Office of the Chief Justice Annual Performance Plan

Meeting report

Briefing on the Annual Performance Plans for 2018/19 Office of the Chief Justice (OCJ)

Ms Memme Sejosengwe, Secretary-General, OCJ, presented the strategic goals and indicated the contribution of the OCJ to the National Development Plan. The OCJ supported the judiciary and promoted accountability and fought corruption by strengthening judicial governance and the rule of law. OCJ was also working towards accelerating reforms to implement a judiciary-led court administration. It provided training to the judiciary through the South African Judicial Education Institute (SAJEI).

The Administration Programme remained the same as in previous years. Funded vacant posts met the Department of Public Service and Administration target of 10%. The Department had planned for an unqualified report with no more than five misstatements in 2018/19 and for clean audits in the outer years. Programme 2 which managed Superior Court Services, where the bulk of the OCJ work lay, and Programme 3, which addressed Judicial Education and Support, had remained unchanged in structure since the previous year.

Mr Cassie Coetzer, Chief Financial Officer, OCJ, presented the financial information. He indicated that the budget for 2018/19 was R1.12 billion in direct funds for OCJ plus an amount of R1.02 billion for Judges’ salaries that was managed by OCJ, although the funds were allocated separately.

Mr Coetzer presented the OCJ unfunded mandates. The previous year OCJ had asked Treasury to provide additional funds for the unfunded mandates and had received R22 million to set up the Mpumalanga High Court. OCJ had received a sum of money for the Court modernisation project which was intended to develop a more effective and efficient ICT system for the courts. However, the project remained highly underfunded and OCJ was seeking an additional R45 million in 2018/19. Items that remained unfunded included R22 million for staff compensation for implementation of the Superior Courts Act. For the fourth year, OCJ had not been able to implement the macrostructure of the organisation. OCJ unfunded mandates totalled R144.9 million in 2018/19.

Strategic risks in the Administration Programme included the underfunding for the capacitation of OCJ and possible exposure to fraud and corruption. Controls were in place for both risks. Programme 2, Superior Court Services, was open to risk as a result of inadequate IT structure and business systems. OCJ was preparing to roll out an efiling solution. The lack of Registrars and training for Registrars posed a risk that inadequate quasi-judicial services would be rendered. Programme 3 saw risks related to inadequate resources to facilitate training for Judicial Officers.

The process of developing the APP had entailed intensive consultation with the judiciary, the Minister and Deputy Minister, and National Treasury. Ms Sejosengwe explained that, as with any other Department, OCJ presented its case for funds to National Treasury. OCJ was part of the Justice and Security cluster of departments. Treasury requested each department to identify the impact that the department would make with the funding that it received. Any additional funds that a department required, had to come from the funding of that cluster or functional group. The Minister was ultimately accountable for all funding provided to the departments for which he was responsible.

Discussion

The Chairperson explained that the Committee wanted to know whether OCJ had been failed by the Department or not. Should the Committee look to Treasury or to the Department of Justice and Constitutional Development if OCJ did not get support or had unfunded mandates?

Ms Sejosengwe stated that the difficulty was that in the functional groups, one heard of departments that had an even greater need for the funds than OCJ did. However, she used the example of the difficulties experienced in obtaining funding for the Mpumalanga High Court and how Treasury had put together a work team and the team had sat with the functional group and had found the R22 million that OCJ required from the other departments in the cluster. The CFO Forum under the Minister addressed budgetary issues within the cluster of departments and entities under the Minister. She believed that the relationships with the other departments in the functional group and with Treasury were very good.

The Chairperson stated that one could not have a government creating new courts if it did not fund the courts because that would leave much to be desired and would discredit the whole judiciary system. Whoever had created the courts, had to ensure that resources were there to fund them. It was wrong to tell the public that they had created courts, such as the Mpumalanga Court, when there was no money or resources for those courts to function.

Ms M Mothapo (ANC) asked if Programme 3 had been presented.

Ms Sejosengwe indicated that she had, but the Chairperson asked her to recap Programme 3, which she did.

Ms Mothapo thanked OCJ. In terms of the Constitution, the Judicial Review Committee was supposed to submit a report to Parliament on the judiciary and misconduct of judicial officers. Had the Committee received such a report since 2014? When the Department of Justice and Constitutional Development had presented to the Committee, mention was made of dwindling court hours. Could Ms Sejosengwe apprise her of court hours? She was pleased to hear about the reduction in time that judges had for reserved judgements from 12 months to three months because that had been denying justice to people.

Since 2014 the Committee had been lamenting the operations of the Land Claims Court. The OCJ should have addressed all the concerns of the Committee regarding the Land Claims Court. People had lodged land claims since 1998 and money had been paid to Cheadle and Thompson, a firm of attorneys, but nothing had come of it. Maybe the Secretary General could respond to all the questions that the Committee had in respect of the Land Claims Court.

In 2017/18, the Committee had raised a concern regarding the financials: under expenditure across all programmes as well as fruitless and wasteful expenditure. Ms Mothapo offered congratulations on the unqualified audit, although it had been issued with findings. The Committee understood the circumstances under which the OCJ operated. Last year, the Minister had made mention of a single judiciary and the introduction of a Lower Courts Bill to facilitate the absorption of the magistracy. Could the OCJ advise as to how far that process was?

Mr W Horn (DA) was concerned about the reduction in the budget for the compensation of employees, which included judges. What steps would OCJ be taking to manage that, given that positions in the judiciary should be filled at all times and would, therefore, provide very little manoeuvring space.

Mr Horn referred to the 7-point plan of the judiciary for an Integrated Justice System and requested a report on that. However, he had noted that the budgetary allowance of OCJ in that regard had not been spent in the previous year because the Department of Justice had said that it was not performing. He asked for the experience of the OCJ in the matter.

As far as dwindling court hours were concerned, the Committee was looking at the OCJ for information or guidance as to how Parliament would be able to play its role in overseeing the efficiency of the judiciary at large. The national, provincial and municipal efficiency enhancement committee had welcomed the plan at the time that it was launched.

Mr Horn noted that the APP mentioned an efficient court system and judicial accountability but on page 64 of the APP, all indicators and targets that would give Parliament an idea or a bird’s eye of what was happening, had been removed. In the past it had been said that it was because the OCJ was not in sole control of it – which had been the answer of every role player who appeared before the Committee, but the Minister, in his political briefing on the budget, had said that any questions in regard to the efficiency of the judiciary had to be addressed to the Chief Justice or his Office. In the past, up to 2015/16, the Committee could interrogate the Chief Justice as to why some matters in court had been inordinately delayed. Now the Committee simply did not have that information and could not identify delayed matters. Enormous frustration was caused when judgements were reserved for a long time. It was good that during the appointment process, judges were being grilled about the delay in judgments but, it was not just those applying for higher positions, all judges had to present their judgments timeously. Not only Parliament, but also the people of South Africa, had the right to know about those issues of delays etc. How were they going to know? How was the judiciary going to embrace accountability? What was the real situation regarding court hours and the time spent on different criminal matters?

Mr T Mulaudzi (EFF) asked for the pages to be numbered in the presentation. In the Administration Programme, it seemed that the Office itself was at risk from criminals. Computers had been stolen. Had OCJ involved the Office of State Security or Intelligence? If that could happen to highest court in the land, it was not good for the rest of the country. How far was the implementation of Section 166 of the Constitution? In respect of Education, he stated that there was a need for outreach programmes to educate people about the Constitutional Court, and OCJ. Was OCJ going to be undertaking outreach programmes in the townships? Were there media programmes for the poorest of the poor?

The Chairperson was interested in the Justice College which was responsible for training. Was there any training offered for newly appointed judges who could not present judgements on time and those who reserved judgements for a long time? No one heard about it until they went for interviews for promotion. What was the OCJ’s relationship with the Justice College and did the Justice College understand that traditional courts were part of the court system? Who developed the curriculum and who offered training to people in traditional courts? Who trained those trainers? Traditional law was not taught at the universities. How did the judiciary expect justice could be dispensed through traditional courts if the universities did not train in traditional law? What did that suggest about the courts in the country? Were traditional courts not considered? Roman Dutch Law and Common Law, which were foreign systems, were given a higher status than traditional courts in an African country, but why should the people have a system that came from countries that they had never been to?

He reminded the Secretary General that both of them had attended a judicial conference where it was mentioned that there were no full-time judges in the traditional courts. What was OCJ doing? The Committee wanted to have an oversight visit to a traditional court. They did not want to be seen as undertaking a witch hunt against her office.

A matter high on the agenda was land claims. Claims lodged since 1988 had not been attended to. Poor communities had paid lawyers but had seen no results in 20 years. What was the judiciary saying about that? What kind of justice was there for people in the country?

He also asked about the break-in in the offices of the OCJ. OCJ had reported the matter to SAPS but all had gone quiet and the Committee had not been told what had happened or the consequences of the missing files. What impact had its had on the judiciary? What about the Stakeholders forum? Had that forum reported back to the people? Did all of those things have to do with the unfunded mandate? To his mind, it had nothing to do with funding.

Response

Ms Sejosengwe responded that the JSC report to Parliament formed part of the OCJ reporting as OCJ played the role of secretariat. She was aware that the JSC Act had that clause about reporting and she would take up the matter with the Chief Justice as the Chairperson of the JSC. Ms Mothapo had raised a question about the Judicial Services Annual Report since 2014 …

The Chairperson interjected that she should not wait for the Committee to raise issues because the Chief Justice could not appear before Parliament and so she should be proactive and speak to the Chief Justice before she came to the Committee. It may be that she did not appear before the Committee for another ten months and society could not wait so long for an answer. The Committee expected proactivity on her part.

The Secretary General thanked the Chairperson and stated that she would take his guidance in those matters. She would speak broadly to judicial functions and how that impacted on the OCJ Report that did not contain certain targets that it had previously contained relating to the JSC report, land claims court, court hours and training of the judiciary and all matters in relation to court performance. She had taken the issues to the Chief Justice for input.

Previously the Chief Justice had appeared before Parliament and was asked all those questions. He had appeared before the Committee where some of those issues had been raised in 2014 and 2016 where the Chief Justice had expressed himself to the Committee on the accountability of judges and matters which fell within the judiciary space. OCJ merely played a supportive role in those matters. The matter had been discussed by the Minister and the Chief Justice, as well as the Head of Courts and the Portfolio Committee and all other forums. In addition, the responses to written questions from Parliament had indicated that the judiciary was not accountable. It therefore placed OCJ in a difficult position in that neither the OCJ nor she personally could be held accountable for matters relating to the content of the judicial function seeing that the Chief Justice had expressed himself on the matter in multiple forums. She begged the indulgence of the Committee and hope that it would understand that, in the light of her explanation, she could not respond to questions relating to the content of the judiciary system.

Ms Mothapo said that it was necessary for the Committee to find a way of getting information. The Committee was aware of the separation of powers, but she wanted a way of interacting with the Chief Justice.

The Chairperson said, for the record, that the Chief Justice was always ready to explain. He would set up a meeting so that the issues could be raised.

Ms Sejosengwe said that she would make the issues available to the Chief Justice. She moved on to the financial questions but understood that they related to past financial years. Mr Horn had asked about the compensation of employees’ budget CEO budget. Budget cuts did not address direct funds as they were protected. In response to the budget cuts, which were also effective in the outer years, OCJ had to manage the filling of positions and had focused mainly on curbing administration. Following discussions with Treasury and in the functional group, the ceiling for personnel had been lifted and OCJ would ensure that there were staff to provide the necessary support to the Courts.

The Chairperson stated that, before financial issues, she needed to address the issues such as the Land Claims Court.

The Secretary General pointed out that the matter of the Land Claims Court was an issue relating to content of the judiciary and she could not pronounce on the matter. There were four acting judges, including the acting Judge President, in the Land Claims Court which was affected by the legislation relating to Rural Development. She reminded the Chairperson that at the stakeholders meeting the previous year, she had indicated the concerns raised by the Committee on the Land Claims Court.

The Chairperson asked who appointed judges.

The Secretary General responded that the JSC appointed judges.

The Chairperson did not want to be racist, but the issues of the Land Claims Court dealt with the dispossession of people in the country and with people who did not speak English, but the judges in the Land Claims Court did not speak their languages. How were those judges going to develop jurisprudence? The conclusion was that the people had voted the government into power, but it did not take matters of the people seriously. The matter had to be raised sharply in the OCJ Report, otherwise the Committee could not represent the people in Parliament.

He accepted the OCJ’s explanation that certain matters did not fall within the scope of the OCJ. The OCJ had to provide a comprehensive report. Also, he would like a report regarding what was and was not the responsibility of OCJ. One could not have judges acting. In all the courts there were well-trained judges but with rural people, it was like a voluntary system.

Ms Sejosengwe noted that acting appointments were done by the Minister and final appointments were the prerogative of the JSC and the President. She agreed to raise the issues with the Chief Justice and hoped that the matters would be dealt with in the envisaged meeting between the Chairperson and the Chief Justice but pointed out that the Department of Rural Development had procured the lawyers to manage the deposits for land.

The Chairperson interjected. He expected that government departments should not operate in silos. He expected that departments in government had a forum to meet and deal with matters relating to the Land Claims Court. The Minister of Justice could not blame the Land Affairs Department. The Committee was only interested in the solution. How and when they met was not the Committee’s problem. Everyone – both Ministers and the Chief Judge - had to explain why there had been acting Judges in Land Claims Court for 20 years. Why were there acting judges in a critical court, the Land Claims Court? Why could they not address the issue of language? There were 11 languages, but the indigenous languages were still stepchildren. If the matter could not be resolved after ten years, Committee did not deserve to be in Parliament. Parliamentarians should pack up and go home if it could not deliver.

Ms Sejosengwe had made efforts to meet with the Rural Land Claims Commissioner. The Commission had said it was meeting with the Committee.

The Chairperson retorted that the National Lands Claims Commissioner had never ever attended meetings. He had not seen her. Land restitution had to be changed as it was dysfunctional. Ministries had to talk to each other. The Committee could not solve dysfunctionality in Departments. The bottom line was that the country could not have a dysfunctional justice system.

Ms Sejosengwe noted the comment. She explained that the Justice College did not train judges. The South African Judicial Education Institute (SAJEI) did that but OCJ coordinated training for judges. She asked Dr Moshoeu, the CEO, who was involved in the training of new judges to address questions in relation to this. She would tell them to focus on timeous judgements. COGTA was to take over but a new member on the Council would hopefully be able to take it up. Senior traditional leaders as well as senior magistrates who came from the traditional courts were involved in training.

Dr Moshoeu stated that there was training for judges and they had continuous development training on the writing up of judgements etc, during the recess. A Committee of senior judges had been set up to look at training offered for judges. When they meet in two weeks’ time, she would be sure to inform them of the points made by the Committee, especially the timeous writing up of judgements. SAJEI had been involved in the training relating to traditional courts but after an engagement with COGTA, it had been decided that COGTA would take over the training. Unfortunately, that had not been successful but there was a new member of the House of Traditional Leaders whom they were hoping would be able to re-activate that programme. It was important to work with COGTA on the programme. Traditional leaders together with senior magistrates who came from the traditional leadership had delivered the training. Currently, they did not have a programme on indigenous African law. She, however, noted the concern and would take up the issue of training in indigenous law with the three levels of the judiciary.

The Chairperson stated that the National House of Traditional Leaders was an advisory body. It was not an executive structure, so how could OCJ rely on an official of that House? The Office had to rely on COGTA, which was an executive structure and had to take responsibility; they could not rely on advisory structure. A government programme could not be suspended for three years of a five-year term of office while earning from the public purse. OCJ should not rely on COGTA. OCJ had to tell them what it required. They should perform or ship out.

Ms Sejosengwe responded to the question on the break-in. The OCJ shared a security service under a private arrangement shared with DoJ&CD. The OCJ had heard that the case had been withdrawn so no one had been tried or found guilty of the break-in. Subsequent to the break-in, security had been improved. Security around the building had been upped as far as possible within budget but she did not want to provide details for security reasons. The ministry of Police had promised to provide security but that had not been implemented, so it had been raised again two weeks previously. The Chief Justice had met with the Minister about the need for the police to manage security of the OCJ.

Ms Sejosengwe asked what Mr Mulaudzi needed to know in relation to Section 166. She reiterated that

OCJ was under extreme financial strain but outreach programmes were contained in the long-term plans.

The CFO responded to the comment that there had been underspending in 2016/17, stating that OCJ had spent 98% of its total budget. Underspending had come about as a result of the ceiling on personnel expenditure in the outer years, so the entity could not afford to fill all the posts as there would not have been funds to pay them in the outer years. The same situation might also be relevant for 207/18 as Treasury had, only in 2018/19, adjusted the ceiling on personnel spending. Goods and services and capital had always shown 100% expenditure. R20 000 had been spent on fruitless and wasteful expenditure in 2016/17, which represented 0.001% of the budget and he understood that that was an extremely low figure. In response to the question on the Integrated Justice System (IJS) budget, he said that in 2017/18, OCJ had spent 100% of the IJS budget of R41 million, which was a major improvement.

Ms Sejosengwe stated that she had been advised that the question on Section 166 of the Constitution referred to a single judiciary. She would have expected the DoJ&CD to report to the Committee on the Lower Courts Bill. The Bill had not yet been implemented and the process fell under DoJ&CD. An Inter-Ministerial team had been formed to discuss policy options and policy arrangements taking place. The Judiciary had long since submitted its approach. The Chief Justice was leading the policy discussions. When decisions had been made, guidance would be given to the OCJ to deal with the matter. The judiciary had long since submitted its model which would unlock the process.

The Chairperson said that there were only three tiers of government. The Committee was not interested in internal higher levels. The OCJ had to report on all levels of the judiciary and the executive. He was not interested in inter-ministerial things. They had nothing to do with the Committee and the people. He told Members not to talk about Section 166: not everyone knew what it was about. The lower courts were outside of the control of OCJ.

Ms Sejosengwe noted the criticism. The very blunt answer to the question about the Lower Court Bill was that it was outside the control of the OCJ.

Mr Horn noted that the OCJ was still working towards a judiciary-led administration model of courts. The Minister had explained in his political briefing earlier that week that the Ministers were wrestling with the issue. He asked if there had been meaningful engagement with OCJ on the matter? A year or two previously, there had been differing opinions between the Chief Justice and the Minister. Was the OCJ involved? Had the issues been resolved between the Minister and the Chief Justice?

The Chairperson suggested that if the Minister could not address the issue, he had to go to the executive and get the President to deal with the issue. The Committee did not want to hear about wrestling. When appearing before the Committee, the OCJ had to provide answers. The OCJ was doing its best but was being failed by other levels. Where OCJ had not been given answers that should be reflected in their report.

Mr Mulaudzi stated that Section 166 stated that there had to be a single judiciary system and Minister had promised the establishment of a single judiciary system. How far was that compliance with the Constitution?

The Chairperson said that it was about implementing the Constitution of the country. Parliament wanted the implementation of Constitution. Two people could not prevent the implementation of the Constitution. Parliament did not want changes to the Constitution: it had to be implemented.

The Secretary General said that she acknowledged the lamentations and that the issues were known. The matter had served before the head of courts. The OCJ was in a difficult position between the executive and the judiciary but wanted the lower courts to come home. The Chief Justice and the Minister were trying to unlock the situation. There was not much that she could do as a bureaucratic, as policy directions had not been given to her. She noted and lamented the situation.

The Chairperson told the Secretary General to put all of those points in the report. The Committee would put the question to the leader of government business as to why the two people were not performing as the Constitution had to be implemented.

The Secretary General noted the instruction and declared that she had covered all the questions put to her.

The Chairperson said that justice could not be qualified. Without justice, people would lose confidence. Many people just wanted to live in safety and security. He did not want the police to be chasing more people. Those who had to implement the Constitution were not doing so. He could see the frustration of the OCJ, but they had to capture those points in the reports. They had to make sure that they did not fail because of the challenges with other people. The Committee was happy with the work that OCJ was doing and should keep up the good work. OCJ had a competent team.

Ms Sejosengwe thanked the Committee for its confidence and also for its guidance.

The Chairperson added that the financial constraints were noted. He did not want to hear about financial constraints and underspending. Failure to spend was failure to deliver.

Ms Sejosengwe thanked the Chairperson and asked him to note that the OCJ had always spent over 90% of its year-on-year budget.

The meeting was adjourned