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THIRD ARM OP-ED

The state of the judiciary and judicial governance — a necessary reality check

The state of the judiciary and judicial governance — a necessary reality check
A general view of the offices of Chief Justice Raymond Zondo on 19 March 2017 in Midrand, South Africa. (Photo: Gallo Images / Beeld / Lisa Hnatowicz)

Judicial officers play a central role in our constitutional democracy. They spend most of their time contemplating how the other branches of government do their work, but they will now be turning that critical gaze on to themselves, as the third arm of the state.

In a historic conference beginning on Monday, SA judges and magistrates will tackle crucial judicial governance issues which have long been left hanging. While the more immediate issues might be salaries lagging behind inflation, and inadequate infrastructure, there are several much broader issues which need to be dealt with. The most obvious are in the title of the conference — which is “towards a single, effective and fully independent judiciary”.

Independence 

In our constitutional democracy, judicial authority, explicitly granted by the Constitution, requires independence. Judges must dispense justice without fear, favour or prejudice. While individual judges’ autonomy is generally safeguarded through tenure conditions and a culture of deliberative independence, achieving genuine institutional independence remains a goal many judicial officers believe is yet to be realised. 

The debate surrounding institutional independence has long been a focal point within the judiciary. Former Chief Justice Sandile Ngcobo advocated for a judiciary-led administration during his tenure. This approach posited that effective judicial administration is inseparable from judicial independence, free from undue external influences. 

The establishment of the Office of the Chief Justice (OCJ) marked progress in reducing executive control over the day-to-day functioning of the judiciary and empowered the OCJ, intended to act as a national department to serve the courts. Although it sounds like it serves the Chief Justice alone, the OCJ is effectively the department of government for the judiciary and was established by a Presidential proclamation.  

The Committee on Institutional Models for the Office of the Chief Justice, led by judges Pius Langa and Arthur Chaskalson, proposed a three-phase approach to establish a judiciary-led administration, positioning the OCJ as an independent entity akin to the Auditor-General. This reorganisation involved direct parliamentary appropriations for funding, with built-in accountability measures, including a dedicated parliamentary standing committee. This has not come to pass. 

A next step could be to establish the OCJ in legislation and/or the Constitution. Even if the (implausible) option of leaving the current governance system unchanged were taken, this should at least be qualified by ensuring that the existence and role of the OCJ are established in legislation, if not the Constitution as well. This step alone would be a valuable starting point. 

For example, the challenges with the division of responsibilities between the OCJ, Department of Justice and Department of Public Works could be greatly clarified and improved by formalising them in legislation. And if the OCJ is to be maintained during the implementation of more ambitious reform measures, for example, the establishment of a single judiciary, it will be crucial that its role and functions are clearly established — and its independence ensured.

It may be that the step of legislating the OCJ’s existence was never taken because the OCJ was only intended to be an interim measure. But even if this is so, the fact that the OCJ has limped on without a legislative basis for more than a decade makes the need to address this issue even more acute.

A glaring contrast emerges when comparing the institutional independence of the OCJ to that of the Auditor-General. The latter operates with constitutionally mandated independence, shielded from political influence. It has clear appointment and removal processes involving the executive and Parliament, in an open and transparent manner which emphasises cooperative governance. 

Conversely, the OCJ lacks a comparable level of institutional independence. While individual judges and magistrates maintain their independence, the administrative personnel face dual responsibilities, reporting to the judiciary and the executive, introducing ambiguity and the potential for interference. The appointment of the secretary-general under the Public Service Act, coupled with limited legislative provisions governing their functions, underscores the lack of clarity and independence in the OCJ’s administrative structure. 

But it often boils down to money. Mbekezeli Benjamin’s analysis reveals a concerning trend in the budget allocation for high court services, which has stagnated or experienced cuts since 2016. The 2022/23 OCJ budget of R2.6-billion only marginally surpasses the R1.6-billion allocated in 2015/2016, which is primarily due to an adjustment in judges’ salaries. However, this adjustment fails to keep pace with inflation and contributes to the lack of judicial capacity. This effectively worsens case backlogs, as an increasing workload is then disproportionally spread among fewer judges. So, a completely independent judiciary-led administration remains unachieved.  

A single judiciary 

The Department of Justice’s Vision 2000 comments on the crucial role magistrates’ courts play, handling over 95% of civil and criminal cases in South Africa. Despite Vision 2000’s goals remaining largely unaccomplished, the pursuit of a single judiciary has persisted. The envisioned transformation aims at creating a single judiciary with integrated structures and system, leadership that is foundational to accountability inspired by “professional status to the administrative management of courts”.   

However, legislative and policy progress toward this goal is challenging to discern. The 2013 Superior Courts Act assigns Judge Presidents with the responsibility to coordinate the judicial functions of all lower courts within their jurisdiction. Regrettably, this initiative falls short of creating the integrated judiciary envisioned in the policy goals. 

In 2022, the Lower Courts Bill and the Magistrates Bill were introduced, intending to repeal the Magistrates’ Courts Act and the Magistrates Act. Despite expectations for these bills to signal progress towards a single judiciary, they merely reinforced existing structures. Achieving a single judiciary demands a substantial overhaul of current judicial structures and systems. This task is formidable and requires careful consideration in any approach to judicial governance reform.  

An effective judiciary 

The 2022 DGRU’s State of the Judiciary report exposed governance and administration issues, including infrastructure shortcomings like unreliable internet, inadequate digital resources and poorly maintained court facilities. Despite these challenges, the courts continue to deliver respected, independent judgments in sometimes very difficult working conditions.  

Identifying distinct phases of change and implementing incremental reforms may be a pragmatic approach, despite potential dissatisfaction with the slow progress towards a single judiciary or a judiciary-led administration. Given the governance challenges across all court levels, this method appears to be the most sensible way to navigate the complex process. 

The consequences of a stalled transition are clear — a judiciary lacking proper governance is akin to a judgeless courtroom, prone to chaos and mistrials. Reforms are necessary to uphold the judiciary’s constitutional mandate, particularly in a country grappling with increased litigation and a judiciary functioning in suboptimal conditions. 

Does the fate of the institution hang in the balance at the upcoming conference? An open and transparent process is imperative for navigating these high-stakes decisions. With less than a year left with the current Chief Justice at the helm, the hourglass is running out. The question echoes: what can realistically be achieved before the sands of time settle? DM  

Alison Tilley is the coordinator and Vuyani Ndzishe is the Research Assistant at the Democratic Governance & Rights Unit working under the Judges Matter Project. Judges Matter is a project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary of South Africa. For more visitwww.judgesmatter.co.za and follow @WhyJudgesMatter on Twitter.

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