A KwaZulu-Natal judge has indicated that a lack of adequate support contributed to her taking nearly three years to deliver judgment in a fraud case.

Judge Jacqueline Henriques of the Durban High Court reserved judgment in a matter on 3 July 2020. She only delivered a judgment on 30 June 2023. The judicial norms and standards recommend that judges take no longer than three months to deliver judgment.

The case involved South Africa’s largest food producer, Tiger Brands, and Jocatus Transport. Judge Henriques found Jocatus Transport submitted fake invoices for non-existent logistics services between 2009 and 2014 and effectively swindled Tiger Brands out of R121-million. She ruled that assets, including bank accounts, investments and property, were the proceeds of fraud, and granted a forfeiture order against six individuals linked to Jocatus Transport.

But why did she take nearly three years to reach this conclusion?

In her 105-page judgment, Henriques explains the reasons for the delay: “The delivery of the judgment has regrettably been delayed by a number of factors. The first being that I have not had the necessary secretarial support for a considerable period of time. This has been brought to the attention of the Office of the Chief Justice as well as the Judge President, Acting Judge President and Deputy Judge President of the division.

“In addition, the application papers themselves are some 22 volumes and in excess of 2,000 pages. Moreover, the nature of some of the issues canvassed have not previously been dealt with and the research and judgment itself has taken some time. This has further been complicated by the issues placed in dispute by the respondents. This has also contributed to the judgment being a lengthy one.”

Lack of support

Judges Matter researcher Mbekezeli Benjamin says judges’ failure to deliver timely judgments is due to a lack of structural support within the judiciary, hindering their ability to carry out their duties effectively.

“A judge’s primary support is their secretary, and for several years there has been uncertainty about the employment of judges’ secretaries due to the Office of the Chief Justice not having proper policies to manage their employment conditions as they transitioned out of the Department of Justice.”

But Benjamin said that although Judge Henriques raised valid concerns about the lack of support given to judges, taking three years to deliver judgment is “completely unreasonable”.

The Gauteng High Court has nearly 40 judges stationed in Pretoria and they share about six legal researchers between them.

“Nevertheless, the judgment in a factually complex case, dealing with a novel area of the law, and with a voluminous set of court papers will likely take longer than a run-of-the-mill case,” said Benjamin.

“There are also structural factors at play, such as the chronic shortage of judges (the KwaZulu-Natal population has grown by nearly three million people between 2006 and 2018, and violent crime rates have skyrocketed, but there has been no increase in the number of judges). So we have to read the reasons the judge provides in that context,” said Benjamin.

He said there is also a lack of research support for judges. For example, the Gauteng High Court has nearly 40 judges stationed in Pretoria and they share about six legal researchers between them, said Benjamin.

“By comparison, each of the 11 justices of the Constitutional Court has at least three researchers assigned to them. While the nature and complexity of the cases dealt with at the apex court differs substantially from those dealt with at lower courts, all judges require research assistance for them to be effective and efficient,” said Benjamin.

Although judges must be held to the highest possible standards… the impact of external problems on their ability to carry out their functions efficiently must be considered.

According to Benjamin, some of the issues raised by Judge Henriques are systemic and affect the entire judiciary. In 2022, Judges Matter published a research report on the State of the Judiciary in South Africa, Namibia and Malawi. Benjamin said that during the research, judges said increasing caseloads needed to be met with increased resources and support. Instead, they said, they were expected to find creative ways to carry the workload.

Judges also raised issues such as a lack of tools-of-trade such as telephones and electronic law libraries, as well as skilled secretaries and researchers, and poor court infrastructure. “All of these are factors affecting how efficiently and effectively judges (and magistrates) can deliver judgments,” said Benjamin.

What support do judges receive?

According to Benjamin, there has been talk “for several years” of a judicial wellness programme being established to provide support to judges, “but so far we are not aware if this programme formally exists and certainly have no knowledge of its effectiveness”.

He said work-related stress and burnout among judges and magistrates are becoming significant issues due to heavy workloads. Judges Matters’ 2019 Magistrates Perceptions Survey found that 45% of magistrates experienced significant work-related stress, while 95% felt support was insufficient.

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Benjamin said that although judges must be held to the highest possible standards – in line with their important constitutional duty – the impact of external problems on their ability to carry out their functions efficiently must be considered.

“The Chief Justice, the Judicial Service Commission, the Minister of Justice and even the Justice Committee in Parliament need to work together to address these problems. Left unaddressed, the problems run the risk of completely undermining the judiciary,” said Benjamin.

The Office of the Chief Justice said a request for comment from GroundUp “is receiving attention”. DM

First published by GroundUp.