The State of the Judiciary and Judicial Governance unveiled: A necessary reality check

Judicial officers play a central role in our constitutional democracy. They spend most of their time contemplating how the other branches of government do their work, but they will now be turning that critical gaze onto themselves, as the third arm of the state. In an historic judges’ conference beginning on Monday, 4 December 2023, judges and magistrates will tackle crucial judicial governance issues which have long been left hanging. While the more immediate issues might be salaries lagging behind inflation, and inadequate infrastructure, there are several much broader issues which need to be dealt with. The most obvious are in the title of the conference – which is “Towards a single, effective and fully independent judiciary.”   

Independence

In our constitutional democracy, judicial authority, explicitly granted by the Constitution, requires independence. Judges must dispense justice without fear, favour, or prejudice. While individual judges’ autonomy is generally safeguarded through tenure conditions and a culture of deliberative independence, achieving genuine institutional independence remains a goal many judicial officers believe is yet to be realised.

The debate surrounding institutional independence has long been a focal point within the judiciary. Former Chief Justice Ngcobo advocated for a judiciary-led administration during his tenure. This approach posited that effective judicial administration is inseparable from judicial independence, free from undue external influences.

The establishment of the Office of the Chief Justice marked progress in reducing executive control over the day to day functioning of the judiciary, and empowered the OCJ, intended to act as a national department to serve the courts. Although it sounds like it serves the Chief Justice alone, the OCJ is effectively the department of government for the judiciary and was established by Presidential proclamation.  

The Committee on Institutional Models for the Office of the Chief Justice, led by Langa and Chaskalson proposed a three-phase approach to establish a judiciary-led administration, positioning the Office of the Chief Justice as an independent entity akin to the Auditor-General. This reorganisation involved direct parliamentary appropriations for funding, with built-in accountability measures, including a dedicated parliamentary standing committee. This has not come to pass.

 A next step could potentially be to establish the OCJ in legislation and/or the Constitution. Even if the (implausible) option of leaving the current governance system unchanged were taken, this should at least be qualified by ensuring that the existence and role of the OCJ is established in legislation, if not the Constitution as well. This step alone would be a valuable starting point. For example, the challenges with the division of responsibilities between the OCJ, Department of Justice and Department of Public Works could be greatly clarified and improved by formalising them in legislation. And if the OCJ is to be maintained during the implementation of more ambitious reform measures, for example the establishment of a single judiciary, it will be crucial that it’s role and functions are clearly established – and its independence ensured.

It may be so that the step of legislating the OCJ’s existence was never taken because the OCJ was indeed only intended to be an interim measure. But even if so, the fact that the OCJ has limped on without a legislative basis for more than a decade means that the need to address this issue becomes even more acute.    

… Towards a single, effective and fully independent judiciary.”   

A glaring contrast emerges when comparing the institutional independence of OCJ to that of the Auditor-General. The latter operates with constitutionally mandated independence, shielded from political influence. It has clear appointment and removal processes involving both the executive and parliament, in an open and transparent manner which emphasises cooperative governance.

Conversely, the OCJ lacks a comparable level of institutional independence. While individual judges and magistrates maintain their independence, the administrative personnel face dual responsibilities, reporting to both the judiciary and the executive, introducing ambiguity and the potential for interference. The appointment of the Secretary-General under the Public Service Act, coupled with limited legislative provisions governing their functions, underscores the lack of clarity and independence in the Office’s administrative structure. 

But it often boils down to money, doesn’t it? Mbekezeli Benjamin analysis reveals a concerning trend in budget allocation for high court services, stagnating or experiencing cuts since 2016. The 2022/23 OCJ budget of R2.6 billion only marginally surpasses the R1.6 billion allocated in 2015/2016 which primarily due to an adjustment in judges’ salaries. However, this adjustment fails to keep pace with inflation, and contributes to the lack of judicial capacity. This effectively worsens case backlogs as an increasing workload is then disproportionally spread amongst fewer judges. So, a completely independent judiciary led administration remains not achieved.  

A SINGLE judiciary

The Department of Justice’s Vision 2000 comments on the crucial role magistrates’ courts play, handling over 95% of civil and criminal cases in South Africa. Despite Vision 2000’s goals remaining largely unaccomplished, the pursuit of a single judiciary has persisted. The envisioned transformation aims at creating a single judiciary with integrated structures and system, leadership that is foundational to accountability inspired by “professional status to the administrative management of courts.” 

However, legislative and policy progress toward this goal is challenging to discern. The 2013 Superior Courts Act assigns Judges’ President(s) with the responsibility to coordinate the judicial functions of all lower courts within their jurisdiction. Regrettably, this initiative falls short of creating the integrated judiciary envisioned in the policy goals. 

In 2022, the Lower Courts Bill and the Magistrates Bill were introduced, intending to repeal the Magistrates’ Court Act and the Magistrates Act. Despite expectations for these bills to signal progress towards a single judiciary, they merely reinforced existing structures. Achieving a single judiciary demands a substantial overhaul of current judicial structures and systems. This task is formidable and requires careful consideration in any approach to judicial governance reform. 

An effective judiciary

The 2022 DGRU’s State of the Judiciary report exposed governance and administration issues, including infrastructure shortcomings like unreliable internet, inadequate digital resources, and poorly maintained court facilities. Despite these challenges, the courts continue to deliver respected, independent judgements in sometimes very difficult working conditions.

Identifying distinct phases of change and implementing incremental reforms may be a pragmatic approach, despite potential dissatisfaction with the slow progress towards a single judiciary or a judiciary-led administration. Given the governance challenges across all court levels, this method appears to be the most sensible way to navigate the complex process. The consequences of a stalled transition are clear—a judiciary lacking proper governance is akin to a judgeless courtroom, prone to chaos and mistrials. Reforms are necessary to uphold the judiciary’s constitutional mandate, particularly in a country grappling with increased litigation and a judiciary functioning in suboptimal conditions.

An open and transparent process is imperative for navigating these high-stake decisions. With less than a year left with the current Chief Justice at the helm, the hourglass is running out. The question echoes: what can realistically be achieved before the sands of time settle?  

ALSO READ: The [Current] State of Judicial Governance in South Africa 

Article by: Alison Tilley and Vuyani Ndzishe | Judges Matter 

A version of this article is published in The Daily Maverick (1 December 2023)