Office of the Chief State Law Advisor; Master’s Office; Legislative & Constitutional Development Unit; Justice College: briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
04 May 2006
OFFICE OF THE CHIEF STATE LAW ADVISOR; MASTER’S OFFICE; LEGISLATIVE AND CONSTITUTIONAL DEVELOPMENT UNIT; JUSTICE COLLEGE: BRIEFINGS

Chairperson: Mr K Mokoena (Limpopo, ANC)

Documents handed out:
Presentation to the Select Committee by the Chief State Law Advisor
Chief Master: Report to the Select Committee: Part1 & Part2
Updated report on the Performance of Legal Advisory Services: Part1 & Part2
Report from the Office of the State Attorney, Thohoyandou
Copy of High Court appearances: Litigation Unit
Audit report on professional files: State Attorney, Pretoria
Office of the State Attorney, Pretoria: Report
Legislative and Constitutional Development: Select Committee Briefing
Position of Acts: 4 May 2006, prepared by Legislative and Constitutional Development: Part1 & Part2
Summary of Report on Position of Acts
Department of Justice and Constitutional Development Internal Extended Legislative Programme
Publications completed by the South African Law Reform Commission 1994-2005
South African Law Reform Commission: Research Programme
Rules Board for the Courts of Law: Presentation
Justice College: Presentation for Select Committee

SUMMARY
The Office of the Chief State Law Advisor, State Attorney’s Office, Constitutional Litigation Unit, Master’s Office, Legislative and Constitutional Development Unit and Justice College extensively briefed the Committee on their background, activities, priorities for the future and financial performance and budgets.

Members asked numerous questions. These dealt with assistance to municipalities, unfilled vacancies, translation and drafting in indigenous languages, the position of temporary staff, computerisation of filing systems, human rights outreach programmes, compulsory training, the position of court interpreters and training for other African countries.

MINUTES
Briefing on the Office of the Chief State Law Advisor
Mr E Daniels, Chief State Law Advisor (CSLA) reported that the Office of the Chief State Law Advisor provided advice to the State at a national level on legal matters, including policy related matters. Nominally that office also exercised control over the State Attorneys, although this would in future fall under the Chief Litigation Office. Other offices, which at one stage had reported to the CSLA, now reported to the Director General: Justice.

The CSLA constantly strove to perform its functions efficiently and effectively, and also sought to be more proactive in advising on critical issues. To this end the Office scrutinised all Constitutional Court judgments and made recommendations to the Executive. It also provided assistance to provinces and municipalities, and there was a need for municipal assistance at smaller and larger municipalities to assist in limiting legal costs and to obtain second opinions.

CSLA’s primary function included the scrutiny of, and the drafting of legislation. The office had undergone significant transformation. Currently only 3 staff members spoke English as a first language. The majority of drafters were black females, and although many checks and balances had been put in place CSLA still needed to do more to ensure that the legislation drafted remained of the highest possible quality.

CSLA’s secondary function was training, not only internally but also for other state departments who had previously relied heavily on the private sector for drafting, which caused great expense and produced work that was not consistent in quality, causing CSLA to redraft. In 2005, 39 new Bills were drafted and 25 finalised, many of them being very complex and time-consuming. A study of Constitutional Court judgments over the last three years had shown that in only very few instances were legislation drafted by CSLA overturned.

Skills development and advancement remained a priority issue. There were regrettably a number of vacancies, and although the Department of Justice (DOJ) had been asked to expedite new appointments the process was lengthy. Some excellent young lawyers had been recruited, but recruitment and retention of more experienced staff remained a problem because other government departments could offer better salaries and promotion prospects. The training was both lengthy and expensive. Although other countries had recommended that State Law Advisors should ideally have a minimum of ten years’ experience, CSLA simply did not have this luxury. It had trained about 300 drafters, had developed checklists and manuals and hopefully would lessen the dependence of other State departments on the private sector.

CSLA aimed to create a translation unit, as currently only the English version of the Bill was certified. It had held discussions with the Pan South African Language Board (PANSALB) who had offered to pay the salaries of allocated staff to work within the office of CSLA.

The Office of the State Attorney provided National and provincial government with legal services. In 2005 the number of new files decreased by 7.5%, from 46 000 to 42 000, but the number of working hours rose in line with the complexity of the new work. Many private firms of attorneys had established themselves as "public interest firms" to assist people in obtaining benefits from government, such as welfare benefits, which led to a large increase in work in certain areas. Many of the cases could have been averted through prompt action on the part of the Department of Social Welfare, and had regrettably also involved cost orders against the government, but it was hoped that the establishment of the South African Social Security Agency (SASSA) would eliminate many of the cases.

The Constitutional Litigation Unit had been established in 2004, and had been involved in more than 100 cases. A Chief Litigation Officer would shortly be appointed so the future of this unit was yet uncertain.

Mr Daniels tabled a breakdown of statistics on files and cases handled. He reported that CSLA assisted the State Attorney to carry out proper audits so that files could be properly assigned. The number of State Attorneys appearing in High Court actions had decreased from 1700 in 2004 to 974 in 2005. There had been significant successes in reducing the number of matters that prescribed, and the prescriptions occurred mostly through client negligence, and for small amounts. Corrective measures were immediately taken if there was negligence on the part of the State Attorneys.

R182 million had been spent in 2005 on briefing advocates. R5 million in legal costs had been recovered, and R89 million debt due to client departments had been recovered. Advocate briefing patterns had also changed and in 2005 a total of 5410 advocates was briefed, of whom over 3000 were black and 1062 female. CSLA was satisfied that it was able to brief a wider range of advocates, as more senior black advocates were able to undertake complex or specialist issues.

Discussion
Mr M Mzizi (IFP, Gauteng) asked how exactly the Office of the CSLA assisted municipalities.

Mr N Mack (ANC, Western Cape) asked whether there had been interaction with the South African Local Government Association (SALGA). He asked whether scrutiny of the legislation included by-laws and commented that many of the old municipal legislation was outdated and in need of repeal. He asked whether CSLA would be able to assist in education and advice if municipal legislation was not in line with the Constitution, national law or policy.

Mr Daniels replied that the municipal level was that which attracted most litigation precisely because so many of the by-laws were outdated. CSLA was often approached with a request for advice, particularly where the officials had not been satisfied with advice given in-house or where there was conflicting advice, in an attempt to curb litigation costs, which were high. The services of the State Attorney should perhaps also be extended to local government. CSLA was able to assist municipalities in drafting by-laws and could also assist in training their employees in an attempt to reduce dependence on the private sector. Mr Daniels confirmed that CSLA was aware of SALGA’s needs and hoped to prepare a report for consideration by the Minister.

Mr Mzizi asked what level of involvement was taken by CSLA in relation to Constitutional Court matters.

Mr Daniels replied that there was no direct relationship because of the doctrine of separation of powers, since CSLA represented the executive branch and the Court the judicial. However, CSLA did test the constitutionality of legislation against jurisprudence and against international examples to try to satisfy itself that the new legislation was likely to face up to constitutional challenge.

Mr Mzizi queried why there was still a shortage of skills, despite ten years having elapsed since the establishment of the office, and where CSLA was likely to be able to recruit senior drafters.

Mr Z Ntuli (ANC, KwaZulu-Natal) asked whether there was a mechanism to retain skilled personnel in CSLA, and how the Office succeeded in accessing its clients.

Mr Daniels believed that the salary issue was a major obstacle, especially since it was so expensive and time-consuming to train drafters, but pointed out that this fell outside his control. A number of drafters had been trained but many had also left CSLA in the ten years since its establishment.

Ms F Nyanda (ANC, Mpumalanga) asked what time frame had been allocated for filling the vacant posts. She asked whether posts had been advertised, and how the vacancies had arisen.

The Chairperson was concerned that vacancies must be filled expeditiously and asked what incentives had been given.

Mr Daniels replied that many people had resigned to move to other State departments, particularly since there was no ranking structure within CSLA. Many excellent young lawyers had been recruited but problems in recruitment and retention were at senior level, which had a negative impact upon the workload. CSLA hoped that the young and talented drafters being trained would be persuaded to stay, but the reality remained that salaries were not commensurate with the private sector and other Departments. The posts were in the process of being filled and the Department had been asked to expedite this issue.

Mr Mzizi asked how the shortage of skills had impacted upon the drafting of bills in indigenous languages.

Mr Ntuli remarked that he had never seen Bills drafted in Zulu and asked whether this was indeed done.

Mr Mack asked why the plans for the dedicated translation unit had been put on hold.

Mr Daniels reported that four advisors had been trained in Canada on drafting in more than one language. Time constraints and the shortage of skills however meant that most Bills could be certified by Cabinet only in English, although two versions must be placed before the President for his assent. This was a weakness in the system. Mr Daniels advised that he had now been asked to take up once more the discussions with PANSALB, with a view to obtaining translators and to develop a body of legal language which, although existent for Xhosa and Zulu (because the old TBVC states had drafted in those languages), needed to be developed for other languages. He confirmed that some Acts had been translated into Zulu for other Departments.

Mr Mzizi asked for a further explanation of the delays in certifying legislation.

Mr Daniels replied that there was much work involved and as society became more litigious, and more aware of rights, it was necessary to try to ensure that the legislation stood up to scrutiny to obviate litigation.

Mr Mzizi asked if the Constitutional Court Unit was likely to be able to finalise cases currently being worked upon.

Mr Daniels confirmed that it would.

Mr Mzizi referred to the fact that some departments had failed to complete the surveys relating to the work done by CSLA and asked whether the Committee could assist in obtaining responses.

Mr Daniels replied that the lack of response made it difficult for CSLA to assess its impact properly, but that he did remind Committee Chairs and Departments that responses were outstanding.

Dr F van Heerden (Free State, FF) commented that he found it surprising and disappointing that many State Attorneys were reluctant to undertake High Court appearances.

Mr Daniels agreed, but stated that on the positive side many of the young black State Attorneys welcomed the opportunity to appear.

Dr van Heerden asked whether any attempt was made to investigate the constitutionality of existing legislation – he indicated that the Promotion of Access to Information Act might well conflict with certain provisions in the Archives Act.

Mr Daniels confirmed that old legislation was being examined, particularly where amending Bills were drafted which required an examination of the principal Act. He confirmed that there was indeed a process to access information from the Archives

Mr Ntuli queried what would be the advice of the CSLA in cases where municipalities had cut off water supplies owing to non-payment of charges.

Mr Daniels held the personal view that this was probably unconstitutional but the matter had not been tested before the Court.

Mr Ntuli asked whether CSLA interacted with Parliamentary researchers when drafting laws, and whether there was further any networking with judges who might comment on any loopholes, such as had happened with the Constitution Fourteen Amendment Bill.

Mr Daniels replied that there was no formal networking, because of the separation of powers, but that informal meetings did take place, and that matters could be referred in terms of the Constitution for opinions. CSLA interacted with the State Law Advisors to try to expedite the certification process on legislation.

Mr Mack asked for comment on the perception that there was poor competence amongst the State Law Advisors, and for comment on the cases lost. He and the Chair wondered if this issue arose through poor training.

Mr Daniels commented that the success rate in cases was in fact high and that most of the legislation struck down by the Constitutional Court had been drafted pre-1994. However, even "lost" cases were a valuable learning experience and he hoped that the Constitutional Litigation Unit was helping to influence the development of the Constitution and the building of valuable jurisprudence by testing the constitutional boundaries. There had been few cases where the conduct or performance of lawyers representing the State had been criticised by the Court.

The Chairperson asked whether CSLA had a role in advising the Committee on conventions and protocols which they were often not able to be change, even if they contained clauses unfavourable to South Africa or in conflict with its principles, such as those relating to the death penalty.

Mr Daniels replied that the Constitution provided for this issue, and that Parliament could accede to an instrument with reservation clauses where certain provisions conflicted with South African law.

The Chairperson asked for further comment on the apparently poor quality of some of the legislative drafting that had been outsourced.

Mr Daniels stated that CSLA aimed to develop sufficient capacity, and to match or better the services offered in the private sector. He pointed out that it was sometimes necessary to re-draft amendments that had been made by the Committees themselves, and that although some Committees would refer their redrafts to CSLA others would not. Ideally that relationship should be formalised.

The Chairperson asked what relationship existed between CSLA and private firms.

Mr Daniels stated that very often private firms and CSLA were on opposing sides of a case. The State was the largest consumer of legal services, and had spent R185 million on advocates’ briefs. CSLA strove constantly to build good relationships and to improve its quality.

Briefing by the Chief State Law Advisor on the Chief Master’s Report
Mr Daniels reported that he had been asked to present the Chief Master’s report in the absence (overseas) of the Chief Master.

The Master’s Office provided services in relation to deceased estates, insolvent estates, curatorships and the Guardians Fund, and exercised both a regulatory and a recording function. The service points were the various Magistrates Courts, which assisted in the administration of deceased estates, and the main Masters’ offices in the larger centres. There had been a 123% growth in estates handled over the past year at the service points, and a 116% increase at the Master’s Offices. The number of insolvent estates had declined to 4 741 in 2005. The Guardians Fund had grown from R2.3 million in 2004/5 to R2.7 million in 2005/6, partially reflecting the increase in the number of deceased estates, which were a result of the AIDS pandemic and the increased mortality of younger persons.

The staffing levels of the Master’s office were a cause for concern. There were 997 full time employees, of whom 683 were permanent and 343 temporary. Investigations had been conducted into requirements to run an efficient office. The baseline allocation had increased by R42 million, but further funding was still needed to cope with the growth rate of approximately 30%. Most of the Master’s Offices were situated in city centres and the Department needed to consider how best to extend services. The Master’s Office was also attempting to avoid "compliance without compassion" and how best to operate the Guardians Fund for the eventual benefit of beneficiaries, and to enable interim grants to be made to pay school fees and similar expenses, particularly in view of the increase in child-headed households.

There had been some progress in the right-sizing of offices, and statistics were being better collated and analysed. Human resource problems and the conversion of temporary to permanent posts were being addressed. Complaints from the public related mostly to delays, and allegations of corruption had been proved unfounded, although some fraud had been perpetrated against the Guardians Fund.

Low levels of automation in the record keeping, coupled with labour relations problems, remained a challenge. There were severe capacity problems, and the Master’s Office wished to set up specialised training. Further constraints related to logistical and administrative issues of PABX systems, location, and oversight over other outside functionaries responsible for winding up of estates, transfer of land and property, provision of death certificates etc. Much of the legislation was outdated and in need of reform. Policies had been developed to deal with liquidations and insolvencies and needed to interact extensively with other stakeholders. Problems would be addressed by rightsizing each office to ensure appropriate staffing, human resource development and training, and improvement of the infrastructure and management of records.

Finally Mr Daniels tabled the budget in respect of the offices.

Discussion
Mr Mzizi expressed his concern on staffing and asked what measures were in place to ensure that matters were dealt with expeditiously.

Mr Ntuli asked why there were so many temporary employees.

Mr Daniels agreed that this posed problems both of competence and of security and loyalty, but that extra staff had needed to be appointed to cope with the great increase in the workload. Posts had now been advertised and as they were filled the number of temporary staff would reduce.

Mr Mzizi enquired whether the filing systems had been improved. He also commented on incorrect entries in the Guardians Fund records, and enquired whether a database was able to avoid this.

Mr Mack enquired how far the computerisation process had gone.

Mr Daniels stated that there had been improvements in the filing, and that the Offices were attempting to become fully computerised so that certain steps could be done on-line. However, independent IT auditors anticipated that it would take about ten years to computerise all data in the Guardians Fund. A manual system certainly delayed matters, but was still, of necessity, operating at present.

Mr Mzizi asked how long estates usually took to finalise.

Mr Daniels replied that there was a statutory time period of six months laid down, but capacity problems at the Master’s Office meant that estates might take longer.

Mr Mzizi asked whether adequate staff existed at all offices.

Mr Ntuli asked if there were plans to service the rural areas better. He also asked whether the Master’s offices ever tried to raise their profile, as they were hardly known of in many areas.

Mr Daniels commented that the Master’s offices serviced the mainstream economy and therefore dealt with those with wills and assets. Expansion to the rural areas remained a challenge, but this had to be balanced against cost-effectiveness. Some offices were adequately staffed but others not.

Mr T Rambauli (Master, Thohoyandou) commented that there were various service points for the Master’s office where staff would try to assist and that the Office did try to participate in radio information and talk shows to raise awareness of the existence and functions of the Office.

Ms Nyanda and the Chairperson added that there were many instances where death or marriage certificates had been fraudulently filed or duplicated.

Mr Daniels stated that this was the responsibility of the Department of Home Affairs, although systems existed whereby ID documents could be tested for validity in the Master’s Office. South African society accepted many different customs and matrimonial regimes that needed to be taken into account and therefore the Master’s Office was trying to position itself to play a broader role.

Mr Ntuli commented that many orphaned children were cared for by relatives who found it virtually impossible to access grants or to adopt children formally. He asked if the Guardians Fund could assist in such cases.

Mr Daniels replied that the Guardians Fund only held money which emanated from estates and was legally due to minors or disabled persons, and that the Master’s main concern was to ensure good growth and security of the funds for the eventual beneficiaries, but also to permit applications for withdrawals to cover necessary expenses. Application could be made to the Department of Social Development for foster grants by the foster parents and another process would have to be followed through that department for formal adoption.

Mr Ntuli and Ms Nyanda both raised instances where land had not been properly transferred to heirs and asked how such matters could be corrected.

Mr Mack also cited two instances where people had died intestate and their heirs had effectively been left destitute with no effective advice given – one of these cases involved an estate of a German national residing in Namibia. He asked whether the Master’s office was able to assist citizens with practical advice and revision of the law, where necessary.

Mr Daniels commented that land issues, particularly where customary law applied, or where there were problems in proving succession, did pose complex problems. He stated that if the problems could be outlined in writing, he would advise the correct steps to be taken to assist. Unfortunately human nature meant that often greed influenced potential beneficiaries, and that the Master’s Office, in trying to promote compassion and competence, was attempting to protect those who were particularly vulnerable.

The Chairperson queried the reasons for the decline in insolvent estates.

Mr Daniels stated that this was a direct result of the improved growth of the economy, although a contributing factor might also be better management of businesses.

The Chairperson asked what effect the Moseneke judgment had on the Master’s Offices.

Mr L Basson (Chief Director, Office of the Master) replied that it had had a serious impact. Prior to this judgment certain estates had been administered by the Magistrates Court, which was responsible for collating and collecting the assets, paying the debts and distributing the residue. Regrettably there had been fraud committed through this system. The Moseneke decision meant that all these functions fell under the Master, and although the Magistrates Courts were a service point for the Master’s Offices, the Court administrative staff were now limited to appointing a family member to undertake the administration, which meant a vastly increased workload for the Master’s Offices. Quality assessments were now undertaken by the Master’s Office to assess whether there had been an improved service.

The Chairperson queried whether the Master’s Office had spent its full allocation, and asked also for comment on rentals and building costs.

Mr Basson reported that R133 million had been allocated in the last financial year and the Office had overspent by R13 million, largely due to the expansion in workload. The Director General of the Department of Justice had been asked to shift funds across to cover the overspend. One of the main factors had been the Moseneke judgment, which also forced the appointment of temporary staff. In regard to the office space, Mr Basson reported that the Master’s Offices in Cape Town and in Pietermaritzburg were housed in state-owned buildings. Any other rentals were handled by the Department of Public Works on an open and transparent basis, following standard procedures. Because the offices grew continuously, it was preferable to rent premises.

Briefing on Legislative and Constitutional Development
Mr D Rudman (Deputy Director General, Legislative and Constitutional Development (LCD)) reported that this branch of the Department comprised the Chief Directorates of Law Reform, including the South African Law Reform Commission (SALRC) and the Rules Board, Legislative Development and Constitutional Development. The budget had risen from R42.9 million in 2005/6 to R45.2 million in 2006/7. As it was service driven, 71% of the budget related to personnel and 29% to operational costs.

LCD delivered services in the drafting of legislation only for the Department of Justice and Constitutional Development although it was involved in other pieces of legislation for other departments, such as the Children’s Act, or where court structures were created.

The SALRC was a statutory body established in 1973. Its secretariat consisted of researchers within the Department of Justice. The law reform programme was conducted through legal research into any branch of the law, developing proposals for reform, preparing legislative proposals and assisting the Parliamentary Committees and the Minister on relevant issues. Issue papers were drafted and circulated widely, followed by discussion papers incorporating feedback and recommendations, and finally a report was approved and submitted to the Minister. The structure and programme of the SALRC was tabled and discussed. Mr Rudman reported that some of the projects also involved assistance to other countries. Projects of high priority were noted; in particular the Statutory Law Review project which aimed to review all national and provincial legislation promulgated from 1910 to 1994, including legislation of the former TBVC states, with a view to rectify unconstitutional provisions, to reduce litigation, and to repeal redundant or obsolete legislation. An amount of R3 million per year had been made available for this project. The review of the Interpretation Act was a further priority. SALRC had also undertaken an analysis of all Constitutional Court judgments, developing guidelines and undertaking comparative studies internationally.

The Rules Board for the Courts of Law was a statutory body established in 1985 with the responsibility of reviewing the rules of Court and to make amendments or repeal rules. It was staffed by principal and senior state law advisors. A schedule of work completed in 2004/5 was tabled, together with a further list of rules still under consideration. The main aim was to streamline procedures to promote quick and affordable access to justice.

The Directorate of Legislative Development was responsible for investigating and evaluating primary and subordinate legislative proposals, and was required to assist and advise Parliamentary Committees, to review fees and tariffs and to advise the Minister. It administered about 170 Acts of Parliament. A list of Bills already before Parliament was tabled. Mr Rudman noted that the Superior Courts Bill had been referred back to Parliament and the Constitution Fourteenth Amendment was still under consideration by the Minister and Deputy Minister. The Insolvency and Business Recovery Bill had been approved but not yet introduced, and the International Arbitration Bill had been submitted to Cabinet and questions raised. The list of Bills identified for promotion during the current year was tabled, also a list of other Bills identified for submission to Cabinet and Parliament with a view to finalisation the following year. Two Private Member’s Bills were before Parliament. Mr Rudman further tabled a list of sections of various Acts which had not been implemented since 1996 and reported that Legislative Development would examine and re-evaluate all sections to identify if they were still necessary, the problems of implementation and to consider their repeal or amendment.

The Chief Directorate of Constitutional Development was established to perform functions relating to constitutional development and to administer the legislation which was the responsibility of the Minister of Justice; namely the Constitution and the Acts flowing from it. This division had been set up in 2002 when the President transferred the functions of the then-Department of Constitutional Affairs to the Department of Justice (and Constitutional Development). It was responsible for the implementation of constitutional values, norms and principles, the rule of law, human rights, and the respecting of international law. This involved many stakeholders and the Directorate had a coordinating and evaluating role. It also covered the Chapter Nine Institutions of the Office of the Public Protector, the Commission on Gender Equality and the Human Rights Commission. Its achievements in 2005 included a tabled list of legislation passed, briefings at provincial and local government levels. Priorities for 2006 included work on the Constitution Thirteenth Amendment Bill to bring the Constitution in line with changes to the Defence Act, finalising the appointments of commissioners to the Commission on Gender Equality, assisting with the review of the Chapter 9 Institutions and ensuring the proper implementation of Acts 2, 3 and 4 of 2000.

Discussion
Mr Mzizi noted that the Bill on stalking was listed as high priority and asked whether the drafters had included different types of "following".

The Chairperson commented that there was a fine line between traditional styles of courtship, and the modern definition of stalking.

Mr Mzizi asked whether the Sexual Offences legislation covered prostitution, and enquired whether compulsory testing for HIV of sexual offenders was not of high priority.

Mr Rudman replied that the stalking project was at the report stage and that although he was not aware of the precise wording of the report, he was confident that the researchers would have considered broad definitions of behaviour that would be covered. In answer to the Chairperson, Mr Rudman suggested that intention to stalk must be an element of an offence. In regard to prostitution, Mr Rudman stated that adult prostitution was considered separately from the Sexual Offences Bill which focused on protection for children. This also covered human trafficking. He would convey the views of Mr Mzizi to the Commission. The SALRC had already submitted legislation to Parliament on compulsory HIV testing, and it had been incorporated into the Sexual Offences Bill that would be referred shortly to Parliament.

Mr Mzizi asked whether it was preferable for confessions to be taken by Magistrates and whether it would not be perceived as impinging upon their integrity if they were called upon to testify on the confession.

Mr Rudman reported that the amendments were based on a report by SALRC, who believed that since police officers were involved in the investigation of crimes, there were too many risks involved in making confessions to them. The provision had not yet been implemented and SALRC would be consulting again with the South African Police Services (SAPS) to reconsider the difficulties involved in putting this provision into force.

Mr Ntuli asked for clarification on the costing of legislation for Departments.

Mr Rudman replied that costings had only been made for Justice Department legislation, to try to avoid the situation where legislation that had financial implications was introduced, but was subsequently unable to be enforced for lack of funds. Staff was only now being transferred to that unit and he was not sure whether costings could be done for other Departments.

Mr Ntuli asked what outreach programmes existed for human rights and how much was being spent on them.

Mr Rudman said that he could not report fully on this issue and that he would rather prefer the Directorate responsible for outreach to submit a document detailing the programmes and costings. Briefly, however, training had been done on Acts 2, 3 and 4 of 2000 and there was a component dealing with education at school level. He undertook to make available full written details, and would also send a booklet on the three Acts mentioned to all Members of the Committee.

Mr Ntuli asked for further explanation on the Constitution Fourteenth Amendment Bill.

Mr Rudman reported that the Minister and Deputy Minister were dealing with the issues relating to transformation of the judiciary legislation. There had been an extension of time for submission of comments on the Superior Courts Bill. There were three reasons for the Bill. Firstly, the new structure envisaged for the High Court would require an amendment so that reference was no longer made to "High Courts". Secondly, many of the special courts would collapse into a single structure, although the specialist nature would be retained, which would involve the appointment of a second Deputy President of the Supreme Court of Appeal. Thirdly, the amendment would rectify some gaps and vest the necessary management authority in the Chief Justice, who currently had power only as Head of the Constitutional Court.

Ms Nyanda asked why there were so many vacancies in the various branches.

Mr Rudman reported that the process of filling vacancies was lengthy, involving short listing and competency testing prior to interview. Many vacancies had arisen through the incumbents being promoted. Advertisements some time ago had elicited no suitable responses and the posts had been re-advertised, and should be filled within the next two months.

The Chairperson asked how far the review of the Chapter 9 Institutions had progressed.

Mr Rudman reported that the rationale behind the review was streamlining and possibly combining the work of some of the institutions to save time and finances. Terms of reference had been drafted, and meetings held with the Department of Public Services and Administration (DPSA) to expedite the procedure.

The Chairperson asked for an explanation of the apparent discrepancy in spending between personnel and operational issues.

Mr Rudman stressed that this arose because LCD was based on service delivery, which involved high numbers of personnel. Operational expenditure related to equipment and travelling expenses. Some funding had been given to the constitutional division for projects and training. Mr Rudman offered to give a further breakdown of money available if required.

The Chairperson commented on reports from Kwazulu-Natal of arranged and forced marriages of girls as young as twelve and asked if this had been investigated.

Mr Rudman stated that marriage legislation was administered by the Department of Home Affairs, and although the Minister could in special circumstances give consent to marriages below the age of 18, this appeared to be a breach of the law.

The Chairperson asked if any legislation existed to cover human trafficking.

Mr Rudman confirmed that the investigation by the SALRC into the specific issue was of prime importance as South Africa was apparently perceived as a country where trafficking was rife. Trafficking was partially covered by the existing crime of kidnapping but there were further issues and the problems were being examined holistically, as a matter of high priority. Legislation should be put before Parliament in the following year.

The Chairperson requested clarity on the difference between the South African and American rules of Court and whether there was any intention to reintroduce the jury system. He also asked for further clarity on the current burden of proof.

Mr Rudman reported that there had been no suggestion of a return to the jury system, which was abolished in 1969. The rules currently being revised and harmonised were the rules of procedure in Magistrates and High Courts. The system of lay assessors had unfortunately not yet been implemented, largely due to problems relating to finance and availability of assessors. Although the normal rules were that the burden of proof rested upon the State in criminal matters, there were a few exceptions, some of which had already been ruled as unconstitutional by the Constitutional Court. This issue was also under examination.

Presentation by the Justice College on its budget and proposals for reform
Ms J Ngeva (Head: Justice College) reported that the Justice College was the official training institution for the Department of Justice and Constitutional Development. It handled compulsory pre-appointment and voluntary post-appointment training of judicial officers, court interpreters and other legal occupation groups. The college had been set up and was still based upon the divisions of public and private law, and its old emphasis on the training of magistrates was still reflected in the ratios of trainers to students, since 15 lecturers trained 1833 magistrates, 6 trained 3724 prosecutors, 5 Master’s Office trainers trained 1731 students and 3 lecturers trained 2120 interpreters. A new structure had been proposed and the previous year’s budget of R38 million had been increased to R51 million in the 2006/7 year to cater for the transformation.

Challenges had been identified as the emphasis on the public and private law functions, which did not match the needs or structure of the Department of Justice. Certain of their units – such as legislative drafting, State Attorneys and Court managers – were not catered for at all. Although Court services were the largest unit, insufficient trainers were available to train interpreters. Staff morale was low, and equity issues perceived by some as a threat to their positions. The curriculum did not align with the needs of the Department nor to the Skills Development Act, although the Justice College was working with the relevant Sector Education and Training Authority (SETA) to try to achieve accreditation.

Transformation of the College would follow the strategic plans and objectives of the Department. A policy decision had already been taken that judicial officers would in future be trained by a separate institution falling under the auspices of the Chief Justice, and that the Justice College would be the state legal training institution under the Department of Justice, responsible for training legal professionals in government. A new governance structure had therefore been planned, containing sufficient checks and balance to ensure the maintenance of academic standards and address the needs of stakeholders. The curriculum would be driven by needs and based on the Skills Development Act. A management support system would be established. Local and international partnerships would be investigated and encouraged. Electronic learning and change management would be investigated and implemented.

In terms of the new governance structure, new advisory boards would be set up. As training of Magistrates by the Chief Justice would require amendments to legislation, this would continue to be offered by the Justice College until 2007. A new College Support Services division would deal with external relations, including the obligations under the African Union (AU), New Partnership for Africa’s Development (NEPAD) and the Southern African Development Community (SADC), and administration. The Faculty Board would be responsible for training and areas of expertise, the Advisory Board, with members from the public and private sectors, would advise management on training programmes, accreditation and learnerships, and the Quality Assurance Board would examine quality issues. Training would be divided between an administrative training section, for staff in non-legal positions, to include training on finances and project management, and a legal training section to train departmental staff handling legal functions, legal advisors of other Departments, and refresher courses.
The College catered for around 3000 learners per year and therefore proper management systems were also required. It was hoped that research and development capacity would be increased.

New posts had been advertised and interviews would take place shortly with a view to filling the vacancies by June or July. Likely stakeholders who could act as members of the Boards had been identified, and the transfer of functions to the Chief Justice was being investigated and implemented. It was imperative to obtain highly paid and respected trainers, and a database of possible trainers was being prepared. Since the Justice College needed to relocate from its current premises, it was investigating options. Protocols for stakeholders, procurement policies, systems and process development and upgrading of the library were also priority issues.

Discussion
Mr Mzizi asked for clarification on the pre-and post-appointment training and refresher courses.

Ms Ngeva confirmed that newly appointed magistrates were required to attend training before their appointments took effect, but that further training was done on a voluntary basis. Refresher courses were intended as updates on legislation or procedures.

Mr Mzizi asked for further details on the scope and purpose of the training of interpreters. He asked whether consultation had been held with PANSALB, and how dialects were dealt with.

Ms Ngeva reported that although interpreters’ training had not previously been a priority, it had been made one now, although it was still hampered by insufficient trainers. Consultations had been held with PANSALB. The majority of the training focused on language and the trainers were well versed in all eleven languages and different dialects and therefore outstanding. The Justice College was now insisting that all interpreters attend training programmes prior to going into Court and this system had been piloted and was working well in the Western Cape.

Mr Mzizi asked whether the training was able to adjust perceptions and mindsets. He asked if judges would attend the training.

Mr Mack commented that some magistrates did not appear to have benefited in this regard, and the Chairperson and Mr Mack asked how the Justice College obtained buy-in by such people to transformation and change.

Ms Ngeva reported that the training encompassed social training, which aimed to inculcate respect and values as well as knowledge of the law. She was aware of reports that some magistrates had continued to act in an inappropriate way even after training, but had so far been unable to establish whether this had resulted from insufficient training or if other forms of intervention were required. The Justice College would continue to work on developing a standard and relevant curriculum that could be handed over to the Chief Justice when he assumed the training functions. In answer to Mr Mack and the Chairperson, Ms Ngeva conceded that there were certain students who proved extremely difficult, but that training could not hope to address every problem. The management training addressed human resource issues that could sometimes be applied to such problems, but poor student attitudes would remain a huge challenge for trainers.

Mr Mzizi asked who the Advisory Board reported to, and what its relationship with the Magistrates Commission and the judges would be.

Ms Ngeva confirmed that the Head of the Justice College was a member of the Magistrates Commission and that both bodies would consider training programmes, and had already identified ethics training as a necessity.

Mr Mzizi asked what qualifications the trainers held since he was concerned that some magistrates would not attend training if they regarded the trainers as less experienced than them.

Mr Mack enquired whether the Justice College would make use of retired judges or magistrates as trainers, and how they would ensure that outdated or misplaced perceptions and procedures were not passed on.

Ms Ngeva confirmed that this was a priority issue. Specialist areas had been identified and the Justice College was already building a database of skilled trainers, well attuned to transformation, to try to ensure that students were proud of the training received. The Chief Justice would similarly identify trainers from 2007.

Mr Mzizi asked whether the training programmes were certified.

Ms Ngeva reported that at present students could only obtain certificates of attendance, but that once the SETA had granted accreditation the College could issue Certificates that could be used for promotion purposes.

Mr Ntuli asked whether the College’s programmes were truly relevant and helped to bring proper justice to the people.

Ms Ngeva believed that the new curriculum did this as it stressed vital principles and values that were relevant in implementation of any laws.

Mr Ntuli asked whether those being trained in management had a managerial or legal background.

Mr E Tladi (Justice College) confirmed that management competence was a pre-requisite but that those with legal skills could use these as a specialist focus.

Mr Ntuli asked for clarity on the line of reporting of interpreters, and who exercised control over them.

Ms Ngeva stated that the Court Service Unit was responsible for management of the courts. The Justice College aimed to train interpreters not only in the skill of interpreting, but in court protocols and procedures and professional behaviour, including their obligation to attend court so as not to prejudice the parties. The Justice College also offered leadership programmes to assist chief interpreters in management and supervisory skills.

Mr Ntuli asked for an indication of magistrates’ attitudes to the Justice College.

Ms Ngeva reported that attendance was compulsory but that there had been no negative feedback.

Ms Nyanda asked for clarity on the public and private sector involvement in the Advisory Boards.

Ms Ngeva confirmed that all members would be drawn from the legal profession, either public or private sector.

Mr Mack asked whether the budgetary increase was sufficient to cover the costs of transformation, and whether it would be implemented in stages.

Ms Ngeva confirmed that certain stages had been identified and that the Justice College was currently busy with the appointment process as a first step. R10 million had been allocated in the current year for the transformation process, and the new systems would account for a large percentage of this amount, but she was satisfied that the amounts were adequate to proceed

Mr Mack enquired which colleges had been identified for networking or partnerships, locally or within Africa, and whether they would be promoting a specifically African training.

Ms Ngeva replied that a specific unit would be looking into partnerships and networking as it was considered important to set up a formal structure rather than embarking on ad hoc arrangements. Networks were still being built, both nationally and internationally.

Ms Nyanda and the Chairperson both expressed their concern on the poor staff to student ratios, particularly for the interpreters and prosecutors and asked how quality training could be given.

Ms Ngeva confirmed that this was one of the main reasons why it was so urgent to transform the College, and to realign the ratios according to the priorities. In future the Justice College would try to utilise the best trainers from whatever source, instead of relying on internal staff only.

The Chairperson asked how much was being spent on office rental, and how much on accommodating students in hotels.

Ms Ngeva summarised that in 2005/6 an amount of R21 million had been spent on subsistence, travelling and accommodation and R51 million on salaries. The amounts paid for students would increase with the increased numbers, and so the Justice College was already investigating how best to spread its resources, and was obtaining copies of all previous agreements in regard to premises.

The Chairperson enquired whether training was available to those who were not in the employ of the State, and how the charges were calculated. He enquired if other African states paid for training, and if not, the reasons.

Ms Ngeva confirmed that currently the Justice College did not charge for its training. The flights, accommodation and subsistence of foreign students were paid by their own States, but the training was still free of charge. However, the Justice College had received a number of requests for specialist training and was therefore considering whether charges should or could be levied, bearing in mind the impact of the Public Finance Management Act (PFMA) on government departments. Only state employees and foreign state employees had so far been trained.

The meeting adjourned.