Office of the Chief Justice briefing; SA Judicial Education Institute activities 2012/13; Judicial Matters Second Amendment Bill: tagging

Meeting report

Office of the Chief Justice: Activities 2012/13
The Chairperson reminded Members that the Office of the Chief Justice (OCJ) was proclaimed in 2010 but this did not mean that it was up and running immediately. The whole purpose of establishing this office was to entrench the independence of the judiciary, to ensure that all court and judicial l matters were handled by the judiciary themselves rather than politicians. He welcomed the delegation to its second meeting with the Committee.

Ms Memme Sejosengwe, Secretary General, Office of the Chief Justice, tendered an apology on behalf of the Secretariat of the JSC: a delegate had been intending to attend this meeting as well, but was taken ill. She noted that the JSC had held its sessions in the previous week and the new suggestions for appointment were submitted by the Chief Justice to the Presidency.

Ms Sejosengwe said that the OCJ was proclaimed on 23 August 2010, and noted that 23 August 2013 – three years later - was the date on which the Superior Courts Act and Constitution 17th Amendment Bill came into operation. There had been a Memorandum of Understanding signed with the Department of Justice and Constitutional Development (DOJ&CD) to transfer administrative support funding relating to the Judicial Service Commission (JSC), the South African Judicial Education Institute (SAJEI), the Supreme Court of Appeal (SCA) and the Constitutional Court (CC). The transfer of the Magistrates Commission and the Rules Board were delayed due to legislative amendments not being completed.

National Treasury, when proposing that the administrative functions be transferred to the OCJ, had also approved the budget programme structure, which covered the High Court, the SAJEI and judges’ salaries, as a direct charge from the National Revenue Fund (NRF). However, once the whole programme structure in OCJ was approved, a full budget vote would be created and the Secretary Genera (SG) would become the Accounting Officer for OCJ. The budget vote could come into effect on 1 April 2014. At this stage, because there was no separate budget, it did not fall under section 5 of the Money Bill Act, and the OCJ was regarded as a sub-programme, under the DOJ&CD for financial purposes, and was included in the Strategic Plan for 2012/13 of the DOJ&CD.

The Constitutional mandate and the implications of the Constitution 17^th Amendment At were briefly described. The mandate was to support the Court, SAJEI and JSC activities.

Ms Sejosengwe then described the budget and expenditure report (see attached slides). There had been under-spending of R16.1 million, which related to the compensation of employees, where there was still filling of posts. A project was scheduled to begin in the second quarter of the year, but showed under-spending due to the fact that it could not start then. There was an amount of R4.5 million that was committee on court library services. There would be three programmes; the one taking charge of judges’ salaries as a direct charge against NRF.

The preparations for the budget vote and strategic plans were outlined. The strategic plan had been drafted in May. The draft plan for approval of the budget structure was completed and the opening of accounts had been completed. The installation of the IT infrastructure was at the stage where implementation could start in November. The transversal systems were created and the State Information Technology Agency (SITA) had been brought on board. The Chief Financial Officer would detail the warrant voucher votes, which would be done once the Vote Number was confirmed. The OCJ was registered with SARS and the necessary pension, compensation and medical aid funds. The Chief Financial Officer had been appointed. The audit and risk committee had called for nominations and relevant people had been identified, awaiting the right stage to finalise this.

She outlined the 2014 to 2017 Medium Term Expenditure Framework (MTEF) budget, which excluded the High Court, but was inclusive of the Superior Courts, on the basis that the High Court would be transferred later to the OCJ. In the previous discussions with the Committee in May, she highlighted that the there was money to be moved to the High Court. There were 222 posts, of which 134 were filled and there were 78 vacancies. At SMS level, 17 posts were filled and 10 were vacant. At lower levels, 117 were filled and 78 were vacant. She said that she would indicate that one of the challenges faced with the filling of posts was linked to the shortages in the budget around office space.

The priorities were then listed. The Judicial-led Courts Administration model had been taken to another level, when the Chief Justice presented the new model to the Minister on 6 October. Ms Sejosengwe had alluded to the security on the budget vote, and said that National Treasury had indicated that it was prepared to grant the budget vote by 1 April 2014. The IT infrastructure would be implemented from November. The judicial headquarters remained a challenge, but the OCJ was liaising with the Department of Public Works (DPW) to look at options. The capacity to fill the current mandate was found; firstly by Department of Public Service and Administration (DPSA) in August, and the forthcoming functions to deal with the High Court transfer.

Ms Sejosengwe indicated that the Chief Justice had a very strong stance on justice modernisation issues, and he had argued that if he had to account for the performance of the courts and some of the functions close to that, the whole system needed to be efficient. The Chief Justice was enjoined to develop norms and standards for the functioning of all courts. Communication and outreach were a priority and it the OCJ was trying to increase the profile of the judiciary. There was only one position dealing with media relations at the moment, but that would have to expand.

The financial priorities were outlined (see attached presentation for full details). The amount of R150 million had been set aside for the future staff complement of 500 people being housed in a new building. The branding, stakeholder relation and outreach activities were important. At the moment, information about the OCJ was still to be found on the DOJ&CD website, and it was necessary to improve outreach and knowledge about the office. A budget for judicial case flow management, of R15 million, was allocated from the DOJ baseline at the moment. Capacitating the OCJ to carry out the new mandates would take R15 million. Court modernization, including e-filing and e-record management were anticipated to cost R18 million. All of these were not currently funded, and so the OCJ would be seeking support from the Committee in due course when it called for a budget.

There had been engagement with National Treasury, via the DOJ&CD, about these budget shortfalls. She pointed out that when the budget was allocated to the OCJ for 2013/14, it was inflation-based and did not consider the year-on-year growth of the mandate, nor support any additional resources. The OCJ had engaged with National Treasury in the last MTEF process, and, quite correctly, the National Treasury had raised the question of the economic climate and said that there should be reprioritisation to fund the shortfalls. National Treasury had wanted the transfer of functions to take place, before considering any additional budget. In that regard, both National Treasury and the Department of Public Service and Administration were offering good support for the management of the transfer, and the DPSA was offering its advice on what had been done in the past to create new departments.

The budget shortfall was, as previously set out, estimated at R66.4 million in the 2013/14 year. Ms Sejosengwe wanted to emphasise that the OCJ’s growth was being hampered by the lack of space to hire more staff; the OCJ was currently occupying three floors of the SAJEI building but that entity was also growing. She thanked the Committee for its support and ensuring that the OCJ would be in a better position to deliver on the mandates.

South African Judicial Education Institute (SAJEI) briefing
Dr Gomolemo Moshoeu, Chief Executive Officer, South African Judicial Education Institute, noted that between July and December 2012, the institute (SAJEI) had trained 506 judicial officers, both judges and magistrates, as well as offering a programme for more advanced justice training. It was unable to introduce more training programmes because it did not have sufficient money. The total budget was R23 million, and of this R18 million went to goods and services, with the remainder on staffing.

There was some strain being experienced by SAJEI in budgeting for appointment of magistrates – although SAJEI knew that appointments were in the offing, it did not know where they would be appointed, nor how many there would be. She had recently been informed that 46 magistrates were making arrangements for month-long training, which was very expensive, and SAJEI did not really have capacity to handle this. In relation to the 506 judicial officers, she noted that the first session had been included training for 28 magistrates who had never before received any training on the Promotion of Access to Information Act (PAIA) whilst the second batch of training, for anther 28, related to PAIA refresher courses for those last trained in 2008. The other areas of training were on Children’s Court judgments and general writing of judgments and ICT, for the DOJ&CD had been rolling out laptops to magistrates across the country and it wanted to ensure that when the judicial officers received those laptops, they would know how to use them. This was coupled with training on how to use Lexis Nexis and the Juta web-services, and SAJEI partnered with those service providers on the training as well.

SAJEI was also embarking on e learning, both because it was cost-effective and to avoid too much disruption of the court rolls.

Dr Moshoeu said that SAJEI had recently been on a tour to look at the kind of facilities in the Justice College, and was sorry to say that SAJEI was nowhere near as organised as yet. The SAJEI needed to have its own fully fledged printing facility to be able to deal with the papers required for training. If there was more money, it would be able to plan the workshops far further in advance, and cover more judicial officers. In August 2012 it had offered a judicial retreat and it was now trying to have a similar pilot project for regional magistrates in Eastern Cape, which then ideally should be rolled out to all parties.

Discussion
Mr J Sibanyoni (ANC) commented that the Chief Justice had recently been honoured by the University of the North West.

Mr Sibanyoni thought, when he had seen the building, that the OCJ was occupying all the space, and he asked if it had considered purchasing its own property, rather than leasing.

The Chairperson clarified that the intention was apparently to build a “judicial headquarters”, which was a good suggestion. Although Department of Public Works (DPW) seemed to prefer to lease, this was hugely problematic. He liked the symbol also behind having a judicial headquarters, to reinforce the perception that the judiciary was truly independent.

The Chairperson commented that many people lacked faith in the DPW and whilst he was not suggesting that the SAJEI would necessarily have bad experiences with DPW around the leases, he was asking that if there were problems, they should be brought to the attention of this Committee sooner, rather than later.

Ms Sejosengwe said that there was regular interface between OCJ and DPW and the Head of the Gauteng Provincial Department of Public Works. The OCJ was exploring the possibility of having a building site allocated on Constitution Hill. The Chief Justice really wanted to promote the idea of a permanent and dedicated “home” for the OCJ. At the moment, OCJ was sharing a building with SAJEI, but it definitely wanted to move away from leasing, but would need dedicate funding for that – hence the request. She would keep the Committee informed of what possible alternatives there were around funding.

Mr Sibanyoni added that he had become lost trying to find his way to the SAJEI Building recently, and neither his taxi driver nor anyone else on the street had any idea of where, on Fox Street, the OCJ was located, and he asked that it should become more visible and have a definite brand.

The Chairperson also thought that the suggestion that the OCJ should have a separate computer server was an excellent suggestion, and really would emphasise the split from the DOJ&CD, especially given the problems around disappearance of court records.

Ms Sejosengwe said that the DOJ&CD was very supportive of the separation of the judiciary, and was giving support to the OCJ in many respects. There was a dedicated IT committee, led by Judge Dunstan Mlambo, Judge-President for Gauteng, that was exploring the de-linking of the server, and infrastructure would be laid from November. The Integrated Justice System (IJS) project had also been brought in to have the dedicated main server, and separate it from the DOJ&CD and she would, later, be able to advise the Committee on the time lines and plans.

Mr Sibanyoni commended the training on ICT for magistrates simultaneously with the rollout of laptops, saying that with the first rollout of laptops, many had been reluctant to use them, because they battled. There were now moves to having a paperless system.

Mr S Swart (ACDP) appreciated that a lot of the work described in this report was interim, and setting up he OCJ, but was looking forward to seeing more good work later, when it moved forward. He looked forward to engagement with the judiciary once a year.

Mr Swart commented that one of the major impacts would be the takeover of 1 494 staff, and this was a massive project involving a R1.3 billion transfer. He asked when the consultation with the unions was likely to be finalised.

Mr Casper Coetzee, Chief Financial Officer, OCJ, said the R1.3 billion transfer would include a transfer of assets as well. A large portion of this was not reflected yet in the budget, and he asked Members to look at slide 11, which was still showing direct charges against the National Revenue Fund, in relation to the judges’ salaries, so this was actually not included as part of the budget programme structure. 

Mr Swart noted that the DOJ&CD and units had been accounting to the Committee over the last week. One of the concerns being raised consistently was the case flow management in the courts, whether the courts were dealing with backlogs, and, again although he appreciated that the OCJ was engaged in interim matters, he would like some indication of the case flow management project at the three courts, which would be rolled out further over time. He noted that the judges would be expected, in future, to take charge of the management of the applications from the start, and it seemed to be helping to deal with case flow and backlogs. There had been other concerns with the drop in court–sitting hours, and whilst the Committee appreciated that there was administrative work for the judges it would have to be addressed. The need for accessible justice was vital to the backbone of the country.

Mr Mervyn Doralingu, Head, Court Services, OCJ, said that a National Case Flow Committee had been set up, headed by the Deputy President of the Supreme Court of Appeal, and there was representation from all high courts on this. After the passing of the necessary legislation the Committee would also include representation from the lower courts, although it must be noted that these already had their own case flow initiatives. The pilot projects were aimed at reducing the backlog of the court cases and it was intended to draw a set of directives aimed at empowering the Registrars to manage cases as they arrived, so that by the time they reached the judge, various shortcuts had been taken and those cases that could have been disposed of at an earlier stage had been properly managed. The judge would take control of the matters, thus, in phase 2. The pilot project had been extended to end July, and the Chief Justice had agreed that two further sites be added to the original three. It was important to look at the different ways to apply case flow management, with a focus on the practice directives. There were some successes in the pilot phase. For instance, three years ago, a person in the Western Cape would have had to wait for three years to get his matter heard, but now it was possible to get an urgent date within three months. The Judge President had also said that, for a very serious case and on a special approach this might even be dropped to a couple of weeks. In Pietermaritzburg and Durban, there were similar successes. ln Durban originally a person could have had to wait between 18 and 36 months to get a trial date, but now this might be obtained within 15 months. In Pietermaritzburg the original delays of two to three years had been cut down to eight months. This project had been rolled out to further sites, including North West, a small site that would provide some useful examples. The plan with the total rollout was to take the lessons, and assess what funding was needed to continue the success. When this was done in the High Courts, the same principles would be documented and applied in the lower courts.

Mr Doralingu noted the problems with the court hours, but said that the Chief Justice had established the National Efficiency Enhancement Committee, bringing together role players in the courts to try to work on an integrated system, to look at performance each player’s performance, and then give guidelines on, for instance, what social services needed to do to avoid wasting time.

Ms Sejosengwe added that the Chief Justice had the responsibility to establish norm and standards and these were being developed as they would have an impact on the case flow. He would also be going to the provinces to decentralise the work. Local case flow management forums were in place and he would be setting up provincial efficiency enhancement committees. The norms and standards would have an impact on the performance and the case flow management.

Mr Swart appreciated what was being done so far around judicial education. He noted that the SAJEI had commented that it did not know how many additional Regional Court magistrates were to be appointed, but said that if the SAJEI sat on the Magistrate’s Commission, it should try to find some way of getting more information and indications of when, and how many, appointments were to be made. Clearly there were financial constraints. Mr Swart was also trying to appreciate the links between Justice College and the SAJEI and asked what had happened to the infrastructure of the Justice College and whether it might not be available for SAJEI use.

Dr Moshoeu said the DOJ&CD would be better placed to say what had happened to Justice College, as she was not sure what it was doing. The SAJEI was currently relying on magistrates and judges to conduct training. It was looking at appointing a judicial educator, having embarked on a process with the Department. There would be draft regulations coming out about the Maintenance Court, still to be discussed by the Council in December. Judicial officers preferred to have judiciary-led training and there were chary of getting in “experts” who may need to appear before them on any matters. She added that training that had been delivered for regional and district courts was coupled with evaluations.

Mr Swart said he has not questioning the quality or capacity, but the infrastructure.

Dr Moshoeu said that this was a problem at the moment as SAJEI was hiring hotel conference rooms. In the new home of the judiciary there would be provisions for proper facilities.

Dr Moshoeu agreed that the legislation did provide for representation on the Magistrates Commission and the OCJ would like to strengthen the relationship.

Mr Swart said that perhaps the Committee could discuss with the DOJ&CD whether the premises of Justice College could be used. He wondered if Justice College was also competing for the same pool of judicial officers who were prepared to lecture.

Dr Moshoeu said that more emphasis was being placed on practical training. The Justice College lecturers had been engaged full-time at the facility for a number of years and had therefore not actually been doing any Bench duties, and the intention was that they should return to the Bench. SAJEI had conducted “Train the Trainer” courses to skill those magistrates who would contribute to training. Justice College former lecturers could be used when available, and if they had practical experience.

Mr Swart noted that there had been a rollover from the last to the present financial year, and wanted to hear more on the concerns around lack of capacity in the future. In the 2012/13 financial year the budget allocation was R126 million, but there was an underspend of R40 million which was rolled over. In 2013/14, however, it seemed that there would be a budget shortfall, and he wanted more clarity on that. From 2014/15 the OCJ would be moved away from DOJ&CD, and get a separate vote allocation, and he wondered if the R1.3 billion would be transferred to OCJ from the DOJ&CD budget vote.

Ms Sejosengwe noted that the three matters falling within the mandate of the OCJ that were catered for in this budget were the SCA, JSC and the reporting. The DOJ&CD was on course with the plan to transfer functions. The Chief Justice and Minister would meet on the final arrangements, and it was to be stressed that it was one matter to take over staff and functions, but the space implications must also be considered. There had been a virtual transfer of the High Courts, but support at regional and national level was needed. Some functions could be shared in the transitional phases in terms of service level agreements. Although there was a plan, she could not share all the details with the Committee because it first had to be engaged upon and approved by the Minister and Chief Justice. The Department of Public Service and Administration had been helpful in drawing a framework for transfer of mandates. The footprint of the OCJ must be finalised.

Mr Swart questioned what the level of staff transfers would be. He appreciated that they would not physically move, but if this was to involve all court managers, right down to clerks of the court, then he wondered what would remain with the DOJ&CD. The main work of the DOJ&CD was running the courts. He knew there was a large complement with 1 500 staff being transferred over time. He wanted to understand the process.

The Chairperson quipped that the Committee had just got used to the way that matters had been run over years, and it took time to appreciate the changes.

Ms Sejosengwe agreed that the details were being worked upon. However, in any high court, any functions closer to the court, such as case management, would move over. There would have to be further discussion on support functions, because the OCJ was not fully capacitated, and this would consider what it was physically possible to handle. The OCJ did not want to take over too much, but only the work, such as the Registrar, that was central to the judicial function of the courts. Section 8 of the Superior Courts Act identified judicial functions. She thought there might be some difficulties in the lower court. The Judge Presidents had coordinating functions over magistrate’s courts. The Chief Justice and magistrates and Judges President would have to decide on the implications. The Chairperson of the Magistrates Commission would be having a session with the Ministers to understand the role of the Judges President. The OCJ did not want to be impractical and ask for a wholesale transfer, but be realistic and essentially transfer the functions supporting the Judges President.

Mr Coetzee tried to explain the way in which the budget was shown on the slides. For 2012/13 there was a rollover. He said that the figure of R126 million was the allocation in the previous financial year, with a sub-programme to OCJ of the R123 million. It had underspent for the reasons explained. The budget slide 19 showed a shortfall. Where funds were available from 2012/13, due to underspending, there would be a transfer to cover shortfalls, although this would clearly not cover the full R66 million described. The OCJ would prioritise, to see what could be funded out of the current baselines.

Ms Pilane-Majake was worried about the projections and questioned the R150 million for the office setup in particular, since the OCJ currently had only 222 of the ideal staff complement of 500. She thought that the estimates were excessive and cautioned that if they were too high now, they could have a knock-on effect on future projections. She agreed that whilst it was important to budget for contingencies, they should not be too high.

Ms Sejosengwe said that the budget was monitored regularly to ensure that shortfalls were not shown where funds were still available. However, when the OCJ was first funded, there were many uncertainties, and it was trying to assess what resources were needed to function optimally. There were other complications by new mandates. She took Ms Pilane-Majake’s point about the danger of over-estimating but said it was trying to ensure that from the start it would have sufficient infrastructure.

Mr Coetzee added that the R150 million for the new office took into account that 500 personnel would be needed to handle the new mandate, and instead of getting smaller space, and adding on or moving, the OCJ wanted to ensure that it did build or purchase something that would be useful for many years. This was only an estimate, however, based on numbers from the DPW.

Ms Pilane-Majake agreed that the technological arrangements were impressive and would help to fast track the training process. This Committee had been trying to focus on the types of judgments being handed down, to try to get a sense of what was happening, but that depended on how quickly the information could be pulled together for analysis. The technology in the courts needed to keep pace with other development.

Ms PIlane-Majake asked for clarity on slide 14, and whether the numbers were added horizontally and vertically as they did not seem to tally.

Mr Coetzee explained that only the three years from 2014/15 onwards were reflected in the totals column, to indicate the budget when the functions were transferred. The R123 million must be excluded as that was not part of the three years MTEF budget. The slide was intended to show the growth against the current financial year.

The Chairperson asked for an indication of the status of curriculum development at SAJEI.

Dr Moshoeu answered that this was work in progress and several teams were working on several areas; one was working on material on immigration and human rights. The SAJEI was working on a judicial needs education assessment to ensure that training was informed by a scientific study and did address the needs.

Adv L Adams (COPE) asked what was happening on the Judicial Administration Bill, which the Chief Justice had alluded to in a speech in April. He had also spoken to the judicial-led court administration model. She asked if the plan was that the Judicial Council would lead the independence, and what purpose the Advisory Board would serve, and whether it would advise the Judicial Council, which would consist of members of different disciplines. Taking into account the concerns about non-judicial training by experts who may later be litigants in a matter before the judges, she pointed out that the same could be said of the Advisory Board.

Ms Sejosengwe said that the creation of the separate administration for the judiciary was the next phase of the process; the model had been submitted to the Minister by the OCJ but there still needed to be engagement on it. The judiciary would sit outside of the public service. She was not sure about the concerns around the Advisory Board and Judicial Council conflict. The Chief Justice and Heads of Courts met on a regular basis and the Judicial Council was really a formalization of that process. The Advisory Board was intended to ensure that there would be external input into the administration of justice, dealing with administrative and governance issues, not cases, as she understood it. However, she repeated that the final model was not available but related to administration outside of the executive.

Mr Doralingu added that the court administration model was the ultimate governance structure when the judiciary was independent. Once that was in place, it would be led by the judiciary. Other roleplayers would also serve on the Advisory Council, such as politicians, lawyers and the public, to give the public perspective outside the judiciary.

Ms Pilane-Majake asked about the National Efficiency Enhancement Committee, noting the mention of involvement of SAPS and Department of Social Development.

Ms Sejosengwe responded that this Committee would comprise the administrative heads of the departments who were most crucial to he functioning of the courts and that would include Department of Social Development, because of the probation role and child witness issues, as well as Departments of Health, Police, Correctional Services and Public Works, who was involved in court facilities.

Mr Swart noted that the OCJ had liaised with the Auditor-General on the budget and urged that from the following year, when the OCJ would be reporting to this Committee as an independent unit, there should be ongoing discussion with the Auditor-General, especially on targets. It would be a poor reflection on the Chief Justice if there were any audit qualifications.

Ms S Shope-Sithole (ANC) was very excited about the new initiatives. She also emphasised the importance o the Audit Committee, which must be given true independence. She believed that any institution – whether a spaza shop or a major department – was only as good as its finances. Without good financial management it would be impossible to reach its targets, and there should be due attention and weight given to the recommendations of the internal audit. The Auditor-General would also be reporting on the relationship that management had with the internal audit and the extent to which its recommendations were carried out.

Ms Pilane-Majake referred to her earlier question about systems, controls and guidelines. It was vital to have proper guidelines that were aligned to all forms of legislation, including employment equity, the Public Finance Management Act, and labour relations. Internal controls were vital when human beings were involved. Accounting Officers should be in a position to say “no” to the executive, if properly supported by policies.

Ms Sejosengwe thanked Members for that advice and said that the Internal Auditor would be appointed in the current month.

The Chairperson said that the OCJ could rely on the support of the Committee and the funding requested would form part of the Budget Review and Recommendations Report, although, tongue in cheek, he could not guarantee that the Committee had quite as supportive a relationship with National Treasury a the OCJ seemed to have. The OCJ delegation left at this point.

Judicial Matters Amendment Bill tagging
The Chairperson reminded Members that the Judicial Matters Amendment Bill (the Bill) had been approved by this Committee and was due for debate in the House on the following Tuesday. However, the Chief Whip had just informed him that the Joint Tagging Mechanism (JTM) was of the opinion that certain clauses made the Bill into a section 76 bill.

The Chairperson said that this intervention had come at a very awkward time. In the future, he would prefer that tagging and other questions be referred formally, in writing, to the Committee, with a specific notification of which clauses were at issue. This morning he had suddenly been called upon to indicate whether it was possible to exclude some clauses from the Bill. He had initially been told that one clause was problematic, only to discover that there were six that might be a problem. It might be possible to split the Bill and debate some clauses on Tuesday, in a section 75 Bill. However, the excised clauses might then have to be included in a new Bill and sent to the provincial legislatures, which was unlikely to happen before next year’s election. It would be a travesty if the whole Bill was reclassified and held over to the following year. For that reason, the Deputy Minister had asked the Committee whether it was prepared to remove the problematic clauses and then pass the remainder of the Bill.

Ms Phumelele Ngema, Parliamentary Legal Adviser, briefed the Committee, noting that there was one crucial clause. This was clause 39, which dealt with the delegation, by the national government, to provincial government of accreditation powers for welfare organisations. It spoke to whether the provinces would have the capacity, in terms of infrastructure and other resources, to deal with accreditation, and thus directly affected the autonomy of the provinces. This clause alone would, in her view, make the Bill a section 76 bill.

She reminded Members of the main questions around tagging. The first was whether a Bill (or clause) would affect the provinces. The second was whether it dealt with a Schedule 4 matter.

In relation to Schedule 4, it was possible to argue that clause 17 could make the Bill a section 76 bill. This clause dealt with the freezing of the trust account of legal practitioners to prevent misappropriation. It might be argued that this dealt with trade issues, alternatively that the intention to protect the public was a consumer protection issue, which fell under Schedule 4.

In respect of the four other clauses noted on her opinion, there were arguments that could be raised either way. It was possible that if these two clauses were removed, the Bill might be able to remain as a section 75 bill.

Mr Swart shared the concerns of the Chairperson about the manner in which this had been raised, only two days before the debate. He noted that a letter had been written by Ms Ngema to the JTC in May, about the tagging, but the Committee was only informed of it now, and he had understood that the Department of Justice and Constitutional Development and the Office of the Chief State Law Adviser had differed on the tagging. He asked when exactly these problems had been raised, and why the Committee was today being faced with a request to take a very far-reaching decision urgently. The Department was not even present to brief the Committee on the implications. He inclined to the view to take out the problematic clauses to get the rest of the legislation passed in time. However, he warned that he was not sure which of the clauses in the Bill was drafted to answer the Constitutional Court requirement to amend legislation, whether there was a time limit on that, and what the effect would be. He asked what the four other clauses said, since none of the Members present had their Bills with them today. He would be cautious of including any clauses that were debatable and could make the tagging incorrect, particularly if the matter was referred back to Parliament.

Ms Ngema wanted to apologise that her opinion to the JTM was only provided to Members this morning; she had printed it out when she was asked by the Committee to come and give her views. She had thought that this letter of May would have been referred to the Committee when the Bill was referred. There had obviously been a breakdown in communication and she would look at whether there could be better communication from the side of her own office. She had tried to call for a discussion with the Chairperson on this tagging, following the set protocols, but somehow this had never materialised.

Mr Swart said that no blame seemed to attach to Ms Ngema, and indeed the Chairperson had said he was not seeking to apportion blame, but trying to look at the process. In future, he would strongly suggest that the opinions of the Parliamentary Legal Advisers should be provided to the Committee by the JTM when it provided the tagging decision. He would see nothing incorrect in this. In fact, where the breakdown in communication occurred was that the JTM had initially disagreed with Ms Ngema, had classified the Bill as a section 75 bill, and was now seeking to reverse that. Ms Ngema’s argument on the tagging was compelling and the Committee was now facing a dilemma.

Ms Adams asked if the debate would still proceed on Tuesday.

The Chairperson said that he had indicated to the Chief Whip that there was possibly still time to finalise this today, but at that time he had thought that the problem lay only with clause 39, and had suggested that this clause be excised and put into a separate bill.

Ms Adams pointed out that the opinion also referred to clauses 17, 36, 42, 43 and 46. She was not sure as yet how compelling the legal arguments on those were, but thought that Members needed time to look into and discuss that point.

The Chairperson asked the Committee Secretary, Mr Ramaano, to check with the legal advisers whether the Committee would be procedurally correct if it acted on this today, and whether there was likely to be a challenge if the two most contentious clauses were removed.

Ms Shope-Sithole suggested that perhaps another discussion was needed with the Chief Whip, to enlighten him that it was not only one clause that was problematic.

Ms Pilane-Majake was reluctant to continue with the debate on Tuesday, as a number of points required clarify. She was concerned about the administrative problems, and the Committee, as a separate issue, must consider how to address those for the future. The tagging must be clearly marked on any bill. This was a frustration and waste of time.

Mr Swart agreed that it would be better not to proceed on Tuesday, although the Bill did need to be passed quickly. He proposed that Members mandate the Chairperson to have another discussion with the Chief Whip, and asked that the Committee Researcher prepare a very short paper outlining what the six clauses contained, and what the implications of their removal might be. The Chief Whip would then have to be asked to make another date available to pass the Bill. He emphasised that the Judicial Matters Amendment Bill, by its very nature, was important for the whole sector, but such bills were often subject to litigation.

The Chairperson summarised that the other four clauses dealt with the Child Justice Act, including child welfare matters (a provincial competence), and clauses 42 and 43 dealt with sentencing.

Mr Swart confirmed that these were then the clauses which were being changed in line with the Constitutional Court decision, and it was necessary to check the time lines for that. The Committee was caught between a rock and a hard place.

The Chairperson said that clause 46 dealt with the evaluation of the criminal capacity of a child; he was not sure how this could be a provincial competency, but would look to the opinion.

Mr Swart agreed that many of these were grey areas, but it was better to err on the side of caution.

Ms Ngema confirmed that the Rules would allow the Committee to split the Bill, or simply excise some clauses. If they were to be removed, that was quite easy, because all that would then be required would be a re-classification of the Bill by the JTM. However, a splitting involved two processes; firstly the request to and approval by the House for the split, and then a reclassification by the JTM. She would need an indication of which route was to be followed.

The Chairperson said that in that case, and given the uncertainty of when the JTM might make a decision, the debate on Tuesday was out of the question. The Committee would look at the matter again once it had the Committee Researcher’s opinion. He was not in favour of the option of having the Bill approved and allowing the House to refer it back.

The Chairperson summarised that in the following week, the Committee would deal with the Budgetary Review and Recommendation Report (BRRR) and outstanding legislation.

The meeting was adjourned.