ATC151026: Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 22 October 2015

Justice and Correctional Services

Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 22 October 2015

The Portfolio Committee on Justice and Correctional Services, 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 South Africa, Special Investigating Unit, South African Human Rights Commission and Public Protector, as well as the Office of the Chief Justice, reports as follows:

Introduction

The Money Bills Procedures and Related Matters Amendment 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 may make recommendations on the future allocation of resources. These BRRR are also source documents for the Standing Committee on Appropriations when it makes recommendations to the House on the Medium-Term Budget Policy Statement (MTBPS). The annual review of expenditure and performance for 2014/15 forms part of this process.

The Committee oversees the Department of Justice and Constitutional Development and several other institutions that receive their allocation under the Justice and Constitutional Development Vote. These other institutions, include the National Prosecuting Authority (NPA); Legal Aid South Africa; Special Investigating Unit (SIU); South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA).

The Justice and Constitutional Development Vote has five programmes:

The Department of Justice and Constitutional Development is directly responsible for the Administration, Court Services, State Legal Services and National Prosecuting Authority programmes. Until 1 April 2015, when it became a fully-fledged department with its own Vote, the Office of the Chief Justice (OCJ) was funded under the Court Services programme.
Programme 5 contains allocations to various auxiliary and associated services, including transfer payments to Legal Aid South Africa and the Special Investigating Unit (SIU), as well as to two of the State Institutions Supporting Democracy – the South African Human Rights Commission (SAHRC) and the Public Protector South Africa (PPSA).
Programme 5 also includes the Justice Modernisation sub-programme, which is responsible for the design and implementation of IT infrastructure for the integration of business processes within the criminal justice system, involving Justice Crime Prevention and Security (JCPS) Cluster departments.

The Committee also oversees the Office of the Chief Justice: On 1 April 2015, the Office of Chief Justice (OCJ) became a fully-fledged Department with its own Vote – Vote 22: Office of the Chief Justice and Judicial Administration marking a significant change to the structure of the Vote: Justice and Constitutional Development. The administration and allocation for the Superior Courts, Judicial Services Commission (JSC) and South African Judicial Education Institute (SAJEI) has been transferred to the OCJ, together with personnel. The funds for judges’ salaries have also been transferred to the new Vote. Before this, funding for the OCJ formed part of Programme 2: Court Services: Constitutional Court.

Further, although the NPA is a programme within the Vote account for which the DG: Justice is the accounting officer, in previous years it reported separately on its performance and spending. National Treasury previously granted an exemption that allowed the NPA to prepare separate financial and performance reports and be audited on its own. However, the exemption was only until 2013/14. From 2014/15, the performance information and financial statements of the NPA is included in the Department’s annual report, although the (former) NDPP prepared a report on the NPA’s performance for 2014/15 in terms of section 22(4)(g) and submitted it in terms of section 35 of the National Prosecuting Authority Act, 1998.

Method

The Committee engaged with the Justice Department and NPA, Legal Aid SA, SIU, SAHRC and PP on their respective annual performance and spending for 2014/15. The meetings also addressed service delivery performance and spending to date (until the end of the First Quarter 2015/16), as well as any additional funding needs for the 2016 MTEF.

The Committee also engaged with the OCJ on its performance and spending for the First Quarter of 2015/16 on 13 October 2015.

These briefings took place over a two-week period in October 2015, as follows:

Legal Aid South Africa, 13 October 2015.
Office of the Chief Justice and Judicial Administration, 14 October 2015.
National Prosecuting Authority, 14 October 2015.
Special Investigating Unit, 14 October 2015.
Department of Justice and Constitutional Development, 15 October 2015.
South African Human Rights Commission, 16 October 2015.
Public Protector, 16 October 2015.

The Committee met with the Auditor-General on the audit outcomes for the Vote on 13 October 2015.

Copies of all the presentations are available from the committee secretary.

Structure of the report

This Report comprises five parts:

Part 1 provides:
- An overview of the key policy focuses for 2014/15 and 2015/16.
- An overview of the allocation to the Justice and Constitutional Development Vote.
- A discussion of expenditure patterns for 2014/15 and the First Quarter 2015/16.
- The Minister of Finance’s response to the 2014 Budgetary Review and Recommendation Reports’ Recommendations.
- A summary of the audit outcome for the Department’s financial statements, as well as those of the relevant institutions, for 2014/15.

Part 2 gives:
- An overview of the strategic and operational environment that informs the delivery of justice services by the Department; and
- Selected performance information, as reported to the Committee, for Programme 1: Administration; Programme 2: Court Services and Programme 3: State Legal Services; Programme 4: National Prosecuting Authority; and Programme 5: Justice Modernisation.
Part 4 contains selected performance information for Programme 5: Legal Aid SA; SIU; SAHRC and PP.
Part 5 contains selected performance information for the Office of the Chief Justice.
Part 6 sets out the Committee’s observations.
Part 7 sets out the Committee’s recommendations.

Part 1

Overview of key policy focus areas and related strategies

Among others, the National Development Plan (NDP) requires that we build safer communities; promote accountability and fight corruption; and strengthen judicial governance and the rule of law. To give effect to the NDP, Government has now developed actions and targets, which are found in the Medium Term Strategic Framework (MTSF) 2014-2019. The MTSF was approved during the 2014/15 financial year: Departments were to begin aligning their strategic and operational planning in 2014/15 with full alignment from 2015/16 onwards.

In terms of the MTSF, it is possible to assign responsibilities to Justice in four key areas:

Safety (by contributing to an efficient and effective Criminal Justice system; securing cyber space; and reducing corruption in the public and private sectors).
Public Service (by strengthening protection of whistle-blowers and creating an open, responsive and accountable public service through the Promotion of Access to Information Act, 2000).
Social protection (by providing certain justice services to the public, such as maintenance and its administration of the Guardians Fund).
Nation building and social cohesion (by promoting knowledge of the Constitution and fostering Constitutional values, and enabling participation and communication).
1. There is need to accelerate transformative processes to ensure a justice system that is able to deliver on constitutional imperatives. The establishment and capacitation of the Office of the Chief Justice (OCJ) is regarded as vital to transforming the judicial system. During 2013/14 plans were made to migrate the Superior Courts to the OCJ, in line with Superior Courts Act, 2013, with the intention that the OCJ have its own Vote by 1 April 2015. On 1 October 2014, 1 486 staff were transferred from the Department of Justice and Constitutional Development to the OCJ with attached administrative functions. An ad hoc budget of R1.4 billion for 2014/15 was also transferred. On 1 April 2015, the OCJ was indeed established as a fully-fledged department with its own Vote.

A policy and legislative framework is being developed on court administration: the intention is to replace the current OCJ model. The model that is being developed will be subject to public discourse in the form of a colloquium to be held towards the end of 2015/16.

The transformation of the “Lower” courts to advance access to justice is also to be addressed. The Superior Courts Act sets out a blueprint that will guide revision of the Magistrates Court Act, 1944. The overhaul will also look at less adversarial forms of adjudication, including community courts and court-annexed mediation.

Multi-lingualism as a constitutional imperative requires parity of languages and, in the legal sector, calls for development of the use of indigenous African languages in our courts. The Department is looking into how to bring this about. There is a need for proficiency in an African language as a prerequisite for attaining an LLB degree. Further, at the level of continuing education, SAJEI as part of social context training, has a role in developing appropriate training on diversity and indigenous language proficiency.

The traditional justice system has a vital role to play in the administration of justice. Traditional courts do not need legislation to exist: the Constitution recognizes these courts. Further, these courts, which continue to dispense justice according to African indigenous law, operate under the Black Administration Act, 1927. However, legislation is needed to regularize the courts and to bring them in line with the Constitution, as well address the procedural differences of traditional courts.

Overview of Justice and Constitutional Development Vote: Budget allocation and expenditure 2014/2015 and 2015/16

Appropriation 2014/15 and 2015/16

The final appropriation to the Justice and Constitutional Development Vote for 2014/15 was R17.8 billion. Of this, R15.1 billion was allocated to the five programmes under the Vote (Administration, Court Services, State Legal Services, National Prosecuting Authority and Auxiliary and Associated Services) and R2.7 million to judges and magistrates salaries.

The Table below compares the allocations to Programmes with expenditure for 2014/15. No additional funds were allocated by National Treasury to the Department as part of the adjustments process in October 2014 although some shifts and virements took place after then.

Table 1: Budget Overview for Justice and Constitutional Development 2014/15

Programme	MAIN APPROPRIATION 2014/15	FINAL APPROPRIATION 2014/15	ACTUAL EXPENDITURE 2014/15	UNDER EXPENDITURE 2014/15
Administration	R1.85 billion	R1.86 billion	R1.84 billion (99.2%)	R14.2 million
Court Services	R6.06 billion	R6.01 billion	R5.9 billion (98.2%)	R108.7 million
State Legal Services	R924.9 million	R921 million	R921 million (100%)	-
NPA	R3.25 billion	R3.25 billion	R3.25 billion (100%)	-
Auxiliary Services	R3.07 billion	R3.11 billion	R2.97 billion (95.5%)	R138.5 million
Subtotal	R15.1 billion	R15.1 billion	R14.9 billion (98.3%)	R261.4 million
Judges’ salaries	R828 million	R872.2 million	R872.2 million	-
Magistrates’ salaries	R1.9 billion	R1.85 billion	R1.62 billion	R235.6 million
Subtotal	R2.73 billion	R2.73 billion	R2.49 billion (91.4%)	R235.6 million
TOTAL	R17.8 billion	R17.8 billion	R17.3 billion (97.2%)	R497 million

Notably, actual expenditure in 2014/15 for the Vote was R17.3 billion or 97.2% of the final appropriation, improving on overall expenditure for 2013/14 at 95.7% of the final appropriation. Underspending in 2014/15 is attributed to delays in tender approval for the procurement of a new financial system for the Third Party Funds (TPF); a rejected payment by the Bank to the Safety and Security Sector Education and Training Authority (SASSETA); delays in the submission of invoices for municipal rates by the Department of Public Works; delays in filling vacant posts; as well as delays in implementing the criminal justice system modernisation programme. For the Direct Charges, underspending is seen under Magistrates’ salaries as a result of vacancies.

In 2015/16, the overall allocation to the Justice and Constitutional Development Vote (Vote 21) for 2015/16 is R16.9 billion (including Magistrates’ salaries), which grows over the MTEF to R19.1 billion in 2017/18. Approximately 9.5% of government spending on public order and safety and on defence goes to Justice and Constitutional Development and 0.5% to the OCJ. (Notably the Vote allocation to the OCJ for the MTEF is R1.6 billion for 2015/16, R1.7 billion for 2016/17 and R1.8 billion for 2017/18. These funds were transferred from the budget of the Department of Justice and Constitutional Development for the Constitutional Court, the Supreme Court of Appeal, the high courts and the specialised courts. Further, the direct charge for Judges’ salaries is included in the OCJ’s budget, as well as the allocations for the Judicial Service Commission and the South African Judicial Education Institute).

Of the R16.9 billion allocated in 2015/16:
- An amount of R9.4 billion is allocated to the Department of Justice and Constitutional Development for Programme 1: Administration; Programme 2: Court Services; and Programme 3: State Legal Services, as well as for the Justice Modernisation subprogramme under Programme 5: Auxiliary and Associated Services.
- The NPA receives R3.4 billion.
- Auxiliary and Associated Services receives R2.2 billion for transfers to Legal Aid SA and the Special Investigating Unit, as well as to the South African Human Rights Commission and the Public Protector South Africa.
- An amount of R1.8 billion is allocated for magistrates’ salaries.

There are budget cuts over the medium term in the amount of R1 billion (R287 million in 2015/16, R406 million in 2016/17 and R330 million in 2017/18). While there was some additional funding to the Justice baseline in the 2014 Budget, specifically R103 million for 2015/16, there are no additional funds in the 2015 Budget. However, funds have been shifted from areas of underspending, mainly from the infrastructure budget and magistrates salaries.

For 2015/16, a total of R226.3 million from reprioritised funds (2014/15) is allocated as follows:
- R34 million for the transformation of court services (for the appointment of the Solicitor-General and state attorneys).
- R74 million to capacitate courts in rural areas (to employ 67 court administrators).
- R39 million to Legal Aid South Africa (to employ additional public defenders to complement the increase in magisterial capacity in order to reduce case backlogs).
- R16 million to capacitate the Office of the Family Advocate.
- R16 million to capacitate the Office of the Chief Justice.
- R25 million to the NPA to increase numbers of prosecutors.
- R7 million to the South African Human Rights Commission (to employ an additional (eighth) Commissioner and legal staff).
- R15 million to the Public Protector SA (to employ more investigators and permanently retain 70 investigators previously employed on contract).

Spending trends 2014/15 and First Quarter 2015/16

During 2014/15 and the First Quarter 2015/16, the following spending trends emerged:

There was increased spending on capital works projects in the Fourth Quarter 2014/15: The main appropriation for building and fixed structures works (infrastructure) was R864 million. Ongoing delays in implementing capital works projects led Cabinet to approve budget reductions to the Department’s capital works budget of R437 million over the 2014 MTEF (R207 million in 2014/15; R220 million in 2015/16 and R10 million in 2016/17). Despite the budget reductions, underspending on capital works projects continued in 2014/15. In the First Quarter of 2014/15 the Department spent only 5.8% (R50.5 million) of the available budget for buildings and fixed structures (capital works) against projected expenditure of R240 million. In October 2014, the budget of R864 was adjusted downwards to R585 million. (The amount of R278 million was shifted to various programmes within the Vote. For instance: R101.8 million to Seriti Arms Commission and Marikana Commission in the Administration programme; and R21 million to fund appointment of a full time commissioner at the SAHRC and implementation of a criminal case backlog project at Legal Aid South Africa under the Auxiliary and Associated Services programme) This trend continued in the Third Quarter of the year: By December 2014, only 67.8% of the adjusted budget was spent. During the fourth quarter, however, funds in the amount of R136.8 million (approved virements and shifting of funds) were moved to Buildings and fixed structures to ‘defray excess expenditure on payment of capital assists mainly due to the Department of Public Works expediting the construction of courts and planned capital works projects’. This increased the final appropriation for Buildings and fixed structures in 2014/15 to R722 million. The Department, therefore, spent 100 % of the final appropriation for this item. This is in comparison with 2013/14 when only R398 million (53.4%) was spent of a final appropriation of R746 million. In the First Quarter 2015/16, underspending on capital works (compared with projected expenditure) is, once more, a challenge for the Department and is attributed to the late submission of invoices from the Department of Public Works.

Underspending continued on the CJS/IJS projects: An amount of R541 million under the Justice Modernisation sub-programme are earmarked funds allocated specifically for spending on the CJS/IJS by JCPS Cluster departments, as well as the Department of Social Development. Spending was slow for the first three quarters of 2014/15, and at year end, the total spending was 75.1% (R 391 million). This is attributed to delays in receiving claims from the JCPS clusters departments, as well as delays in processing the claims for these projects due to prolonged procurement processes within the Department. The DCS and DHA had spent 100% of the funds allocated to them for the CJS/IJS, the Department had spent 79%, the NPA 88% and the OCJ 73%. Again in the First Quarter of 2015/16, there is significant underspending of these funds: Only a total of R44.5 million of R976.4 million or 4.6% was spent compared to projected spending at 25%.

2014 Budgetary Review and Recommendation Report (BRRR) recommendations for the 2015 MTEF

In the October 2014 BRRR, the Committee expressed its concerns regarding:

The potential impact of budget cuts on the delivery of justice services.
The Committee did not, however, recommend that additional funding be allocated to the Department going forward (nor did the Department request additional funds).
The Committee, however, recommended that additional funding be allocated to Legal Aid SA for increased human resource capacity and to increase its civil work.

National Treasury provided the following response to the Committee’s recommendations:

Additional funding in the amount of R60 million is allocated to increase human resource capacity associated with the appointment of additional magistrates (R18 million in 2015/16; R20 million in 2016/17; and R22 million in 2017/18).
An amount of R66.8 million is allocated over the 2015 MTEF for increased human resource capacity to deal with the criminal case backlog.

Audit outcomes for 2014/15

The Table below summarises the audit outcomes for the Justice Vote for 2014/15 and provides a comparison with previous years (2012/13 and 2013/14):

Table 2: Summary of audit outcomes for the Justice Portfolio 2012/13 – 2014/15

	2012/13	2013/14	2014/15
Justice	Unqualified with findings (Compliance and PDOs)	Unqualified with findings (Compliance)	Unqualified with emphasis of matter (NT has exempted the Department from accounting for fines and recoveries by the State Attorney until 31 March 2015 (TPF)) and findings (Compliance)
NPA	Unqualified	Unqualified
Legal Aid SA	Unqualified	Unqualified	Unqualified
SIU	Unqualified with findings (PDOs and compliance)	Unqualified with findings (Compliance)	Unqualified with findings (Compliance)
Public Protector SA	Unqualified with findings	Unqualified with findings (Compliance)	Unqualified with emphasis of matter (Liabilities exceed assets) and findings (Compliance)
SAHRC	Qualified with findings (Payables; property, plant and equipment)	Unqualified with findings (Compliance)	Unqualified with findings (Compliance)

Overall, the Auditor-General observes stagnation in respect of the audit outcomes for the Justice portfolio as there was little progress from 2013/14.

Notably, there were no findings relating to predetermined objectives. In the case of the Public Protector South Africa, however, targets were presented in a manner that was inconsistent with planned targets; and/or were inaccurately reported as being achieved, but were subsequently corrected. The Auditor-General identified inadequacies in the review by Management of final performance information and a lack of internal audit function to review performance information as contributing factors.

With respect to financial health, the Auditor-General expressed the following concerns:
The Department’s bank account was in overdraft at year end and its liabilities would have exceeded its assets had year-end accruals been taken into account.
The SIU is experiencing difficulties recovering monies owed to them from state institutions, specifically the debt collection period is significantly long.
The Public Protector SA has an accumulated deficit at 31 March 2015 despite generating a net surplus in 2014/15. Further its liabilities exceeded its assets, which casts doubt on the institutions ability to discharge its short-term liabilities in the normal course of business.

In 2014/15, all funds (Guardian’s Fund; CARA Fund; and President’s Fund), with the exception of the Third Party Funds (TPF), sustained clean audits.

In 2014/15, as in previous financial years, the Auditor-General issued a disclaimer on the TPF.

The disclaimer was attributed to the following root causes:

Inadequate financial reporting systems to enable preparation of complete and accurate financial statements. The Department is in the process of procuring a new system, which has financial reporting capabilities. However, to move the TPF forward, a decision on how to address balances carried forward needs to be taken. Until this occurs the audit outcome will not improve.
Inadequate management of records supporting disclosures in the financial statements although control of daily processing of transactions has improved and there were significantly fewer instances of incorrectly recorded transactions.
Inadequate daily and monthly reconciliations to ensure the credibility of figures reported in the financial statements.

The Auditor-General has made the following recommendations to address the root causes resulting in the disclaimer of audit opinion:

Upgrading of current information systems to ensure both administrative management of funds held in trust, as well as to generate reliable and timeous financial reports (A new accounting system to replace JDAS has been procured and is being tested).
Improved records management at court level to ensure that all amounts disclosed in the financial statements are supported by credible audit evidence (A total of 44 additional staff were appointed at regional level, and staff at court and regional levels are trained (2 296 officials trained and assessed in 2014/15)).
Discipline of daily and monthly reconciliations of cash, bank and beneficiary accounts to ensure validity and completeness of all transactions in the accounting records (Daily and monthly reconciliations are taking place at 84.9% of courts).

Part 2

Overview of the Department of Justice and Constitutional Development’s strategic and operational environment 2014/15 and 2015/16

In 2014/15, the Department measured performance in terms of five high-level strategic goals:

Enhance organisational performance on all aspects of administration (Improved compliance with legal and good practice requirements in respect of governance across all branches and structures towards an unqualified audit).
Facilitate the (effective and efficient) resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts (Courts and justice service points are supported to improve finalization rates, efficiencies and backlogs in respect of all criminal, civil and family matters).
Provide effective and cost-efficient state legal services (The exposure of government to legal risk is reduced, citizens have access to quality guardian and probate services, the state has access to legal advice and services and constitutional development is promoted).
Effectively co-ordinate the JPCS cluster in the delivery of Outcome 3: all people in South Africa are and feel safe. (The provision of effective co-ordination of the cluster to enable the achievement of the eight outputs that will result in the successful delivery of Outcome 3: All people in South Africa are and feel safe). This co-ordinating role was transferred to the Department of Defence and Military Veterans during 2014/15.
Promote the Constitution and its values. Compliance by government departments with the Promotion of the Administrative Justice Act, 2000, (PAJA) is substantially improved; citizens are better informed on how to exercise their constitutional rights; public engagement with relevant stakeholders, civil society and community-based organisations is improved through public participatory fora; and constitutional development is promoted.)

From 2015/16, the Department has fully aligned its priorities with the NDP to address, in particular, chapters 12 (Building safer communities) and 14 (Promoting accountability and fighting corruption). The Department also has a role to play in implementing chapters 11 (Social protection), 13 (Building a capable state) and 15 (Transforming society and uniting the country). The Department has the following strategic outcome-orientated goals:

An efficient, effective and development-orientated administration (aligned to Outcome 12: An efficient, effective and development-orientated Public Service).
Improved administrative support to the justice system enabling efficient resolution of cases (criminal, civil and family law) (aligned to Outcome 3: All people in South Africa are and feel safe and Outcome 13: An Inclusive and responsive social protection system).
Provision of quality legal services that strengthens the capacity of the State (aligned to Outcome 12: An efficient, effective and development-orientated Public Service).
Promote constitutionalism and social justice to contribute to social cohesion (Outcome 14: Nation-building and social cohesion).
Improved prosecution services (aligned to Outcome 3: All people in South Africa are and feel safe).

Notably, in 2015/16, the Department’s internal priorities have shifted from previous plans. Although the focus on good governance and service turnaround in Maintenance Services remains, service turnaround in the Master’s Office falls away as a priority area. Instead, the Department has prioritised service turnaround in the State Attorney’s Office and the creation of youth employment opportunities.

Also, from 2014/15, the NPA is to report together with the Justice Department. The NPA has the following strategic objectives:

Increased successful prosecutions (NPS).
Improved successful prosecution of cases that require specialised prosecution (NSPS).
Ensure that profit is removed from crime (AFU).
Ensure that threatened witnesses are successfully protected (OWP).

The Department shows steady progress in reaching its planned indicators: In 2014/15, the Department fully achieved 78 of 92 planned indicators (85%), while the remaining 14 were partially achieved. Further, the Department reports that it has achieved 75% (51/68) of its targets for the First Quarter 2015/16.

The following performance information relates to the MTSF targets (Note that during 2014/15 full alignment of departmental plans with MTSF targets was in progress).

Table 3: Summary of performance for MTSF targets for 2014/15 and First Quarter 2015/16

MTSF TARGETS: PERFORMANCE 2014/15 and First Quarter 2015/16
ACTION	INDICATORS	TARGET	RESULT	First Quarter 2015/16
Sub-outcome 2: An effective and efficient criminal justice system
Implement integrated activities in terms of the Criminal Justice System (CJS) Seven Point Plan (7PP) to make the CJS more efficient and effective.	A CJS Business Plan (2014- 2019) aligned with Departmental Strategic Plans /Annual Performance Plans	Plan to be implemented by all Departments by April 2015	Not achieved	Revised target 31 December 2015
Implement practical short and medium term measures to address backlogs and to improve the all-round performance of courts	No. of criminal backlog cases in court	26 650 (2014/15)	Not Achieved (29 480 cases on backlog roll by end 2014/15)	-
	District Courts (DCs): No. of cases in the DCs that are on the roll for more than 6 months	12 578 (2014/15)	No statistics provided in the Annual Report	-
	Regional Courts (RCs): No. of cases in the RCs that are on the roll for more than 9 months	13 754 (2014/15)	No statistics provided in the Annual Report	-
	High Courts (HCs): No. of cases in the HCs that are on the roll for more than 12 months	281 (2014/15)	No statistics provided in the Annual Report	153 against a Q1 target of 240 and annual target of 206
Sub-outcome 4: Secure cyberspace
Enact holistic Cybersecurity Legislation	Cyber-security Bill	Bill approved by Cabinet for public comment and introduction to Parliament (2014/15)	Not achieved	On 28 August 2015 the Department invited the public to comment on the Cybercrimes and Cybersecurity Draft Bill (by 30 Nov 2015)
Sub-outcome 7: Corruption in the public and private sector reduced
Strengthen anti-corruption legislation	Prevention of Corrupt Practices Act	Reviewed, amended and implemented by Dec 2015	Not achieved	-
Strengthen protection of whistle-blowers	Protected Disclosures Act	Amended by 2014/15	Not achieved	In September 2015, the Committee was informed that an amending bill has been submitted to the Minister for approval

The Department reported the following progress relating to policy priorities:

Since February 2015, court annexed mediation is being piloted in civil cases in Gauteng and North West.
The State Attorney Amendment Act, 2014, provides for a Solicitor-General to oversee all state litigation.
The Legal Practice Act, 2014, provides a framework for the fundamental transformation of the legal profession to advance access to justice: parts 1 and 2 of Chapter 10 that provides for a transitional body – the National Forum of the Legal Profession – came into operation in February 2015 and has since been established. The National Forum submitted its first report to Parliament in October 2015, dealing largely with organizational aspects. Subsequent reports will address substantive work emanating from the Act.
Draft 13 of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) was amended and finalized in line with the United Nations practical guide to developing national action plans against racial discrimination. The NAP provides the basis for a comprehensive policy to address racism, racial discrimination, xenophobia and related intolerance.
During 2014/15, the Lesbian, Gay, Bisexual, Transsexual and Intersexual (LGBTI) programme was launched that included: Terms of reference for the National Task team on gender and sexual orientation-based violence perpetrated against LGBTI persons; terms of reference on the rapid response team; the National Intervention Strategy on gender-based and sexual-orientation based violence; and an intersectoral communication plan on the promotion and protection of the rights of LGBTI persons.

Funding challenges continue to hamper the Department’s ability to implement service-delivery related improvements, including:

Security services to safeguard lives and assets at service points.
Implementation of a sustainable solution for the digitisation of records.
The cost of implementing the OSD for legal practitioners. This has created labour relations issues and has impacted on service delivery.
Delayed implementation of the TRC process, as a result of delays in finalizing Regulations.

The Department reports the following additional funding needs for the 2016 MTEF:

Table 4: Department of Justice and Constitutional Development Additional Funding Needs 2016 MTEF

Department of Justice and Constitutional Development Additional Funding Needs 2016 MTEF
(R’000)	2016/17	2017/18	2018/19
Security Infrastructure Installation	232 000	316 146	548 146
Maintenance and repair of safety and security infrastructure	63 900	76 416	140 316
Establishment of the Information Regulator	50 221	53 737	103 958
Procurement, installation and maintenance of generators in courts	144 100	152 458	296 558
Procurement of mobile offices	21 837	23 103	44 940
Court maintenance (day-to-day)	98 000	103 684	201 684
Creation of capacity to reduced organised crime and corruption	92 600	97 200	189 800
Total	702 658	822 744	1 525 402

Third Party Funds

In 2014/15, the Department continued with initiatives to address the TPF:

A new accounting new system to replace the JDAS to ensure complete, accurate and reliable financial information reporting is in progress (testing and piloting phase).
A total of 44 additional appropriately skilled staff were employed at regional level.
Daily and monthly reconciliations are done are 84.9% of courts.
A total of 2 296 officials at court and regional level were trained and assessed in 2014/15.

In 2015/16, the Department continues with data and system error clean-up; interim financial statements are prepared in February and October for internal auditing; restatement of prior years’ financial statements; compliance reporting ensures consequences for non-compliance with daily and monthly control activities; the deployment of and related capacity-building initiatives for the new system is being initiated; and the Department is considering writing off amounts bearing in mind the impact on the Vote.

Programme performance 2014/15 and First Quarter 2015/16

The Department administers four of the Vote’s programmes: Administration; Court Services, which is the Department’s core programme and consumes the majority of the Department’s budget; and State Legal Services. From 2014/15, the NPA reports on its spending together with the Department. Under Auxiliary and Associated Services, the Justice Modernisation sub-programme funds the JCPS Cluster projects relating to the Criminal Justice System Review/Revamp and Integrated Justice System.

Overall, the Department achieved or exceeded 85% of its 92 indicators in 2014/15 (In 2013/14, the Department met or exceeded 80% of its 57 key performance indicators).

The Department reports that it achieved 75% (51/68) of its targets for the First Quarter 2015/16:

For Administration, a total of 83% (5/6) targets were achieved.
Court Services met all targets.
For State Legal Services, a total of 70% (9/16) targets were achieved
For the NPA, a total of 75% (14/21) of targets were achieved.
For the Justice Modernisation sub-programme under the Auxiliary and Associated Services programme, a total of 0/2 or 0% of targets were met.

Programme 1 - Administration

8.4.1. The Administration programme is responsible for the Department’s management and development of policies and strategies for the efficient adminstration of justice.

8.4.2. The eight strategic objectives under this programme include increased compliance with prescripts for good governance; reduction of fraud and corruption cases in the Department; and the administration of implementation of PAIA, 2000. There has been considerable focus on attaining an unqualified audit opinion – this was achieved in 2012/13 – and, going forward, on maintaining and improving on the audit outcome.

8.4.3. A strategic objective relating to the improved co-ordination of the JCPS Cluster towards the delivery of Outcome 3 is also found under this programme.

8.4.4. Programme performance for 2014/15: Met or exceeded targets in 19 of 21 or 90% of performance indicators (90% were met in 2013/14)

Table 5: Administration- Selected targets and actual performance 2014/15 and First Quarter 2015/16

INDICATORS	TARGETS
INDICATORS	2013/14	2014/15	First Quarter 2015/16
% interventions to resolve internal and external audit	-	NOT ACHIEVED 86% achieved against a target of 88%	Not applicable to the Quarter
% of forensic investigations finalised	-	EXCEEDED 86% against a target of 70%; 180/210 cases received finalised	57% against a Q1 target of 35% with an annual target of 92%
% completion of integrity competency of senior management (vetting)	EXCEEDED Vetted 145 senior managers against a target of 115	EXCEEDED Vetted 156 senior managers against a target of 135	158 against a target of 157 with annual target of 165
No. of needs analysis completed in TRC identified communities.	-	NOT ACHIEVED 6 communities against a target of 8. Not achieved in two communities due to unavailability of key stakeholders	0 against a target of 1 with an annual target of 6 (Now under State Legal Services)
% of misconduct cases finalised	EXCEEDED Achieved 65% against a target of 50%	EXCEEDED 69% achieved against a target of 55%. 313/453 cases finalised	-
% compliance with PAIA by Department	Actual achievement: 55%	88% against a planned target of 70% (297/338)	100% (63 requests) against a target of 75%, with an annual target of 75%

8.4.5. Key challenges for 2014/15 include:

The Auditor-General issued a disclaimer on the TPF.
Security challenges (due to funding constraints) within the Department remain a concern.
Vacancies at senior management level.

Programme 2 - Court Services

8.5.1. The Court Services programme facilitates the resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts and managing court facilities.

8.5.2. The programme has six strategic objectives for 2014/15: Improved finalisation of activities in support of Outcome 3 (backlog courts); increased protection of the rights of vulnerable groups; increased protection of children and promotion of family cohesion through mediation; increased access to justice by under-serviced communities (facilities and infrastructure); improved delivery of services at the courts; and capacitation of the OCJ.

8.5.3. Programme performance for 2014/15: Met or exceeded taregets in 11 of 12 (92%) performance indicators, compared with 2013/14 where the Department met or exceeded targets in 4 of 13 (30.7%) performance indicators.

Table 6 Court Services - Selected targets and actual performance 2014/15 and First Quarter 2015/16

INDICATORS	TARGETS
INDICATORS	2013/14	2014/15	First Quarter 2015/16
No. cases on the backlog role (Note that the target for this indicator is not aligned with the MTSF target.)	Actual achievement: 27 379	NOT ACHIEVED 29 480 against a target of 29 952	-
% of maintenance cases finalised within 90 days after proper service of process	-	EXCEEDED 90% against a target of 15%. 8650/9588 cases finalised	100% (904 cases at 9 pilot sites) against a target of 55% with an annual target of 55%
No. of re-established sexual offences courts completed	EXCEEDED 19 courts completed against a target of 9.	EXCEEDED 14 courts completed against a target of 12	6 courts against a Q1 target of 2 with an annual target of 12
% of convictions recorded on the NSRO	EXCEEDED 100% against a target of 74% 15 452 convictions recorded.	EXCEEDED 100% against a target of 78%	100% (1490 convictions recorded) against a Q1 target of 92% with an annual target of 92%
% non-litigation family law cases mediated per year	EXCEEDED 82% achieved against a target of 15%.	EXCEEDED 78% against a target of 20% (5458/7 009)	64% against a Q1 target of 30% with an annual target of 30%
No. of small claims courts established	EXCEEDED 30 small claims courts established against target of 20.	EXCEEDED 39 against a target of 25	14 against an annual target of 30
No. of magisterial districts aligned to municipal boundaries	36 magisterial districts aligned to municipal boundaries	EXCEEDED 39 of 25 districts in Limpopo and Mpumalanga	Not applicable to this quarter (annual target of 2)
% default judgments performed by Clerk of Court within 14 days (Lower Courts)	EXCEEDED 83% against a target of 50% (283 888/341 784 requests received dealt with.	EXCEEDED 90% against a target of 60% 208 914/230 965 requests received and 208 914 dealt with	88% against a Q1 target of 85% with an annual target of 85%
No of cases postponed via the Audio Visual Remand (AVR) system	-	EXCEEDED 10 019 cases against a target of 8 000	2101 against a Q1 target of 3000 with an annual target of 12 000 NOW under Programme 5 Justice Modernisation
% Capacitation of the Office of the Chief Justice	-	NOT ACHIEVED 59% against a target of 90% (158/270 posts)	-

Programme 3 - State Legal Services

8.6.1. This programme provides legal and legislative services to government, supervises the administration of deceased and insolvent estates, registers trusts and manages the Guardian’s Fund, and prepares and promotes legislation and undertakes research in support of this.

8.6.2. The Programme has five strategic objectives for 2014/15: Increased efficiency in the provision of services to beneficiaries of the Guardian’s Fund, trusts, insolvent and deceased estates; enhanced litigation services; provision of legal advisory services; preparation of sound, effective and efficient legislation; and promoting constituional development and strengthening participatory democracy to ensure respect for fundamental human rights.

8.6.3. Programme performance for 2014/15: Met or exceeded target in 20 of 23 (87%) performance indicators (In 2013/14, met or exceeded in 15 of 23 (65%) of performance indicators).

Table 7: State Legal Services - Selected targets and actual performance 2014/15 and First Quarter 2015/16

INDICATORS	TARGETS
INDICATORS	2013/14	2014/15	First Quarter 2015/16
Letters of appointment issued in deceased estates within 15 days of receiving all required documents	EXCEEDED 94% against a target of 90%	NOT ACHIEVED 89% against a target of 91%	93% (26 745 letters of appointment) against a Q1 target of 95%with an annual target of 95%
% of beneficiaries in receipt of services within 40 days (Guardian’s Fund)	NOT ACHIEVED 77% against a target of 90%	EXCEEDED 92% against a target of 90%. This is 42 399/45 887 beneficiaries	88% (10 749/12 236 beneficiaries) against a Q1 target of 91% with an annual target of 91%
% Letters of authority issued in trusts within 14 days of receiving all required documents	NOT ACHIEVED 85% against a target of 91%	NOT ACHIEVED 79% against a target of 92%	91% (8 362/9174 letters of authority)
% value of briefs distributed to PDIs	ACHIEVED 75% against a target of 75%	ACHIEVED 76% against a target of 76%	- Against a target of 77% (Department briefed PDI Counsel on matters to value of R146.7 million/R189.5 million)
No. of activities completed to improve awareness of constitutional rights and enhance participatory democracy	ACHIEVED 8 against a target of 8	NOT ACHIEVED 7 activities against a target of 9	-

Programme 5: Auxiliary and Associated Services Programme - Justice Modernisation subprogramme

8.7.1. Programme 5 also contains the Justice Modernisation subprogramme which contains funds for the implementation of IT infrastructure for the Department and also includes the earmarked funds for IJS integration across the Cluster.

8.7.2. Underspending of R138.5 million for 2014/15 is attributed to procurement delays on the implementation of the Criminal Justice System/Integrated Justice System projects. In 2013/14 delays in justice modernisation projects meant that R133.7 million was re-prioritised.

8.7.3. For the first time, the 2014/15 APP provided four indicators for the Justice modernisation subprogramme which focused on the implementation of the Integrated Justice System in line with the NDP. Although all the targets set were achieved, the critical target set in the MTSF (2014-19) for the implementation of a CJS Business Plan was not achieved. Notably, in 2015/16, there appear to be two indicators for this sub-programme: % completion of ICMS Criminal Modernisation and Number of criminal cases postponed via the Audio Visual Remand system.

Table 8: Auxiliary and Associated Services Programme - Justice Modernisation subprogramme: Selected targets and performance 2014/15 and First Quarter 2015/16

INDICATORS	TARGETS
	2013/14		2014/15	First Quarter 2015.16
% of CJS Performance Dashboard completed	-		ACHIEVED System developed for 14 Key Performance Areas – piloted and deployed.	% completion of ICMS Criminal Modernisation: 12% against a target of 50%
% of ICMS case outcome completed	-		ACHIEVED System deployed to 22 sites
% of IJS Programme Management Framework and Methodology completed	-		ACHIEVED Software tools set up and installed
Percentage of IJS PMO structure capacitated	-		ACHIEVED 14 posts were filled.
No of cases postponed via the Audio Visual Remand (AVR) system		-	EXCEEDED 10 019 cases against a target of 8 000	2101 against a Q1 target of 3000 with an annual target of 12 000 Previously under Court Services

National Prosecuting Authority

The National Prosecuting Authority (NPA) 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.

The NPA is a programme within the Justice and Consitutional Development Vote and the Director-General: Justice and Constitutional Development is its accounting officer. In the past, however, National Treasury provided an exempion that allowed the NPA to prepare its own annual financial statements separate from those of the Department until legislation regularising the practice was enacted. This exemption expired on 31 March 2014. Consequently, for 2014/15, the Department of Justice and Constitutional Development has also reported on the NPA in its Annual Report. The former National Director of Public Prosecutions, Mr M Nxasana, submitted a report on the operations of the prosecuting authority shortly, with information on performance and expenditure for 2014/15.

The NPA’s allocation and spending for 2014/15 was as follows:

Table 9: NPA Budget allocation and spending 2013/14 and 2014/15

	2014/2015		2013/2014
R’000
Sub-programme	Final appropriation	Actual expenditure	Final appropriation	Actual expenditure
NPS	2 144 150	2 144 150	1 990 747	1 990 747
NSPS	269 485	269 485	241 352	241 352
AFU	133 568	133 568	179 789	179 789
OWP	160 737	160 737	146 471	146 471
Support	546 183	546 183	509 805	509 805
Total	3 254 123	3 254 123	3 068 164	3 068 164

The NPA remains committed to the strategic direction it embarked on some years ago. This is informed by the NDP, the MTSF and the refined JCPS delivery agreement. The NPA has identified the following MTSF 2014-2019 priority areas as relevant: Strengthening the Criminal Justice System; building safety using an integrated approach; and building community participation in community safety.

The NPA’s strategic outcome-orientated goal is an improved prosecution service by rendering a prosecution service that is effective.

The NPA has four strategic objectives, each specifically linked to a sub-programme: National Prosecutions Service (NPS), National Specialised Prosecutions Services (NSPS), Asset Forfeiture Unit (AFU); the Office for Witness Protection (OWP) and Support Services (SS).

The strategic objectives are as follows:

Increased successful prosecutions (NPS): To increase the number of criminal court cases finalized, including ADRM to 504 489 by 2019/20.
Improved successful prosecution of cases that require specialised prosecution (NSPS): To increase the conviction rate of complex commercial crime cases to 93% (966) by 2019/20 and expand the number of Thuthuzela Care Centres (TCCs) to 75 by 2019/20.
Ensure that profit is removed from crime (AFU): To increase the number of completed forfeiture cases to 450 by 2019/20 and increase the value of freezing orders to R1.3 billion by 2019/20.
Ensure that threatened witnesses are successfully protected (OWP): To ensure that no witnesses or related persons are harmed, threatened or killed whilst on the witness protection programme.

NPA performance relating to the following key MTSF targets is as follows:

Table 10: NPA - Summary of performance for MTSF for 2014/14 and First Quarter 2015/16

Indicator	2014/15 Target	2014/15 Achievement	First Quarter 2015/16
Conviction rate for sexual offences	67%	69% Exceeded	71.1% (1 231/1 403 cases) against an annual target of 68%
Conviction rate for trio crimes	85%	82% Not achieved	85% (288/407) of Q1 target of 85% and annual target of 85% (1603 cases)
No. of criminal cases finalised with verdict	324 276	319 149 Not achieved	77 772 against a Q1 target of 81 624 and annual target of 326 498 (Lower courts)
No. of criminal cases finalised with ADRM	149 204	184 314 Exceeded	44 988 cases against a Q1 target of 38 047 with an annual target of 152 188 (Lower courts)
Conviction rate for cybercrime	74% (189)	95% (232) Exceeded	96% (48 against a Q1 target of 74% (39 cases) with an annual target of 74% (159 cases)

Key achievements for 2014/15 include:

Improving the conviction rate for sexual offences by 1.9%.
Maintaining high conviction rates in all courts, with an overall conviction rate of 92.3% in the 319 149 cases finalised with a verdict.
The Asset Forfeiture Unit achieving it’s best ever overall performance recorded by exceeding the previous best performance of 2013/14, with an overall success rate of 95.1%.
Designating 14 more sexual offence courts, bringing the total number of dedicated sexual offences courts to 33.
No witnesses were harmed or threatened while on the witness protection programme.

Key challenges identified during 2014/15 include:

The NPA has been subject to ‘bad press’.
There is concern regarding the judiciary striking matters off the court roll, as there is no legal provision for doing so.
Case flow management remains a challenge and impacts negatively on court performance. Fewer cases per day were placed on the court roll with an inadequate number of ‘back-up’ cases
The prosecutorial report also highlights challenges identified regarding the Criminal Justice System, which include the following:

The implementation of the pre-trial hearings has been slow in gaining traction.
The Norms and Standards for monitoring court performance have not been fully implemented.
Inadequate role planning and case scheduling remain a concern.
The 2014.15 financial year has seen a further decrease in court day utilisation i.e. the courts are falling below the Norms and Standards benchmark of four hours and thirty minutes.

Not all annual targets in the Annual Performance Plan 2014/15 were achieved.
The amendment of the NPA Act was not finalised during 2014/15 and as a result the NPA remains a programme within the Department.
Cases are postponed due to the unavailability of magistrates and legal aid practitioners.
Ineffective implementation of screening protocols in some regions.

The NPA reports the following additional funding needs for the 2016 MTEF:

Prosecution Services - R 69.9 million (R34.1 million - 2017/18 and R 35.8 million - 2018/19) to fund prosecutorial capacity to handle organised crime and corruption cases.
Office of the NDPP - R 17.4 million (R 8.5 million - 2017/18 and R 8.9 million - 2018/19) to start funding phase II of the OWP staff compliment roll out to reduce the ratio from 1:6 to 1:2 for protector v/s witness.
AFU - R102.5 million (R50 million - 2017/18 and R 52.5 million- 2018/19) to fund investigative capacity within AFU and ongoing curator expenditure.

Part 4

Programme 5 Auxiliary and Associated Services

This programme includes Legal Aid South Africa, the Special Investigating Unit (SIU), the South African Human Rights Commission (SAHRC) and Public Protector South Africa (PPSA).

10. Legal Aid South Africa

Legal Aid SA is an autonomous statutory body that derives its mandate from the Constitution of the Republic of South Africa, the Legal Aid Act 39 of 2014 and other legislation requiring the government to provide legal assistance to the indigent. Its main objective is to make available legal representation to indigent persons at State expense so ensuring the right of all citizens to access to justice. Notably, the Legal Aid Act, 2014, which replaces the Legal Aid Act,1969, commenced on 1 March 2015. The Legal Aid Act, 2014, provides that Legal Aid SA must render or make available legal aid and legal advice; provide legal representation at state expense; and provide education and information concerning legal rights and obligations, as envisaged in the Constitution.

Legal Aid SA received its fourteenth consecutive unqualified report in 2014/15; and the tenth consecutive year in which no matters of emphasis were reported (clean audit).

In 2014/15, Legal Aid SA provided criminal and civil legal aid, and legal advice services to a total of 769 436 poor and vulnerable people. This is a 1 % reduction in the number of people reached in 2013/14. Legal aid was provided in a total of 448 195 new matters, of which 444 630 matters were finalised, (representing 99.8% of new matters.) Of the new matters, 88% were criminal matters and 12% were civil matters.

In 2014/15, Legal Aid SA received a budget of R1.6 billion, of which it spent 98.1%. The funds requested for rollover increased from R54.6 million to R64.8 million. In the main, the funds are for computer software, and land and building acquisition. National Treasury introduced baseline reductions in the 2015 MTEF, reducing Legal Aid SA’s grant allocation by R 61.8 million in 2015/16 and R92.7 million in 2016/17. Legal Aid SA reports that shortfalls as a result of the reductions are being funded from funds set aside for its contingent liabilities (Judicare). Budget reductions continue to place constraints on capacity.

In 2014/15, Legal Aid SA had an establishment of 2 797 with a turnover rate of 6%. There were no vacancies in critical occupations. Legal staff, including paralegals, account for 79% of the establishment. This remained unchanged from 2013/14.

The number of civil matters (which includes mediation) handled decreased by 5.5 % from 2013/14. Notably, 56 % of civil matters entail assistance to women.

Legal Aid SA provided the following outreach services in civil matters in 2014/15: Every month, each satellite office visited at least two outreach sites in rural areas to provide legal advice services to communities that cannot reach offices in urban areas; 693 visits were conducted, and 3 167 consultations held. Civil clinics were held on a quarterly and bi-annual basis, clinics were held focusing on education, awareness, advice on general matters and advice related challenges prevalent in the community (102 clinics were held).

A total of 16 483 children received legal aid in 2014/15, of which 71% were children in conflict with the law (3 336 children were represented in preliminary inquiry matters).

The number of children assisted has declined significantly since 2009/10, when 59 266 children were assisted. The number of children assisted in criminal matters has decreased significantly since 2009/10 from 54 781 to 11 651 in 2014/15 (11 689 in 2013/14).

Further, Legal Aid SA and the Master’s Office partner to provide assistance in estate matters where children were beneficiaries. This partnership has resulted in an increase to the number of children assisted in civil matters (3 309/ 4 831 children assisted in civil matters). However, Legal Aid SA reported a 17% reduction in civil matters involving children, which is attributed to a decrease in the number of backlog cases that involve children at the Master’s Office.

Coverage of district courts declined marginally from 88.7% to 87 %. Regional court coverage too showed a decline from 99.2% to 96%. All matters heard in the High Court, in which legal aid was required, were covered. Coverage in civil cases remains dependent on Legal Aid SA’s capacity.

In 2014/15, the Impact Litigation Unit considered 47 matters and, of these, approved 18 new impact matters, bringing the total to 52, which is 5 more than in 2013/14. Nine impact matters were finalised with a 90% success rate. In 2013/14 all eight finalised matters were successful.

Legal aid was also provided in 321 241 advice matters, which is a decrease of 2.4% compared with 2013/14. Justice Centres and satellite offices provided advice in 246 902 matters and also provided advice to 31 453 remand detainees in 2014/15. The Call Centre provided advice in 42 886 matters, of which 12% were criminal in nature.

In 2014/15, the following key challenges were reported:

Budget constraints which impacted on court coverage, quality of services, caseloads and relief capacity.
A total of 3% of its in-house practitioners and 40% of Judicare practitioners did not meet the quality standard.
Pending legal matters in the Regional and High Courts exceed turnaround times.
Backlog in appeal matters still high due mainly to challenges in obtaining court records.
There has been a decrease in new civil matters but at many Justice Centres the demand for civil services exceeds internal capacity.
Unfunded mandates related to funding for commissions of inquiry and the resulting litigation.
Delays in the implementation of the Electronic Legal Aid Administrative System (eLAA), which was terminated in May 2015.
Budget reductions of R62 million in 2015/16 and R93 million in 2016/17.

Legal Aid SA’s additional funding requirements for the 2016 MTEF are outlined below.

Table 11: Legal Aid SA – Funding needs 2016 MTEF

Programme requiring additional funds	Details	Amount per annum	Impact if funding is not granted
Increasing criminal court coverage	143 new posts required to increase coverage of district and regional courts to 95% and 105% respectively, and to increase high court capacity by 25%.	R207 million over the MTEF period	At present Legal Aid SA has no relief capacity to cover courts when practitioners are absent. Some court are not covered every day. This impacted on service delivery.
Increasing Civil Capacity	31 new civil posts required	R51 million	Legal Aid SA will continue to be unable to meet the demand for civil legal aid assistance
Expansion of National Footprint	One new justice centre and four new satellite offices required; and six satellite offices to be converted to justice centres	R115 million	Challenges with regard to covering some courts, and access to Legal Aid SA offices will remain a challenge
Staffing for labour courts	New courts have been established in Limpopo and Mpumalanga	R1 346 628	No legal representation will be available to those needing legal aid services
Civil Supervision Capacity		R7 446 537	Inadequate supervision will continue to affect the monitoring of legal services so as to ensure that they are of a high quality

11. Special Investigating Unit (SIU)

The SIU’s funding model provides for a baseline grant from National Treasury. In addition to this grant, the SIU charges state institutions for its services, thus raising additional revenue. The intention is that the SIU, overtime, will generate sufficient income to fund its activities. In 2014/15, the SIU had a budget of R534 million; actual expenditure was R462 million with a surplus of R71.7 million. However, the SIU is experiencing considerable difficulties in collecting monies owed by client departments.

Table 12: SIU Overview of Budget and spending for 2013/14 and 2014/15

SIU BUDGET	2013/14	2014/15
TREASURY ALLOCATION	R295 million	R296 million
CARA FUNDING	R9.7 million	R5.14 million
CHARGES FOR SERVICES RENDERED	R220 million	R232 million
TOTAL	R526 million	R534 million

ACTUAL EXPENDITURE	R382 million (72.6%)	R462. 2 million (87%)
UNDER-EXPENDITURE	R143.8 million	R71.7 million
ACCUMULATED SURPLUS	R261 million (R117 million accumulated surplus from 2012/13 plus 143 million 2013/14) (Treasury approved the roll-over of R261 million)	R333 million (R261 million accumulated surplus from 2013/14 plus R71.7 million on 2014/15). (Treasury has approved the roll-over of R121 million.)

11.2. In 2014/15 the SIU maintained an unqualified audit opinion (with findings). These findings are reduced from 2013/14.

The SIU bases its performance around two strategic goals: Quality forensic investigations and civil litigation; and strategic partner relations developed and maintained. The Unit has indicated its focus on procurement matters. This means investigating fewer but more complex cases. In addition, the SIU participates in various multi‐agency interventions.The Unit also reports on eight strategic drivers/enablers:

Achieve optimal institutional form.
Foster excellent cooperation with its law enforcement partners and stakeholders.
Develop effective, accountable and engaging leadership.
Secure appropriate capacity and funding.
Align and improve systems and processes.
Invest in appropriate technological capacity.
Build an engaged, diverse and competent organisation.

The Unit’s performance declined in 2014/15: it achieved a 50% success rate in respect of its targets compared with 67% in 2013/14.

Table 13: SIU Achievement of selected targets and indicators 2014/15 and First and Second Quarter 2015/16

STRATEGIC OBJECTIVES	PERFORMANCE INDICATORS	TARGETS
STRATEGIC OBJECTIVES	PERFORMANCE INDICATORS	2013/14	2014/15	2015/16 (Quarter 1 and 2)
Quality forensic investigations and civil litigation	No. of proclamations issued (New indicator from 2014/15)	-	NOT ACHIEVED (12 proclamations issued against a target of 20)	3 proclamations issued against a target of 12
	Percentage of issued proclamations finalised (New indicator from 2014/15)	-	NOT ACHIEVED (0% of proclamations finished against a target of 66%)	0 proclamations finalised against a target of 60%
	No. of civil matters instituted in court or the special tribunal (New indicator from 2014/15)	-	NOT ACHIEVED (4 civil matters litigated against a target of 20)	0 matters against a target of 15
	Potential value of cash/assets recoverable	EXCEEDED (R261 million against a target of R100 million)	EXCEEDED (R844 million against a target of R200 million) (95 AOD’s were signed to a value of R7.5 million and four AFU preservations orders secured to a value of R836.6)	R587 009 against a target of R220 million
	Actual value of cash assets recovered	EXCEEDED (R75.8 million against a target of R32 million)	EXCEEDED (R145 million against a target of R100 million) (Payments collected to value of R25.4 million and seven final forfeiture orders of R119.5 million)	R12.2 million against a target of R140 million
Strategic partner relations developed and maintained	No. of referrals made to the NPA	EXCEEDED (273 against a target of 50)	EXCEEDED (171 referrals to the NPA against a target of 50) Of the 171 referrals made to the NPA: 111 matters were referred to SAPS. A further 40 matters were to be handed over to SAPS. In one matter the NPA made a plea agreement; in three matters the NPA declined to prosecute. One matter is going to trial and in one case a conviction was obtained from the court (with a 5 year suspended sentence and a confiscation order for R2 million.)	118 referrals against a target of 45
	No. of instances where potential disciplinary matters are brought to the attention of the relevant state institution	EXCEEDED (326 against a target of 120)	EXCEEDED (3769 disciplinary matters referred against a target of 100) (3456 of these matters relate to ESKOM)	6 against a target of 60
	No. of referrals made to the AFU (New indicator from 2014/15. Removed from the 2015/16 APP)	-	NOT ACHIEVED (7 against a target of 15) (Referrals for fraud and for manipulating procurement processes)	-

The SIU reports that, in 2014/15, a total of 12 (three are amendments to existing proclamations) new proclamations were issued.

The SIU has a staff complement of 546 as at 31 March 2015: 430 operational and 116 non-operational staff. A total of 37 members of staff left the SIU and 21 new appointments were made. Notably, in 2014/15, a number of key appointments were made including the Head: Human Resources and the CFO.

The following operational challenges were identified in 2014/15:

The Unit has indicated that it experiences certain ‘practical difficulties’ in setting accurate targets but will revise these through properly reviewed performance measures aligned to the new investigative approach.
The Unit did not succeed in meeting its target of finalising 66% of issued proclamations finalised. None of the 12 Proclamations issued in the 2014/15 financial year were finalised, although in the South African Post Office matter a final report was being prepared. Further, it is still reporting on 20 active proclamations issued in previous financial years despite committing in 2013/14 that all active Proclamations would be completed during 2014/15. Notably, this indicator has been revised for 2015/16 - 60% of proclamations are to be finalised within nine months of the date of issue with the remaining 40% to be completed within 12 months after the expiry of the nine months period.
The Unit did not meet its target for civil litigation. However, the SIU reports the following progress in the four matters underway:

Universal Service Access Agency of South Africa (USASA) – the Unit is seeking to have a contract of employment declared unlawful.
Department of Public Works – Prestige Project Nkandla - the Unit is claiming R155 million from Mr Makhanya.
Department of Communications – the Unit is applying for a tender (worth R760 million) to be declared null and void.
Department of Land Affairs – the Unit is applying to have a contract set aside (to a value of R364 million).

The process to set up the Special Tribunal is still to be dealt with.
The envisaged case management solution is to be implemented.
The risk of cash flow challenges exists as a result of markedly prolonged payment times/non-payment by state institutions and needs to be closely monitored.
Key specialist resources, such as senior lawyers, are in short supply.
Each proclamation comes with its own complexity and the SIU needs to continuously align the skills of its investigators with current needs.

12. South African Human Rights Commission (SAHRC)

12.1. The SAHRC’s mandate is extremely broad, encompassing the promotion, protection and monitoring of human rights in South Africa. The key human rights focus area for 2014/15 was Business and Human Rights.

12.2. At present, the SAHRC has five full-time and two part-time commissioners. The South African Human Rights Act, 2013, which recently came into operation, provides for a further full-time commisioner going forward.

12.3. Performance in 2014/15 is measured through six strategic objectives (and associated targets), namely:

Promote compliance with international and regional obligations.
Position the Commission as the focal point for human rights in South Africa.
Enhance and deepen the understanding of human rights and promote a human rights culture.
Advance the realisation of human rights.
Use and project a broader constitutional and legislative mandate.
Improve the effectiveness and efficiency of the Commission to support delivery on the mandate.

12.4. The SAHRC’s performance has improved over the past four years from meeting 52% of its targets in 2009/10 to 92% in 2014/15 (45 of 52 targets).

12.5. Key achievements for each strategic objective, as reported by the SAHRC for 2014/15 include:

Promote compliance with international and regional obligations:

The Commission achieved 89% of its targets (8/9).

Participated in 10 International Co-ordinating Committee (ICC’s) Chairpersons role activities (the SAHRC Chairperson holds the Chairmanship of the ICC); 5 African Commission on Peoples and Human Rights activities; 20 international and regional activities; five Network of African National Human Rights Institutions (NANRI) activities.
100% draft submissions on relevant international human rights instruments/country reports.
Completed the Annual International Human Rights Report by 31 March 2015.

Position the Commission as a focal point for human rights.

· The Commission achieved 100% (10/10) of its targets.

Participated in 251 stakeholder engagements (against a target of 251). These included hosting a business and human rights roundtable; assessing the functionality of the equality courts in Mpumalanga; and convening a meeting with the Department of Co-operative Government and Traditional Affairs in respect of water and sanitation recommendations, budgets and contracts.
Hosted 18 provincial human rights clinics.
Implemented 100% of resolutions of the Forum for Institutions Supporting Democracy.
Hosted a conference on South Africa’s 20 year of democracy.

Enhance and deepen the understanding of human rights and promote a human rights culture

The Commission achieved 100% (4/4) of targets.
The annual human rights theme for 2014/15 was Business and Human Rights. The Commission completed an advocacy report on a roundtable on business trade and human rights. By the end of 2014/15, the Commission (together with the Danish Commission for Human Rights) produced a Human Rights and Business Country Guide for South Africa to assist companies promote and respect human rights. Training workshops will be implemented to assist government and stakeholders to implement the Guide.
The Commission reports that the rights of women, particularly the elderly and those that are rural bases, still need much attention. Women who fall under traditional leadership have their rights curtailed due to traditional and cultural beliefs and processes. There may be scope here to work together with the CGE and CRL on this issue. In addition poor or non-delivery of basic services to the public remains a topical issue of concern.
Two national human rights events and nineteen provincial human rights calendar day events held.

Advance the realisation of human rights

· The Commission achieved 100% of all five targets.

· The Commission finalised 90% (7200 cases) of complaints cases in 2014/15. Although this exceeded the target of 85% set for the year it is a lower success rate than in 2013/14 when 93% (8 550 matters) were finalised.

Completed of the Economic and Social Rights Report (ESR) which identifies issues and proposed reforms to accelerate the realisation of socio-economic rights.
Continued with the development of a matrix of indicators to improve monitoring and reporting of economic and social rights. The focus in 2014/15 was on indicators for environmental rights as well as water and sanitation.
Commenced development of a mechanism (to be piloted in 2015/16) to monitor implementation of SARHC report recommendations.

· Developed a proposal for instituting two strategic impact litigation cases.

. Use and project a broader constitutional and legislative mandate.

· Achieved 100% (7/7) of targets.

Completed the Third Annual Equality Report focusing on racial equality in universities; implementation of the Convention on the Rights of People with Disabilities; the rights of older persons; as well as the functionality and impact of equality courts.
Submitted the Annual Promotion of Access to Information Act Report to Parliament.
Conducted training for both private and public sector compliance officers to improve levels of voluntary disclosure and responsiveness to public requests for information.
Conducted 10 PAIA Community Law Clinics to raise awareness, record and attend to community complaints.

Improve the effectiveness and efficiency of the Commission.

· The Commission achieved 70% (7/10) of targets.

· Maintained an unqualified audit opinion with findings.

· Implemented a staff capacity development plan to alleviate capacity constraints and enhance requisite skills.

· However, three targets were not achieved:

Only 82% of the audit action plan was completed (against a target of 100 per cent).
Not all performance contracts were signed on time.
80% completion of strategic risks annual treatment plan against a target of 100%.

12.6. In 2014/15, the main appropriation to the SAHRC was R128.1 million. An adjustment of R2 million (plus donor funding of R420 000) brought the final allocation for 2014/15 to R132.5 million. (In 2013/14, the Commission had a final budget of R120 million.) Spending has improved in 2014/15: The SAHRC spent R131.3 million or 99% of its budget in 2014/15 compared with 90 %in 2013/14. Although the The Commission reports a surplus of R250 000 (in comparison with 2013/14 when it reported a surplus of R11.3 million), the loss recorded on disposal of assets and liabilities of R1.19 million resulted in a deficit of R935 000. This is in contrast with 2013/14, when despite a loss recorded on disposal of assets and liabilities of R3 million, there was a surplus of R8.3 million. A total of R76.9 million was spent on personnel (58% of the budget) and R38.2 million on general expenses (29% of the budget).

12.7. Following a qualified audit opinion from the Auditor-General in 2012/13 the SAHRC strengthened its internal audit function and for two consecutive years has maintained an unqualified audit (with findings). There were fewer findings in 2014/15. The Auditor-General’s focus areas included non-compliance with legislation (non-payment of creditors within 30 days) and ICT.

13. Public Protector South Africa

13.1. In 2014/15, the PPSA reports that its activities remained anchored in the constitutional mandate to support and strengthen constitutional democracy by ‘investigating any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;..to report on that conduct; and to take appropriate remedial action. The Public Protector has additional statutory mandates, including those derived from the Executive Members Ethics Act 82 of 1998; Promotion of Access to Information Act; Prevention and Combating of Corrupt Activities Act; Protected Disclosures Act; and the Housing Consumers Protection Measures Act.

13.2. In 2014/15, the PPSA was allocated R218.2 milllion. Finance and other income received brought the total revenue to R218.7 million.

13.3. In 2014/15, a total of R211 million or 97 % was spent, with an operating surplus of R7.6 million. A total of R158 million (72%) of the budget was spent on personnel, which was in excess of the approved budget of R155.5 million. Personnel expenditure was under pressure (due to annual salary increases of 7.4% which was more than the 6.6% in Treasury guidelines) and R3.5 million was moved from goods and services (savings on travel and accommodation) to subsidise the personnel budget. This, in turn, contributed to overspending in the goods and services budget. However, the overspending of R4.5 million on goods and services was not solely related to this adjustment. The PPSA also points to, ‘the insufficient budget for building leases’, which had a negative impact on the goods and services budget.

13.4. At year end (2014/15), the PPSA reported a total deficit of R18.3 million. The total deficit amount represents an amount of R26.3 million (accumulated as at 31 March 2014), less an amount of R7.6 million operating surplus generated as at 31 March 2015.

13.5. In 2014/14, to reduce the deficit from 2013/14, the PPSA applied the following austerity measures:

· An embargo was placed on the filling of positions (with the exception of the appointment of a new Chief Executive Officer and Chief Financial Officer who took up their positions on 2 March 2015).

· Cost containment measures were implemented to reduce spending on travel, accommodation catering, and advertising..

· Certain services were rolled back by scaling down of the opening of new regional offices and of community outreach.

13.6. Notably, the 2015-2020 Strategic Plan and 2015/16 Annual Performance Plan were reviewed and targets revised in line with the institutions budget constraints.

13.7. In 2014/15, the PPSA had the following five strategic objectives:

· Strategic Objective 1 - Accessible to and trusted by all persons and communities.

· Strategic Objective 2 - Prompt justice including remedial action.

· Strategic Objective 3 - Promotion of good governance in the conduct of state affairs.

· Strategic Objective 4 - An efficient and effective organisation.

· Strategic Objective 5 - Optimal performance and purpose-driven culture.

13.8. There is a continuing decline in overall performance:

13.9. The PPSA reports a vacancy rate of 7.6% (25 vacancies) in 2014/15 compared with 3.7% in 2013/14. Positive developments in the HR environment during the period under review include the filling of the CEO and CFO positions as from 1 March 2015; and the approval of a revised organisational structure, which is being implemented. The PPSA reports various challenges that impact on human resources, specifically that budget constraints have impacted recruitment and retention of staff. This has led to a high staff turnover. Further, budget constraints impact on the organisations ability to attract and retain women at senior management level.

13.10. The PPSA received an unqualified opinion with findings, including Material mis-statements in the financial statements (as in 2013/14).

· Non-compliance with the PFMA and Treasury Regulations, in particular there was no internal audit function for nine months of period under review.

· Accruals – payment to creditors not made within 30 days (as in 2013/14).

· Liabilities exceed total assets by R10.4 million casting doubt on the institution’s ability to discharge its liabilities in the normal course of business. (as in 2013/14).

13.11. The PPSA reported the following key challenges:

· Litigation by state organs has cost implications. (According to the 2015/16 Annual Performance Plan a panel of legal experts is to be appointed to assist with this challenge).

· Poor co-operation from State Organs.

· Capacity constraints resulting in critical posts (for e.g. COO) not being filled.

· Severe funding constraints pose a risk to operations resulting in the institution struggling to fund its commitments (such as leases).

· The sustainability of the trainee investigator programme, which is aimed at building in-house capacity, is at risk.

13.12. The Public Protector reports the following additional spending needs for 2016/17 and 2017/18:

Table 14: Public Protector SA Additional Funding Requests 2016/17 and 2017/18

Public Protector SA Additional Funding Requests 2016/17 and 2017/18
Item	2016/17	2017/18
Unforeseen and unavoidable litigation costs	R10 million	R10 million
Funding of key positions	R21.3 million	R22.6 million
Job evaluation exercise	R10.1 million	-
ICT and case management system	R63.2 million	R23.5 million
Office accommodation and leases	R9.3 million	R9.8 million
Security at regional offices	R3.9 million	R3.1 million
Funding of assistant investigator positions	R17.1 million	R18.3 million
Total	R135.1 million	R87. 5 million

Part 5

Office of the Chief Justice

The OCJ is mandated to provide support to the Chief Justice in his or her dual role as the Head of the Judiciary and the Constitutional Court, respectively. The Strategic Plan seeks to support the judicial reforms aimed at improving the efficiency and effectiveness of the administration of the courts.

The OCJ’s annual budget for the MTEF is R1.6 billion for 2015/16, R1.7 billion for 2016/17 and R1.8 billion for 2017/18. These funds were transferred from the Department of Justice and Constitutional Development for the Constitutional Court, the Supreme Court of Appeal, the high courts and the specialised courts. The funds also provide for the administrative staff transferred from the Department tasked with supporting the judicial functions of the Superior Courts, as well as other staff attached to the Department whose roles are directly connected to the superior courts. Further, the direct charge for Judges’ salaries are included in the OCJ’s budget as well as the allocations for the Judicial Service Commission and the South African Judicial Education Institute.

Table 15 OCJ Budget allocation 2015 MTEF

Programme (R million)	2015 MTEF				% of total allocation
Programme (R million)	2015/16	2016/17		2017/18
Administration	69.4		73.3	77.8	9
Judicial Support and Court Administration	640.4		696.5	735.7	86
Judicial Education and Research	32.6		34.5	36.4	4
TOTAL	742.4		804.3	849.9	100
Judges’ Salaries	873.7		920.1	966.1	-
TOTAL	1 610.0		1 720.0	1810.0	-

During the Budget process for 2015/16, the OCJ identified that unfunded mandates create a shortfall of R100.8 million for 2015/16. The Department of Justice and Constitutional Development has assisted with an amount of R25 million, leaving the OCJ with an overall shortfall for 2015/16 of R75.8 million.

For the First Quarter 2015/16, the OCJ reports spending a total of R339.7 million against planned expenditure of R397.7 million.

The OCJ has the following broad strategic outcome-orientated goals.

· Capacitate the Office of the Chief Justice.

· Support the Chief Justice in fulfilling his/her functions as Head of the Judiciary.

· Render effective and efficient administration and technical support to the Superior Courts.

14.6. The OCJ reports that overall for the First Quarter 2015/16 it achieved of exceeded 62% of the targets to be achieved for the Quarter:

In the Administration programe, 45% of targets were not achieved mainly in the areas of:

· Corporate services (unfilled critical funded posts; communication activities; and the development of a draft ICT Masters Systems Plan).

· Financial payment (only 72% of invoices paid within 30 days against a target of 100% as the BAS system was only available to the OCJ, being a new department, in the middle of May 2015).

· Risk management (investigation of fraud cases within the stipulated timelines as a result of capacity constraints).

In the Judicial Support and Court Administration programme, a total of 33% of the Quarter’s targets were not achieved. Notably:

· A total of 69% of cases in the Constitutional Court were finalised against a target of 80% as a result of the impact of the extension of the Court’s jurisdiction (Superior Court Act)

· A total of 15% of reserved judgements in the High Court were finalised against a target of 70% as a result of growing caseloads and inadequate researcg capacity, especially in complex matters.

· A total of 45.6% of cases in the Land Claims Court were finalised against a target of 52% as a result of the complexity of the cases, delays in referral of cases and dependency on stakeholders such as the Commission on the Restitution of Land Rights.

· A total of 50% of cases in the Competition Appeal Court were finalised against a target of 72% because of specialised nature of the cases; dependency on various stakeholders, such as the Competition Commission and Tribunal.

In Judicial Education and Research, at total of 33% (or 1) of the Quarter’s targets were not achieved as one judge failed to disclose the registrable interest and has been reported to the JSC against a target of 100%.

Part 6

Committee’s observations

The Committee makes the following observations:

15.1. BRRR process generally

15.1.1. The Committee repeats its view that the time allocated for the BRRR process is hugely challenging. Specifically, the conflation of the formal process of evaluating the annual performance reports with consideration of requests for additional funding is problematic. The short space of time between the prescribed date for the formal submission of the annual reports at the end of September of each year and the requirement that the BRRR be available prior to the MTBPS leaves little time for prior critical engagement with departments and entities on their respective performance, spending and forward funding needs. Further, the lack of time also limits the Committee’s opportunity to interact with the public on its assessment of the relevant sector. The Committee, therefore, is of the view that the feasibility of amending the Public Finance Management Act and the the Money Bills Procedures and Related Matters Amendment Act to address the difficulties raised by the timeframes contained in these Acts should be explored.

15.2. Budget reductions

15.2.1. The Committee is sensitive to the broader fiscal context that shapes the funds that are available for spending. Given the reality of budget reductions, the Committee commends the Department, entities and institutions that appeared before it for doing the best that they can with what they have. Still, it is apparent that there is very little available in terms of funds to give effect to key measures that will allow us to ensure that access to justice becomes the lived reality for all who live in South Africa. The Committee is concerned that these budget reductions, which are largely felt in already stretched operational budgets, gives insufficient weight to the circumstances in which justice services are rendered and their pivotal role in contributing towards the Nation’s priorities.

15.2.2. In the case of Legal Aid South Africa, for example, it’s budget goes largely towards funding legal representation of accused in criminal matters, as there is a consitutional obligation on the State to assist accused persons with legal representation. In past years, Legal Aid SA has done its best and has slowly increased the amount of civil work that it does – about 12% of its caseload consists of civil matters. Legal Aid SA has also been innovative with its resources to reach as many people as possible, for example, opening a call centre that offers first-instance advice. Without additional funds, Legal Aid SA is unable to expand its civil work, despite the very real need of South Africans for assistance in this regard. As one person appearing before the Committee remarked: “These are bread and butter cases”. The Committee feels very strongly that Legal Aid SA should receive additional funds to allow it to expand its civil mandate despite the fiscal environment.

Department of Justice and Constitutional Development

15.3. Transformation towards access to justice

In the past, the Department has expended considerable energy on addressing its operational challenges. The Committee commends the Department on its achievements in this regard. The Department obtained an unqualified audit opinion (with findings) in 2012/13 and has since reduced its findings. The remaining challenge to be addressed is the management of the Third Party Funds (TPF) for which the Auditor-General issued a disclaimer. The Department has developed a multi-year strategy to reverse the audit outcome on the TPF that it is steadily carrying out. The Committee also notes that the Justice Administered Bill, which will address the legal status of the TPF, has now been tabled.

The Committee is of the view that the Department is now in a good position to turn its attention to accelerating a transformative agenda that will see substantive change to our legal system. The Committee has warned on several occasions that a legal system that does not speak to the needs of the society it serves will, in time, no longer be regarded as legitimate, undermining respect for state institutions and putting the rule of law in jeopardy.

This transformative agenda will recognise, among others, the role that traditional and community courts can play in promoting access to justice. These courts are largely “geared” towards restorative justice principles, which is in accordance with the NDP’s vision of promoting a cohesive society. The Committee notes that the Department has undertaken to introduce the Traditional Courts Bill, which will regularise these courts and bring them in line with Constitution, before the end of the year. The Committee is not insensitive to the challenges that have accompanied previous attempts to process legislation addressing traditional courts but is of the view that this Parliament is well placed to deal with the challenges.

On the issue of language at courts, the Committee feels extremely strongly that a solution must be found to ensure that court proceedings are conducted in the language of those appearing in court. Although the present system makes use of interpreters, all too often too much is lost in translation and can lead to injustice. The Committee recognises that there are challenges, for example, relating to issues such as lexicology and court record. These, however, are all problems which can be surmounted. The Committee notes that Legal Aid South Africa suggested that simultaneous transcription of the record into two or more languages could deal with this concern. The Committee proposes that a conference is convened so that a way forward can be found. Despite budget pressures, the Committee believes that once the appropriate solution is found and implementation plan is developed and costed, additional funds to its baseline must be made available to the Department for this priority.

Further, the Committee is of the view that it cannot be that institutions of higher learning continue to produce lawyers, who are unable to speak directly with their clients, nor do they understand the society that they serve. The Committee urges that consideration be given to making knowledge of at least one indigenous language a requirement of legal education.

15.4. Audit outcome

15.4.1. The Committee welcomes the Department’s unqualified audit outcome for three consecutive years but notes the Auditor-General’s observation regarding stagnation in the quest for a clean audit opinion. Despite reduced findings, as in previous years, certain weaknesses remain, largely relating to compliance. The Auditor-General identifies the need to ensure that there are consequences for poor performance and transgressions, as well as timeous response by Management in addressing the root causes of poor audit outcomes. For this reason, the Committee supports the Auditor-General’s recommendations that leadership should ensure that policies and consequences are communicated clearly to employees; a no-tolerance approach in situations of non-compliance, fraud and corruption is enforced; and a formal disciplinary process is in place and enforced. Regular performance assessments are key. Where necessary corrective measures should be put in place to assist struggling employees. Further, management should have clear processes and delegations in place to ensure timeous response to findings. Adequate action plans must be implemented within strict timeframes, and the implementation of action plans should be reviewed at least quarterly by the Audit Committee. Internal Audit should assess if implementation has achieved the required outcome.

15.4.2. The Committee is concerned with the Department’s financial health. In particular, the Department’s account was in overdraft at year-end. The Department’s liabilities would have exceeded its assets had year-end accruals been taken into account. Although the Department has significantly decreased the number of creditors that are paid in excess of 30 days, the Committee urges the Department to continue to ensure that the payment of creditors is closely monitored to ensure compliance. The Committee also requests the Department to report quarterly on creditors that are not paid within the required period, the amounts involved and the reasons for late payment.

15.4.3. The Committee notes that the Department continues to incur fruitless and wasteful and irregular expenditure. The detection of irregular expenditure has improved significantly but more needs to be done to prevent its occurrence. This requires that Management ensure that there are consequences for those who transgress. The Committee notes the Auditor-General’s observation that lack of consequences for poor perfromance and transgressions, which creates the perception that these are accepted and tolerated as a root cause for lack of compliance. The Committee asks that the Department provide a written report by 30 January 2016 on disciplinary action taken against officials responsible for such expenditure.

15.4.4. The Committee is pleased that once again the Auditor-General made no findings related to predetermined objectives. Further, the Committee welcomes that the Department’s overall performance has improved: In 2014/15 the Department achieved 85% of its targets, which is an improvement from previous years. A total of 80% of targets were achieved in 2013/14 and 44% of targets in 2012/13.

15.4.5. The Committee specifically requests that, by 30 January 2016:

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 progress to date and, in addition, reports quarterly on progress made.
Furthermore, Department is asked to provide the Committee with quarterly key dashboard reports with particular focus on compliance with laws and regulations and supply chain management.

15.5. Management of Third Party Funds (TPF)

15.5.1. The Committee notes the disclaimer of audit opinion for the Third Party Funds (TPF) for 2014/15, despite considerable progress made. The Department has undertaken various interventions to remedy the many challenges existing within the TPF environment, including compiling credible baseline financial statements; expanding capacity; providing regional training for court personnel, court managers and financial operations managers; and addressing risk by reducing cash handling at court level by encouraging the use of Electronic Fund Transfer (EFT) as a payment method (by introducing a decentralised EFT payment system in courts). The Department also reports that working with the Information System Management (ISM) Branch and State Information Technology Agency (SITA), it has cleared in excess of R20 million in reporting errors in 2014/15. In November 2014, the Department also appointed a private sector service provider to develop a new financial and accounting system to manage the TPF and reports that the system is being tested. This system is a key element in resolving the financial/accounting challenges that have affected the TPF.

15.5.2. The Committee notes the Auditor-General’s observation that, in addition, to addressing system challenges, in order to move TPF forward all invalid balances need to be identified and ring-fenced. Until this exercise takes place, the audit outcomes will not change positively, as it is the old balances which TPF carries on its financial statements but cannot verify due to the time period that has lapsed, that is impeding the move to an improved audit outcome. The Department informed the Committee that it will not migrate contaminated information to the new system but will work with that information seperately. The Committee understands that this solution will likely to take some time and will affect the audit outcome for a number of years to come.

15.5.3. The Committee welcomes the introduction of the Justice Administered Bill at last. This Bill addresses the legal status of the TPF. The Department has a reporting exemption until 2015/16 to submit TPF annual financial statements separately from the main vote account. However, should the status of the TPF remain unresolved, the Department’s audit outcome would be at risk should it be required in future to report on TPF as part of the main Vote account. Further, National Treasury has ruled that State Attorney monies and all categories of fines are government monies and, therefore, should be included in the Department’s Vote account and not seperately as is presently the case.

15.5.4. The Committee once more supports the Auditor-General suggestion to improve the management of TPF in the short-term, advocating discipline in undertaking daily and monthly reconciliations accompanied by in-year recordkeeping to ensure the accuracy of closing balances.

15.5.5. The Committee requests that the Department continue to report on its progress in managing the TPF quarterly.

15.6. Expansion of justice services for improved access to justice

15.6.1. The Committee has remarked on the need for new courts as these are part of a larger strategy to transform judicial services by making justice accessible in areas that were under-serviced in the past. The establishment of the new High Courts at Polokwane in Limpopo and Nelspruit in Mpumalanga, in particular, are vital in this regard. In this regtard, the Committee understands that the opening of the new Limpopo High Court is imminent and welcomes this.

15.6.2. The Committee is also pleased to note that the Department’s spending of its capital works budget for 2014/15 has improved, although spending in the first three-quarters was slow: In the First Quarter of 2014/15, the Department spent only 5.8 % (R50.5 million) of the available budget for buildings and fixed structures (capital works) against projected expenditure of R240 million. In October 2014, the budget of R864 million was adjusted downwards to R585 million. This trend continued in the third quarter of the year: By December 2014, only 67.8 % of the adjusted budget was spent. During the fourth quarter, however, funds in the amount of R136.8 million (approved virements and shifting of funds) were moved to Buildings and fixed structures to ‘defray excess expenditure on payment of capital assists mainly due to the Department of Public Works expediting the construction of courts and planned capital works projects’. This increased the final appropriation for Buildings and fixed structures in 2014/15 to R722 million. The Department, therefore, spent 100% of the final appropriation for this item. This is in comparison with 2013/14 when only R398 million (53.4%) was spent of a final appropriation of R746 million. In the First Quarter 2015/16, however, underspending on capital works (compared with projected expenditure) is, once more, a challenge for the Department and is attributed to the late submission of invoices from the Department of Public Works. The Committee has met with the Justice Department and DPW, as well as IDT, to be briefed on the Department’s capital works programme but will continue to monitor performance. The Committee is of the view that delays in the infrastructure programme associated with the Department of Public Works requires addressing at a ministerial level and is pleased that a meeting between the two ministers has been scheduled with a view to improving working relationships.

15.6.3. The Department has a strategy that includes increasing its technical expertise within Facilities Management, especially at regional level. It is a concern, however, that there are two vacancies at Chief Director level in Facilities Management. The Committee urges the Department to fill the positions as soon as it can.

15.6.4. The Committee requests that the Department should provide a written report on progress made in implementing its infratructure programme, with timeframes, by 30 Janurary 2016 and be prepared to brief the Committee quarterly on this item. Also, with regard to maintenance of justice service points, the Committee requests that the Department also provide it with a comprehensive written report of the schedule of, and progress made, relating both to planned maintenance of court buildings and leases by 30 January 2016, and be prepared to report on these on a quarterly basis.

15.6.5. The Committee is also interested in the impact of newly established courts for the communities they are intended to serve and access to justice as a whole. It requests that the Department consider conducting assessments of the impact that new courts have.

15.6.6. The building of new courts is but one aspect of the Department’s strategy to increase access to justice services to historically marginalised persons. The Committee is pleased to note the following achievements to increase access to justice services: A total of 3 branch courts were converted to full service courts, bringing the total number of Branch Courts designated at the end of 2014/15 to 32; a total of 39 magisterial districts were aligned to the provincial municipal boundaries in Limpopo and Mpumalanga provinces; and 39 new small claims courts were established bringing the total number of small claims court to 331.

15.7. Vacancies

15.7.1. In the past, the Department has taken great strides to reduce its overall vacancy rate (at one time vacancies at SMS level were approximately 25%), which has reached an overall rate of 9.6%, including judicial officers. There are, however, vacancies in critical occupations, particularly magistrates. The Committee notes too that the Department reports in the First Quarter 2015/16 certain critical vacancies at SMS level, particularly the position of DDG: Constiutional Development and CD: Facilities Management. which pose a risk to the organisation. The Committee notes that the implementation of the OSD is reported as an obstacle to its filling positions, particularly in the State Attorneys Offices. As discussed, the Committee will invite the Department to brief it specifically on the challenges relating to the implementation of the OSD as soon as its programme allows.

15.7.2. The Committee notes that there is underspending on magistrates’ salaries, which is attributed to unfilled magisterial posts. The Committee is pleased that 57 regional magistrates were appointed on 2 February 2015 and 154 district magistrates in various magistrates’ courts in September 2015. This brings the total number of magistrates appointed in 2015 to 211. The Committee welcomes that more that 50% of the newly appointed magistrates are women. The additional capacity that the apointments bring is expected to assist towards improved court performance and case flow.

15.8. Security at court

15.8.1. The Committee appreciates that the Department’s budget to secure courts and justice service points is stretched while security at justice service points has become a high priority as a result of increased criminal incidents relating to the Department’s property and personnel. The Committee shares the Department’s concern in this regard. The Committee requests that the Department provide a written report by 30 January 2016 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 Committee also asks that the Department be prepared to brief it specifically on its plans to address the provision of security at courts and justice service points in the longer term in light of the ever increasing costs.

15.9. Integration of IT systems (IJS)

15.9.1. 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 and is a recommendation of the National Development Plan. The Committee was briefed recently on the progress made and the Committee is pleased that, at long last, there appears to be some progress, given the length of time that the project has been running and the considerable amount of money that has been spent. The Committee notes that a business plan remains outstanding but is told that the revised target is 31 December 2015. Given the critical role that this project plays in driving imporvements to the criminal justice system, the Committee requests that the Department continue to provide a written report on progress made towards achieving the Seven-Point Plan, clearly indicating any revised targets and timeframes and the reasons for this, by 30 January 2016. In addition, the Department is requested to address the Committee quarterly on progress made.

Transformation of State Legal Services and challenges in the State Attorney’s Office

15.10.1. The Committee has raised its concerns regarding certain aspects relating to state litigation, in particular the role that the State can play in driving transformation within the legal profession by briefing previously disadvantaged individuals. The Department admitted that there was not enough progress in this regard, and some state organs will only brief certain counsel. The Committee welcomes that the Minister has taken the step of only appointing Black women counsel, unless there is no other alternative. The Committee requests that the Department provides it with a report on the numbers of briefs allocated to counsel, the number of new and junior advocates reached, the quality of briefs and the monetary value of each brief allocated for 2014/15.

At present, a fragmented approach to the management of state litigation exists. Towards the end of the Fourth Parliament, legislative amendments were passed to provide for a ‘chief’ State Attorney – the Solicitor-General but this appointment has been delayed as a result of challenges relating to the level of the post.

Further, in recent years, a number of court judgements have highlighted ongoing challenges in this State Attorney’s office pointing to instances of neglect and general decline in standards; a disquiet regarding failures to observe both law and practice and, most recently, a chaotic state of dysfunctionality, a failure to render a professional service, unacceptable excuses and the unprofessional manner in which pleadings and affidavits are prepared. The Committee understands that some of the challenges are as a result of capacity – the implementation of OSD has perversely made it very difficult for the Department to attract legal skills at supervisory level. As previously stated, the Committee notes that the Department has asked to brief the Committee on challenges relating to the implementation of OSD and will schedule the necessary meeting as soon as its programme permits.

16. Office of the Chief Justice - Case backlogs and court performance

16.1.1. The Committee is concerned at reports from stakeholders that various case management related issues, such as reduced number of courts hours available for trials, as well as postponements on the account of the unavailability of presiding officers and other actors, adversely impact on court performance creating delays in the finalisation of matters. The Constitution Seventeenth Amendment Act and Superior Courts Act provide the legislative framework that will enable the judiciary to take responsibility for the administration of judicial functions of all courts. The Chief Justice is responsible for the development and monitoring of norms and standards for the performance of all courts and has for some time now begun to address judicial case flow management. The ongoing capacitation of the Office of the Chief Justice should also greatly assist the Chief Justice in addressing this priority. The Committee is interested in the progress of the project and looks forward to engaging with the Chief Justice and his Office on this.

16.1.2. The Committee is also of the view 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.

National Prosecuting Authority

The Committee congratulates Adv. S Abrahams on his appointment as NDPP. The Committee notes his frankness regarding low morale at the NPA at the time of his appointment and welcomes the promise of stability that his appointment brings to the institution.

The Committee engaged with the NPA on its views regarding court performance and notes that it has identified the shortage of magistrates and the workload as reasons for bottlenecks. Also, the Committee is told that case flow management works in some areas but not others. The Chief Justice has established national and provincial efficiency enhancement committees in which all relevant stakeholders participate. These structures are relatively new and, therefore, it is difficult at this stage to gauge what impact they have had on improving court performance. The Committee will engage with the Judiciary to gain a better understanding of the challenges that are emerging and the interventions that these committees have identified.

The Committee engaged keenly with the NPA on its views regarding corruption. In its view, statements regarding the extent of corruption in South Africa are far too easily/loosely made. The Committee believes that there is urgent need to draw on the experiential knowledge of bodies, such as the NPA, to build a more comprehensive picture of corruption in SA. Action that is supported by hard evidence will assist in informing where action should be directed.

The Committee notes that the Asset Forfeiture Unit is one of the few state institutions that recovers money for the state. The Committee congratulates the AFU on its considerable achievements for 20154/15 in achieving its best ever year in terms of performance.

Legal Aid South Africa

The Committee is concerned at the extent to which criminal matters are prioritised over civil matters. This paradigm is rooted in the past and doesn’t necessarily speak to the current challenges that the country is facing. If we are unable to ensure greater balance between the criminal and civil work undertaken by Legal Aid SA, there is great risk of undoing our democracy as the legitimacy of the judicial system is brought into question. The Committee appreciates the many efforts that Legal Aid SA has taken to stretch its capacity to undertake civil work to its very limits but it is not enough. The Committee feels very strongly that Legal SA should be supported in expanding its civil work, and that the necessary budget should be provided.

In better addressing the need to provide legal assistance and advice in civil matters to those who cannot otherwise afford it, the Committee repeats its position that community structures, such as traditional and community courts, can do much to relieve the burden on Legal Aid SA. These structures, which are made up of community members, operate in terms of restorative justice rather than the adversarial stance of formal courts, so doing away with the need for legal representation in certain cases.

The Committee is also concerned at the slow pace with which land claims are settled. Apartheid dispossessed people of land and resources leading to poverty and inequality. In the Committee’s view, the process of dealing with land claims is falling short, creating the risk of land occupations and violent protests as people become frustrated. The Committee is told that the responsible Department provides legal representation on a Judicare basis. Although the Committee understands that, at present, Legal Aid SA plays no role in providing representation in such matters, it welcomes its willingness to explore ways in which it can be of assistance.

The Committee congratulates Legal Aid SA on receiving an unqualified audit for the past 14 years, with no matters of emphasis for the past ten years. Yet again, Legal Aid SA impressed the Committee greatly with its strategic vision and planning, management of resources and considerable achievements.

Special Investigating Unit

The SIU once more attained an unqualified audit with findings. The Committee repeats its view that it is wholly undesirable for a body that addresses corruption, maladministration and abuse of power to obtain anything other than a clean audit. Still, the Committee accepts the SIU’s explanation for the findings and welcomes its commitments to improve on these. The Committee requests, however, that the SIU provide the Committee with written details of the formal commitments made to address the audit findings and its audit action plan in this regard by 30 January 2016, and report on progress quarterly.

The Committee notes that the SIU’s performance declined in 2014/15: it achieved a 50% success rate in respect of its targets compared with 67% in 2013/14. The SIU referred to difficulties in formulating targets and that these are being reviewed.

The SIU reports that in 2014/15 a total of 171 matters were referred to the NPA. A large proportion of these referred matters are, in turn, referred to SAPS for further investigation. The Committee understands that when the SIU hands over matters these are fully investigated in terms of SIU’s mandate. The Committee asks that the SIU take this up with the NPA to establish how the processes can be better aligned to prevent duplication of tasks and unnecessary delays.

The Committee is interested in the impact of measures to tackle corruption and asks that the SIU and NPA provide it with details of the outcome of these cases. In future, it would be helpful if there were an indication in the reports of the outcomes of the SIU’s activities.

The Committee notes that the SIU is experiencing difficulties in collecting monies owed it by state organs. Although it is not yet a risk to the SIU’s operations, it is possible that in future this may be the case. The Committee does not understand how this situation could have arisen, as the funds come from the Fiscus. It, therefore, requests that the SIU and National Treasury look at a mechanism to assist the SIU in recovery of monies owed to it.

South African Human Rights Commission (SAHRC)

The Committee supports the SAHRC role in promoting a human rights culture and believes that it is well positioned to drive educational programmes regarding human rights. The Committee, however, asks that the Commission include a focus on accompanying responsibilities.

The SAHRC is the only National Human Rights Institution (NHRI) that can report at the United Nations Human Rights Council (UNHRC) on South Africa’s human rights activities. A concern that has been raised in the past is to the extent to which other institutions are able to report at that level on their mandates. On the issue of South Africa’s compliance with its international and regional reporting obligations, the Committee notes that the Commission produces an annual report on this and will schedule a briefing as soon as its programme permits.

The Committee has frequently expressed its concerns at the possible duplication/overlap of mandates and functions among state institutions supporting democracy. These institutions meet regularly to discuss common issues, including how to work together to avoid duplication for greater effectiveness and efficiency. The Committee requests that the Commission provide it with a report on progress made to resolve these questions of overlap/duplication.

The Committee notes that the geographic spread of complaints received is uneven. The Commission advised that it is a challenge to ensure that its presence in certain provinces is maximised, given the resources available. The Commission is looking at how best to work with others to expand its reach and to ensure the most efficient use of budgets.

The Committee notes the Auditor-General’s findings and recommendations the Auditor General in relation to IT governance. The SAHRC is urged to ensure that it puts in place the necessary controls to ensure that the weaknesses are addressed.

The Committee remains concerned at the low level of compliance with PAIA requests by government departments. The Committee requested in the past that the SAHRC report separately on its Promotion of Access to Information Act (PAIA) mandate, which the Commission has done now for several years, preparing a report annually. The Committee intends to engage with the report as soon as its programme permits.

The Committee is concerned about the extent to which the Commission’s recommendation are taken up by government institutions. The Committee, therefore, asks that the SAHRC provide it with a report on compliance by government departments with its recommendations so that it can take this up.

Public Protector

The Committee notes that the Public Protector was unable to attend the briefing by Public Protector SA as she had a commitment in London. The Committee feels strongly that interactions of this kind should be prioritised, especially where it is possible to anticipate a commitment, as is the case for the BRR process which happens at the same time each year. The Committee, however, was pleased to note the commitment of the “team”, which included the Deputy Public Protector, the CEO and CFO, that appeared before it towards PPSA.

The Public Protector received an unqualified audit opinion with matters of emphasis. The Committee reiterates its belief that, as an integrity institution, the Public Protector should prioritise attaining a clean audit. The Committee is aware that the Public Protector was without a CEO or CFO for a significant part of 2014/15 although the impact of this on the audit outcome is unclear. The Committee notes that the Public Protector did form an audit action plan to address the findings of the previous financial year (2013/14) but that management did not adequately monitor adherence to the plan. Further, there was no internal audit function for nine months of 2014/15. A specific concern relates to the Public Protector’s financial health, as its liabilities once again exceed its assets. The Public Protector reports that measures were put in place to address the issue so that by the end of 2014/15, the deficit amount had decreased from R25 to R18 million.

The Committee supports the Auditor-General’s recommendations that the PPSA develop a financial action plan with targets and timeframes to address the funding deficit. Still, the Committee notes the explanation that the new CFO provided regarding the financial health of the institution

The Committee notes that the Public Protector SA, like any other institution, is operating under financial constraints and that it needs more money to adequately discharge its mandate. Nonetheless, the Committee feels that Office should first address the red flags raised by the Auditor-General before more funds could be allocated to it. The Committee is pleased to note that the Office has already taken steps to address such challenges.

The Committee notes that PPSA lists the potential erosion of public trust as a result of resistance to implementing the Public Protector’s findings as a challenge. The Committee notes that the issue is now before the Constitutional Court and, in its view, a decision by the Constitutional Court on the powers of the Public Protector will assist to clarify much of the debate in this regard.

The Committee is of the view that the Public Protector Act needs to be reviewed, noting that PPSA agrees with it in this respect.

The Committee remains concerned with the Public Protector’s performance on predetermined objectives. In the past, the Auditor-General suggested that the targets were set too high and not suitably developed during the strategic planning process. During the year under review, the Auditor General found that targets were inaccurately reported in the annual performance report as having been achieved. The root cause of this was inadequate review by management of the final performance report.

Part 6

Recommendations

The Committee recommends that:

22.1. The feasibility of amending the Public Finance Management Act and the the Money Bills Procedures and Related Matters Amendment Act to address the difficulties raised by the timeframes contained in these Acts be explored.

The legal recognition of paralegals and traditional courts is prioritised and related legislation is introduced before the end of the year.

The Foundation for Human Rights look into providing support for community-based advice centres and paralegals.

More regular engagement between Parliament and the Chapter 9 and associated institutions is formalised within the parliamentary programme, especially on substantive reports of these institutions.

Legal Aid SA be provided with additional funding for additional capacity and to support the expansion its civil work, especially land claims, and maintenance and related matters.

PPSA develop a financial plan to address the accumulated deficit.

National Treasury and the Auditor General assist the PPSA to resolve the accumulated deficit, its liabilities exceeding its assets, non-compliance with National Treasury regulations and internal audit weaknesses.

Appreciation

The Committee thanks the Minister of Justice and Correctional Services and the Deputy Minister of Justice and Constitutional Development, as well as the Director General and all officials who appeared before the Committee for their co-operation.

The Committee thanks the National Director of Public Prosecutions and NPA staff for their co-operation in this process.

The Committee thanks the Secretary General of the Office of the Chief Justice, as well as officials of that Office that appeared before the Committee for their co-operation.

The Committee also wishes to thank the Public Protector and Deputy Public Protector; the Chairperson and Commissioners of the South African Human Rights Commission; the Chairperson and Board members 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.

The Committee finally wishes to thank the Auditor-General and his representatives for their assistance in this process.

Report to be considered

Documents

No related documents

ATC151026: Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 22 October 2015

Justice and Correctional Services

Documents

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