The annual “judiciary day” was held on 24 February 2023. This has become a regular feature of the judicial calendar with the Chief Justice speaking to the annual judiciary report for the preceding financial year, which is released at the same time. The 2023 judiciary day therefore focused on the judiciary report for the 2021 – 2022 financial year. This note highlights points which arose from this event, drawing on the presentation, the question-and-answer sessions with stakeholders and the media, and the report itself. The note is not aimed to cover every aspect of the report, and those interested in more detail are directed to the report, here. Although much of the material presented was descriptive, there are nonetheless several interesting observations to be made about the current ‘state of play’ of the judiciary.
1. Rationale for the event
The report is described as the judiciary’s “way of accounting to the people” consistent with section 165(2) of the Constitution.1 Whilst even this premise might be questioned, the event has now continued into the tenure of a second Chief Justice and seems to be set as a regular feature of the South African judicial environment. The “accountability committee”, chaired by Deputy Chief Justice Maya (previously chaired by Judge President Leeuw), is responsible for judiciary day and the preparation of the report. It would be interesting to know what other activities this committee carries out.
2. Court performance
A large portion of the Chief Justice’s presentation, and indeed the report, was given over to presenting data on the performance of the courts. Generally, a rosy picture was painted, with the majority of the superior courts said to have “performed excellently.” Most of the superior courts appear to have met the targets set (these include indicators such as percentage of matters finalised, reduction of case backlogs, and percentage of reserved judgments finalised.2 The targets vary: for example, from 70% of matters finalised for the Constitutional Court, to
1 Annual Judiciary Report 2021 – 2022, p. 9. 2 Judiciary Report, pp. 26 – 27.
80% for the SCA, to 58% for the Labour Court). Indeed, the report states that 10 of the judiciary’s 13 performance targets were met.3
Two problem children were identified – the Competition Appeal Court set a target of 85% of matters to be finalised but only achieved 50%, and the Land Claims Court set a target of 60%, but only achieved 49%. The CAC’s difficulties were attributed to the difficulty of getting high court judges to sit when needed, as there are not enough cases to justify high court judges spending a whole term at the CAC. Although not touched on, it also may be that the change of leadership of the court had an impact, with the retirement of Davis JP followed by the delay in appointing a successor occasioned by the untimely passing of Judge Mnguni.
Regarding the Land Claims Court, a number of challenges were identified, including the fact that there has been no permanent Judge President for more than 10 years, uncertainty over pending legislation, and the impact of Covid restrictions. There is also said to be a need for more permanent judges and courtrooms. Matters set down now are apparently only allocated a court date in 2024. The hope was expressed that the executive would soon resolve these issues. During the stakeholder question-and-answer session, the acting judge president stated that there is currently no legislation providing for the appointment of permanent judges to the LCC, and that the Bill which would address this is taking an “inordinately long time” to be passed by Parliament. (The chairperson of the portfolio committee clarified that the Bill has in fact been passed by the National Assembly and is awaiting the concurrence of the NCOP). Currently, all judges are seconded from the high court, which severely impacts the functioning of the LCC.
It is striking that both the courts highlighted as under-performing depend on seconded judges for their judicial complement. This therefore appears to be a structural weakness that needs to be addressed.
The report notes a 5% increase in outstanding criminal trials/cases,4 with the impact of loadshedding being cited as a major reason. Given that criminal court backlogs have long been a feature of the South African justice system, this alone does not seem to be a sufficient explanation.
3 Judiciary Report, pp. 9; 27 – 28. 4 Judiciary Report, p. 34. An apparent editing error in the report means that one paragraph refers to trials, and the next to cases. It is not clear which measure is correct.
88% of civil cases were finalised, exceeding the target of 64%.5 The Gauteng and Mpumalanga divisions are singled out for their “good results.”6 Across all the superior courts, 75% of reserved judgments were handed down within 3 months.7 The report discusses the Constitutional Court’s performance in handing down only 8% of its reserved judgments within 3 months, which is explained by the nature of an en banc court, and by the expansion of the court’s jurisdiction.8 The latter factor has, however, been true for the past decade.
It will be apparent from the above that the information presented in the report and the presentation provided a blizzard of figures. The report does give some specific explanation for under-achieved targets.9 Nevertheless, whether the figures presented, and the explanations provided in the report, provide an adequate picture of the functioning of the judiciary remains open to question. The case flow statistics in previous annual judiciary reports have been criticised for not providing sufficient information on how long the cases listed have been in the system.10 This issue remains in the current report. While the data on reserved judgments gives some indication of how speedily cases are being resolved, it does not appear to be possible to ascertain how long judgments that go beyond the 3-month window take to be delivered. Furthermore, the report does not seem to provide an indication of how long cases remain in the system before judgment is delivered.
The report also deals briefly with the performance of magistrates’ courts,11 although strikingly, it does not contain any information about district magistrates’ courts due to a “systems crash” at the Department of Justice and Constitutional Development affecting the integrity of data.12 It is to be hoped that future editions of the report will be able to provide much fuller information regarding the performance of the magistracy. Magistrates’ courts are, after all, where a majority of citizens access justice.
5 Judiciary Report, p. 37.
6 Judiciary Report, p. 38.
7 Judiciary Report, p. 39.
8 Judiciary Report, p. 40.
9 Judiciary Report, pp. 41 ff.
10 See Democratic Governance and Rights Unit, The State of the Judiciary in Malawi, Namibia and South Africa (2022), p. 32.
Available at: https://www.judgesmatter.co.za/wp-content/uploads/2022/04/The-State-of-the-Judiciary-in-Malawi-Namibiaand-South-Africa-Court-Users-and-Judges-perspectives-April-2022_FINAL.pdf
11 Judiciary Report, pp. 42 ff.
12 Judiciary Report, p. 11.
There is a notable variation in the performance indicators set for different courts. During the Q&A session, a member of Parliament raised the question of whether it was advisable for KPI’s to be set by those who must meet the targets, and questioned whether setting a target of, for example, 50% was reasonable. This is certainly a concern which must be borne in mind when assessing the report’s, on the surface, positive picture of the courts’ performance in meeting their targets.
3. Judicial appointments and conduct
Although the JSC is required by legislation to produce a distinct report to Parliament on its activities, the annual judiciary report sets out some basic details of the JSC’s sittings during the reporting period. Curiously, while brief mention was made of the JSC’s role in conduct matters during the Chief Justice’s remarks, the annual report provides no mention at all of any information regarding the handling of complaints against judges. It is puzzling that appointments are discussed, and yet conduct is not. If the argument is that reporting on these matters is left to the JSC’s annual report, this surely should apply to both aspects, or to neither.
The report lists all the appointments recommended by the JSC during the reporting period,13 and provides a breakdown of the race and gender composition of the judiciary, including magistrates.14 This information is presented without any evaluation at all, and it is particularly striking that the report makes no mention of the April 2021 Constitutional Court interviews being re-run due to a legal challenge by CASAC – which occurred during the reporting period.
Mention was made on several occasions in the speech and briefings of the need for more judges. The judge representing the Labour Court noted that there are only 13 judges across the four main courts, a number which has not increased despite an increase in the number of cases referred to the courts. During the media briefing, the Chief Justice acknowledged that the lack of candidates for judicial vacancies, evidenced by the shortlist for the JSC’s April 2023 sitting, was a great concern. Whilst not a new problem, it was “getting worse”, and the Chief Justice indicated that the JSC was going to discuss the lack of candidates.
13 Judiciary Report, pp. 52 – 54. 14 Judiciary Report, pp. 55 – 57.
While conduct matters may not have been mentioned in the report, they were discussed during the question-andanswer sessions (thereby showing the desirability of including the topic in the report to begin with). During the media briefing, it was put to the Chief Justice that the reports do not give an indication of the status of complaints from previous years (which appears to be a similar shortcoming to the case flow issue discussed above). The Chief Justice acknowledged the merit of this concern, and it will be interesting to see whether this issue is indeed rectified in the next annual report.
The absence of any mention of conduct matters in the report is surprising when one considers the large number of matters pending – in varying degrees of readiness – before judicial conduct tribunals. In addition to the ongoing tribunal in respect of Judge Makhubele, there are tribunals pending to enquire into complaints against Judge President Hlophe and Deputy Judge President Goliath; Judges Seriti and H Musi; and Judge Parker. These matters are all sufficiently serious that the complaints, if provide, could lead to the impeachment of the implicated judges. Furthermore, Parliament is yet to decide on the recommendation the Judge President Hlophe be removed from office for attempting to improperly influence Constitutional Court judges, and review proceedings of the JSC’s decision not to recommend Judge Motata’s removal from office remain ongoing. For the judiciary’s annual report to make no mention of such serious matters is startling and means that the report fails to provide a complete picture of the functioning of the judiciary.
The Chief Justice was also asked whether he had given any thought to changing the conduct system, particularly regarding the composition of the JCC. The Chief Justice acknowledged that this was a “very important matter” and suggested that the provisions of the JSC Act relating to complaints at judges had not always been correctly implemented in the past. He stated that heads of court were now playing an important role in disposing of complaints. The Chief Justice also indicated that there needed to be more judges on the JCC, and that the chair of the JCC needed to be empowered to designate judges to act on the JCC as needed in a particular matter. He commented that the Act need to be amended to facilitate a system that was flexible and easy to work with.
The Chief Justice was also specifically asked about eroding public confidence in the judiciary, especially in light of high-profile examples of judicial misconduct. His response was disappointingly generic and did not identify any special efforts to address the issue.
The Chief Justice was questioned on progress in developing a sexual harassment policy. This was addressed by several candidates during the 2022 Chief Justice interviews. The Chief Justice indicated that a committee had been put together, chaired by the DCJ, and that a document was “coming.” It is fair to say that this matter has not proceeded with the urgency that might have been expected based on the discussions in the Chief Justice interviews.
4. Training and infrastructure
The South African Judicial Education Institute received a specific mention. SAJEI held 168 courses during the reporting period, more than the 105 scheduled. Many of these were held on virtual platforms. There was an increase in the number of ad hoc requests, and in the number of participants. Again, the information presented is detailed in terms of numbers but does not say much about the quality of the training provided.
In addition to the need for more judges, as mentioned above, mention was also made of infrastructural challenges such as the state of court buildings, and the need for more courtrooms. During the Q&A, the AJP of the Land Claims Court remarked that the court only acquired a generator to mitigate loadshedding in November 2022.
5. Judicial independence
The aspect of this year’s judiciary day which have attracted most public attention were the Chief Justice’s comments on how the judiciary had been “tested” by attacks on the institution and on individual judges. Noting that most of these had arisen in the context of matters between former president Zuma and the Commission of Inquiry into Allegations of State Capture (chaired, of course, by the Chief Justice himself), the Chief Justice discussed the relevant Constitutional Court cases in a surprising amount of detail, stating that the Constitutional Court “rose to the occasion”. He also highlighted the op-ed by Minister Lindiwe Sisulu, which had attacked black judges in particular, as an example of an attack on the judiciary.
The Chief Justice concluded his address by asserting that the courts will always decide cases without fear, favour, or prejudice:
This aspect of the speech is certainly praiseworthy for its uncompromising defence of the independence of the judiciary, and for being a clear statement that the judiciary will not be cowed by political pressure.
During the media briefing, the Chief Justice was asked about progress regarding institutional independence and the governance model for the judiciary. The governance of the judiciary is current an unsatisfactory division of responsibilities between the Office of the Chief Justice, the Department of Justice and Constitutional Development, and the Department of Public Works (the latter being responsible for court buildings). For more than a decade, governance reforms have been mooted which would give the judiciary responsibility for its own administration, thereby (so the argument goes) ensuring its institutional independence. It appears that no finality on this question is in sight. The Chief Justice stated that the judiciary was still waiting for the executive to respond to the judiciary’s proposals. There seems therefore to have been no progress on this issue at all over the past year.
6. What is not in the report
To the credit of the compilers of the report and the Chief Justice, it was specifically acknowledged that the report did not include any assessment of the quality of judgments handed down, but that this did not mean that the judiciary thought the quality of judgments written did not matter. During his address, the Chief Justice highlighted the importance of the international reputation of a country’s jurisprudence, particularly from the apex courts. The Chief Justice described having attended conferences in Indonesia and Uganda, where the Constitutional Court’s jurisprudence received “high praise.”
It is difficult to see how this issue might practically be addressed in such a report, but it is commendable that the judiciary acknowledges that this is an important factor in evaluating their performance. Whether the picture regarding the quality of judgments emerging from the courts recently is as rosy as the Chief Justice suggests is open to debate.
A second issue flagged during the Chief Justice’s address, which is not included in the report, is the question of how the courts have fulfilled their role as guardians of the Constitution. The Chief Justice suggested that some discussion of this issue may be included in future reports. It would appear from his comments regarding the Zuma / State Capture Commission cases that the Chief Justice regards the courts as having fulfilled this role in some high-profile cases (see the discussion under section 5 above).
While the statistics presented in the annual report are undoubtedly an interesting and important indicator of the performance of the judiciary and the circumstances under which judges do their work, it is apparent that they do not provide the whole picture. This emerges even from a consideration of the questions posed to the leadership of the judiciary during the question-and-answer sessions on judiciary day. The statistics alone do not provide a granular sense of how the judiciary is performing, and how the statistics presented translate into ensuring access to justice and other core constitutional rights.
The most recent round of the Afrobarometer public opinion survey revealed that, for the first time since the surveys began in 2000, only a minority of citizens expressed trust in the courts.16 This finding is hard to square with the apparently rosy picture that the report paints of a judiciary meeting most of its performance targets. The annual report is therefore a useful component of understanding the work of the judiciary but does not of itself provide the full picture of the context in which the judiciary operates. As discussed in this note, the report provides some important insights into the challenges faced by, for example, specialist courts relying on ad hoc judges, the challenges presented by loadshedding and infrastructural challenges. However, the statistics provided, and the topics dealt with in the report, do not provide the complete story.
16 See Mikihail Moosa and Jan Hofmeyr, “South Africans’ trust in institutions and representatives reaches new low”, Afrobarometer Dispatch No. 474, 24 August 2021, p. 2. Available at: https://www.afrobarometer.org/wpcontent/uploads/migrated/files/publications/Dispatches/ad474-south_africans_trust_in_institutions_reaches_new_lowafrobarometer-20aug21.pdf.