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Members of the media
Today’s announcement amplifies the statement issued by Cabinet on 17 September 2014 which noted the transfer of administrative functions and staff attached to the Superior Courts from the Department of Justice and Constitutional Development to the Office of the Chief Justice. The transfer of functions and identified staff commences on 1 October 2014.

This announcement is the culmination of a protracted discourse to which the Legislative, Executive and Judicial arms of State have made an indelible contribution.  As many of you may be aware, courts are central to the protection of the supreme law – our Constitution and the advancement of the rule of law.  The courts derive their authority from only the Constitution and the law as reflected in section 165 which states as follows:
            “Judicial Authority
165     (1)       The judicial authority of the Republic is vested in the courts.
(2)       The courts are independent and subject only to the Constitution and the law and which they must apply impartially and without fear, favour or prejudice.
(3)       No person or organ of state must interfere with the functioning of the courts.
(4)       Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5)       An order or decision issued by the courts binds all persons to whom and organs of state to which it applies.
(6)       The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of the norms and standards for the exercise of the judicial functions of all courts.

The decision to transfer the courts to the office of the Chief Justice is founded on this constitutional guidance, which also strengthens the principle of the separation of powers. The government appreciates that the independence of the courts and the rule of law can only thrive in a constitutional setting where there is clear separation of powers with appropriate checks and balances.

It is this Constitutional stipulation which gave rise to some of the significant steps that have culminated into today’s historic occasion. The steps, in their sequence, include the following:
(a) In 1995, the Hoexter Commission appointed by the first President of a   democratic South Africa, President Nelson Mandela, recommended that a separate department for courts be considered by government as a way of enhancing the independence of the judiciary. The proposal was based on the New Zealand model which prevailed at the time.

(b) In 1995, the 1st democratic Parliament passed the Constitutional Court Complimentary Act of 1995 which established a different court administration framework for the Constitutional Court from that of the other courts.  Through this Act, the Chief Justice was assigned a role in the appointment of staff and determination of the budget of the Constitutional Court, whereas in respect of the other Superior Courts these administrative powers vested solely on the Minister responsible for the justice portfolio.

(c) In 2010 the Office of the Chief Justice was established by President, Zuma, by a Proclamation as a national department established under the Public Service Act, 1994. Senior members of staff of the Department of Justice and Constitutional Development were seconded to the Office of the Chief Justice to lay the foundation for the establishment of the office. Since then a Secretary-General and key personnel have been appointed to carry out the functions in the Office of the Chief Justice.

(d) In 2011 the historic Access to Justice Conference, hosted by Heads of Courts during which former Chief Justice Ngcobo and the current Chief Justice played a pivotal role, was held. Among other themes the conference debated the need to enhance judicial administration with a view to improving court efficiency and thereby enhance access to justice.

(e) In August 2013 the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act of 2013 were passed by the fourth democratic Parliament. The Constitution 17th Amendment Act affirms the Chief Justice as head of the judiciary who as a consequence thereof becomes responsible for judicial functions performed by judicial officers of all courts, including magistrates. The Superior Court Act provides a legislative framework on how the Chief Justice performs the judicial leadership role as well as the management of judicial functions of Superior Courts.

Central to these developments was the establishment of the Office of the Chief Justice and the enactment of the Constitution Seventeenth Amendment Act and the Superior Courts Act.  These significant reforms which also include the extension of the powers of the Constitutional Court to hear all matters, and not only constitutional matters, occurred during the fourth administration under the leadership of President Jacob Zuma.  These changes underpin the ANC-led Government’s commitment to the independence of the judiciary and the rule of law.

I have alluded to the fact that the Constitutional Court’s model of administration framework introduced in 1995 was the first major policy shift except that it was implemented under the auspices of the Department of Justice and Constitutional Development.  Today we have come to witness how the seed that was planted at the Constitutional Court at the dawn of democracy is being transplanted in all Superior Courts.  The fact that the second phase is implemented under the auspices of the Office of the Chief Justice is therefore a significant departure from this long established practice.

As I have indicated earlier, the Office of the Chief Justice is one of the 35 government departments established under the Public Service Act through a Presidential proclamation. The Office of the Chief Justice is established solely to provide administrative support to the Chief Justice and other Heads of Courts to ensure that they discharge their management of judicial functions in courts effectively.

Similar to other departments the Office of the Chief Justice is headed by a Cabinet Minister as its Executive Authority and has an administrative head called a Secretary-General who is equivalent to and governed by same prescripts as applicable to Directors-General of other departments.  To further enhance the advantage of its proximity to the judiciary, section 11(4) of the Superior Courts Act empowers the Minister responsible for the administration of justice to delegate his or her administrative management responsibility to a Secretary-General.

Through this delegated authority sanctioned by the Superior Courts Act and other applicable legislation the Minister’s administrative management role is exercised through a Secretary-General as his or her proxy.  As the Minister’s proxy, the Secretary-General engages and consults with the Chief Justice and other Heads of Courts and thereby ensures that the administrative functions which are directly connected to judicial functions are rendered timeously and effectively.

In terms of the Constitution and applicable legislation the Secretary-General, and not the Chief Justice, accounts to the Auditor-General and Parliament through the Standing Committee on Public Accounts (SCOPA) and other relevant Portfolio Committees.  For the Chief Justice to step in the realm of administration including the management of the budget of the courts or to perform any function of an Executive Authority in relation thereto would be contrary to the separation of powers and the independence of the judiciary. Personnel performing an administrative role to support judicial functions at the Superior Courts as well as other staff attached to the regional offices and national office of the Department of Justice and Constitutional Development whose roles are directly connected to the Superior Courts will be transferred to the Office of the Chief Justice. Broadly these functions relate to: (a) the appointment of court managers, registrars, interpreters and court clerks responsible for case flow management support functions; (b) performance management in relation to the personnel of the Superior Courts; (c) procurement of goods and services pertaining to the administrative support functions at the Superior Courts; and (d) management of library publications.

Both the Department and the Office of the Chief Justice are working tirelessly to ensure that the transition happens without glitches. As we speak some of the Senior Managers are meeting staff in different Superior Courts in preparation of transition which commences tomorrow. The affected members of staff have been identified and consultations with them are on-going. In total 1 486 members of staff will be transferred from the department to the Office of the Chief Justice. The transfer will not have any impact on the conditions of service of the affected employees.  We will ensure that in the course of consultation, all anxiety and concerns raised by the staff and relevant unions are being addressed. For the current year we will transfer pro rata a sum of R1.4 billion, which is total budget for a year.  Plans for the Office to get its separate vote in the 2015/16 financial year are on track.

While on the one hand the Superior Courts Act provides a solid administrative framework for the Superior Courts, it also articulates the management of judicial functions which are the exclusive preserve of the judiciary, namely:
(a) the determination of sittings of specific courts;
(b) assignment of judicial officers to sittings;
(c) assignment of cases and other judicial functions to judicial officers;
(d) determination of the sitting schedules and places of sittings for judicial officers;
(e) management of procedures to be adhered to in respect of case flow management;
(f) finalisation of any matter before a judicial officer; and
(g) recesses of Superior Courts.

Importantly, the Superior Courts Act assigns to Judges President the role relating to the coordination of the judicial functions in respect of the Magistracy. In this way the judicial functions of the magistracy fall under the oversight responsibility of the Chief Justice through Judges President. Save for the judicial functions of magistrates all other administrative management functions pertaining to the Lower Courts remain the responsibility of the Department, and not the Office of the Chief Justice at this stage.

Let me highlight the on-going debate regarding the third phase or the end-state of institutional reforms which relates to the need to establish a separate independent or autonomous judicial administration model. At the meeting of 17 September 2014, Cabinet approved that I commission the development of a concept paper that will facilitate a broad public discourse regarding the end-state. The judiciary, through the Chief Justice, have expressed their preference regarding the end-state and this will be taken into consideration in the course of developing the required concept document. This we anticipate to complete in about 2 to 3 years in view of the research that must be conducted which will have regard to best practices from other comparable jurisdictions. There must also be time for public consultation in this important discourse.

I am indebted to the Chief Justice for his judicious advice and to my Cabinet colleagues for their guidance in this long journey and look forward to continuing our constructive interface as we venture in the final phase of this important transformation process.

We count on the support of all relevant role-players in our quest to give effect to the vision of the National Development Plan, of a transformed and accessible judicial system.

I thank you.

Issued by: Department of Justice and Constitutional Development