ATC150518: Report of the Portfolio Committee on Justice and Correctional Services on Budget Vote 22: Office of the Chief Justice and Judicial Administration, dated 13 May 2015

Justice and Correctional Services

(The following report replaces the Report of the Portfolio Committee on Justice and Correctional Services, which was published on page 1782 of the Announcement, Tablings and Committee Reports of 15 May 2015)

Report of the Portfolio Committee on Justice and Correctional Services on Budget Vote 22: Office of the Chief Justice and Judicial Administration, dated 13 May 2015

 

The Portfolio Committee on Justice and Correctional Services, having considered Budget Vote 22: Office of the Chief Justice and Judicial Administration, reports as follows:

 

1.             Introduction

 

1.1.         The Office of the Chief Justice (OCJ) is a new Department that became fully operational from 1 April 2015 with its own budget Vote. It was proclaimed a national Department on 23 August 2010, as an interim arrangement pending the OCJ becoming fully operational. A memorandum of understanding was signed between it and the Department of Justice and Constitutional Development on 26 January 2012 to progressively transfer administrative support functions to the OCJ relating to the Judicial Services Commission; the South African Judicial Education Institute, the Constitutional Court and the Supreme Court of Appeal. It was later suggested that all superior courts and the specialized courts be transferred as well. In August 2013, the Constitution 17th Amendment Act, 2013, and the Superior Courts Act, 2013, came into effect providing the legislative basis for institutional judicial reforms: The Constitution Seventeenth Amendment Act affirms the Chief Justice as head of the Judiciary responsible for establishing and monitoring the norms and standards for the exercise of judicial functions of all courts. The Superior Courts Act establishes a legislative framework for the Chief Justice to exercise his/her judicial leadership supported by the OCJ and provides for the delegation of certain functions flowing from the Act to the OCJ. A Budget Programme Structure was approved by National Treasury on 12 April 2013. The transfer of administrative functions and identified staff attached to the Superior Courts from the Justice Department to the OCJ began on 1 October 2014. The Secretary-General is the accounting officer for the OCJ. Notably, the Justice Department continues to support the administration of the magistrate’s courts.

 

1.2.         The OCJ’s annual budget for the MTEF is R1.6 billion for 2015/16, R1.7 billion for 2016/17 and R1.8 billion for 2017/18. These funds were transferred from the Department of Justice and Constitutional Development for the Constitutional Court, the Supreme Court of Appeal, the high courts and the specialised courts. The funds also provide for the administrative staff transferred from the Department tasked with supporting the judicial functions of the Superior Courts, as well as other staff attached to the Department whose roles are directly connected to the superior courts. Further, the direct charge for Judges’ salaries are included in the OCJ’s budget as well as the allocations for the Judicial Service Commission and the South African Judicial Education Institute.

 

1.3.         The Office of the Chief Justice presented its Strategic Plan (2015 – 2020) and Annual Performance Plan 2015/16, as well as its 2015 MTEF budget on 21 April 2015. This marks a milestone in the transformation of the Judiciary, as this is its first appearance as a new Department.

 

1.4.         The presentation can be obtained from the Committee Secretary.

 

 

2.             Overview of the Vote for the 2015 MTEF

 

Table 1: Budget allocation for the Office of the Chief Justice per programme

Programme   (R million)	2015 MTEF				% of total allocation
	2015/16	2016/17		2017/18
Administration	69.4		73.3	77.8	9
Judicial Support and Court Administration	640.4		696.5	735.7	86
Judicial Education and Research	32.6		34.5	36.4	4
TOTAL	742.4		804.3	849.9	100
Judges’ Salaries	873.7		920.1	966.1	-
TOTAL	1 610.0		1 720.0	1810.0	-

 

2.1.         The overall allocation to the Office of the Chief Justice and Judicial Administration for 2015/16 is R1.6 billion. A total of R742 million is allocated among the Vote’s three programmes for operations, while an amount of R873 million is a direct charge for judges’ salaries.

2.2.         In addition, an amount of R16 million is reprioritised from Justice to the OCJ for compensation of employees and accommodation leases.

2.3.         The bulk of spending goes to compensation of employees. The OCJ has 1 766 posts, of which 1442 are filled. The 324 unfilled posts are unfunded.

2.4.         The OCJ identifies the following unfunded mandates that create a shortfall of R100.8 million for 2015/16. The Department of Justice and Constitutional Development is assisting with an amount of R25 million, leaving the OCJ with a shortfall for 2015/16 of R75.8 million:

·                     Capacitation of the administration component of the OCJ to fund remuneration of staff currently employed at the OCJ: There is a shortfall of R15.3 million as insufficient funds were initially allocated in the Compensation of Employees budget when the OCJ was first established. The Justice Department has transferred R8.5 million to the OCJ for the 2015/16.

·                     Capacitation of offices of Heads of Court: Administrative staff are required in the offices of the Heads of Court to assist with the implementation of the Provincial Efficiency Enhancement Committees (PEEC), case-flow management, and monitoring of court performance and norms and standards. The requested funds are for 11 Deputy Directors and 11 Administrative Officers.

·                     Operational costs as a result of transfer of functions: Funds are required to fill critical vacancies at various levels of the OCJ to ensure proper administration once the Superior Courts are transferred. The OCJ does not have a regional footprint to support courts. The current transfer of Department of Justice personnel at regional level is only up to ASD level with no level 5-8 capacity for administration. An amount of R20 million is required for this. The transfer of the Superior Courts will also require additional operating funds for Internal Audit cost, Auditor General account, telecommunications cost, litigation fees, courier services, and communications. An amount of R15 million is required to provide for this.

·                     Court performance monitoring system. An amount of R15 million is needed to create capacity to analyse court statistics for enhanced monitoring of court performance by Heads of Court relating to the implementation of the norms and standards.

·                     Judicial education. An amount of R15 million is needed to expand training programmes to newly appointed magistrates and to conduct targeted training for Judges to improve their capacity. The Department of Justice has agreed to fund R10 million for training in 2015/16.

·                     Office accommodation. An amount of R7.5 million is required to secure a new head office for the Judiciary. This amount is in addition to the budget for Edura House and includes the increased amount required for municipal rates and services. The Department of Justice has transferred R6.5 million for this purpose.

·                     Office furniture. The OCJ requires R2 million to equip the new offices with furniture.

 

 

3.             Office of the Chief Justice (OCJ)

 

3.1.         The Secretary-General presented the OCJ’s Strategic Plan 2015-2020 and 2015/16 Annual Performance Plan.

 

3.2.         The OCJ is mandated to provide support to the Chief Justice in his or her dual role as the Head of the Judiciary and the Constitutional Court, respectively. The Strategic Plan seeks to support the judicial reforms aimed at improving the efficiency and effectiveness of the administration of the courts.

 

3.3.         Over the MTSF the OCJ has aligned its plans with the NDP/MTSF 2014 – 2019 as follows:

·                     Administration is linked to Outcome 12: An efficient and effective development-orientated public service.

·                     The programmes Judicial Support and Court Administration and Judicial Education and Research are both linked to Chapter 14 of the NDP: Strengthening judicial governance and the rule of law.

 

3.4.         In line with the NDP/MTSF 2014 – 2019, the OCJ has identified the following key focus areas:

·                     Judicial selection and appointment, judicial ethics, the leadership and management of the judiciary and the administration of the courts.

·                     Training of judicial officers.

·                     Accelerated reforms to implement a judiciary-led independent court administration.

 

3.5.         The OCJ has the following broad strategic outcome-orientated goals.

·                     Capacitate the Office of the Chief Justice.

·                     Support the Chief Justice in fulfilling his/her functions as Head of the Judiciary.

·                     Render effective and efficient administration and technical support to the Superior Courts.

 

3.6.         The OCJ has identified the following as key risks to its operations:

·                     Administration: Inadequate capacity to optimally operationalise the OCJ under the new Superior Courts Administration dispensation. The OCJ intends to recruit and retain skilled personnel and technical expertise. On funding, National Treasury is being approached to review unfunded mandates and donor-funding is to be explored

·                     Judicial Support and Court Administration: Transitional challenges relating to the transfer of functions from the Department of Justice and Constitutional Development to the OCJ; and inadequate systems to measure court performance. The OCJ has on-going engagements with stakeholders to ensure a phased -in approach and adequate control measures. The superior court performance system is to be enhanced.

·                     Judicial Education and Research: Inadequate capacity to provide training to the judicial officers. The OCJ is exploring developing an e-learning system, as well as partnerships with relevant stakeholders.

 

3.7.         As described in paragraph 2.4, a key concern is that the OCJ’s strategic and annual performance plans are underfunded to the amount of R75.8 million for 2015/16.

 

 

4.     Programmes, budget and plans

 

4.1.            Programme 1: Administration

 

4.1.1.    The Administration programme is allocated R69.4 million in 2015/16 (for the Management, Corporate Services, Financial Administration, Internal Audit and Risk Management, and Office Accommodation subprogrammes). The programme receives 9% of the total allocation to the Vote’s programmes.

 

4.1.2.    The purpose of this programme is to provide strategic leadership, management and support services.

 

4.1.3.    Administration has the following objectives:

·                     Ensure effective and efficient management and overall administration of the department.

·                     Render effective corporate support services to the Judiciary and the department.

·                     Render financial, supply chain and asset management to the Judiciary and the department.

·                     Ensure good governance in the administration of the department.

·                     Ensure sound acquisition of office accommodation for the department.

 

4.1.4.     There are 14 performance indicators, linked to the five subprogrammes. Selected indicators and targets are provided below:

 

Table 2: Administration - selected indicators and targets

Subprogramme	Performance Indicators	Targets
		2014/15	2015/16
Corporate Services	Percentage of identified critical posts filled	80% (32)	90
	ICT Master Plan	Draft ICT Master Plan	ICT Master Plan developed
Finance Administration	Percentage received of invoices paid within 30 days	80%	100%
Internal Audit and risk management	Percentage of reported fraud cases investigated within 60 days	100%	100%
Office Accommodation	Temporary office accommodation	Office accommodation acquired	-

 

4.2.            Programme 2: Judicial Support and Court Administration

 

4.2.1.    The Judicial Support and Court Administration programme is allocated R640 million in 2015/16 (for the Administration of Superior Courts, Judicial Services Commission, Constitutional Court, Supreme Court of Appeal, High Courts, and Specialised Courts sub-programmes.) This programme is the core programme and accounts for 86% of programme spending.

 

4.2.2.    The High Court’s sub-programme consumes 73.9 per cent (R473.4 million) of this programme’s budget, with the Constitutional Court allocated 10.6% (R68.4 million) and the SCA 3.9 per cent (R25.2 million). The Administration of Superior Courts which provides administration and technical support to the superior courts, monitors the overall performance of the superior courts and enhances judicial stakeholder relations is allocated only 3.3 per cent (R21.2 million) of the budget. This is in contrast with the administration of lower courts subprogramme in the Justice Department which has a budget of R475.6 million for 2015/16. The purpose of this programme is to provide judicial support and court administration services to the superior courts, including secretariat and administrative support services to the Judicial Services Commission.

 

4.2.3.    The OCJ has identified case backlogs, postponements of cases, lack of adherence to trial dates and reserved judgements as key challenges that must be addressed to improve the efficiency and effectiveness of the superior courts:

 

4.2.4.    Judicial Support and Court Administration has the following objectives:

·                     Ensure effective and efficient administration of the Superior Courts by:

 

Ø     Producing 3 monitoring reports on the performance of the superior courts in 2015/16, and 5 reports per year in 2016/17 and 2017/18

Ø     Producing 3 monitoring reports on judicial norms and standards in 2015/16, and 5 reports per year in 2016/17 and 2017/18.

 

·                     Render secretariat and administrative support services to the JSC.

·                     Enhance efficiency and timeous delivery of judgements in the superior courts by monitoring the implementation of norms and standards and producing performance reports that support the work of the:

Ø     Constitutional Court and Supreme Court of Appeal to finalise 80% pf cases each year between 2015/16 and 2017/18.

Ø     High Courts to reduce the number of criminal backlog cases from 281 cases in 2014/15 to 106 cases in 2017/18; to increase the finalisation of criminal cases with a verdict from 60% in 2014/15 to 66% in 2017/18; and to increase the finalisation of civil cases from 52% in 2014/15 to 56% in 2017/18.

Ø     Specialised courts to increase the finalisation of cases from 50% in 2014/15 to 56% in 2017/18.

 

4.2.5.    The programme has 24 performance indicators. Selected indicators and targets are provided below:

 

Table 3: Judicial Support and Court Administration - selected indicators and targets

Performance indicators	Targets
	2014/15	2015/16	2016/17
Number of Superior Court performance monitoring reports produced	1	3	5
Number of Monitoring reports on Judicial Norms and Standards	1	3	5
Percentage of Default Judgments granted by Registrars	-	55%	60%
Percentage of Taxations finalised	-	62%	64%
Customer service improvement plans developed and implemented in all Superior Courts	-	Customer service improvement tool developed and piloted in 6 Superior Courts	Customer survey conducted in all Superior Courts
Percentage of cases finalised: CC	60% (160)	80%	80%
Percentage of cases finalised: SCA	70%	80%	80%
Number of criminal cases on the backlog roll: HC	281	206	156
Percentage of criminal cases finalised with a verdict: HC	60% (810)	62%	64%
Percentage of civil cases finalised: HC	-	52%	54%
Percentage of reserved cases finalised	-	70%	70%
Percentage of Labour Court cases finalised	50%	52%	54%
Percentage of Land Claims Court cases finalised	50%	52%	54%
Percentage of Electoral Court cases finalised	-	90%	90%
Percentage of Competition Appeal Court cases finalised	-	72%	72%

 

 

4.3.            Programme 3: Judicial Education and Support

 

4.3.1.    The Judicial Education and Support programme is allocated R32.6 million (for the South African Judicial Education Institute and Judicial Policy and Research subprogrammes).

 

4.3.2.    The programme provides education programmes to judicial officers, including policy development and research services for the optimal administration of justice.

 

4.3.3.    The objectives of the Judicial Education and Research Programme are to:

·                     Capacitate serving and aspirant judicial officers to perform optimally by increasing judicial education courses from 60 in 2014/15 to 75 in 2017/18.

·                     Enhance the governance of the judiciary and the OCJ by increasing the number of opinions on policy development.

 

4.3.4.    The OCJ has developed three performance indicators for this programme which are linked to the two sub-programmes. Selected indicators and targets are set out in the table below:

 

Table 4: Judicial Education and Support -selected indicators and targets

Subprogramme	Performance indicator	Targets
		2014/15	2015/16
South African Judicial Education Institute	Number of judicial education courses conducted	60	65
Judicial Policy and Research	No of advisory opinions on policy development and regulatory services	10	14
	Percentage of disclosures for judges registrable interests	80%	100%

 

4.3.5.    Inadequate funding of SAJEI is identified as a challenge, especially as 157 district court magistrates are to be appointed by 1 February 2016. SAJEI will not have the funds to train all newly appointed magistrates.

 

4.3.6.    The OCJ indicates that it intends to develop following policies:

·                     A policy relating to the designation of the Chief Justice as Head of the Judiciary.

·                     A policy to regulate the transfer of court administration functions from the Justice Department to the judiciary.

·                     A policy to operationalise the establishment of the Office of the Chief Justice as a National Department.

·                     Judicial Accountability Policy.

·                     Policy to clarify the constitutional obligations of the organs of state to assist and protect the courts to ensure their independence, accessibility, dignity and effectiveness.

·                     Judicial Handbook for Judges’ Benefits.

 

5.     Committee’s observations

 

5.1.            The Committee congratulates the OCJ on becoming a new Department with its own budget Vote from 1 April 2015. The Committee commends the OCJ for the overall progress it has made and, in particular, is pleased that it developed its Strategic (and Annual Performance) Plan 2015-2020 without the assistance of consultants.

 

5.2.            In addition to engaging with the Secretary-General on the OCJ’s performance and funding needs as part of this process, the Committee recently met with the Chief Justice and representatives from the judiciary to discuss matters of common concern. This engagement proved extremely constructive and the Committee looks forward to similar engagements in the future. The Committee will consider its report on the outcome of this engagement.

 

5.3.            Strengthening judicial governance and the rule of law is a government priority. The Committee notes that the transfer of administrative functions and identified staff attached to the Superior Courts began in October 2014. The OCJ is headed by the Minister of Justice and Correctional Services, as its executive authority, with the Secretary-General as the administrative head. In this capacity, the Secretary General acts as the Minister’s proxy, engaging and consulting with the Chief Justice and other heads of Court in respect of the administration of the Superior Courts. While the Chief Justice controls the judicial functions of the Superior and Lower courts, the Department continues to support the administration of the magistrate’s courts.

 

5.4.            The Committee notes with concern the considerable shortfall in funding (approximately R75.7 million for 2015/16). It is informed that the approach towards making funds available to the Vote has been first to transfer the functions and accompanying resources and then only to look at what additional resources are needed. The Committee is told also that, historically, the Superior Courts were underfunded – a situation that the OCJ has now inherited. The OCJ’s position is exacerbated further by the lack of funding for the implementation of the Superior Courts Act, which establishes a legislative framework for judicial governance.

 

5.5.            The Committee notes that the Department of Justice and Constitutional Development has assisted the OCJ with additional funds to subsidise the shortfall in the amount of approximately R25 million and has absorbed the budget cuts that the OCJ would have otherwise needed to implement. In the Committee’s view, to burden the OCJ with unfunded mandate so early in its life is unwise, as it may well undermine its ability to play the pivotal role envisaged in driving transformation in the judicial system. The Committee is told that the OCJ is engaging with National Treasury on its forward funding needs, and is even considering sourcing donor funding (something that the Committee is cautious about). The Committee, however, asks that the OCJ provide it with details of its funding needs, in writing. The Committee also wishes to draw the OCJ’s attention to the Budget Review and Recommendation Report process in October of each year. Both the Budget and BRRR processes are key opportunities for the OCJ to engage with the Committee not only on performance but also on its funding needs and priorities.

 

5.6.            The Committee is concerned that the lack of funds will undermine the OCJ’s ability to recruit and retain the requisite expertise for it to be able to perform its mandate, in particular its mandate with regard to implementation of the Superior Courts Act, efficiently and effectively. Of an approved establishment of 1766, a total of 324 positions (18%) are unfilled and unfunded, while at SMS level 10 of 38 (26%) positions are unfilled and unfunded. In the Committee’s view a lack of critical capacity, particular at senior management level, poses a considerable risk to the OCJ’s effective and efficient functioning.

 

5.7.         The Committee urges that funding be made available as a matter of urgency for the OCJ to be able to fulfil its mandate in terms of the Superior Courts Act, especially now that the transfer of functions has taken place. In its view, the failure to fully fund the Act could be interpreted as a lack of commitment by government to strengthening judicial governance and the rule of law. The Committee feels that incremental implementation of this law is not desirable, as an untransformed and inaccessible judicial system undermines the legitimacy of the courts in eyes of the people and the judiciary. This is harmful to the rule of the law and does not further the transformative promise of our Constitution. The Committee urges Treasury to make the necessary funds available now that the transfer of functions has taken place.

 

5.8.         The Committee also notes that the OCJ does not yet have a footprint in provinces to effectively support implementation of the Superior Courts Act to address fragmentation of the institutional structure and administrative processes. This is a concern, as rationalisation of structures and processes for improved administration is vital to the effective and efficient administration of court services. The OCJ has also inherited functions from the Department of Justice and Constitutional Development Regional Offices but it does not have the funds carry out those functions.

 

5.9.         Further, the OCJ has indicated to the Committee that it does not have sufficient funds for administrative staff in the offices of the Heads of Court to assist with the implementation of the Provincial Efficiency Enhancement Committees (PEEC), case-flow management, and monitoring of court performance and norms and standards. The Committee is told that, at present, the Department is assisting the OCJ for the time being.

 

5.10.        The Committee is also concerned at the lack of funds for the work of the South African Judicial Education Institute. The Department has made some funds available so that SAJEI can train newly appointed magistrates, and the OCJ is developing an e-learning system and exploring possible partnerships with stakeholders to supplement its capacity. The SAJEI performs a vital role in providing education to the judiciary and supports transformation initiatives and should be adequately resourced. 

 

5.11.          The Committee is of the view that in improving access to justice, we should make better use of what is already in place. In this regard, our traditional courts can considerably ease the burden on our courts but need the necessary legislative framework to ensure that constitutional concerns are properly addressed and that these courts are appropriately resourced. Legislation to regulate the Traditional Courts has a very long history: it was first introduced in the Third parliament where it lapsed; was revived, withdrawn and then reintroduced in the Fourth Parliament where once more it lapsed. Failure to finalise the Traditional Courts Bill means that the status and recognition of indigenous African law remains subordinate to that of other laws in this country. The Committee notes that while the SAJEI has been involved in training of traditional leaders but is challenged with regard to funding. The Committee is informed that SAJEI has engaged with the Department of Co-operative Governance and Traditional Affairs in this regard. The Committee urges that SAJEI engage with traditional leaders to develop a standard curriculum so that what it is taught at training is indigenous African law and not so called ‘customary’ law.

 

5.12.       The Committee is interested to hear that there has been a successful challenge to the Regulations that require retired judges to disclose their business interests. The Committee is aware that at the time the legislation was drafted there was considerable debate regarding the desirability of including retired judges in the disclosure requirements. However, it appears that a retired judge must still disclose if called to perform judicial service and the parties ask for disclosure to be made.

 

5.13.          The Committee supports a single judiciary under the leadership of the Chief Justice. The Committees notes that the administration of lower courts does not as yet form part of the OCJ’s mandate. The Committee understands that the necessary legislation (similar to that of the Superior Courts Act, 2013) that will allow for a single judiciary is being drafted and urges the Department prioritise its introduction. The Committee is unclear at this stage how the separate administration of the Superior and lower courts impacts on the delivery of justice services or on the Chief Justice’s ability to drive the initiatives introduced that are intended to address challenges relating to the underperformance of courts.

 

 

6.     Recommendation

 

6.1.         The Committee, having considered the Budget Vote 22: Office of the Chief Justice and Judicial Administration, supports it and recommends it’s approval with the Democratic Alliance reserving its position.

 

6.2.         The Committee recommend that now that the OCJ is established as a new Department with accompanying functions and budget, consideration be given to reviewing its baseline allocation to ensure that shortfalls in funding for the implementation of the Superior Court Act, 2013, in particular, are addressed.

 

 

7.     Appreciation

 

7.1.         The Committee thanks the Secretary-General: Office of the Chief Justice and her team for appearing before the Committee.

 

 

Report to be considered