What’s wrong with our courts

It’s not hard to find critics of SA’s judicial system which, until recent times, earned high praise from the United Nations (UN) and featured favourably in the Afrobarometer survey.

The judiciary remains the most trusted of the three branches of government, yet that trust has diminished since 2011, says the UN, as South Africans have lost faith in some of the actors within the system, particularly as presidential compliance with the rule of law was seen to have been rudely flouted during former president Jacob Zuma’s tenure.

A report entitled ‘How to Appoint a Strong Judiciary’, released on Tuesday by the Centre for Development and Enterprise (CDE), details many of the threats posed by an anaemic judiciary to SA’s democracy.

Political interference

Key among these is political interference in appointments to the Judicial Services Commission (JSC), which is loaded with 12 politicians against just five members from the legal profession and academia.

“There are many great South African lawyers who are known all over the world for their abilities who have not been appointed as judges,” wrote Professor Jeffrey Jowell, emeritus professor of public law at the University of London, in 2021.

“One has seen this time and again, where lawyers who would grace the highest courts in any democratic country have been rejected by the South African JSC.”

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Former constitutional court judge Edwin Cameron remarked in 2021 that some lawyers and advocates are “skilled liars, dissemblers, manipulators and propagandists” who have “used the JSC to wreck the advancement of conscientious and capable candidates for judicial preferment”.

CDE executive director Ann Bernstein cautioned that the judiciary in SA has maintained its independence but there are warning signs, now and into the future, over the quality of judicial appointments.

A World Bank study using country-level data has shown conclusively that countries with more effective judiciaries have higher levels of economic growth and business formation.

This is caused by “better enforcement of contracts and more secure property rights … and healthier business environments”.

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Those with money game the system

“Powerful political forces in parliament, elite looters of the state, and other criminals do not want a strong independent judiciary,” said Bernstein.

“There are factions within the ruling party and other parties who don’t believe in the Constitution or the notion of being held accountable by the judiciary.

“The official opposition party [uMkhonto weSizwe Party] has designated to the JSC a disgraced former judge who was impeached for attempting to influence judges to rule in favour of former president Zuma,” she added.

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JSC’s unlawful and questionable decisions

Between 2011 and 2023, there have been at least five instances in which the JSC has either had its decisions invalidated by the courts, or has conceded its shortcomings and settled cases against it.

The JSC’s decisions have been successfully challenged in respect of the misconduct of judges John Hlophe and Nkola Motata, and its process to fill vacancies in 2011, 2021 and 2023.

Hlophe, who recently entered parliament as a member of the uMkhonto weSizwe Party, was accused of interfering in Constitutional Court litigation involving then-president Zuma.

Earlier this year, the National Assembly voted to impeach Motata for gross misconduct some 17 years after crashing into a wall while drunk driving.

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Trust eroded

All of this has weakened trust in the judiciary. Bernstein said the courts are not properly resourced and managed, legal databases are degraded, and support staff lack critical skills and management.

Due to case backlogs, businesses are increasingly avoiding the courts in favour of private arbitration.

Some 20% or 264 judgments had been outstanding for more than six months, according to the 2023 Reserved Judgment Report for the Chief Justice.

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Time to strengthen the judiciary 

Retired Judge Robert Nugent said the way to make the judiciary strong is to ensure those doing the appointments of judges are themselves right for the job. There’s a reason many highly qualified people are not appointed to the JSC, given the often insulting and humiliating selection process involving politicians.

“Most litigation takes place in high courts, [which have] a wide range of cases they have to hear,” said Nugent.

“[Advocate] Geoff Budlender made himself available five times [as a candidate for the JSC] and was not selected. There’s no rational decision for this. People are insulted, humiliated, and quite rightly many do not apply.”

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Clean-up under Zondo

Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said the JSC had been abused in the past until recently retired Chief Justice Raymond Zondo cleaned it up.

The commission was lacking proper systems, rules and procedures, with a code of conduct for those appointed to the JSC, including the power of recall for misconduct.

The Johannesburg courts had hired roughly 40 acting judges to deal with the case backload, more than double the number of permanent judges.

Budlender, speaking at the launch of the CDE report, pointed out that choosing judges is not an easy task, and is dependent on establishing competence, skills and work ethic. What is clear, however, is that the JSC needs more judges than is currently the case.

However, fewer candidates are throwing their names into the hat because they’ve seen the kind of mauling others have received in the selection process.

There appears to be little accountability for delayed judgments, even though the JSC has procedures in place to address this.

Nearly half of the cases before the courts involve the Road Accident Fund. The way to unclog the courts, said Nugent, is to have a properly functioning Road Accident Fund, something that is outside the remit of the courts.

Criminals use their ill-gotten gains to hire large, smart legal teams and often out-gun public prosecutors with limited resources, says the CDE report. SA needs good judges to ensure the public interest is protected in these circumstances. Weak judges can be a threat to the rule of law.

How to fix it

The CDE recommends several steps to strengthen the judiciary, among them:

• Making appointments on national rather than political or sectional interests;
• JSC judicial appointments must be based on objective criteria such as track record, respect by peers, work efficiency and judgment;
• Better JSC leadership by the judge president;
• Reducing the disproportionate political weighting on the JSC in favour of judges, something that will require a constitutional amendment (similar to proposals already in place for the functioning of the Constitutional Court); and
• Increasing research support to the JSC and funding for the courts.

The formation of a government of national unity (GNU) may be the perfect time for this kind of judicial makeover.

This article was republished from Moneyweb. Read the original here.