Chairperson
Honourable Minister
Members of the Judiciary
Honourable Members
Heads of Department
Distinguished guests
Colleagues, friends, ladies and gentlemen,
The Minister has outlined in his speech the process of establishment of the Office of the Chief Justice and the process that will be followed to reach consensus on a judicial-led court administration – a process suitable to our constitutional dispensation.
Whilst not preempting the research and debate, I feel I must address the perceptions that there is an “unwillingness” on the part of the Executive to support the institutional independence of the judiciary or the OCJ.
The Constitution as recently amended, is clear - 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. 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.
However judicial functions are not the same as administrative functions. The Constitution refers to a member of Cabinet responsible for the administration of Justice.
We have gone to great lengths safeguard the independence of the judiciary. A previous Draft Constitution Fourteenth Amendment Bill of 2005 purported to amend the Constitution by inserting a new section which would have provided that “the Cabinet member responsible for the administration of justice exercises authority over the administration and budget of the courts.” This clause was abandoned.
The Minister does appoint court managers, registrars, officers and staff for Superior Courts – but does so in consultation with the head of the court concerned. In other words, the head of the court must agree to the appointments.
If the intention is, in future, for such staff to be appointed by the Chief Justice, it would lead to a rather untenable position in the case of labour disputes, where an applicant would then have to sue the Chief Justice.
On the issue of accountability, as mentioned, currently the secretary-general, as the Minister’s proxy, accounts to Parliament. Every single body that makes use of public funds must account. Chapter 9 bodies account to Parliament and the Auditor-General scrutinises their financial management and expenditure.
Surely it would not be correct for the Chief Justice is called to Parliament to account for fruitless and wasteful expenditure. Is that the type of accountability that would uphold the dignity and stature of the court?
When members of the public have problems with the administration of a court, who must they complain to? It surely can’t be appropriate to complain to the Chief Justice, as he or she is not accountable to public, as judges are independent. Surely the best person for this is the Minister.
So what exactly is judicial independence?
As the Court also held in Van Rooyen – “judicial independence is an evolving concept.” There is no exact and perfect model, it has many permutations and it differs from legal system to legal system.
The basic tenets thereof have been encapsulated in the UN’s Basic Principles on the Independence of the Judiciary. Nowhere does it state that the Head of the Judiciary is solely responsible for court administration. It does state that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary and that is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. This is exactly what we are doing today.
Mention has been made of Namibia, where a very recent Constitutional Amendment was passed to provide for, amongst others, an accounting officer to be designated who shall, subject to the direction and control of the Chief Justice, perform the functions of an accounting officer as head of the administration of the Judiciary. However, from what we could establish there was not much consultation on this aspect of the Amendment Bill and it is too early to examine just how this will work in practice. The questions of accountability are not addressed in the Namibian amendment.
There are many countries in the world which make use of the so-called “shared responsibility” model in the administration of courts, without infringing the independence of the judiciary.
The concept of judicial independence mainly entails issues of the appointment and removal of judicial officers, security of tenure and remuneration of judges, the process of budgetary provisions and individual and institutional freedom from unwarranted interference with the judicial process. These are all accounted for in our Constitution and our law.
This new separate vote, which we are debating here today, is a further building block in further enhancing the independence of the judiciary.
Chairperson,
On the issue of court performance, we are unfortunately not meeting the MTSF target of increasing the number of cases finalized with a verdict by 2% per annum. Furthermore the figures show us that between March 2014 and March 2015 the District Court backlog cases decreased by about 10%, but the Regional Court backlog cases increased by 32%. This has contributed to the fact that as at April this year we have 1874 remand detainees that are in our correctional facilities for longer than 2 years.
The Norms and Standards for the exercise of judicial functions in all courts issued by the Office of the Chief Justice, relevant to the backlog court project, states that: “The Judicial Officer must ensure that every person pleads to the charge within 3 months of the date of appearance in the Magistrate’s court. To this end judicial officers shall strive to finalize criminal matters within 6 months after the accused has pleaded to the charge.”
The National Efficiency Enhancement Committee and the Provincial Efficiency Enhancement Committees which were established by the CJ to enhance the efficiency of the courts are positive steps in addressing some of these matters.
The Code of Judicial Conduct adopted by Parliament in 2012 states that a judge must deliver all reserved judgements before the end of the term in which the hearing of the matter was completed. It also provides that if the reserved judgement is of a complex matter or for any other cogent and sound reason, the judge may get the consent of the head of court for an extension to be delivered in the next term.
Unfortunately, one hears of a number of complaints from practitioners of judgements being outstanding for up to a year. Practitioners are often reluctant to raise the matter directly for fear that it will prejudice their client. This is something that we trust the Chief Justice will take up with the members of the judiciary who do not comply.
Chairperson,
We have made great strides in making the magistracy broadly more representative. 61 % of permanently appointed magistrates are black and 39% white. Males account for 59% and females for 41%.
Of the 57 regional magistrates appointed by the Minister earlier this year, 86% are black and 14% are white. Females account for 60% (34) of the said 57 appointments.
In conclusion, Chairperson, Honourable Members,
I know that work in the justice sector can be frustrating at times, sometimes it could even feel like one is part of a large, and at times somewhat dysfunctional, family – there are so many role players – the judiciary, the executive, court administrators, the prosecutors, court interpreters, legal aid representatives, attorneys and advocates, not to mention police and correctional services officials as well as Public Works.
Role players simply must engage each other in a spirit of cooperation. We should all look at what we can do to solve a problem, rather than blaming each other for the problem occurring in the first place.
I would like to end quoting the dictum of Chaskalson CJ in the famous Van Rooyen judgment: “In a constitutional democracy such as ours, in which the Constitution is the supreme law of the Republic, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation of powers requires that the judiciary, in its comments about the other arms of the state, show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary and one another. They should avoid gratuitous reflections on the integrity of one another.”
I thank you.
