GOVERNANCE OF THE JUDICIARY IN SOUTH AFRICA
Governance of the judiciary of South Africa is divided between judicial functions and administrative functions. The judicial functions are exclusively reserved for judicial officers, but they may also have oversight over the administrative functions.
That means each court is managed by a senior judicial officer (the Head of Court), who manages the judges and/or magistrates but also has oversight over the registrars and/or clerks who provide administrative support to the judiciary.
The Constitution (Section 166) sets out the structure of the courts of South Africa.
The courts, from the highest to the lowest are:
- The Constitutional Court.
- The Supreme Court of Appeal
(including specialist appeal courts like the Competition Appeal Court and the Labour Appeal Court).
- The High Court of SA, which has divisions across all nine provinces
(together with specialist courts with equivalent status to the High Court such as the Labour Court, the Electoral Court, and the Land Claims Court).
- The Regional Magistrates Courts, which has divisions across all nine provinces.
- The District Magistrates Courts
(which also includes the Family Courts, the Children’s Courts and Municipal Courts).
The Chief Justice is the head of the judiciary, in terms of section 165(6) of the Constitution.
At the National Level
The Chief Justice is the head of the judiciary, but also the head of the Constitutional Court, supported by the Deputy Chief Justice.
The CJ has oversight over the Office of the Chief, a national government-level department that provides administrative support to the entire superior court judiciary. The head of the OCJ is called the Secretary-General.
A court manager is appointed to manage the administrative functions of the Constitutional Court, with the assistance Chief Registrar, who is responsible for the registry function.
The Supreme Court of Appeal is headed by a President of that court, supported by a Deputy President. Assisted by a Court Manager and Chief Registrar.
Both the Competition Appeal Court and Labour Appeal Court are headed by Judges President, assisted by Chief Registrars of each court.
At the Provincial Level
In terms of section 166(6) of the Constitution, read with section 6 of the Superior Courts Act, there is one High Court of South Africa, with nine provincial divisions.
Each division of the High Court is headed by a Judge President, supported by one or more Deputy Judges President, who manage all the judges in the division. Administrative functions are provided by the Chief Registrar in each High Court.
The High Court in each province has a main seat, which is located in a major urban city, and may have a local seat, in a major town.
Provinces like the Free State, Northern Cape, North West, and the Western Cape have only one court building which is the main seat, where both the JP and DJP sits. They manage all judicial functions from that court.
Provinces like Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, and Mpumalanga have both a main seat and local seats (EC has 4 local seats and 1 circuit court). Both Eastern Cape and Gauteng have one JP but two DJPs, who respectively head up the court buildings in their respective seats. There is a Chief Registrar for each seat.
The Specialist Courts also have a Judge President who heads up the court. They are assisted by the Chief Registrar for that court.
The Chief Registrars and registrars of the Superior Courts are employees of the Office of the Chief Justice.
At the Regional Level
There is one Regional Magistrates Court with nine provincial divisions. Each Regional Court Division is headed by a Regional Court President.
The RCPs are in charge of the judicial officers in the region, called Regional Magistrates. Administrative support is provided by a Court Manager, assisted by clerks, who are all employees of the Department of Justice and Constitutional Development.
At the District Level
There are hundreds of District Magistrates Courts spread across all the municipal districts in South Africa.
Each District Magistrates Court is headed by a senior judicial officer, who may be a Chief Magistrate or a Senior Magistrate.
Chief Magistrates serve a dual role of being in charge of Administrative Regions, which include several district courts in a particular area.
For example, the Chief Magistrate of Cape Town is responsible for all the district courts from the Cape Metro, right up the West Coast up to Karoetjieskop on the border of the Western Cape and Northern Cape. Similarly, the Chief Magistrate of Wynberg is responsible for that court (situated in the Cape Metro) up the Southern Cape Coast to Plettenberg, on the border of the Western Cape and Eastern Cape.
Administrative and registry functions in the district magistrates’ courts are provided by the clerks of that court, who are all employees of the Department of Justice and Constitutional Development.
The future of governance of the judiciary
The governance of the judiciary has long been a site of debate and contestation. Judges believe that, for the principle of judicial independence to be truly realised, they should be in charge of all functions to do with the judiciary, including the judicial, administrative, and even the budget and finance functions. These are sometimes called the “institutional independence” questions.
Many judicial officers also believe that the entire judiciary from top to bottom should reside under one administrative entity, the so-called ‘single judiciary’ principle.
Several others, including judges and even the Minister of Justice, do not believe that judges should be taking up more of the administrative and financial functions. Because judges are not always competent for these functions, but also because it would take judges away from their judicial functions.
While this debate continues, several reforms were initiated from 2010, to realise both the institutional independence and single judiciary principles. These included the passing of the Seventeenth Amendment to the Constitution (2012) and the enactment of the Superior Courts Act (2013). In 2014, the Office of the Chief Justice was established, and the administrative functions of the superior court judiciary were transferred to it from the Department of Justice.
These reforms were never completed, for reasons that have not been adequately explained.
As things stand, the administration of the lower court judiciary (the magistrates courts) still resides in the Department of Justice.
This practically means that your case could start in the district courts and, as it moves to the High Court and above, it would also move from one national department to the other, which is an oddity in terms of the national administration.
There are also practical problems with having several parts of the judiciary reporting to different entities. We have pointed out some of them here:
This might be why the new Chief Justice, Raymond Zondo, indicated on his appointment in 2022 that finalising the institutional independence and single judiciary principles will be the priority of his tenure. We will wait and see.