Chief Justice Mogoeng Mogoeng gave a report at the accountability session of the judiciary held in Johannesburg on 3 October.

By Kgomotso Ramotsho

The judiciary held its second annual Judiciary Day on 3 October in Johannesburg, where Chief Justice Mogoeng Mogoeng held a judiciary accountability session. In his address, Chief Justice Mogoeng said that the judiciary cherishes and treasures the privilege bestowed on them to be the bearers of the constitutional mandate and to be the final arbiters of legal disputes in South Africa (SA). He added that the judiciary appreciates the opportunity to present a report on where they came from, where they are and where they need to be presently.

Chief Justice Mogoeng focused his report on the challenges that are currently being faced in court. He said the reason for this is to focus on the measures of programmes that have been in place and those that are yet to be introduced to reduce inordinate delays relating to the stages at which judicial officers have the clear authority to determine the speed of case progression.

Chief Justice Mogoeng said that the judiciary has decided on court modernisation so that data relating to the registration of cases, the maturity or progression of cases from one stage to the next and reasons for each delay could be captured electronically. He added that an attempt to do it automatically would not only be a laborious exercise but too costly for thinly staffed courts in the country. ‘We know that a full-blown court automation system would not only facilitate e-filing, and easier access to judgments but also capture data that goes into the finer details of each case and the performance of each judicial officer,’ Chief Justice Mogoeng said.

Chief Justice Mogoeng said information in his report was audited for the first time. He pointed out that it was an important step in refining the process and ensuring the veracity of the information presented. He noted that the 2018/2019 report also contained descriptions and explanations for various indicators, to assist those assessing the performance information. He said that using quality assurance tools for judgments – as some people have suggested – would be inappropriate.

Chief Justice Mogoeng gave the example of the Constitutional Court regularly overturning the Supreme Court of Appeal’s (SCA’s) judgments but added that it did not mean that the quality of the SCA’s judgments was wrong. He pointed out that the real test – whatever the outcome – is the soundness of the reasoning and the judicial officers’ apparent appreciation of the legal principle involved. He added that appeals succeed for reasons that do not always have anything to do with one’s competence.

Chief Justice Mogoeng told the Head of the National Prosecuting Authority, Shamila Batohi, that the requirement for prosecutors to rely on the conviction rate as a performance yardstick must be corrected. He said it is not the job of prosecutors to convict, but that of judicial officers. He added that it can never be appropriate to measure the performance of prosecutors based on what they do not do. He pointed out that a prosecutor’s job is to present cases and support an acquittal where the interest of justice would be served by doing so, not to pursue a conviction at all cost.

2018/19 period under review

Chief Justice Mogoeng said during the period under review, the Superior Courts managed to finalise 70% of its reserved judgments. He added that the following targets were not met:

• The Competition Appeal Court’s target was set at 90%, the final audited information showed that 57% of the cases were finalised.
• The performance target for the number of criminal cases on the High Court’s roll for more than 12 months was estimated at 137, however, only 65 cases were finalised in the final audited information.

Chief Justice Mogoeng pointed out that this was as a result of the challenges the judiciary has, which has been exacerbated by an ever-increasing workload.

Chief Justice Mogoeng said that the 17th Constitutional Amendment increased the jurisdiction of the CC, as well as constitutional matters. He added that the court will also have jurisdiction over the matters of general public importance that it chooses to hear. He noted that despite the increase in workload of the court, the judicial establishment has remained unchanged placing increasing pressure on judges to ensure access to justice.

Chief Justice Mogoeng pointed out the fact that all applications to the Constitutional Court must be considered by all or at least eight judges, and the increase in complex matters, including those of highly political characters, are brought to the court. He added that an increase in direct applications, has contributed to the inability for the court to meet its target. He said as a result 490 cases were received by the Constitutional Court but only 370 were finalised within the past financial year. He questioned whether there should be an increase in the number of judges and added that some people are of the view that perhaps the Constitutional Court should merge with the SCA.

The summary of the courts work, is as follows –

• The Supreme Court of Appeal: Finalised 214 appeals of 231 during the reporting period. This is in addition to 1 095 appeal applications received, of which 1 062 were finalised.
• The High Court: Out of the 145 127 civil cases received, 114 650 were finalised and of the 13 140 criminal matters, 10 666 were finalised.
• The Labour and Labour Appeal Court: The court finalised 3 756 of the 5 915 labour matters.
• The Land Claim Court: Finalised 219 of the 354 cases.
• The Electoral Court lived up to its mandate and track-record of finalising all its cases as speedily as it was required to.

Chief Justice Mogoeng said the number of reserved judgments in the Superior Courts is monitored to measure compliance with the set norms and standards and the Code of Judicial Conduct. He added that the report on reserved judgments is also a tool for the Division’s Judge Presidents and all Heads of Court to monitor performance at their specific courts.

Stress management

Chief Justice Mogoeng’s report, among other matters, included a stress management programme for judicial officers. He pointed out that stress on judicial officers as a result of the traumatising cases they deal with, such as rape, murder, and difficult divorce matters requires the introduction of a judicial wellness or stress management programme. He said that it cannot be left to an individual judicial officer to fend for themselves when dealing with stress. He said that it is a work-related challenge that requires an institutional response and has been most impressively done by Australia and Singapore.

JSC

Chief Justice Mogoeng also spoke about the Judicial Services Commission (JSC). He said that the JSC was established to assist with the selection of potential judges before the President makes appointments that would cause the judiciary to be reflective of the racial and gender composition of SA. He added that more still needs to be done in order to ensure gender representation in the composition of the judiciary, particularly at the leadership level in the higher courts.

Allegations of misconduct

Chief Justice Mogoeng announced that most cases of alleged misconduct against judges have been speedily finalised, bar the matters involving judges Hlophe, Motata, Preller, Mavundla, Webster and Poswa. He said these matters have been the subject-matter of a series of legal challenges that led to inordinate delays that nobody could have done anything about. He added that some have argued that judges ought not to be allowed to litigate such matters, however, Chief Justice Mogoeng said this begs the question, in terms of which law?

‘We have no power, as the judiciary or JSC, to deny people their constitutional right of access to courts, just because they are judges. Such a law does not exist. Criticism that assumes that we could have, but failed to, expedite this process can in the very least only be a consequence of ignorance or frustration,’ Chief Justice Mogoeng said.

Chief Justice Mogoeng pointed out that there have been allegations of corruption levelled against certain judges and they have been examined very closely. He added that neither he nor the JSC has the legal authority to look into the bank accounts of his colleagues. He said that it would be a criminal offence. He noted that they have instructed the Secretary-General of the Office of the Chief Justice to ask the National Commissioner of Police to investigate and locate the faces behind allegations of corruption against certain members of the judiciary. He said in his response that the National Commissioner has confirmed that he has referred the matter to the Hawks.

Gender-based violence

Chief Justice Mogoeng touched on sexual offences matters. He said that gender-based violence cases required an integrated approach by all key stakeholders. He added that the following measures could alleviate the problem –

• a public awareness campaign on how to report gender-based violence cases;
• a focused and well-trained unit or a cohort of investigating officers that will deal with only or primarily sexual offences and gender-based violence cases;
• prosecutors that are specially equipped to handle sexual offence and gender-based violence cases;
• judicial officers who are specially trained on the investigation and further handling of such cases with due sensitivity;
• properly trained intermediaries and interpreters to facilitate or ease the appearance and giving of evidence particularly by young complainants;
• revitalisation of Thuthuzela Care Centres and rendering them even more fit for purpose;
• all-round resourcing of key players and facilities meant to handle gender-based violence or sexual offences matters;
• a fresh, sensitive and more responsive approach to domestic violence matters, which extends to special training and inappropriate facilities to enhance privacy and keep the alleged perpetrators in check;
• key role players in the broader justice system and criminal justice system in particular, special arms of state to accept that they have been working in silos; and
• the imposition of firm sentences is indeed one of the major deterrent factors.

However, Chief Justice Mogoeng said that SA’s engagement with jurisdictions, such as Germany, France, the Netherlands and Norway revealed that certainty or predictability of detection, prosecution and conviction if the evidence allows, is the most effective deterrence.

Chief Justice Mogoeng pointed out that it must be stressed that the criminal justice system deals only with the symptoms or offshoots of what really lies at the heart of a deeply troubled society. He said the root causes must, therefore, be programmatically attended to, if real and lasting solutions are to be found. ‘Broadly speaking, it is no exaggeration to say that we are a sick society. Our sickness is responsible for this atrocious behaviour. It must be properly diagnosed for effective medication or treatment to be dispensed and for the sickness itself to be permanently uprooted,’ Chief Justice Mogoeng added.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.