MBEKEZELI BENJAMIN: SA is woefully short of judges
We need more judges and we need them now
Two extraordinary events in the last few weeks have laid bare the severe shortage of judges in SA’s courts.
The first was last week’s announcement by judge Robert Henney that several gang-related murder trials could not proceed because there were simply no judges available to try them at the Western Cape High Court division. He postponed the trials to 2024 and 2025.
The second, was this week’s notice to the legal profession by Gauteng High Court deputyjudge president Roland Sutherland that in the nine-week term that began on July 17, the Johannesburg court would recruit 29 legal practitioners as [paid] acting judges, and 46 more to act pro bono. That is to supplement the 40 permanent judges there, a quarter of whom will be on longleave or acting in appellate courts.
Both the Gauteng and Western Cape high courts have the largest number of judges (80 and 30 respectively) and for good reason: both courts have the highest caseloads. According to the Judiciary Annual Report 2021/22, Gauteng finalised 55,578 civil and 1,031 criminal cases, while Western Cape finalised 14,816 civil and 5,266 criminal cases. But both courts, like the rest of the judiciary, need many more judges to carry this load. It is a countrywide problem.
How did the shortage of judges get to crisis point?
SA society has grown more litigious. Many more disputes that should have been resolved elsewhere are reaching our courts. Take for example the numerous cases filed to challenge the outcome of political party conferences, or the outcomes of votes in parliament. Many of these disputes should be resolved through persuasion and negotiation in appropriate political forums but are ending up before judges. It’s the judicialisation of politics.
Over the last decade, the SA population has grown in leaps and bounds (51-million people per the 2011 Census, versus 61-million by mid-2022). The rates of crime have also increased. The murder rate, which is a reliable indicator, has risen steadily and so has the complexity of crime, for example cybercrimes and corruption. Despite this, the number of judges has largely remained the same — 250 or so since 2010.
Previously both Limpopo and Mpumalanga provinces were serviced by the Gauteng High Court. This changed in 2016, when high courts were established in both provinces. Yet only a handful of new judges’ posts were created, and the majority were recruited on secondment from Gauteng.
Money is also a problem. Since at least 2016, the budget allocated to high court services — via the Office of the Chief Justice, the national government department which administers the higher courts — has largely remained the same or been cut in specific areas. In real terms and adjusted for inflation, the 2022/23 OCJ budget allocation of R2.6bn is only marginally higher than the R1.6bn allocation for the 2015/2016 financial year. The bump is largely due to an adjustment of judges’ salaries which had not increased for several years. (Arguably a violation of section 176(3) of the constitution).
The costs of adding additional judges’ posts to the existing number go beyond the salary spend on each individual judge. There are also the costs of office (or chamber) space and hiring of judges’ secretaries.
Regardless, the bottom line is that we need more judges — and fast.
The obvious impact of the shortage of judges is the long delays in getting cases to court and resolved.
In divorce cases, that means longer periods of uncertainty over crucial issues such as child custody and maintenance.
In the labour court (which only has 13 judges nationwide), we are told that from October 2022 no new trial dates are available until 2024.
In criminal matters, such as the gang murder trials in the Western Cape, crucial evidence including DNA is deteriorating, witnesses die, and the memories of those remaining fade. Accused persons also spend many years in pretrial detention before their day in court.
There is also an impact on the speed at which judgments can be delivered. In his notice, judge Sutherland notes that to improve lead times for when cases go to court, no time is allocated for judges to prepare for cases or write judgments. That means judgment-writing is left for weekends, court recesses and holidays. That means the rate of delivery of those judgments is slower. Indeed, two Gauteng judges have been recently suspended for the slow pace at which they deliver judgments.
All of these have a serious impact on the confidence people have in the judiciary and the justice system as a whole. It also erodes the rule of law.
What is being done to deal with the crisis?
In October 2021, justice minister Ronald Lamola appointed retired deputy chief justice Dikgang Moseneke to chair a committee to rationalise the jurisdiction of the high courts.
There are two parts to the committee’s work.
First, it must analyse the apartheid-style boundaries of the courts and align them with the current provincial and municipal boundaries, based on the needs of the population and access to justice.
Second, it must undertake a scientific analysis of the judicial establishment to determine exactly how many more judges posts we need, taking into account the new boundaries, population sizes, caseloads, and the need to establish new courts to bring justice closer to the people.
The Moseneke Committee has recently (July 28) completed the first part of its work and has made thoroughgoing recommendations such as the establishment of new courts in George in the Western Cape, Welkom in the Free State, Ekurhuleni in Gauteng and, controversially, the relocation of the main high court seat from Makhanda to Bhisho in the Eastern Cape.
The committee will soon begin the second part of its work of determining the exact number of judges needed. This is a long-term project for the overhaul of the judiciary that will take some time to complete. But the crisis of a shortage of judges cannot wait until then.
The most crucial intervention in the short- to medium-term is allocating more money to the judiciary. It sounds simple but that’s because it is.
While we wait for the Moseneke Committee to come up with a long-term solution and tell us exactly how many more permanent judges we need, more paid acting judges need to be appointed.
The Gauteng High Court is already recruiting 29 acting judges for the next term to prevent a complete collapse of its functions. It’s unsustainable — and probably risky for the independence of the judiciary — to rely so heavily on pro bono judges. We need money.
While we do need more courtrooms, the Covid-19 pandemic showed that many cases that do not require witnesses can proceed in virtual court.
What about office space and secretaries? ‘Hot-desking’ is now a common feature in the workplace and judges can share chamber space. There can also be a pool of skilled secretaries to support new acting judges.
Again, all of this needs a modest amount of money. We now need chief justice Raymond Zondo to sit with justice minister Lamola to figure out exactly how much more money is needed and can be found. National Treasury needs to be included. It will need to craft special budget allocations as soon as the October mini-budget, and most certainly by the February 2024 budget.
The national fiscus is under severe pressure, and the economic situation is deteriorating, but the rule of law and people’s confidence in the justice system are indispensable ingredients for economic growth and achieving social justice. You can’t grow business in a lawless country. We need more judges and we need them now.
• Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a civil society organisation forming part of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the South African judiciary.
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