Political overview by Minister on 2019/20 Annual Report, with DCS Deputy Minister present

Meeting report

Opening Remarks by the Chairperson

The Chairperson opened the virtual meeting, welcoming the Members and the ministerial delegation from the Department of Justice and Correctional Services. The delegation consisted of Mr Ronald Lamola, the Minister of Justice and Correctional Services; iNkosi Phathekile Holomisa, Deputy Minister of Justice and Correctional Services, and Ms Kalayvani Pillay, Acting Director-General.

The purpose of the meeting was for the Committee to receive the political overview from the Minister of Justice and Correctional Services on the 2019/20 Annual Report of the Department of Justice and Constitutional Development (DoJCD), the Department of Correctional Services (DCS) and the Office of the Chief Justice, followed by the discussion of Members. Another item on the agenda was for the Committee to comment on the vacancies at the South African Human Rights Commission (the SAHRC).

Minister’s political overview on the 2019/20 Annual Report

Minister Lamola thanked the Committee for the opportunity to provide a political overview on the 2019/20 Annual Report of the DoJCD, the DCS and the Office of the Chief Whip. He spoke from the newly-built Tzaneen correctional facility opened on 20 November 2020, which was built in addition to the thirteen new-generation facilities that have been built since the dawn of South Africa’s new constitutional democracy. It is a continuation in the life of the DCS.

The Annual Reports allow the DoJCD and the DCS to assess what has gone right in them and to attach consequences in instances where things have gone wrong. As the Committee correctly pointed out, performance is not just about ticking boxes but it is also about changing people’s lives. The task of the two Departments is to make sure that the justice system is more accessible and to enable public participation of even the lay person into the system. It is crucial to ensure that South Africa has a just criminal system which enhances respect for the courts and ensures obedience to the rule of law. These are not mere boxes that need to be ticked, but it illustrates the real-life problems faced every day. The Ministry of the DoJCD and the DCS assessed that the administration needs to be significantly reengineered to meet the expectations of South Africans. The DoJCD and the DCS is currently spearheading these processes and the rebuilding of critical parts of the administration is in progress.

The DoJCD and the DCS is in desperate need of renewal, and the Ministry hopes that when the public administration and Cabinet processes are concluded, the new Director-Generals will add valuably to the renewal process of the DoJCD and the DCS. The new Chief Master and the Deputy Director-General (Corporate Services) have now been appointed after long delays. These appointments give the DoJCD and DCS the opportunity to reinvigorate the Chief Master’s office and the level at which corporate services are provided. The DoJCD and the DCS now have the opportunity to ensure that the best personnel are appointed in the right places, but it will also help to drive the filling of other vacancies in the Departments. However, in the DoJCD and the DCS workforce (that consists of over 15 000 workers) there are thousands of people who are diligent in doing their work at the forefront of making the justice system more accessible, even during the time of the COVID-19 pandemic. There are currently 2 283 court rooms and 748 court houses that are functioning. During the period of the five days of national mourning, the DoJCD and the DCS will be paying tribute to the one High Court judge, six magistrates, three prosecutors and seven administrative staff members who passed away due to the COVID-19 pandemic.

Mr Lamola echoed his call on the senior management in the DoJCD and the DCS to conduct a root-cause analysis of the problems experienced in the two Departments to ensure that a risk-management plan is developed as recommended by this Committee. This rescue plan will then recite the plans already in motion to immediately address the concerns of this Committee, the Auditor-General of South Africa (the AGSA), and the internal audit committees. It is critical that senior management take accountability and lead from the front in addressing the challenges that the root-cause analysis will identify. This is particularly of effect in the areas relating to high-level leadership instability, the lack of capacity, the lack of proper performance management, the lack of decisive decision-making, the lack of a defined organisational culture which leads to a culture of non-performance, as well as a lack of ethical tools.

He mentioned a few actions that will have to be undertaken by the end of the current financial year. Firstly, the microstructure of the DoJCD and the DCS must be realigned. Secondly, corrective actions and consequence managements must be implemented. Thirdly, a skills audit will be conducted to assess the skillset of the middle and senior management officials at the DoJCD and the DCS. These three tasks are critical and must be implemented without delay. A mandate of supporting the reconstruction of the National Prosecuting Authority (the NPA) remains an ongoing task. This entails a reconstruction of the State itself while the DoJCD and the DCS exercises political oversight over the NPA. The operations and decisions whether to prosecute are independent of any form of political interference. The NPA must prosecute without any fear, favour or prejudice to ensure that it has the capacity to address the ills that manifest themselves in our society. This is crucial to ensure that corruption is also stopped at its root. It is against this background that the President has appointed the National Deputy Directors of the NPA. Every rand and cent must be used to capacitate the NPA as it is an investment into regaining the public’s confidence in the rule of law and to recoup the money lost to corruption.

During the extraordinary challenges and uncertainty brought on by the COVID-19 pandemic, massive disruption has changed the way that the DoJCD and the DCS can operate. However, it was an unprecedented opportunity to gain experience to influence the design of a more optimal system that enhances access to and quality of the services provided. The two Departments’ recovery rates are at 95% regarding the COVID-19 outbreak. The DoJCD and the DCS release daily reports of the number of officials and inmates that are infected with COVID-19. Since the start of the pandemic, 7 462 people who were infected, of which 4 674 were correctional officials and 2 788 were inmates. Out of these infections, 132 people passed away and 7 193 people have recovered, leaving 137 active cases in South Africa.

The DCS has continued to use its allocated budget to deliver on its core programmes and have reached 86% performance achievement regarding the five-year Medium-Term Strategic Framework (MTSF). This shows an improvement from the 62% achievement in 2015/2016. The DCS strives to improve its audit outcomes, which continue to be a challenge. The Department has adopted a roadmap to aid in eliminating irregular expenditure and to prioritise consequence management and the resolution of the backlog of disciplinary processes. The DCS is also prioritising filling vacancies at a senior management level, and in the last five months it has appointed three Chief Deputy Commissioners. The COVID-19 pandemic has given the DoJCD and the DCS time to address these issues and to strengthen its commitment to improve its financial management.

Overcrowding in correctional facilities remains a challenge for the DCS. The causes of overcrowding are not confined to the limits of the criminal justice system, but extend to other spheres of the state’s responsibility such as social welfare policies, access to health services, education, employment and the continued increases in population. The inmate population for 2019/20 was recorded at 166 449 inmates against the approved bed space of 120 567. The DCS welcomed the announcement by the President of the special remission that has led to the release of 14 647 low-risk inmates into the community correctional facilities. This process led to a 28% reduction in the overcrowding problem faced by the DCS. While it is not the final solution to the management of overcrowded facilities, it is a short-term relief. It has led to a reduction in the pressure on officials to ensure the safety and security at operational correctional facilities. The multi-pronged strategy of the DCS in addressing overcrowding includes the stabilising of inmate populations through the increase of available bed spaces, renovations and upgraded expansions of correctional facilities, a reduction in the time detainees await trial, greater integration within the criminal justice system, and the progressive optimising of the use of legal instruments at the disposal of the DCS. The dynamic use of technology at parole hearings have also assisted the DCS to reduce overcrowding to 15.9%.

The DCS must close the proverbial revolving door by limiting the probability of inmates relapsing into a life of crime. The DCS remains committed to reducing recidivism by ensuring that its correctional facilities are transformed into safe and secure rehabilitative spaces. The work that has been done through the years of 2019/20, as under review, was informed by the need to create an environment that will strengthen safety and security to enhance the rehabilitation of offenders. The DCS will continue to focus on delivering a more sustainable and effective correctional system in keeping with its vision.

Regarding the Office of the Chief Justice, the Minister said that the National Development Plan (the NDP) calls for a need for a strategy to strengthen the independency of the judiciary, judicial governance and adherence to the rule of law. It also seeks to address the administration inefficiencies of the courts that deprive people of their right to access to justice. It encompasses issues such as the administration of the courts and the responsibility to rationalise the courts with a view to establish a single judicial system in line with section 166 of our Constitution. This is a continuous responsibility that requires the Executive branch of the state to work together with the DoJCD and the DCS to ensure that it continues to fulfil its mandate.

In the Office of the Chief Justice, vacancies at the level of the Deputy Director-General were filled with three employees. This aided in the provision of technical support to the Chief Justice and their international obligations in view of the Constitutional Court’s membership to the World Conference on Culture Justice and the Conference of Personal Jurisdictions of Africa. The vacancy rate in the Office of the Chief Justice is currently 7.2%, which is below the 10% target improvement in the audit outcome. In 2015/16, the DCS has achieved 74% of its targets, 90% in 2016/17, 100% in 2017/18, and 90% in the financial year of 2018/19. The acquisition of new offices, the capacitation of Judge Presidents’ offices with the support to manage court performance information, and the appointment of statisticians in all the superior courts, aid in the achievement of targets.

Mr Lamola assured the Committee that there is no room for complacency in the DCS, and it will continue to hold officials accountable and turn around the DCS to ensure that the lack of consequence management for poor performance is no longer tolerated.

Discussion

Mr W Horn (DA) commended the DCS for listing the issues that it faces. He asked for an explanation as to why some of the critical issues are recurring from previous years. For example, while it is good to hear that consequence management remains a top priority to address poor performance, maladministration and corruption within the ranks of the DCS, the Committee cannot turn a blind eye to the fact that it is yet to materialise. Why has it not yet materialised despite it being a top priority of the DoJCD and the DCS?

It is welcomed that the vacancies in senior management are being filled, but it remains a concern that the position of the Director-General (DG) of the DoJCD has not yet been filled. If you take into consideration the admission from the Deputy Minister Holomisa, the position (while it was not technically vacant) was practically vacant months before the previous DG vacated the seat. It is a big concern that the lack of accountable and effective leadership by the DCS have led to further deterioration in performance at the DoJCD and the DCS.

He raised the issue of ICT at the DoJCD and the DCS. The COVID-19 pandemic has exposed the large amount of money spent in respect of the attempted development towards an integrated criminal justice system. This is a stillborn project and there is very little to show for the large expenditure on these ICT projects and attempts at creating and maintaining integrated court or inmate management systems. He urged the Minister to update the Committee on his involvement in arresting the situation to avoid any fruitless and wasteful expenditure. He also asked the Minister to address the Committee regarding the capital expenditure of the building programmes that are simply not value for money.

The other issue not mentioned by the Minister is the tension between the Minister and the Chief Justice, which has decisively shown that something must be done regarding the final settlement about the courts’ administration models. It must be ensured that there is not more than necessary tension between the Executive and the Judicial Branches of government. While the Minister is not the primary role-player in the issue, Mr Horn stated that the Committee hoped to also have heard what the plan of the DCS is relating to the security cluster in addressing the situations of high-profile individuals who are not necessarily South Africans but who have escaped facing justice – such as the Gupta and the Bushiri families. These are ultimately issues that erode the public’s confidence in the justice system, and the Minister is one of the primary custodians of South Africa’s justice system.

Adv G Breytenbach (DA) emphasised the point raised by Mr Horn regarding the continuous decline of the performance of the DoJCD and the DCS. It is a serious concern that the DoJCD and the DCS, who must serve the South African public, is not doing its job to the fullest. It is deeply concerning and embarrassing that there is an inability to turn around the performances of the two Departments as they have been declining for a few years now. In fairness, Mr Lamola is a new Minister but he has been in office for some time now and has had the opportunity to make an impact. The Committee would like to see the extent of the impact made. How will the Minister turn around the fact that there is no real consequence management in the DoJCD and the DCS?

She found it worrisome that the DCS only now wishes to conduct a skills analysis of senior management who were appointed in positions with high salary scales without a proper analysis of their skills before appointment. If these senior management officials are found not to have the required skills, they should not have been appointed in the first place. There must be consequence management for this issue as well. The Committee needs to be kept up to date on the outcome of the skills audit and given estimation as to how many senior management officials were appointed, who did not possess the necessary skills required for their position.

The portfolio of the DoJCD and the DCS is massive, but it is up to the Ministry and the officials employed at the DoJCD and the DCS to provide the leadership and accountability that is currently lacking. The lack of accountability can no longer be an excuse because it is the job of the DOJCD and the DCS to correct it by providing effective leadership.

Regarding the Master’s Office, there is always a very long queue of people who need services. The rate at which people are let in and helped is so slow that people who are in the back of the queue has no chance of being dealt with. This is a daily issue that persisted even before the COVID-19 pandemic, yet nothing is being done to alleviate the problem. What is the Ministry doing to alleviate this problem and make the process of service delivery more accessible and timeously? The same concern applies to Maintenance Courts, where queues are so long that many people have to go back on consecutive days, which makes it a very difficult process for South Africans who have to work and cannot attend court for multiple days at a time. What is the DoJCD and the DCS doing to help the people of South Africa to have their maintenance issues resolved?

Ms J Mofokeng (ANC) thanked the DoJCD and the DCS for their continued work and the briefing presented by the Minister. She commended the Minister for knowing the operational requirements and the challenges that the DoJCD and the DCS are facing. The Committee needs to receive a report on the investigations that are being done by the Special Investigations Unit (SIU) into the Master’s Office and how the DoJCD and the DCS proposes to salvage the slow and ineffective service delivery at these offices. It will be quite unfair to bring in a new Chief Master into these circumstances when there are not clear salvaging proposals. The DoJCD and the DCS also needs to consider a succession plan across generations, especially for the employment of the youth, to avoid positions being unnecessarily vacant. It remains a concern that the position of the Director-General in the DoJCD has not yet been filled; this must be addressed as a matter of urgency.

Can the DoJCD and the DCS not work with the South African Police Services (the SAPS) to help people in maintenance matters who experience unnecessary delays because they cannot trace the partners who are in violation of maintenance orders? It is almost festive season, and the DoJCD and the DCS can employ the SAPS using roadblocks to be on the lookout for these people who are not appearing before the maintenance courts when they are required to do so. The Departments had five plans in response to recommendations made by the Truth and Reconciliation Commission, but nothing has happened in that regard. This issue has been coming for a long time.

Regarding the issue of the state’s legal services, there are significantly fewer amount of women employed as female advocates. This issue must also be address so that women can be given the opportunity to be employed in those services at the DoJCD and the DCS.

Mr S Swart (ACDP) stated that while the Committee appreciates the many people at the DoJCD and the DCS who are diligently doing their work, there are serious challenges that remain. These challenges have previously been highlighted by the Committee, the AGSA, and the Acting Director-General. When will the Director-General be appointed? What steps will be taken to improve the performance of the DOJCD and the DCS? The Committee understands that there are challenges to filling the vacancies because of the financial constraints faced by the DoJCD and the DCS. To what degree will the financial constraints experiences impact the filling of vacancies?

Regarding the Maintenance Courts, there used to be a practice of naming and shaming people who failed to pay the maintenance the courts have ordered them to by publishing their names in the media. Is that a project that the DOJCD and the DCS would reconsider given the considerable people who are desperate for their maintenance payments?

The challenges at the Master’s office affect the economy where people are trying to wind up estates. This is an issue that needs to be addressed very urgently. There are client Departments owing money to the DoJCD. What is the Ministry doing to collect those significant debts that have been outstanding for a long time and continue to increase? Will the Cabinet or the Ministers of the client Departments be held accountable to repay the money that is due to the DoJCD? What is the impact of the R2.4bn that is owed on an overdraft? What progress have been made regarding the draft Bill to assist people who were arrested for violating lockdown provisions who paid admission of guilt fines on mainly trivial offences? What provisions are made to possibly expunge the criminal records of such people to reduce the impact it would have on them as jobseekers?

Ms W Newhoudt-Druchen (ANC) thanked the Minister for his political overview and congratulated the DoJCD and the DCS on its achievements and the opening of the Tzaneen correctional facility. How will the lack of capacity be turned around and address in terms of an employment strategy to recruit new staff? She enquired what the Minister’s view is on the lack of capacity within the internal audit committee. What kind of assistance is the internal audit committee going to provide to the DCS regarding financial issues?

Gender-based violence remains a massive problem in South Africa. Will the DoJCD and the DCS be up to standard and capable to implement the Bills that are currently being developed? Women and children are looking to Parliament and to the DoJCD and the DCS to ensure that perpetrators of gender-based violence are arrested and that the legal ramifications and measures are implemented. She congratulated the Ministry on the work being done by the Thuthuzela Care Centres that are in operation and for the work it is doing. The establishment of more of these centres must be encouraged alongside the raising of public awareness of the services they provide.

The Chairperson stated that the vacancy rate is 23% at the DoJCD and the DCS. By what percentage will the vacancy rate go down when the positions recently announced have been filled? Does the Minister receive quarterly reports from the Director-General? What remedial actions are put into place to ensure that targets are being met?

By the DCS’ own admission, there has been a decline in the performance of the DoJCD and the DCS. What remedial actions are in place to address this decline? The Committee needs a situation where it can truly evaluate the comments and performance of the DCS. Is the DCS convinced that it can turn around the problems of its culture of a lack of accountability? What are the measures in place that will ensure that the DCS develops a new culture of consequence management? The Committee must heighten its oversight over the DoJCD and the DCS as these challenges affects the people of South Africa who are left to the mercy and inefficiencies of the justice system.

Is it right that private security companies guard assets and offices of the state where confidential and sovereign information is kept? The lack of security in our courts is a significant problem because it allows for threats to the judiciary that could result in officers of the court who are unable to do their jobs without fear. This undermines the rule of law. What is the DoJCD and the DCS doing in this regard? The Executive are collectively and individually accountable to Parliament. The policy of judicial governance must be finalised.

Responses from the DOJCD and DCS

Minister Lamola responded that there has been consequence management in the DoJCD and the DCS. For example, in the DCS there were a total of 96 disciplinary hearings conducted, resulting in 93 officials being found guilty. Following this, the implicated officials were sanctioned as follows: 24 dismissals, one demotion, 14 suspensions without salary as an alternative to dismissal, 26 final written warnings, four retained warnings, 23 mandated to corrective counselling and one oral warning. Three officials were not found guilty in the DCS. In terms of the DoJCD, six people have been charged in cases involving corruption and misrepresentation. Two of the cases have been finalised within a period of six months, and the remaining cases will be finalised within the next six months. The DoJCD have appointed a labour relations specialist to provide a consolidated report of all the cases in the country with reasons why it has not been finalised.

Regarding the filling of vacancies, the filling of the announced positions would decrease the vacancy rate by 1.5%. The DoJCD and the DCS have issues of management and leadership in its various units. It helps to have someone to hold accountable when there are challenges in a certain unit. The filling of the post of the Director-General is a process of the Cabinet, and the DCS is hoping that Cabinet finalise this process by the end of this year so that whoever is appointed can begin by early January 2021. However, all the DoJCD and the DCS can do is to ensure that the process moves through the stages as this is in the hands of Cabinet.

Regarding the issues of ICT and capital infrastructure, it remains a core priority of the DoJCD and the DCS. The DCS is in the process of finalising the governance structure that will enable it to hold someone accountable when the ICT measures are implemented. It will also enable the DCS to have an implementing group of senior managers that are linked to all the Departments that are supposed to be rolling out or be integrated in the integrated justice management system. The DCS is also filling the necessary critical posts in the space of ICT to enable it to manage the rollout and ensure that the implementation is conducted in a way that allows accountability. People who have been working on this project have mostly been working on contract in the DCS. Ensuring that these people are involved with the remainder of the project will drive the process of capital infrastructure. This is an issue for the Department of Public Works and Infrastructure (the DPWI) that needs engaging with. However, the DOJCD is open to explore other avenues that could aid it in delivering the infrastructure on time, including the possible collaboration with the DCS where offender labour could be used. In some of the rural courts, offender labour has proved to be helpful. The issue of alternatives to project management requires a discussion with the DPWI. There have been discussions with the DPWI to delegate some of the maintenance of critical infrastructure to the regional aids in various parts of South Africa, including the Office of the Chief Justice.

On the issue of high-profile offenders escaping justice in South Africa, he said that the DoJCD and the DCS have put the processes in place in response to these issues being previously raised. The role of the DoJCD and the DCS is to show that the information comes forward and is then sent to the relevant prosecuting agencies, such as the NPA. The NPA then went through the information and said it was not helpful. It is apparent that foreign jurisdictions are not really cooperating with the requests sent to them. There is a misconception in the public domain that it is only the DOJCD and the DCS that can solve the challenges involved.

Almost 83% of opportunities go to black practitioners, which results in a budget of R 1bn, but it will still not resolve the issue that DoJCD and the DCS have no control over the State’s budget. The DoJCD and the DCS will continue to attempt to persuade particularly the private sector to play its role in the briefing patterns for black lawyers and female practitioners.

Regarding the debts owed to the DOJCD and the DCS, the Minister indicated that there has been communication with the counterparts of those Departments in debt and it has become a great issue of concern as the outstanding debts affect the operations of the DoJCD and the DCS. What particularly worries the DoJCD and the DCS is that the in-debt governmental Departments do not mind paying the two Departments. This is a grey area that is currently being looked at with the solicitor-general to explore ways to close this gap. Resolving this matter will ensure that the DJCD and the DCS are not affected or its resources depleted by other Departments that do not pay.

On the issue of whether the DoJCD and the DCS will be able to implement the Bills relating to gender-based violence, Minister Lamola explained that it is a difficult challenge that the DoJCD and the DCS face. The DoJCD and the DCS will have to find the means and resources to implement these Bills because it is an outcome of discussions between the government and civil society and how the two Departments are capacitated.

The role of the internal audit committee is to raise the financial issues experienced in the DoJCD and the DCS to the appropriate management officials. This helps in identifying the risks faced by these two Departments. The internal audit committee must be encouraged and empowered to conduct their work without any fear, favour, or prejudice, as it is the internal watchdogs in the DoJCD. The DoJCD and the DCS will evaluate their performance in terms of their annual performance plans and ensure that members of society measure its performance against the performance agreement signed with the President.

Regarding the turnaround strategy developed for the DoJCD, he said that there are issues that the Committee will be able to hold the DoJCD and the DCS accountable and evaluate whether the Departments are doing their job or not.

iNkosi Holomisa emphasised that the DoJCD and the DCS face significant challenges in the filling of vacancies. The Departments must comply with the Employment Equity Act 55 of 1998 regarding gender and racial equality. When some vacancies have been filled, the DoJCD and the DCS found that they were not able to meet that requirement of ensuring gender and racial equity. The pressure of filling the vacancies does not make it feasible to headhunt for specific candidates who fulfil these equality requirements. Regarding the issue of the overcrowding of correctional facilities, he stated that on 17 November 2020, 19 000 offenders qualified for the parole for COVID-19 as announced by the President. This has provided some relief to the problem of overcrowding. The requirements for consideration for the parole boards still need to be satisfied and fulfilled.

Ms Pillay stated that the Bill drafted relating to those people who have violated lockdown restrictions and paid admission fines was not on the legislative programme for the year. Another amendment in the respect of the records of children has been published following a court case, but the expungement and admission of guilt matter is for the legislature to deal with explicitly in its powers and mandate as lawmakers. The DoJCD and the DCS will provide the Committee with an update on this matter as soon as possible.

The Chairperson stated that the Committee asks that the Ministry consider the Committee’s concerns regarding the judicial governance to Cabinet for discussion. The Committee is concerned with the significant delays it has taken to finalise this problem. He then thanked the delegation for the briefing.

The Chairperson proposed that the Committee deals with the matter of the vacancies of the SAHRC on 02 December 2020. This matter needs to be finalised as soon as possible. He requested the Minister to inform the Committee on whether he will be able to attend.

The meeting was adjourned.