New-look judiciary mooted

New Chief Justice Sandile Ngcobo is driving a major initiative to strengthen the independence of the judiciary.

The Mail & Guardian has learned that the administrative arm of the country’s courts is to come under the direct control of the judiciary. This move derives from a policy document on which Ngcobo has been toiling that delineates a new-look judiciary and that he has circulated to the country’s judge presidents, the M&G has learned from four independent sources.

The Justice Department’s acting director general, Simon Jiyane, is expected to be appointed chief accounting officer of a new-look judicial administration.

The move marks a major departure from earlier government thinking that had mooted placing the entire administration of the courts under the control of the justice department. This caused an outcry from the legal profession although the development now puts the administration of justice in line with international best practice.

Jiyane’s permanent position is deputy director general responsible for court services.
The M&G has reliably learned that he will be accountable to a council of heads of courts, including Ngcobo, and to Parliament in his new position, which will be on the level of director general.

He currently holds the fort at the Justice Department until new director general Nonkululeko Msomi arrives. Msomi replaces Menzi Simelane, whose appointment as national director of public prosecutions was announced this week.

“Ngcobo personally asked the president through [Minister of Justice and Constitutional Development] Jeff [Radebe] for the position to be that of a director general,” said a senior justice official.

He said that a revised Superior Courts Bill, which will streamline the courts and make the Constitutional Court the apex court in all cases, declares Jiyane a “chief accounting officer” accountable to Parliament and situated within the judiciary.

A senior judge who has seen Ngcobo’s policy document and spoke to the M&G on condition of anonymity praised the document and Radebe’s leadership, adding that the previous leadership of the Justice Department had rendered the judiciary “dysfunctional”. He cautioned that taking over the administration of the courts was “a huge job” and is not an “unmitigated blessing”, but lauded the “competence and energy” displayed by Ngcobo so far.

The Justice Department’s budget allocates more than R2-billion to court services, according to its annual report.

The portfolio committee on justice and constitutional development heard last week that Ngcobo’s policy document “seeks to consolidate transformative policy initiatives relating to the administration of justice, with specific reference to the courts and the judiciary”, according to the department’s annual report. It also “includes key principles that will inform the Superior Courts Bill”.

When the Superior Courts Bill was first mooted, leading members of the legal fraternity and judges accused the government of encroaching on the independence of the judiciary. Who Jiyane reports to is therefore a critical question.

It all depends on the “fine print” concerning Jiyane’s envisaged role, said University of Cape Town law professor Pierre de Vos.

The situation should not resemble the Constitution’s “chapter nine institutions” such as the public protector, where there is sometimes “conflict and uncertainty on who calls the shots”, De Vos said.

Proposed policy and legislation should ensure that Jiyane’s “position will not erode the independence of the judiciary” in any way or over time, he said.

The move regarding the administration of justice is aligned to a parallel process of revising the controversial Superior Courts Bill and to a planned constitutional amendment Bill that will make Ngcobo the head of a “unified” judiciary.

The revised Superior Courts Bill seeks to make the Supreme Court of Appeal (SCA) an intermediate appeal court with circuit appeal courts.

The Bill also aims to integrate the labour court and the labour appeal court into the high courts and the SCA, abolish “full-Bench appeals” at the high court level and align the current court structure into one unified whole.

The judge presidents are expected to discuss Ngcobo’s document at a special meeting next weekend.

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