Sergeant at the Bar
When the dust finally settled on Minister of Justice Penuell Maduna’s speech, one comment emerged as being of far greater importance than the criticism of Judge Richard Goldstone and Judge Johann Kriegler’s extra-judicial duties.
Maduna was reported as saying that there had never been a culture of management in the Department of Justice. While he may have been guilty of over-egging the pudding, the implication of this remark is clear. He has inherited a right old mess. The years of Kobie Coetzee and Dullah Omar have left the department in no state to administer anything, let alone justice.
This conclusion is not surprising; only the minister’s candour should raise the eyebrows of the nation. The Legal Aid Board has no money, which means that the state cannot guarantee a fundamental constitutional right of being represented by a legal practitioner where substantial injustice would otherwise result.
According to newspaper reports, the judges of the Cape High Court have been told to reduce the use of assessors and recording services. The magistrate’s courts are not equipped and the high courts are ill equipped to perform the task of administering justice in the technological age. According to the auditor general, more than R100-million of the department’s money has been misappropriated. The judges in Gauteng, where commercial arbitration is rapidly replacing the court system, are disgruntled with the minister and have said so publicly.
Recently, the deputy judge president of the Cape High Court raised an issue which has previously vexed KwaZulu-Natal, namely whether Afrikaans was a requirement for appointment as a judge. As many African lawyers may not speak Afrikaans, Judge John Hlophe was entitled to raise the question. For his pains he was savaged in the pages of that traditionally most committed human rights newspaper, Die Burger. The issue is of importance and should be settled, but has been left to fester.
National Director of Public Prosecutions Bulelani Ngucka and the ubiquitous Western Cape Director of Public Prosecutions Frank Kahn claim that the work habits of judges leave much to be desired. The only “positive” legacy bequeathed by Omar is Vision 2000, an exercise in fiction written by bureaucrats and academics with as much knowledge of the administration of justice as South African rugby critics have of the game.
Viewed within this context, the brouhaha about the Constitutional Court appears to be rather irrelevant. The minister needs to clean the Augean stables and rid himself and the country of the highly paid but incompetent bureaucrats in the department who have got us into this mess.
He should then appoint a small task team comprising judges and magistrates who have had experience in running courts, members of the Bar and Side Bar and a senior member of the prosecution service, together with a couple of experts in financial administration. They should be given no more than three months to produce answers to a set of key problems and then to produce a report that is made available to the public.
To my mind, the key issues to be resolved are the question as to the establishment of one supreme court of appeal for all disputes, the creation and funding of an efficient system to ensure that citizens obtain legal representation, the provision of an adequate infrastructure for all courts, a viable solution to the backlog in criminal cases, the creation of proper budgeting and financial administration in the department and the issue of which of the official languages should be used in the courts.
There are, of course, many other questions that can be placed on the task team’s agenda. In the short term, the objective must be to ensure that justice is administered efficiently and within terms of the rights guaranteed by the Constitution.
Transformation does entail the appointment of judges who reflect the demography of the country. There is little point in any such change, however, if the very infrastructure in which judges operate is so decayed and inappropriate that little justice can be administered.
Once the minister has repaired the machine which Coetzee almost destroyed and Omar failed to reconstruct, he and (hopefully) his reconstituted department can move on to deal with the remaining pressing issues, such as the criteria for appointment to the Bench, transforming policies for briefing advocates to ensure that black lawyers are not barred from gaining experience in vital areas of the law, and the sustainability of our system of legal education.
There is a crisis in the area of justice and if the government is to make good its promises to the country, the minister should move decisively. Practical solutions are required, visions can wait till later.