Being uninformed is so last season
23 November 2017 11:29 (South Africa)
Opinionista Brad Cibane

Chief Justice Mogoeng and the ‘unbelievable resistance from the Executive’ to judicial independence

  • Brad Cibane
    brad-cibane.jpg
    Brad Cibane

    Brad Cibane is a Franklin Thomas Fellow and an LLM Candidate at Harvard Law School.

The South African Judiciary has come a long way from that Apartheid institution which made Nelson Mandela feel like a ‘black man in a white man’s court.’

Over the past 20 years of democracy, Chief Justice Mogoeng and his predecessors, as well as his colleagues on the bench, have pursued an aggressive transformation agenda to improve the face of the Judiciary. Although not perfect, the Judiciary now has better race and gender representation.

‘We have done several things to enhance the efficiency and effectiveness of the justice system,’ said the Chief Justice in his keynote address at the University of South Africa on 25 November 2014. But it seems the efforts have hit a snag.

The Chief Justice says the Government of South Africa is receding on constitutional obligations and resisting judicial independence. ‘The area of court operations hitherto neglected and resisted has been the institutional independence of the Judiciary,’ he said.

In 2010, an agreement between the Judiciary and the Government of South Africa led to the establishment of the Office of the Chief Justice (OCJ). The OCJ was to have several stages of metamorphosis. Chief Justice Mogoeng explains that the OCJ was “meant to be a decisive break from Executive-control as represented by the Department of Justice. Functions, personnel and the budget had to be transferred by the Justice Department to the OCJ Department.”

In 2012, the Department of Justice and the OCJ signed Memoranda in terms of which judicial functions were to be transferred to the OCJ.  But, according to the Chief Justice, “those functions, personnel and funds were not transferred.”

The Department of Justice, then under Minister Jeff Radebe and now under Minister Tshililo Masutha, is putting up a hostile fight to keep the OCJ as satellite office or, as Mogoeng puts it, “an appendage of the Executive”.

According to Chief Justice Mogoeng, the president had to intervene in the dispute, which allowed the transfer of functions from the Justice Department to the OCJ on 1 October 2014.

The intervention by the president did not cure the Judiciary’s headache. While functions were transferred to the OCJ, the OCJ is now being snuffed of resources. The transfer of functions was not reflected in Minister Masutha’s latest budget. The Chief Justice says that “[t]he only thing that comes remotely close to transfer of functions was a mention of a Bill that would hopefully become an Act in two to three years’ time.”

Minister Masutha is the Executive’s chief resistor to judicial independence: “It took our meeting of 18 August 2014 with the Minister [Masutha] and his officials to have the transfer of 1 October 2014 grudgingly take place. I say grudgingly because as at that time it evidently was not in the Minister’s plans. And even in his announcement of the transfer, he was very careful to describe the Secretary General of the OCJ as his proxy who would consult with the Judiciary on his behalf.”

Chief Justice Mogoeng has hard evidence of the Government’s resistance to judicial independence:

1. The judiciary is without accommodation. He says, “You must visit Edura House, on Fox Street [downtown Johannesburg], where the Judiciary is housed to appreciate the downgrading of its dignity.”

2. The Judiciary is broke. The OCJ does not have money to modernise courts and, thus, improve judicial efficiency. According to the Chief Justice, “The budget to do this has been withheld.  We ask for funds but were told that they were not available.”

3. The Magistracy, which is part of the Judiciary, has been left out of the transfer of 1 October 2014.

4. The Department of Justice insists on appointing personnel to key positions in the OCJ: “The COO of the OCJ, who is very critical to the smooth operation of the courts, has to be interviewed, but the new Minister says it is an executive functions and the Judiciary is not to be involved in the interview process.”

5. The Legislature is siding with the Executive. According to the Chief Justice, “There was an attempt [through the Superior Courts Act] to denude the Constitutional Court of its pre-existing power to make its own rules.” The Constitutional Court’s Rules “facilitate the speedy clearance of process and court performance related hurdles.” The president intervened after the Act was passed. He suspended operation of the offending section of the Act.

6. The Government is also robbing the Judiciary blind. Mogoeng gives the example of judge’s vehicles. While there are just 243 judges, and four months to go before the end of the financial year, the Government Garage has already deducted R264m from the Judiciary’s budget. “[This means] one Judge’s vehicle is serviced at the cost of more than R1m in a financial year.”

Mogoeng says the Executive has a tight noose around the Judiciary’s neck. “No Chapter 9 institution, no municipality and neither the Hawks nor IPID are treated like the third arm of the State. None is sought to be babysat like us.”

Chief Justice Mogoeng has a blunt warning for the country: “For the peace and stability of a country, the observance of the rule of law, the protection of human rights and security of our constitutional democracy, you need an independent, effective and efficient Judiciary.  A weakening of the independence of the Judiciary poses a threat to any constitutional democracy, the rule of law, the capacity to stem the tide of corruption and the creation of a peaceful, stable and investor-friendly climate.” He invites the public, specifically the intelligentsia, to interrogate judicial independence.

In recorded but unwritten parts of his speech, Mogoeng put his warning even more bluntly, “If the judiciary in any constitutional democracy is compromised, you can kiss that constitutional democracy goodbye.” DM

  • Brad Cibane
    brad-cibane.jpg
    Brad Cibane

    Brad Cibane is a Franklin Thomas Fellow and an LLM Candidate at Harvard Law School.

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