Made in Parliament on 9 September 1999
On 9 September 1999, Dr P M Maduna, gave an overview of his findings - obtained through visits to various courts - relating to the efficiency of the courts, to Parliament. The Minister has indicated that he wishes to address the Justice Portfolio Committee on the matters he raised and about how he intends to deal with them. This document has as purpose to indicate the progress that has been made with regard to the various matters raised by the Minister and to act as a discussion document for further debate.
· It should be noted that the changes that are being effected are in line with the strategic framework Justice Vision 2000, and the guidelines which the new Ministry has provided to the Department of Justice in order to effect within a framework of transparency, sound governance and community acceptance and credibility, a proper civil and criminal justice system. Part and parcel hereof is a greater focus on the core business of the Department (i.e. the courts) in terms of resources, management, communication and support. This entails that the Department of Justice has to be re-engineered so that its budget allocation can be utilized in a focussed manner in relation to its core functions. It also means the re-alignment of the Department's organogram and improving financial management and control. These aspects are all receiving the attention of the Ministry and Top Management of the Department. The organisational re-alignment is being fast-tracked in order to have in place by 1 December 1999 -
Minister: Soon after taking office we began visiting the courts because we believe that courts are the core business of my Department. I am deeply disturbed by what we have found, particularly in the magistrates' courts, more particularly in the townships and rural areas in which most black people reside. And yet this is the level at which the bulk of our population encounters and comes face to face with the judicial system.
During a recent meeting with the relevant role-players in that area, including the magistrates, consensus was reached that the only practical solution in respect of the accommodation dilemma at Tembisa would be the construction of a new building. The project has been programmed as first priority on the Department's major works priority list. The Department of Public Works (PWD) has been requested to obtain a suitable site and as soon as a site has been obtained, planning of the service will commence. This will obviously be a medium to longer term solution (4 years). To speed up progress in this regard, PWD will be requested to obtain the State Tender Board's approval that the rapid procurement delivery procedure be implemented in respect of the building service.
In the interim, the Department is urgently giving attention to the possible movement of some funds from allocations for buildings to assist with urgent renovations in this regard. To deal with this, the Department is engaged in developing a project plan with quick fix solutions as an interim relief measure for Tembisa. In addition, Business against Crime (BAC), in conjunction with the Department, is negotiating with private sector firms to do assist with some of the required interim renovations in order to make the branch court of Tembisa more presentable and effective.
Minister: The court building (Tembisa) cannot accommodate the provision of maintenance services, so indigent women have to travel a considerable distance each month to join the maintenance queues at the Kempton Park magistrates' court.
It has been agreed between the various role-players that as soon as accommodation is available, maintenance services and payments will be handled at the Tembisa court.
1.2 Alexandra Branch Court (Magistrate, Randburg)
This building was taken over from the Department of Home Affairs during 1997 and all deficiencies have been reported to PWD for rectification. A private consultant was appointed for the planning of certain conversions and refurbishment, including security measures, fencing and lighting. The estimated cost for the service is R4 915 800, but PWD indicated (during the 1998/1999 financial year) that funds for the service were not available and consequently they put the project on hold.
With the Minister's urgent intervention, Vodacom has committed themselves to donate ± R10 million and also agreed to immediately appoint a building contractor to do the work that has already been planned. In addition, Vodacom agreed to convert an unused part of the building into a maintenance section, maintenance court, civil court and offices for other quasi-judicial services. The Department has already briefed Vodacom's architects and obtained State Expenditure's approval for acceptance of the donation. The project is at present being implemented.
1.3 Progress on planning and construction of buildings in other townships and rural areas is as follows:
- Nyanga (district Wynberg in Western Cape)
1.4 Contractors for the following building services have been appointed and construction work will commence during September 1999:
1.5 The Model Court Project
The Department has embarked on a process whereby all courts in the country will be upgraded in order to deal with certain minimum standards. To deal with this a Model Court Blueprint was drafted. This entails revisiting standards to ensure that they increase access to justice, are user-friendly as well as to incorporate aspects relating to family matters (Family Courts), sexual offences (specialist courts) and child-friendly aspects into the courts. In this regard and to expedite the process, 2 courts have now been targeted for upgrading in line with the Model Court Blueprint:
The Danish Government has committed R20m for this project. The business plan for Mitchells Plain has already been completed, whilst the needs assessment for Orlando has been formalised. It is anticipated that implementation of the upgrading process for these two courts will commence in November 1999.
1.6 Community Safety Centres
The National Community Safety Centre Programme involves the four core departments within the criminal justice system, viz. South African Police Service, Department of Justice, Department of Correctional Services and the Department of Welfare, as well as the Department of Health. This project aims to co-ordinate the services of these departments (in relation to communities where these services either do not exist, or do exist, but are not easily accessible, especially in rural areas) in an integrated manner. The projects are funded from the Programme's own budget.
(a) The following projects, in which the Department is directly involved in, have been approved and tenders are being invited:
(b) The following projects, in which the Department is also involved with, have been approved and are presently in a planning phase:
(c) The Department is involved in the following projects, which still has to be approved:
(d) Business plans for the following projects, which the Department is interested in supporting, still have to be submitted by the respective Provincial Steering Committees:
1.7 Constitutional court
Funds are not available on the Department's budget for the construction of the new Constitutional Court Building. A letter to request President T M Mbeki's assistance in this regard has been submitted to the Minister.
1.8 Supreme Court of Appeal
The planning of extensive alterations to the existing building as well as to the additional accommodation adjacent to it, including two new court rooms, judges chambers and an enlarged library, was completed a year ago, after which the project, with a provisional cost estimate of R34 million, was put out on tender. However, the adjudication of tenders was cancelled and the project was put on hold, after the Chief Justice, the Honourable I Mahomed, raised concerns about the future plans about the place of the Supreme Court of Appeal in the judicial structure of the country. (Aspects such as the ambit of its jurisdiction, its future relationship to the Constitutional Court, its geographical situation, the issue as to whether or not it should continue to hear appeal on facts in addition to appeals on questions of law and consequently whether the complement of judges in that court should be reduced or not, need to be revisited). These aspects require policy decisions.
1.9 New High Courts in the Northern Province and Mpumalanga
PWD has been requested to identify suitable sites for the new buildings. Lists of accommodation needs have, however, not yet been approved. Funding is not available in the current MTEF.
1.10 In relation to accommodation, it is clear that progress has been made, but it will remain a high focus area in particular because maintenance of the buildings remain a problem in view of PWD's budgetary constraints. What is heartening to note, however, is that some of our new court building plans have even won architectural awards.
2.1 Shortages of staff in criminal courts: Johannesburg Magistrate Office/ Mdantsane:
Minister: In Johannesburg there are different problems. The magistrates' court is a large building with many court rooms, but they stand empty most of the time because there are not enough magistrates to keep them operating. There are 8 regional magistrate posts vacant out of a complement of 32. This means that a quarter of the regional courts cannot operate and the backlog of cases awaiting trial have reached crisis proportions. The civil section of the Johannesburg court is also experiencing serious difficulties as it battles to cope with the ever-increasing case load generated by the commercial power-house of the Witwatersrand. A few months ago there were many hundreds of applications for default judgment waiting to be heard, causing unacceptable delays of months for creditors.
It is a fact that an acute shortage of staff is being experienced in the Johannesburg Regional court. This is exacerbated by the situation that although posts are advertised, officials are not interested in working in Johannesburg - as a result of the high living cost there as well as safety aspects. This is being experienced despite an offer of an additional financial incentives.
In general, a process by which vacancies of magistrates and Regional court magistrates are filled has been reviewed to expedite the filling of vacancies. The Minister has been approached by the Magistrates Commission to ascertain if he is prepared to approve the procedure recommended to his predecessor. An item on the procedure to fill vacancies for district and regional Courts magistrates was on the agenda of the Magistrates Commission meeting of 20 September 1999, and will be considered shortly by the Ministry.
To assist on the short term with this problem, it has been decided to appoint 5 private practitioners in conjunction with the Bar to deal with the vacancies of Regional court presiding officers. This is receiving the urgent attention of the Department.
With regard to the backlog in the civil section: Johannesburg, it should be noted that as an interim measure the Department has appointed 30 temporary units to the Magistrate Office to work down backlogs, 10 of which were allocated to the civil section. The work is now up to date according to the senior civil magistrate, Mr Mandelstam, but to keep it so some of the period appointments (of the civil section) will remain in place. In order to control the workload in the civil section of Johannesburg a pilot project to computerize the civil justice system has also been launched. This forms part of an over-arching court process project, dealing with automation and improvement of processes to deal with blockages.
As a solution to problems that might arise relating to computerisation, the Rules board has established an Information Technology Committee to, inter alia, make recommendations regarding the amendment of rules to accommodate the computerised system. A prerequisite for the functional operation of the project, is the making of experimental rules. In order to do this, the Rules Board for Courts of Law Act, 1985 (Act of 1985) must be amended to empower the Board to make experimental rules for the Magistrates courts. An amendment of the Act will be submitted to Parliament towards the end of this year or the beginning of next year.
With regard to the simplification of court proceedings, it may be mentioned that an investigation has already been conducted in order to introduce a simplified core set of rules. The former Minister has suggested that the Rules Board should undertake a comprehensive review of the civil justice system. As a result, the Rules Board has established the Civil Justice Reform Committee to investigate the review of the civil justice system. This committee has already met and areas of responsibilities were allocated to the various members.
Shortages of court interpreters in the office of the Magistrate Mdantsane in the Eastern Cape are being addressed, posts of principal interpreter have been advertised and tests on language proficiency have already been conducted in respect of other vacancies. Appointments will be made soon.
2.2 ILL-DISCIPLINE: COURT OFFICIALS
2.2.1 Disciplinary matters regarding Public Prosecutors
2.2.2 Complaints and misconduct investigations against magistrates in the Eastern Cape
2.3 Supernumeraries : Eastern Cape
Minister: In the Eastern Cape the problem is supernumeraries.
There were initially 380 supernumeraries in the Eastern Cape - this comprised of administrative, financial, and even legal personnel (including Chief Magistrates) . Officials concerned were interviewed to establish if they are willing to be transferred to other Provinces, eg 23 officials have just been transferred to Gauteng Province and 5 to Western Cape. As a result most of the supernumeraries were transferred to vacancies in the various regions, leaving only 165 to be dealt with.
Regional offices with personnel needs are approaching Eastern Cape to have their vacancies filled. They are also liaising with the Personnel division at the National Office to effect such transfers.
Minister: In the Western Cape we discovered, to our surprise, that while magistrates' courts like Mitchell's Plain and Wynberg are staggering under huge criminal case loads, the High Court had disposed of only 85 criminal cases last year and yet they have 10 courts at their disposal. The High Court in Port Elizabeth managed only 51 prosecutions for 1998. The situation is no better in Grahamstown, Bloemfontein and Kimberley. The period of finalisation of matters from the first appearance in the lower court until finalisation in the high courts is also of great concern. The national average is 520 days. When I questioned these statistics it was explained to me that there is limited time for the prosecution of cases in the High Courts because they are in recess for about three and a half months of the year.
3.1 Audit conducted by NDPP
An audit conducted by the NDPP reflects under-utilization of Court hours, delays in the finalization cases and under-utilization of resources in certain centers. The Office of the NDPP has made a presentation on the utilization of court hours for both lower and high court. In the past the Department did not have useful enough statistics to monitor work performances in courts. To rectify this the Department together with the Office of the NDPP and the cluster heads, are working on a new format for statistical returns on the performance of courts. The new format will be ready by the end of October 1999.
It is quite clear that the recess periods in the high courts are effecting the productivity of the courts (and is contributing to wastage of expensive prosecuting resources) and will need to be revisited, especially as studies show that most other countries do not have such recess periods. The matter is being investigated by the Policy Unit and all role-players will be consulted before a policy decision is made in this regard.
3.2 Volume of work: District courts vis- à- vis High Courts and Supreme Court of Appeal vis- à- vis Constitutional Court, and Recess period for High Courts:
Minister: Information at hand indicates that the Constitutional Court, disposes of less than twenty cases a year but has a bigger budget than the Supreme Court of Appeal. Accepting that an immediate reallocation of financial resources is not possible, I naturally put my mind to finding a way in which to address the crisis which the Chief Justice faces namely how the 2 courts can share the limited resources that are currently available... I merely stated my observation that there are huge discrepancies in the way in which resources have been allocated to courts and that this calls for rationalisation. I firmly believe that if we rationalise the utilisation of the resources at our disposal we will not need to ask more resources.
These questions also deal with a reconsideration of the utilization of resources, a matter which is receiving the attention of Prof Loots and the Policy Unit, and which will require policy decisions.
3.3 Causes for court roll collapse/delays in the finalization of cases
Minister: Recent audits conducted by the office of the National Director of Public Prosecutions have disclosed serious problems caused by the irrational allocation and utilization of resources. The audits have also disclosed that a high percentage of criminal court hours are lost because court rolls collapse. Each day a certain number of cases is enrolled for each court with the expectation that they will be heard, but many do not proceed for various reasons and the court ends up not being used the time it should have been used. There are various reasons why rolls collapse - investigations not having been completed, witnesses not being available, consultations with witnesses not having taken place, prisoners not being brought to court, prosecutors and defence lawyers not being ready to proceed, court orderlies and interpreters not being available.
The User Board under the NCPS has approved an Integrated Justice System (IJS) Court Process Project, aimed at improving the criminal and civil processes in the lower courts. The project will deal in particular with the following programmes:
The State Information Technology Agency (SITA) has been requested to provide the User Board with proposals for compiling user requirement specifications in terms of the processes and methods for the effective management of cases through the prosecution (criminal) and adjudication (criminal and civil) processes. The ensuing user requirement specifications will enable the Department to procure an interim system that would be piloted at two sites, viz the Magistrates offices of Johannesburg and Durban. Dependent on the outcome of the pilot studies (proof of concept) the system could then be developed, put out in tender and eventually rolled out nationally.
Intensive Joint Application design (JAD) work sessions and on the spot investigations in co-operation with relevant stakeholders of the above-mentioned two centers, as well as other relevant role players in the Pretoria and Randburg Magistrates offices, will be held shortly to determine the user requirements. The overall project is run under the guidance and leadership of the Department of Justice and is managed by the IJS project office. Project reporting will be done on a planned basis and feedback will be given to the IJS Board and NCPS Ministers' Committee on a regular basis.
3.4 Court management system (Cluster system)
3.4.1 Progress report on the new court management system
Minister: A great deal of work is being done on developing appropriate court management systems, particularly in the lower courts.
The vision of separation of functions and a single independent judiciary resulted in the approval and implementation of a new Court Management System in phases.
i) Phase 1: Creation of a Cluster Structure
The aim of the cluster system is to:
The system will culminate into a division of the magistrate's districts of the country into clusters for the purpose of effective administration of justice, placing all prosecutors under the National Director of Prosecutions; and providing of a court administrator/office manager for each Court house. The system will be fully operational when we have a complete separation of functions and lines of command, i.e when:
Progress: The cluster structure for judiciary has already been established by grouping magistrate's offices into 14 clusters (usually headed by Chief Magistrates except in two offices where cluster heads are Senior Magistrates). The cluster structure for the administration is in the process of being implemented and it will be in line with the Cluster Structure for the judiciary. The cluster structure for the prosecution is still receiving attention. The putting in place of office managers is receiving attention by Personnel in conjunction with the finalisation of the rationalisation process in which supernumeraries are moved between Provinces to places where they can be utilized. These newly created posts of office manager will entail intensive training as these persons will have to act as financial, administrative and personnel managers. The NDPP's Office has already advertised the posts of Chief Public Prosecutors. Once they are in place, their cluster system can be functional.
The Cluster Structure provides for the successful implementation of an efficient, affordable and effective court management system within regions, sub-regions and districts in order to manage Court houses.
ii) Phase 2: Implementation of manuals to manage court houses
Two manuals i.e the judicial and administration manuals have been put into operation. The National Departmental Inspectors are at present conducting training on the implementation of these manuals country-wide. The prosecuting manual is still receiving attention at the office of NDPP
The aims of the manuals are to:
Mechanisms for the implementation of the manuals:
iii) Phase 3: Uniformity regarding judicial officers (single Judiciary)
In his budget speech of 13 June 1996, the previous Minister gave an overview of the court structure envisaged for South Africa. This was then described as follows:
Traditional Courts and the Judicial Function of Traditional Leaders
The investigation received impetus in 1998 with the commissioning of a discussion paper with the aid of German (GTZ) funding. The discussion paper was cleared for publication on 9 April 1999 by the Working Committee of the Commission. The closing date for comment was initially 30 June, which was subsequently extended to 31 August 1999. The discussion paper was launched at the Council of Traditional Leaders in Pretoria on 18 May 1999 and subsequently 15 workshops were held in all the provincial Houses of Traditional Leaders, again with financial assistance from the GTZ. The Commission's proposals as contained in the discussion paper received overwhelming support in all the Houses, with consensus emerging around many broad issues of principle such as the need for a new Traditional Courts Art and the strengthening of these courts by training and by installation of proper facilities. Matters of disagreement and amendment related to issues of detail such as criminal jurisdiction and the use of paralegals.
To date, the Law Commission has heard from women's groups convened by the Commission on Gender Equality, and from academics who were convened in a national seminar by the Indigenous Law Institute of the University of South Africa to debate the constitutional issues involved. A final report (embodying draft legislation) is being prepared for submission to the Minister of Justice by November 1999.
Community Dispute Resolution Structures
This investigation, to look into the operation of the so-called "community courts", grew out of a request to the Arbitration Project Committee of the Commission to expand its research on commercial arbitration to cover all forms of alternative dispute resolution (ADR). In an effort to speed up the investigation, the Commission took the step of holding information-gathering workshops around the country (11 in all) in order to develop an understanding of the situation in rural and urban communities across South Africa. Using the data obtained from these consultations, the Commission produced a discussion paper in which proposals are set out for the recognition and regulation by law of community dispute-resolution structures. The proposals stress the need to empower these forums with facilities and training, without destroying the inherent flexibility and legitimacy which keeps them close to their communities. The closing date for comments on the discussion paper is 31 October, after which a report with draft legislation will be prepared for the Minister's consideration.
With regard to the judiciary, a White Paper on the Judiciary was compiled and distributed for comment. After thorough consultation, policy decisions on the way forward will have to be made.
3.5.2 Case flow management
Minister: A strategy which I believe would help to address the problem of collapsing court rolls would be to require that cases be certified as trial ready by senior judicial officers before being enrolled for hearing. A simple requirement such as this could empower judicial officers to take control of case flow management. It could also lead to judicial officers becoming pro-actively involved in the management of each case, a trend which is developing fast in Anglo-American legal systems. We will be consulting with judicial officers about the possibility of introducing such a requirement, which will complement the move to ensure that judicial officers spend their time doing judicial work instead of general court management.
The above-mentioned envisaged Court Process Project will assist in establishing an effective court and case flow management system.
However, in the interim and as a pilot, the Cape Town Magistrate Office is developing a possible case flow management system whereby the magistrate will retake control of his/her court. (Civil and criminal). The aim is to have the system operate in the cluster and to dispose of cases in an effective manner so as to reduce the case load.
Presiding magistrates takes control by:
This case flow management pilot project does not need additional funds. It will, however, require full consultation with all role-players as well as their co-operation. If successful it will enhance the legal process and ensure that each accused person will have a fair and speedy trial as guaranteed in the Constitution. The Department will monitor the implementation of this initiative.
The SA Law Commission has on its programme the investigation into the simplification of criminal procedure. The objective of the investigation is to review the criminal procedure and to make recommendations on the simplification of the process which will lead to a more efficient system. During July 1999 the Minister appointed Mr Justice Harms to chair the project committee dealing with this issues and the project committee met on 3 September 1999 to consider the scope of the investigation.
When considering the efficiency of the criminal justice process the committee was in agreement that the accusatorial nature of our process is a major contributor to the ineffective process and the ability of the criminal justice system to live up to expectations. The committee was further in agreement that without taking over the inquisitorial approach followed in the continental countries, urgent consideration should be given to strengthening the role of the judicial officer by introducing inquisitorial elements in our system which fit in with our concept.
The committee therefore included in its programme of work an investigation which will aim to address this problem. The committee has already identified a number of procedural components which should be targeted for investigation, namely -
This investigation will be completed within the framework of the activities of the Law Commission and it is envisaged that no additional resources will be required. It is envisaged that the investigation will be completed within the course of 2000.