/ 11 October 2019

Mogoeng versus the magistrates

Not happy: Chief magistrate Daniel Thulare has complained that magistrates are being left out of decision making.
Not happy: Chief magistrate Daniel Thulare has complained that magistrates are being left out of decision making. (Oupa Nkosi/Judges Matter)



A fierce exchange between Chief Justice Mogoeng Mogoeng and Chief Magistrate Daniel Thulare on Tuesday exposed tensions between the chief justice and the country’s magistrates, who feel excluded from the judiciary’s governance structures.

The war of words at the Judicial Service Commission reflects an ongoing debate about the institutional independence of the judiciary and how well a move for the judiciary to govern itself is being implemented.

Thulare, interviewed for appointment as a judge to the high court in Cape Town on Tuesday, was taken to task for having said earlier this year that the Heads of Court — the judiciary’s top governance structure — “meets at the pleasure and invitation of the chief justice” and made key decisions affecting courts without the participation of magistrates.

Thularewas president of the national magistrates’ organisation, the Judicial Officers Association of South Africa (Joasa), when he made the statements. Asked to explain these comments, Thulare said magistrates were,“to the extent that Joasa is aware”,not involved in Heads of Courts meetings and are only invited there when court operational matters were discussed, but not when judicial governance was discussed.

The chief justice was having none of it: “I like people who speak truth to power,” he said. But “it is never right to say what is untrue”.

Alison Tilley, of advocacy group Judges Matter, said behind this exchange was an incomplete transition to a single and self-administered judiciary, which had been envisaged under previous judicial and political leadership.

Independence of the judiciary referred not only to independence of mind when making judgments but also independence when it came to administration.

Before a 2012 amendment to the Constitution and the coming into effect of the Superior Courts Act, the magistracy was separate from the judiciary and fell under the justice department.

As far as the judiciary was concerned, judges dealt with judgments but the courts were administered by the department.

To bolster judicial independence, governance and administration were moved to the judiciary — but not quite, said Tilley. When it came to governance, there is currently no clarity about lines of authority and responsibility, she said.

From what she had observed, the magistracy “wants to be involved”. They don’t want to be governed by the leadership out of those superior courts, she said.

Responding to questions, Thulare said that “to the extent that Joasa is aware”, the office of the chief justice invited people to meetings.

Mogoeng said: “Who told you so? As a judicial officer who appreciates the importance of truth and asks people to raise their hand to tell the truth, the whole truth and nothing but the truth before they speak before you.”

Thulare stuck to his guns, saying the real problem was that magistrates were not part of the governance structures. He said when the chief justice released the judiciary’s annual report last week, there was nothing in it about the performance of the magistracy.

“I was personally present on the third of this month, Chief Justice. I was wearing my gown. It was a report on the judiciary, but there was no report on the performance of the magistracy,” he said.

Again, this was not true said Mogoeng. He referred to his speech that day in which he said that more time was needed to develop key performance indicators for the magistrates’ courts.

The statements were not correct and were unfortunate, he said.