It is important to the survival of constitutional democracy that the judiciary should function as a well-oiled machine that is responsive and accountable to the needs of the people.
GroundUp has uncovered worrisome statistics revealing long delays in the handing down of judgments in far too many cases in our High Courts and other superior courts of the land (see article republished here).
The accuracy of the statistics, supplied by the Office of the Chief Justice, is now disputed by his spokesperson and adjusted statistics are expected to be made public soon. All indications are that there is a problem, and it is the depth of the hole that the judiciary has dug for itself that is being quibbled over. The fact is that one late judgment is one late judgment too many.
The law is clear: as the High Court has constitutionally conferred jurisdiction to hear all disputes not especially reserved for other courts, it is in the public interest that there be efficient and effective service from the judges in the High Courts of the various provinces. Judgments are the “deliverables” of the justice system.
The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. 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.
The Chief Justice has issued guidelines which require that reserved judgments be delivered within three months of the completion of the hearing of any matter heard in our superior courts. The accessibility and effectiveness of courts are nullified if judgments are not timeously issued.
Section 237 of the Constitution requires that all constitutional obligations be performed “diligently and without delay”.
The detailed facts are still murky, but require proper investigation.
Against the constitutional backdrop summarised above, it is indeed troubling that so many judgments, in fact any judgments, are not delivered timeously and that litigants are kept waiting for the determination of their disputes.
The Constitutional Court recently took from February to August to work out whether or not to give Shaun Abrahams, our former National Director of Public Prosecutions, the order of the boot, which was eventually administered by the majority of the Court. His replacement, hopefully destined to be a key person in the fight-back against state capture, is yet to be appointed. An unnecessary delay, especially as the prospect of the president having to find one has been known since last year.
These delays are prejudicing the necessary clean-up in respect of captured operatives who litter the landscape in the criminal justice administration. The delays stymie the recovery of assets and funds in their hundreds of billions of rand, the loot misappropriated during the heyday of state capture. The longer the authorities delay, the slimmer the prospects of recovery.
The ability of the treasury to find the funds needed to pay social grants and provide service delivery in general is also reduced while the effects of state capture remain unaddressed. Undoing irregular procurements from the arms deals to the train deals and all that went on at Zuptoid Eskom is the stuff of serious litigation. That the courts will have to play a major role in setting matters right, appropriately punishing those found guilty of grand corruption and ordering the return of the loot, whether in civil or criminal proceedings, is beyond question.
It is therefore important to the survival of constitutional democracy that the judiciary should function as a well-oiled machine that is responsive and accountable to the needs of the people.
There may be many causes for the backlog of judgments. Their exact nature and extent need to be empirically determined. Cynical observers may suggest that over-enthusiastic application of the Constitution’s notion that:
“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”
is one possible reason for tardiness in producing judgments. This is capable of determination quite easily through the analysis of the raw data upon which the disputed statistics are based. The exercise should be done, either departmentally, through the Judicial Service Commission (JSC) or by academia.
The JSC has a process to identify appropriately qualified persons who are “fit and proper” to be appointed as judges. The large number of undelivered judgments suggests this process is not working as it should. Greater emphasis on “fitness” and “properness” may be indicated for the selection process.
Another, less often used, function of the JSC is that it may “advise the national government on any matter relating to the judiciary or the administration of justice…”. When doing so, politicians on the JSC do not participate in the giving of the advice contemplated by section 178(5) of the Constitution.
The question now facing a properly engaged and accountable JSC is: what advice does it have in respect of the shockingly low productivity rate of some of the judges it has recommended for appointment?
There are many strategies available to boost the morale, work-rate and output of judges who have fallen below the standard required of them by the law and by the Chief Justice’s guidelines. The constitutional standard is to do their work “diligently and without delay.” All too frequently this is not happening at present.
Here are some random suggestions for consideration.
The mentoring of junior judges and/or struggling judges who are in default with judgment output either by more senior members of their bench or by recently retired judges ought to be considered as a means of addressing the problem. This process already happens informally; perhaps it ought to be formalised.
Better management of the errant judges may also help. This suggestion would involve the Judges President in keeping tabs on the slow writers of judgments and taking them off-duty in court for short periods to use the time thus freed up to write judgments. When a “heavy” matter is heard, it is probably cost-effective and efficient to give the judge concerned a day or two to do a first draft of the judgment by not requiring the judge to sit in court when time would be better spent on generating the judgment or at least a first draft of the judgment. This strategy is preferable to returning to a “cold case” long after it was heard. Urgent public interest litigation ought to be accorded precedence: The length of the review proceedings in respect of the prosecution of Jacob Zuma endured from April 2009 to October 2017. An urgent application to address deficiencies in the basic education system was mulled by the puisne judge in the matter for 17 months, making an appeal impractical due to the effluxion of time. It took the High Court nine months to deliver judgment on the fate of the Scorpions. The courts can and should do better in public interest matters.
All judges who have overdue judgments outstanding and are entitled to long leave must be required to attend their chambers at court and finalise all overdue judgments before actually commencing the long leave. This step will make their long leave more enjoyable.
Attendance at chambers during court recess for slackers with overdue judgments is also a way of boosting their productivity.
Time management that is effective is often found in high functioning organisations in which there is esprit de corps and proper resourcing. Researchers, decent secretarial help, air-conditioning, ergonomic office furniture, suitable diet, rest and exercise, adequate access to libraries both in cyberspace and at court, genuine collegiality and team spirit are all useful as is the type of positive leadership that is conducive to productivity. Coaching and consulting to achieve these felicitous outcomes may be indicated.
It is notable that the backlog of reserved judgments occurs in the big and busy divisions, not in the smaller rural economy courts. The seconding of judges in the smaller divisions to help out with complex cases in the larger ones is a way of spreading the load more equitably across the bench. It is iniquitous that judges in small centres enjoy a relaxed lifestyle with too little work, while conscientious judges in big centres are continuously and unrelentingly under huge pressure to do their fair share of the work of the division in which they sit. Over-use of the more conscientious judges also leads to resentment and unhappiness on poorly managed benches. It is remarkable how few judges regularly write reportable and reported judgments.
The frequent, and sometimes lengthy, use of acting judges, who are not drawn from the ranks of retired judges, is a feature of the SA bench which requires reconsideration. The independence of acting judges drawn from the professions is objectively questionable. The possibility that they may be unconsciously executive-minded stalks them and their supposed ambitions for permanent appointment. Their use to do the “heavy-lifting” in some busy divisions is both exploitative and unwise from the point of view of nurturing the excellence of our judiciary. The use of acting judges in the SCA and ConCourt is also open to criticism of the kind seen in the columns of the Daily Maverick in recent weeks. Vacancies should be timeously filled.
The failure to come down both early and hard in disciplinary proceedings against slackers, those who have no acceptable excuse for their tardiness, compounds the problem. A culture of impunity for slacking may grow and the reputation of the whole bench and the perception of its ability to self-correct will be put in jeopardy. Swift disciplinary justice is good for the bench as a whole and for the well-being of society in general. The disciplinary machinery of the JSC has often fallen short of the “diligently and without delay” standard as can be gleaned from the long-running Hlophe and Motata disciplinary proceedings.
If there are too few judges in the country, steps should be taken to create additional posts in those divisions in which the shoe pinches. In the larger scheme of things the appointment of sufficient judges to eliminate the use of acting judges completely is preferable to the situation that exists at present. The impartiality and independence of the bench and its existing good reputation are at stake. Judges are in the front line of restoring the country to a post-state capture equilibrium.
It is suggested that retired judges are a national treasure whose pool of talent, experience and skill is under-utilised. Using them as acting judges in cases of need has worked well in the past but seems no longer to be in vogue. Leonora van den Heever, after she retired as a judge of appeal, set a good example by acting for many years as a judge in Cape Town.
Circulating a questionnaire to all recently retired judges to ascertain their willingness and availability to act or to mentor struggling judges or even just to help those wrestling with long outstanding judgments could place the system in a far stronger position than is at present the case.
Even a once-off backlog elimination exercise, an energetic push involving retired and senior judges, would publicly signal a willingness to deal pro-actively with the problem rather than passively wishing that it would somehow go away.
The matter is too important to be left unattended. DM
Paul Hoffman SC is a director of Accountability Now. He served as an acting judge in Cape Town at the invitation of three successive judges president.