The Constitutional Court introduced the Biowatch principle as a crucial departure from the traditional cost awards, and was intended to eliminate any deterrent effects linked to adverse cost awards.
The Judicial Service Commission’s interview with Justice Mandisa Maya last month was likely a precursor to a historic moment. When she is ultimately appointed to the position, as she surely will be, Maya will become the first woman to hold one of the two most senior leadership positions in the South African judiciary. When one considers that in 1994, there were hardly any women judges of any description in the entire country, the significance of this moment should not be underplayed.
However, what was most striking about Maya’s interview was how forthright she was in describing the administrative and infrastructural challenges facing the judiciary. In particular, she did not shy away from criticising the office of the chief justice for its shortcomings.
Maya frankly acknowledged that there had been “long-standing lapses” in the registrar’s office (the administrative hub of the court) of the supreme court of appeal (SCA), and that the those in the office of the chief justice had failed to “do their part” in addressing these lapses, which “surely should have [been] addressed years ago”. Maya described how she and her support staff had been forced to run a parallel office and physically manage court files to ensure that basic but essential administrative functions were carried out. While acknowledging that she carried the ultimate responsibility for the court, Maya emphasised that judges could not be expected to carry out the functions meant to be performed by administrative officials.
Maya, who described herself as “waiting with keen interest” for a meeting with office of the chief justice officials to address these issues, also pulled no punches on the infrastructural challenges facing the SCA. She described the court’s internet as “highly unreliable” and recounted an instance where an online hearing was only made possible when one of the lawyers lent the court an internet router. She also remarked that the court does not even have a working telephone system. These challenges, Maya said, were “something again for the office of the chief justice to sort out”.
This state of affairs in what is, let us not forget, the second highest court in the country’s judicial hierarchy (after the constitutional court) is truly alarming. If this is the situation at the apex of South Africa’s court system, one shudders to think what challenges judicial officers further down the food chain must face.
In fact, we do not have to wonder, because Maya was voicing concerns that have been raised by many judges for some time. The democratic governance and rights unit at the University of Cape Town recently-completed a research report on the state of the judiciary in South Africa, Malawi and Namibia. South African judges who were interviewed for the project echoed Maya’s concerns about poorly-maintained libraries, no telephones, outdated computers and the crumbling state of high court buildings.
How can this be? A major underlying factor is the continued uncertainty and policy inertia over the governance of the judiciary.
The office of the chief justice was established in 2010 as a standalone national government department to provide administrative support to the chief justice and the rest of the judiciary. It was meant to take care of all the administrative functions and free judges to deliver quality judgments as quickly as possible. It was also seen as a step towards giving the judiciary full control over its own administration, something that was felt to be crucial to ensuring judicial independence. As originally understood, the establishment of the office of the chief justice was only meant to be the first of three steps in this reform process.
However, this process of reforming judicial governance and administration has since ground to a halt. As things stand, the office of the chief justice appears to be responsible for some aspects of judicial administration, the department of justice for others, with the department of public works retaining responsibility for maintaining court buildings.
The result is a chaotic structure of unclear reporting and accountability lines and competing interests, which is evidently failing to provide basic support to a judiciary that is increasingly under political attack. Judges are expected to adjudicate the most complex and serious issues affecting the country, but how can they do so without libraries, telephones, laptops or an internet connection?
There are also unresolved issues regarding the relationship between the magistracy and the superior court judiciary. In policy documents over the past decade or more, the department of justice has frequently articulated the desire to establish a single, integrated judiciary, yet little progress has been made towards this goal. Two bills relating to the magistracy, recently put out for comment by the department, do strikingly little to advance this goal. During her interview, Maya reiterated her view that magistrates should be brought under the administration of the office of the chief justice. But considering the litany of shortcomings she identified, the office hardly seems ready to take on this additional responsibility.
Maya’s interview highlighted that the administrative and governance systems that are meant to be supporting the judiciary are simply not functioning as they are supposed to. It hardly needs to be said that this is a situation that must be improved as a matter of urgency. What can be done to make sure that the judiciary is governed and administered in a way that ensures it is able to fulfil its constitutional role?
A first step is surely to obtain policy certainty over who has the final say over what issues — do court clerks report to judges? Can judges order law textbooks for their libraries? If the internet or telephone connection is down, who must fix it? The next step is to implement this policy on a consistent and systematic basis.
The chief justice and the minister of justice need to take a final decision on whether the administration of the judiciary is indeed going to be vested in the judiciary, and if so, what capacity the judiciary needs to fulfil this role. There also needs to be clear reporting and accountability structures, rather than the current, entangled structure, where three different entities have responsibilities for running different aspects of the judiciary, and yet none of them seems to be getting it right. With the courts certain to remain a site of intense political contest for the foreseeable future, the stakes could not be higher.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.