By Kevin O’Reilly

In March the Department of Justice and Constitutional Development released its strategic plan for the next five years, from 2013 to 2018. The plan highlights the department’s priorities for the short, medium and long term, as well as some of the challenges it faces.

In the foreword to the document, Justice Minister Jeff Radebe makes special mention of the increase in the number of reported sexual offences cases and notes that the department will prioritise sexual offences by re-establishing dedicated courts throughout the country.

He adds that efforts to appoint a Solicitor General will be put in place in the 2013/14 financial year, with the incumbent overseeing all legal services of the state and assisting in the services offered to the state to ensure improved quality.

The Minister also notes that service delivery continues to be a priority.

The strategic plan indicates the department’s commitment to, among others –

• prioritising access to justice services for people in poor and rural areas;
• promoting access to justice by the finalisation of court cases, as well as an increased use of alternative dispute resolution (ADR) mechanisms, the diversion of cases and the use of restorative justice processes;
• administering deceased and insolvent estates efficiently; and
• providing appropriate legal advice and litigation services to organs of state.

Under its policy mandates, the strategic plan notes some of the aspects of the National Development Plan that relate to the Justice, Crime Prevention and Security cluster, including the goal of achieving a ‘single, integrated, seamless and modern justice system’.

Other relevant goals of the National Development Plan relate to the need for an ‘ideal South African judge’, who would have a ‘progressive judicial philosophy’ and understand the socio-economic context in which the law is interpreted and enforced; and the establishment of the Office of the Chief Justice – an example of the ‘cutting-edge’ commitment to judicial transformation.

In respect of the latter, the document states that: ‘Necessary memoranda of understanding and protocols are being put in place to ensure that functions and responsibilities that are performed by the department in terms of the existing legislation and policies and that fall under the mandate of the Office of the Chief Justice, in terms of the Presidential Proclamation, are transferred to the Office of the Chief Justice pending the amendments to the legislation concerned.’

The document further states that responsibilities applying to governance of the judiciary and rules addressing the case flow management processes will gradually be transferred to the Office of the Chief Justice.

Transformation of the justice system

Some of the policy initiatives the department plans to implement in respect of transformation of the justice system in the medium term include:

• Transforming the judiciary.
• Strengthening the independence and accountability of the National Prosecuting Authority.
• Strengthening the constitutional development portfolio.
• Reviewing the civil justice system.
• Addressing the department’s capacity to provide quality legal advisory services.

The document also notes that the South African Judicial Education Institute, which has the mandate of providing judicial education to aspiring judicial officers, is governed by a council chaired by the Chief Justice and comprises representatives from the judiciary, the Justice Minister or a nominee, nominees of the legal profession, law faculty deans and House of Traditional Leaders representatives.

Review of the civil justice system

The strategic plan states that cabinet had approved a document that seeks to ensure the advancement of the Constitution, by dealing with issues related to –

• the transformation of the judiciary;
• the separation of powers; and
• collaboration between the three branches of government.

The document states that one of the targets is to establish a small claims court for each of the 387 magisterial districts by 2014.

It attributes slow progress in this regard to the lack of experienced legal practitioners who are willing to be appointed as commissioners. However, it states that Legal Aid South Africa has offered to assist by agreeing to avail its lawyers.

Economic impact

The document notes the negative impact of the global financial crisis on the justice system. It states that social problems ‘are prevalent’ as a result of economic strain, moral decay, increased crime, corruption and family violence.

It notes that these factors point to an increase in –

• demand for maintenance services, including the investigation of defaulters;
• civil matters (default judgments);
• sexual offences and domestic violence;
• demand for the services of the Master of the High Court (insolvencies and sequestrations);
• the case load emanating from state litigation and environmental crimes, such as rhino poaching; and
• demand for legal assistance in criminal matters for those who cannot afford this.

Budget cuts

The plan notes that the department has experienced budget cuts that have ‘severely affected’ its information technology infrastructure. The department has, however, identified an increased use of mobile devices, including tablets, and will investigate a mobile strategy, although it will first priorities stabilising the ‘information and communication technology backbone’.

The lack of funding means the department continues to explore alternative funding methods and public-private partnerships. The strategic plan states: ‘There is a need for a major recapitalisation of the justice infrastructure in specifically identified areas.’

Increased litigation against the state

The strategic plan notes the significant increase in litigation against the state and lists the following as reasons for this:

• Citizens’ realisation of their rights.
• ‘Opportunistic litigation against the state by certain legal practitioners who exploit loopholes in legislation’.
• A fragmented approach in the management of state litigation.
• The lack of an effective framework to invoke ADR mechanisms.

In an attempt to ‘curb the spiralling costs of litigation’, the department has prioritised the transformation of state legal services and will implement the following interventions in the medium term –

• finalising the policy framework for the efficient management of state litigation;
• capacitating and enhancing the Office of the State Attorney by increasing resources;
• preparing and implementing standardised fee structures for the payment of private counsel; and
• developing an ADR process to avert litigation or enable the settlement of matters outside of court.

Enhancement of the Master’s Office

A paperless estate administration system was piloted at the Nelspruit office of the Chief Master. It was rolled out in the Durban, Johannesburg and Pretoria offices last year. The system will be rolled out to other offices and will allow practitioners and members of the public to view estate information online.

Strategic goals and objectives 

The department outlined the following in the strategic plan:

• Enhanced organisational performance on all aspects of administration in line with set standards, and meeting and exceeding the needs and aspirations of key stakeholders.
• Facilitating the effective and efficient resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts.
• Effective and cost-efficient provision of state legal services that anticipate, meet and exceed stakeholder needs and expectations.
• Effective coordination of the Justice, Crime Prevention and Security cluster in the delivery of the third of its 12 outcomes – that all people in South Africa are and feel safe.
• Promotion of the Constitution and its values.

In terms of objectives, the strategic plan outlines the key priorities for its five programmes, namely:

Administration

One of the department’s objectives is to obtain a sustained ‘no audit qualification’. Another objective is to conclude 70% of fraud and corruption cases within the first year of entry.

Court services

The department seeks to improve finalisation of activities supporting its outcome that all people in South Africa are and feel safe, including improvements in respect of the number of cases on the backlog roll.

State legal services

In terms of this objective, the department seeks to ‘supervise the administration of deceased and insolvent estates, as well as the liquidation of juristic persons, the registration of trusts and the management of the Guardian’s Fund’.

National Prosecuting Authority

This objective seeks to improve the number of cases finalised (excluding ADR mechanisms) from 350 910 in 2009/10 to 446 866 in 2013/14, and increase the use of cases finalised through ADR mechanisms from 118 631 in 2009/10 to 151 991 in 2013/14.

Auxiliary and associated services

The four entities funded through the Department of Justice and Constitutional Development’s vote account are Legal Aid South Africa, the Special Investigating Unit, the South African Human Rights Commission and the Office of the Public Protector.

Some of the output items are –

• finalisation of criminal and civil matters;
• provision of legal aid practitioners per court; and
• preparation of cases for civil and criminal litigation and disciplinary action.

Kevin O’Reilly, kevin@derebus.org.za

This article was first published in De Rebus in 2013 (June) DR 9.