South Africa’s new Parliament must address urgent judicial issues

As new members take their seats in Parliament, it’s vital for all MPs to grasp the urgent challenges facing South Africa’s judiciary and the crucial role they must fulfil in addressing them.

In this article we explore the critical issues confronting the judiciary and outline essential reforms required by the 7th Parliament. Our key concerns include stalled judicial governance reforms, the imperative of a unified judiciary for enhanced access to justice, and the need to streamline processes for addressing judicial misconduct. We would also like to underscore the significant challenges experienced by magistrates and judges, including threats, harassment, and inadequate resources.

We would also point out the immediate necessity of implementing a comprehensive Sexual Harassment Policy to safeguard court users. Parliament’s pivotal role in holding the Executive accountable for these reforms is paramount and cannot be overstated.

Judicial governance reform: A critical task for the 7th Parliament

The process of judicial governance reform in South Africa remains far from complete. Despite the establishment of the Office of the Chief Justice in 2014 and the passing of the 17th Constitutional Amendment, longstanding concerns about the governance and administration of the courts persist. The reforms undertaken thus far have not resolved these underlying issues and calls for the establishment of a single judiciary have largely gone unanswered.

Judges are expected to fulfil one of the most important roles in our constitutional democracy, yet they do so under considerable political pressure and without the necessary administrative, infrastructural, and related support. The current governance and administration system does not appear to be fit for purpose, placing an undue burden on the judiciary.

Judicial governance reforms, initiated in the 5th Parliament, have stalled. It is now up to the 7th Parliament to pick up the mantle and move these reforms forward. One key reform is merging magistrates and judges into a single judiciary, managed by a unified judicial administration, as envisaged by the Constitution. Parliament must lead the Executive and Judiciary in achieving this critical integration.

Parliament needs to lead the Executive and Judiciary on merging magistrates and judges into a single judiciary, run by a single judicial administration, as envisaged by the Constitution.

Chief Justice Mandisa Maya advocates for judiciary-led administration to ensure access to justice

Incoming Chief Justice Mandisa Maya believes that judicial officers should play a much larger role in maintaining the courts, proposing enhanced institutional independence for judges. The relationship between personal independence and institutional independence is such that, while judicial officers may be free to operate independently and deliver judgments in accordance with the law, their ability to do so is often constrained by the resources available to them. Therefore, the extent to which the judiciary controls its resources, determines policy and strategic priorities, and allocates funds is crucial for effective judicial resolution of disputes.

The current governance structure appears incompatible with judicial independence. Notably, the Office of the Chief Justice (OCJ) remains a government department rather than the independent entity envisaged when it was proposed. While judges possess decisional independence, they lack full administrative independence, exemplified by their reliance on the Department of Justice for resources like library access.

Chief Justice Maya envisions a judiciary-led administration where judges manage the courts, ensuring judicial independence and expedited access to justice. This concept, originally coined by Chief Justice Ngcobo, remains unimplemented due to stalled negotiations between the Executive and Judiciary.

This is not an academic debate – trial dates in the Pretoria High Court only available from January 2029, as a result of a shortage of judges. Parliament must spearhead efforts to finalise the modalities of this judiciary-led administration, coordinating with Minister Thembi Nkadimeng and Chief Justice Mandisa Maya.

Incoming Chief Justice Mandisa Maya envisions a judiciary-led administration, where judges manage the courts, ensuring judicial independence and expedited access to justice.

Expanding the Judicial Conduct Committee: A legislative priority

The process for handling judicial misconduct complaints is excessively slow, primarily due to the limited number of members on the Judicial Conduct Committee (JCC). Both Chief Justice Zondo and Minister Lamola agree on the need to expand the JCC by amending the Judicial Service Commission Act. Parliament must demand the JSC amendment bill from the Minister and ensure its swift passing to increase the efficiency and effectiveness of the judicial complaints process.

The Judicial Conduct Committee is established through Chapter 2 (Part 1) of The Judicial Service Commission Act 9 of 1994 (sections 7 to 10). The JCC handles different categories of complaints per sections 14 to 17, with processes outlined in section 18. The committee comprises six judges: the Chief Justice, who chairs the JCC, the Deputy Chief Justice, and four other judges designated by the Chief Justice in consultation with the Justice Minister. These four judges serve for two years, with the possibility of a two-year extension, but they cannot serve for more than four years in total.

Judges Matter does not believe that the current system to hold judges accountable for misconduct is efficient or effective. Although there is an understandable need to protect the right to procedural fairness and safeguard judicial independence from frivolous complaints, the current system’s multiple decision-making processes make it vulnerable to delays and obstruction through litigation. The judicial conduct system should be streamlined, with more administrative resources invested to expedite complaint handling.

South Africa has a pool of excellent retired judges who could act as guardians of the judiciary’s ethics and reputation by getting involved in conduct proceedings early, even at the screening stage. As a priority, the Conduct Committee needs to be expanded to include these retired judges.

Parliament must demand the JSC amendment bill from the Minister and ensure its swift passing to increase the efficiency and effectiveness of the judicial complaints process… The judicial conduct system should be streamlined, with more administrative resources invested to expedite complaint handling.

Ensuring transparency in the appointment of Acting Judges

Acting as a judge or magistrate is a vital requirement for permanent appointment. However, the current process for appointing acting judicial officers is shrouded in secrecy, making it susceptible to abuse, patronage, and corruption. Although former Minister Lamola drafted a policy to ensure transparency and fairness, it remains mired in negotiations between the Executive and Judiciary. Parliament must exercise its oversight powers to ensure the finalisation of this policy, promoting transparency in judicial appointments.

Acting judges in the Superior Courts can be appointed if there is a vacancy, if a permanent judge is temporarily unavailable, or if the court needs extra capacity temporarily. The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve. The process for appointing acting judges has been under development by the Minister of Justice for some years.

The draft policy requires candidates for acting judges to be qualified, competent, have integrity, and show potential for permanent appointment. It proposes that candidates need at least 10 years of experience in practicing law, being a magistrate, lecturing in law, or working as legal advisors. A curriculum vitae would be required for first-time recommendations. The Head of Court would decide the duration of acting appointments, but acting judges should not serve more than four consecutive court terms. The Cabinet member responsible for the administration of justice would still appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

Parliament must ensure the swift implementation of this policy to foster a transparent and fair judicial appointment process.

Acting as a judge or magistrate is a vital requirement for permanent appointment. However, the current process for appointing acting judicial officers is shrouded in secrecy, making it susceptible to abuse, patronage, and corruption… Parliament must ensure the swift implementation of this policy to foster a transparent and fair judicial appointment process.

Addressing issues faced by Magistrates

Magistrates in South Africa are under significant pressure, facing a multitude of challenges that demand urgent attention. Almost a quarter of magistrates have faced physical harm, or threats related to their work over the past year. Additionally, 16% of female magistrates have experienced sexual harassment or know someone who has, often perpetrated by another magistrate. Perceptions of corruption within the judiciary are worsening, with one in eight magistrates aware of bribery attempts, and in 10% of these cases, other magistrates are involved.

Court infrastructure, resources, and staff conditions have not improved, and the COVID-19 pandemic exacerbated these issues due to backlogs. Major problems include poor remuneration, inadequate infrastructure, low morale, and difficulties in attracting and retaining talent. The magistracy is clearly under significant strain and requires immediate support.

The Public Protector’s report on systemic administrative deficiencies in the processing of GBV cases within the South African justice system underscores the severe issues in nearly all assessed courts. Parliament must hold the Executive accountable for addressing these deficiencies and improving court infrastructure, resources, and staff conditions to support magistrates effectively.

The magistracy is clearly under significant strain and requires immediate support… Parliament must hold the Executive accountable for addressing these deficiencies and improving court infrastructure, resources, and staff conditions to support magistrates effectively.

Urgent need for an Anti-Sexual Harassment Policy in the judiciary

The judiciary in South Africa urgently requires a comprehensive Sexual Harassment Policy to guide the Judicial Service Commission (JSC) in effectively handling cases of sexual harassment. This policy is crucial for ensuring that victims’ complaints are taken seriously and that they are protected from retaliation. Despite a promise made by Chief Justice Zondo in February 2022, such a policy has not yet been implemented. There is also the issue of sexual harassment in courts more broadly, which affects all court users.

Sexual harassment remains a taboo issue within the legal profession and judiciary. The constitution mandates the judiciary’s transformation to reflect South Africa’s diverse population and affirms everyone’s dignity and equal protection under the law. Addressing sexual harassment is essential for this transformation and for advancing women within the judicial system. Judicial leaders must take decisive action to eliminate sexual harassment and protect the dignity of all court users.

Parliament must hold the Executive accountable for implementing this crucial policy to ensure a safe and dignified environment in the courts.

The judiciary in South Africa urgently requires a comprehensive Sexual Harassment Policy to guide the Judicial Service Commission (JSC) in effectively handling cases of sexual harassment… Judicial leaders must take decisive action to eliminate sexual harassment and protect the dignity of all court users.

New members of Parliament have a critical role to play in addressing these pressing issues within the judiciary. By taking decisive action, Parliament can ensure that South Africa’s judiciary remains independent, efficient, and just, upholding the rule of law and delivering justice for all South Africans.