In a speech prepared for delivery on Tuesday evening at University of SA’s principal and vice chancellor’s gala dinner in Pretoria, Mogoeng said such disproportion undermined South Africa’s democratic credentials.
“The area of court operations hitherto neglected and resisted has been the institutional independence of the judiciary,” Mogoeng said.
“Institutional independence does, in our view, also rest on section 165 of our Constitution…”
This meant that everything reasonably possible had to be done by all organs of state to allow and help the judiciary occupy its operational space fully.
“No possibility must be left for any organ of State, person or institution to unduly interfere directly or indirectly with court operations,” the chief justice said.
“It was in recognition of this need and the inability of the Department of Justice to serve the courts well over the years, that a national department known as the Office of the Chief Justice (OCJ) was established.”
The judiciary pressed hard for its institutional independence, with there having been “unbelievable resistance from the executive”.
“The transfer of functions to the OCJ with effect of 1 October 2014 is the result of pressure from the judiciary and much-appreciated occasioned intervention by the President [Jacob Zuma],” he said.
A memorandum of understanding was signed in 2012 between the justice department and the OCJ regarding the transfer of judicial entities to within the OCJ’s purview.
“But those functions, personnel and funds were not transferred. A lot of engagement took place and promises were made in between 2012 and the end of 2013,” Mogoeng said.
“On 30 April 2014 a promise of the release of additional functions, personnel and the budget was made in writing.”
However, it took a meeting on August 18 with Justice Minister Michael Masutha and his officials to have the transfer of October 1 “grudgingly take place”.
“I say grudgingly because as at that time it evidently was not in the minister’s plans,” the chief justice said.
“And even in his announcement of the transfer, he was very careful to describe the Secretary General of the OCJ as his proxy who would consult with the judiciary on his behalf.”
Unlike other national departments which were proclaimed, more than four years since its establishment the OCJ did not have a budget of its own.
“And you must visit Edura House, down Fox Street [in Johannesburg], where the judiciary is housed to appreciate the downgrading of its dignity,” he said.
“No other institution like NPA, or any department or Chapter 9 institution is treated like that. We have consistently been told that money is not available for better administration.”
One of the key complaints the judiciary had with being served by the executive over the years was the poor quality of that service.
“People in whose employment the judiciary would have had no say were supposed to provide support to the judiciary,” he said.
“Equipment or tools of trade that are of a poor quality would be procured for us without any consultation.”
The judiciary was denied things it needed to perform its duties, library services would be discontinued without any consultation and the budget cut or diverted without any regard for the leadership of the judiciary.
“The list goes on. This not only undermines the independence of the judiciary, but also its dignity and effectiveness,” said the chief justice.
For every major step or project the judiciary needed to embark on to enhance court performance, unlike the two political arms of the state, the judiciary had to ask for permission and resources.
“For the peace and stability of a country, the observance of the rule of law, the protection of human rights and security of our constitutional democracy, you need an independent, effective and efficient judiciary,” Mogoeng said.
“A weakening of the independence of the judiciary poses a threat to any constitutional democracy, the rule of law, the capacity to stem the tide of corruption and the creation of a peaceful, stable and investor-friendly climate.”