Cape Town - As long as the Justice Ministry played a political oversight role, South Africa’s courts would not be truly independent, Chief Justice Mogoeng Mogoeng said on Friday.
Speaking at the SA National Editors’ Forum annual meeting in Cape Town where he delivered a candid State of the Judiciary address, Justice Mogoeng said the ministry’s control of the judiciary’s budget, among other things, undermined its ability to perform better.
“Several years ago, what the judiciary was essentially about was to ensure every court was running smoothly and everyone was allocated cases to adjudicate on, and deliver judgments on time, and that was it,” he said. “There was very little administrative responsibility on the shoulders of the judiciary.”
But that situation changed “somewhat drastically” when South Africa became a constitutional democracy.
Then, ensuring absolute independence in line with the constitution became a focus.
Justice Mogoeng listed a number of ways in which the judiciary was not fully independent, including control over its own budget and appointing its own support staff.
“For a long time, and to a large extent even now, our ability to carry out our case management project efficiently has depended on the executive, who control our budget. They have the authority and power to dictate the pace of courts.”
He said more judicial education “from the district courts up” was essential, adding that rules for the judiciary needed to be overhauled: “There is a bit of a tussle still going on there.”
Justice Mogoeng said Constitutional Court Justice Zak Yacoob was championing the revision of rules and a first draft should be ready around November.
“The sad part is that it will then have to go through the same old route, through the Rules Board and the Ministry of Justice,” he said.
“I don’t understand why the executive has to be involved in making rules about an environment in which they do not operate and possibly know little about.”
Justice Mogoeng specifically bemoaned the rule that attorneys needed to provide a business address that was within 15km of a court when filing summons, calling it a practice that continued to “bedevil the system”.
“This compounds the problem we have, as South Africans, of litigation being far too costly for the average citizen to afford,” he said.
Electronic filing would help make litigation cheaper, allowing lawyers to file on deadline from anywhere in the country.
An electronic archive would also address the problem of disappearing court records.
“Even lawyers, as conservative as we are said to be, have some functional knowledge of computers,” he joked.
Again, though, the problem came down to the budget.
“A lot of money would be required to make (electronic filing) a reality,” he said.
“For as long as we don’t have a budget of our own, we’re going to look like we are not committed to making our courts function efficiently or like incompetent people who are directionless.”