How much help do our courts need?

The rule of law is the foundation of a just society. It ensures that laws are applied fairly and consistently, that no one – no matter how powerful – is above the law, and that fundamental rights are protected. Without it, governments become unaccountable, democratic institutions weaken, and corruption flourishes.

We need a strong judiciary to ensure the rule of law. South Africa has been lucky in many ways in its judiciary, but we cannot sit on our laurels. Reforms in judicial governance stalled in 2014, with many of the issues identified then still unresolved. The shortage of judges in the courts is one of these issues that continues to persist and grow increasingly urgent.

The rule of law is often taken for granted, with the assumption that its principles will naturally endure. However, recent developments in countries once considered champions of democracy – particularly the United States – demonstrate how fragile these foundations can be.

The erosion of the rule of law in the U.S.A

In recent months, the USA’s commitment to the rule of law has faced unprecedented challenges. Key principles – such as accountability, separation of powers, and judicial independence – have been undermined by executive overreach, politicisation of the judiciary, and attacks on democratic norms.

The Trump administration proceeded with deportations of alleged Venezuelan gang members despite a court order from Chief Judge James E. Boasberg to halt such actions. The administration justified its actions by claiming the deportations occurred before the written order was issued, leading to a significant dispute between the executive and judicial branches.

Despite this order, the administration proceeded with deportation flights, asserting that the judge’s directive lacked authority over executive actions related to national security.

​Incidents like this have contributed to growing concerns about the erosion of democratic principles and the rule of law in the United States.

South Africa’s constitutional safeguards

Of course, in June 2015, South Africa found itself at the centre of a similar international legal and diplomatic storm when it failed to arrest Sudan’s then-president, Omar al-Bashir, despite an outstanding International Criminal Court (ICC) warrant for his arrest.

As a signatory to the Rome Statute, South Africa had a clear legal obligation to arrest him when he arrived in Johannesburg for an African Union (AU) summit.

South African civil society groups, led by the Southern Africa Litigation Centre, took swift action, securing a High Court order barring al-Bashir from leaving the country. However, in a shocking display of defiance, government officials allowed him to depart from a military air base, ignoring both the court order and South Africa’s international commitments. This blatant disregard for the law was an affront not just to the judiciary, but to the principles that underpin South Africa’s democracy.

On June 15, 2015, the High Court ruled that the government had violated the Constitution and its obligations under international law by failing to arrest al-Bashir. The court called the government’s actions unlawful and criticised its disregard for judicial authority. The Supreme Court of Appeal (SCA) upheld the High Court’s ruling, confirming that the government had acted unlawfully.

However, we are more positive about the rule of law in South Africa today than ever. How so?

South Africa’s Constitutional Court, Supreme Court of Appeal, and High Courts have consistently demonstrated judicial independence, as in the al-Bashir case, ruling against government overreach and reinforcing constitutional principles.

Even in politically sensitive cases, judges have upheld the separation of powers, ensuring that no leader is above the law.

South Africa’s Constitution stands as a powerful example of how the rule of law can be embedded into governance in a way that protects against authoritarian overreach.

South Africa’s Constitution stands as a powerful example of how the rule of law can be embedded into governance in a way that protects against authoritarian overreach.

Any law, policy, or government action that contradicts the Constitution can be challenged and overturned by the courts. It prevents the kind of unchecked executive action that has become increasingly common in other democracies.

The separation of powers: A critical protection

One of the most vital mechanisms for preserving the rule of law is the separation of powers – the principle that executive, legislative, and judicial branches must function independently to prevent the concentration of power.

South Africa’s Constitution explicitly upholds this principle. The executive (led by the President) is accountable to Parliament, and the judiciary (led by the Chief Justice) has the authority to review executive and legislative actions. The Constitutional Court has consistently reinforced this principle by ruling against attempts to undermine judicial independence or violate constitutional provisions.

This is a stark contrast to developments in the U.S., where executive actions have repeatedly encroached on the authority of other branches of government. The attempted dismantling of USAID is just one example. Other concerning trends include the dismissal of independent agency watchdogs and the issuing of controversial pardons to political allies involved in criminal activity. We believe these actions weaken the checks and balances that are essential to democratic governance.

South Africa’s judiciary, on the other hand, has remained resilient in defending constitutional principles. Courts have struck down unconstitutional laws, challenged abuses of power, and upheld fundamental rights – even in politically sensitive cases. This judicial independence is critical to ensuring that no single branch of government can dominate the others.

Strengthening the judiciary

A judicial conference held in 2023 agreed many ways forward in resolving governance issues, but those resolutions remain unimplemented.

The shortage of judges is a crisis that must rise to the top of the list of problems to be solved.

The shortage of judges is a crisis that must rise to the top of the list of problems to be solved. (We wrote about this in 2023, and again in 2024) ​The Moseneke Committee, chaired by retired Deputy Chief Justice Dikgang Moseneke, was established in June 2021 by the Minister of Justice and Correctional Services. Its mandate is to rationalise the areas under the jurisdiction of the High Court divisions and assess the judicial establishments to enhance access to justice in South Africa.

The Committee’s Phase 2 interim report, released in 2024, (view here) focused on evaluating the judicial establishments within the High Court divisions. Key findings indicated that workload pressures on judges have increased due to population and economic growth. However, the report noted a lack of comprehensive data on caseloads, which hindered the ability to make precise recommendations regarding the number of judges needed. To address this, the Committee recommended implementing mandatory uniform data collection to establish a case-weighting system, and developing a new policy on acting judges.

Organisations such as Judges Matter have actively engaged with the Committee’s findings. In June 2024, Judges Matter made a submission responding to the Phase 2 report, emphasising the urgent need to increase the number of judges to address the current crisis in the courts, particularly in Gauteng, where trial dates have been delayed significantly.

We cannot be complacent about the rule of law and a respected judiciary. We urge the leadership to take steps to ensure these processes do not remain stuck, and that we can move forward to ensure our constitutional order stands.