Joburg judges are just too tired

Judges at the South Gauteng High Court in Johannesburg are too fatigued, according to one of their bosses. Picture: Timothy Bernard/African News Agency (ANA)

Judges at the South Gauteng High Court in Johannesburg are too fatigued, according to one of their bosses. Picture: Timothy Bernard/African News Agency (ANA)

Published Dec 24, 2023


ONE of the country’s senior judicial officers has warned that judges are chronically fatigued due to their enormous workload and demanded that this be addressed.

Gauteng High Court, Johannesburg, Deputy Judge President Roland Sutherland issued the warning three weeks ago.

Sutherland issued the notice to his colleagues, several state functionaries, legal practitioners and organisations representing them as well as regulatory bodies when he placed a moratorium on case management assignments in the High Court, one of the busiest in the country.

In the notice dated November 29, he stated that the principal role of the judge is to hear a case and hand down a reasoned judgment either there and then or soon thereafter.

”It is no secret that the volume of work in this division [South Gauteng High Court] is enormous and the pressure to enrol cases within a reasonable lead time of a request for a set-down date is stretching the capacity of the bench. The litigating public is not served by a critical mass of chronically fatigued judges,” Sutherland said.

He called for steps to address this problem to be taken.

According to Judge Sutherland, as a result the moratorium on fresh case management assignments shall take effect immediately with the exception of commercial court cases, where the matching of a judge to a case to drive it to completion will continue.

Case management assignments can only be given to permanent judges.

The objectives of case management are, among others, to manage the flow of the case, achieve trial date certainty when a matter is to be heard and disposed of barring exceptional and unexpected occurrences.

Trial dates are then allocated once a matter is certified ready for a trial by a judge during case management after assisting parties involved to get it ripe to be heard expeditiously.

In his notice, Judge Sutherland said the moratorium will be in place until further notice, but cases already under case management shall continue until completion.

”It seems plain to me that the present system of case management is unsustainable. No time in the work programme is allocated to perform this work, a feature which it shares with no time allocated to read appeals or opposed motions or write judgments,” he said.

The court has 40 permanent judges, but they are never all available as they are elsewhere – acting at the Supreme Court of Appeal, the Labour Appeal Court, Land Claims Court, the Special Tribunal, on long leave, or have retired, leaving vacancies.

Judge Sutherland said in the last three months of 2023, 17 judges have been absent for these reasons while 15 will not be present in the first quarter of next year.

”Although the number of absentees varies from term to term, the absentee proportion remains high,” he said.

In addition, there are 10 criminal trial courts presided by acting judges and some by permanent judges, who are not assigned case management duties because they, in addition to presiding in the trial courts and appeals every second week, they also deal with the automatic reviews and the petitions from the magistrates’ courts, bail applications and bail appeals.

In the first week of 2024, seven permanent judges are scheduled to hear criminal trials, which means only 18 of the notional 40 permanent judges are available to be assigned case management duties.

In 2022 there were 100 case management assignments, and by the end of last month there were already 120, which translated to an average of up to seven cases per judge.

”To emphasise, this workload is on top of what they already have to manage. The duration of case management varies considerably, and the intensity and frequency of the interaction also varies,” he said.

Judge Sutherland said one of his colleagues has 27 cases under current management while his personal tally is 19 and that these are from applications that appear meritorious as he routinely declined several which are meritless.

The concerns raised by Judge Sutherland come as two Gauteng High Court, Pretoria, judges – Tshifhiwa Maumela and Nomonde Mngqibisa-Thusi – are facing the Judicial Conduct Tribunal over their failure to, within the prescribed or reasonable time, deliver the reserved judgments, which if established, could prima facie indicate incapacity, gross incompetence or gross misconduct taking into account the extent of the delay and the prejudice suffered by the parties involved.

President Cyril Ramaphosa suspended the duo earlier this year after complaints by Gauteng High Court Judge President Dunstan Mlambo and Judge Mngqibisa-Thusi’s tribunal hearing was postponed to the end of next month.

Chief Justice Raymond Zondo reported that in the second term (between April 10 and June 18), the High Court in Johhanesburg had the highest number of reserved judgments, accounting for 235 out of 1 284, followed by the Western Cape High Court with 118.