We are woefully short of Judges: We need more and now

In the last few weeks, two extraordinary events happened which laid bare the severe shortage of judges in our courts.

The first, was last week’s (25 July 2023) announcement by Judge Robert Henney that several gang-related murder trials couldn’t proceed because there were just no judges available to try them at the Western Cape High Court division. He postponed the trials to 2024 and 2025 respectively.

The second, was this week’s (31 July 2023) notice to the legal profession by Gauteng High Court Deputy Judge President Roland Sutherland announcing that, in the 9 week term that began on 17 July, the Johannesburg court would recruit 29 legal practitioners as [paid] acting judges, and 46 more to act pro bono. That is to supplement the 40 permanent judges there, a quarter of whom will be on long-leave or acting in appellate courts.

Both the Western Cape and Gauteng high courts have the largest number of judges deployed there (30 and 80, respectively) and for good reason: both courts have the highest caseloads. According to the Judiciary Annual Report 2021/2022, Gauteng finalised 55 578 civil and 1 031 criminal cases, while Western Cape finalised 14 816 civil and 5 266 criminal cases. However, both courts, like the rest of the judiciary need many more judges to carry this load – it is a nationwide problem.

How did the judges’ shortage get to crisis point? 

It’s probably not an exaggeration to say South African society has grown more litigious. Many more disputes that should’ve been resolved elsewhere are reaching our courts. Take for example the numerous cases filed to challenge the outcome of political party conferences. Or the outcomes of votes in parliament? All of those disputes should be resolve through persuasion and negotiation in deliberate political forums but are ending up before judges. It’s the judicialisation of politics.

Over the last decade, the South African population has grown in leaps and bounds (51 million people per 2011 Census, versus 61 million by mid-2022). The rates of crime have also increased. The murder rate, which is a reliable indicator, has risen steadily and so has the violent nature and complexity of that crime (e.g. cybercrimes and corruption). Despite this, the number of judges has largely remained the same 250 or so since 2010.

Previously, both Limpopo and Mpumalanga provinces were serviced by the Gauteng High Court. But this changed in 2016 when high courts were established in both provinces. Still, only a handful of new judges’ posts were created and the majority were recruited on secondment from Gauteng.

Money is also a problem. Since at least 2016 the budget allocated to high court services – via the Office of the Chief Justice, the national government department which administers the higher courts – has largely remained the same or been cut in specific areas. In real terms and adjusted for inflation, the 2022/2023 OCJ budget allocation of R2,6 billion is only marginally higher than the R1,6 billion budget allocation for the 2015/2016 financial year. The bump is largely due to an adjustment of judges’ salaries which had not increased for several years (arguably a violation of section 176(3) of the Constitution).

The costs of adding additional judges’ posts to the existing number go beyond the salary spend on each individual judge. There is also the costs of office (or chamber) space and hiring a judges secretary.

Regardless, the bottom line is that we need more judges – and fast.

What is the impact of a shortage of judges? Delays, delays, delays.

The obvious impact of the shortage of judges is the long delays in getting cases to court and resolved.

In divorce cases, that means longer periods of uncertainty over crucial issues like child custody and maintenance.
In the Labour Court (which only has 13 judges nationwide), we are told that as from October 2022 no new trial dates are available until 2024.

In criminal trials, like the gang murder trials in the Western Cape, crucial evidence like DNA is deteriorating, witnesses die, and the memories of those remaining fades. Accused persons also spend many years in pre-trial detention before their day in court.

There is also an impact on the speed at which judgments can be delivered. In his notice, Judge Sutherland notes that, in order to improve lead times for when cases to court, no time is allocated for judges to prepare for cases or write judgments.

That means judgment-writing is left for weekends, court recesses and holidays. That means the rate of delivery of those judgments is slower. Indeed, two Gauteng judges have been recently suspended for the slow pace at which they deliver judgments.

All of these have a serious impact on the confidence people have in the judiciary and the justice system as a whole. It also erodes the rule of law.

What is being done to deal with the crisis?

In October 2021, Minister of Justice Ronald Lamola appointed retired Deputy Chief Justice Dikgang Moseneke to chair a committee to rationalise the jurisdiction of the high courts. This means that, in the first part, the Moseneke Committee would analyse the apartheid-style boundaries of the courts and align them with the current provincial and municipal boundaries, based on the needs of the population and access to justice.

In addition, in the second part of its work, the Moseneke Committee would also undertake a scientific analysis of the judicial establishment to determine exactly how many more judges’ posts we need, taking into account the new boundaries, population sizes, caseloads, and the need to establish new courts to bring justice closer to the people.

The Moseneke Committee has only recently (as of 28 July 2023) completed the first part of its work, and has made thoroughgoing recommendations such as the establishment of new courts in George in the Western Cape, Welkom in the Free State, Ekurhuleni in Gauteng, and, controversially the relocation of the main high court seat from Makhanda (Grahamstown) to Bhisho in the Eastern Cape.

They’ll soon begin the second part of determining the exact number of judges needed. This is a long-term project for the overhaul of the judiciary that will take some time to complete. But the crisis of a shortage of judges cannot wait until then.

What is to be done? Money, money, money

The most crucial intervention in the short- to medium term is more money allocated to the judiciary. It sounds simple but that’s because it is.

While we wait for the Moseneke Committee to come up with a long term solution and tell us exactly how many more permanent judges we need, there needs to be more (paid) acting judges appointed.

The Gauteng High Court is already recruiting 29 acting judges for the next term just to prevent a complete collapse of its functions. It’s unsustainable — and probably risky for the independence of the judiciary — to rely so heavily on pro bono judges. We need money.

While we do need more court rooms, the Covid-19 pandemic has shown us that
many cases that do not require witnesses can proceed in virtual court.

What about office space and secretaries? ‘Hotdesking’ is now a common feature in the workplace, and judges can share chamber space. There can also be a pool of skilled secretaries to support new acting judges.

Again, all of this needs a modest amount of money. We now need Chief Justice Zondo to sit with Justice Minister Lamola to figure out exactly how much more money is needed and can be found. National Treasury needs to be part of this conversation and will need to craft special budget allocations as soon as the October mini-budget, if not the February 2024 budget.

It goes without saying that the national fiscus is under severe pressure, and the economic situation is deteriorating. However, the rule of law and people’s confidence in the justice system are indispensable ingredients to economic growth and achieving social justice. You can’t grow any business in a lawless country. We need more judges and we need them now.

A version of this article appeared in GroundUp and in Business Day .
Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a civil society organisation forming part of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the South African judiciary. Follow @WhyJudgesMatter and visit www.judgesmatter.co.za