The Office of the Chief Justice continue s to expand and to take on more responsibilities for theadministration of justice as it does so.
There have been some teething problems, but that is, of course, to be expected.
Some of the targets set have been met, some even exceeded, which should be applauded.
Some targets have not been met, particularly with regard to expenditure.
This gives rise to some concern, since the targets not met could possibly have been achieved if expenditurehad been managed better.
However, this is a relatively new vote and allowances should be made.
There are also vital funded posts that have not yet been filled, which gives rise to concerns regardingoptimum support and efficiency.
Under-performance on targets factually within the control of the judiciary should be highlighted and monitored.
Those giving rise to the most serious concern are the under-performance with regard to finalisation ofcas es in the Constitutional Court – only 80%, as well as only 80% of cases finalised by the Supreme Courtof Appeal.
The High Courts have only managed to finalise 54% of criminal cases with a verdict and this is somethingthat we should all be concerned about and find ways of improving dramatically.
73% of reserved judgments in the Superior Courts were finalised, which is a gratifying statistic, but only 57% of land claims cases were finalised, which gives rise to some concern.
These are matters that should be prioritised and more attention should be focused on the finalisation thereof.
That being said, the judiciary overall is functioning effectively and continues to enjoy a very positive view generally.
This is due to the fact that the judiciary seen as a whole has continued, sometimes under very trying circumstances, to work hard to uphold and develop the principles of the Rule of Law and the Constitution.
This, of course, makes the judiciary as a whole, somewhat of a target.
During the Fourth Congress of the Conference of Constitutional Jurisdictions of Africa in April 2017 – is it not a great achievement that we belong in such a grouping? – the Chief Justice made the following comments:
“It would make no sense whatsoever for us to be gathered in this manner at great expense and deal wit hjudicial independence and the rule of law in a manner that is quite divorced from the challenges thatconfront Africa right now.
Because in any genuine constitutional democracy there are three arms of the State.
And the judiciary is not merely an incidental arm, an inconsequential arm but it is a very critical componentof any genuine, as opposed to a fake, democracy or a mobocracy.”
In South Africa, I am sure we are all aware, this is very true and very apposite.
In recent years, we have had cause to observe just how critical a component of a constitutional democracy the judiciary is, and we have had cause to celebrate the unwavering independence of our own judiciary.
We have also seen how quick some amongst us are to criticise the judiciary when it exercises that independence.
We have only to think back on the sharp criticism against the judiciary and judicial independence by the previous president each time a court decision went against him, and he was usually loudly supported by members to my right.
In a speech made during 2015, Chief Justice Mogoeng said this Minister was only releasing funds to the office of the chief justice “begrudgingly”, accused him of taking a “retrogressive approach” by excluding the judiciary from the appointment of a chief operations officer for the office of the chief justice and spoke of the “reinvigorated quest of the past years to throttle judicial independence”.
In an article written by Chelsea Ramsden on judicial overreach, she expresses the view that “if the integrity of judiciary is to be preserved, it is important that the executive and legislature start acting with transparency.
The government has regularly released statements confirming their commitment to judicial independence, but their actions and comments may very well betray other sentiments.
The government, or elements within it, does not only have a long history of openly criticising the judiciary: calling judges ‘counter-revolutionary’, implying that they act in favour of “some privileged sectors of society” in order to run the country and accusing the courts of aiming to “create chaos for governance” is not helpful.
Government’s actions amount to an underlying attack on judicial independence.
It is deeply troubling when it refuses or fails to implement or adhere to court orders, despite openly declaring respect for the judgment of the courts.
Additionally, the judiciary has been undermined by the suggestion of legislative reforms to “ensure that necessary mechanisms are put in place to address instances of judicial overreach.”
The KwaZulu-Natal branch of the ANC had challenged Parliament to pass laws that “will restrict the courts from interfering in the affairs of the legislature and President Jacob Zuma’s decisions.”
Finally, there was a sense of an underlying threat against the independence of the judiciary when Minister Masutha, during his 2016 budget address, said that courts “should resist the temptation to interfere with the executive and legislative authority,” which gives the impression their budget could be conditional upon deciding in government’s favour.
The above comments and actions by the government in effect delegitimise our courts.
A threat against judicial independence is a threat against the rule of law, our democracy and our constitutional system as a whole. This is particularly so when the threats emanate from other state organs and the ruling party itself.
If the integrity of the judiciary is to be preserved, it is important that the executive and the legislaturestart behaving accountably and with transparency.
If both branches of government adhere to their constitutional obligations there would be a decrease in the need for court adjudication. The Chief Justice has remarked further that: “It is out of people of integrity and a solid character that judges must be appointed.”
With a very few notable exceptions, I think we can safely say that this is true of the South African judiciary and that is a situation that we are all grateful for.
When the Chief Justice visited Ghana, he was shown blood-stained stones in the court building and was told that judges were shot dead because they were men of integrity and their bodies were picked up somewhere at the river, and the blood stained stones at the court building, bore the blood of those Judges
who refused to bow down to any form of pressure.
And who chose to be truly independent, knowing that they are there not to serve themselves and their families, but more the nation and by extension, the continent. So when you become a judge, know that there are risks.
Let us hope that this situation never becomes true of South Africa.
We already have judges of distinction, our judiciary is recognised internationally as independent.
That is something that we should all be proud of. It reflects well on all of us.
We should always guard against making throwaway comments regarding the judiciary and we should all work hard every day to ensure that our judiciary remains independent, to ensure that the rule of law and our Constitution are upheld.
We must ensure that the judges of South Africa have access to the essential tools of their trade.
Since July last year, no judge has had access to the South African Law Reports, the Criminal Law Reports, Butterworths or the All South African Law Reports, neither electronically nor otherwise.
They only have access to the publicly available SAFLI, which reports selectively.
They have been rendered incapable of doing their jobs, yet the Minister does nothing to remedy this situation.
Justic requires effort and money. Our judiciary should not find themselves impeded due to an inadequate budget.
I thank you.