, with 87% of cases finalised compared to 72% in the previous financial
year. (Finalised cases include rejected, referred, resolved, and closed cases,
as well as once-off enquiries).
7.5.4.3.
Key challenges reported for 2011/12 include:
·
The North West province finalised the least proportion of
its cases. (For the rest, each of the provinces finalised more than 70% of
their cases). This is primarily due to ongoing capacity challenges in the North
West province and the difficulty in finding suitably qualified candidates to
manage legal complaints.
7.5.5.
Public Protector
7.5.5.1.
The year under review was the first year of implementation
of the Public Protector’s new vision: Public Protector 2020 and Strategic Plan
2010-13.
7.5.5.2.
The Public Protector’s activities continued to be anchored
in the constitutional mandate to investigate, report on and take appropriate
remedial action in respect of alleged or suspected improper conduct in all
state affairs
7.5.5.3.
The Public Protector received an unqualified opinion with
emphasis of matter on the following:
·
Restatement of corresponding figures.
·
Going concern: the Public Protector’s current liabilities
exceeded its assets by R11 073 858.
·
Significant uncertainties due to lawsuits.
·
Performance information. Source documents not available for
some of the targets.
·
Creditors were not paid within 30 days.
7.5.5.4.
The major form of service
failure reported continues to be the right
to a decision experienced at all levels of government. The right to be given reasons for a decision is
the second major form of service failure and administrative injustice. The right to recourse when standards are not met
was a major source of grievances.
7.5.5.5.
Key achievements as reported by the Public Protector for
2011/12:
·
A total of 16 251 complaints were received or initiated and
14 148 were finalized; 5608 cases were carried over; and 1 709 complaints were
out of jurisdiction.
·
A total of 52 % of cases were finalised within 1-3 months
and 22% cases were finalised within 4-6 months.
·
A total of eight systemic investigations were finalised in
2011/12, five cases are on-going.
·
A total of ten own initiative investigations were
identified: three were finalised, while seven are ongoing.
·
A total of 41 reports were published.
·
A good governance conference was held in October 2011.
7.5.5.6.
Key challenges for 2011/12:
·
Investigative capacity remains the main challenge.
Additional investigators were appointed and 17 senior Investigator posts are to
be advertised. The lack of sufficient investigators impacts on attempts to balance rigor
with promptness in the conduct of investigations or implementation of
alternative dispute resolution.
·
Specialisation has mitigated but not solved the challenge
of ensuring expeditious high quality investigations.
·
Staff retention remains a problem and remuneration is
the main reason given in exit interviews.
·
Pre-constitution thinking hamstrings investigations
and the realisation of justice and accountability through remedial action. .
Part 4
8. Committee’s observations
8.1.
The Committee makes a number of observations relating to the
performance of the Department, the NPA, Legal Aid South Africa, SIU, PP and
SAHRC.
8.2.
This is the third year that the Committee is undertaking the
Budgetary Review and Recommendation process and believes that sufficient time
has elapsed for it to be possible – desirable even - to critically reflect on
the process, with a view to identifying refinements. In particular, the
Committee has found the time allocated to the process hugely challenging,
despite having systems in place to monitor performance and spending throughout
the year. Specifically, the conflation of the formal process of evaluating
annual performance with consideration of requests for additional funding is
problematic. The short space of time between the date for the formal submission
of annual reports and the BRRR hearings leaves the Committee with little time
for prior critical engagement with the reports and discussion of key focus
areas. The process also provides little opportunity to canvas the public’s
views on performance, which would be invaluable. The Committee is of the view
that, as a first step, consideration should be given to esablishing whether it
is feasible to require Departments and institutions to table their annual
reports far earlier in the year – the end of August was mooted as a possible
date.
Department of Justice and Constitutional Development
Technical issues
8.3.
Technically, the Department’s Annual Report for 2011/12 has
several shortcomings. As the Committee observed last year,
important data relating to court performance, found in previous annual reports,
has been omitted. Specifically, court statistics relating to maintenance and
domestic violence cases are not reported. In general, coverage of the Departments activities in
respect of vulnerable groups in 2011/12 is dismaying. The Department has
responsibilities in respect of key pieces of legislation, such as the Domestic
Violence Act; Maintenance Act; Sexual Offences Act, Children’s Act, and Child
Justice Act. Although separate reports have been tabled regarding impementation
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the
Child Justice Act, statistical reporting on key legislation afffecting
vulnerable groups is minimal. The Committee is unclear as
to why this is so and specifically requests that it is included in future
annual reports.
8.4.
Once more, the Committee notes
inconsistencies in the statistical data presented by the Department and the
NPA, which makes it very difficult for the Committee to assess performance. It
is unclear why this is so. Discrepancies in the statistics presented by the
various JCPS Cluster departments and institutions is, in the Committee view,
related to the
broader concern that the various Cluster departments are unable to track
information throughout the criminal justice system in a seamless fashion, as
their key performance indicators and targets are not aligned, and IT systems
remain unintegrated.
8.5.
There are also some
inaccuracies in the report: on page 34, in respect of TRC matters, payments
were made to 216 rightful next-of-kin but the table on page 41 reflects that
payments were made to 227 rightful next-of-kin; on page 46, the Office of the
Family Advocate managed to finalise 32% of family law cases but, on page 50,
the Family Advocate’s actual performance is reflected as 31%; and on page 31,
R30 million was transferred from CARA funds to the SIU but the CARA financial
report on page 162 reflects that R20 million was transferred to the SIU.
Funding proposals
8.6.
Budget
reductions.
The Committee notes the directive to all government departments to reduce
baseline allocations by 1% in 2012/13, 2% in 2013/14 and 3% in 2014/15
respectively through ‘savings’. In the case of the Justice Vote, this is a
reduction in the baseline of R1 billion over the medium term. Although the
Committee is sensitive to the broader context that informs the directive, blind
application of the directive, giving insufficient weight to the circumstances
in which justice services are rendered, is likely to undermine effective and
efficient delivery. Specifically, the main cost driver for the Vote is
personnel, which - as observed - leaves little room for trimmings.
As it is, the
Auditor-General has ‘flagged’ the financial health of both the Department and
the NPA. The Department’s cashflow problems can be seen, for example, in the
matter of accruals: in both 2011/12 and 2012/13, the Department deferred paying
some creditors beyond 30-days, settling these debts in the next financial year.
The Auditor-General reports that the Department would have incurred unauthorised
expenditure if it had paid its creditors in the same financial year that the
debts arose. The consequences of late payments for the administration of
justice can be extremely serious. The Committee heard, for example, how
shortage of funds disrupted service delivery in the South Gauteng High Court.
Delays in paying the service provider for an off-site document storage project
resulted in the service provider being unable to pay storage fees at the
warehouse where case records were being housed. The landlord refused access to
the records, in turn, leading to delays in the hearing of cases. As the
Auditor-General notes these accruals also adversely affect cashflows going
forward in a snowball effect.
In addition, although the
Committee accepts that there is no deliberate strategy on the part of the
Department to leave vacancies unfilled and, indeed, commitments were made to
address the high vacancy rate at senior management level and in critical
occupations, unspent funds arising from unfilled posts are redirected to
operations. In 2011/12, unspent funds in Court Services - largely flowing from
vacancies – were shifted to Administration to pay for security costs. But
without personnel, the efficient and effective delivery of justice services is
likely to be compromised. The vacancy rate, especially at senior management
level (almost 20%), is an area of concern. Of course, the Department also
requires sufficient funds to ensure that additional staff are adequately
accommodated and resourced. The Committee is of the view that the budget cuts
are likely to exacerbate the problems that the Department faces in this regard.
The Department informed
the Committee of its measures to contain costs. Some of the target areas that
the Department has trimmed include reduced travel and subsistence costs;
optimal use of resources (sharing printers); use of video conferencing;
optimisation of ICT. Other cost containment measures, however, are a concern as
they are directly related to approved priorities and service delivery, such as
implementation of legislation affecting vulnerable groups; and postponement of
Master’s services (service points in Mpumalanga and Guardian’s Fund capability
in Johnannesburg).
8.7.
Additional capacity. The Committee agrees that
the appointment of new judges and magistrates should be matched with additional
capacity, specifically more prosecutors and legal aid practitioners, as well
administrative staff, if case finalisation rates are to be increased.
8.8.
The funds that the Department has
requested for additional capacity are substantial - more than R1.2 billion over
the medium term expenditure period. The Committee notes that the Department
suggested that in light of budget pressures it may be necessary to to
re-evaluate the number and/or timeframes for the appointment of judges and
magistrates. The Committee is dismayed that both the NPA and LASA have
indicated that they are not in a position to appoint additional prosecutors and
legal aid practitioners going forward. The NPA told the Committee that it is
unable to provide prosecutors for new courts. LASA is, in in fact, looking at
having to reduce its legal aid capacity to service the courts and its clients
to absorb the proposed budget cuts. It is also unable to service new courts
without the necessary budget without impacting on court performance. In the
Committee’s view, without provision for additional capacity, the benefits of
appointing more judges and magistrates for the administration of justice is
likely to be undermined.
8.9.
Start up costs for new court infrastucture and the
maintenance of court buildings
8.9.1.
The Committee notes that a number
of new lower courts have been built and several others will be completed soon
through investment in Capital Works (Tsakane, Kathlehong, Kagiso and Ntuzuma, etc.).
The Department has requested that it be allocated additional funds to cover
start-up and operational cost funding for these new lower courts. A finalised
court building merely provides the structure and requires a large input of
start-up costs, which relate to furnishing and equipping of the court building
(IT, furniture, security and inventory). There are also costs related to the
employment of judges/magistrates, prosecutors, legal aid practitioners and
administrative staff for salaries and operational costs. In short, the
directive to focus on infrastructure – in this context, building new courts –
must also take into account start-up costs, otherwise the investment in
infrastructure is wasted. The additional funds required are R91.5 million in 2013/14;
R95 million in 2014/15 and R100 million in 2015/16.
8.9.2.
The Committee acknowledges the
need for new courts but in light of increased funding pressure believes that going
forward it may be prudent to focus more on maintaining the court infrastructure
that is already in place (The Committee, in its 2012/13 budget report,
recommended the need to strike a balance between maintenance and building new
courts). It is aware that changing priorities midstream is not always easily
achieved. In addition, although the Department is struggling to spend its CAPEX
budget, largely because of delays on the part of DPW, only a limited amount of
these unspent funds may be shifted between programmes. The Committee, however,
is of the view that if the Department intends to continue with its capital
works projects, it must build its own capacity to manage/drive projects of this
nature to ensure that projects are delivered on time, within budget, and are of
quality. The Committee requests that the Department provide it with a comprehensive
written report, by 30 January 2013, on progress made with its capital projects
with targets and timeframes; details of challenges experienced; as well as
actual expenditure compared to projected expenditure. It also requests that the
Department look at conducting an assessment of the impact that new courts have
had on the communities they are intended to serve and for access to justice as
a whole.
The Committee is told that
court buildings are typically old: unless maintained routinely, the state of
these building quickly deteriorates to the extent that major work is needed to
restore them. In this regard, the Committee finds it questionable that in the
year under review no RAMP projects were undertaken (four were scheduled), as
funds were diverted to the capital projects. The Committee is also informed
that DPW has now discontinued the RAMP project although planned maintenance
will still be undertaken. Further, DPW is negotiating for the Department to
take over cleaning and gardening services – but with no accompanying transfer
of funds! The Committee requests that the Department provide it with a
comprehensive written report on progress with regard to planned maintenance of
court buildings by 30 January 2013 and be prepared to report on this matter at
the next quarterly meeting in February 2013.
8.9.3.
The Committee is concerned that in the light of the high
expenditure needed to maintain existing courts, that the Minister should give
serious consideration to placing a moratorium on the building of new courts,
whilst the current pressures on the current budget exists. It is of no use to
create more courts if the existing courts cannot administer justice
effectively, through the lack of working infrastructure.
8.10.
Muncipal
rates and taxes.
The Department has also requested additional amounts over the medium term to
address the difference between the allocation for increases for leases and
rates and taxes and actual increases, which are well above inflation). Given
the size of the Department’s footprint, above inflation increases have a
disproportionately large impact on the Department’s operational costs. The
Committee supports the request but notes that the Department has asked National
Treasury for a ‘once off payment window’ in which funds from the CAPEX budget
can be used to meet the backlog for municipal rates and taxes, which the
Committee supports.
8.11.
Unfunded
mandates. The
Committee is concerned at the consequences that unfunded mandates have for the
Department’s cashflow, especially those relating to commissions of inquiry.
Although the Department is ‘refunded’ later, these commissions do not form part
of the Department’s planned activities for the year. The resources required are
substantial – the recently appointed commission of inquiry into the tragic
incident at or near the areas commonly known as the Marikana mine in
Rustenburg, North West province is estimated to require R75 million. These
funds are drawn from the Department’s already stretched operational budget. The
Committee believes that a process or strategy needs to be found to deal with
commissions of inquiry when they arise that will not require the Department to
find funds from its operational budget. Alternatively, a special appropriation
bill should be tabled.
Audit
outcome
8.12.
The Committee believes that overall the Department’s
performance has improved, although not as much as it would wish for. Despite
the recurring qualified audit opinion, the Department’s ongoing efforts to
address the underlying causes has led to improvement on the audit outcome. The
qualification continues to relate to the adequacy of the Third Party Funds’
financial and control system: last year’s item relating to irregular
expenditure no longer appears as a qualification. Still, the Department has had
difficulties: the Auditor-General noted that of 72 planned targets, only 20
were achieved (a performance rate of 28%). The Department admitted that
performance over the review period has been seriously compromised by the focus
on audit issues, with many of the targets set by the Department either
partially or not achieved. The Auditor-General observed (in passing) to the
Committee that the worst performers in terms of predetermined objectives (the
Department, the NPA and the SIU) also experienced the greatest financial pressure.
The Committee is unable to comment on this observation but notes it.The
Auditor-General also reported problems relating to monitoring, as well as the
failure to act swiftly to ensure that targets were met – despite a new
performance monitoring system (TROUX), which is consistent with the
Department’s admission that the focus has been on addressing the audit
qualification.
In addition, the Committee
queries whether all the targets that the Department had set for itself in
2011/12 were realistic, as its impression of peformance was far more positive
than suggested by the audit outcome. The Committee is aware that, in 2011/12,
the Department was still aligning its strategic and annual perfomance plans
with the new requirements related to outcomes-based planning. Several
indicators were revised in 2012/13. The Committee, however, will monitor actual
peformance against predetermined objectives quarterly.
8.13.
Management
of Third Party Funds.
8.13.1.
Although the repeat qualified audit outcome on Third Party
Funds is disappointing, the Committee believes that there has been improvement
in managing the Third Party Funds. The Department’s strategy has not only
focussed on compiling credible baseline financial statements, but also at
addressing risk by reducing cash handling at court level, encouraging instead
use of EFT as a payment method. This has led to improved service delivery –
turnaround times for payments to maintenance beneficiaries have reduced
substantially. In addition, capacity has been improved within the TPF Unit,
more staff have been appointed at both national regional level and various
training initiatives have been undertaken. The Committee was told that annual
financial statements have been prepared for 2011/12, but had been held back
while waiting for the Auditor-General’s findings on the annual financial
statements submitted for 2010/11 (with 2009/10 submitted for comparison). The
2011/12 statements will be submitted for audit shortly.
8.13.2.
The Committee is unclear why the legal status of the TPF has
not yet been resolved. It notes that the accounting framework for TPF was
finalised with the Office of the Accountant General, which it is told is tacit
approval to submit TPF annual financial statements separately from the main
vote account. The Department has prepared a Bill that addresses the legal
status of TPF but the Committee believes that it would be preferable for the
Department to redouble its efforts to engage with National Treasury to resolve
whether it would be preferable to register the TPF as a trading entity. The
Committee requests that the Department inform it of its progress in engaging
with National Treasury on this matter within one month of this report being
tabled so that, if necessary, it can intervene to facilitate the process.
8.14.
On the audit outcome, the Committee supports the
Auditor-General’s recommendation that in-year controls are strengthened and
that financial statements are prepared montlhy (or at a minimum quarterly) with
full disclosure notes. It intends to monitor that this is done. In additon, the
Committee the specifically requests that, by 30 January 2013:
·
The Director-General provide the Committee with details of
the formal commitments made to address the audit findings.
·
The Department provide written details of all its audit action
plans and reports quarterly on progress made.
·
The Department also address the Auditor-General’s
recommendation that monthly financial statements are compiled with full
disclosure notes and reports to the Committee on this quarterly.
Governance
and operational issues
8.15.
Vacancies. The Committee notes once
more the high vacancy rate, especially at SMS level (20%). The Department
reports that it has been unable to make appointments of key top management,
including the positions of DDG: Corporate Services; CFO; and DDG:
Constitutional Development, because the quality of applications were
insufficient. The filling of senior management posts should be prioritised: the
Committee does not understand how the Department hopes to argue that it is able
to manage its operations with maximum effectiveness and efficiency without
managers. These vacancies, in the Committee’s opinion, present a stumbling
block to requests for an increased budget allocation, especially as funds from
the compensation of employees budget continue to be redirected to cover
operational shortfalls. While sympathetic to the challenges that recruitment
processes entail, the Committee urges the Department to make its appointments
urgently. The Committee requests that the Department
report to it, in writing, by 30 January 2013, on progress in filling vacancies
at senior management level and in critical areas. Further, the Department
should be prepared to continue to report quarterly, in writing, until target
vacancy levels are achieved.
8.16.
Delayed
implementation of legislation and policy priorities. The Department indicated
that it may need to reprioritise the implementation of approved legislation and
polciy priorities, including the the National Register for Sexual Offenders
esablished in terms of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, the Child Justice Act, Victim’s Charter, the one-stop child
justice centres and the Protection of Personal Information Bill (once enacted))
in order to address the financial pressures. The Committee, however, does not
support this repriotitisation. With the exception of the Protection of Personal
Information Bill, the legislation and policies address the needs of the most
vulnerable and are a priority. Nor does the Committee agree that the legislation
that will establish a framework for the protection of protection of personal
information, once enacted, should be delayed – the legislation creates a
framework that gives effect to the constitutional right to privacy and, in
addition, will contribute to improved IT governance in South Africa, with
corresponding positive implications for effective and efficient systems and,
ultimately, for improved service delivery.
8.17.
Security
at court. The
Committee appreciates that the Department’s budget to secure courts and justice
service points is stretched, despite the allocation of additional funds from
2012/13 over the medium term. Security at courts has become a
high priority as a result of increased criminal incidents relating to the
Department’s property and personnel.. The Committee is supportive of the
Department’s bid for additional funds but is alarmed at exponential growth in the cost of
securing courts: the Department has calculated that it
needs R361.4 million; R399.3 million and R441.3 million for 2013/14, 2014/15
and 2015/16 respectively to address its security needs. Over the medium-to-long
term, the Committee questions whether it is feasible to spend these amounts on
security alone. The Committee is aware that the Department has engaged with other
departments, including SAPS, to see if they can assist but with limited
success.
The Committee requests that the Department provide a written report by 30
January 2013 on progress made in rolling out of the National Security
Infrastructure project, as well as its plans to secure the remaining courts at
identified sites where the project is not being implemented because of lack of
funds. The Department is also asked to be prepared to brief the Committee on
spending and performance relating to security at the next quarterly meeing in
February-March 2013.
8.18.
Integration
of IT systems. The
Committee notes that the Department has taken steps since last year to address
challenges relating to the rollout of the integrated justice system (IJS) but
is unhappy regarding the slow pace of progress. The need for improved
co-ordination and integration of the JCPS Cluster departments’ ICT systems has
long been identified as key to the effective implementation of the Criminal
Justice System’s Seven-Point Plan. A JCPS Cluster review late last year
revealed that there were significant problems, including with the governance
and leadership of the IJS Board, which have been addressed. The Committee notes
that, for many years, large sums of money have been earmarked for this project.
While the Committee is pleased that there appears now to be limited progress -
project plans are in place with targets and timeframes - it is unclear whether
spending of earmarked funds in previous years has realised any value.
The Committee, therefore,
requests that the Auditor-General performs a performance audit on IJS and CJS
projects across all JCPS Cluster departments for the past ten years. In
addition, it requests that the Department continue to provide a written report
on progress made relating to with the IJS, clearly indicating any revised
targets and timeframes and the reasons for this, by 30 January 2013, and be
prepared to address the Committee at the next quarterly meeting in February
2013.
8.19.
Office
of the Chief Justice (OCJ). The Committee notes that the process of capacitating the
Office of the Chief Justice (OCJ) is well underway. Staff were initially
seconded from the Department to capacitate the OCJ and 132 posts are in the
process of being filled, including the appointment of a Secretary-General to
head the Office, and four Deputy Chiefs. In November 2011, the OCJ submitted a
budget structure to the Department for approval and this was then submitted to
National Treasury, although it will have its own vote only from March 2013. The
OCJ was proclaimed a government department in September 2011. The Committee
welcomes these developments and understands that this is the only way to
establish the OCJ in the short-term but urges the Minister to expedite the
tabling of legislation establishing a separate Office of the Chief Justice. The
Committee requests that it be kept informed of progress.
Performance/service delivery
8.20.
Case backlogs/court performance.
The Committee finds it hard to usefully evaluate the limited statistics
presented to it relating to court performance. The criminal case backlog
project has seen the number of backlog cases in the regional and district
courts stabilising between 34 000 and 35 000 cases per month on an outstanding
roll of about 200 000 cases. (In June 2006, outstanding cases in Regional
Courts were approximately 47 000 cases, of which approximately 20 400 were
backlogs. This has dropped to 17 272 backlog cases on an outstanding roll of 49
387 cases at end March 2012; in the District Courts, the backlog intervention
(since April 2010) has seen a 22.29% reduction in the number of backlog cases
to 17 280 on an outstanding roll of 149 872 at end March 2012). But the
project, which attracts earmarked funds, was intended as an interim measure and
the Department has indicated that it intends to explore the possibility of
creating permanent capacity. The Committee wishes to engage further with the
Department on this, given that backlog cases remain high.
The
Committee addresses its concerns regarding premature enrolment of cases later
under the NPA but notes the solutions suggested, including the need for better
resourced courts, high calibre court administrators and improved case flow
management.
The
Committee is informed that Chief Justice has actively begun to co-ordinate the
roleplayers in addressing case flow management and welcomes this.
8.21.
Truth and Reconciliation Commission process. Parliament approved
assistance measures for victims identified in terms of the Truth and
Reconciliation process. The Committee has on several occasions expressed its
dismay/displeasure/frustration at ongoing delays in giving effect to the
assistance measures that the Department must implement. The Committee welcomes
the continued progress in identifying and locating beneficiaries but is less
pleased at the slow pace at which the regulations are being finalised. The
Committee is concerned at the length of time it is taking to finalise the
regulations. The Committee expects the regulations relating to educational
assistance and medical benefits, in particular, to be promulgated before the
end of the current financial year. It is informed that consultation with
stakeholders on the housing regulations is ongoing. The lack of finality -
after so long – remains unacceptable.
Regarding the rehabilitation of communities, the Committee
has noted the Department’s proposals and urges the Minister to facilitate wide
consultation with interested and
affected communities to ensure the best procedure to be followed.
The Committee requests
that the Department continue to keep it informed, in writing, by 30 January
2013, of the progress made in identifying and making payments to outstanding
beneficiaries, as well as the progress relating to the finalisation of the
Regulations. The Department should also indicate any difficulties it may be
experiencing in obtaining the necessary co-operation from other roleplayers.
Further, the Department should be prepared to comprehensively brief the
Committee on progress at the next quarterly
meeting early next year (February – March 2013).
8.22.
Constitutional
Development. The
Department informed the Committee that it is unclear whether donor funds will
be available to run advice centres established as part of its constitutional
development programme. The Committee is concerned about the sustainability of
donor-funded projects and does not support the overlap of state resources. It
has questioned previously whether this donor-funded programme for the promotion
of awareness of constitutional rights, which the Fooundation for Human Rights
administers, does not duplicate the work of the South African Human Rights
Commission. Furthermore, although, 45 advice offices have been established,
Legal Aid South Africa not only has a call-centre but also the necessary
national footprint making it possibly better placed to offer advice. Given the
scarcity of resources, it is vital that these be used to best effect and
without duplication.
8.23.
Training of magistrates to adjudicate in
Promotion of Access to Information Act (PAIA) matters. The
Committee understands that, despite the Rules allowing magistrate courts to
hear PAIA cases having come into operation, a lack of training as required by
the Act has prevented these courts from being used to adjudicate PAIA matters.
The Committee asks the Department to advise the Committee when PAIA disputes
will be able to be mediated in the Magistrate’s Courts.
8.24.
Vulnerable groups.
Increased access to justice of women, children and persons with disabilities is
a priority of government and of the Department. The Committee has been briefed
in the year on improvements in payment of maintenance to beneficiaries, as well
as improvements to service delivery in the Master’s Office and welcomes these.
The Committee requests that the Department continue to provide a break-down of
expenditure (against planned expenditure) for vulnerable groups quarterly.
8.24.1. Maintenance. Despite the improvements that the Department has initiated
to the maintenance system, members continue to receive complaints from members
of the public. The Committee recommends that, together, the Department and the
NPA develop a plan for improved handling of maintenance cases, paying
particular attention to the co-ordination of activities of justice officials
and maintenance prosecutors. In addition, the Committee is of the view that the
present system for determining the amount of maintenance is unsatisfactory but
is unclear whether this relates to implementation or whether the law requires
amending. The Committee understands that the South African Law Reform
Commission are investigating reforms to the Maintenance Act and welcomes this.
The Committee supports more stringent enforcement mechanisms for defaulters,
for example, restrictions on defaulters who travel abroad.
The Committee notes that the Annual
Report did not contain statistics on maintenance cases. It requests the
Department to provide these to the Committee by 22 November 2012.
8.24.2. Guardian’s
Fund. The Committee is unclear regarding the impact of the
budget shortfalls on plans to rollout Guardian’s Fund services to identified
sites. The rollout was planned for this financial year but the Department
indicated that expansion of Guardian’s Fund capability to Johannesburg may be
postponed. It is unclear as to how far the Department has come in rolling out
serives at any of the other previously identified sites. The Committee has
previously expressed dismay that there are only six offices at present (in
Grahamstown; Pretoria; Kimberley; Pietermaritzburg; Bloemfontein and Cape Town)
and these are not located at the largest urban centres. Identified sites for
rollout include Master’s Offices at Mahikeng; Nelspruit; Thohoyandou;
Polokwane; Durban; Port Elizabeth; Bisho; and Mthatha and Magistrate’s Courts
at Nelspruit; Atteridgeville; Johannesburg; George; Madadeni; Empangeni; Port
Shepstone; Butterworth and East London. The Committee views the rollout of
Guardian’s Fund services as a priority and would not support any
reprioritization of funds from this project. At a minimum, the Department
should at least explore using existing service points as a document point but
is aware that this is not ideal. It requests that the Department report in
writing by 30 January on progress to expand Guardian’s Fund services, with
targets and timeframes. The Department should also be prepared to address the
Committee on this at the next quarterly meeting in February- March 2013).
8.24.3.
Domestic
Violence. The Committee is unable to comment on performance
relating to domestic violence as the annual report contains no statistical
information on this. The Committee specifically requests that the Department
provide these statistics for 2011/12 by 22 November 2012.
In addition, the Committee asks that it be kept informed of
the findings of the Interdepartmental Domestic Violence Task Team. A progress
report, in writing, is requested by 22 November 2012.
8.24.4.
Child
Justice Act. The Committee is not satisfied overall with
progress in implementing the Child Justice Act. The Committee is in possession
of the second report on the implementation of the Child Justice Act, which was
referred to it recently. It intends to focus on this matter in detail early
next year, engaging with all stakeholders on the implementation of the Act. In
addition, there have been a number of academic reports evaluating
implementation of the Child Justice Act, which will form part of the
Committee’s enquiry. The Committee notes, in the meantime, the continued
downward trend in the number of children who are being assisted in terms of the
Act but is unclear as to why this is so or whether this is a positive
development.
The Committee notes too that the planned rollout of two
One-Stop Child Justice Centres in 2011/12 did not take place, although four
were planned for this year at a cost of R26 million. The Committee was told now
that two were to be established in Klerksdorp and East London but was not
informed of any scientific basis for the selection of these areas. It urges the
Department to ensure that any new One-Stop Child Justice centres are placed in
the areas where they will be of maximum benefit.
The Committee is pleased that the One-Stop Child
Justice Centre at Mangaung was provided with desperately needed resources at
the beginning of 2012 and that a process to extend its jurisdiction for it to
be able to deal with regional court criminal matters is underway as a matter of
priority. The Committee requests that the Department continue to keep it
informed of progress on the rollout of the One-Stop Child Justice Centres and
on the extension of jurisdiction at the Mangaung Centre, in writing, by 30
January 2013.
8.24.5.
Dedicated
sexual offence courts. The Committee is appalled at the
low conviction rate for sexual offences and has expressed its view previously
on this. It remains firmly of the view that sexual offence matters require
specialist skills and, for this reason, it supports dedicated sexual offence
courts. The trend, however, has been to ‘mainstream’ these courts. The
Committee is informed that a Task Team on Sexual Offences Courts (consisting of
representatives from the NPA, Regional Court judiciary; Judiciary; Justice
Sector Strengthening Programme; LASA & Foundation for Human Rights) has
been established to investigate the feasibility of re-introducing dedicated
Sexual Offences Courts. Preliminary findings were to be available at the end of
August 2012. The Committee requests that it is briefed, in writing, on the Task
Team’s progress in writing, by 22 November 2012. Further, that it is briefed on
the Team’s findings, once finalised, when these become available.
9.
National Prosecuting
Authority
9.1.
The Committee once again congratulates the NPA for the
excellent effort in maintaining an unqualified audit opinion (with emphasis of
matter). It has already commented on the Auditor-General’s findings relating to
the NPA’s financial health and, more generally, of its concern regarding the
impact of further budget reduction for service delivery and the combating of
crime. The NPA has indicated very clearly that it will need to revise its
targets downwards to accommodate the budget reductions, which will negatively
affect effectiveness in combating crime.
9.2.
The Committee was informed that the NPA’s current
compensation of employee’s budget for 2012/13 is under severe strain: the NPA
is not able to fill any vacancies at present; nor is it able to provide
prosecutors for new courts. (The Committee notes that the NPA has ‘solved’ the
problem of overall high vacancy rates by no longer counting posts for which it
has no funds, reducing the overall vacancy rate from 15% for 2011/12 to 0.3%
this year). The NPA requests an additional amount of R755 million over the
medium term for the funding of additional capacity, which the Committee
supports. The Committee is concerned that the budget cuts will adversely affect
the ability of the NPA to perform its key function of prosecuting.
9.3.
The Committee is concerned at the high number of acting
positions within the NPA, including that of the acting CEO. The Committee urges
that the NPA (and, in the case of the position of the CEO, the Director-General:
Justice and Constitutional Development) ensure that these positions are filled
on a permanent basis as a matter of urgency.
9.4.
The Committee notes the NPA’s potential financial liability
in connection with a recent court ruling on job evaluation. The Committee is
informed that the NPA is petitioning the Constitutional Court on the decision
and requests that it is kept informed of the outcome.
9.5.
Concerns have been raised relating to the NPA’s accounting
status and governance arrangements. At present, although the NPA’s
prosecutorial independence is constitutionally guaranteed; empowering
legislation provides that its accounting officer is the DG: Justice and
Constitutional Development. In addition, the NPA requires an exemption annually
for it to prepare separate annual financial statements. Amendments to the
National Prosecuting Authority are being prepared to resolve these problems,
further strengthening the NPA’s independence.
9.6.
The Committee has already indicated its concerns relating to
court performance and unnecessary delays in court processes. It believes that
the conduct of all justice officials, prosecutors and public defenders needs to
be strictly monitored and, if they are responsible for the causing
unnecessary/unjustifiable delays, they should be sanctioned.
9.7.
The NPA agreed that the discrepancies between the number of
arrests, the number of cases enrolled and the number of criminal cases
finalised is an area of concern. The NPA reports that on the issue of premature
enrolment of investigations, there are policies in place but these are not
being followed. The Committee does not understand why this is and requests that
the NPA provide it, in writing, by 30 January 2013, with more information on
the policies and the challenges that it is facing with their use. The Committee
does agree that the NPA can play an important role in earlier stages before
matters are enrolled and notes that, in the past, it has done so, working
effectively as part of project teams with SAPS.
9.8.
The NPA has requested that it
receive additional funds (R100 million over the medium term) for the
institutionalisation of donor-funded positions within the Thuthuzela Care
Centres (TCCs). The Committee notes that the National Treasury’s response to
its previous recommendation regarding funding of TCC’s was favourable (although
only R10 million was allocated), as well as its suggestion that existing
vacancies within the NPA could be used to absorb the donor-funded positions.
Although as the NPA has no vacancies, having done away with unfunded posts, and
cannot afford to employ additional capacity from its existing compensation of
employees’ budget, this argument no longer seems applicable. Given the priority
on combating violent crime, especially sexual violence against women and
children, the Committee strongly supports the NPA’s request for additional
funding for the institutionalisation of donor-funded positions.
10.
Legal Aid South Africa
10.1.
The Committee congratulates Legal Aid
South Africa on receiving an unqualified audit for the past 10 years, with no
matters of emphasis for the past seven years. Once again, LASA impressed the
Committee greatly with its strategic vision and planning, management of
resources and considerable achievements. It notes, however, that Auditor-General
had raised the issue of non-compliance with prescripts and regulations,
specifically that the Legal Aid South Africa had made use of some Judicare
practitioners, who did not have tax clearance certificates but that this had
not affected Legal Aid South Africa’s audit outcome. The Committee is satisfied
that Legal Aid South Africa has taken steps to address the problem as soon as
it was brought to its attention: Judicare practitioners, without tax clearances
certificate, are no longer eligible to be briefed.
10.2.
The proposed budget cuts will reduce
Legal Aid South Africa’s baseline allocation by R84.5 million over the medium
term. Although a key stakeholder in the criminal justice system, Legal Aid
South Africa’s budget is considerably smaller than that of the NPA and feels
budget cuts disproportionately. Further, the majority of its allocation is
committed to salaries, which leaves it with very little room to cut costs
without reducing posts. Legal Aid South Africa reports that it is able to
absorb the R13 million reduction of its 2013/14 budget without it having any
impact on court coverage in the next financial year but that – worryingly -
there is no provision for additional capacity for new courts. Further, from
2014/15 onwards, the budget cuts will directly impact on court coverage (court
coverage will be reduced by 23 posts in 2014/15 and 60 posts in 2015/16). In
addition, the Judicare budget will be reduced by 6% for both 2014/15 and
2015/16. The current coverage of courts is already inadequate and the
reductions will exacerbate this. The Committee is extremely concerned about the
impact of the reductions on the efficiency and effectiveness of the criminal
justice system as a whole.
10.3.
The Committee supports the need
for more practitioners to increase coverage in all courts. It strongly feels
that insufficient capacity (including relief capacity) has a considerable
adverse effect on case-flow, contributing to backlogs and, generally, to delays
in the criminal justice system. The Committee, therefore, supports the
additional funding request to increase practitioner capacity at courts at
district and regional court level and at the High Court Units by R70.4 million,
R81.6 million and R36.5 million respectively over the medium term.
10.4.
Further, it is alarmed that Legal
Aid South Africa will be unable to provide additional
capacity. Preliminary figures presented estimate that Legal Aid
South Africa will need R12.7 million to provide legal aid
support at the newly established Palm Ridge, Tsakane and Kagiso Magistrates
Courts. This does not appear to take into account the costs of these additional
posts going forward, nor does it into account new courts being planned for
other provinces or civil regional courts. The Committee supports Legal
Aid South Africa in its request that in future any court
expansion programmes factor in a budget allocation for legal aid capacity to
service those courts if they are to be functional.
10.5.
The Committee continues to
support Legal Aid South Africa’s goal
of expanding expand its civil work and impact litigation, despite the financial
constraints that it faces in this regard. It supports its request for
additional funding for increased capacity of R60 million over the medium term.
10.6.
The Committee also notes that Legal
Aid South Africa did not get an additional R7.5 million that the Committee
recommended for its IT needs in 2012/13. It is disappointed at National
Treasury’s response: The Committee feels that Legal Aid South Africa uses its
IT resources extremely effectively and should be supported in this.
11.
Special Investigating
Unit
11.1.
The Committee congratulates the SIU
on its unqualified audit. However, there is some deterioration in the audit
outcome, as the Auditor-General reported two matters of emphasis, whereas in
previous years there were none.
11.2.
The Committee understands that the
legislation to amend the SIU’s enabling legislation to address the challenges
with its funding model was enacted in October 2012. The Committee is told that
the SIU is still experiencing some difficulties with its revenue flows, despite
having received additional funding to tide it over until the necessary
legislation was in place. The SIU expects that it will take some time for the
situation to be rectified and is engaging with National Treasury on this.
11.3.
The Committee notes that the
position of the Head of the SIU remains vacant and is presently being filled in
an acting capacity. It urges that the appointment is made speedily.
11.4.
The SIU reported that it had to
terminate the services of more than 100 consultants providing specialised
forensic skills. In addition, the filling of permanent positions to grow
internal capacity was put on hold until the necessary statutory amendments were
enacted. The Committee understands the SIU’s reluctance to take on permanent staff
if it cannot cover salaries from the government grant. However, given the
importance of SIU’s contribution to fighting corruption, the Committee believes
that it will need to address capacity (whether permanent or contractual) in the
near future. The Committee also notes that there have been several resignations
of experienced/senior staff members and urges that these positions are filled.
The Committee requests that the SIU addresses it on its establishment,
including vacancies, at its next meeting in February or March 2013.
12.
South African Human
Rights Commission
12.1.
The Committee congratulates
the Commission on receiving an unqualified audit opinion with no emphasis of
matter for 2011/12 for the third year in a row.
12.2.
The Commission’s performance has improved,
although the Committee queried whether the Commission had reached 89% of its
performance targets (a significant increase from 52%) as claimed. However, it
accepts the explanation that the Commission provided to clarify its concern and
welcomes the Auditor General’s assurance (sought by the Commission) that the
matter raised by the Committee would not have any material impact on his
opinion. The Committee does note small inconsistencies in the legal statistics
presented, which it feels detract from the quality of the report. The Committee
requests that the Commission ensure that, in future, all statistics are
carefully checked for consistency and accuracy before the report is tabled.
12.3.
The Commission has argued
persuasively that reduction of its baseline allocation in the short term is not
ideal if it is to fully realise its aims when embarking on a three year
reprioritisation process. It also highlights the positive relationship between
budget allocation and performance levels: The Commission has had modest
increases to its budget allocation since 2008/09 and its performance has
improved. It advocates that its funds are not reduced and that it is allocated
additional funds for it to achieve its short term goals, especially in 2013/14.
However, the Commission also makes important proposals to implement significant
cost savings in rental and related costs from 2015/16: a proposal that which
the Committee approves in principle. The Committee requests that it is kept
updated on progress relating to the proposal to share office space with other
Chapter 9 institutions quarterly.
12.4.
The Committee requested that the
Commission report separately on its PAIA mandate, which the Commission has
done. The Committee finds the report useful and suggests that the Commission brief
it separately on this. It suggests that, in future, that when the Commission
produces substantive reports of this kind, it formally tables them with a
request that the reports be referred for consideration and report to the House.
The Committee notes that the Commission intends to formally table several
important reports (including the PAIA report) in the near future and would
support that where possible they are referred to the relevant committee for
consideration and report.
12.5.
The Committee will also engage
formally with the Office on Institutions Supporting Democracy and Related
Institutions in the Deputy-Speaker’s Office to clarify its role in supporting
these institutions. It notes the attendance of officials from the OISD at
relevant committee meetings, which it has found useful.
12.6.
The Commission has requested almost
R6.7 million for its PAIA mandate. However, proposed amendments will transfer
the Commission’s mandate relating to PAIA matters to a newly created
Information Regulator at a later date once the relevant legislation is enacted.
This is likely to take some time and the Commission will need to be
appropriately capacitated in the meantime. Funds allocated would need to take
into account the proposed changes to ensure that resources are not wasted.
12.7.
The Commission has requested
additional funds to enhance its legal services capacity. The Commission has
appointed new senior legal offices and legal officers but proposes that
additional legally qualified persons are employed on short-term contracts of
between 1-3 months to assist in reducing the complaint workload while these
newly appointed staff members are being trained and orientated to take up their
positions. It estimates that it will need R12.3 million for this. In addition,
the Commission has requested additional funds to develop resources and training
materials for personnel to reduce dependency and expenses incurred by reliance
on external service providers. The Commission seeks R1.5 million for this.
12.8.
The Commission told the Committee that
it has a number of cases that require resolution through formal processes in
the Equality Court but has been unable to initiate proceedings because of
budget constraints. The Committee has suggested that the Commission seek
assistance from LASA, which has increasingly capacity to engage in civil
litigation, including high impact litigation. The Committee is pleased that the
Commission has contacted LASA at its suggestion and requests that it is kept
informed of developments.
12.9.
The Commission has a new complaints-handling
procedure but its systems are inefficient and ineffective, lacking an
electronic case management system. The Commission has requested R2.13 million
to upgrade the system’s hardware and infrastructure. This would also include
training staff on using the new system. The Committee supports this request as
it agrees that it will promote the Commission’s greater efficiency and
effectiveness in fulfilling its protection mandate.
12.10. The
Committee also supports additional funds to improve the Commission’s IT
infrastructure (email and internet system), which is dysfunctional. The
Commission has requested R3.43 million for this purpose.
12.11. The
Committee notes the Commission’s request that it proposes a plan of action to
assist the Commission to hold non-compliant departments accountable (This
relates to either non-compliance with the Commission’s request for information
in terms of section 184(3) of the Constitution or outstanding international
reporting obligations). The Committee notes the list provided of non-compliant
government departments, has agreed that a plan of action should be forthcoming
and intends to place this matter on the agenda when it holds its strategic
planning session at the beginning of next year. In the meantime, it has
requested its support staff to compile draft proposals to form the basis for
discussion.
12.12. The
Committee was appalled to learn that commissioners lack the budget to travel
internally to undertake investigations, meet with stakeholders, etc. It
requested that the Commission provide it with funding proposals, which was
done. The following amounts are proposed: R2.21 million for 2013/14; R2.43
million for 2014/14 and R2.67 million for 2015/16.
12.13. The
Committee supports the opportunity for the Chairperson of the Commission to
chair the International Co-ordinating Committee of National Human Rights
Institutions (ICC) and agrees that it would bring not only prestige but also
important opportunities for sharing of knowledge in the international arena.
The Commission informed the Committee that it has the necessary institutional
framework to house the ICC Chairperson. The travel associated with the
Chairperson and related costs will be covered by the ICC’s budget. The
Commission would be required to take on additional human resources and related
incidental expenses to assist the Chairperson in carrying out his functions.
The Commission does not have surplus funds in its current budget and as
requested the Justice Department, as well as the Department of International
Relations and Co-ordination for assistance. Estimated costs are R2.33 million
annually.
13.
Public Protector
13.1.
The Committee congratulates the
Public Protector on its unqualified audit opinion but notes the matters of
emphasis. The first relates to the impairment of the case management system
resulting in an impairment loss and, the second, to the PP as a ‘going
concern’, in which an accumulated loss of R5.3 million, with current
liabilities, exceeded its total assets by R1.18 million). The PP provided
details of the management audit plan to address these two matters. The
Committee requests that the PP update it quarterly on progress made, as well as
actual expenditure when compared to projected expenditure.
13.2.
The Committee notes that the PP
requests additional funding for more investigators and to increase its
footprint. Further, the Adjustments Appropriation Bill [B32 – 2012] allocates
an additional R8 million for ‘investigations that target the systemic causes of
problems and complaints of organs of state’. The Committee is, however,
concerned that neither the PP’s annual report or the presentations to the
Committee provide much in the way of information regarding the systemic causes
of problems against organs of state. For example, the PP produced figures
showing that the top state institution repeatedly complained against in 2011/12
was Justice – with 1254 complaints. After questioning, the PP produced a
breakdown of this figure which divided these complaints into categories such as
‘appeals/applications for leave to appeal not heard/ not on the roll’, ‘delay
in processing various maintenance cases’ and ‘Master’s Office’. This
categorisation did not assist the Committee to understand what the systemic
causes of the problems were. The Committee was eager to put some of the issues
to the Department, for example, during its hearings the following week.
Although the PP promised to provide the Committee with the information, what
the Committee received did not assist it any further and the Committee is none
the wiser as to what the problems actually are. Indeed, from the categorisation
provided, the Committee is concerned that a number of cases appear to relate to
matters outside the PP’s jurisdiction, such as delays in judgements and labour
relations matters within the Department.
The
Committee, therefore, believes that the PP could have a greater impact on the
lives of South Africans if the Office were to focus more on identifying the
systemic problems that need to be addressed rather than investigating almost
every complaint that is made. This approach would ensure that Departments could
be directed as to the areas that need to be corrected in order to improve
service delivery.
The
parliamentary committees can play an invaluable role in monitoring the
implementation of the recommendations to address these systemic problems.
The
Committee is also concerned that there appears to be inadequate communication
between the PP and senior officials of the Department of Justice and
Constitutional Development regarding the PP’s reports (The Committee’s
attention was drawn in particular to the Special Report (No. 4 of 2011/12:
Department, President’s Fund entitled to pay victims their dues with interest).
The PP is urged to ensure that the Director General of a Department that is
being complained about is timeously informed of the complaint, allowed to
respond to it, and that the findings are also communicated to both the
Director-General and the Minister.
13.3.
The Committee queries the geographic
spread of capacity at present, with least populated provinces (such as,
Northern Cape and North West) having considerable capacity. The Committee has
in the past raised its concern over the manner in which the PP has distributed
resources and the need for rationalisation, which does not appear to have been
heeded.
13.4.
Surprisingly, the Committee was told
that the PP is unlikely to be required to implement budget reductions, unlike
all the other institutions that report to it. The Committee notes too that the
PP has received additional funds for 2012/13 for systemic investigations.
13.5.
On the matter of opening more
offices, the Committee does not support the expansion of the PP’s footprint in
the medium term, although in the absence of a plan it accepts that it cannot
fairly evaluate the proposed expansion. The Committee strongly believes that
the PP is not using its present resources as effectively and efficiently as it
could. Given the scarcity of resources, the Committee strongly believes that
the PP needs to investigate alternative/innovative ways of expanding its
footprint in the meantime.
Part 5
14.
Summary of reporting requests
14.1.
Department of Justice and
Constitutional Development
Reporting matter |
Action required |
Timeframe |
Progress
with regard to planned maintenance of court buildings. (See paragraph 8.9.2) |
Written report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Third
Party Funds: Progress regarding finalising legal status, including engagement
with National Treasury. (See paragraph 8.13.2) |
Written report Briefing |
Within one month of this report being tabled Next quarterly meeting in January – March 2013 (see Committee programme) |
Audit
outcome: ·
Details of the formal commitments made to address the
audit findings. ·
Details of all its audit action plans. ·
Quarterly progress reports. ·
Progress in complying with AG’s recommendation to compile
monthly (or at minimum quarterly) financial statements with full disclosure
notes. (See paragraph
8.14) |
Written report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Progress
report on filling vacancies at senior management level (See paragraph 8.15) |
Written report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Security.
Progress made rolling out of National Infrastructure Porject and plan sto
secure remaining courts at identified sites. Expenditure
relating to security. (See paragraph 8.17) |
Written report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Criminal Justice Revamp: IJS - Progress to date,
clearly indicating any revised targets and timeframes and the reasons for
this. (See paragraph 8.18) |
Written report Briefing |
30 January 2013, Next quarterly meeting in January – March 2013 (see Committee programme) |
Offcie of
the Chief Justice: Progress in establishing the OCJ (See
paragraph 8.19) |
Written report |
30 January 2013 |
Truth and
Reconciliation process: Progress made in identifying and making payments to
outstanding beneficiaries, as well as the progress relating to the
finalisation of the Regulations. (See paragraph 8.21) |
Written report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Provision of maintenance case statistics 2011/12 (See
paragraph 8.24.1) |
Wriiten
report |
22 November 2012 |
Progress
on expansion of Guardian’s Fund services, with targets and timeframes. The
Department should also be prepared to address the Committee on this at the
next quarterly meeting. (See
paragraph 8.24.2) |
Written
report Briefing |
30 January 2013 Next quarterly meeting in January – March 2013 (see Committee programme) |
Domestic Violence: Provision of statistics for Domestic Violence
cases for 2011/12. Progress report on findings of the Interdepartmental
Domestic Violence Task Team. (See paragraph 8.24.3) |
Written report Written report |
22 November 2012 22 November 2012 |
Child Justice: Progress on the
rollout of the One-Stop Child Justice Centres and on the extension of
jurisdiction at the Mangaung Centre. (See paragraph 8.24.4) |
Written report |
30 January 2013 |
Specialised sexual offence courts: Progress
made by Task Team. (See paragraph 8.24.5) |
Written report Briefing |
22 November 2012 Refer to Committee programme |
15.
Summary of
recommendations relating to requests for additional funding for the MTEF
15.1.
The Committee recommends that
the Department of Justice be provided with the following additional funds for
the MTEF period:
Description (R 000) |
2013/14 |
2014/15 |
2015/16 |
Additional
capacity |
200 000 |
420 000 |
660 000 |
Start-up
and operational costs of new courts |
91 500 |
95 000 |
100 000 |
Municipal
rates and taxes and leased accommodation |
250 500 |
293 300 |
345 100 |
Security |
361 488 |
399 238 |
441 337 |
Total |
903 488 |
1 207 538 |
1 546 437 |
15.2.
The Committee recommends that the
National Prosecuting Authority be provided with the following additional funds
for the MTEF period:
Description
(R’000) |
2013/14 |
2014/15 |
2015/16 |
Total
|
Funding of vacant posts |
120 000 |
306 000 |
328 950 |
754 950 |
Job creation |
45 954 |
48 358 |
50 888 |
145 200 |
Labour Court judgment for OSD implementation |
200 000 |
42 400 |
44 944 |
287 344 |
AFU- curator fees and increase in capacity |
41 270 |
43 672 |
46 214 |
131 156 |
Institutionalisation of donor funded positions with
TCCs |
31 727 |
33 356 |
35 022 |
100 105 |
Increase in SCCU capacity to achieve JCPS putput 3
and 5 |
3 505 |
3 715 |
3 937 |
11 157 |
Accountability status of the NPA |
200 000 |
50,000 |
65 000 |
315 000 |
OWP- increase in capacity and acquisition of covert
armoured vehicles |
112 508 |
119 132 |
125 815 |
357 456 |
Security and risk business unit- purchasing of
capital and security equipment |
5 000 |
6 000 |
7 000 |
18 000 |
Total
|
759
964 |
652
633 |
707
771 |
2
120 368 |
15.3.
The Committee recommends that
the Legal Aid South Africa be provided with the following additional funds for
the MTEF period to:
Description (R’000) |
2013/14 |
2014/15 |
2015/16 |
MTEF |
Increase
in practitioner per court ratio (153 posts at District Courts, Regional
Courts and High Courts to increase coverage to 100%, 110% and 125%
respectively) |
59 193.3 |
62 744.9 |
70 509.6 |
188 447.8 |
Increased
civil capacity (40 new posts) |
18 832.6 |
19 962.6 |
21 160.3 |
59 955.5 |
Expansion
of the national footprint |
33 600 |
28 620 |
32 502.4 |
92 557.2 |
IT
infrastructure (upgrading of) |
7 600 |
2 100 |
2 166 |
11 866 |
Total |
119 225.9 |
113 427.5 |
120 173.1 |
352 826.5 |
15.4.
The Committee recommends that the South
African Human Rights Commission be provided with the following additional funds
for the MTEF period:
Description (R’000) |
2013/14 |
2014/15 |
2015/16 |
Legal Services |
|||
Legal services human resources capacity
for complaints handling |
R12. 3 |
R1.14 |
R1.14 |
Internal capacity building of legal
practitioners |
R1.5 |
R1.75 |
R1.75 |
Procurement of Experienced Legal
Expertise for litigation of complaints |
R1.5 |
R2.18 |
R2.18 |
Revamping Legal Case Management System |
R2.13 |
R1.12 |
R1.12 |
Setting-up a call centre for complaints
processing |
R1.7 |
R1.84 |
R1.84 |
Human Rights Advocacy |
|||
Developing Advocacy and Education
capacity and materials |
R1.6 |
R1.9 |
R1.9 |
Research |
|||
Research reports, namely ESR, Equality
and Focus Areas |
R1.95 |
R2.14 |
R2.14 |
4.
Promotion of access to information |
|||
Monitoring, compliance and advocacy of
PAIA |
R6,7 |
R2.7 |
R2.7 |
IT Infrastructure |
R3.43 |
R1.7 |
R1.7 |
Total |
R32.81 |
R16. 4 |
R16.4 |
15.4.1. In addition,
the following items were identified as requiring additional funding during the
BRRR process:
16.
Appreciation
16.1.
The Committee thanks the Director General and all officials
who appeared before the Committee for their co-operation.
16.2.
The Committee thanks the Acting National Director of Public
Prosecutions and her staff for their co-operation in this process.
16.3.
The Committee also wishes to thank the Public Protector, the
Chairperson and Commissioners of the South African Human Rights Commission, the
Chairperson (in absentia) and Board of Legal Aid South Africa, and the Acting
Head of the Special Investigating Unit, as well as all respective staff members
that appeared before the Committee for their co-operation.
Report to be considered