Have retired judges been given the chop over lack of money?

The Gauteng High Court’s backlog may be about to get worse. Illustration: Lisa Nelson

They have been helping to clear the Gauteng courts backlog but have been told their services are no longer needed, says one fuming judge.

Retired judges who have been helping to clear mounting backlogs at Gauteng courts caused by Covid-19 and infrastructure issues, have been told there is no money to pay them.

One of them, Judge Frans Fabricius, went “public” in a message – apparently written by his registrar to all attorneys with matters on an upcoming motion court roll – saying he would no longer be hearing the cases allocated to him.

“On 13 January 2021, the Judge President was informed by the Minister of Justice that he would not appoint retired judges as he regarded them as ‘additional to the establishment’, the message read.

“Judge Fabricius sends his sincere best wishes to all involved.”

This drew the wrath of Office of the Chief Justice spokesperson Nathi Mncube, who, in a statement on behalf of Judge President Dunstan Mlambo, described the message as an “unlawful communication”.

“The Judge President assures litigants and the legal fraternity that all affected matters previously assigned to Fabricius J have been reallocated and will proceed as enrolled,” Mncube wrote.

However, a source told GroundUp the judge president was very concerned that essential resources – experienced judges – had been taken away because of money and this would affect the court rolls.

Approached for comment, Chrispin Piri, spokesperson for Justice Minister Roland Lamola, said the unauthorised communications had created the impression that the minister will not appoint retired judges because they are regarded as “additional to the establishment”.

He said this was not so.

He said an acting judge could only be appointed if there was a vacancy, and the minister would have no issue with approving these appointments.

“Acting appointments cannot be made if there are no vacancies. This is because each vacancy is fully funded and it does attract financial implications. Any appointment not linked to a vacancy is regarded as additional to the funded posts in that organisation,” he said.

Piri said there was also a misconception that retired judges were not paid to act. He said they were still compensated unless they expressly indicated that their services were being provided pro bono.

“The minister continues to engage with various Judge Presidents. Where requests are made for additional acting appointments which exceed vacancies, the minister has advised that such appointments are not sustainable and create further obligations on the fiscus.

“He has also informed them that this is an ongoing discussion with the Minister of Finance and the matter will be taken further in a meeting with all heads of courts.” DM


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  • If the issue is not money, why then was Judge Fabricius removed? One of the reasons for the mounting backlog in the North Gauteng High Court is because it is the seat where government is sued. Litigation (especially urgent matters) against government has increased exponentially since the national state of disaster was invoked. It has resulted in the North Gauteng Division being completely swamped, coupled with the logistical challenges of a dysfunctional registrar’s office where COVID is used as an excuse to shut everything down or to not attend work. For example, it takes approximately 6 months to get a date for a simple unopposed application. One faces a situation where a party that is being sued increasingly (government) has control over the resources of the institution that has to adjudicate the matter. Why is it so that junior judges are typically left to deal with urgent matters, where experienced and strong judges are these days often required to apply the Constitution to keep government in check? Many junior judges would rather avoid dealing with it and the can often just gets kicked down the road. Why is it that the government is not urgently addressing the severe workload challenges faced by especially the North Gauteng High Court, but rather decides to remove senior judges who are able to handle more complex matters and also greater volume?

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