Office of Chief Justice on its 2015/16 Annual Performance & on Strategic Plans

Meeting report

The Office of the Chief Justice presentation was led by the Secretary-General Ms Memme Sejonsengwe who was assisted by a high level delegation from her Department. In opening remarks Ms Sejonsengwe said it was the Department’s first year and today marked 21 days as a full Department with its budget vote.

The presentation outlined the mandate, structure, staff complement, compliance with National Treasury regulations, an overview of the budget and the targets for its three programmes and sub-programmes.

The OCJ had an approved budget of R1.6 billion for 2015/16 with a 13% year on year increase. The total approved budget from 2014/15 through to 2017/18 was R5.1 billion.

Allocations per programme for 2015/16 were:
-          Administration, R69.4 million;
-          Judicial support and court administration, R640 million;
-          Judicial education and research, R32.6 million; and
-          Judges remuneration, a direct charge, R843.7 million.
There was a total unfunded mandate of R100.7 million with a shortfall of R75.7 million.

It was emphasised under Programme 3 that the South African Judicial Education Institute did not have sufficient funds to train all the newly appointed magistrates. The envisaged date for the appointment of 157 district court magistrates according to the Magistrates Commission was 1 February 2016.

Key risks associated with the strategic plan were:
Programme 1: Administration
-          Inadequate capacity to optimally operationalise the OCJ under the new Superior Courts Act. Mitigation intervention included exploring donor funding; continuing to pursue Treasury to relook at unfunded mandates and recruiting skilled and technical people.

Programme 2: Judicial support and court administration
-          Transitional challenges from the transfer of functions from the DOJ&CD to the OCJ and inadequate systems to measure court performance.

Mitigation intervention meant ongoing stakeholder engagement to ensure a phased-in approach and adequate control measures. The superior court performance would also be enhanced.

Programme 3: Judicial education and research
-          Inadequate capacity to provide training to judicial officers.

Mitigation intervention: to develop an e-learning system and partner with relevant stakeholders.

Discussion
Mr M Motshekga (ANC) said the Committee had had a meeting with Chief Justice. A report was still to be tabled but it came out during the discussion that the finalisation of Traditional Courts Bill would relieve the judiciary of its burden. In the presentation there was no mention of this especially in relation to the South African Judiciary Education Institute (SAJEI)? Was that Institute not meant to train the administrators of the traditional courts? If not, where were they trained? If provision was not made for them, did it not suggest that traditional justice was not put on the same level and was not accorded the same status as Roman Dutch Law and English Common Law?

He was concerned that the enactment of the Superior Courts Bill was part of the transformation of judiciary that had been called for years but the Department was begging for resources to implement it. It appeared that the OCJ was thinking of approaching donor funding. Did that mean that those who were calling for transformation were not serious about it?

Ms Sejosengwe confirmed that the training of the traditional courts officers was part of SAJEI. There was a limitation with resources. The Department had engaged National Treasury. Before the budget vote was given and before the transfer took place, Treasury had argued that the transfer should take place and then it would see if there was additional funding. It was still not known if that would be forthcoming. It was a fact that not even the Department of Justice had the money to implement the Superior Courts Act because it was never in its baseline.

Mr Motshekga emphasised that if the Department had to go cap in hand for funding then it seemed that transformation was not a serious matter.

Chief Executive Officer of the SAJEI, Dr Gomolemo Moshoeu, said in the 2013/2014 financial year the Institute ran a pilot project on traditional skills for traditional leaders starting in Limpopo. In the last financial year five workshops were conducted in six provinces. Funding was an issue and the Department of Traditional Affairs (DTA) was consulted. It was suggested that SAJEI provide the facilitators and DTA would provide the logistical support.  It was hoped that would take place soon. In the last week the Department of Cooperative Governance and Traditional Affairs in KwaZulu-Natal and Mpumalanga had contacted the SAJEI to notify it that it had arranged the logistics. The SAJEI had to provide the facilitators and the material.

Mr Motshekga asked what the content of the training was because universities did not teach indigenous African law. Where did the facilitators get their content.

Dr Moshoeu said she would provide that information but as a matter of interest before training started in a province there was consultation with traditional leaders who vocalised their needs. There were some senior magistrates who came from traditional leadership and could facilitate training.

Ms M Mothapo (ANC) also asked for a report on the content of the training. There was proposal of training workshops with the Houses of Traditional Leaders in 2011 or 2012. Unfortunately that programme did not speak to what was happening in the day-to-day operations of traditional courts. It would be better if an inclusionary programme of training was set. It was assumed that the argument would be funding required to reach a lot of the stakeholders. She was also concerned that the focus was mainly on males so there was an indirect discrimination of women. She was also scared about donor funding and whether it would somehow compromise the independence and impartiality of the Judiciary. Donor funding? I fear that it may somehow compromise the independence and the impartiality of the judiciary. Could the issue of donor funding be unpacked?

Ms Mothapo noted that in terms of specialised courts; the Land Court was moving at a slow pace in the adjudication of land claims. Land invasion especially in rural areas was taking place at a fast pace. The municipalities were not able to do anything about it. Some political parties were taking advantage of that. It was taking eight to ten years to finalise cases. The presentation said this would be increased to 52% but nothing was happening at grassroots level.

Ms Mothapo said the Secretary-General had said that the Office was temporarily accommodated. Was it a government building? Where they paying rent and if so how much was it.

Mr Motshekga said the intention was to create one country and not go back to Bantustans. There were different languages but the substance of the law was the same. Why was there no effort as the Institute to engage and dialogue what the commonalities were and create a curriculum. The differences were in customs but the expectation was not to teach customs but African law. If there were pilots but financial constraints then how long was it going to take? The approach left much to be desired. It was however unfair to ask the SAJEI to deal with the matter because CoGTA had to transform the traditional councils in terms of discrimination of women.
 
Mr Motshekga said the Department of Rural Development relied on the land courts. The courts were as good as dysfunctional and constitutionality was challenged. Why was the OCJ silent on that? If the courts did not function then hooligans and anarchists had an excuse to invade land. What were the challenges?
 
Mr S Swart (ACDP) congratulated the OCJ on its first budget. Even though the previous budget was not drafted by the OCJ when one looked at the budget given to specialised courts, R39.8 million which was going up to R41.9 million, it was a nominal increase. It was a concern against what the other Members had said about the funds allocated to the specialised courts. How was the decision taken on the allocations to specialised courts? The Constitutional Court was given an extra R10 million, specialised courts only R2 million and the Supreme Court of appeals R500,000. Could an explanation be given?
 
Dr Moshoeu noted the concerns about the curriculum development and the transformation of the traditional councils. She would be in contact with the Department of Justice and the Office of Chief Justice regarding the compilation of a report.
 
Ms Sejonsengwe noted comments on the discrimination aspects raised and would share these with the Chief Justice. As the administrators they were also mindful of donor funding. What they were looking at were issues related to systems and aspects not too close to judicial operations. There was no donor funding as yet. One example where it might be used was in court monitoring tools.
 
She noted the concern over the slow processing of land claims. She would escalate this and have a discussion with the head of these courts over performance but it was a matter the OCJ would also have to address as it was a policy aspect.
 
In terms of accommodation, they were renting about 3000 square metres. There was not appropriate accommodation for all officials. The renting cost was R3.35 million. The OCJ was looking to increase that space to 5000 square metres which would be R7.5 million.
 
On funding to courts, Ms Sejonsengwe said the budget of the superior courts was transferred from the baselines just as they were. The decision to increase was based on the Medium Term Expenditure Framework. There was not necessarily a process of looking at what each court required. The superior courts had always been underfunded.
 
Chief Financial Officer Mr Cassie Coetzer said the baselines that were approved in the 2014/15 MTEF was transferred by the National Treasury. The OCJ did not have an opportunity to make any additional inputs. Treasury had indicated that the transfer had to be completed first.
 
He also responded to the R10 million increase for the Constitutional Court. One of the reasons as indicated in the presentation, was that the unit dealing with judicial support budget, which dealt with judges’ remuneration and salaries had been transferred from the DOJ to the OCJ. The allocation of that unit’s budget had been slotted into a sub-programme under the Constitutional Court allocation. It may look like the budget had increased but it was literally a whole unit that had been transferred.
 
Acting head of Judicial Policy and Research in the Judicial Services Commission Mr Sello Chiloane confirmed that there was Constitutional challenge with the Restitution of Land Rights Amendment Act. It was before the Constitutional Court so there was not much the OCJ could say about it. But the challenge was about how the legislation was dealt with by Parliament. Chances were the legal advisers in Parliament would have to do something about that.
  
Mr Motshekga said it was problematic that the Committee should be asking questions about what was happening. It should be informed.
 
Mr Swart said it was something that had to be looked at. When there was a matter before the Constitutional Court that related to Parliament it should be brought to the attention of the Speaker. For example the Sexual Offences Act which was shot down by the Constitutional Court. It took the executive almost 12 months to get to Parliament and this had meant that Parliament had to ask for an extension. Was there a mechanism that could have avoided this?
 
Mr Motshekga said the Committee was not saying that the Constitutional Court had to account to Parliament but that the Department needed to inform Parliament about what was happening.
 
Mr Chiloane said when papers were lodged, the line departments that were responsible for that legislation were being served the papers. His understanding was that the legal advisers in Parliament should be aware. Maybe there could be a mechanisms to relate what was happening.
 
Ms G Breytenbach (DA) was not entirely covered by the reply on donor funding. It was disconcerting.
She also asked the percentage for disclosure of judges. Currently Judge Harmse was litigating in that regard. How far had that progressed and what would the impact on the figures be.
 
Ms Sejonsengwe  said she would undertake to reconsider the issue of donor funding. The OCJ take its guidance on how best to manage the financial constraints.

On the litigation, she said the OCJ would abide by the decision of the court. She explained that the issue was about when a judge was required to disclose. There were two categories: serving judges and retired judges.

Mr Pat Gagai, the Registrar of Judges’ Interests said the regulations that came into place in February 2014 categorised judges in to two groups. In judges discharged from active service there were more categories. After a judge was discharged from active service after the age 65 and who had served on the bench for 15 years. If they were discharged without a requirement to fulfill additional service. A judge who was discharged after 70, he or she would be required in terms of the Act to perform addition services for three months per year. Those judges would have to disclose their interests while judges who retired after 65 years would not. Judge Harmse challenged that law and said there was discrimination, it was irrational and unconstitutional. About three weeks ago the High Court ruled in Judge Hermes’s favour and issued an order declaring that section of the Act as unconstitutional. The consequence of that was that all retired judges were not required to disclose their interests. However, if a retired judge was asked to perform a service a party could make a request in Chambers for that judge to disclose he or her interest. Active judges were required to disclose their interests in March every year.

Ms C Pilane-Majake said she felt like what was being said was that the judgment reversed what was supposed to be part of the register of interests of judges. It was supposed to be inclusive of retired judges. The argument that retired judges could still be called upon to serve; it sounded like they were no longer going to have to declare.

Mr Gagai said the impact was that active judges were required in March every year to disclose their interests. It was only if a retired judge was called to serve in a court or commission then, if they were requested through the head of court to disclose, then they would have to disclose their interests.

Ms Pilane-Majake said she was not completely covered in terms of the response. Judges had expressed concern about retired judges disclosing and a lot of debate had taken place. It was worrying that a case was sent to court and the arrangement was reversed. It was something that had to be looked at.

Mr Motshekga said disclosure was intended to prevent a conflict of interest. He personally felt the position should stay the same.

Mr L Mpumlwana (ANC) light heartedly commented that the judge who gave judgment had a vested interest.

Mr Swart said when the Committee met with the Chief Justice in Johannesburg there seemed to be a difference of opinion between him and the Minister. Did he misconstrue that? If there was a difference of opinion in the interpretation of the Superior Courts Act and there was not sufficient funds being given from the executive side then there could be a problem. He was not saying there was tension but there seemed to be a difference of opinion.

Mr Motshekga said the Chief Justice had given a factual report of the situation. To be fair the report should be tabled and then discussed. It would be premature to say there was a difference of opinion.

Mr Swart said there was a need that when legislation was passed it had to be costed. He did agree there was an incremental approach and there were budgetary constraints and the OCJ had his sympathy but could it comment on when parliament would see the Superior Courts Act.

He asked about the staff complement. There were 1766 posts, of which 324 were vacant and unfunded. Could Parliament expect the OCJ to do its work? The OCJ was doing a remarkable job  but clearly there was going to be a teething process and Parliament would have to help the OCJ along.

Thirdly, he asked about the targets. Would it not be possible to give figures rather than percentages? It would concretise the backlogs and the improvements.

He said the shortfall of R75 million. That was why he had asked about the allocations to specialised courts. If the Minister had engaged with the Minister of Finance, then perhaps the Minister of Justice and Correctional Services could fill the Committee in on those discussions.

Mr Motshekga said on oversight visits, what right did the Committee have to say they were not performing when Members knew they did not have the resources? The Committee had to deal with the matter and if need be see to it that the Department and Treasury deal with the matter.

Mr M Maila (ANC) commended the OCJ on its first budget and for being tempted to use consultants.

Mr Mpumlwana asked how judges had transformed. In the past judges were deliberately used by the government to promote a particular policy.

More white people had been appointed since 1994. Could the OCJ comment on that?

Mr Motshekga said it was not fair to ask the OCJ to comment on judges’ transformation.

Mr Mpumlwana withdrew his question.

Mr Motshekga said it had been agreed that the judges who were there were the right men and women. They had not been disappointed. With resources they could do even better.

He was also disappointed by the situation at the land claims courts.

Mr Mpumlwana asked if the increased space from 3000 to 5000 square metres was at the same premises. This was raised because when the Committee had visited the current premises they were not the best at all.

Ms Pilane-Majake asked the CFOs from the OCJ and the Department of Justice, who was present, how they were going to create a balancing act between austerity measures and their wish list.

Mr Motshekga said it was not a question of austerity measures as the OCJ was a new Department. Perhaps the Committee should be asking what it needed to function.

Mr Coetzer said in terms of the agreements between the OCJ and DOJ in the national steering committee, shared services had been recognised where resources were lacking. For example some personnel  at the regional provincial offices of the DOJ would still assist the OCJ over the teething period. This was also happening at the National level. There was also an agreement that as and when the OCJ moved forward, where areas were identified that were under-resourced then the DOJ and the OCJ would jointly approach Treasury.

The Department of Justice CFO Ms Lorraine Rossouw said there had to be an understanding of the circumstances. In the DOJ it re-prioritised. The DOJ had started to think about things differently to see where it could deal with systems and processes more efficiently. She said there had been an increase in the OCJ budget of 13%. The DOJ budget was increased by only 4.99%. From this it could be seen that DOJ gave to them more than what they had. All the costs measurement measures had been absorbed by the DOJ. There was still manoeuvrability for the OCJ. It may also have to look at how things could be done differently. The DOJ was very aware that in some instances the OCJ would need funding particularly in the state of the courts infrastructure. The Minister was in discussions with the Treasury and the Minster of Public Works in that regard.

Ms Sejonsengwe  replied that the 324 vacancies remained unfunded. It was not fair to expect justice to fund the 324 posts.

She said the Superior Courts Act was never funded by Justice. The Minister had indicated that she would be meeting with the Minister of Finance over funding for courts and the OCJ.

She replied to Mr Swart that in some instances percentages were used when they could not anticipate the load of cases that would be coming but she agreed that in areas where figures could be given they would in the future.

She welcomed the request for the OCJ to draft a proper plan on what was required for it to become fully functional.

The meeting was adjourned.