Strengthen judicial independence before I retire, says Zondo

Outgoing Chief Justice Raymond Zondo says he wants progress to be made on the pressing issue of strengthening the judiciary’s institutional independence before he retires next month. 

Section 176 of the Constitution provides that a Constitutional Court judge serves a non-renewable term of 12 years or until they are 70 years old, whichever comes first. Zondo, who was the chair of the Commission of Inquiry into State Capture, will retire at the end of August after 12 years on the Constitutional Court. 

Deepening the independence of the judiciary was among his key priorities following his appointment as Chief Justice in March 2022. 

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At the Judges’ Conference in December, Zondo issued a challenge to President Cyril Ramaphosa to complete the work that former president Jacob Zuma had started by making the judiciary fully independent. In 2010, Zuma established the Office of the Chief Justice through a proclamation.

“At the Judges’ Conference in December, it became very clear when this issue was discussed that the judiciary’s patience is running out and that the judiciary is beginning to say the executive is not serious about this issue,” said Zondo when presenting the 2022/23 annual judiciary report at the Constitutional Court in Johannesburg on Friday.

He noted that in other African countries, judiciaries “have gone to court in order to force the executive to grant the judiciary institutional independence.

“We would like this matter to be resolved through discussion, and we would like the executive to make it a priority.” 

Zondo said he had met Ramaphosa on 13 December to discuss the government’s slow implementation of a judiciary-led court administration model for South Africa.

“[That] meeting went quite well, but we had agreed that there should be another meeting within a few months to take [it] further, and that meeting hasn’t happened in spite of my reminding the President that we need to meet,” said Zondo.

He said he had recently written to the President, requesting another meeting over the issue of the independence of the judiciary, before his retirement. 

“I’d like to make sure before I leave that we have made progress,” he said. 

The publication of the 2022/23 annual judiciary report on Friday came a day after Ramaphosa announced Deputy Chief Justice Mandisa Maya would take over as Chief Justice from 1 September, becoming the first woman to fill the position. She will succeed Zondo as the most senior judge of the Constitutional Court and head of the South African judiciary. 

Read more: Judge Mandisa Maya set to be SA’s next Chief Justice

On Friday, Zondo congratulated Maya on her appointment. 

“I think all of us know how historic this appointment is,” said Zondo. He expressed his appreciation for the “support” Maya had given him in her role as Deputy Chief Justice since September 2022.

Performance of superior courts

“We are frank with you, the people of South Africa. We tell you where we have not performed the way we should have. We tell you where we have performed well. We think you are entitled to know, because you pay our salaries,” said Zondo.

“The overwhelming majority of the superior courts performed excellently — they either reached their targets or exceeded their targets,” said Zondo. 

In the 2022/23 financial year, 11 of 13 performance targets were achieved. Only two performance targets were not achieved; those related to the percentage of finalised Constitutional Court cases, and the percentage to which criminal case backlogs were reduced, said Zondo.

The Constitutional Court finalised 263 out of 481 matters, according to the report. The percentage of finalised Constitutional Court matters was below the annual performance target of 70%, standing at 55%.

“Previously, it had done better than 55%, and this issue is being investigated to establish why exactly there was such a big drop.”  

Zondo said the judiciary had proposed to the executive that “experienced lawyers be employed” to provide support to the justices of the Constitutional Court to deal with the issue of resources.

“We are going to wait to hear from the executive whether they go along with the idea of a constitutional amendment, as well as giving us more resources.”  

Labour court

Zondo said the report indicated there was room for improvement in the performance of finalised labour court matters. The labour court set a “low” annual performance target of 58%, which it achieved, he said.

“It [the labour court] needs more posts for judges to cope with its workload,” said Zondo. He said the labour court had approached the government requesting the creation of more courtrooms and more posts for judges so that more cases could be finalised. 

However, he said the relief sought by the labour court was not being given as “quickly as it should have. There is nothing that judges can do if there are not enough judges and there are not enough courtrooms, and in order for judges to have that, they depend on the executive.   

“With regard to the reduction of criminal case backlogs, the various divisions of the high court had fixed 30% as their target to which they would reduce the backlog. However, collectively they have failed to achieve this target and managed to only reduce the criminal case backlog to 47%. 

“Here, they did not do well.”

The 2022/23 report showed that the Northern Cape Division of the High Court in Kimberley was only able to reduce its criminal case backlog to 69%, against a target of 30%. Additionally, the KwaZulu-Natal Division of the High Court in Durban was only able to reduce its criminal case backlog to 67%, while the Eastern Cape Division of the High Court in Makhanda was only able to reduce it to 65%.

“The judiciary is committed to the reduction and ultimately elimination of backlogs in the various courts,” said Zondo. He said “continuous load shedding” had an “adverse impact on the operations of the courts”. DM