Lockdown highlighted critical challenges on the independence of the judiciary

January 27th, 2021

Chief Justice, Mogoeng Mogoeng, highlighted several critical challenges that the lockdown has had on the judiciary when he discussed the 2019/2020 Judiciary Annual Report.

By Kgomotso Ramotsho

Chief Justice, Mogoeng Mogoeng, said the lockdown, due to the COVID-19 pandemic, has highlighted several critical challenges, which impacted negatively on the independence of the judiciary and its possibility, not only to preserve its independence, but to also execute its judicial and administrative functions more effectively and efficiently. This was said in the 2019/2020 Judiciary Annual Report that was released on 8 December 2020. Chief Justice Mogoeng added that those challenges include the absence of full-blown court modernisation, rule-making authority, and a judiciary-led independent court administration.

Chief Justice Mogoeng pointed out that for years the judiciary has been working to get the court to the point where it would be able to function more effectively and efficiently. He said that court informatisation or modernisation has been identified as critical features of the project. He, however, pointed out that very little progress could be made, owing to underfunding and the State Information Technology Agency’s (SITA’s) initial inability to help the judiciary progress beyond having a concrete plan in place. Chief Justice Mogoeng added that the SITA blockage has since been removed and it was time to advance past the effectually circumscribed CaseLines experimentation stage, and progress towards implementing the pre-existing comprehensive and futuristic court automation plan.

Chief Justice Mogoeng pointed out that during the COVID-19 lockdown, the courts were viewed as an ‘essential service’, and the judiciary did everything reasonably practicable to keep the doors open with limited resources and facilities at their disposal. He added that for the first time in South African history a virtual court hearing was held. He said that the Supreme Court of Appeal fared well, but trial courts, which constitute a major part of the courts system, did not. He pointed out that the weakness borne of the intertwinement, at times conflation, of the role of the executive and the judiciary in the running of the courts became even more apparent when Directives for the functioning of the courts had to be settled.

Chief Justice Mogoeng said that at times, two sets of Directives were issued – one by the Chief Justice and the other by the Minister of Justice and Correctional Services. He pointed out that given that fluidity of guiding roles, some judicial officers and legal practitioners were initially left uncertain, to say the least, as to which Directives were to be followed, particularly in the event of conflict. He added that the experience, points to the need to resolve the underlying problems, which links-up neatly with the need for the judiciary to have rule-making authority. Chief Justice Mogoeng said that court’s rule-making authority could either strengthen or weaken the judicial independence and efficiency and effectiveness of the courts.

In his report, Chief Justice Mogoeng said the solution lies in reverting to the 1965 position where the judiciary had the authority to make the rules that regulated its core responsibility – the functioning of the courts. He added that identifying the need for crafting court rules is the forte of judicial officers as evidenced by the leading role they play in the Rules Board for Courts of Law.

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