ATC191030" Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 29 October 2019

Justice and Correctional Services

The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Correctional Services, dated 29 October 2019

 

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.

 

  1. In October of each year, portfolio committees must compile Budgetary Review and Recommendation Reports (BRRR) that assess service delivery performance of departments, entities and institutions given their respective 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 the previous financial year (2018/2019) also forms part of this process.

 

  1. The Office of the Chief Justice and Judicial Administration (OCJ) was established in 2010 primarily to support the Chief Justice in the execution of his/her administrative and judicial powers and duties as Head of the Judiciary and Head of the Constitutional Court. The transfer of administrative functions and identified staff attached to the Superior Courts from the Justice Department of Justice and Constitutional Development to the OCJ commenced on 1 October 2014.

 

  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. Process followed

 

  1. On 10 October 2019, the Committee engaged with the Office of the Chief Justice on its annual performance and expenditure for 2018/19 and on its funding needs for the 2020 MTEF. The Committee had already met with the OCJ on its performance and spending for the First Quarter of 2019/20 on 11 September 2019. The outcomes of that meeting are reflected in this report.

 

  1. Before meeting with the OCJ, the Committee was briefed by the Auditor-General on 8 October 2019 on the audit outcomes for the Vote.

 

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

 

 

  1. Strategic overview

 

  1. Strengthening judicial governance and the rule of law is considered vital to further the transformative promise of our Constitution. 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 intention when establishing the OCJ as a national department within the public service 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.

 

  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. In terms of the Superior Courts Act, 2013, the Minister of Justice and Correctional Services is the Executive Authority (EA) and the Secretary General (SG) it’s administrative head. The Secretary-General engages and consults with the Chief Justice and other Heads of Courts in respect of the administrative functioning of the Superior Courts, while the Chief Justice controls the judicial functions of the Superior and Lower courts.

 

  1. The Department of Justice and Constitutional Development continues to support the administration of the Lower/Magistrate’s courts. Further, until the legislative framework for the Magistrates’ Courts is overhauled to transform these courts in line with the Superior Courts Act, 2013, certain shared services (for example, tools of trade and security services) are provided by the Department of Justice and Constitutional Development.

 

  1. Overall, there has been little change in the legislative and policy environment since the OCJ became a fully-fledged department on 1 April 2015. However, a notable development has been the announcement by the Judiciary that it would account to the public annually. So far, the Judiciary has presented annual reports for 2017/18 and 2018/19.

 

  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.
  • Ensuring an efficient court system.
  • Reducing court administration inefficiencies.
  • Ensuring judicial accountability.
  • Providing 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.

 

  1. The OCJ has the following broad strategic outcome-orientated goals.
  • Capacitating the Office of the Chief Justice by securing adequate human resources for it to carry out its mandate effectively.
  • Providing administrative support to the Chief Justice in fulfilling his/her functions as Head of the Judiciary.
  • Rendering effective and efficient administration and technical support to the Superior Courts.

 

 

  1. Audit outcome

 

Table 1: Progression of audit outcome 2015/16 -2018/19

  1.  
  1.  
  1.  
  1.  

Unqualified with findings

Unqualified with findings

Unqualified with no material findings

Unqualified with no material findings

 

  1. Since 2015/16, the OCJ has received an unqualified audit opinion. In 2017/18, however, the OCJ was able to improve on the outcome to achieve a clean audit opinion and, in 2018/19, has maintained this outcome.

 

 

  1. Human resources

 

  1. In 2018/19, actual spending on compensation of employees, including the Direct Charge for Judges salaries, accounted for R 1.62 billion with an amount of R24.8 million unspent.

 

  1. At programme level, spending on compensation in 2018/19 was R675.7 million (the final appropriation was R704.4 million). Underspending in the amount of R27.7 million occurred as a result of the delay in the approval of the macro-organisational structure, as well as the non-appointment of officials to the Mpumalanga High Court.

 

  1. At the end of 2018/19, the number of filled posts at the OCJ was 1 947 (the number of approved posts is 2 099).

 

  1. The overall vacancy rate has grown from 4.6% in 2017/18 to 7.2% in 2018/19. However, this is still below the 10% target set by DPSA for the year.

 

  1. At SMS level, 37 of 41 posts are filled at the end of the 2018/19 financial year with a vacancy rate at that level of 9.8%.

 

 

  1. Expenditure 2018/19

 

Table 2: Comparison of planned vs actual expenditure 2017/18-2018/19

Programme

Expenditure

2018/19

2017/18

Planned

Actual

Variance

Planned

Actual

Variance

 

R’million

Administration

223.8

222.1

1.7

177.4

167.7

9.7

Superior Court Services

824.8

801.5

23.2

760.3

748.2

12.1

Judicial Education and Support

71.2

68.4

2.8

81.64

81.62

19

Sub-total

1 119.7

1 092.0

27.7

1 019.3

997.5

21.8

Judges’ salaries

1 022.1

1 022.2

(98)

966.1

998.4

(32.3)

Total

2 141.8

2 114.2

27.6

1 985.4

1 995.9

(10.5)

 

  1. The OCJ was allocated R2.14 billion in 2018/19, compared with R1.99 billion for 2017/18. These amounts include a direct transfer for judges’ salaries.

 

  1. In 2018/19, the OCJ reported the following spending priorities:
  • The operationalization of the Superior Courts Act is prioritised over the medium term. Additional amounts went 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 received additional funding of R2 million in 2018/19 to facilitate the appointment and training of judicial officers.

 

  1. The total allocation to programmes in 2018/19 was R1.1 billion, compared with R1.0 billion in 2017/18. A breakdown of the allocation to programmes in 2018/19 is as follows:
  • Administration - The allocation increased from R177.4 million in 2017/18 to R223.8 million in 2018/19. The spending focus for this programme was 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.
  • Superior Court Services – The allocation increased from R760.3 million in 2017/18 to R824.8 million in 2018/19. The spending focus in 2018/19 remained that of improving the court system through effective and efficient case-flow management.
  • Judicial Education and Support Services – The allocation decreased from R81.6 million in 2017/18 to R71.2 million in 2018/19. The spending focus for 2018/19 was on capacitating the South African Judicial Education Institute in support of the NDP and on ensuring that the Institute delivered on its mandate.

 

  1. In 2018/19, the OCJ spent R2.1 billion or 98.7% of the final allocation. Total underspending for the Vote was R27.6 million.

 

  1. At programme level, in 2018/19, the OCJ spent R1.09 billion or R98.5% of the final appropriation of R1.11 billion. Underspending at programme level was R27.7 million (compared with R21.8 million in 2017/18). Specifically:
  • Administration spent R222.1 million of a final allocation of R223.8 million. There was R1.7 million in underspending, which related largely to the non-filling of vacancies.
  • Superior Courts Services spent R801.5 million of a final allocation of R824.8 million. There was underspending of R23.2 million, which again related largely to the non-filling of vacancies.
  • Judicial Education and Research spent R68.4 million of a final allocation of R71.2 million, with R2.8 million unspent.
  • Under the Direct Charge, R1022.2 million (103.3%) was spent against the final allocation of R022.1 million. The overspending on the statutory allocation was R98 000, which was related to the 4% increase for Judges’ salaries. However, overspending on the statutory fund does not amount to unauthorized expenditure.

 

  1. Expenditure 2019 MTEF

 

  1. The OCJ is allocated an annual budget of R2.3 billion in 2019/20, compared with R2.1 billion for 2018/19 and R2.0 billion in 2017/18 (adjusted appropriation). The budget is expected to increase to R2.46 billion in 2020/21 and R2.6 billion in 2021/22.

 

Table 3: Budget allocation for the Office of the Chief Justice per programme

Programme

Final Appropriation 2018/19

MTEF

2019/20

2020/21

2021/22

R ’million

R ’million

R ’million

R ’million

Administration

201 380

214 611

227 852

237 517

Superior Court Services

845 252

900 110

965 784

1 029 837

Judicial Education and Support

73 115

82 971

88 234

91 776

Subtotal

1 119 747

1 197 692

1 282 870

1 359 130

Direct Charge:

Judges’ Salaries

1 022 091

1 098 546

1 180 937

1 257 698

Total

2 141 838

2 296 238

2 462 807

2 616 828

 

  1. Spending priorities 2019 MTEF. The OCJ reports the following spending priorities for 2019/10:

 

  1. As the High Court in Mpumalanga is expected to become fully operational in 2019/20, funding for the court is expected to increase from R28.1 million in 2019/20 to R33.4 million in 2021/22 in the Superior Court Services programme. Similarly, allocations for the operations of the Polokwane High Court, which opened in 2016/17, are expected to increase by 13.6%, from R27.2 million in 2019/20 to R30.9 million in 2021/22.

 

  1. The number of personnel is expected to increase from 2 601 in 2018/19 to 2 611 in 2021/22 with the operationalisation of the Mpumalanga High Court. Spending on compensation of employees, therefore, will increase from R1.6 billion in 2018/19 to R2 billion in 2021/22.

 

  1. Over the medium term, the South African Judicial Education Institute (SAJEI) plans to provide 246 judicial education courses on case-flow management and constitutional imperatives. Other planned courses include courses on record keeping and general issues in pleadings, debt collections and debt reviews related to the National Credit Act (2005), criminal court skills, child justice skills, new legislation on domestic violence and spousal and child maintenance, immigration and other topics. Expenditure in the South African Judicial Education Institute subprogramme is expected to increase from R51.4 million in 2018/19 to R53.8 million in 2021/22.

 

  1. The OCJ plans to modernise and digitise its systems and processes to respond to the growing need for court services and to stay abreast of technological developments. The implementation of an electronic filing system for the Superior Courts by 2020/21 is intended to increase efficiency. The project forms part of the Integrated Justice System (IJS) programme, led by the Department of Justice and Constitutional Development, in the JCPS Cluster. An amount of R14.3 million is allocated over the medium term for the system in the Administration programme.

 

  1. The judicial norms and standards were developed and gazetted in February 2014. The OCJ supports the Chief Justice in monitoring and reporting on compliance with the norms and standards, while the Judiciary reports on court performance. These activities are carried out in the Superior Court Services programme. Due to the labour-intensive nature of the work in this programme, the majority of this expenditure is on compensation of employees.

 

  1. The OCJ plans to further improve the quality of its performance information by implementing an automated system to monitor court performance, which, in addition to the electronic filing system for Superior Courts, is expected to simplify the monitoring and evaluation of norms and standards.

 

  1. Expenditure 1st Quarter 2019/20

 

  1. In the 1st Quarter of 2019/20, the OCJ spent R479.8 million against projected spending of R503.3 million. Underspending for the Quarter was R23.4 million.

 

  1. At programme level, underspending is observed in all three programmes. Notably, the Administration programme spent R5.8 million (13.9%) and Superior Court Services R14.4 million (7.5%) less than was projected for the Quarter.

 

  1. The explanation for the reported deviations are as follows:
  • Under Administration, the underspending relates to non-payment of the invoices for contracted ICT services. The March 2019 invoice was disputed and the invoices for April and May 2019 were only received late in June. Payment, however, will be reflected in the 2nd Quarter expenditure report.
  • Under Superior Court Services, the underspending relates to outstanding g-Fleet invoices for leased Judges’ vehicle. The delay is due to g-Fleet changing its billing system from Standard Bank to ABSA Bank. The billing system is reportedly now operational and the spending will reflect in the 2nd Quarter expenditure report.
  • Under Judicial Education and Support, underspending of R286 000 relates to non-filling of funded vacancies,

 

  1. Performance

 

Table 4: Overall achievement of planned targets 2015/16 – 2018/19 and 1st Quarter 2019/20

No. of Targets

2015/16

2016/17

2017/18

2018/19

1st Quarter 2019/20

Achieved

26

17

19

18

10

Not achieved

9

3

0

20

4

Total

35

20

19

20

14

Percentage achieved

74.2%

85%

100%

90%

71%

 

  1. Overall, the OCJ has steadily improved its performance against planned targets from 74% in 2015/16 to 100% in 2017/18. In 2018/19, however, overall performance declined to 90% as the OCJ missed two planned targets under the Administration programme.

 

  1. The OCJ reports the following key achievements for 2018/19:
  • A clean audit outcome for 2018/19.
  • A vacancy rate of 7.2%, which is below the 10% target set by DPSA.
  • The OCJ supported the Chief Justice in the planning phase for the execution of his constitutional responsibilities in the establishment of the Sixth Parliament.
  • The Combined Assurance Framework was reviewed in consultation with the Audit Risk Committee.
  • A total of 142 skills-enhancing judicial education courses were conducted for Judicial Officers and aspiring Judicial Officers, against a target of 78.

 

  1. Comparing performance with spending 2018/19

 

Table 5: Programme performance and spending 2018/19

  •  
  •  
  •  
  •  

80% (8/10)

  1.  

Superior Court Services

100% (6/6)

  1.  

Judicial Education and Support

100% (4/4)

  1.  

Overall

90%

  1.  

 

  1. In 2018/19, at programme level, the OCJ met 90% of its planned targets, while spending 97.5% of its final budget.

 

  1. Programme performance 2018/19 and first Quarter 2019/20

 

  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 programme met 8 of the 10 planned targets in 2018/19.

 

Table 6: Administration: Selected performance 2018/19

Performance Indicator

Performance

2017/18

Performance

2018/19

Percentage of funded vacant posts on PERSAL

4.6% (87 of 1898) (Baseline)

NOT ACHIEVED

7.2% (152 of 2099)

(Target: 10%)

Annual Performance Plan (APP) tabled within prescribed timelines

OCJ APP compliant

NOT ACHIEVED

OCJ APP compliant with prescripts but not tabled in Parliament within timeframes

 

  1. In the 1st Quarter of 2019/20, the OCJ reports that it met 5 of 6 or 83% of planned targets for the programme. Under the Internal Audit subprogramme, 86% of internal audit projects were completed in line with the approved Annual Audit plan. The reason provided for the variance is that Internal Audit audited a new area in Core Business (Taxation). The execution of the audit has taken longer than planned due to the specialized nature of the function. Corrective steps have been put in place to fast track the audit to ensure that the Audit Annual Plan can be fully completed.

 

  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. The programme achieved all of the six planned targets for 2018/19:

 

Table 7: Superior Court Services: Selected performance 2018/19

Performance indicators

Performance

2017/18

Performance

2018/19

Percentage achievement of quasi-judicial targets

(Objective indicator)

92% (82 579 of 89 935 (Baseline)

EXCEEDED

97% (98 122 of 101 342) against a target of 90%

Number of monitoring reports on Court Integrity Project produced

ACHIEVED

5 against a target of 5

ACHIEVED

4 against a target of 4

Percentage of default judgements finalised by Registrars

EXCEEDED

89% against a target of 80%

(48 508/54 563 default judgements)

ACHIEVED

96% (52 508 of 54 872) against a target of 90%

Percentage of taxations of legal costs finalised each year

96% (33 961 of 35 261)

EXCEEDED

98% (45 535 of 46 389) against a target of 90%

Percentage of warrants of release delivered within a day of the release granted

EXCEEDED

98% (109 of 111)

ACHIEVED

98% (79 of 81) against a target of 98%

Number of case management workshops

EXCEEDED

8 against a target of 4

ACHIEVED

2 against a target of 2

 

  1. In the 1st Quarter of 2019/20, the OCJ reports that it met 2 of 5 or 40% of planned targets for the programme. Under the Administration of Superior Courts subprogramme, 96% of quasi-judicial targets were achieved, 95% of default judgements and 98% of taxations of legal costs were finalized against a target of 100%. The reasons provided for the underperformance was that a number of applications were queried by Registrars.

 

  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 of the four planned targets for 2018/19.

 

Table 8: Judicial Education – Selected performance 2018/19

Performance indicators

Performance

2017/18

Performance

2018/19

No. of judicial education courses conducted per year

ACHIEVED

91 (Baseline)

EXCEEDED

142 against a target of 78

No. of research monographs on judicial education produced per year

-

ACHIEVED

2 against a target of 2

(Baseline)

% of legal advisory opinions on policy development and regulatory services provided (Revised 2016/17: within 15 days of receipt)

EXCEEDED

100% or 8/8 against a target of 85%

ACHIEVED

100% or 7/7 against a target of 100%

No. of reports on judicial appointments and complaints produced

ACHIEVED

3 against a target of 3

ACHIEVED

3 against a target of 3

 

  1. In the 1st Quarter of 2019/20, the OCJ reports that it met 1 of 1 or 100% of planned targets for the programme.

 

  1. Committee’s observations

 

The Committee makes the following observations:

 

  1. Information regarding court performance for more effective oversight of the court administration

The Committee has already expressed its unhappiness about how difficult it is for it to properly gauge how well the justice system is working, as much of the information related to court performance is located within the Judiciary. The Committee notes that, in the absence of any legislative guidance, the Judiciary has taken the initiative to ‘account directly to the nation, as is the case with jurisdictions like Kenya, Singapore and many other comparable and progressive constitutional democracies’. The South African Judiciary Annual Report 2018/19, which the Chief Justice presented to the Nation provides extremely valuable insight into developments within the Judiciary and, among others, contains some statistics relating to the Superior Courts.

 

Nonetheless, there are gaps – while the Judiciary has begun to collect data regarding the performance of the magistrates’ courts – for some years now, very little information to do with cases in the lower courts has been available. As these courts hear the majority of the cases, the lack of information regarding their functioning is concerning.

 

The Committee feels that the court administration and performance functions are so closely related that it is impossible for it to consider the one without the other. It repeats its view that in order to exercise oversight towards ensuring that the correct intervention occurs at an administrative level, the Committee requires an understanding of the systemic challenges that undermine delivery of justice services in our courts.

 

The Committee is aware that the solution lies partly in the finalisation of the long overdue court administration model and is concerned at the lack of progress in finalising this policy.

 

  1. Progress towards a single judiciary and transfer of functions to the OCJ. The Committee understands that a Lower Courts Bill is at a very advanced stage and asks that it be finalised as a matter of priority.

 

  1. Court modernisation. The Committee supports the various initiatives to modernise our courts. In order to keep abreast of the demand, there is urgent need for more capacity. However, in an environment where resources are extremely limited, systems must be made more efficient by way of modernisation and digitisation. The Committee notes that the e-filing project, which forms part of the ICT Master Systems Plan, could not be piloted in 2018/19. The State Information and Technology Agency (SITA), who is the appointed service provider, has since provided the Department with a revised project plan. The Committee understands that, as part of the e-filing project, caselines are being piloted at the High Courts in Gauteng and will engage with the OCJ in order to arrange a visit to see the pilot for itself as soon as its programme permits.

 

  1. Security. The Committee is concerned about reports of inadequate security at courts. The Committee understands that this is a shared function with the Department of Justice and Constitutional Development and, therefore, requests that the OCJ engage with the Department of Justice and Constitutional Development to provide a full report relating to the provision of security at courts, including details of the funding for this, by 29 November 2019.

 

  1. Audit outcome. The Committee acknowledges the OCJ’s good work in maintaining a clean audit outcome for the second consecutive year.

 

  1. Judicial Services Commission report. The Committee looks forward to the tabling of the Judicial Services Commission’s report of its activities for 2018/19 in the near future.

 

  1. Judicial Wellness programme. The Committee notes the Judiciary’s concern about the lack of wellness support offered to judicial officers, many of whom suffer extreme stress as a result of their presiding over traumatising cases. The Committee agrees with the Judiciary that this is a work-related challenge and, therefore, requires an institutional response in the form of a judicial wellness or stress management programme. The Committee notes that the Judiciary is developing a programme or system to address this, which will be implemented under the auspices of the Judiciary or OCJ, funding permitting.

 

  1. Gender-based Violence. The Committee agrees with the Judiciary that addressing cases of gender-based violence requires an integrated approach from all key stakeholders.

 

 

  1. Appreciation

 

  1. The Committee wishes to thank the Secretary-General and the staff of the OCJ for their assistance in this process.

 

Report to be considered

 

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