The Committee were briefed about the Memorandum of Understanding that had been signed with the Department of Justice (DoJ), to transfer administrative support functions - relating to the Judicial Services Commission (JSC), South African Judicial Education Institute (SAJEI), Supreme Court of Appeals (SCA) and the Constitutional Court - to the Office of the Chief Justice (OCJ). The transfer of the SCA had not yet happened but there was cooperation between the OCJ and DoJ to ensure the process was finalised. The transfer of the Magistrates Commission and the Rules Board had been delayed pending legislative amendments that would be required to give effect to such a step. National Treasury had also proposed that the High Courts should be transferred to the OCJ.
A draft strategic plan was being developed for the OCJ and was near completion This would allow for own strategic planning so that when the OCJ budget vote was finalised, the relevant requirements would be in place. The approval of the budget structure by National Treasury had taken the process forward. A lot of further engagements had to take place with the DoJ to unpack the responsibilities that would pass to the OCJ. There were a lot of issues that would normally apply to approving a budget, and OCJ was working with DoJ to address that. The Secretary General would become the Accounting Officer once the new structure was approved.
A key goal of planned activities was the enhancement of court efficiency. The case flow management project was important and sat at the heart of the Chief Justice’s plans. Other areas of focus included a court performance framework; development of norms and standards; benchmarking; automation of systems (Heads of courts had in the past indicated incidents where judgements were leaked before they were finalised; this was a judicial nightmare) and e-learning through SAJEI. The management committee sat monthly to look at various solutions including shifting the litigation process from the litigants to the judiciary. There was a committee of judges, representing all divisions of the High Court, and they looked at management for all the judicial officers at high court level. The judiciary was also of the view that it needed its own domain name (instead of.gov) so that its independence was maintained and there was no perception of interference
The Chief Executive Officer (CEO) of SAJEI said training had been taking place since January 2012. Throughout this period, seven seminars, that looked to discus different topics, had been held for the judges. Two workshops for the aspirant judges were held and they were both well attended.
Members clarified that the establishment of the OCJ was meant to enhance the independence of the judiciary. Members sought clarity on matters pertaining to the OCJ, that included the strategic plan, staffing, and a model of court administration that would be suited to South Africa. Members voiced support for an independent domain name for the judiciary.
Office of the Chief Justice (OCJ) briefing
Ms Mmeme Sejosengwe, Secretary-General (SG): Office of the CJ (OCJ), gave the contextual background to the perceived role for the OCJ, as proclaimed by the President on 23 August 2010. The Office was mandated to provide support to the Chief Justice (CJ) in his dual role as the head of the judiciary and the Constitutional Court (ConCourt).
The Memorandum of Understanding was signed with the Department of Justice (DoJ) on 26 January 2012, to transfer administrative support functions relating to the Judicial Services Commission (JSC), South African Judicial Education Institute (SAJEI), Supreme Court of Appeals (SCA) and the ConCourt. The transfer of the Magistrates Commission and the Rules Board had been delayed pending legislative amendments that would be required to give effect to such a step.
Presentation of the organisational structure of the OCJ to organised labour was still outstanding. National Treasury (NT) proposed that the administrative functions of the High Courts also be transferred. NT had approved the budget programme structure on the 12 April 2013, which would cover the High Courts, SAJEI and judges salaries as a direct charge from the National Revenue Fund (NRF). Once the budget structure was approved and NT requirements were complied with, the budget vote for the OCJ would be created.
The priorities of the CJ included:
▪ The development of the court performance monitoring framework;
▪ Development of judicial norms and standards;
▪ Automation of court systems – dedicated judicial domain and e-filing system;
▪ Regional and international judicial administration benchmarking;
▪ E-learning for judicial officers and soft skills training;
▪ An appropriate home for the Judicial Branch of the State.
A draft plan on the strategic plan was in place; this would allow for own strategic planning so that when the OCJ had a budget vote, requirements were in place. There was a need for a budget proven structure for the OCJ which would cover the High Courts, the ConCourt, and the other functions. In other words the programme structure as it stood, involved administration as programme one, judicial support as programme two and research that would include SAJEI. The SCA was excluded from the budget structure, and that appeared to be an error. Interaction on this matter with the Director General of DoJ had been entered into.
Since the programme had been approved, the OCJ was requested to comply with NT requirements in respect of the budget vote. There were a lot of issues that would normally apply to approving a budget, and the OCJ was working with DoJ to address that. The SG would become the Accounting Officer once the new structure was functional, but the DG at DoJ remained the accounting officer and the Minister remained the executive authority.
The office had to develop governance structures, including internal audit, risk management and IT as all these were required for every budget vote. The OCJ was currently housed at EDURA House, which was essentially the home of SAJEI. The Office did not have its own accommodation. Currently the OCJ relied heavily on on the DoJ systems and needed to develop the ability to manage its own ICT infrastructure. This required urgent attention. The judiciary was of also of the view that it needed its own domain name so that there was no interference in communication of judgements. Heads of courts had in the past indicated incidents where judgements were leaked before they were finalised; this was a judicial nightmare.
There was cooperation between OCJ and DoJ on the transfer of Superior Courts. The approval of the budget structure by NT took that process forward. A lot of engagements had to take place to really unpack as to what responsibilities would come to the OCJ. Preliminary investigations showed that a budget of about R1.3 billion would be transferred with over a thousand staff. This emphasised the critical issues relating to infrastructure, accommodation and governance issues.
There were currently 224 posts on the current staff establishment with 125 filled; and 11 of those were at senior management staff (SMS) level. The challenge was that most of the posts still remained unfunded. There were engagements with the DG to look at how the posts would be prioritised for filling. Ms Sejosengwe identified the Chief Financial Officer (CFO) and the head of internal audit as the critical positions that had to be filled. Advertisements had been made in the past, but the Office had reached a stage where it would resort to headhunting. The rest of the posts would be looked into in terms of priority and budget availability.
As part of the planned activities was the enhancement of court efficiency. The case flow management project was important and sat at the heart of the CJ’s plan. The case flow management committee sat monthly to look at various solutions, including shifting the litigation process from the litigants to the judiciary.
There was a committee of judges, representing all divisions of the high court, and they looked at management for all the judicial officers at high court level. The committee had been in operation for the last two years, and was chaired by Judge KK Mthiyane – Deputy President, SCA.
The case flow management programme started in October 2012 and three provinces – Western Cape, Gauteng and kwaZulu Natal – had started pilot projects . Uniform practice directives were developed for the project; cases would be fast tracked. The programme would be rolled out to other courts. Already the Eastern Cape and North West high courts had expressed willingness to implement from 01 May.
Ms Sejosengwe said the CJ and the heads of courts resolved, at a judiciary retreat in August 2012, to implement measures to address delays and one such measure was the Case File Audits (CFAs). The Minister had raised the issue around performance of the courts, and it was receiving attention. The CFAs required that courts look at dead cases that had been in the system for a long time. This process was going on through all the high courts and was managed by the judicial case management committee. Additional resources would be allocated to the project to ensure finalisation by year end.
The practical implications of the Superior Courts Bill and the Constitution Seventeenth Amendment Act had been looked at, but the two pieces of legislation were not yet law. The OCJ worked with DoJ in considering court automation, in terms of looking at a system that would manage case management. The Office still relied on the systems of DoJ until it established its own operations.
Much work had been done on developing a court administration model. The CJ had expressed strong views about a developing court administration system that was suited to South Africa’s democracy.
The National Efficiency Enhancement Committee (NEEC) was established on 13 October 2012 by the CJ after consultation with relevant Ministers. The NEEC comprises of all the key role-players in the justice cluster including the judiciary, attorneys and advocates profession. The NEEC’s objective was to improve the efficiency and effectiveness of the courts. Also committees had been established to identifya common approach to deal with common problems.
The Acting CFO said R126 million was allocated for the year 2012, and R86 million of that money was spent. Compensation of employees was allocated R35 million and R12 million was not spent due to vacancies that were not filled during the financial year. Another item was goods and services, which was allocated R76 million; R58 million of that amount was spent. Under spending on the programme was attributable to the vacancies that were not filled and some activities that were planned but could not take place.
For the current financial year the ConCourt had been allocated R71 million; the OCJ was allocated R18 million; JSC secretary R7.7 million; SAJEI R26.3 million. The total budget allocated this year was R123 million; this was less than what was allocated the previous year. The budget cut was as a result of the budget cuts affecting the entire DoJ budget which was implemented by NT.
Ms Sejosengwe said the projection for the shortfall for the year was R80 million. The OCJ and the heads of courts’ view was that the offices of the judges president (JPs) needed to be enhanced so that they were able to carry their judicial administrative functions. Work had been done and the offices of the judges president had been consulted. It was paramount that funds were there to ensure Office of the JPs had capacity to respond to responsibilities.
There was a process to find accommodation and furniture for the OCJ, but due to budget cuts that process had to stall. Further funding was needed for SAJEI’s programmes. The implementation of the two Bills – Superior Courts Bill and Constitution Seventeenth Amendment Bill – remained uncosted. But the Office had cooperated with DoJ on the implementation plan.
South African Judicial Education Institute (SAJEI) Chief Executive Officer comments
Dr Gomolemo Moshoeu , CEO SAJEI , said training had been taking place since January 2012. Throughout the period seven seminars, that looked to discuss different topics, had been held for the judges. Two workshops for the aspirant judges were held and they were both attended by 71 delegates. The Office intended to follow up in July to look at matters like motion courts, civil and criminal trials and judgement writing. This would help acting judges know what was expected of them. Six workshops had been organised for regional magistrates. Those workshops addressed various skills including computer literacy.
There also were 41 workshops for the district courts magistrates, attended by well over a thousand delegates. The topics covered included the new Companies Act that appeared to be a challenge when implemented; Constitutional Adjudication Trademarks; National Credit Act and Evictions. Those topics that were pertinent to regional courts included Sexual Offences Act and Child Justice. SAJEI had adopted the approach of decentralised training to ensure that it empowered magistrates through peer training.
As far as district magistrates were concerned, the priority for 2013 financial year was Protection from Harassment Act and Promotion of Access to Information Act (PAIA). Training for PAIA would be starting on 9 June. The challenge with the district courts magistrates was that there was not enough money to cover their needs. Training for the newly appointed judges was postponed to later this year, as there were too few judges available to attend.
Mr J Jeffery (ANC) commented he was making a “general political point” to the media and not for the response of the OCJ. The establishment of the OCJ enhanced the independence of the judiciary. The ANC often got blamed for interfering with the independence of the judiciary, so hopefully the media would give recognition to this step. He was not sure if the title accorded to the official of 'Secretary General' was appropriate; to which the Chairperson interjected and said presumably it was chosen by the CJ.
Mr Jeffery said the strategic plan would be required this month, as all other entities had submitted. In the latter part of the year the OCJ would presumably submit an annual report even if it was the early part of the annual report. Could the Committee also be provided with details of the PAIA training in writing?
Ms Sejosengwe replied she accepted the Members comments on the strategic plan. It would be fast tracked and ensured that it was presented to Parliament. Many efforts were made with regards to that in the last two year, but as things evolved that strategy had to be worked thoroughly to ensure that it was in line with requirements. This would also be the case with the SAJEI’s annual report.
Mr Jeffery sought clarity on the statement that allocation for the SCA was not included. He suggested a response be sought from the Department. This did not make sense, especially that DoJ allocated funding for the high courts. He asked if there was provision for the programme for specialised Superior Courts – Labour and Labour Appeals’ Court, Competitions Appeal Court, Electoral Court – to move to the OCJ.
Ms Sejosengwe replied she had indicated to the DoJ Director General, that the Department had to include SCA in the budget structure. This was just an error; the allocation for the court would need to be transferred. In terms of the budget, the SCA would form part of the R1.3 billion that would come to the OCJ when all the high courts had been transferred. This would also include the specialised divisions of the high court. The intention was not to see the specialised divisions of the high courts separately from general divisions.
Mr Jeffery wanted to know why there was a need for new staff at the OCJ. Why was the staff not transferred from the Department as most functions of the OCJ would have been performed there. Presumably, somebody in the DoJ had performed that work before.
Ms M Smuts (DA) said she was delighted NT was also helping in expediting matters. This was wonderful; the sooner the OCJ had a separate budget vote the better. But the problem was the lack of legislative basis for all of that. She did not necessarily support the transfer of DoJ staff; as there were terrible problems with some of the DoJ administrative appointed staff.
She cited an incident that involved staff at the South Gauteng High Court; this was justice staff. There were problems with good management at high level and even higher up. She said she did not want to see justice staff automatically transferred and seconded. New staff, appointed by the OCJ, would be ideal.
Ms Sejosengwe replied about 1400 staff members would be transferred when the high courts were transferred from DoJ to OCJ. Besides the labour issues, DoJ had to make sure that functions that might have been performed by a staff member unrelated to the courts were really taken care of. For all intents and purposes, an official who provided administration support to each of the high courts should be transferred.
At Senior Management Staff (SMS) level it would be difficult to transfer everybody; OCJ had identified those areas where staff could be transferred. In the budget structure that had been approved, the issue of salaries for judges being charged from the National Revenue Fund (NRF) administration of which would shift to the OCJ. The staff in the DoJ administering that function would obviously move with the function.
Ms Smuts commented it was important to remind people that the Committee was “institution-building”. In a real sense, Members were completing work that was not done when the Constitution was finalised. There were three branches of state, the Executive, the Legislative and the Judiciary; each of these was independent of the other. The Executive and the Legislative had their own votes and administrations, and until the Committee began with the work on OCJ, the courts had only judicial independence; their administration was only run by DoJ. This was undesirable; the judiciary was the grand-daddy of all independent institutions.
Ms Smuts said Sections 165 and 181 of the Constitution clearly stated that the judiciary was accountable to no one; whilst the Chapter 9 institutions were accountable to the National Assembly for functions. The Committee was building an institution that would enable the judiciary at very long last, to run the courts. Therefore the outstanding piece of legislation was that which would set up the independent courts administration. The Committee had now finalised the Constitution’s Seventeenth Amendment Act, which made the Chief Justice head of the Judiciary, and the Superior Courts Bill took the process further.
Ms Smuts sought clarity on the independent courts administration. Judges Arthur Chaskalson and Pius Langa – SA’s former CJs – had been working on a best model for an independent courts administration that would take away all the functions from DoJ. Where was that law? That had to be finished before this Parliament's term expired.
Ms Sejosengwe said the draft of the model had been submitted to the Minister by the CJ. The amendments made by the CJ and the heads of courts related to two things: the Judicial Council, which the heads of courts preferred should be constituted by only judicial officers; and that there be an advisory board.
Ms Smuts said it was her understanding that the CJ had made changes that the two CJs had proposed. Ideally the Committee should perhaps have a session with him. This process needed to be expedited because, although the theme of courts administration was covered under the Constitution Seventeenth Amendment Act and the Superior Courts Bill, the Committee had not given a legislative basis to the independent administration. Legislative basis was just not there, but only the control of the administration of the judicial function by the CJ and the JPs.
Ms Sejosengwe replied as soon as the OCJ was done with its research on the model that would be suited on the view of the judiciary, looking at the various jurisdictions and research. When the CJ addressed Stellenbosch University on the impact of the OCJ, he touched on this. As soon as this was done it would be coupled with the draft legislation.
Ms Smuts said about the judicial domain that she supported the view by Judge Sandile Ngcobo (another ex-CJ) that it was wrong for the courts to have a .gov.za domain. She wished Parliament had the same principle base; it was wrong to be parliament.gov.za as this was a different branch. It was interesting to note that people were downloading judgements before they were delivered. She would love to hear more on this privately.
Ms Sejosengwe replied the OCJ preferred not to discuss that. The judges had specific issues that they mentioned that she was not sure how to deal with them. The view was that they shared information as they dealt with cases. It was undesirable that information ended up in the hands for which it was not intended. She cited an example of a Judge President who once sent a judgement to a particular person, only to find out there was more than one person sharing the email address on the server. This became a problem.
Ms D Schafer (DA) commented she had concerns about bail applications, especially the apparent lack of understanding on the part of the prosecution and magistrates about bail and the Criminal Procedure Act (CPA). People who were charged and convicted for violent behaviour, but yet released on bail when they re-offended and were a risk to communities. She asked if there was a plan to train these officials on bail.
Ms Schafer also commented that she did not believe that OCJ could not find a CFO and an internal audit chief in the entire country. She sought clarity.
Dr de Wee, DoJCD Chief Operations Officer, replied that they had found a CFO but unfortunately there were some problems around her appointment and the process would have to be re-initiated.
Dr Moshoeu indicated that training around bail was part of the criminal law course that had been developed for training judicial officers but currently SAJEI’s funding constraints meant it was unable to roll out the training programmes as it had hoped.
PMG could not transcribe the remainder of the report as we did not have access to the entire recording of the proceedings.
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