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Our courts are in trouble – will the new Chief Justice be able to fix them?

Our courts are in trouble – will the new Chief Justice be able to fix them?

Our courts are in trouble – will the new Chief Justice be able to fix them?

The late Ms. Altecia Kortje visited the Bellville Magistrate’s Court around midday on 8 June 2020 to apply for a protection order. Her name was placed on the list of complainants in the Protection Order Section of the Bellville Magistrate’s Court. She was attended to by a clerk at the section, who gave her an application form and explained to her the Protection Order application process.

Ms. Kortje left the Bellville Magistrates’ Court about an hour after her arrival without completing and submitting the application form for further help. Her explanation to Ms. Dolf, who had been accompanying her to court on the day, was that she did not expect that it would be a long process to obtain the Protection Order, and there was too much to write.

Ms. Kortje was allegedly murdered by her former partner on 12 June 2020. She never did get that protection order.

In the subsequent report by the Public Protector on systemic administrative deficiencies in the processing of GBV cases in the South African justice system, the Public Protector reports a range of serious issues around the processing of GBV cases in virtually all courts that were surveyed. Many of these were also reported by magistrates in the research done by the DGRU. Learn more here.

There is poor maintenance of existing infrastructure, which is evidenced by cracked walls, leaking roofs, unhygienic ablution facilities, exposed electrical wiring, broken ceilings, doors and windows. There are incomplete building projects at some Magistrate’s Courts such as at Mamelodi, which has been incomplete for over a period of 10 years, Pretoria, which burned down in 2010 and has not yet been repaired, and Ga-Rankuwa, where the project to repair and renovate was registered with the DPWI more than 10 years ago but never commenced.  Even some of the recently renovated courts such as Palm Ridge and Umbumbulu have structural defects in the form of cracked walls and roof leaks.

The majority of the courts do not have proper filing systems and spaces. The report details inadequate office equipment such as malfunctioning telephone lines, switchboard and air conditioners, persistent network problems, broken photocopiers, and shared computers. Certain courts, like those in Mamelodi, Ga-Rankuwa, and Vereeniging, lack waiting places, forcing people to utilise parking lots or open spaces, exposing them to the elements. In certain courts, such Tseki and Tsheseng in the Free State, there is a lack of electricity and water. Most courts lack enough filing cabinets and workspaces. Files kept in police cells at Ga-Rankuwa or strewn on the floors of Mamelodi, Pretoria, Palm Ridge, Vereeniging, Johannesburg, and Bellville Courts serve as evidence of this.

In the background, there are clerks issuing documents, finding files, and trying to keep the Integrated Case Management System (ICMS) up to date. Some courts lack an operational ICMS and cases have to be manually entered. Due to network issues, the ICMS is frequently unavailable or operates very slowly, as seen, for instance, at the Magistrates Courts in Umlazi, Umbumbulu, Mamelodi, Mzumbe, and Ndwendwe.

The process of applying for and receiving temporary protection orders, which are necessary to support victims of domestic abuse, lacks regular deadlines. Certain courts handle protection order cases every day, while other courts reserve one day of the week to handle protection order applications. This is against the Domestic Violence Act’s section 5(1), which mandates that the court consider applications as soon as is reasonably possible. It also prejudices the victims and applicants by potentially exposing them to additional violence or death if protection order applications are not promptly handled.

So, who is responsible? The intractable difficulty in dealing with these particular problems in the justice system is that for all of these there are many role players. If you go into a court room, it is tempting to assume that the magistrate has all the power, and therefore is in charge of everything. They do, of course, have significant power as a judicial officer, but in their courtroom you may also see a Legal Aid South Africa lawyer, a prosecutor from the NPA, and a court orderly. These people are actually all part of different organisations and report to different employers.

Then there is the court manager, who is responsible for the court functioning, like trying to get the CCTV system working for the cases involving minors, while also trying to find a space for those piles of court records that the system generates. Out in front are security, and of course, they are the first port of call. Add to the mix that its actually Public Works who repair court buildings, as they are government buildings, and you can see the problem. In higher courts, the Office of the Chief Justice manages the courts, but must still engage with the Department of Justice and Public Works.

Practically speaking, there are strong signs that the Department of Justice, the Office of Chief Justice, and the Department of Public Works, as the governing triumvirate, are not doing a good job of supporting the courts. South African judges surveyed for the DGRU’s 2022 State of the Judiciary report listed a variety of difficulties they faced. The most common was a lack of digital and online resources, which was followed by the poor condition of court building infrastructure and—perhaps most notably—complaints about OCJ staff’s lack of responsiveness and communication with the courts. The OCJ was characterised as “another tier of administration which frustrates rather than assists” by one respondent. Read more.      

These concerns were further borne out when Justice Mandisa Maya was interviewed by the JSC in 2022 for her current position of Deputy Chief Justice. Justice Maya spoke from a position of experience as a judicial leader, having served as Deputy President and then President of the Supreme Court of Appeal, and been a candidate for the position of Chief Justice earlier in 2022. In her interview, Justice Maya spoke candidly about the administrative and infrastructural challenges facing the courts.  She highlighted failures by the OCJ to ‘do its part’ to deal with longstanding issues affecting the SCA registrar’s office, as well as unreliable internet access and the lack of a working telephone system. She repeated these same concerns in her interview by the JSC in 2024 and indicated that she believes that these problems require an overhaul of judicial governance. Watch Justice Maya’s interviews here.

Her argument is that judicial officers should play a much bigger role in maintaining the courts. She proposes institutional independence for judges. The relationship between personal/individual independence and institutional independence is such that, though judicial officers may be free to operate independently and to deliver judgments in accordance with the law, their ability to do so may be constrained by the resources they have. Therefore, it is argued, the extent to which the judiciary has control over its resources and is able to determine policy and strategic priorities, and allocate funds to pursue these, is crucial. It has been argued that the effective judicial resolution of disputes requires the institutional independence of the courts.

That would probably involve strengthening the Office of the Chief Justice (OCJ), which despite its name, is actually the equivalent of a government department for the judiciary, and not the Chief Justice’s personal office. The Constitution makes no reference of the OCJ. One may have anticipated that the OCJ’s existence would be formally established, as the Constitutional Seventeenth Amendment Act of 2012 also came after the OCJ’s founding. The Office of the Chief Justice (OCJ) was established as a national department on 23 August 2010. A striking feature of the OCJ’s establishment is that it was created via proclamation – there was and still is no dedicated legislation establishing and demarcating its role. As a result, the life of the OCJ is less certain and less stable than it might be.

The mission, authority, composition, and purview of the OCJ are not set forth in any fundamental laws. This kind of thing should have been included in the Superior Courts Act, which was passed a few years after the OCJ was established. The administration of the judicial functions of all the courts, including governance issues, over which the Chief Justice exercises responsibility, is one of the Act’s goals.

For the system to work, all these parts need to be working seamlessly. We have a new Parliament and a new Chief Justice coming. They have many issues to fix, but the role of the courts, and the rule of law are central to any functioning state. The Public Protector has made findings and requires the Department of Justice, the police, and the Department of Social Development to embark on remedial action. One of those orders is to submit to the Public Protector a detailed project plan for the construction, renovation, or procurement of all courts identified in the audit with clear dates, turnaround times, targets and deliverables indicating how buildings and ICT will be upgraded, and the procurement plan for the furniture and office equipment. The project plan should include the short and medium to long-term interventions for the various courts.

When a young woman like Ms. Kortje comes to the court, she needs to be seen and assisted quickly and in the right way. This will only happen if the parts of the system work together seamlessly.


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