A KwaZulu-Natal judge has hit back at Justice Director General Menzi Simelane over the latter’s insinuation that judges involve themselves in areas outside their expertise at the expense of the government.
In an interview with the Mail & Guardian two weeks ago, Simelane used an unnamed judge’s alleged maladministration as an example of why it was necessary to strip judges of their administrative functions and transfer them to the justice ministry.
The transfer of court administration to the executive is one of the most controversial proposals of draft legislation to regulate the judiciary. Judiciary leaders were due to meet justice ministry representatives about the legislation on Thursday.
“I am not going to mention names, but we had a judge who contracted a company to fix air conditioning. The company billed the department of justice saying they had been given the job by a judge,” Simelane told the M&G. “All this happened while the Department of Public Works had already been engaged to fix the problem. The judges said that was a once-off, but it illustrates why these things are important. Judges and magistrates should not be worried about toilets working when there are case backlogs.”
This week Judge Jan Combrink admitted to being the judge in question. However, he faxed the M&G correspondence showing that from as far back as 1998, he and colleagues had complained to the Department of Public Works that the air conditioning system in the Pietermaritzburg High Court was dysfunctional and was making it “impossible” for courts to sit. Nothing had been done about the problem, he said.
In a December 2 2003 letter Judge Combrink sent to Public Works Minister Stella Sigcau, he said that “upon my inquiries made [about dysfunctional air-conditioning systems] I was informed that the Department of Public Works were not prepared to issue the necessary permission to have emergency corrective work done.
“As a consequence, I requested the service contractors to meet with me in order to find a solution to the crisis.”
Judge Combrink also sent the M&G a copy of a letter dated September 2002 signed by his colleague Judge Noel Hurt. The two men were chosen by other judges to take up complaints relating to the maintenance and upkeep of the Durban and the Pietermaritzburg courts.
The letter read: “The air conditioning units in the chambers of the judges and their secretaries in Pietermaritzburg were condemned by the Public Works Department during 1998. The judges were notified that the individual units would be replaced ‘in the next budget year’. It is now 2002 and the units have not been replaced.
“Most of them are inoperative. Some of them have defects, which have caused leakage on to carpeting, which has, in turn, rotted and must be replaced. The working conditions in chambers in Pietermaritzburg during summer are intolerable unless efficient air conditioning is provided.”
Combrink said that it was only when public works failed to act on the judges’ concerns that an air- conditioning company was contracted to carry out the repairs. The system was fixed early last year by a private company, Atlantic Air Conditioning.
Judge Combrink said he had acted under the legal principle of negotorium gestio, which allows a party to step in to protect a property when the rightful owner is absent or cannot be consulted to give his consent.
Department of Justice spokesperson Lesley Mashokoe told the M&G that the department stood by its version of events.
The Law Societies of the Northern Provinces joined other judicial bodies in attacking the Constitution 14th Amendment Bill this week, arguing that the Justice Ministry’s proposals “would be a serious curtailment of the rights of all South Africans to the protection of the Constitution”.
It particularly objected to an amendment removing the right of all South Africans to approach the courts to strike down unconstitutional laws before their enactment.