CHRIS OXTOBY: Give those judges a Bell’s — and resources, reform and recourse

Erin Bates’s recent article highlighted the serious challenges under which the judiciary is working, recounting the Office of the Chief Justice’s (OCJ’s) appearance before parliament’s justice portfolio committee and describing a litany of infrastructural and other problems facing the judiciary (“Zondo inherits a dilapidated court system of dodgy phones and broken windows”, May 9).

These include problems with internet access, a lack of library resources, problems with telephones, and fundamental infrastructural difficulties such as inadequate air-conditioning and non-functioning lifts and court recording equipment. The article quoted a judge characterising the situation as part of an “extraordinary degradation of the conditions in which judges are operating”.        

These concerns accord with a recently released research report compiled by the Democratic Governance & Rights Unit at the University of Cape Town on the state of the judiciary in Malawi, Namibia and SA. The report studied the functioning of the judiciary through interviews with court users (both regular people and legal professionals) and judges, in an effort to identify how the judiciaries (focusing particularly on the high courts) in the three countries are doing, what challenges they are facing, the successes they have experienced, and potential areas for reform.   

The complaints reported to the parliamentary committee echo those that emerged from The State of the Judiciary report. In discussing the major challenges facing the judiciary, the main issue identified by SA judges was a lack of access to the necessary “tools of the trade”, with complaints about insufficient online resources and poor digital infrastructure being raised prominently. Judges’ concerns included issues with expired software licences, suspended online services, and questions over the security of email systems. The state of the court’s building infrastructure (including a lack of alarm systems, inadequate security for judges and broken air-conditioning systems) was the second most frequently cited challenge.

A clue to the source of these difficulties may be found in the third major set of challenges identified by judges, namely a lack of communication and responsiveness from the OCJ, which is the national government department responsible for the administration of the super courts. Concerns are raised about a lack of skills to deal with the judiciary’s needs, and an unhelpful and antagonistic attitude when concerns are raised by judges. On one level this is a surprising finding, as the OCJ was specifically established to provide administrative support to the chief justice (and the rest of the judiciary) in the exercise of their judicial functions. Based on the findings of the research report and on the proceedings before parliament, this task does not appear to be being fulfilled.

This issue highlights that the governance and administration of the judiciary remains an issue where significant reform is still required. The establishment of the OCJ was meant to be the start of a process that would vest the running of the judiciary in the hands of the judges themselves. However, more than a decade later the process remains stalled, with responsibility for different aspects of the administration and governance of the judiciary split among the OCJ, the department of justice, and the department of public works.

The accounts given to parliament, and the findings from The State of the Judiciary research, make it clear that this is a system that is not working and is in urgent need for further reform. During his interview before the Judicial Service Commission in February, chief justice Raymond Zondo said the judiciary had presented its views on the future governance model of the judiciary to the executive. It is crucial that this reform process proceeds apace, and addresses the significant challenges the judiciary is facing.      

Despite these challenges, there are many positives about the functioning of the SA judiciary that emerge from The State of the Judiciary research. For example, 84% of court users (and 78% of legal professionals) surveyed agreed that judges understood and applied the law correctly, while four out of five respondents agreed that judges did not let their personal feelings influence their decisions. A large majority of SA court users said they found court proceedings clear and easy to understand, and felt judges listened to all sides before coming to a decision. And compared to the other countries surveyed, SA court users were least likely to say cases were unnecessarily delayed.

It is also encouraging that virtually no instances of judges experiencing any significant interference in exercising their judicial functions were reported. Similarly, few respondents reported experiencing any incidents of corruption in the court system. This is, of course, not to suggest the judiciary does not face significant challenges. There are issues raised by the report, in addition to the questions of resources and infrastructure, that will be of concern to the judiciary. While most users felt that the court system treats men and women (68%) and different races (70%) equally, only 47% of court users surveyed felt rich and poor people were treated equally. And among judges, there was dissatisfaction with a lack of cost-of-living adjustments to their salaries.

It is nevertheless commendable that SA judges have been able to deliver a high quality of justice in spite of the infrastructural and other constraints they are working under. However, this should not invite complacency in dealing with the resource and infrastructure challenges that are plaguing the judiciary. Addressing these, and addressing core underlying questions about the governance and administration of the judiciary, are crucial if the judiciary is able to retain the confidence of court users.

• Oxtoby is a senior researcher in the democratic governance & rights unit of the University of Cape Town department of public law.