The Office of the Chief Justice briefed the Committee on its maiden year which was the first year of a separate budget vote after its administration was separated from the Department of Justice (DOJ) and the Superior Courts were transferred to it. OCJ’s achievements and challenges were presented:
On its pre-determined objectives, the OCJ had 35 planned targets and 26 of those were achieved (74%). Targets achieved for each of its three programmes were: Administration (71%); Judicial Support and Court Administration (83%), Judicial Education, Policy and Research (33%).
Key achievements for Programme 1 included tabling its Annual Performance Plan, training 165 of its officials, conducting ten internal audit reviews and four risk assessments, ensured their EXCO held its ten planned meetings, developed the ICT Master System Plan, 12 financial performance reports were produced in line with the PFMA, verified 100% of their assets and moving into the OCJ new office in May 2016.
Challenges were not filling critical funded posts; received invoices not all paid within 30 days, and reported fraud cases not all investigated within 60 days.
Programme 2 Judicial Support and Court Administration has six sub-programmes: Administration of Superior Courts, Judicial Service Commission, Constitutional Court, Supreme Court of Appeal, High Courts and Specialised High Courts:
- 72% of reserved judgments were finalised against the target of 70%.
- 83% of SCA cases were finalised against the target of 80%.
- Registrars granted 70% of default judgments against the planned 55%.
- Criminal cases were reduced in terms of the backlog roll from 281 to 137 against a target of 206.
- 63% of civil cases at the High Courts were finalised against a target of 52%.
- 58% of Labour Court cases were finalised against a target of 52%
- 52% of land claims were finalised as planned and on target.
- In the electoral and competition appeals court 100% of the cases were finalised.
The Constitutional Court did not achieve its target of 80% but achieved 75% which was made up of 230 of 308 cases. This was the case despite the management measures put in place by the Chief Justice. The complex nature of the cases compounded by the fact that each application has to be dealt with by all 11 Justices of the Court and in addition the extension of the jurisdiction plays a role in increasing the workload of this Court.
Criminal cases finalised with verdicts had a baseline of 60% and the annual target was 62%. An under achievement of 26% resulted as cases were postponed for various reasons due to the many stakeholders involved in the criminal justice system. Backup cases were allocated in the event that the primary cases did not proceed, resulting in an inflation of daily court roll allocations, which resulted in a low finalisation percentage.
Programme 3: Judicial Education and Research had two sub- programmes: South African Judicial Education Institute, did not achieve its target. This was due to some courses being postponed due to non-finalisation of PAJA rules as well as lack of dedicated judicial educators. Judicial Policy and Research achieved 50% of its targets. Its disclosures for the Judges Registrable Interests achieved 99.6% instead of 100% and the non-compliance was reported to the Judicial Services Commission.
The OCJ had a total budget of R1 657 billion, of which R873.7 million was allocated for judges salaries which is a direct charge and R783.3 million was allocated for its operations which is the voted funds. It spent 99.9% of its R1.6 billion 2015/16 budget. All 12 financial performance reports were produced in line with PFMA. OCJ verified 100% of their assets and it acquired the OCJ accommodation as planned. It obtained an unqualified audit opinion with findings. The audit findings included the technical indicator descriptions (TIDs) and this has since been corrected in the 2016/17 Annual Performance Plan (APP) and a KPI has also been included that deals with how OCJ manages the reduction of audit findings. The OCJ has put in place and internal audit facilitation team to monitor progress on the audit action plan. There is an Operations Committee of Directors responsible for operation efficiency to monitor progress.
The Committee welcomed the presentation and congratulated the OCJ on the unqualified audit. There was room for improvement but the direction the OCJ had taken was good. Members pointed out that there was an indication of targets not met, and asked whether there were consequences for the under achievement. They further experessed concern about the high vacany rate, the demographic composition of the Land Claims Court, the non disclosure of interests by some judges, the allegation of judges receiving money for favours and the increase in the backlog of lower court cases. Other noteworthy questions related to pending legislation and the court modernisation project. A member suggested that a review of the bail system was needed. It should be reserved for special cases where the accused is deemed to be an immediate threat to the state and community. Another recommended that South Africa needs to move away from the traditional model where budget allocation is dependent on the Ministry of Justice and to a more relevant model where budget allocation is determined by the JSC. As part of the broader transformation discussion, Members advised that people should be taught about the indigenous African law and that judicial officers should learn indigenous languages.
The Office of Chief Justice 1 Quarter 2016/17 performance overview showed 18 targets were planned and 14 were achieved (78%). OCJ elaborated on the performance per programme. Challenges were filling funded vacant post; inadequate internal controls, Programme 1 had nine targets, six of them were achieved. Challenges were funded vacant post filling reported fraud cases investigated within 60 days; warrants of release delivered within one day of release granted. Programme 2 statistical information on cases finalised was provided. OCJ said the number of High Court cases on the roll for more than 12 months is an annual target and therefore not applicable in Quarter 1. The reasons for the underspending in the three programmes were explained. To address the challenges of the first quarter, OCJ has put into place control measures to ensure improved performance and effective administrative support. Human resources capacity was a challenge which contributed to non achievement of some of the planned quarterly targets. All funded vacant positions will be filled as a matter of urgency and the next quarter would show improvements.
Members noted that the OCJ had inadequate internal controls which are impacting on the performance internally. They expressed concern about the backlog in the number of criminal cases finalised with a verdict. They questioned the OCJ about vacancies as well as the decision to rent office space, and if this was in line with the Public Finance Management Act.
The Office of the Chief Justice (OCJ) delegation included Ms Memme Sejosengwe, Secretary General: OCJ, Dr Gomoleno Moshoeu, CEO at South African Judicial Education Institute: OCJ; Mr Nathi Mncube, Chief Director: Court Administration: OCJ, Mr Itumeleng Malao, Director of Monitoring and Evaluation: OCJ and Mr Casper Coetzer, Chief Financial Officer: OCJ.
Ms Memme Sejosengwe, Secretary General: OCJ, reported the maiden year of 2015/16 was the first year of the vote of the Office of the Chief Justice(OCJ) after its exit from the Department of Justice (DOJ) close after the Superior Courts were transferred to it. She gave an overview of OCJ achievements and challenges:
The OCJ achieved an unqualified audit opinion. In terms of the pre-determined objectives, the OCJ had 35 planned targets and 26 of those were achieved, which translates to a 74% achievement. Targets achieved for each of its three programmes were: Administration (71%); Judicial Support and Court Administration (83%), Judicial Education, Policy and Research (33%).
Key achievements for Programme 1: OCJ successfully finalised and tabled in accordance to the rules, the APP 2016/17. OCJ planned to train 150 officials and exceeded the target by 15. As planned OCJ conducted ten internal audit reviews and four risk assessments. In terms of their governance, they ensured their EXCO held the ten meetings that were planned for the year. They developed and approved the ICT Masters System Plan. All 12 financial performance reports were produced in line with PFMA. OCJ verified 100% of their assets and acquired the OCJ accommodation as planned and took occupation in May 2016.
Key achievements for Programme 2
72% of reserved judgments were finalised against the target of 70%.
83% of SCA cases were finalised against the target of 80%.
Registrars granted 70% of default judgments against the planned 55%.
Taxations were finalised and 84% was achieved against the target of 65%.
OCJ developed and planned the Customer Service Improvement tool and piloted it in six Superior Courts.
Criminal cases were reduced in terms of the backlog roll from 281 to 137 against a target of 206.
63% of civil cases at the High Courts were finalised against a target of 52%.
58% of Labour Court cases were finalised against a target of 52%
52% of land claims were finalised as planned and on target.
In the electoral and competition appeals court 100% of the cases were finalised.
Key achievements for Programme 3
The five sub-programmes achievement on targets were:
- Management (100%),
- Corporate Services (57%: On identified critical funded posts filled, 159 of 280 posts were filled. The reason is because of inadequate office space at the previous national office and the delayed relocation to the new office and the lack of human resource capacity at provincial service centres to handle the recruitment processes. There are intervention plans to move forward with this. Communication activities in line with the communication strategy was also under target as OCJ was running a Communication Unit with inadequate capacity for that period with only one person and recruitment was still in process),
- Finance Administration (67%: One of three targets was not achieved: Received invoices paid within 30 days. The reason for the deviation was the unavailability of the transversal systems to effect payments during the first two months of the financial year, this is a problem due to the transfer of functions from DOJ&CD to the OCJ. The lack of human resources also played a role in the Finance Unit’s inability to process invoices, especially those coming from the courts.),
- Internal Audit and Risk Management Services (67%: One of three targets was not achieved: Reported fraud cases investigated within 60 days. It was attained for 20 of 33 cases. The challenge was due to the unavailability of suspects and witnesses to conduct interviews within the prescribed period. The OCJ is attending to this area.)
- Office Accommodation (100%).
Programme 2 Judicial Support and Court Administration
The six sub-programmes achievement on targets were:
- Administration of Superior Courts (83%: The number of monitoring reports on Judicial Norms and Standards was under achieved. During the first six months, the unit assessed the tools to monitor the norms and standards. Due to inadequate resources, the Unit could only produce some of the norms and standards reports and these reports were on reserved judgments and criminal civil cases),
- Judicial Service Commission (100%),
- Constitutional Court (75%: It did not achieve its target of 80% but achieved 75% which was 230 of 308 cases. This was the case despite the management measures put in place by the Chief Justice. The complex nature of the cases compounded by the fact that each application has to be dealt with by all 11 Justices of the Court and in addition the extension of jurisdiction plays a role in increasing the Court workload),
- Supreme Court of Appeal (100%)
- High Courts (75%: Criminal cases finalised with verdicts had a baseline of 60% and the annual target was 62% but it achieved 36% of its 904 of 2 524 case target. Cases were postponed for various reasons due to the many stakeholders involved in the criminal justice system. Backup cases were allocated in the event that the primary cases did not proceed, resulting in an inflation of daily court roll allocations, which resulted in a low finalisation percentage. Targets for finalising civil cases and reserved judgments were achieved).
- Specialised High Courts: Labour Courts, Land Claims Court, Electoral and Competition Appeal Courts (100%: all targets were achieved and exceeded respectively by 6%,10% and 28%.)
Programme 3 Judicial Education and Research
The two sub-programmes achievement on targets were:
- South African Judicial Education Institute (SAJEI) did not achieve the target (59% instead of 65%). This was due to some courses being postponed due to non-finalisation of PAJA rules as well as lack of dedicated judicial educators.
- Judicial Policy and Research achieved 50% of the targets: Disclosures for the Judges Registrable Interests achieved 99.6% instead of 100% and the non-compliance was reported to the Judicial Services Commission.
The OCJ had a total budget of R1 657 billion, of which R873.7 million was allocated for judges salaries which is a direct charge and R783.3 million was allocated for its operations which is the voted funds. It spent 99.9% of its R1.6 billion 2015/16 budget. A breakdown per programme was provided.
It obtained an unqualified audit opinion with findings. The audit findings included the technical indicator descriptions (TIDs). This has since been corrected in the 2016/17 Annual Performance Plan (APP) and a KPI has also been that deals with how OCJ manages the reduction of audit findings. The OCJ and EXCO have put in place and internal audit facilitation team to monitor progress on the management audit action plan. There is an Operations Committee of Directors responsible for Operation Efficiency to monitor progress. There is monthly reconciliation reporting on the findings relating to leave entitlement and leave commitments.
On the 30-day payment of invoices, OCJ have put in place a register which is fully implemented and operational to monitor the 30 day payments, especially those that come from courts. An HR plan is in place, to address the delays in the filling of funded posts which is monitored on a monthly basis.
Dr M Motshekga (ANC) stated that he is pleased to see that the judiciary has begun to police itself. He commented on the report stating that there is a judge who failed to disclose his interest. Which is a good indication that the judiciary will not tolerate corruption within its ranks because If there is a trust deficit in the judiciary, it will not only tarnish the image of the courts but also delegitimize the system itself. Thus the Committee is happy that what is required of the rest of society is also required of the judiciary itself.
He asked how the OCJ determined their programmes and stated that there should be a programme four titled Legal Transformation which would include indigenisation of the legal system, of the curriculum to mainstream African jurisprudence and languages, and recognition of indigenous languages and law in courts. At the moment the judicial system is suffering from backlogs, which are not of its creation and the judiciary is forced to deal with petty crimes which could be dealt with by community, traditional courts and advice offices. So unless these other subsidiary structures are introduced, the image of the judiciary is going to suffer. However, he is happy that the Chief Justice is aware of these impediments which must be addressed.
Dr Motshekga pointed to another challenge for the judiciary which is the Land Claims Court. The demographic composition of that Court leaves much to be desired and the fact that judges in that Court are not full time and there is the also the question that the Constitution rightly gives more protection to accused persons which is the legacy of the world experience of the Nazis model systems. South Africa should not be expected to administer systems like the Nazis do but in his view that cannot be done at the expense of the fundamental rights of the people. The reason we have more accused criminals before the Courts is due to the socio economic conditions of the country. If resources are made available to criminals but we forget that these criminals are produced by the socio economic conditions which are the legacy of land dispossession. South Africa is missing the boat and will not be able to fully dispense justice without addressing these socio economic conditions. Justice is not just about protecting the accused persons, it is also about protecting and ensuring that the people as a whole access basic human rights. The triple challenge of unemployment, poverty and inequalities also arise from these inequalities and therefore crime will continue to increase unless these are addressed. This arises because the judiciary has a responsibility to transform the Land Claims Court and ensure that these claims are processed swiftly to ensure a better life for all our people.
Dr Motshekga stated that when the OCJ returns, he hopes a programme four exists. Which deals with the transformation of the legal system and the issues that were raised will be engaged but also that as part of this legal education, South Africa has to make sure that people are taught about the indigenous African law and that judicial officers also learn indigenous languages.
Ms M Mothapo (ANC) expressed how pleased she was with the performance of the OCJ and was especially impressed considering that they are a fairly new department. That last year when they appeared before the Committee, due to financial constraints things were not in place She was pleased that OCJ got an unqualified opinion with findings and that the presentation addressed and outlined those findings. That they managed to spend 99.9% of that R1.67 billion budget is commendable and more specially that the department is run by a woman.
She noted Programme 3 achieved 33% of its targets. When one looks at that line, the OCJ only had R33 million of R1.657 billion. It is too little and needs a thorough consideration. Regarding the training of traditional leaders, the manual used is impressive because the things in the manual were based on custom and tradition. The trainers of the esteemed judges over-emphasised the issue of custom and tradition.
Ms Mothapo expressed concern around personnel, the vacancy rate is very high in terms of the DPSA standard; something needs to be done. The unemployment rate is far too high to have such a high vacancy rate. She asked on the progress of the Mpumalanga High Court because there have been challenges with access to the court. When does the Limpopo High Court open?
She expressed her disturbance at the utterances by Judge President Mlambo on 29 September 2016 who said some judges have at some point taken money for favours as the OCJ and head of judiciary. What actions were taken? Did the head of judiciary manage to contact the judge president and address this?
On the non disclosure of interests by some judges, judges need to comply with legislation. What action is the head of judiciary taking to address this?
Dr Motshekga commented that judges receiving money for favours is a very serious matter because this Committee has the responsibility to protect the image of the judiciary and it does not want to find itself in a situation where it begins to question the conduct of judges. The Committee calls on the judiciary to address this matter immediately to the satisfaction of this Committee and public. He said this should not be interpreted as the Committee attacking the judiciary.
Mr S Swart (ACDP) thanked the OCJ for the positive report and the unqualified audit with findings. He suggested that the Committee looks into having the annual meetings it use to have with the Chief Justice and judiciary and strongly suggested that this be re-implemented.
He raised the reduced court sitting hours. This was discussed with the NPA they were advised that the department was responsible for that decision and that it was beyond their control and in the hands of the judiciary. He stated that there is an increase in the backlog of lower court cases, and asked the OCJ to indicate, when it comes to case flow management, to what degree are they actively involved? Secondly, how can this issue be addressed? Thirdly, to explain the point on the under or over expenditure relating to judges salaries?
In relation to the Service Level Agreement, he asked if it work well with the department and is there anything from the OCJ’s perspective that you would like to raise with the two departments?
The last issue related to the JSC, members who serve on the JSC should report to the Committee so that it has an understanding of how it operates, particularly in the light of the complaint that was raised following Judge Mlambo making that statement. From his understanding a normal process would be that a complaint should be laid at the JSC and there is a process. He referred to a matter concerning a specific judge and asked why is that matter taking so long to finalise.
Dr Motshekga, responded to Mr Swart’s comment, and suggested that the Committee should place it on record that the remarks by the Judge President are what was picked up from the press and so the Committee cannot really take a position on that. The Committee seeks to request that the matter receive urgent attention so that the Committee knows where the matter it is going. He added that he had a discussion with the Chief Justice and he agrees with Mr Swart that more engagement is needed and perhaps before the end of the year, the Committee should have another engagement.
Mr W Horn (DA) expressed his satisfaction with the audit outcome of the OCJ and that it would have been good if there were no findings. He stated that the OCJ which are the watchmen over the Constitution should strive to have an absolute clean bill of health. However, this is one of the first presentations received where there are workable answers to the audit findings as part of the presentation.
Mr Horn noted the huge prioritisation of the backlog roll of criminal cases, and that it is worrying that the target for finalising criminal cases with a verdict was not nearly achieved. Logic must inform that if that is not addressed urgently the backlog roll will escalate in future. Secondly, the question needs to be raised, is the National Efficiency Enhancement Committee (NEEC) really effective?
In respect of the in-house matters, like the fraud cases where 20 of the 33 were investigated within 60 days and this was due to the unavailability of suspects and witnesses, why is that the case?
On the unfilled critically funded posts and spending patterns, although there is an explanation as to why only 57% of critically funded posts were filled by the OCJ was due to the delay in relocation and lack of capacity at provincial level to handle recruitment. In respect of the latter some additional information as to how the OCJ will handle this at provincial level, is needed. Were the posts not filled to balance the books caused by the judges salaries, an over spending of nearly R13.8 million? What could have been the percentage in if the critically deemed posts were indeed filled?
He provided specific comments on the shared services agreement, regarding ICT services. Does the OCJ not feel that they are at risk of illegal breaches of the ICT network?
The OCJ indicated that they corrected the performance indicators. Did OCJ engage with Auditor-General South Africa (AGSA) regarding these corrections?
With respect to the offices, what route was followed in terms of leasing and buying, and if leased, for what period and at how much?
Mr M Maila (ANC) echoed satisfaction with the audit outcomes. There is room for improvement but the direction the OCJ has taken is good. He pointed out that there was an indication of targets not met, and asked whether there were consequences for the under achievement? Further, in relation to inadequate capacity in some areas, he asked how the inadequacy had been dealt with. On land claims, 52% of these cases were finalised, were they finalised in favour of the claimants or otherwise?
He went on to express his unhappiness around land claims and cited one example. He is one of the land claimants of the Magathu Communal Land Claimants Association. This property association was among the first to be offered their land claim but the critical area has never been allocated to the community and there are suspicions amongst the claimants that those who possess the land now are working with officials either in Rural Development or in the Commission to actually make the process tiresome. The lawyers who assist the claimants are changed from time to time because they do not seem to be addressing what the claimants want. What is the OCJ doing to ensure that the claimants are assisted?
In response to Mr Maila on the land claims, Dr Motshekga highlighted that the question might be addressed to the wrong people. This is a legitimate point to raise because there are land claims where the claimants are advised to take the money and not the land which means that at the end of the day, the land will remain in the hands of the minority and the majority will be landless and that is planting a time bomb for future generations.
He stated that Judge President Mlambo will meet the Committee on 19 October 2016 and perhaps he should be informed of the matter raised in the meeting and requested to brief the Committee.
Mr N Matiase (EFF) acknowledged the report and agreed with Mr Malia that there is room for improvement. He noted that as the OCJ got used to the new system, they might drop the ball.
He referred to Programme 2 Judicial Support and Court Administration. He noted that the OCJ achieved 100% but in this 100% is a conglomerate of all specialised courts, the Land Claims Court is among those. He appealed to the OCJ to undertake a visit there and find out for itself the challenges and share with the Committee their findings upon taking such a visit.
He agreed with Dr Motshekga that a programme four should be included. He stated that the OCJ should look into the creation of Economic Courts that will adjudicate economic disputes and conflicts amongst people, especially amongst those that have nothing and those that have something. The court should function to mediate and adjudicate.
He felt that the bail system should be looked at and the need to abolish the bail system. It should be reserved for special cases where the accused is deemed to be an immediate threat to the state and community. An example is the student who is arrested and denied bail. The question is, is that student activist a security threat against the State and why is he refused bail as an activist at this time of the year when they have to write exams.
He stated that looking at the budget allocation of the OCJ, the budget allocation idea must take into account the independent determination and allocation of budgets, not only to the Courts but also the Chapter 9 institutions to enhance their independence and their effectiveness. More so in the area of judicial independence. Maybe South Africa needs to move away from the traditional model where budget allocation is dependent on the Ministry of Justice and to a more relevant model where budget allocation is determined by the JSC. This matter of independent budget allocation is crucial because empirical evidence shows that a perceived independent judicial system works well with the economic grove of the country, where the growth is currently at, that is just a result of the negative perception that the public has as well as the international community about the lack of substance of independence of the judicial system. Once the independence of the judicial system is increased, then a boost of public perception is created.
Ms C Pilane-Majake (ANC) welcomed the presentation and congratulated the OCJ on the unqualified audit. The OCJ indicated that they had 38 advisory opinions and she asked the costs of the opinions. She asked the OCJ to indicate where the vacant positions are. She asked who sits on EXCO. Whether it was independent in terms of reporting? She asked how the OCJ deals with the high rate of detainee.?
She noted that Correctional Services had a crisis of awaiting trial inmates and that is the reason for overcrowding in prisons. And one finds that the detainee has been detained because he could not afford a bail of R1 000. How does the OCJ plan to deal with this?
On the pieces of legislation being transferred from DOJ to OCJ, including the Judges Remuneration and Conditions of Employment Act of 1947. How will these Acts be implemented and would the monitoring be independent? At what stage of development is the court modernisation project?
Mr L Mpumlwana (ANC) stated that there had been discussion on the language in court sometime ago and about African languages being used in the lower courts in certain areas. What happened to that and how far are you?
Ms Sejosengwe thanked the Committee for its positive and encouraging feedback and stated that her response to the questions would be in no particular order. On the 33% performance and the R34 million against the budget which is too little, she said OCJ is aware that it is an issue and that it is a matter that has been raised by the Committee on various occasions and the matter had been have raised with the DOJ. She noted that besides the judges, the Institute also trains magistrates and there are other aspects that relates to the training of judicial officers in the lower courts that have serious budget implications. This too has been raised at a recent meeting with the DOJ, because the requirements with regards to magistrate training and the in bulk appointments also has an impact. It is a matter that OCJ is looking at with the Director General of Justice to see how the strategy could work because the money remains insufficient.
There has been an engagement with National Treasury when at the budget meetings to indicate that the funds are not enough. It is a matter that OCJ continually seeks to address. Another way we looked to ease the fiscal pressure was to ensure that the new accommodation would have in house facilities for training in the hopes to ease the budget and not have to pay for facilities for training.
The OCJ agrees that the vacancy rate is high and it was affected by the fact that a ship is being built while it is already moving. The OCJ is aware of the DPSA prescript that at all times it must have 90% of its vacancies filled. It has been an indicated that there is an HR plan and that has a list of the vacancies funded and the OCJ has put in place monitoring on a monthly basis. The HR capacity also affected the performance in certain areas. However, the OCJ has increased the capacity in HR and has a Chief Director in place, and three Senior Managers. Managers have been appointed both at the national office and in the provincial centres who take care of HR responsibilities to ensure that capacity is up.
She stated that in the coming quarters the Committee will see some improvement in Quarter 1 of 2016/17. From Quarter 2 moving forward, OCJ will have much progress when it comes to HR capacity and its impact.
In terms of the Mpumalanga High Court and its access road, the Mpumalanga High Court is still under construction and its operation is not in place and is due to be finalised later in the year or early 2017. The DOJ is working with the OCJ facilities management to ensure that those issues raised through the municipalities and other role players are addressed. The Limpopo High court is operational since January 2016 and the opening is scheduled for the 29 November 2016 and it will be launched by the President.
On the utterance of corruption by Justice President Mlambo, the OCJ will forward the request to be briefed to the Justice President on 19 October 2016. The Chief Justice and the heads of court did engage with the Justice President on the matter, it was an internal discussion.
The comment on the monitoring response on the norms and standards is noted with regards to the one report that was not in place. The head of courts is addressing that and it is outside the control and administration of the OCJ.
Dr Gomoleno Mosheou responded to the questions on the South African Judicial Education Institute (SAJEI). She noted the suggestion of looking at including indigenous languages in the curriculum and assured the Committee that it will receive attention and the OCJ will provide feedback in the next meeting. On the budget, she agreed with what the Secretary General had presented to the Committee. The OCJ was continually addressing this matter. Especially where there is a recruitment of a large number of magistrates and the responsibility placed on SAJEI is that they need to be trained for four weeks before they can go to court. Given the limited facilities, the OCJ is obliged to accommodate them for that four week period and that is at a high cost but it is talking to DOJ to see how OCJ can deal with that.
Mr Nathi Mncube responded to the question about the Mpumalanga High Court, and advised that it should be completed by June 2017 and operational as soon as construction is completed. The OCJ is involved in all the plans and is part of the committees in ensuring the furniture is bought in time and discussing with the DOJ about capacitation.
Ms Sejosengwe continued with the questions on the filling of vacancies and spoke to the micro structure on page 19 of the Annual Report. There are eight heads of Units and all the other heads of unit will be filled except for the executive director posts which still remains vacant. The OCJ will provide a list of vacancies to the Committee, so that it can see the HR plan and how far the OCJ is in filling vacancies. That will include both the micro and macro structure. The macro structure needs to be submitted to the DPSA and the OCJ is in the process of finalising that.
She replied about the criminal court backlog and how the OCJ is related to the lower courts and the reduced court hours in the lower courts. At the provincial level, each Judge President chairs the NEEC where both the superior and lower courts sit together with other role players and part of the agenda is to look at the performance of the courts and it also deals with case flow management. This includes detainees because the DCS also sits on the NEEC. This is the level at which these are monitored during the leadership of the Judge President and thus the response to the question is that this is dealt with at the level of the NEEC.
Mr Coetzer responded to the question on judges’ salaries. He noted that it is important to understand that the OCJ and DOJ do not budget for direct charges, that is an allocation from the National Revenue Fund allocated to the Departments by National Treasury and it never makes any provision for salary increases and that is the standard of National Treasury. The OCJ as a department motivates for voted funds. If there is a salary increase which in this case was only approved in March 2016, the last month of the financial year, OCJ implements the salary increase and back dates for the whole of the financial year. The department is therefore allowed to over spend on the direct charges and request National Treasury to rectify that in a new appropriation bill which will come to Parliament very soon. Even if one looks at look at the audit findings, the AGSA will never bring out a finding on over spending of direct charges because it is totally outside of the control of the department.
The OCJ has spent 98% of the voted funds but it was not a deliberate retention of the vacancy rate to fund the direct charges. As explained, the OCJ would not have known that there would be overspending as the increase only happened in the last two weeks of the financial year. So there was no suffering of the service delivery.
Ms Sejosengwe said that OCJ noted the comments by the Committee to have a meeting with the Chief Justice as in November 2014, and this will be conveyed to the Chief Justice.
On the question of whether the Service Level Agreement is working well, it is being managed there are working teams that look at different areas on HR policies and other aspects to ensure that issues are managed. So far there are no concerns that the OCJ would like to raise.
On the question of whether the NEEC is effective on the case backlog, Mr Mncube replied that the Secretary General had already indicated that matters of court performance are discussed at national level and at the provincial level chaired by the Judge President. As she indicated, OCJ is part of the monitoring committee. Criminal cases finalised is a big concern for all, including the judiciary and it has been brought to their attention and it is been monitored and the difficulty is that when you have a lot of stakeholders involved such as the NPA, Legal Aid, one finds that cases are not finalised, but are postponed for one reason or another. So there will always be challenges were one is dependent on other stakeholders to finalise matters but measures are being put in place to address that.
On fraud case investigations within 60 days and why witnesses are not available, the explanation is that most of these cases are reported through the Public Service Commission. The witnesses that cause the delays are not necessarily officials inside the organisations but are outside people that require follow ups to ensure that the investigations are dealt with within the 60 days. The OCJ has noted that many complaints are received about fraud that need to be investigated but ultimately it comes out that it does not relate to the department but to other departments and needs to be referred.
In the next quarters, OCJ will reflect the improvements that have been put in place to address these issues. The other matter that had an impact was capacity, however the OCJ has capacitated the Forensic Unit recently and it is part of the HR plan to increase capacity to improve performance.
Ms Sejosengwe agreed that the OCJ must take responsibility for its ICT. AGSA has been very helpful in identifying areas of risk, so OCJ can address the issues in advance. The challenge is that the OCJ is still in the process of migrating. OCJ has developed its own domain, into which it is in the process of migrating the rest of the Superior Courts and that is part of the plan to create its own ownership of the ICT space.
The OCJ engaged the AG to confirm whether the TID corrections were correct in the 2016/17 APP and OCJ does not foresee any recurrence in that audit finding.
In terms of the leasing and buying, the OCJ has entered into a five-year lease which started in May 2016. However, the judiciary through the Chief Justice and his team is being engaged on the future because when the lease comes to an end, at least there should be clarity.
On the breakdown of the land claims cases, the OCJ does not have the information now but it can be provided. The OCJ does not keep a breakdown in terms of what phase the cases are at. The Land Claims Court does not only deal with land restitution cases, there are other matters. So those matters are all included under cases finalised but the OCJ will provide the Committee with the breakdown in writing.
We have appointed a Senior Manager to lead communications and capacitated its middle management. OCJ has a plan in place to address audit findings and it is being monitored by the Audit and Risk Committee.
The OCJ has noted the comment regarding the transformation of the legal system, as an additional programme to address the transformation of the legal system. The Committee will recall that the judiciary did submit to the Ministry in 2014 a model in terms of which the judicial reforms were proposed.
On the 38 advisory opinions, OCJ will provide the details. She said the opinions provided in the policy and research unit relate to both internal and external matters that are required by the judiciary in terms of policy.
At what stage is the court modernization project? As indicated in the APP, the OCJ has developed the ICT structure and it is in place, and OCJ is migrating to its own domain.
The comments on the creation of economic courts and abolishing the bail system have been noted and we will look at that within the current system and see how to deal with it and provide feedback.
In response to Mr Mpumlwana’s question, the OCJ together with DOJ are busy with the programme on language. In the next appearance, the OCJ will brief the Committee on how far it is.
Office of Chief Justice on its 1 Quarter 2016/17 performance
Ms Sejosengwe presented the 1st quarter performance report but noted that it does not include any financial performance information. In terms of performance overview, 18 targets were planned and 14 were achieved (78%). She then elaborated on the performance per programme (see document).
Programme 1 had nine targets, six of them were achieved. Those that were not met:
- OCJ did not achieve the funded vacant post filling against the annual target of 90. The OCJ had a deviation of achievement in terms of 3% against the target of 20 for the quarter. The reason for the deviation is that some of the candidates who offers were made to could only start in Quarter 2. The OCJ is closely monitoring recruitment because it has been raised by the Committee more than once.
- The ICT Master system: In Quarter 1 the terms of reference were developed and tenders were advertised for infrastructure upgrading. In Quarter 1 the tender could not be advertised and the reason is that the process to advertise the tender was withdrawn and instead the SETRSQ process was followed.
- Percentage of audit findings resolved against the target was not achieved. The reason was due to inadequate internal controls and the planned action is that the operations committee is to work with unit heads to address outstanding audit action plans. Internal audit will conduct follow up to provide assurance.
- Percentage of reported fraud cases investigated, the target was 100% and 83% was achieved. The deviation of 17% was due to the unavailability of suspects and witnesses to conduct interviews within the prescribed period and inadequate capacity within the forensic unit. The action plan is that forensic investigations will continually try to improve on the management of witnesses and suspects to expedite the interview process and the recruitment of a forensic investigator is on the way.
Programme 2 performance indicators for Quarter 1 was seven and six were achieved.
- Percentage of default judgment finalised by registrars: the target was overachieved by 15%.
- Percentage of taxations of legal costs finalised: the target was over achieved by 17%.
- Number of training workshops on case management for registrars, statisticians and clerks: target achieved.
- Warrants of release delivered within one day of release granted, 100% was set and 85% was achieved. The reason is circuit courts were unable to bring the files back to the Main Court and deliver the warrant in time. The planned action is that the warrant will be faxed to the Main Court immediately after being granted.
Programme 3 performance indicators were all met.
- Five judicial education courses were planned and nine were conducted
- Percentage of legal advisory opinions on policy development and research services provided within 15 days of receipt: Target was 80%, in Quarter 1, 100% was achieved.
- Disclosures of registrable interests for newly appointed judges submitted within 30 days of appointment, with an annual target of 100% and quarterly 100%, the quarterly output was none.
Programme 2 statistical information on cases finalised:
- Number of High Court cases on the roll for more than 12 months, against an annual target of 156, it is an annual target and therefore not applicable in the first quarter.
- The Constitutional Court had a target of 80%, the quarter one performance was 31%.
- The SCA was 83% against a target of 80%.
- High Court criminal cases finalised with verdict, was 43% against a target of 64%.
- High Court civil cases finalised, 66% achieved against a target of 54%
- Reserved judgments finalised in all Superior Courts 75% achieved against a target of 70%.
- Labour cases finalised, 56% was achieved against a target of 54%
- Land claims finalised, 67% was achieved against a target of 54%
- Electoral cases finalised, 100% was achieved against a target of 90%
- Competition appeal cases finalised, target of 72% was achieved.
Mr Coetzer explained the expenditure for the first quarter:
Programme 1: Under spending of R8.7 million.
The reasons for underspending is that the R8 million is made up mainly from the non achievement of the target on the filling some of the vacancies and OCJ has under spent by R6.6 million on the compensation allocation there. On goods and services, OCJ has under spent by R2 million which was allocated for rental of the new building but occupation was only taken at the end of May 2016.
Programme 2: 92% spending of the projection.
Under spending relates to goods and services mainly. The R8 million under spending is as a result of the G-fleet invoices paid but not yet reflected in BAS which will reflect in the second quarter. Most of the Superior Courts are still billed by Telkom, which are being paid by the DOJ and not yet claimed from OCJ, these claims are received at the end of each quarter. The first quarter bill has been paid in the second quarter.
Programme 3: OCJ has under spent by R24 million.
The main reason for underspending was goods and services, although the training programmes have been conducted, the service providers have not invoiced in the first quarter but invoices received in Quarter 2.
Funded vacancies not filled because during the first quarter, most of the appointments were made. However the majority of these incumbents will only resume duty in Quarter 2.
In conclusion, at the end of the first quarter of 2016/17, the OCJ achieved 78% of its planned targets. To address the challenges of the first quarter, OCJ has put into place control measures to ensure improved performance and effective administrative support to the judiciary. Human resources capacity was a challenge during Quarter 1 which contributed to non achievement of some of the planned quarterly targets. All funded vacant positions will be filled as a matter of urgency and the next quarter will show improvements.
Mr Horn noted that the statistical information for High Court cases on the roll for longer than 12 months had an annual target of 136. OCJ says since it is an annual target they are not reporting on this on a quarterly basis. He said that it is a rolling target and not only applicable at year end. If it talks to reduction of the backlog, then it would make sense to have quarterly targets.
In respect of the criminal cases finalised with a verdict, there is a 43% increase compared to the 36% in 2015/16 but still more than 20% off the annual target. So once again maybe to reiterate the serious criticism that this needs to be addressed, otherwise the backlog statistics will come under severe pressure.
Mr Maila asked if a name could be attached to the judge who did not disclose interests. He is asking because there is one judge who is putting the judiciary in disrepute.
Ms Pilane-Majake welcomed the presentation and indicated that the Committee had noted that the OCJ had inadequate internal controls which are impacting on the performance internally. Hopefully when the OCJ returned, it will report an improvement. Also the Committee hopes that now that the OCJ is settled that the vacant positions will be filled. How much rent is paid for the office space? Secondly, why not buy instead of leasing because leasing is expensive. In terms of the PFMA are you in line with your spending?
Ms Sejosengwe replied about quarterly targets for case backlogs and stated that this had been noted. The information can be made available on a quarterly basis, that is not an issue. On criminal cases with a verdict, the criticism is also noted. That target is a bit difficult and is a matter that the OCJ is dealing with to see how best this matter can be addressed.
Mr Mncube also replied about quarterly targets for case backlogs. They far exceeded the target and because the OCJ is overachieving in this particular target, it should not be reported on until year end. The inadequate controls concerned the OCJ too and an effort is made to ensure that, as the OCJ moves on, they track those to ensure there are improvements.
Ms Sejosengwe said that the vacancies will be filled and the Committee will be provided with a list of the vacancies and the progress made. The rent is in the region of R1 million per month for the lease on the building and utilities. The actual rent amount is about R780 000 per month.
In terms of the PFMA requirements, the OCJ is in line. In February of each year the OCJ submits their projected expenditure for the next financial year for every month. What the OCJ is required to do if there is under spending or over spending, we have to report to Treasury and the Ministry and also the reason for deviation and the action plans to correct this. So we are in line with the PFMA requirement.
Dr Motshekga thanked the OCJ and wished them well.