Load shedding, lack of judges deflate the wheels of justice

The annual report on the state of the judiciary report has blamed Eskom’s power cuts and a shortage of judges for the slow turning of the wheels of justice in most of the country’s courts.

The 2021/2022 judicial report presented by Chief Justice Raymond Zondo, listed the unavailability of courtrooms, lack of judges, defective court recording equipment, power cuts, and natural disasters as some of the causes of delays, especially in the lower courts.

State ‘in breach of the constitution’

Accountability Now’s Paul Hoffman said section 165, subsection 4 of the constitution places it upon organs of state to protect the courts and ensure their independence, impartiality, dignity and accessibility effectiveness.

“You cannot do that when the lights are out all the time, generators are not supplied, air conditioners’ are not working or toilets are not cleaned.

“The working conditions of judges and clerks have over the years become more and more difficult. That shows the government does not want to comply with the constitution, and that is unfortunate.”

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Hoffman said government needed to freshly look into the way resources are allocated for the justice sector.

“Courts can be easily put under solar power systems, the courts are not heavy on electricity usage. Generators can also be used as an alternative but solar for courts would be a sensible decision.”

“The shortage of personnel and judges also does need urgent attention from government. The judiciary needs a lot of attention if its going to fulfill its role properly,” he said.

Superior courts improve performance

The Constitutional Court and the Supreme Court of Appeal (SCA) registered improved targets set for the reporting period.

At the apex court, 389 matters out of a total of 554 were finalised, reaching its annual target of 70%. Cases before the country’s highest court increased by 24% from 445 matters during 2020/2021 to 554 matters during 2021/2022.

The SCA also reached its 80% target by finalising 194 appeals from the 242 case load.

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Specialised courts had varying achievements, with the Land Claims Court the worst performer after finalising only 98 of its 201 cases, registering only 49% in overall performance.

“This is an under-achievement of 11% against the set annual target of 60%. This is due to the fact that the work of the court was severely hampered by the combined impacts of the Covid-19 pandemic and load shedding during the period under review.

“Covid-19 negatively affected the court’s ability to physically travel to adjudicate land claims trials, which could not be heard virtually.

“The absence of a generator until November 2022 meant that often cases could not be heard during the frequent bouts of load shedding during the period under review,” read the report.

The previous 2020/21 period was hammered by the Covid-29 hard lockdown that impacted on the ability of courts to function.

Still no report on lower courts

The judiciary report again excluded outcomes on the over-burdened district courts.

Magistrate’s courts are the lower-level courts and consist of regional and district courts.

District courts have jurisdiction over minor criminal matters and cannot try cases of murder, treason, rape or terrorism. They have jurisdiction to hear civil matters of up to R200,000.

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At a meeting of heads of courts in September last year, it was resolved that the performance information not be published, because of the system failure caused by the hacking of the Department of Justice, according to the report.

“The Heads of the Superior Courts supported this decision as the veracity of the performance information could not be tested.

“It was further highlighted that the performance information of the Magistrate’s Courts is not a proper reflection of the judicial performance.”

Zondo said the exclusion of district courts was “regrettable”.

“We decided that we will only report on those courts that we are able to. Hopefully, the issue of district courts will be sorted out soon.

“It’s a pity they are not included even this year. One would have to chase behind everyone to make sure the report is there in the next cycle,” he said.

Generator for each court ‘unaffordable’

Decrying the severe impact of load shedding on court sittings, Zondo said although the issue is receiving attention from authorities, it would be impossible to buy a generator for each court.

“There are attempts to see whether, for certain courts, arrangements could be made to exempt them from load shedding. We’ve been trying to get generators where possible.

“I am not sure there will be enough budget to buy generators for all the courts.  Loadshedding disruption has a very serious impact on the functioning of the courts,” he said.

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Criminal cases backlog

The country’s high courts have 917 outstanding criminal cases, whereas the total number of backlog cases was 453.

The Gauteng high courts, which are the country’s busiest divisions, led in the failure to reduce backlogs, with the report absolving the judges.

“All the criminal matters falling within the backlog segment are very old. The biggest contributor to the failure to finalise these trials is that defense teams engage in tactics that slow the trials, and in certain instances, force them to be held in abeyance whilst some application alleged to involve constitutional issues are pursued through the SCA and thereafter to the Constitutional Court.

“Another major contributor to the inability of the Judges to finalise these matters is that almost invariably accused persons change their legal teams at any given opportunity.”

The changing of lawyers results in case delays until replacement legal representatives are sourced.

“When new legal representatives are appointed, they always request an opportunity to source the transcript of the proceedings to enable them to come up to speed with the matters.”

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