South Africa

Raymond Zondo — 'Judges might have no choice but to take executive to court over judicial independence'

Chief Justice Mandisa Maya. (Photo: Felix Dlangamandla)

6 Sep 2024

Outgoing Chief Justice Raymond Zondo says the executive is delaying efforts to make the judiciary fully independent, which may force judges to take the legal route.

Chief Justice Raymond Zondo says he leaves office “very disappointed” that talks with the executive branch of government to create a fully independent judiciary have stalled.

The creation of an independent judiciary, with full control over its budget and procedures at all levels, was one of Zondo’s key objectives at the start of his term as Chief Justice. The Office of the Chief Justice (OCJ), created during the Jacob Zuma administration, currently handles the administration of superior courts, from the High Court to the Constitutional Court.

However, court buildings, the creation of additional judicial posts and the administration of lower courts (magistrates’ and regional courts) still fall under the Department of Justice and Constitutional Development.

This has meant that when the OCJ wants to resolve issues affecting judges, such as the backlogs currently being experienced in the Gauteng High Court division, it has to rely on interventions from the executive branch.

“Those decisions of creating more posts for judges, those decisions of creating more courtrooms, lie with the executive. And you ask yourself, really, what is the problem? You know, because the judiciary knows the space in which they operate. They know if they need more courtrooms. They know if they need more judges,” Zondo said.

In the Gauteng High Court division, located in Pretoria and Johannesburg, the backlog has reached crisis point, with the Road Accident Fund and other personal injury cases receiving court dates as late as October 2029. Other cases, such as contested divorces and litigation against the police, are being set down for hearing in 2027. Zondo, who previously headed the Labour Court, said the labour division is also experiencing problems with backlogs. Lawyers say the ideal situation would be for a case to go to trial within three to four months.

Read more: How RAF cases are crippling the Gauteng High Court

Raymond Zondo successor, Mandisa Maya The incoming Chief Justice, Mandisa Maya. (Photo: Felix Dlangamandla)

“It’s completely untenable. But the judiciary is left helpless, other than one trying to push the executive to make the decisions that need to be made. To say, better still, give us institutional independence so that we can make these decisions ourselves about matters that affect the operations of courts. Because in other countries, you do find that the judiciary is left to be able to make these decisions,” the judge said.

Asked about previous discussions on the matter, Zondo said that he had met with Ramaphosa as planned after the 2023 Judges Conference. During the conference, Zondo had expressed frustration that the executive was dragging its feet in creating a fully independent judiciary.

“We met on the 13th of December, and we had our preliminary discussions, which appeared to be very positive. I came out of that meeting very encouraged. We had agreed that we would have other meetings soon, but they never happened, despite my making a number of requests for us to continue with those meetings,” he said.

As I leave office, I’m very disappointed with regard to those talks.

Zondo added that incoming Chief Justice Mandisa Maya would have to continue the discussions. “As I leave office, I’m very disappointed with regard to those talks,” he said.

Asked what other avenues are available to the judiciary to force action from the executive, Zondo said judges could rely on public pressure.

“All you can do is tell the public what the problems are and let the public deal with them. Let the public raise these issues with the executive to say, why are you not giving the judiciary the power to do certain things? Why are you implementing these budget cuts on the courts? Because the courts are ending up with backlogs,” he said.

Asked whether the executive might be afraid of a fully independent judiciary, he said: “I don’t know about afraid, but certainly is no there’s no enthusiasm. And if the kinds of delays that we have, that they have engaged in, is anything to go by, it seems to me that they are reluctant to give this institutional independence and that they will only give it under extreme pressure from the public.”

Zondo added that since pressure through bilateral talks is not yielding fruit, the judiciary might need to take a more drastic step of litigation.

“It may well be that they will only do it if the judiciary, like in other countries, like Zambia, go to court to force them. The judiciary would like this matter to be resolved through discussion because that is not ideal. But if it were to happen, it would not be a first. It would not be something that has never happened; because it has happened in Canada; it has happened in Kenya; it has happened in Zambia. It has happened in Uganda,” Zondo said.

Asked how such litigation would play out because the judiciary would be both the interested party and litigant in the matter, Zondo said it could happen “under certain circumstances” relying on the doctrine of necessity. “But one would like to avoid that situation and say, ‘Let’s talk and reach agreement’,” he said.

In 2020, Uganda’s Supreme Court found that budgetary controls from the country’s executive had the impact of jeopardising judicial independence. In a unanimous ruling, five judges set out a timetable for significant changes to be made to ensure that courts were fully independent. In 2023, a similar case took place in the Constitutional Court of Zambia forcing the country’s parliament to amend legislation to allow the judiciary to decide on its own financial needs.

The principle of an independent judiciary is supported by the United Nations and in 2023, the UN’s Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, noted that courts across the world faced challenges to their independence.

“Judicial independence is an issue of vital importance in the shared struggle for the realisation of human rights. It is a bedrock aspect of the right to a fair trial and essential to advance the full range of human rights. Properly understood, judicial independence is a key safeguard against rising authoritarianism and an indispensable element in ensuring justice systems are fit for purpose. It requires attention to the structure of the state and the separation of powers,” she said.” DM

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