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Issued by Daniela Ellerbeck and Ismail Joosub on behalf of the FW de Klerk Foundation on 8/10/2024
Introduction:
The independence of the judiciary has recently been back in the spotlight following a full bench judgment coming out of the Western Cape Division of the High Court involving former Western Cape Division Judge President, now a Member of Parliament (“MP”) for the MK Party, Dr Hlophe. In this judgment, the High Court granted an interim interdict preventing Dr Hlophe from participating in the Judicial Service Commission’s (“JSC”) work. Alongside the judiciary’s independence, the critical shortage of judges, as well as the slow pace of transformation within the legal fraternity has also often been bemoaned.
This article will look at why having independent courts is so important, South Africa’s severe shortage of judges and how South Africa is doing in our judicial transformation project. Possible solutions for speeding up the transformation process by removing barriers to entry are also explored.
Crucialness of an independent judiciary:
South Africa is founded on, amongst others, the values of constitutional supremacy and the rule of law (section 1(c) of the Constitution). Constitutional supremacy means that the Constitution is South Africa’s supreme law and anything inconsistent with it is invalid and that the obligations it imposes must be fulfilled (section 2 of the Constitution). This means nothing if there is no way to enforce it. Thus, judicial authority – i.e. the power to make decisions and ensure justice according to South Africa’s laws – is expressly granted to the courts (section 165(1) of the Constitution). It is the judiciary that is responsible for applying the Constitution and law (i.e. upholding it) impartially, without fear or favour, or prejudice (section 165(2)).
To do this crucial job, courts need to be independent, from the state, civil society or any other actors. To be effective, they must be free from undue influence, being subject only to the Constitution and the law, nothing else. Indeed, this is what our Constitution requires (see sections 165(2) and 165(5)).
It is further submitted that the courts (and thus judges) must also be trusted by the citizens. It is the JSC who advises the President on which judges to appoint (sections 174(4) and 174(6) of the Constitution). Hence the fallout surrounding Dr Hlophe – a former judge who was found guilty of gross misconduct by the JSC, ultimately suspended by the President and later impeached by Parliament – serving on the JSC. It must be noted that the Constitution only allows for a judge to be removed if s/he is, for example, found guilty of gross misconduct by the JSC and at least two-thirds of the MPs call for him to be removed, i.e. an impeachment vote. Thus, being removed as a judge is no easy matter and only happens under extreme circumstances.
Another pressing issue is the judiciary’s lack of institutional (or operational) autonomy, which cripples its ability to manage its own resources. Former Chief Justice Raymond Zondo has repeatedly raised concerns over the executive’s control of judicial appointments, court budgets and the creation of courtrooms. Talks, centred around transferring full control of court budgets and administration to the judiciary – and thus strengthening section 165 of the Constitution by ensuring genuine separation of powers – have taken place between the former Chief Justice and the President. However, these discussions have stalled, leaving the judiciary shackled and unable to ensure justice effectively. Without institutional reform, the courts remain dependent on the very branch of government they must hold accountable. Other countries, like Zambia and Uganda, have already forced their governments to relinquish budgetary control. The stakes are high – without an independent judiciary, the very fabric of our constitutional democracy hangs in the balance.
It, thus, becomes apparent how an independent judiciary is an absolutely, non-negotiable, fundamental part of a healthy, functioning, democracy. It maintains the balance of power by making sure the state keeps to the law (i.e. by checking that the state is rationally exercising only the powers the Constitution and law gives it). Thus, the independence of our courts is crucial to protecting our constitutional rights and freedoms. This is no doubt why the Constitution requires of organs of state that they assist and protect the courts to ensure the judiciary’s independence, impartiality, dignity, accessibility and effectiveness (section 165(4)).
Shortage of judges:
Even if the judiciary is independent, it needs enough facilities and judges and other staff to function and dispense justice timeously. The severe shortage of judges is old news. Judges Matter attributes the shortage of judges due to inter alia a surge in South Africa’s population without a commensurate increase in the number of judges, creating long delays (and an overwhelming workload on the insufficient number of judges).
To put the shortage in perspective, Judges Matter points out that last year several gang-related murder trials could not proceed in the Western Cape High Court due to a lack of judges to try them. This caused the trials to be postponed to 2024 and 2025. In a country struggling with an exceptionally high crime rate, this is a critical failure of the criminal justice system. Judges Matter also highlights that the same month saw Deputy Judge President Sutherland (from Gauteng’s Johannesburg High Court) issue a notice to the legal fraternity that the Johannesburg High Court would appoint 29 paid lawyers as acting judges and an additional 46 to act pro bono. The Pretoria High Court is in just as dire straits with current civil trials being allocated a hearing date a whopping five years later in 2029. The Supreme Court of Appeal (“SCA”) and the Constitutional Court are both struggling to fill vacancies too. It has to be pointed out that the JSC received only three nominations for the Constitutional Court vacancy – leading to the Office of the Chief Justice having to readvertise the position. This paints an overall very dire picture of the judiciary’s ability to dispense justice timeously.
Transformation – an ongoing project:
The judiciary’s need to reflect South Africa’s racial and gender makeup is something that must be considered when judges and magistrates are appointed (section 174(2) of the Constitution). Thus, not only are we facing a crisis of too few judges (and court rooms etc.), but we are also seeing the diversification of the legal fraternity and the judiciary happen too slowly. This has led to inter alia the Department of Trade, Industry and Competition Minister, Parks Tau, gazetting the Legal Sector Code – Codes of Good Practice on Broad-Based Black Economic Empowerment last month. This code, welcomed by the Justice Minister, is binding on all organs of state and public entities who will be measured in terms of it regarding their procurement of legal services. It creates the Legal Sector Transformation Fund, which provides financial assistance and support to black candidate attorneys and pupils via, e.g. stipends.
It is submitted that, a big barrier to entry – and, therefore, a contributor to the insufficient transformation of the legal fraternity – is the low pay candidate attorneys and pupil advocates receive. Many graduates find themselves drowning in overwhelming student loans, which renders low-paying or unpaid positions increasingly impractical. In an already competitive job market, where countless candidates compete for a handful of article positions, the prospect of unemployment looms large. While the prescribed minimum wage for candidate attorneys and pupils is now R8000,00 per month (in urban areas) – and this is an improvement – it remains insufficient to allow poor law graduates equal footing with those who can count on their family’s support for a number of years still to come. (Articles generally take two years to complete and pupillage takes one. A car is often a job requirement. Additionally, even after being admitted as an advocate, for example, it takes several years to build up a practice with enough clients to have a sustainable income stream. Thus, family support may be necessary far longer than just the average four or five years it takes to obtain a law degree.) Generally, the conundrum that law graduates from disadvantaged socioeconomic backgrounds face is along the lines of choosing between pursuing articles / pupillage (as the case may be) and obtaining a commercial job as a legal advisor (and immediately walking into a nice salary). Should such graduates also face the pressure of other family members’ financial needs they are expected to help meet once they have a job, the choice of many to not pursue a career in the legal fraternity becomes an understandable one.
While the Legal Sector Code referred to above aims to assist black law graduates from who wish to pursue articles and/or pupillage, it is currently only funded by law firms and advocates. Given that its mandate is wider than just financially assisting candidate legal practitioners, this will likely result in the financial assistance offered to these candidates being insufficient to see them through articles or pupillage.
Conclusion:
The judiciary needs extra judges immediately. The budget constraints to secure more courtrooms, judges and support staff, given the country’s current economic situation, is understandable. Creative solutions that do not compromise the courts’ independence are needed. Asking the legal fraternity to consider working pro bono as acting judges, helps, but is unlikely to supply the sheer number of skilled judges necessary. At the same time, barriers to entry need to be removed. It is submitted that this will assist with transforming the legal fraternity into a more diverse representation of the South African citizenry they serve. This may be unlikely to happen if the minimum wage is merely increased: What is likely to happen in a sector currently under financial pressure, is that firms merely opt to open less candidate attorney positions. This will result in more graduates having to go into the commercial sphere as legal advisors as opposed to becoming attorneys or advocates. I.e. it may achieve the opposite result.
It is suggested that donations to the Legal Sector Transformation Fund be made open to anyone – whether a person or business – and that donations to it be tax-deductible. This will ensure that the Fund has enough income to be effective when funding candidate legal practitioners. It can then also be utilised to fund acting judges. While not currently within the Fund’s mandate, this will allow those in the legal fraternity who may not otherwise be able to work pro bono as acting judges (for a long duration) to do so. The JSC remains in charge of appointments, which will allow the judiciary to retain its independence.