No funds for Mogoeng's independence
Despite its importance, the office of Chief Justice Mogoeng Mogoeng remains a mere executive "programme" without independent funding.
The latest budget was disappointing for those hoping that the office of the chief justice would receive its own funding for the first time since it was promulgated as a national department in 2010.
Instead the office, which is meant to support Chief Justice Mogoeng Mogoeng in his roles as head of the judiciary and the Constitutional Court, has found itself in a position where it has to go cap in hand to the justice department for money to fund programmes and pay staff.
It often appears the funds are simply not available.
It is extraordinary that an office of such importance should function as a sub-programme within the justice ministry, completely dependent on the allocation and planning decisions of Justice and Constitutional Development Minister Jeff Radebe.
The new budget allocation is not likely to improve the situation.
The office's newly appointed secretary general, Memme Sejosengwe, informed the parliamentary justice portfolio committee last October that the office of the chief justice had a budget shortfall of R66.4-million.
In 2013-2014 the office was allocated R123-million, and it is expected that the 2014-2015 budget will allocate R134.68-million. Such a small increase suggests that the office will once again be in the red.
The portfolio committee said there appeared to be uncertainty about the extent to which the migration of certain functions of the office of the chief justice, for the past financial year, would affect the department. The extent of this impact will only become clear when the justice department releases its budget vote to Parliament soon.
The lack of independence defeats many of the objectives behind the formation of the department – discussions for which were initiated in 2003 by, among others, former Constitutional Court head justice Arthur Chaskalson.
It was hoped that funds would be set aside specifically for the office, after the Superior Courts Act was passed last year.
One of the delays appears to be satisfying requirements from the treasury that the office put sufficient systems in place to manage an account for money spent. In short, that it can manage a separate budget vote.
According to comments by justice in 2012, the office was expected to get its own budget allocation in the 2013-2014 budget.
Officials involved in negotiations said it was hoped that the office would be given a budget vote in about April next year. But this means it will remain dependent on a department already facing budget constraints for at least another year.
Sejosengwe told MPs that last year's R123.9-million budget was not inflation-related and did not consider the year-by-year growth required by the office of the chief justice. Not covered was the R17-million required for office rental, R15-million for judicial education, R8.9-million to employ staff and R15-million for court performance monitoring systems.
The parliamentary portfolio committee has raised concerns about the lack of capacity within the office, which has meant that many staff have been seconded temporarily from the justice department. A source said some are still required to fulfil their roles in justice, which has had an effect on delivery.
The office is governed by the Constitutional Amendment Act, which entrenches the independence of the courts and acknowledges the chief justice as head of the judiciary, and the Superior Courts Act introduces a judge president to preside over a division in a monitoring and oversight role. The chief justice heads this group of judges.
Mogoeng has raised his concerns about the impact of his office's dependence on the department, as have various organisations such as the SA Institute of Race Relations.
Last year, at an annual human rights lecture at Stellenbosch University's law faculty, he said that, although the executive and the legislative had their own vote account, were free to decide on administrative support, job descriptions, salaries and projects to prioritise, the office overseeing the judiciary was nevertheless limited to a programme within a department.
This, he said, presented a number of challenges, including court budgets being determined without consultation with the judiciary; inadequately trained staff as well as a shortage of court rooms and chambers for judges and magistrates.
"It is for this reason that the judiciary has been calling for a radical paradigm shift from the current executive administration to one led by the judiciary," he said.
The need for such an entity was confirmed in a report following a committee investigation by his predecessor, former chief justice Sandile Ncgobo. The report proposed a self- governance structure, created by legislation, to perform the functions to be referred to the office of the chief justice.
On the issue of institutional independence, Mogoeng said this helped to provide reassurance that the courts were not directly or indirectly controlled by the government.
He said a key area that needed to be tackled by his office was to increase automation, specifically electronic filing and record-keeping.
"This would facilitate the efficient management of cases and their speedy finalisation" and prevent the loss of files that inevitably come with a paper-based system.
He envisaged, among other things, the court services unit of the justice department, library services, information technology and facilities components of justice being transferred to his office.
Mogoeng said: "The role of a court-administered system led by the judiciary in our constitutional democracy is self-evident." The most obvious is the importance of the self- administration of the judiciary that remains independent of the government of the day.