Judicial Governance in South Africa
Executive summary
This paper discusses the current position regarding the governance of the judiciary in South Africa. It identifies criticisms of the current system and areas in which reform appears to be needed. The requirements of judicial independence are identified, including the need for the judiciary to exercise control over matters of a judicial nature and to have primary responsibility for court administration. Furthermore, independence requires that the judiciary not be substantially dependent on the executive for funding or for its day-to-day operations.
The paper then discusses the various models for judicial governance. The executive-based model has received criticism for its lack of independence and being less effective for service delivery. Concerns are noted that the separate department model remains closely linked to the executive.
The judiciary-based model appears to be overwhelmingly favoured by commentators, both from the perspective of independence and effectiveness.
The current governance structure is then examined, with a discussion of the establishment of the Office of the Chief Justice (OCJ) and the three-phase approach which the establishment of the office was intended to begin. It is noted that the establishment of the OCJ is not regarded as having created judiciary-based court administration, and that while its establishment was expressly identified as an interim measure, further reforms have not proceeded. Perhaps as a consequence, the OCJ lacks a legislative or constitutional foundation, which creates a lack of clarity in respect of its role and hampers its independence.
The paper then analyses several shortcomings with the current governance system, including a lack of independence, judges’ inputs not being heard, numerous practical problems relating to the courts not receiving the support and services they require, confusion over the role and status of court officials, a lack of responsiveness to judicial needs in budgeting, and the exclusion of the magistracy. It is noted that many of these shortcomings have long historical roots, suggesting that more fundamental changes are needed.
The debate over the establishment of a single judiciary is then considered. We note that there are forceful arguments that the current division between superior and lower courts is unconstitutional, and that there are numerous problems with the existing governance of the lower courts. However, while there have been long-standing policy goals articulated about the creation of a single judiciary, little has been done to achieve these. The implications of the Constitutional Court judgment in Van Rooyen are discussed. Some of the practical challenges of establishing a single judiciary are then considered through a brief comparison of the process for the appointment and removal of judges and magistrates. This discussion demonstrates that there are practical challenges that will need to be thought about carefully and overcome to avoid collapsing back into the superior/lower courts dichotomy.
Finally, we set out some potential reforms, and note the need for mapping the needs of the courts and the meaning of court administration prior to undertaking further reforms
1. Introduction
Writing in 2003, the future Chief Justice Sandile Ngcobo commented that the governance of the courts “has a substantial impact on the provision of services by the judicial branch of government” and “is crucial to the capacity of the courts to provide and operate an effective and efficient justice system.” Ngcobo identified that the self-administration of the courts “is one of the most important, if not the most important means of achieving the highest level of operational efficiency of the courts and ultimately the delivery of justice.” Notwithstanding the importance of the issue, Ngcobo observed that there was “widespread dissatisfaction with the current system of governance.”[1] Despite considerable effort during his subsequent tenure as Chief Justice (as will be discussed in this paper), the position has not advanced much since then.
The governance and administration of the courts are therefore a matter of great importance. Judicial administration is crucial for, among other things, providing a fair and prompt hearing and for protecting the courts against improper influence.[2] This paper will examine the current status of judicial governance in South Africa. In section 2, we will discuss the meaning of the constitutional guarantee of judicial independence, and what it means for the governance and administration of the judiciary and the courts. In section 3, we will identify various options for judicial governance structures, before setting out the current governance and administration structures in section 4. In section 5, we will identify the main problems and criticisms of the current governance system. In section 6, the thorny question of the ‘single judiciary’ will be discussed. In section 7, some potential reforms will be discussed, based on the key issues identified in the paper. We do not aim to advocate for one course of action to the exclusion of others. Rather, we seek to prompt thought about the possible options and what they would entail.
Sources
This paper draws on open-source material, such as reports and academic writing, particularly by judges, and those close to the process. Articles by former Chief Justice Ngcobo and by Hassen Ebrahim, who headed the secretariat of the Office of the Chief Justice Committee on Institutional Models, are particularly useful resources, and the doctoral thesis of Pawranavilla Rawheath, a sitting regional magistrate, provides invaluable insight from the perspective of a judicial officer in the magistrates’ courts.
In April 2022, the DGRU hosted a symposium at Franschhoek to encourage discussion of these issues. The event was attended by judicial officers, academics, and members of the government. While the symposium was held in terms of Chatham House principles and therefore no comments are attributed, inputs from the event have been included anonymously to capture the perspectives of the participants on these issues. The paper also draws on DGRU position papers prepared for the Franschhoek symposium.
A note on terminology
Judicial or court governance and administration are technically different concepts but will often be used interchangeably. We trust that the meaning will remain clear from the context in which the terms are used.
Historically, South African magistrates’ courts have often been referred to as “lower courts,” with the high courts, courts of equivalent status, and appellate courts being referred to as “superior courts.” We are mindful that this terminology perpetuates historical attitudes towards the magistracy, which are the cause of some disquiet. It was apparent from discussions at the Franschhoek symposium that there is sensitivity over the names and titles given to magistrates and how this perpetuates attitudes that do not accord them respect as judicial officers. We are mindful of these concerns. In some instances, the discussion of source material makes it unavoidable to use the superior/lower courts dichotomy. We mean no disrespect to magistrates in using this language – if anything, it serves to highlight how debates about the structure and governance of the judiciary, in its broadest sense, are very much live issues, 30 years after the interim constitution came into force.
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2. Constitutional Framework: The Requirement of Judicial Independence
In the South African context, any model of judicial governance that is implemented must comply with the requirements of the Constitution. Paramount among the constitutional architecture is section 165(2), which provides that:
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and to the law, which they must apply impartially and without fear, favour, or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts..
…
(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
The different facets of judicial independence
In unpacking the meaning of judicial independence, Ngcobo cites Madison for the proposition that, to guard against the concentration of multiple powers in the same department, it is necessary to “giv[e] to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.”[3] This points to the close relationship between judicial independence and the doctrine of the separation of powers. Although not expressly mentioned in the Constitution, the separation of powers is integral to the constitutional schema, deriving from the structure of the Constitution and the interplay between organs of state.[4] In the context of the judiciary, the separation of powers is aimed in part at ensuring that the other branches of government do not interfere in judicial functioning.[5]
This understanding of judicial independence is most often seen in the relationship between the judiciary and the executive. In a 2007 speech, the then – Chief Justice of New South Wales, James Spigelman, explained the potential threat to judicial independence from the executive as follows:
“The threat to independence from the Executive branch is, of course, particularly acute because the Executive is, in one manner or another, the ultimate source of power for the appointment of judges, for the administration of mechanisms for discipline or removal of judges and the source of funding for all aspects of the administration of justice.
The most significant single aspect of the institutional arrangements for judicial independence is the need to insulate, indeed to isolate, the exercise of judicial power from interference or pressure from the Executive branch of government. To a substantial degree this is simply a manifestation of the need to ensure impartiality …”[6]
As we will see, the importance of the relationship between the executive and the judiciary goes beyond decisional independence, and is also central to judicial independence in respect of administration and governance.
As well as being a fundamentally established principle on its own terms, judicial independence is also foundational to other rights, such as the right of access to courts, which is premised on the existence of an impartial and independent judicial system.[7]
Judicial independence is a multi-faceted concept, and pinning down a single, clear definition is not as simple might be expected.[8] A level of overlap is often inevitable, and drawing bright lines between its different aspects may not always be possible or desirable. At its broadest, judicial independence encompasses an internal, or subjective, facet, and well as an external, objective component.[9] Put another way, independence has been described as comprising independence at an adjudicatory and an institutional level.[10] This distinction is also often referred to as the difference between individual and institutional independence.
This broad distinction is reflected in the Draft Principles on the Independence of the Judiciary (Syracusa Principles) defines the independence of the judiciary as follows:
* [] every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducements, or pressures, direct or indirect, from any quarter or for any reason …
* [] [the judiciary is independent of the executive and the legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature..[11]
Internal or personal independence
Judicial independence ensures that the judiciary has autonomy in decision-making:[12] It has been defined as ‘the complete liberty of individual judges to hear and decide the cases that come before them.”[13] Internal independence incorporates elements of personal independence, covering issues such as conditions of service and security of tenure, as well as substantive independence, ensuring that individual judges are free from influence by any other person or institution when performing judicial functions.[14] The remuneration of judges is a crucial aspect of the security of judicial tenure. Judges’ salaries and pensions must be adequate, fixed by law, entrenched in the constitution, or secured by law, and should not be decreased.”[15]
It has been emphasised that in order to ensure that only candidates of the highest calibre are appointed to judicial positions, their remuneration should be adequate. The pay and conditions of service must be such to “attract the best lawyers to the bench and retain them by ensuring that salaries are not reduced during tenure.”[16] Fundamental principles underpinning the preservation of the financial independence of judicial officers include the non-reduction of judicial salaries, the non-reduction of judicial salaries collectively, and salary guarantees for judicial officers at the time of their appointments.[17]
Internal independence requires that “in the decision-making process a judge must be independent vis-à-vis his judicial colleagues and superiors.”[18] Hierarchical structures within the judiciary must not interfere with a judge’s right to “pronounce his judgment fairly.”[19] Judicial independence therefore requires that judges be free from inappropriate influences both external and internal to the judiciary.[20] The internal threat to judicial independence can be insidious and subtle, and can pose a particular danger to junior judges in lower courts who may aspire to advance their careers.[21] Internal judicial independence can be impacted by apparently benign matters:
“At first sight, the issue seems to concern the judicial system’s internal administration, that is, unimportant administrative matters such as fiscal, docket and case flow … However, the very management of these administrative matters largely determines the extent to which judicial independence is protected”.[22]
Another way in which internal judicial independence may be infringed is in the allocation of cases.[23] Caution has also been expressed that over-emphasising judicial output can have “negative consequences for the quality of dispute resolution and in turn the right of court users to fair and correct decisions”, since “the pressure on judges who work slower that the ‘average’ to conclude a case that may fall outside the average in terms of complexity may be reasonably perceived as interference in independent judicial functioning.”[24]
This issue is a complex one in the South African context, where serious concerns have been raised about delays in delivering justice at all levels of the courts. The introduction of timeframes within which judgments are to be delivered, as contained in the Norms and Standards,[25] speak to this concern. At the time of writing, there have been high-profile instances of high court judges being reported for delays in delivering judgments, which could lead to their removal from office. And yet, the laudable concern with judicial officers being too dilatory in handing down decisions does need to be weighed against the need to ensure their independence is preserved. Rawheath suggests that “[i]nternationally, there is a real concern that the independence of lower courts judges in particular is increasingly exposed to threats brought about by the demand for speedier resolution of disputes. The volume and variety of caseloads together with resource constraints of lower courts may subject some lower court judges to undue pressure from their seniors in administration who value productivity above quality.”[26]
External or institutional independence
External independence is most closely associated institutional independence, which provides that the judiciary should be free from control by any other person or institution in conducting its day-to-day operations. This aspect incorporates administrative and financial independence.[27]
The UN Basic Principles require state parties to ensure the institutional independence of judiciaries and requires that judiciaries “shall have jurisdiction over all issues of a judicial nature. The Basic Principles further provide that “[t]he main responsibility for court administration including supervision and disciplinary control of administration personnel and support staff shall vest in the judiciary, or in a body in which the judiciary is represented and has an effective role.”[28]
Administrative independence
Administrative independence has been identified as being essential to institutional independence,[29] although it is frequently far from clear where the boundary is to be drawn to determine what constitutes an administrative matter falling within the purview of the judiciary.[30] Whilst there may not always be a clear delineation between purely adjudicative functions and administrative judicial functions, it is important that some attempt be made to engage with this distinction. Indeed, the Human Rights Committee has cautioned that a “lack of clarity in determining the respective competences of the executive, legislative and judicial authorities, may endanger the implementation of the rule of law and a consistent human rights policy.”[31] The argument goes that, whilst an individual judge may enjoy the essential conditions of independence, if the court in which they preside lacks independence from other branches of government in an aspect that is essential to the court’s functioning, it cannot be said to be independent.[32]
Similarly, it has been said that the judiciary cannot be said to be a genuinely independent and autonomous branch of government if it is “substantially dependent on the executive branch not only for its funding but also for many features of its day-to-day functions and operations.”[33] The argument is that the administration of courts, including elements such as the provision of accommodation and equipment for the courts, “could be manipulated to provoke dependency”, and that in the context of courts exercising increasing power and the growth in the size of the judiciary and the complexity of its administrative functioning, “[e]xecutive control of the administration of the courts poses the potential that such control may be manipulated either deliberately or otherwise to undermine the independence of the judiciary and interfere with the functioning of the courts.”[34]
Institutional independence has accordingly been defined as “concerning matters that relate directly to the exercise of the judicial function, as well as judicial control over administrative decisions that bear directly and immediately on the exercise of judicial function[s].”[35] 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 financial, human and physical resources available to perform their tasks.”[36] 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.[37] It has been argued that the effective judicial resolution of disputes requires the institutional independence of the courts, since “judicial independence is an integral aspect of effective court functioning.”[38]
A report adopted by the Canadian Judicial Council identified a core area of exclusive judicial responsibility, beyond primarily adjudicative functions, as including the authority to appoint and manage court staff, case flow management, and issuing directives for officers of court and other officials who work co-operatively with the judicial administration.[39]
Financial independence
The financial independence of the judiciary is a crucial aspect of judicial independence, both individually and collectively. Judges’ financial security has been identified as directly relevant to institutional (as well as individual) judicial independence.[40] In the Canadian case of Reference re: Public Sector Pay Reduction Act, the Supreme Court found that the doctrine of separation of powers required that the courts be and appear to be free from political interference through economic manipulation, and that they should not be involved in the ‘politics of remuneration.’ The court suggested that this made it necessary to interpose an independent body between the judiciary and other branches of government.[41]
Additional aspects
One further aspect of judicial independence should briefly be noted. It is necessary for the system of appointment of judicial officers to safeguard judicial independence and prevent appointments for improper motives. Appointment procedures must be transparent and based on objective criteria.[42] Concerns are expressed for judicial independence where the elected branches of government dominate the selection body (such as the JSC or Magistrates Commission).[43]
What does all this mean for the system of judicial governance which should be used in South Africa, where judicial independence is guaranteed under the Constitution? Judicial independence is crucial, not just for its own sake, but as a guarantor of other rights. The Constitution requires not only that there not be interference in the judiciary, but also that other organs of state must assist and protect the courts to ensure, inter alia, judicial independence. Among the numerous facets of judicial independence which have been identified, definitions of institutional independence appear to require judicial control over matters of a judicial nature, and primary responsibility for court administration. The judiciary also cannot be substantially dependent on the executive branch for funding or for carrying out day-to-day court activities.
In the next section, we proceed to consider the various judicial governance models which could be employed.
3. Models of judicial governance
Definitions of the different models
The literature on judicial governance identifies three main models: the executive-based model, the separate department model, and the judiciary-based model.
In the executive-based model, as the name suggests, the ultimate responsibility for court administration falls under the executive. The United Kingdom is cited as a leading example of this system, although some degree of judicial control does exist. Ultimate responsibility for court administration is vested in HM Court Services, which falls under the Ministry of Justice.[44]
Critics of the executive-based model argue that it is incompatible with judicial independence, and that it is less effective than the other models in terms of service delivery.[45] Prior to the establishment of the Office of the Chief Justice, Justice Ngcobo argued that the Constitutional framework establishing judicial independence did “not provide continued support for the authority of the Department of Justice to control all administrative powers, functions and duties affecting the judiciary”.[46] It has also been argued that the executive model does not serve to promote the right of access to courts.[47]
These criticisms do not entail that other branches of government have no role at all to play in court administration – as we have seen, the constitutional framework places obligations on all organs of state to assist in ensuring the independence, impartiality, accessibility and effectiveness of the courts. Ngcobo describes this as entailing an obligation on the state to provide adequate financial resources to ensure the “due administration of justice.”[48]
In the separate department model, the judiciary again does not have authority over the administration of the courts, which is dealt with by a separate, dedicated state department.[49] This is the approach followed in Canada, Denmark and New Zealand. Ngcobo argues that this model still does not meet the requirements of judicial independence, since “the separate department is still an arm of the executive branch of government and the problem of divided loyalties may still arise.”[50]
Finally, in the judiciary-based model, the administration of justice is controlled by the judiciary directly or through independent institutions.[51] This model has been defined as requiring “the creation of an agency or agencies, independent of the executive but under the control of the judiciary, which would assume responsibility for court administration.”[52] Such a system requires “the establishment of administrative capacity within the judicial branch to assume the authority that is currently vested in the executive.”[53]
Variations of this model are followed in several jurisdictions. In the United States, the federal courts are controlled and administered by three institutions. The Judicial Conference of the United States, comprising the heads of the federal courts and chaired by the Chief Justice, is the national policy-making body for the federal courts. It is responsible for approving the judiciary’s annual budget request; proposing, reviewing and commenting on legislation relating to the work of the courts; drafting and amending rules of practice and procedure; promoting uniformity of court procedures; exercising authority over codes of conduct, ethics, and judicial discipline; making recommendations for additional judicial positions; and reviewing needs for facilities.[54]
The second institution is the Administrative Office of the United States, which provides a range of legislative, legal, financial, and administrative support services to the federal courts. The third institution, the Federal Judicial Centre, is the judiciary’s main research and education agency.[55]
Australia is characterised as having two models of judiciary-based court administration. The first, described as a judicial autonomy model, applies to the federal courts and provides that each court individually controls its own administration and support staff. The second applies to the courts in South Australia, where a Court Administration Authority governs the courts and provides the structure through which the judiciary controls the provision of the necessary administrative and support services.[56]
In Ireland, the Courts Service manages the courts, provides support services for judges, provides public information, manages and maintains court buildings, and provides facilities for court users. A separate Board of Service determines and oversees policy for the Courts Service.[57]
The judiciary – based system has been argued to be the most appropriate for South Africa, on the grounds that aspects of court administration “are so closely related to judicial decision-making that they can only be conducted by the judiciary itself, including case-flow management, the keeping of records and statistics and the management of information.”[58] It has also been argued that there has been a growing move towards judicial self-governance in common law jurisdictions, due to both the requirements of the principle of separation of powers, and “because courts do not operate effectively without organisational control of their administration.”[59]
With these potential governance frameworks in mind, we now turn to examine the current system of judicial governance and court administration in South Africa.
4. Current governance structure
Prior to the establishment of the Office of the Chief Justice, courts were administered by the Department of Justice. Court premises were the responsibility of the Department of Public Works.[60] The governance system was described as “opaque” and lacking “a methodical and comprehensive treatment … in legislation or anywhere else.”[61]
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[62] – there was and still is no dedicated legislation establishing and demarcating its role. The implications of this will be considered more fully in section 5.
The OCJ’s stated role was determined to be to:
– provide and coordinate legal and administrative support to the Chief Justice;
– provide communication and relationship management services and inter-governmental and international co-ordination;
– develop courts administration policy, norms and standards;
– support the development of judicial policy, norms and standards;
– support the judicial function of the Constitutional Court; and
– support the Judicial Service Commission in the execution of its mandate.[63]
This development was in response to a long-standing push for reform, and a significant driver of this process was former Chief Justice Ngcobo.[64] While Chief Justice, Ngcobo had established committee to advise on the appropriate structure and powers for the OCJ.[65] The committee’s report records that there was agreement between the Chief Justice and the Minister of Justice and Constitutional Development “concerning the establishment of permanent capacity for the Chief Justice to perform his or her functions as head of the judiciary and head of the Constitutional Court, and the need to establish a judicially based system of court administration.”[66] (In light of subsequent developments, it is important to note that it was suggested at the Franschhoek symposium that this agreement may not have been considered by the full cabinet. This may in part explain why, as we shall see, the proposed reforms have not been fully implemented).
The process agreed was to have comprised three phases.
1. In phase 1, the OCJ would be established as a national department within the Public Service, to support the Chief Justice as head of the judiciary and head of the Constitutional Court.
2. In phase 2, the OCJ would be established as an independent entity similar to the Auditor-General.
3. In phase 3, a structure would be established “to provide judicial-based court administration.”[67]
It was envisioned that the OCJ would be the “core structure” of phase 1 and 2, “providing finance, administrative support, human relations, corporate services, communications, information technology and research support, and other necessary support functions”. It was felt that vesting all control of the OCJ in the Chief Justice would be unduly burdensome and inconsistent with the principle of accountability. Therefore, “a more representative governance body”, to assist the Chief Justice in administering the OCJ, was contemplated. To this end, a Judicial Council was to be established, to exercise oversight functions for an independent court administration is a common way of balancing independence and accountability. This approach was identified as representing international best practice.[68]
As is apparent from this phased approach, the initial establishment of the OCJ was not intended to establish judicial-based court administration. Ebrahim cautions that while the the establishment of the OCJ may be a step in that direction, it could serve to as a “distraction” from the project of establishing a judiciary-based system of court administration.[69] Ebrahim argues further that the Superior Courts Act does not make provision for a judiciary-based model of court administration, and “puts court administration firmly under executive control”, since the appointment of court staff is made in terms of laws governing the public service, and appointees are thus “employees of the public service.”[70] Ebrahim thus contends that the creation of the OCJ “does not obviate the need for the establishment of a court administration system … that is based in the judiciary itself.”[71]
The 2012 discussion document on the transformation of the judicial system describes the establishment of the OCJ as an “interim measure, pending the completion of the broader reform process”, to be guided by an ongoing feasibility study of the appropriate model of court administration for South Africa’s constitutional democracy. Locating the OCJ within the public administration framework, and thereby directly accountable to cabinet, is furthermore described as “incompatible with the independent character of the judiciary.”[72] Ebrahim argues that the OCJ’s role in providing resources and capacity to the Chief Justice “seems to have been conflated with the move towards a system of court administration based in the judiciary.”[73] Powell argues that the OCJ may not be able to protect the institutional independence of the judiciary, as it lacks the mechanisms to accommodate the input of individual judges regarding the best conditions or effective and independent work.[74]
At the time of writing, governance reforms appear to have stagnated. Shortly after his appointment as head of the judiciary, Chief Justice Zondo was quoted as saying that “[w]e need to go beyond [the first phase establishment of the OCJ] and make sure all those phases are completed … If I could ensure that by the time my term of office ends the judiciary has attained that institutional independence, I would be very happy because the independence of the judiciary is critical to sustaining our constitutional democracy.”[75]
Absent these reforms, the governance of the judiciary is a complex structure which is not easy to disentangle. The OCJ and the Department of Justice each exercise responsibilities, with the Department of Public Works being responsible for court buildings and infrastructure. As we will see in the next section, this division of responsibilities has not proved to be a recipe for success.
5. Criticisms and shortcomings identified with the current governance system
Incompatible with judicial independence?
At the level of principle, the current governance structure seems incompatible with judicial independence. It is notable that the OCJ remains a government department, rather than the dependent entity that was ultimately envisaged by the Modelling Report.[76]
During the Franschhoek symposium, some of the judges attending the event commented that, whilst they felt South African judges had undoubted decisional independence, they were not independent fully independent in terms of administrative aspects. An example was given that, if the judiciary required library resources, it was dependent on the Department of Justice’s approval.
After reassessing the theoretical framework for understanding judicial independence, Powell suggests that OCJ does not allow for input of individual judges on working conditions, and therefore to able to adequately protect institutional independence.
“The OCJ’s governance structure, to the extent that it is set out formally, is based on a top-down hierarchy, through which the leadership seemingly ensures that the judicial officers remain ‘accountable’ to the public. But it is not designed to make the leadership of the judiciary accountable to its members, or responsive to their views and concerns.”[77]
Powell argues that, absent what is described as an “interactional law” framework, there is a danger that any Chief Justice will:
“use the OCJ as a vehicle to punt his own, subjective vision of how the judiciary should be operating within a constitutional democracy. The problem is that the very notion of what the judiciary is and what it needs to be independent is reduced to what the wielder of power within the institution thinks in this regard.”[78]
Powell argues that a loss of autonomy and independence for individual judges reduces the independence of the judicial institution.[79]
A significant aspect of this issue, it is suggested, is the issue highlighted earlier, that the OCJ is established by proclamation. There is no foundational legislation establishing the mandate, powers, structure, or scope of operations of the OCJ. One might have expected to find something of this nature in the Superior Courts Act,[80] which came into effect some years after the establishment of the OCJ. One of the objects of the Act is to provide for “the administration of the judicial functions of all the courts, including governance issues, over which the Chief Justice exercises responsibility.”[81] Chapter three of the Act is titled as dealing with the governance and administration of all the courts. It defines judicial functions as including determining court sittings, assigning judges to cases, managing procedures relating to case flow management and the finalisation of matters, and court recesses.[82] But the only express mention of the OCJ which could be located in the Act is where the secretary-general is designated as the accounting officer of the OCJ, is made responsible for accounting for monies paid or received for the “administration and functioning of the Superior Courts.”[83]
Similarly, there is no mention of the OCJ in the Constitution. The Constitutional Seventeenth Amendment Act of 2012 also postdated the establishment of the OCJ, so one might again have expected the existence of the OCJ to be formally established. But again, this is not done.
The result is that the OCJ leads a precarious and unclear existence. It is not protected by the political majorities that would apply were it to be enshrined in legislation and/or the Constitution. There is no legislative framework to demarcate clearly the scope of the OCJ’s powers and functions, and its relationship with other government entities. It may well be argued that many of the other difficulties identified with the current system of governance stem from this lack of a legislative foundation.
Are judges’ voices heard?
Powell’s criticism of the OCJ system, as described above, also relate to this aspect. Powell argues that the OCJ’s structures and process are not designed to encourage mutual engagement.[84] She notes that:
“The accountability structure in the [judicial] hierarchy is one-way – the lower levels of the hierarchy have to account to the higher levels. There is no regulation of how these functions are to be managed or how the persons assigned to monitor the judicial officers’ fulfilment of their responsibilities are to do so.”[85]
This criticism echoes long standing concerns about the role of judges in the judicial governance system. The 1983 Hoexter Commission expressed concerns with the system of governance at the time and advocated for greater involvement of the judiciary in court administration.[86]
Practical considerations – is the system fit for purpose?
At a very practical level, there are significant indications that the governance triumvirate between the OCJ, Department of Justice, and Department of Public Works, does not work effectively to provide the judiciary with the support it needs.
In the DGRU’s 2022 State of the Judiciary report, South African judges who were interviewed identified a range of challenges they experienced, the most prominent being inadequate online resources and digital infrastructure, followed by the poor state of court building infrastructure, and third and perhaps especially strikingly, criticisms of the lack of communication and responsiveness by OCJ staff towards the courts.[87] One interviewee described the OCJ as “another tier of administration which frustrates rather than assists.”[88]
These concerns were further borne out when Justice Mandisa Maya was interviewed by the JSC in 2022 for her current position (at the time of writing) 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 – this, lest we forget, at the second highest court in South Africa’s judicial hierarchy.[89]
These accounts show judges struggling gamely to work under conditions where their basic work needs are not adequately provided for. It is difficult to come to any other conclusion than that the system of judicial governance and administration under which this situation exists is not functioning properly and is not providing the judiciary with the resources and support that it needs.
Again, these complaints do not exist in a historical vacuum. The executive model of judicial governance has long been criticised for its practical shortcomings. The First Hoexter Commission found that the primary cause of inefficiency in court functioning was attributable to the provision of administrative functions and other services. It found that the Department of Justice did not appreciate the judiciary’s financial and administrative needs. Court support services and staff were said to become “bogged down” in the broader public service bureaucracy, with the specialised needs of the judiciary not always receiving adequate attention. Responsibility for the provision of court services, staff and facilities being spread across different departments was described as inimical to the judicial function (as we shall see, this continues to be a live issue even after the establishment of the OCJ). Relatedly, a lack of co-operation or liaison between the entities responsibly for various aspects of the administration of justice, particularly between the judiciary and the Department of Justice, was identified.[90]
The role and status of court staff and officials
This concern overlaps closely with some of those raised already but merits its own attention. It is that the status of court and OCJ officials and their relationship with judges appears to present practical problems. In terms of section 11(1)(a) of the Superior Courts Act, the Minister appoints a court manager, assistant court managers, a registrar, assistant registrars “and other officers and staff”, although these appointments must be made in consultation with the head of court. In the OCJ’s “Strategic Plan 2020/21-2024/25,” an organogram is provided showing the Minister of Justice and the Chief Justice at the head of the OCJ’s management structure, with the OCJ Secretary-General reporting to both the Minister and the Chief Justice. This hydra of an organisational structure is not conducive to clear and effective functioning.
This issue again pre-dates the establishment of the OCJ. In 2003, Ngcobo described the existing executive-based system of court administration as “fraught with ambiguities and confused lines of authority.” Court officials were saddled with responsibilities to both the judiciary and the executive:
“As officers of the court they have responsibilities to the judiciary and, in particular, to the head of the court, but they are also subject to the authority of their departmental superiors and are subject to Public Service direction and control.”
This dual responsibility, Ngcobo argues, “inhibit[s] the development of a more streamlined and effective court administrative structure.”[91]
This issue is also relevant to the magistracy, as Rawheath explains:
“The administrative personnel of lower courts are not recruited, employed, and supervised by the judiciary. Hence, a court clerk, registrar or interpreter deployed to a court may not be individually directed to execute any administrative task by the court to which the member is posted by the Department of Justice. If a directive of the court is not executed, there may be no accountability for the prejudice that may be caused for the court users. These circumstances are the sites of constant tension between the judiciary and the court management as the courts have no authority to coordinate court functions and access resources to ensure that delivery of judicial services is not obstructed owing to bureaucratic considerations.”[92]
Unresponsiveness
Writing about the pre-OCJ system, Ngcobo makes several criticisms of the governance system’s lack of responsiveness to the needs of the judiciary. As these concerns no doubt informed the reform initiatives which Ngcobo was later to drive when he was appointed as Chief Justice, his earlier criticisms are worth setting out in detail.
Ngcobo expressed concern that the provision of administrative functions and other services related to the administration of justice were “bound up with the bureaucracy of the broader public service”, with the result that:
“The other responsibilities of the Department have a negative impact on the financing of the courts. The court budget is a line item in the overall budget of the Department of Justice. For most courts the budget is prepared by officials of the department who make their own assessment as to what the needs of the court[s] are. In most cases the budget is prepared without consulting the various courts on their respective needs. When it becomes necessary to reduce the allocation of funds … the allocation is reduced by a uniform percentage. This percentage bears no relationship to the needs and priorities within the Department. And this is done without consulting heads of courts.”[93]
Ngcobo further raises the concern that budgets are “historically determined”, which, he argues, is not an accurate basis for determining the needs of the courts. He suggests that budgets are determined without regard to issues such as the “deplorable conditions” of many, neglected, courts.
All this, Ngcobo concludes, had a “negative impact on the quality of services” provided to the courts. It was “common knowledge” that the quality and standard of the administrative and support services provided to many courts, particularly the lower courts in rural areas, “falls far below that which is necessary to enable our courts to function efficiently.” Ngcobo highlights a lack of “properly trained administrative staff”, such as clerks and typists, and comments on the “unfavourable working conditions” experienced by some judges, including inadequate library facilities, and insufficient chambers and courtrooms.[94] These factors, Ngcobo argues, undermine the delivery of justice, and discourage potential judges from accepting judicial appointment.
Ngcobo thus concludes that while central control of the provision of services for the administration of justice is necessary, it must not hamper the independence of the courts, and must recognise “that the administration of justice has its own distinctive and specialised administrative needs, which cannot readily be catered for within the framework of the broader public administration.”[95]
To what extent has the establishment of the OCJ addressed these concerns? The discussion earlier in this section suggests it has not, and that these concerns remain. Discussing the arrangements for determining the judiciary’s budget in the OCJ era, Powell comments that:
“[T]he executive currently retains a strong grip on the allocation of funds to the judiciary, which suggests that the OCJ has not, at this stage, helped to improve the independence of the judiciary in this respect. The judiciary’s functioning is affected on an ongoing basis by a shortage of resources and it is not clear what difference the presence of the OCJ has made to this long-standing problem.”[96]
No role for magistrates
Finally, the exclusion of magistrates from the governance structures is problematic. This issue will be discussed in more detail in the next section. It is worth noting at this stage, considering the prior discussion of the judiciary’s budgetary arrangements, that there is no forum for the particular resource needs of the lower court judiciary to be put before Parliament or Treasury.[97]
6. A single judiciary?
The current status of the magistracy
South Africa has a long history of separation of the magistracy and the superior courts judiciary. Prior to the introduction of the Constitution, judicial independence was not noted as a priority for the magistrates’ courts.[98] Magistrates were civil servants rather than independent judicial officers, in violation of the doctrine of separation of powers.[99] From the early 20th century, the Minister of Justice was vested with extensive powers to create and abolish courts, and to exercise formal control over the appointment of magistrates, indicating “executive dominance over the judiciary.” A dual hierarchy in the administration of the superior and lower courts were retained, leading to the “absolute separation” of the magistrates’ courts from the superior courts.[100]
This distinction has had a clearly identifiable impact on perceptions of the magistracy compared to the superior courts. Rawheath suggests that ongoing perceptions of the inferiority of the magistracy originate in the pre-constitutional era when the superior court judiciary was perceived as independent, and the magistracy not.[101] Rawheath notes further that some judges, soon after the advent of constitutional democracy, expressed resistance to the idea of a single judiciary.[102] (Or elitism regarding the prospect of absorbing the magistracy into the judiciary, as a participant at the Franschhoek symposium characterised it).
However, the Constitution expressly includes Magistrates’ Courts within its definition of the courts,[103] meaning that these courts are now bound to follow the requirements of the Constitution, which “symbolises a decisive severance of the historic ties of the [Magistrates’ Courts] with the executive arm of government.”[104] Rawheath argues that bringing the Magistrates’ Courts into the constitutional framework required a transformation of the magistracy.[105] Views have been expressed (including by several participants at the Franschhoek symposium) that the ongoing separation of the magistracy and the judiciary is unconstitutional.
In addition to concerns about the perceptions of the magistracy, concerns have also been expressed that the magistrates’ courts “are the least equipped in every way” to handle the disputes which serve before them,[106] in spite of these courts being the level of courts at which most court users come into contact with the judicial system. Furthermore, there are concerns that “inequality in the protection of remuneration of lower court judges affects their independence and the public perception that lower court users have the right of access to justice that is of a lower quality than those whose disputes are resolved in the superior … courts”.[107]
There have been significant criticisms of the governance and regulatory framework of the magistrates’ courts. Concerns have been expressed that the legislative framework is not fit for purpose. Rawheath argues that the Magistrates’ Act fails to ensure the independence of the magistracy, and the Magistrates Court Act, having been retained as the main law governing the magistrates’ courts, means that the courts remain administered by the executive.[108] Rawheath suggests that there is “little evidence of substantial transformative change” of the magistrates’ courts, and that despite being defined is part of the judiciary under the Constitution, their character and functioning has not been significantly altered.[109]
The Magistrates Commission, established under the Magistrates’ Act, is said to lack the capacity and the powers to advance the judicial independence of the magistracy.[110] Questions have been raised as to why the protection of tenure and financial security are constitutionally entrenched for superior court judges, but are only entrenched in legislation for magistrates.[111] This has led to doubts as to whether any law exists which ensures the essential conditions need for magistrates’ courts to be institutionally independent.[112] It has been argued that international legal standards of judicial independence do not differentiate between higher and lower courts, and that there is no legal justification for the variance in the relationship between the two different levels of courts (superior courts and magistracy) and the executive.[113] Therefore, Rawheath argues, “although the Constitution formally guaranteed their judicial independence, [magistrates’ courts] substantively function as they did in the pre-constitutional era”.[114]
Other shortcomings with the current governance structure of the magistracy have been identified. Regarding appointments, it has been argued that as section 10 of the Magistrates Act allows for the Minister of Justice to appoint persons who have not been recommended by the Magistrates Commission, even where their qualifications and competence may be undisputed, the integrity and impartiality of those appointed to the magistracy cannot be presumed.[115] Rawheath argues that the qualification requirements for magistrates and the lack of pre-appointment training has “affected the standard by which to assess the basic qualification of all judicial officers before being considered for selection.” She further argues that regulation of qualification criteria by the executive (through regulations to the Magistrates act) is inconsistent with judicial independence.[116] A lack of transparency in the process of recruiting and selecting magistrates is also criticised, as is the role of the Minister in the selection and appointment of magistrates.[117] Rawheath argues that the current system of selecting and appointing magistrates does not ensure that magistrates are appropriately qualified.[118]
Regarding the institutional independence of the magistracy, it has been argued that while the Magistrates Commission (established by the Magistrates Act) may have been interposed between the executive and the magistracy to ensure that there was no longer direct executive control over the performance of magistrates’ judicial functions, and that the Magistrates Act did transfer some of the Minister’s powers to the Commission, the Act “did not substantially alter the status of magistrates or the lower courts … in relation to the entire judiciary.”[119] As the Magistrates Act is an ordinary act of parliament,[120] the Commission lacks the constitutional protection afforded to the JSC in respect of the superior courts judiciary. Furthermore, it has been argued that the executive has a “dominant position” in regulating the composition and functioning of the Commission and is argued to have “undue control” through membership of the Commission, the appointment of magistrates, and the executive’s power to regulate magistrates’ conditions of service. The Commission, the argument goes, is unable to advance the administrative judicial independence of the magistrates’’ courts.[121]
Similar concerns to those raised in relation to the superior courts also exist regarding the resourcing of the magistrates’ courts. Lower courts are dependent on the executive for all their resources, which are managed by administrative personnel provided by the executive. This is said to be inconsistent with the constitutional guarantee of judicial independence.[122] Rawheath argues that the Magistrates Act has not significantly altered “the relationship of dependence” of the magistrates’ courts on the executive, in order for the former to function effectively.[123]
The current legislative framework governing the magistracy also appears to be out of sync with recent developments. Rawheath points out that the Magistrates’ Court Act’s definition of “magistrate” does not make any distinction between district and regional court magistrates.[124]
The case for a single judiciary
Notwithstanding all these criticisms, it is clear that the current system of judicial governance maintains the bifurcation between the superior courts and magistrates’ courts. However, this position is at odds with longstanding policy goals.
The Department of Justice’s Vision 2000 document comments that:
“In South Africa, more than 95% of civil and criminal cases are dealt with at the magistrates’ courts. These courts therefore play a critical role in building the public’s trust and confidence in the law and in the justice system.”
Vision 2000 articulates a desire to design “an integrated and rational management system for all the national courts”, and to give “professional status to the administrative management of courts.”[125] Although the Department subsequently acknowledged that the Vision 2000 goals “largely remain unaccomplished”,[126] the goal of a single judiciary was nevertheless repeated in a 2012 discussion document. In unpacking the “[m]eaning of the transformation of the judicial system”, the Department identified, as one of the objectives of transforming the judiciary, the ability to achieve:
“A single judiciary that can operate as an integrated entity with unified structures, systems, leadership and accountability arrangements”. [127]
This “single judiciary” is defined as “a process through which the magistrate’s courts and magistrates are integrated to form part of a court system, as envisaged by the Constitution.” The document states that the judicial system historically “provided a hybrid system in terms which judges enjoyed a large degree of independence, compared to the magistrates.”[128] The document also acknowledges “divergent views” among judges and magistrates on the meaning of a single judiciary, which “need to be further explored as part of the on-going debate on the subject.”[129]
But it is difficult to discern any clear legislative movement towards the achievement of this goal.[130] When the Superior Courts Act was introduced in 2013, Judges President were given responsibility “for the co-ordination of the judicial functions of all Magistrates’ Courts falling within the jurisdiction of that Division.”[131] This does not seem to do anything to anything to create “an integrated entity with unified structures, systems, leadership and accountability arrangements”, as contemplated in the policy aspirations set out above. In 2022, the Lower Courts Bill and the Magistrates Bill were introduced, and would have repealed the Magistrates’ Court Act and the Magistrates Act. It might have been expected that these pieces of prospective legislation might do something to indicate movement towards a single judiciary, but there was no hint of such a development – the Bills merely reinforced the existing structures.
The Van Rooyen judgment
The Constitutional Court judgment in Van Rooyen[132] is often seen as an obstacle in the path of efforts to advocate for a single judiciary. It is worth paying some attention to this case to assess its impact on any potential efforts to establish a single judiciary. The court was faced with a challenge to various provisions of the Magistrates’ Court Act, the Magistrates Act, and regulations made under the Magistrates Act. The challenges included an argument that the regional court lacked the requisite institutional independence demanded by the Constitution.[133] The high court found a number of provisions in the legislative framework to be unconstitutional. The Constitutional Court confirmed some findings but declined to confirm some of the most significant findings of invalidity (for example, rejecting the high court’s finding that the magistrates commission was not independent[134]).
The Van Rooyen judgment has been the subject of criticism. It has been said to lack thorough analysis and clear definition of judicial independence as it applies to the lower courts, and therefore to present a continued challenge to the transformation of the lower courts.[135] The decision has been described as:
“follow[ing] an approach to the definition of judicial independence that seeks to emphasise the significance of the difference in status between the superior courts and the lower courts under the Constitution and affirm[ing] the historic inferiority of the [magistrates’ courts].”[136]
A central criticism of the Van Rooyen judgment is its adoption of the Valente test for establishing whether a court is independent and impartial. Valente identifies judicial independence as connoting “not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly the Executive branch of government, that rests on objective conditions or guarantees.”[137] The Constitutional Court affirmed that the test for judicial independence was objective, and that the test for independence needed to take into account the need for a tribunal to be perceived as independent and impartial.[138] In its earlier decision in De Lange v Smuts, the court endorsed Valente as authority for the existence of three essential conditions of independence: security of tenure; a degree of financial security free from arbitrary interference by the executive; and institutional independence regarding matters relating directly to the exercise of the tribunal’s judicial function – “judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.”[139]
So far, so good. But commentators have argued that the De Lange decision endorsed these requirements in Valente as relevant in assessing the independence and impartiality of tribunals set up to resolve disputes in terms of s 34 of the Constitution, and not courts.[140] This has led to questions about the applicability of these principles to the Van Rooyen case:
“As [magistrates’ courts] in South Africa are independent according to the Constitution, the question that had to be dealt with in Valente does not arise in Van Rooyen. But, as the definition of impartiality and independence is based on the meaning given to the concept in De Lange, as applied to non-judicial tribunals and not to courts recognised as such in terms of section 165 of the Constitution, it is axiomatic that [magistrates’ courts] institutional independence seems to have been equated to or gauged on a similar plane as on-judicial tribunals.”[141]
The Constitutional Court in Van Rooyen proceeded to approve the finding in Valente that “it would not be feasible to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence … which may have to be applied to a variety of tribunals.”[142] Rawheath argues that the principles established in Valente and approved in De Lange cannot be determinative of the requirements of institutional judicial independence for magistrates’ courts in South Africa.[143]
A counterargument might be made that the Van Rooyen decision does not depend entirely on the Valente framework of judicial independence. In drawing on Valente, the court finds that the essential conditions of independence may permissibly “bear some relationship to the variety of courts that exist within the judicial system. … This seems to me to be implicit in the Constitution itself.”[144] Arguably, therefore, the court’s analysis of the differential understandings of judicial independence applicable to different levels of courts derives from the Constitution itself and would sustain even if the reliance on Valente was removed.
Whilst Van Rooyen would continue to pose a serious obstacle to any attempts to compel the establishment of a single judiciary through litigation, there would seem to be no obstacle in the judgment to a law reform initiative involving legislation and even constitutional amendment, if necessary. The court may have established the legal position that it is constitutionally permissible for there to be varying degrees of independence at different levels of the judiciary. But this does not stop changes to that framework being passed to strengthen the requirements of independence applicable to what is currently defined as the lower courts (changes to legislation and the Constitution would in any event by required, should a single judiciary be established).
What would the creation of a single judiciary entail?
It will be apparent from the discussion above that the concept of a single judiciary has been discussed, at least in the relevant policy documents at an abstract level. There has been little unpacking by policymakers of how this change would be implemented in practice. In this section, we briefly discuss two areas where significant changes to existing structures and processes would presumably have to be made – namely the appointment and removal of judicial officers.
Both processes involve different entities and follow different processes, under different legislative provisions. For the superior courts, the appointment and removal of judges are both dealt with primarily by the JSC. Whilst the appointment of Constitutional Court judges vests the President with a degree of discretion to select from a list of candidates provided by the JSC, other superior court judges are appointed by the President on the advice of the JSC.[145] Magistrates are appointed by the Minister of Justice after consultation with the Magistrates Commission.[146] Both the JSC and the Magistrates Commission conduct interviews with candidates. The Magistrates Commission is inevitably required to interview significantly more candidates that the JSC.
Regarding removal from office, judges are removed office after a convoluted process set out in the JSC Act, which involves complaints being considered by the Judicial Conduct Committee of the JSC, which will recommend the establishment of a Judicial Conduct Tribunal in sufficiently serious cases. The tribunal will make a recommendation which, if adopted by the JSC, can lead to removal from office if the National Assembly votes for removal by a two-thirds majority. The President then formally removes the judge from office.[147]
The process for handling complaints against magistrates is no less labyrinthine.[148] Complaints are dealt with by the ethics committee of the Commission, which can charge a magistrate with misconduct. There then follows an extensive process involving investigation and a hearing, following which the commission may recommend to Parliament that the magistrate be removed from office. Parliament then determines whether to reinstate or remove the magistrate from office, and the Minister removes the magistrate from office. The legislation also contains extensive provisions on suspension, which are notably more detailed than the equivalent provisions relating to superior court judges.
It will be readily apparent from even this cursory description that both processes would require some significant changes and would have to overcome major practical challenges. The sheer scale of the task for an authority such as the JSC or the Magistrates Commission, if responsibility for both tiers of the courts were to devolve to it, would likely be insurmountable.
It might be said that a simple way to deal with this would be to preserve the separate structure. But it is then difficult to see how one could meaningfully speak of a single and integrated judiciary if major points of difference remain in place.
Further practical implications of the possible establishment of a single judiciary are discussed in the next section.
7. Possible reforms
Leave things as they are?
One option, theoretically, is to leave the current governance system as it is. But we mention it first in order to dismiss it. It does not appear to be sustainable or desirable for the fundamental concerns identified in relation to independence and functionality reasons not to be addressed. It is important to note again that the OCJ in its current form was only intended as an interim measure. To persist indefinitely with a hybrid structure which was not designed and intended to serve as the final governance structure for the judiciary seems extremely unwise. Similarly, any suggestions of abolishing the OCJ and returning to the previous governance structure would seem untenable in light of the independence and other concerns raised.
A return to earlier proposals – the Hoexter Commission
The first Hoexter Commission proposed that the administration of courts be carried out “with due regard to expert advice of those who are directly concerned with the functioning of the courts.”[149] It recommended the establishment of a “Council of Justice”, which would be chaired by the Chief Justice and comprise inter alia members of the judiciary, magistracy, and legal profession. The Council would have been required to conduct an annual survey of all aspects of the administration of justice, and to make recommendations on a range of related matters, such as the structure, functioning and staffing of the courts, and the remuneration, conditions of service and working conditions of judicial officers and court support staff.[150] It was envisaged that the Council would have a permanent secretariat to assist with research and secretarial functions, including a qualified statistician who would be tasked with monitoring the workload of all courts, in order to evaluate whether or not the courts were properly staffed.
This structure appears to be an earlier iteration of the judicial council proposed by the Committee on institutional models. But if for any reason the post-OCJ phases do not find favour with policy makers, it may be that some inspiration can be drawn from earlier attempts at reform.
Implement the remaining phases of the Ngcobo reforms
It is not immediately apparent why the reform process started by the establishment of the OCJ has been allowed to stymy. There appears to be a strong view that this process would provide the optimal means of establishing full judicial-based court administration, and that this model is most appropriate to South Africa’s constitutional democracy.
It must be acknowledged that a judiciary-based court administration system presents its own challenges. Ebrahim identifies governance as a significant issue:
“Without an executive head in the form of a government Minister, who would accept responsibility for oversight and the determination of the policies that would guide the conduct of the agency?”[151]
This concern seems to be borne out by appearances we have observed where the OCJ has appeared before the Parliamentary portfolio committee, and the nature and extent of the OCJ’s reporting to Parliament has at times been a source of contention. It must of course be acknowledged that the OCJ does not constitute a full implementation of the judiciary-based model, as we have seen. Nevertheless, accountability and oversight are clearly issues that would need to be addressed if a proper judiciary-based governance system is to be established.
Establish a single judiciary
The creation of a single judiciary is best considered as an option which overlaps with other reform initiatives, rather than a free-standing option. To attempt to integrate the superior courts and magistrates’ courts without addressing the other governance issues identified in this paper would be extremely unwise. It is important to note Ebrahim’s caution that, whilst the Department of Justice might be willing to hand over its responsibility for the magistracy,
“[T]he judiciary would then have to bear the burden of accountability for a very large organisation and an enormous annual budget – neither of which is as attractive as it may sound.”[152]
Whatever approach to judicial governance reform is taken, establishing a single judiciary will require a very significant overhaul of existing judicial structures and systems, and is no easy task to take on. It may well be that different phases of change need to be identified, and reforms undertaken incrementally. Whilst this may not satisfy those who are dissatisfied with the slow (or non-existent) progress towards the creation of a single judiciary, considering the context of governance challenges facing the courts at all levels, there does not seem any other way to sensibly undertake the process.
Rawheath argues for “a restructuring of the courts and integration of the superior and lower courts with a single and central administration of justice headed by the Chief Justice.”[153] As previously discussed, thought would have to be given to how, practically, the functions of entities such as the JSC and the Magistrates Commission would be dealt with if a single judiciary were to be established. Would a single judiciary require that the entities be merged and that the appointment of judicial officers and the handling of complaints against them be deal with by one entity? This would plainly be an enormous task, considering that both entities appear to struggle to keep up with their exiting workload.
Rawheath anticipates this challenge and proposes the establishment of a Lower Courts Judicial Council, which would play a central role in the appointment and removal of judicial officers of the district and regional courts.[154] This council would replace the existing Magistrates’ Commission.[155] Candidates for appointment would be required to qualify through a Judicial Education and Training Academy.[156] Whilst a more realistic option than creating super-sized structures such as a JSC tasked with dealing with the entire single judiciary, this approach does still involve the creation of additional institutions, which will inevitably take time. And as important as these issues are, the appetite for creating new institutions and overhauling current structures may need to be cultivated.
Other suggestions for reform which are understood to form part of creating a single judiciary include renaming magistrates’ courts and regional and district courts respectively and renaming magistrates as Regional or District Court judges.[157] This change might appear to outsiders as one of semantics, but there was strong support from delegates at the Franschhoek symposium for such a change. A comment was made that the terms magistrates and magistracy were colonial terms for lay people doing judicial work and were at odds with magistrates doing the same or similar work to judges. It has further been suggested that these judicial officers would then be included in the constitutional provisions providing for appointment, security of tenure, remuneration, and removal from office (sections 174, 176 and 177 of the Constitution).[158]
A further proposal would involve a separate office for the administration of the lower courts be created, which would represent the lower courts at heads of court meetings, in order to access the financial and human resources required to function effectively. [159] Under this proposal, the parameters of judicial functioning over which the lower courts would exercise independent authority would be set out in legislation.[160]
Rawheath proposes that the administrative judicial functions of the lower courts be provided for in legislation similar to the Superior Courts Act, but which would ensure “that the resource needs of lower courts … are assessed separately and independently of the superior courts before being presented directly or on their behalf to Parliament for appropriation.”[161]
Entrench the OCJ in legislation and/or the Constitution
This recommendation cuts across most other recommendations. 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 too. This step alone would be a valuable starting point, from which other reforms can then flow. 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.
This paper has identified the fundamental importance of judicial independence to any system of governance and administration of the judiciary. It is difficult to see how this can be ensured when the legal foundation of a key entity is established by proclamation only.
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.
Mapping exercise needed
Whatever approach is to be taken, it is important to heed the concerns and criticisms which have been noted about the lack of responsiveness of judicial administration to the needs of the courts and judicial officers. A participant at the Franschhoek symposium observed that, when the OCJ took over Department of Justice functions, this was done without considering what court administration entailed or what the needs of the courts are. Only once there is an understanding of what court administration entails and what works best for South African courts can a workable model be developed. We think these are wise words and that such an exercise ought to be undertaking prior to the implementation of any further reforms.
8. Conclusion
This report concludes that the process of judicial governance reform in South Africa is far from complete. The reforms undertaken by the establishment of the Office of the Chief Justice do not appear to have resolved longstanding, underlying concerns about the governance and administration of the courts. Calls for the establishment of a single judiciary remain largely unanswered. And all the while, judges are required to do a thankless job, under considerable political pressure and without the administrative, infrastructural and related support that they would ideally need – and yet judges are expected to fulfil one of the most important roles in our constitutional democracy, which vests significant powers in the courts, with a governance and administration system supporting them which does not seem to be fit for purpose.
The aim of this paper is not to advocate for one single solution to this problem. What it does show, we suggest, is that change is needed, and that further reform is required to move beyond the initial establishment of the OCJ. To leave the current systems and structures as they are appears to be untenable and unsustainable. We hope that the paper has provided insight into these challenges, and into potential alternative structures, to allow the process of reforming the judicial governance system to be restarted in earnest.
MAIN REFERENCES
Richard Calland, The Zuma Years: South Africa’s Changing Face of Power (Zebra Press, 2013)
Department of Justice and Constitutional Development, Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State, February 2012.
Democratic Governance and Rights Unit, The State of the Judiciary in Malawi, Namibia and South Africa: Court Users’ and Judges’ Perspectives (2022). Available at: https://www.judgesmatter.co.za/wp-content/uploads/2022/04/The-State-of-the-Judiciary-in-Malawi-Namibia-and-South-Africa-Court-Users-and-Judges-perspectives-April-2022_FINAL.pdf.
Hassen Ebrahim, “Governance and administration of the judicial system” in Cora Hoexter and Morné Olivier The Judiciary in South Africa (2014).
Justice Sandile Ngcobo, “Delivery of justice: Agenda for change” (2003) 120 South African Law Journal 688.
Office of the Chief Justice, Committee on Institutional Models, Capacitating the office of the Chief Justice and Laying Foundations for Judicial Independence: The net Frontier in our Constitutional Democracy: Judicial Independence. Report by the Committee on Institutional Models – 23 September 2011.
Chris Oxtoby and Mbekezeli Benjamin, “South Africa’s judiciary is hamstrung by poor administration” Mail & Guardian (25 July 2022). Available at: https://mg.co.za/thoughtleader/opinion/2022-07-05-south-africas-judiciary-is-hamstrung-by-poor-administration/.
CH Powell, “Judicial Independence and the Office of the Chief Justice” Constitutional Court Review 2019 Vol 9, 497 – 519.
Pawranavilla Rawheath, Independent and Effective Adjudication in the lower courts of South Africa (2022). Unpublished PhD thesis, University of Cape Town.
[1] Ngcobo, p. 697 – 698.
[2] Ngcobo, p. 697 – 698.
[3] Ngcobo, p. 696.
[4] Sebastian Seedorf and Sanele Sibanda, “The Separation of Powers” Constitutional Law of South Africa OS06-08. Ch12 – p 18.
[5] Rawheath, p. 48.
[6] Address by The Honourable JJ Spigelman AC Chief Justice of New South Wales The Rule of Law Conference, Brisbane, 31 August 2007. Available at https://www.malaysianbar.org.my/article/news/speeches/speeches/the-hon-j-j-spigelman-ac-chief-justice-of-new-south-wales-judicial-appointments-and-judicial-independence.
[7] Rawheath, pp. 55 – 56.
[8] See Powell for a critique of the theoretical underpinnings of the concept of judicial independence in South African law.
[9] Powell, p. 500.
[10] Ngcobo, 697.
[11] Note 86 Article 2. Cited by Rawheath, p. 54.
[12] Rawheath, p. 50.
[13] De Lange v Smuts NO 1998 (3) SA 785 (CC) at para 124, quoting from the Canadian Supreme court judgment in Beauregard v The Queen 1981 130 DLR 433; cited in Rawheath at p. 51.
[14] Ngcobo, p. 697. See also Ebrahim, pp. 102 – 103.
[15] Rawheath pp. 69 – 70, citing the IBA Minimum Standards.
[16] Rawheath, p. 72.
[17] Rawheath, p. 73.
[18] IBA standards of Judicial Independence, quoted in Rawheath p. 84.
[19] Montreal Declaration, quoted in Rawheath pp. 84 – 85.
[20] Rawheath, p. 85.
[21] Rawheath, p. 85.
[22] Agmon-Gonnen, quoted in Rawheath, p. 85.
[23] Rawheath, p. 86.
[24] Rawheath, p. 86.
[25] Norms and Standard for Judicial Officers issued by the Chief Justice of the Republic of South Africa in terms of Section 8 of the Superior Courts Act 10 of 2013 read with section 165(6) of the Constitution.
[26] Rawheath, p. 87.
[27] Ngcobo, p. 697. See also Hassen Ebrahim, “Governance and administration of the judicial system” in Cora Hoexter and Morné Olivier The Judiciary in South Africa (2014), pp. 102 – 103.
[28] Article 32 Draft Universal Declaration on the Independence of Justice, cited in Rawheath p. 89.
[29] Rawheath, p. 88.
[30] Powell, p. 503.
[31] Quoted in Rawheath, pp. 89 – 90.
[32] Rawheath, p. 90, citing R v Valente.
[33] Ngcobo, quoted in Ebrahim, p. 103.
[34] Ngcobo, p. 697.
[35] Ngcobo, p. 697.
[36] Ngcobo, p. 697.
[37] Ngcobo, p. 697.
[38] Rawheath, p. 159.
[39] The Deschenes Report (1981), cited in Rawheath, p. 91.
[40] Rawheath, p. 71.
[41] See the discussion in Powell, p. 502.
[42] Rawheath, p. 75.
[43] Rawheath, p. 76.
[44] Ebrahim, pp. 104 – 105.
[45] Ngcobo, p. 694.
[46] Ngcobo, p. 695.
[47] Rawheath, p. 92.
[48] Ngcobo, p. 695.
[49] Ngcobo, pp. 699 – 700.
[50] Ngcobo, p. 700.
[51] Ebrahim, op cit., pp 104 – 105; Ngcobo p. 700.
[52] Ebrahim, op cit, p. 106.
[53] Ibid., p. 101.
[54] Ngcobo, pp. 700 – 701.
[55] Ngcobo, p. 701.
[56] Ngcobo, pp. 701 – 702.
[57] Ngcobo, pp. 702 – 703.
[58] Ebrahim., p. 105.
[59] Rawheath, p. 93.
[60] Ngcobo, p. 689.
[61] Ebrahim, p. 99.
[62] Proclamation No. 44 of 2010, which established the OCJ as a national government department under the Public Service Act 103 of 1994. See also Ebrahim, p. 112.
[63] Office of the Chief Justice, The establishment of the Office of the Chief Justice 2010 – 2013, p. 5; Committee on Institutional Models, p. 4.
[64] See Calland, pp. 277 – 279 for an overview of Ngcobo’s efforts to reform judicial governance structures.
[65] Committee on Institutional Models, p. 3.
[66] Committee on Institutional Models, pp. 3 – 4.
[67] Committee on Institutional Models, Capacitating the Office of the Chief Justice: and Laying Foundations for Judicial Independence: The next Frontier in our Constitutional Democracy: Judicial Independence, p. 4.
[68] Committee on institutional models, p. 15.
[69] Ebrahim, pp. 101 – 102.
[70] Ebrahim., p. 106.
[71] Ebrahim., p. 107.
[72] Department of Justice and Constitutional Development, Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State, February 2012, pp 25 – 26. See also Ebrahim, op cit., p 113.
[73] Ebrahim, p. 113.
[74] CH Powell, “Judicial Independence and the Office of the Chief Justice”, Constitutional Court Review 2019 Vol 9, 497 – 519.
[75] Ernest Mabuza, “Judicial independence tops Zondo’s legacy wishlist” Sunday Times 27 March 2022. Available at https://www.timeslive.co.za/sunday-times/news/2022-03-27-zondo-wants-to-leave-a-legacy-of-institutional-independence-for-judiciary/.
[76] Powell, p. 509.
[77] Powell, p. 511.
[78] Powell, p. 512.
[79] Powell, p. 512.
[80] Superior Courts Act 10 of 2013.
[81] Superior Court Act s 2(1)(c).
[82] Superior courts Act, s 8(6).
[83] Superior Courts Act, s 54(2).
[84] Powell, p. 513.
[85] Powell, p. 514.
[86] As described in Ngcobo, p. 694.
[87] DGRU, p. 108.
[88] DGRU, p. 109.
[89] Oxtoby and Benjamin, “South Africa’s judiciary is hamstrung by poor administration’.
[90] The findings are set out by Ngcobo, p. 698.
[91] Ngcobo, p. 698.
[92] Rawheath, p. 189 – 190.
[93] Ngcobo p. 689.
[94] Ngcobo, p. 690.
[95] Ngcobo, p. 691.
[96] Powell, p. 506.
[97] Rawheath, p. 188.
[98] Rawheath, p. 31.
[99] Rawheath, p. 36; Olivier, p. 349.
[100] Rawheath, p. 33.
[101] Rawheath, p. 35.
[102] Rawheath, p. 35.
[103] Section 166(d).
[104] Rawheath, p. 13.
[105] Rawheath, p. 16.
[106] Rawheath, p. 59.
[107] Rawheath, p. 72.
[108] Rawheath, p. 17.
[109] Rawheath, pp. 17 – 18.
[110] Rawheath, pp. 18 – 19.
[111] Rawheath, pp. 19, 96. While the Constitution sets out the essential conditions for the independence of superior court judges in ss 176 – 177, it provides that these conditions for “other judicial officers” must only be provided for in an Act of Parliament – Constitution s 174(7).
[112] Rawheath, pp. 96 – 97.
[113] Rawheath, p. 20.
[114] Rawheath, p. 27.
[115] Rawheath, p. 21.
[116] Rawheath, p. 169.
[117] Rawheath, pp. 170 – 171.
[118] Rawheath, p. 179.
[119] Rawheath, p. 105.
[120] Rawheath, p. 107.
[121] Rawheath, p. 108.
[122] Rawheath, p. 22.
[123] Rawheath, p. 114.
[124] Rawheath, p. 103.
[125] Vision 2000, p. 28.
[126] Department of Justice and Constitutional Development, Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State, February 2012., p. 8.
[127]Ibid., p. 5.
[128] Ibid., p. 21.
[129] Ibid.
[130] See Rawheath, p. 188.
[131] Superior Courts Act 10 of 2013, section 8(4)(c).
[132] S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).
[133] Van Rooyen, para 2.
[134] Van Rooyen, para 74.
[135] Rawheath, p. 44.
[136] Rawheath, pp. 117 – 118.
[137] Quoted in Rawheath, p. 118.
[138] Rawheath, p. 119.
[139] De Lange v Smuts para. 70; Rawheath pp. 120 – 121.
[140] Rawheath, p. 121.
[141] Rawheath, p. 122.
[142] Quoted in Rawheath, p. 123.
[143] Rawheath, p. 125.
[144] Van Rooyen, para. 28.
[145] Constitution, s 174(4), (6).
[146] Magistrates Act 90 of 1993, s 10.
[147] Constitution, s 177.
[148] See the summary of the process in Democratic Governance and Rights Unit, The coalface of justice: an analysis of misconduct proceedings against magistrates in South Africa (2020), pp.8 – 14.
[149] Quoted in Ngcobo, p. 703.
[150] Ngcobo, p. 703.
[151] Ebrahim, op cit., p. 107.
[152] Ebrahim, op cit., p 101.
[153] Rawheath, p. 24.
[154] Rawheath, pp. 206, 213.
[155] Rawheath, p. 214.
[156] Rawheath, p. 214.
[157] Rawheath, p. 212.
[158] Rawheath, p. 212.
[159] Rawheath, p. 233.
[160] Rawheath, p. 233.
[161] Rawheath, p. 225.
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