No financial independence for chief justice

Chief Justice Mogoeng Mogoeng. (Madelene Cronje, M&G)

Chief Justice Mogoeng Mogoeng. (Madelene Cronje, M&G)

The office of Chief Justice Mogoeng Mogoeng will be given its own budget to administer as of October 1, but control and negotiations involving the funding will be handled by a secretary general, who acts as “proxy” for the justice minister.

The appointment of a secretary general who will appear before Parliament and the standing committee on public accounts (Scopa) to discuss budgets is a bid to get around the issues of separation of power, Justice and Correctional Services minister Michael Masutha said.

But it will probably have been a disappointing compromise for Mogoeng, who has expressed a wish over the years for the office to have complete control over its budget.

The office, while expected to get a separate vote in the 2015-2016 financial year, remains under the justice minister.

Masutha said at a press conference on Tuesday, to announce the handover of functions and staff to the office of the chief justice from October 1, that there were plans to open discussions around how to create a separate independent judicial administration. He said he had commissioned a “concept paper” for public discussion.

Support structure
The office has been set up to support Mogoeng in his role as head of the judiciary and Constitutional Court and is meant to oversee the running of the administrative side of justice and ensure that management of judicial functions of courts is carried out effectively.

Masutha said that as one of the 35 government departments established under the Public Service Act, “it is headed by a Cabinet minister as its executive authority and has an administrative head called a secretary general, who is the equivalent to and governed by the same prescripts as applicable to director general of other departments”.

The Superior Courts Act empowers the Minister to delegate his administrative management responsibility to a secretary general, the minister said: ” Through this delegated authority … and other applicable legislation, the minister’s administrative role is exercised through the secretary general as [the minister’s] proxy”.

He said, “As the minister’s proxy the secretary general consults with the chief justice and other heads of court and thereby ensures that the administrative functions which are directly connected to judicial functions are rendered timeously and effectively”.

To ensure separation of powers as envisaged by the Constitution and other legislation, the secretary general and not the chief justice would be required to report to the auditor general and Parliament.

This would include Scopa and the justice portfolio committee. Masutha said the position of the judiciary is that it cannot be called before Parliament to be subjected to questioning or called to account for money.

Staff transfers
About 1 486 staff members, some from the courts and others from regional and national departments, who have roles relating specifically to the Superior Courts will be transferred to the office of the chief justice.

“Broadly, these functions relate to appointment of court managers, registrars, interpreters and court clerks responsible for cash flow management support functions [and] performance management in relation to the personnel of the Superior Court, [as well as] procurement of goods and services pertaining to the administrative support functions at the Superior Courts and management of library publications.”

Previously justice staff had been seconded to the office, which led to Mogoeng asking for permanent staff to ensure independence.

The establishment of the office has been a long time in the making, with a 1995 commission appointment by then president Nelson Mandela recommending that a separate department for courts be considered to enhance independence of the judiciary.

It was promulgated as a national department in 2010 and there is a secretary general along with basic personnel running the office, but it was dependent on the justice department for funding.
The Superior Courts Act confirmed the chief justice as head of the judiciary and responsible for administrative functions of the courts.

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