The Chairperson notified the Committee of a request made to the National Assembly Speaker by the Democratic Alliance for removal proceedings against the Public Protector, Adv Busisiwe Mkhwebane, and an inquiry into the conduct of the Deputy Public Protector, Mr Kevin Malunga. The Speaker insisted that the matter be raised in the Committee. The Chairperson said as the Committee has a large amount of legislation which must be finalised before the end of the year, it would not be possible to do justice to the matter. He asked if the Committee had the competency and capacity to address the matter, and if it would not be better to refer it back to the Speaker with the request that an Ad Hoc Committee be established to deal with the matter. It was pointed out that it is an Ad Hoc Committee that recommends the appointment of the Public Protector and it should be the Ad Hoc Committee that considers the removal of the Public Protector.
Members of the ANC requested a caucus in order to respond effectively to the contents of the request. Following the break to caucus, Ms M Pilane-Majake (ANC) said that the ANC members of the Committee decided that as the Office of the Public Protector is of importance, the Committee must find time to deal with the matter. Mr S Swart (ACDP) reiterated that an Ad Hoc Committee must deal with the matter. He said that the Chairperson and the Committee are indirectly implicated as the Public Protector report recommended in its remedial action that the Committee Chairperson should amend the Constitution to limit the powers of the South African Reserve Bank. Therefore an Ad Hoc Committee not implicated in the judgement would be the better option. The Chairperson agreed that as he was a respondent in the matter that involves the Public Protector, he would not want to preside over a matter he is conflicted in. The Chairperson called for a vote and five members voted for the Committee addressing the matter and three voted against this Committee addressing it. The Committee hence decided to handle the matter.
The Office of the Chief Justice and Judicial Administration presented its 2016/17 Annual Report. 90.2% of the planned 90% of the funded vacant posts were filled. 91% of the planned 80% of audit findings were addressed. 86% of the planned 65% of compliance with quasi-judicial targets were achieved. 85% of the planned 65% default judgements were finalised by Registrars. 87% of the planned 65% taxations of legal costs were finalised. 90 judicial education courses were conducted, exceeding the planned target of 70. Programme 1 (Administration) achieved 8 of the 10 targets. Programme 2 (Judicial Support and Court Administration) achieved 6 of its 7 indicators. Programme 3 (Programme 3 (Judicial Education and Research) achieved all 3 targets. The budget in 2016/17 was R1.824 billion and actual expenditure R1.786 billion. An unqualified audit opinion was achieved with no material misstatements in the annual financial statements; material findings were identified in the annual performance report but limited to only quasi-judicial performance information reliability, and no material non compliance with key legislation was identified. It will adopt an audit action plan and OCJ EXCO through the Audit Facilitation Committee will continue monitoring the implementation of corrective measures to address previous audit findings and improve internal controls.
Members commended the Office of the Chief Justice for its success. Compared to other departments, its irregular expenditure and fruitless and wasteful expenditure is low but as the status of the Office of the Chief Justice requires it to strive to get these figures to zero Members were concerned that court hours had dwindled despite the efforts of the National and Provincial Efficiency Enhancement Committees. Members asked about the resource and capacity challenges at superior courts, provincial centres and national office.
Request for removal proceedings of the Public Protector
The Chairperson noted the referral to the Committee of a request made to the National Assembly Speaker, Ms Baleka Mbete, by the Democratic Alliance for the institution of removal proceedings against the Public Protector, Adv Busisiwe Mkhwebane, and an inquiry into the conduct of the Deputy Public Protector, Mr Kevin Malunga. The motivation was attached to the letter which was signed by the DA Chief Whip. The DA insisted that the matter be raised with the Committee, though mindful of the concern of the Committee not having time to entertain it fully and that DA members would not be available for the rest of the week.
The Chairperson said that before the Committee would take the matter forward, he looked at the programme for the year and noted that there is a lot of legislation which must be finalised before the end of the year. As much as they might want to address the matter as a Committee, it may not be possible for them to do justice to the letter which was referred. He expressed his concern about whether the Committee has the competency and capacity to deal with the matter and so instead request that the Speaker establish an Ad Hoc Committee to address the matter. The Chairperson said that as he is not the Committee, he decided to table this matter for the consideration of the Committee with the request that the matter should be referred to an Ad Hoc Committee.
Mr W Horn (DA) said that the Committee does not have clarity on whether they are the competent committee to deal with the matter. The relevant legislation speaks of "a" committee of the National Assembly and if the Public Protector is to be selected by an Ad Hoc Committee then it must follow that an Ad Hoc Committee deals with allegations of misconduct and reasons to remove the Public Protector from office. Parliament must get advice on this before continuing with the process. If the decision is that it should be the Portfolio Committee on Justice and Correctional Services, he is unsure what the Chairperson means by the Committee does not have the capacity to do so. He asked if this is the intellectual capacity of the members of the Committee or time constraints.
On concerns about the Committee programme, Mr Horn argued that it would not be prudent of Parliament to park a request of this nature due to a legislative burden. If it is the view of Parliament that there is a case to be investigated, it would put the constitutional order at risk if they cannot deal with the matter with urgency due to their legislative programme.
The Chairperson said that he refers to time constraints and not the intellectual incapacity of the Committee.
Ms C Pilane-Majake (ANC) said that as they had only just received the documents, the ANC members must be given an opportunity to look at the matter tabled by the DA for them to be able to respond effectively to the contents.
The Chairperson said that he is not inclined to ask the ANC to look into the matter as he had tabled it to the Committee to make a resolution in order for them to go to the Speaker with the resolution.
Mr B Bongo (ANC) agreed with Ms Pilane-Majake. He said that the document is written by the DA Chief Whip, Mr Steenhuisen. The Public Protector had raised a case against him for leaking the information of a provisional report of the Public Protector. He said they may need to investigate this. This matter may not be relevant for any consideration by the Committee as the reasons are neither "here nor there". The DA only wants Parliament to kow tow and sing to their song. He added that when the Public Protector was appointed the DA said they did not want her. This is a ploy to pursue what they started when the Public Protector was being appointed. Parliament’s time must not be wasted by establishing an Ad Hoc Committee. He recommended that the Committee write to the Speaker that the matters presented have no basis and all they can do is give the Office of the Public Protector capacity to execute its mandate properly.
The Chairperson urged Members to not go into the merits or demerits of the referral as the question is whether the Committee would be able to deal with the matter.
Ms Pilane-Majake reiterated that the ANC wants to have enough time to look at the letter.
Mr L Mpumlwana (ANC) said that it is not fair that the Chairperson gives the Committee the document in the meeting and it is expected to make a decision. He said that it is an important matter and the Committee needs time to make an informed decision.
Mr S Swart (ACDP) said that the Chairperson’s suggestion of an Ad Hoc Committee is one of principle as the Public Protector was appointed by an Ad Hoc Committee and this Committee has more than enough work. He agreed that Members must be given some time to look at the matter.
Mr Horn said that debating the merits and demerits of the letter is another matter. The statement by Mr Bongo that the complaint is motivated by a criminal complaint by the Public Protector against the Chief Whip of the DA is factually incorrect as it is against the Deputy Chief Whip of the DA. It is not proper for Mr Bongo to impugn the dignity of a fellow member of Parliament and he must be directed to withdraw that.
Mr Horn said that the document was tabled and circulated through email the week before. If the ANC as a collective wanted to take a position, it is not fair of them to play delaying tactics in making a decision on the process going forward.
Mr Mpumlwana requested the ANC has a caucus on the matter.
Mr M Maila (ANC) said that the matter originates from the DA and they have applied their mind to it. He agreed with Mr Mpumlwana that they are given a caucus.
The Chairperson granted the ANC a caucus.
Following caucus, Ms Pilane-Majake said that the ANC members of the Committee expressed the view that the Office of the Public Protector is important as it guides the country in the realisation of constitutional democracy. When there is a matter that requires attention in the Office of the Public Protector it becomes urgent for Parliament to respond timeously. The members decided that the Committee must look into the matter rather than taking in to consideration the Committee's capacity. The Committee must meet on additional days to address the matters.
Mr Mpumlwana requested that the Committee meet at another time to handle this matter and make a decision. This was seconded by Mr Bongo
Mr N Matiase (EFF) said that they did receive the email with the request well in time and they had applied their mind to its content. He said that he agrees with the Chairperson’s summary on the course of action to be followed. He said that those who cannot be won by reason shall be converted by time.
Mr Maila stated that the Committee plays an oversight role on the work of the Public Protector and is better suited to deal with matter.
Mr Swart reiterated that an Ad Hoc Committee must deal with the matter. The basis of the complaint related to a judgement which was against the Chairman and the Committee are indirectly implicated as they were instructed to amend the Constitution in a certain manner. The Committee must now sit as judges in their own matter which complicates it further. MPs on an Ad Hoc Committee not implicated in that judgement are the better option.
Mr Horn urged the Committee to be cautious on deciding to take ownership of this matter. The Committee must receive advice from Parliament’s legal advisers on whether this Committee is the appropriate forum to deal with the matter.
Mr Bongo said that the Speaker is acting on legal advice which is the basis of her decisions. He requested dealing with the matter on other days when Members are free as it is a matter of serious national concern.
Ms M Mothapo (ANC) agreed that they are the relevant Committee to deal with the matter.
Ms Pilane-Majake responded to Mr Swart’s statement about the Committee being implicated by stating the recommendation of the Public Protector was referring to Parliament having to make an amendment and not the Committee. She said that all Members of Parliament are implicated.
The Chairperson said that the Speaker has the right to refer matters to the Committee and she has referred the matter timeously on 28 September. If there are Members who were not able to see it on time, it is not the problem of the Speaker.
The Chairperson said that the matter of the Speaker and himself being respondents in the legal matter involving the Public Protector was also the reason for his recommendation of an Ad Hoc Committee. If the Committee thinks it is the competent forum, he may not be the competent person because he cannot be a judge in his own court. He would have to consider whether to recuse himself. He ruled that the matter stand down until he consults with the Speaker. He said that despite tabling the matter with his recommendations based on precedent and the law, some Committee members said that regardless of this, they are the competent Committee to deal with the matter and the Committee must take a vote.
Ms Pilane-Majake said that what the Chairperson said about precedent and the law must be excluded from the vote.
The Chairperson asked the Committee to vote if they are the appropriate forum to deal with the matter.
Ms Pilane-Majake, Mr Bongo, Mr Mpumlwana, Mr Maila and Ms Mothapo voted for and Mr Swart, Mr Horn, and Mr Matiase voted against. The Committee hence decided to handle the matter.
Office of the Chief Justice and Judicial Administration (OCJ) 2016/17 Annual Report
Ms Memme Sejosengwe, OCJ Secretary-General, said that the OCJ performance target achievement improved from 74% in 2015/16 to 85% in 2016/17, with 17 out of 20 targets achieved.
90.2% of the planed 90% of the funded vacant posts were filled. 91% of the planned 80% of audit findings were addressed. 86% of the planned 65% of compliance with quasi-judicial targets were achieved. 85% of the planned 65% default judgements were finalised by Registrars. 87% of the planned 65% taxations of legal costs were finalised. 90 judicial education courses were conducted, exceeding the planned target of 70.
Performance by programme
Programme 1 (Administration) achieved 80% of the 10 targets. Management achieved 100% of its targets. Corporate Services achieved 50% of its targets. Finance administration achieved 100% of its targets. Internal Audit and Risk Management Services achieved 75% of its targets.
Programme 2 (Judicial Support and Court Administration) achieved 6 of its 7 indicators. Administration of superior courts achieved 83% of its targets. Judicial Service Commission achieved 100% of its targets.
Programme 3 (Judicial Education and Research) achieved all 3 of the targets. The South African Judicial Education Institute achieved 100% of its targets. The Judicial Policy and Research unit achieved 100% of its targets.
OCJ had an appropriation of R1 824 047 000 and actual expenditure of R1 786 348 000. Programme 2 is the core business of the Department and had an expenditure of R685 583 000. The under expenditure for the year amounted to R1 771 000.
Audit opinion as per the Auditor General
OCJ achieved an unqualified audit opinion for 2016/17 with the following focus areas:
• Annual financial statements - no material misstatements identified
• Annual performance report - material findings identified but limited to only quasi-judicial performance information reliability
• Compliance with legislation - no material non compliance with key legislation identified
OCJ will be focusing on adopting an improvement plan and will ensure:
• Improved control measures to ensure full alignment of Court Administration processes as well as the management of reported court performance information
• Institutionalisation of new audit methodology at the Superior Courts
• Continuous verification of performance information through Combined Assurance mechanisms
• Extended audit reviews on reported performance information by Internal Audit Unit
• OCJ EXCO through the Audit Facilitation Committee will continue monitoring the implementation of corrective measures to address previous audit findings and improve internal controls
Mr Matiase commended OCJ for their work. He was impressed by the flowchart in the presentation which illustrated the three domains of leadership, financial and performance management and governance. The flow chart locates the role of record keeping and record management system. Most government departments and institutions fail to account and to ensure prudent financial management because of lack of access to records which has been a concern of the Auditor General for many years. He commended OCJ for keeping a good record management system in place and for their good work.
Mr Horn said that OCJ is doing relatively well. He raised a concern about the irregular expenditure and fruitless and wasteful expenditure. Compared to other departments it is low but as a department of the status of the Office of the Chief Justice must strive to get these figures to zero. Due to the confidence and trust of the public in a department tasked with dealing with financial irregularities in government departments, it must be squeaky clean.
Mr Horn said that ICT concerns are a recurring matter. The Committee is dealing with the Cybersecurity Bill there are huge risks when the cybersecurity environment of OCJ is not up to date. Even though there are systems in place, preventing cyber attacks must be a priority for OCJ going forward. There cannot be a situation where they expose themselves and the judiciary to cyber attacks.
Mr Horn referred to the Annual Report and asked OCJ to clarify the meaning of "perennial challenges". There are four of relevance identified which are placing cases on court rolls, utilisation of court hours, implementation of pre-trial hearings and case flow management, and efficiency enhancement. Court hours have dwindled. There was the understanding that the National and Provincial Efficiency Enhancement Committees would add value which would result in reversing the dwindling court hours. This is not happening. He asked OCJ if there are specific factors contributing to this so there can be an understanding and one can advise on improvement measures that can assist to make the courts more efficient.
Mr Horn asked what are the serious resource and capacity challenges at superior courts, provincial centres and national offices. He also asked OCJ to explain the reports that there are complications in the handing over services process from the Department of Justice and that it is partly attributed to suppliers who are not paid within 30 days.
Mr Swart referred to the challenge of the number of court cases finalised and the reporting on that basis. On page 49 of the OCJ Annual Report, it referred to indicators whose performance was put in the control of the judiciary and the OCJ only provided administrative and technical support to the judiciary. There is an ongoing discussion on to what degree the judiciary must account to Parliament for the number of cases finalised and the meeting of targets. It is interesting that on page 49, OCJ mentioned that in certain circumstances courts have met their targets and others have not. He was grateful that they mentioned this in the Annual Report as it gives an indication of most of the courts meeting their targets and the specific numbers of cases finalised. This is good for both the Committee and the public to see that the targets of the courts were met and there are improvements. He asked OCJ to unpack how Parliament can best engage with the judiciary on this.
Ms Pilane-Majake said that it is good to see OCJ is performing well. She asked OCJ to indicate what could be the problems leading to only 50% of corporate service performances being achieved. Management is at 100% and asked if corporate services is not part of management. She asked how finance administration is at 100% but internal audit and risk management is 75%. She asked why there was under expenditure.
On the identification of risk areas, she asked if OCJ sees the importance of looking at the ability to assess the effectiveness of the courts in relation to the vision of the country when they are doing risk assessment.
Ms Pilane-Majake asked why OCJ has not appointed a service provider for the e-filing system. She asked when they will be doing the transfer of the administration of magistrates to comply with the Constitution 17th Amendment Act. She referred to OCJ’s accountability to the Committee of Judges and asked what this committee is and who sits on it.
Ms Sejosengwe replied that the Committee of Judges is a committee of the heads of courts composed of the five Judges President who were assigned during the transfer of the Superior Courts from Department of Justice to the OCJ. The transferring of the magistrates will take place by the end of February 2018. The non-appointment of the service provider was due to insufficient funds as the bids were above the OCJ budget. She explained that compensation of employees led to the underspending.
Mr Casper Coetzer, OCJ CFO, replied that the OCJ spent 100% of its operational budget and the underspending of R37 million related to compensation. The first reason for this underspending is the budget ceiling imposed on all government departments. If they utilised the full capacity of their budget, they would not have been able to afford the outer years of the compensation budget. The second reason for the underspending was the judges’ salaries. The judges are entitled to gratuities after every 15 and 20 years of service but they can choose to take it at a later date.
Mr Coetzer replied on irregular and fruitful and wasteful expenditure, saying that OCJ knows the importance of keeping these figures at zero or as low as possible. The irregular expenditure was due to the authorisation of a payment to a supplier of R582 000 instead of R528 000. This constitutes 95% of the irregular expenditure. He added that fruitless and wasteful expenditure is only R25 000 out of a budget of R9 billion. The OCJ has to book accommodation based on the estimate of the National Prosecuting Authority on how long the court case will take. If a case is finalised within a shorter period compared to the booking made, they must pay early cancellation fees.
Ms Sejosengwe replied that the judiciary after consulting the Minister about reporting on the judicial functions had agreed on plans about how to deal with reporting. At the appropriate time the Chief Justice will announce how the reporting will take place. On the serious resource and capacity challenges at superior courts, provincial centres and national office, the OCJ has continual discussion with the Department of Justice so they can get support from them in the areas they are lacking. They have submitted their organisational structure to the Department of Public Service and Administration to ensure their structure at the management level is given attention. Funding of the different programmes has affected OCJ.
Ms Sejosengwe said that they take the advice on the risk of cybersecurity. They have planned in their 2017/18 financial year on attending to the information security framework.
Mr Coetzer said that the 30 day payment concern was only one where OCJ failed to pay Stanic for fleet services. When the contract came to an end the new contracting process took some time but Stanic continued to submit invoices but they could not pay any invoices until the contract was signed. This has been sorted out and they have been paying the invoices on time.
Ms Sejosengwe said that in their planning process they do consider the vision of the country by taking into account the National Development Plan and the Medium Term Strategic Framework (MTSF) on public service and general governance and administration. They have service delivery improvement plans and they have already begun implementing these.
Ms Pilane-Majake said that OCJ must mention this in their future reports. She appreciated that they try to respond to the requirements of the National Development Plan.
The Chairperson thanked Ms Alison Tilley for her support to the judiciary in the country and on the continent.
The meeting was adjourned.