Chief Justice Mogoeng seeks judicial independence

In April Chief Justice Mogoeng Mogoeng gave the 2013 Annual Human Rights Lecture at the University of Stellenbosch’s law faculty. He spoke on ‘the implications of the Office of the Chief Justice for constitutional democracy in South Africa’. 

Chief Justice Mogoeng said that South Africa needed a ‘truly independent body of judges’ to safeguard its constitutional democracy. 

He noted that the executive and legislature –

• had their own vote account;
• were free to decide on administrative support, job descriptions and salaries; and 
• could decide which projects to prioritise. 

‘But the same cannot be said of the South African judiciary,’ he said. 

Challenges 

The Chief Justice highlighted several challenges for the judiciary, such as –

• court budgets being determined without consultation with the judiciary;
• inadequately trained administrative staff; 
• a shortage of court rooms and chambers for judges and magistrates; and 
• substandard interpretation services. 

‘It is for these reasons that the judiciary has been calling for a radical paradigm shift from the current executive administration system to one that is led by the judiciary,’ he said. 

Institutional independence 

Referring to ‘institutional independence’, the Chief Justice said that this ensured that the courts were ‘not directly or indirectly controlled or seen to be controlled by other arms of government’. 

In this regard, Chief Justice Mogoeng noted: ‘The placement of court administration in the hands of the ministry has given rise to an unfortunate public perception that the Minister for Justice and Constitutional Development is the head of the judiciary’ and that this ‘underscores the critical importance of the debates that have been going on between the judiciary and the executive about judicial self-governance over the years’.

The Office of the Chief Justice 

Speaking on the creation of the Office of the Chief Justice, Chief Justice Mogoeng outlined the three phases that established the office. Phase one saw the formation of the office as a ‘national department located in the public service to support the Chief Justice as head of the judiciary and head of the Constitutional Court’. Phase two established it as an ‘independent entity’ and stage three saw the establishment of a ‘structure to provide judicially-based court administration’. 

As the head of the judiciary, Chief Justice Mogoeng stated that the Chief Justice was responsible for developing policies, norms and standards for case management and to monitor and evaluate performance of the courts. 

He noted that the Office of the Chief Justice was also responsible for information technology and knowledge management, which were important for improving access to justice. 

‘We continue to grapple with issues relating to the achievement of a truly independent judiciary,’ he said. 

Chief Justice Mogoeng made note of both the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Bill (B7 of 2011), which will ‘vest additional powers and functions in the Chief Justice’. 

The Chief Justice referred to the judicial leadership retreat that took place last year, which allowed for a ‘brutal self and institutional introspection’. He said that ideas and strategies were discussed on how to achieve an ‘independent and single judiciary’. 

Modernisation 

Chief Justice Mogoeng also spoke on court modernisation and automation, specifically electronic filing and record keeping, which would ‘facilitate the efficient management of cases and their speedy finalisation’. This would also help alleviate the disappearance of records of proceedings, he said. 

Chief Justice Mogoeng said that the judiciary had decided to begin a ‘massive project’ that would see the overhauling of all the rules of the High Court and magistrates’ courts. 

He said that this would ‘inject flexibility’, allowing for the implementation of electronic filing, electronic record keeping and video conferencing. 

He added that this would also allow for greater access to justice. 

Administration model 

Chief Justice Mogoeng spoke on a preferred court administration model. He said that the model should be one led by a judicial council made up of members of the judiciary, constituted by the heads of court and guided by an advisory board. 

Chief Justice Mogoeng added: ‘Eventually, the entire Court Services Unit of the Justice Department, regional offices, rule-making authorities, library services, information technology and facilities components of Justice would have to be transferred to the Office of the Chief Justice or the new entity created by legislation, together with the concomitant budget and personnel.’

As in parliament, there should be no cabinet member responsible for the court administration structure led by the judiciary, said Chief Justice Mogoeng. 

He added that there had been engagements with other jurisdictions, including the United States of America, the Russian Federation, Singapore, Ghana and Qatar, to find a model that would fit South Africa’s constitutional democracy. 

Chief Justice Mogoeng said that senior officials in the Office of the Chief Justice, guided by Justice Kenneth Mthiyane, the Deputy President of the Supreme Court of Appeal, and his committee of judges had begun working on this model and drafting a Bill, which they hoped to finish this year. 

He said that former Chief Justice Sandile Ncgobo had appointed a committee on institutional models, with the purpose to ‘propose a court administration system that would best serve the needs of the courts’. 

It had produced a report titled: ‘Capacitating the Office of the Chief Justice and laying foundations for judicial independence: The next frontier in our constitutional democracy: Judicial independence’, which proposes a self-governance structure created by legislation that would perform the functions to be transferred to the Office of the Chief Justice. 

The Office of the Chief Justice had made amendments to the report and had passed it on to the executive and a response is awaited, the Chief Justice said.

He added that the Office of the Chief Justice had managed to lay a ‘solid foundation’ for self-governance, which was the ‘only remaining barrier to the attainment of complete judicial independence’. 

Conclusion 

In conclusion, Chief Justice Mogoeng said: ‘The courts will be able to determine their policy and strategic prioritise and how best to meet them, decide on projects to embark upon to help the courts take their rightful place as guardians of our constitutional democracy, and serve the nation more effectively and efficiently.’

Kevin O’Reilly, kevin@derebus.org.za