ATC181024: Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 24 October 2018

Justice and Correctional Services

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 24 October 2018
 

The Portfolio Committee on Justice and Correctional Services, having considered the performance and requests for additional allocations for the medium term period of the Office of the Chief Justice and Judicial Administration, reports as follows:

 

1. Introduction

 

1. The Money Bills Procedure Amendment and Related Matters Act 9 of 2009 sets out the process that allows Parliament to make recommendations to the Minister of Finance to amend the budget of a national department. In October of each year, portfolio committees must compile Budgetary Review and Recommendation Reports (BRRR) that assess service delivery performance given the available resources; evaluate the effective and efficient use and forward allocation of resources; and may make recommendations on the future allocation of resources. The annual review of expenditure and performance for 2017/18 also forms part of this process.

 

1. On 1 April 2015, the Office of Chief Justice (OCJ) became a fully-fledged Department with its own Vote – Vote 22: Office of the Chief Justice and Judicial Administration. The administration for the Superior Courts, Judicial Services Commission (JSC) and South African Judicial Education Institute (SAJEI) were transferred to the OCJ, together with the budget and personnel, from the Department of Justice and Constitutional Development. The funds for judges’ salaries were also transferred to the new Vote.

 

1. On 16 October 2018, the Committee engaged with the Office of the Chief Justice on its annual performance and spending for 2017/18.

 

1. The Committee met with the Auditor-General on the audit outcomes for the Vote on 9 October 2018.

 

1. Copies of all the presentations are available from the committee secretary.

 

1. Strategic overview

 

1. Strengthening judicial governance and the rule of law is considered vital to further the transformative promise of our Constitution.

 

1. On 23 August 2010, the President proclaimed the Office of the Chief Justice (OCJ) as a national department within the public service. The intention was that this would be the first phase towards an independent judiciary-led court administration system to realise fully the Judiciary’s institutional independence in line with the Constitution, 1996, and the Superior Courts Act, 2013.

 

1. The Constitution Seventeenth Amendment Act, 2013, 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, 2013, 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.

 

1. The Minister of Justice and Correctional Services heads the OCJ as its Executive Authority, while the Secretary-General is the accounting officer. 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 administrative functioning of the Superior Courts, while the Chief Justice is in charge of the judicial functions of the Superior and Magistrates’ Courts. However, until the legislative framework for the Magistrates’ Courts has been overhauled to transform these courts in line with the Superior Courts Act, 2013, the Justice Department will continue to provide the necessary administrative support to the Magistrates’ Courts.

 

1. Strategic priorities 2015 – 2019

 

1. The NDP recommends a judiciary-led independent court administration. To strengthen judicial governance, the NDP also identifies the need for a strategy to improve the quality of judges through appointments and the scaling up of judicial training.

 

1. The OCJ contributes to the National Development Plan’s (NDP) call for strengthened judicial governance and the rule of law, and also to ensuring an efficient and effective criminal justice system in support of Outcome 3 of the Medium Term Strategic Framework 2014-2019 (MTSF) – ‘All people in South Africa are and feel safe’. In addition, the OCJ contributes to creating a capable state by:

• Accelerating reforms to implement a judiciary-led court administration.
• Ensure an efficient court system.
• Reduce court administration inefficiencies.
• Ensure judicial accountability.
• Provide training to the judiciary though SAJEI.

 

1. The OCJ has aligned its plans to the NDP and the MTSF, as follows:

• Administration is linked to Outcome 12 of the MTSF: An efficient and effective development-orientated public service.
• Both the Superior Court Services and Judicial Education and Research programmes are linked to Chapter 14 of the NDP: Strengthening judicial governance and the rule of law. Relevant MTSF targets are:
  • The reduction of the number of cases on the roll for more than two months (High Courts); and
  • The finalisation of criminal cases with verdict (High Courts).

 

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

• Capacitate the Office of the Chief Justice: Secure adequate human resources for the OCJ to enable it to carry out its mandate effectively by attracting and recruiting competent personnel.
• Support the Chief Justice in fulfilling his/her functions as Head of the Judiciary: Enable the Chief Justice as head of the Judiciary to deliver on his/her consitutional mandate by providing administrative support.
• Render effective and efficient administration and technical support to the Superior Courts: Support the efficiency of the Superior Courts in the provision of their services to improve case finalisation rates and reduce case backlogs by providing continuous administrative and technical support.

 

1. In 2017/18, the OCJ revised its indicators to reflect only performance that is in its control and mandate. Consequently, all indicators relating to court performance were removed with the exception of quasi-judicial functions.

 

1. Audit outcome

 

1. The OCJ received an unqualified audit opinion with no material findings (clean audit opinion).

 

1. Human resources

 

1. At the end of 2017/18, the number of filled posts at the OCJ was 1811 with a vacancy rate of 4.6% (the number of approved posts is 1 898). The filling of posts was affected by the budget ceiling on compensation of employees for the MTEF so that only identified critical posts were advertised and filled.

 

1. Financial performance

 

1. Budget allocation

 

1. The OCJ received R1.99 billion for 2017/18 and is allocated R2.1 billion for 2018/19. These amounts include a direct transfer for judges’ salaries. The budget is expected to increase to R2.3 billion in 2019/20 and R2.5 billion in 2020/21.

 

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

Programme	Adjusted Appropriation 2017/18	MTEF
		2018/19	2019/20	2020/21
	R ’million	R ’million	R ’million	R ’million
Administration	183.7	201.9	213.9	227.4
Superior Court Services	758.7	838.9	900.1	965.3
Judicial Education and Support	76.9	79.0	83.6	89.1
Subtotal	1 019.3	1 119.7	1 197.7	1 281.9
Direct Charge: Judges’ Salaries	966.1	1 022.1	1 098.5	1 180.9
Total	1 985 4	2 141.8	2 296.2	2 462.8

 

1. The allocation to programmes in 2017/18 was as follows:

• The allocation for Administration increased from R142.2 million in 2016/17 to R177 million in 2017/18. In 2018/19, the programme is allocated R201.9 million. The spending focus for this programme is on capacitating the OCJ by reducing the vacancy rate and by implementing the ICT Master Systems Plan to ensure effective support to the Judiciary and the courts.
• The allocation to Superior Court Services increased from R686 million in 2016/17 to R760 million in 2017/18. In 2018/19, the programme is allocated R838.9 million. The spending focus over the medium term remains that of improving the court system through effective and efficient case-flow management.
• The allocation for Judicial Education and Support Services increased from R44.9 million in 2016/17 to R82 million in 2017/18. In 2018/19, the allocation for the programme is R79.0 million. The spending focus is on capacitating the South African Judicial Education Institute in support of the NDP and ensuring that the Institute delivers on its mandate.
  1. The OCJ reports the following spending priorities:
• The operationalization of the Superior Courts Act is prioritised over the medium term. The OCJ, therefore, receives an additional R134 million over the MTEF, as follows: R58 million in 2017/18, R34 million in 2018/19 and R42 million in 2019/20. These amounts go to the Judicial Support and Court Administration programme for additional capacity in the Judge Presidents’ offices to co-ordinate judicial functions and to ensure that judicial norms and standards are implemented, monitored and reported on.
• The OCJ also receives R18.8 million in 2017/18 and R2 million in 2018/19 to facilitate the appointment and training of judicial officers.

 

1. During the 2018 Budget hearings, the OCJ indicated unfunded mandates of R144.8 million in 2018/19; R158.1 million in 2019/20; and R171.3 million in 2020/21. These relate to:

• Implementation of the Superior Courts Act (R40 million in 2018/19; R42.8 million in 2019/20; and R45.8 million in 2020/21).
• Consequential costs for judicial appointments (R11.1 million in 2018/19; R12.3 million in 2019/20; and R13.9 million in 2020/21).
• Judicial projects (R32 million in 2018/19; R33.5 million in 2019/20; and R35 million in 2020/21);
• ICT for court modernisation projects (R45 million in 2018/19; R50 million in 2019/20; and R56 million in 2020/21); and funding of the macro structure (R16.8 million in 2018/19; R19.5 million in 2019/20; and R20.7 million in 2020/21).

 

1. Spending 2017/18

 

1. In 2017/18, the OCJ spent R997.5 million of the final allocation of R1.02 million for programmes or 97.9%, with underspending of R21.8 million. The underspending relates mainly to the putting on hold of the filling of vacancies in order to manage expenditure patterns and ensure that the compensation of employees’ budget ceiling for the outer years of the MTEF period is not exceeded.

 

1. Expenditure at Programme level was as follows:

• Administration spent R167.7 million of a final allocation of R177.4 million. There was R9.7 million in underspending, which related largely to the non-filling of vacancies.
• Superior Courts Services spent R748.2 million of a final allocation of R760.3 million. There was underspending of R12.1 million, which again related largely to the non-filling of vacancies.
• Judicial Education and Research spent R81.6 million of a final allocation of R81.6 million, with R19 000 unspent.
• Under the Direct Charge, R998.4 million (103.3%) was spent against the final allocation of RR966.1 million. The overspending on the statutory allocation was R32.3 million, which was related to the 4% increase for Judges’ salaries. However, overspending on the statutory fund does not amount to unauthorized expenditure.

 

1. Performance

 

1. The OCJ reports the following achievements for 2017/18:

• An unqualified audit outcome for 2017/18.
• Operationalisation of the Limpopo High Court.
• The launch of the new website for the Constitutional Court, as well as the OCJ, to improve public access to information about the Judiciary.
• A total of 94.5 of funded vacant posts were filled at 31 March 2018.
• The Information Security Framework was developed.

 

1. In 2017/18, the OCJ improved its overall performance to achieve 100% of its 19 planned targets (compared to 85% in 2016/17), spending 97.9% of the final allocation for programmes to achieve this.

 

1. Programme 1: Administration

 

1. The purpose of this programme is to provide strategic leadership, management and support services to the department. The programme consists of the following sub-programmes: 

• The Management subprogramme provides administrative, planning, monitoring, evaluation, performance reporting and risk management functions necessary to ensure effective functioning of the department. 
• The Corporate Services subprogramme provides integrated Human Resources Management (HRM), Information and Communication Technology (ICT) and security management support services to the department. 
• The Finance Administration subprogramme provides overall financial, asset and supply chain management services to the Judiciary and the department.
• The Internal Audit subprogramme provides overall internal audit and risk management services to the department and the superior courts.
• The Office Accommodation subprogramme provides for acquisition of office accommodation for the department.

 

1. The Administration met or exceeded all of its 7 planned targets.

 

Table 2: Administration: Selected performance 2017/18

 

Performance Indicator	Performance 2016/17	Performance 2017/18
ICT Master Systems Plan developed and implemented over MTEF	Partial implementation of the ICT Master Systems Plan	ICT Master Plan implemented (Information Security)

 

1. Programme 2: Superior Court Services

 

1. This programme provides judicial support and court administration services to the Superior Courts. The programme consists of the following sub-programmes: 

• The Administration of Superior Courts subprogramme provides administrative and technical support to the Superior Courts, monitors the overall performance of the Superior Courts, and enhances judicial stakeholder relations.  
• The Constitutional Court subprogramme funds the activities and operations of the Constitutional Court.
• The Supreme Court of Appeal subprogramme funds the activities and operations of the Supreme Court of Appeal.
• The High Courts’ subprogramme funds the activities and operations of the various high court divisions.
• The Specialized Courts subprogramme funds the activities and operations of the labour, land, electoral and competition courts.

 

1. In 2017/18, all performance indicators and targets for the programme that address court performance were removed, leaving only those that relate to quasi-judicial performance.

 

1. The programme achieved all planned targets for 2017/18:

 

Table 3: Superior Court Services– Selected performance 2017/18

 

Performance indicators	Performance 2016/17	Performance 2017/18
Number of Superior Courts performance monitoring reports produced	2 reports against a target of 3	ACHIEVED 5 against a target of 5
% of default judgements finalised by Registrars	85% (49 252/57 656 default judgements)	EXCEEDED 89% against a target of 80% (48 508/54 563 default judgements)
% of warrants of release delivered within a day of the release granted	88% against a target of 100%	EXCEEDED 98% against a target of 98%
Number of case management workshops	4 of 4	EXCEEDED 8 against a target of 4

 

1. Programme 3: Judicial Education and Support

 

1. Judicial Education and Support provides education programmes to Judicial Officers, including policy development and research services for the optimal administration of justice.

 

1. The programme has the following sub-programmes: 

• The South African Judicial Education Institute subprogramme funds the activities of the SAJEI to provide training for Judicial Officers.
• The Judicial Policy, Research and Support subprogramme funds the provision of advisory opinions on policy development and regulatory services to the Judiciary and the Department.
• The Judicial Service Commission subprogramme provides secretariat and administrative support services to the Judicial Service Commission to perform its constitutional and legislative mandates effectively.

 

1. The programme met all its indicators.

 

Table 4: Judicial Education – Selected performance indicators and annual targets

 

Performance indicators	Performance 2016/17	Performance 2017/18
M&E Framework for judicial training and education developed and implemented	Approved	ACHIEVED Implemented
% of legal advisory opinions on policy development and regulatory services provided (Revised 2016/17: within 15 days of receipt)	100% (38 against a target of 14)	EXCEEDED 100% against a target of 85%
No. of reports on judicial appointments and complaints produced	-	ACHIEVED 3 against a target of 3

 

1. Committee’s observations

 

The Committee makes the following observations:

 

1. Audit outcome. The Committee congratulates the OCJ on achieving a clean audit outcome and acknowledges the OCJ’s effort to address the shortcomings that the Auditor-General had identified in 2016/17. The Committee also congratulates the OCJ for achieving all its planned targets for the 2017/18 financial year.

 

1. Budget constraints. While the Committee is acutely aware of the need for fiscal restraint, it remains concerned about the impact of the present funding constraints on the OCJ’s ability to deliver on its mandate. The OCJ has a relatively small budget (it receives approximately 0.5% of the allocation to the public order and defence function). During the 2016/17 budgetary process, National Treasury implemented a ceiling on the budgets of all state entities relating to Compensation of Employees. The OCJ has pointed out to Treasury that the application of a ceiling on the OCJ’s budget would result in the non-implementation of the Superior Courts Act, 2013. The OCJ indicated further that full use of the ceiling for 2017/18 would have resulted in a budget shortfall of R13.6 million in 2017/18, R16.2 million in 2018/19 and R20.9 million in 2019/20. This would constitute unauthorised expenditure, which is an option that cannot be supported. The OCJ, therefore, was unable to fill any new posts in 2017/18 in order to increase much needed capacity to support the courts.

 

1. Engagment with the Judiciary on court performance and other matters of mutual interest. The Committee has in its various engagements with the OCJ raised a number of matters that it is unable to respond to on behalf of the Judiciary and the Judicial Services Commission. The Committee notes that the Chief Justice and Heads of Court have agreed to meet with the Committee to discuss court performance and other identified issues of mutual interest. The OCJ has been most helpful in facilitating such meetings in the past and once more requests its assistance in arranging a meeting.

 

1. Finalisation of Judidical Governanance and Court Administration Policy. Committee is unable to properly gauge the effectiveness of court performance without access to court statistics or further details regarding court performance. The Committee fully understands the reason for the OCJ being unable to provide such information but finds itself in a difficult situation in this regard, as it is expected to make recommendations regarding the allocation to the Vote without access to important information on how well are courts are functioning.

 

The Committee agrees that the solution lies in the finalisation of a court administration model, which will provide for an appropriate accountability model for judicial functions. The Committee, therefore, does not understand the protracted delays in addressing the matter and notes, further, that the Judiciary had submitted its proposals to the Department of Justice and Constitutional Development, a number of years ago. The Committee yet again requests that finalisation of the Policy be prioritised. The Committee will also raise the specific matter of an interim mechanism to allow it access to statistical data regarding court performance when it next meets with the Chief Justice and Heads of Courts.

 

1. Judicial Services Commission report. The Committee previously queried if the Judicial Services Commission had tabled a report of its activities (as required by the enabling legislation) and welcomes the news that a report will be tabled shortly.

  

1. Progress towards a single judiciary

The Committee supports the establishment of a single judiciary as envisaged by section 166 of the Constitution but is concerned about the slow progress in realising this. The Committee is aware that the development of the legislation relating to the Lower Courts and the finalisation of the Judicial Governance and Court Administration Policy is within the control of the Executive but is interested in gaining the Judiciary’s perspective on this matter.

 

1. Training of Traditional leaders and clerks to support traditional courts. The Committee notes that SAJEI is running training in consultation with the traditional leadership. The Committee asks that the OCJ provide it with a written report on this aspect of the training programme, including any challenge encountered, and will engage with SAJEI, as soon as its programme permits.

 

1. Security at court. The Committee notes that the issue of security remains a challenge. Although the OCJ has increased the security within the available resources, the Committee remains concerned.

 

 

1. Recommendations

 

The Committee makes the following recommendations that:

 

1. Additional funds be allocated to fund the consequential costs related to the appointment of judicial officers, as well as for the implementation of the Superior Courts Act, 2013.

 

1. The Committee will request a meeting with the Chief Justice and Heads of Court to discuss matters in relation to court performance and other matters of mutual interest; and asks that the OCJ to assist to arrange the meeting.

 

Report to be considered