The crucial role of the Chief Justice
Why do we spend so much time talking about what the Chief Justice says and does?
In recent weeks, the Chief Justice has been in the news regularly, with attention being focused on the judiciary’s response to the Covid-19 crisis, as well as the seemingly never-ending saga of complaints and counter-complaints between judges of the Western Cape High Court, and how the leadership of the judiciary has been responding.
Even prior to Covid-19 and the disruption it has caused, a lot of attention was focused on the Chief Justice, and his public statements. So it seems obvious that the position of Chief Justice is very important. But why exactly is that? What does the role involve, and why do we spend so much time talking about what the Chief Justice says and does?
The role of the Chief Justice
As a judicial officer, the Chief Justice is the head of the Constitutional Court. The Constitutional Court is the highest court in the country. It has the final word on the development of our law, and on the constitutionality of legislation and other government action. Leadership of this court is therefore extremely important.
As head of the court, the Chief Justice leads an institution that has the final say on the jurisprudence followed by all other courts in the country, and thus may be considered an intellectual leader of the judiciary.
The Chief Justice is also responsible for practical arrangements in the Court, such as determining which judges will write judgments in particular cases. After consulting with the Minister of Justice and Constitutional Development, the Chief Justice is empowered to make regulations dealing with how cases are dealt with by the court.
Beyond his role on the Constitutional Court, the Chief Justice is also the head of the whole judiciary. This aspect of the role has increased significantly since the coming into effect of the 17th Constitutional Amendment and the Superior Courts Act in 2013.
As head of the judiciary, the Chief Justice is required to establish and monitor the norms and standards for the exercise of judicial functions, and may (with the support of the relevant heads of court) issue written protocols or directives to give guidance to judges. Together with the secretary-general of the Office of the Chief Justice, the Chief Justice determines some of the functions of court managers. The Chief Justice advises the Minister on making regulations relating to the administrative functions of the courts.
For the judiciary, as with other governance institutions, having sufficient budget to carry out its functions is crucial. The Superior Courts Act empowers the Chief Justice, after consulting with other heads of court, to determine the funds required for the administration and functioning of the superior courts. (This determination is then dealt with by the Minister.)
The Chief Justice is tasked with compiling a judicial code of conduct, which provides the standard for conduct which judges must adhere to. The Chief Justice must review the Code at least once every three years, in consultation with the Minister, and the result of the review is tabled in Parliament.
The Chief Justice is also the chairperson of the Judicial Service Commission (JSC). There are two major components to this role. The JSC recommends the appointment of judges, and the Chief Justice chairs the interviews of candidates. This gives the Chief Justice an important role in leading the process, questioning, application of criteria for appointment.
As the head of the judiciary, it is to be assumed that the views of the Chief Justice carry significant weight and are influential with members of the JSC. Furthermore, the Chief Justice must be consulted by the President when appointing judges to the Constitutional Court, and must concur with the Minister’s appointment of an acting judge to the Court.
The JSC is also a major actor in dealing with complaints against judges. The Chief Justice chairs the Judicial Conduct Committee (JCC), in which capacity he receives and deals with complaints against judges, and in certain circumstances may conduct an inquiry into complaints which are serious, but would not lead to impeachment. The function of chair of the JCC was previously delegated to the Deputy Chief Justice, but it appears that with the current Deputy Chief Justice chairing the state capture commission, the Chief Justice has resumed this role.
In cases of serious allegations of misconduct which may lead to impeachment, the Chief Justice is required to appoint a Judicial Conduct Tribunal when requested to do so by the JSC. The Chief Justice is further required to make the rules which regulate Tribunal proceedings.
Considering the various controversies about the failure of the JSC to resolve complaints against judges expeditiously and effectively, the importance of the Chief Justice’s role on this issue is worth emphasising.
The Chief Justice is also involved in appointments of office-bearers other than judges. For example, he chairs a panel which submits candidates to a committee of the National Assembly for appointment to the Independent Electoral Commission.
… It is, therefore, no exaggeration to say that the Chief Justice’s role is hugely significant, not only for the judiciary itself, but for the functioning of our constitutional democracy in general.
The Chief Justice is responsible, with consultation, for developing and implementing training courses to develop a pool of specialised presiding officers in terms of the Promotion of Administrative Justice Act, the Promotion of Access to Information Act, and the Promotion of Equality and Prevention of Unfair Discrimination Act. The Chief Justice also chairs the council of the South African Judicial Education Institute, which is responsible for judge’s professional training and development.
Furthermore, there is an international component to the position, which requires the Chief Justice to act as a kind of judicial diplomat. This includes welcoming foreign judges who may be visiting South Africa, and representing South Africa on regional bodies such as the Southern African Chief Justices’ Forum and the Conference of Constitutional Jurisdictions of Africa (CCJA). The current Chief Justice served as President of the CCJA between 2017-2019.
In addition to all the responsibilities already set out, the Chief Justice also has a wide range of more ceremonial tasks. These include presiding over the election of the speaker of parliament, and administering the oath of office to the President and cabinet ministers.
Some of these functions can be and are in practice delegated to other judges. But it is clear that the Chief Justice has a very wide range of responsibilities. A schedule of responsibilities compiled during the preparatory work on the Superior Courts Act came to 18 pages, and in light of the numerous responsibilities contained in the act, this list would now be even longer.
A crucial role
The responsibilities set out show the Chief Justice playing a key role in a wide range of issues that are crucial not only to the functioning of the judiciary, but indeed to our entire structure of constitutional governance. As we have seen, the Chief Justice is the leader of the country’s highest court, and of the whole judiciary. He is responsible for the norms and standards that guide how judges operate, and for the regulation of the administration of courts. The Chief Justice is involved in determining the funds the judiciary needs in order to operate. He plays a crucial role in the regulation of judicial conduct, and in the appointment of training of judges. These aspects shape the composition and the very nature and philosophical outlook of the judiciary, both in the present and in the future, and impact fundamental questions such as the meaning and implementation of transformation.
As we have seen, the judiciary plays a very important role in our constitutional democracy. It is, therefore, no exaggeration to say that the Chief Justice’s role is hugely significant, not only for the judiciary itself, but for the functioning of our constitutional democracy in general. This is why the position of Chief Justice matters, and why it matters that we take seriously with the question of what qualities the person appointed to that role should possess. With the current Chief Justice’s tenure coming to an end in 2021, these issues will soon need to be confronted when a new Chief Justice is selected.