Why Justice Department has to put its house in order

Nkosikhulule Nyembezi

The knives are out for the Justice Department managers following last week’s engagement between MPs of the Justice Committee and the Department of Justice on the department’s annual report.

The case of 640 staff members’ resignations during the 2022/2023 financial year and the high number of vacancies in the State Attorney’s Office, including the position of Solicitor-General, which has not been filled permanently for more than five years, has become yet another opportunity for Justice Department loathers to expostulate against it.

“No wonder we have increasing vigilantism across the country,” proclaims a particularly virulent assault on Ukhozi FM, ending: “If the vacancies remain unfilled, how long before we can get a verdict in several prominent cases of gender-based violence, corruption, and political violence?”

More listeners sharpened their knives. There is a groundswell of complaints about the National Prosecuting Authorities’s (NPA) first state capture trial being dismissed in the High Court earlier this year. There is pushback against NPA head Shamila Batohi’s excuses to the committee. She said that although the Zondo Commission detailed the extent of state capture and those involved, it did not provide a blueprint for the successful prosecution of these highly complex matters requiring specialised skills and years of work to mount a solid legal case.

No wonder ANC MP Qubidile Dyantyi lamented what he called the “stampede, the exodus” of staff from the department, pointing to a retention problem as key vacant posts in the department including Chief Master, Deputy DGs for Court Services and Constitutional Development, head of the Justice College and five heads of State Attorneys’ Offices in the regions cripple citizens’ constitutional right of access to justice.

Other challenges negatively affecting the transformation and modernisation of services include shrinking budgets, poor ICT infrastructure, and a shortage of clerks and sign language interpreters. The searing question is, “How did we get to this?”

One problem: most departmental heads are lawyers, so stoking culture wars between practising lawyers and managers is tricky. Do lawyers go to the dark side when taking on managerial roles, or is it a result of the long neglect by politicians of stacks of reports finding that the justice system is underfunded and understaffed? Yes, it is politics.

Politics often works like a scientific experiment conducted on millions of people with few ethical limitations.

You try something – whether increasing the security cluster budget, transferring the administration of courts from the justice department to the chief justice, or passing laws to enhance the investigation and adjudication of court cases – witness the results and decide whether to proceed further down that particular path; or you reverse course and try something else.

The resource allocation to the Justice Department conflict has unfolded by trial and error for decades.

Since the late 1990s transformation process, South Africans have given government-led transformation a chance. I know that from different viewpoints, government-led transformation initiatives were insufficient and top-down, but they were still the most courageous initiatives ever made in the circumstances. Then they lost steam and stalled under the weight of multiplying social ills, failing social cohesion, and over-reliance on courts to stitch the people’s gaping wounds.

The National Development Plan’s Vision 2030 is one case.

Often, politicians arriving on the scene clueless or managers taking executive roles decry Justice Department inefficiency. Pull this lever, hire a private consultancy, lift everything above average and bingo, problems solved.

The pain and suffering caused to South Africans due to the shortcomings have only intensified as the years have passed, and the full extent of the dysfunction has emerged.

The department employs about 2 200 matriculants as court interpreters and clerks, says the department’s DG, Doc Mashabane, and offers bursaries to most of these and other employees in various sections.

Picking and retaining the brightest and best is a tough test many too often poached later tor higher pay outside.

Committee chair Bulelani Magwanishe and his ANC colleague Dyantyi pointed out that the advertisement for the Solicitor-General’s position –which opened in September and closed on October 16 – was not designed to attract proper skills as it is a salary below level 16, which is the salary level of a Director General. Magwanishe said that the offered annual salary – R1.6m and R1.8m – is not attractive enough for an official who will be in charge of all State Attorney’s Offices countrywide and responsible for the litigation of the whole state.

He also raised the problem of the government’s late payment of lawyers acting on behalf of the State Attorney’s Office – on average in 97 days instead of the Cabinet-prescribed period of 30 days.

One of the requirements for potential candidates for the post of Solicitor-General is that they have worked in the public service for five years, which ACDP MP Steve Swart says will exclude legal practitioners from applying for the post.

Meanwhile, the citizens’ belief in a justice system that upholds the rule of law lies in tatters. The court case backlogs and the increasing inaccessibility of justice remain a serious concern, as shown in Stats SA’s regular surveys.

The ANC government has failed to keep its contract with the people.

South Africans are stunned that the government is taking so long to fill the posts and make careers in the Justice Department attractive. Coping with rivalry within and between units is everyday life.

Managing very clever, dedicated lawyers and other professionals in the department, demanding more from scarce resources, is hard. Ensuring whistle-blowers and investigators get heard above that daily staff noise takes experience.

The history of this problem is well established. The pressing need now is to address what lies ahead. The department has a responsibility to put its house in order. South Africans depend on our justice system to realise our constitutional rights. We should not ask ourselves whether we will have access to justice in the future, confounded by the gaping holes in the Justice Department’s wanting capacity.

Nyembezi is a policy analyst, researcher and human rights activist

Cape Times