The explosion of litigation over the last several years has been absorbed by our judges and magistrates without a commensurate increase in their numbers. The answer to this is, of course, increasing the number of judges and magistrates. Anyone can tell you that. But the crisis in the judiciary can no longer wait for the treasury and administration to move on that simple solution.
The courts have tried a range of novel solutions, including using academics, senior attorneys, advocates, and retired judges to act in the court without pay – that is on a pro bono basis. Where possible, criminal work is moved to the regional court. However, there are clogs at the regional court as well. The backlog of unresolved criminal cases and the years of detention are good reasons not to use that avenue any further.
This results in completely unacceptable civil trial delays: Civil trial dates are being pushed to as far as 2029. Trials that last more than five days won’t be heard until after 2025.”
This results in completely unacceptable civil trial delays: Civil trial dates are being pushed to as far as 2029. Trials that last more than five days won’t be heard until after 2025.
According to the DJP Ronald Sutherland in Gauteng, even with the utilisation of pro bono additional acting judges of between eight to 10 per week, the court is still not able to deploy enough judges to hear the cases at a rate that can reduce the civil trial lead times. He says “It is estimated that in order to reduce the civil trial lead-time to less than 12 months, we would require about 20 judges in civil trials alone each week. With present resources, we can muster a range of between two and six judges per week during the course of a term to hear civil trials”.
Last month, the President of the Gauteng Deputy Judgeship declared that “unacceptably” long lead times in Road Accident Fund (RAF) matters were becoming more and more of a problem. According to Sutherland, RAF cases had a staggering four years and nine months lead time on the ordinary civil trial roll. The fact that too many litigators lacked confidence in their ability to resolve conflicts through mediation is one factor contributing to the backlog.
Minister Thembi Simelane, Deputy Minister Andries Nel, and Director-General Adv. Doc Mashabane met with Judge President Mlambo and Deputy Judge President Ledwaba in Gauteng They discussed case backlogs and solutions to improve access to justice, according to the DOJ social media account on X.
The Department of Justice and Constitutional Development’s response, two weeks later, is that they are hope to clear the cases congesting the Gauteng High Court (Johannesburg) partly by dealing with the RAF matters. The department’s Director-General (DG) acknowledged that RAF cases are significantly burdening the court roll, especially in Gauteng. He says measures will be implemented to address these challenges, which could free up judges for regular court rolls. The RAF has not indicated that they accept their share in these difficulties, nor have they agreed on what to do.
The DG also referred to the Rationalisation Committee as a solution. Led by former Deputy Chief Justice Dikgang Moseneke, it has reviewed the structure of superior courts to make recommendations. This report has just been completed. Its recommendations are unlikely to be implemented any time soon. Mashabane admitted that there is a budget shortfall, even for appointing researchers for judges. Although offers have been made for providing researchers from universities, that offer has been declined. The OCJ apparently are concerned about the undue influence that such researchers might have. They do not appear to be concerned about judges acting for short periods for free.
Indeed, no one loves the idea of pro bono judges – it is an emergency measure. Independence in the judiciary is made up of a number of elements. The UN Basic Principles on the Independence of the Judiciary state that judges should be appointed based on objective criteria and have fixed and adequate remuneration during their tenure. They should serve for a long, fixed-term, or for life, and are not to be removed from office unless there are capacity related reasons. Lastly, they state that “judges must also have institutional independence regarding administration of courts and assignments of judges”.
Judges acting for short terms on an unpaid basis is a testament to how important they, and we all, think judges are. The willingness to support the system is truly remarkable. However, this broken system needs an overhaul, and it needs it now.”
Judges acting for short terms on an unpaid basis is a testament to how important they, and we all, think judges are. The willingness to support the system is truly remarkable. However, this broken system needs an overhaul, and it needs it now. The reliance on acting judges (who get paid) and now pro bono judges (who don’t) is simply no longer working as a solution for the unacceptable delay in increasing the establishment of judges. It seems that between the Department of Justice, and the Department of Public Works, and the Office of the Chief Justice, our judiciary are falling between three stools. We pride ourselves on our independent judiciary, but we must look the truth in the eye – how independent, and for how long, under these conditions? A polite game of passing the buck can’t be the right answer. In a government of national unity, we need immediate mobilisation of resources across departments to pay for additional judges and our courts.
Judges Matter
www.judgesmatter.co.za
