Remarks by the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, on the occasion of her participation in a webinar convened by Judges Matter on judicial reforms
Programme director
Ms Allison Tilly
Mbekezeli Benjamin
In his address at Constitutional Hill, Braamfontein, at the occasion of the celebration of 30 year anniversary celebration of the constitutional court, President Cyril Ramaphosa made the following observation:
“The Bench,… not unlike any other sector in society, will have borne witness to the many debates around transformation, around judicial demographics, and around access to the courts by citizens. The Court has at times found itself dragged into political controversies and has had to manage occasional frictions with the executive over the separation of powers.
“And yet amidst all these, the constitutional court has not been shaken, but stood firm as a credit to the democratic order. What has defined the Constitutional Court that we are proud of is not just the wisdom of its judgments, but the courage of its convictions. It has withstood political pressure, defended the separation of powers, and asserted that no person or institution is above the Constitution. It has done so with a steady voice, grounded in reason, compassion, and principle.”
This was a correct observation and it bears testimony to the judicial independence which our courts have enjoyed in the more than thirsty years of democracy. The judiciary has been at the centre of a new rights-based society in the making which it has shaped and also been shaped by it.
Our courts, especially the constitutional court, have been able to be a steady voice, grounded in reason, compassion and principle without interference from the executive even in cases where the executive vehemently disagreed with the decisions courts.
The debate on judicial governance and court administration within the context of an independent Judiciary has been ongoing since the advent of democracy. The principles of the separation of powers and the independence of the judiciary lie at the heart of this debate.
Constitution entrenches and guarantees the independence of the Judiciary and at the same time mandates all Organs of State, through legislative and other measures, to protect courts to ensure their dignity, impartiality, accessibility and effectiveness as per the Section 165 (2) and (4) of the Constitution.
Institutional reforms relating to judicial governance and court administration constitute part of judicial transformation packages aimed at establishing a judicial system suited for our constitutional democracy as mandated by the Constitution.
A meeting was convened by the President on 06 June 2025 between the Executive and the Judiciary to advance the process to ensure institutional independence by accelerating efforts to create a single judiciary, and enhancing the capacity of the Constitutional Court, Supreme Court of Appeal, and High Courts.
Sequel to this meeting, it was agreed that a Task Team comprising the executive and the judiciary would guide the process of transferring identified functions from the Department of Justice and Constitutional Development to the office of the chief Justice (OCJ) as well as the draft Bill that would serve as the enabling legislation to facilitate the institutional independence of the Judiciary.
This process has been initiated with the understanding that the Constitution dictates that the governance of the Judiciary and administration of the Courts placed under the authority of the Judiciary itself. In this respect, judicial independence includes institutional independence which can only be achieved if the Judiciary enjoys structural including financial and operational independence.
Both the Glenister and Sonke judgments imposes an obligation on the State to take reasonable steps to establish and maintain independent bodies to safeguard fundamental rights. Iindependent institutions must be funded by Parliament free from Executive control. Accounting officers of independent institutions should be accountable to Parliament and not to any government department.
Currently, Section 54(1) of the Superior Courts Act, 2013 empowers the Chief Justice to make requests for funds needed for the administration of the courts, after consulting with the Heads of Courts.
These requests should be submitted to the Minister who must consider and address such requests. The Judiciary argues that section 54(1) of the Superior Courts Act leaves the Minister as the gatekeeper of the OCJ’s budget making. The prevailing belief is that the current OCJ funding model is at odds with the requirement of financial independence.
It is for this reason that the current process led by the task team is aimed at conferring the Judiciary with full scope of competencies required to perform its functions such as HR Management, effect maintenance on court buildings, procure goods and services including capacity to tender, adjudicate bids and acquire equipment, furniture, technical systems and other assets.
Secondly, the Judiciary must be capacitated by a similar legislative framework applicable to Parliament, such as the FMPPLA. Under FMPPLA both Speaker and Chair of the NCOP are jointly the Executive Authority over Parliament and accountable to Parliament to ensure sound financial management.
Secretary of Parliament is the Accounting Officer, accountable to the Executive Authority. An oversight mechanism has been established to maintain oversight of the financial management of Parliament. National Treasury and the Minister of Finance assume a consultative role when budgetary proposals for Parliament are submitted.
A substantially similar dispensation should be enacted for the Judiciary. Under this model it is proposed that the Secretary General will appear before Committees of Parliament to account for the finances. The enabling legislation must provide for financial and operational independence of the superior courts administration promoting governance mechanisms and appropriate checks and balances. OCJ should be a permanent independent entity separate from the Executive authority under the aegis of the Judiciary.
OCJ will be required to administer and provide support to the courts generally, including but not limited to the provision of, information technology services; corporate and logistic services; case flow management; infrastructure services and resource management; operational support; management and maintenance services in respect of court buildings and OCJ offices and premises, including court libraries and other facilities. They also be required to manage human resources; and manage the budgeting and accounting of the courts and the OCJ.
Since the formation of the task team to work on the transition to an administrative and operationally independent Judiciary significant progress has been made to make this vision a reality.
It has been agreed between the Department and the OCJ that the transfer of functions from the Department to OCJ should be done in phases.
Phase 1 will involve the immediate transfer of shared services relating to the Superior Courts from the Department to the OCJ.
These shared services are not provided for in any legislative instrument and the transfer could be effected through a directive from the Minister to the Accounting Officers of the Department and the OCJ.
Phase 1 transfer will be effective from 01 April 2026.
Phase 2 involves, amongst others, the operationalization of legislation aimed at clothing the Judiciary with full institutional independence including the creation of a single Judiciary.
With regards to Phase 2, it is envisaged that the team will have the first draft bill before the end of this year. Concerning the lower courts, we are cognisant that the transfer of the District and Regional courts to the OCJ may be a complex matter.
However, in line with the vision of creating a single judiciary, we believe the transfer of the lower courts to the OCJ will make the judiciary stronger and independent as a third arm of the state.
To this effect, an audit of court-related functions to be transferred to the OCJ has been conducted which indicated that the magistrate commission and various functions performed in respect of court operations at national and provincial level should be transferred to the OCJ.
As I conclude, I would like to reaffirm, on behalf of the executive, our commitment to safeguarding and supporting the independence of the judiciary. We also committed to the creation of a single judiciary that is administratively and operationally independent and led by the judiciary.
I thank you
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