editorial

Healthy societies can only be built on pillars that include peace and security, respect for human rights and the rule of law. It is the entrenchment of the law and the deepening of the capacity of the judiciary that enables a country to flourish. True democracy cannot exist without it.

South Africa’s Chief Justice, Mogoeng Mogoeng, explains that where the rule of law is observed, little or no room exists for unconstitutional regime change or election rigging. ‘This is so because courts can always be approached to ensure compliance with the regulatory framework that governs elections and a change of government. Proper observance of the law deepens democracy because it enables the holding of free and fair elections regularly and as prescribed.

‘Additionally, government and democracy-supporting institutions ensure compliance with the Constitution and the law.’

The Constitution upheld by South Africa is considered one of the most progressive in the world – so much so that US Supreme Court Justice Ruth Bader Ginsburg has heralded it as ‘a great piece of work’. What makes it so, says Mogoeng, is that the aspirations contained within are being given practical expression.

‘Millions of houses have been built for the poor; water and power are being rationed out to the financially under-resourced; and free education and medical treatment are enjoyed by the indigent and children of those earning below the breadline. However, as with all systems, while the Constitution is not perfect, it is innovative and broadly a well thought-out and thorough programme that is directed at meeting the needs of the economically disadvantaged,’ he says.

The checks and balances that South Africa maintains to ensure its Constitution is upheld encompass foundational values of openness, responsiveness and accountability – and these in turn enable good governance.

This is achieved through a number of institutions that have key responsibilities to ensure the strength of South Africa’s constitutional democracy, such as the nation becoming arguably the first on the continent to insulate judicial independence.

With that comes a deeper understanding of just how crucial the rule of law is. ‘Duly promoted and properly enforced rules of law translate into no single individual being able to exercise power that he or she does not have,’ says Mogoeng. ‘There should be no opportunity for anyone to disregard laws or disobey court orders.

‘The rule of law effectively outlaws the impunified abuse of power or government resources. This applies anywhere in the world and is why Constitutional Courts are generally vested with enormous powers.’

The Constitutional Court is the supreme law in South Africa. It is empowered to declare any law or conduct that is inconsistent with the Constitution to be invalid.

In Mogoeng’s words, ‘it bears the responsibility of being the ultimate guardian of the Constitution and its values, as well as ensuring that all branches of government act within the law in fulfilling its constitutional obligations’.

The onus of constitutional enforcement falls to nine judges under the Chief Justice and his Deputy. Appropriately qualified, fit and proper persons are initially nominated by the Judicial Service Commission, after which the public and legal bodies have an opportunity to comment on the suitability of the candidates.

After a public interview and the presentation of 12 candidates (three more than are required), the President of South Africa makes the final decision on the nine appointments. ‘Judges are required to take an affirmation – or oath of office – to uphold and protect the Constitution and the human rights entrenched therein, as well as to administer justice to all persons alike without fear, favour or prejudice,’ says Mogoeng.

‘We take our oath of office and judicial independence very seriously and will do our utmost to protect it.

‘I deal with the matters that come before the Constitutional Court in terms of the law, irrespective of who the parties are – and that’s the principle that is applied to all judges in the country.

 ‘In being head of the Constitutional Court, I am responsible for presiding in court and the allocation of cases to judges of that court.’

Mogoeng’s role is far greater than the constitutional arena, however. His role as head of the judiciary includes presiding over the Heads of Superior Courts meetings, the latest of which indicates the collective judges’ unwavering commitment to ensure justice towards the South African populace is dispensed.

‘We have also committed to the development of a system that will allow the judiciary to communicate issues relating to our performance; the use, adequacy and inadequacy of the budget available to us; as well as the infrastructural, logistical and judicial capacity-related challenges we face,’ says Mogoeng.

These are issues the entire continent’s judiciaries face and why the Conference of Constitutional Jurisdictions of Africa (CCJA) has been a catalyst in unifying constitutional justice and arbitration across its member states.

At the time the CCJA was established (in 2011) by presidents and representatives of African constitutional jurisdictions, there was a dire need to promote constitutional justice across the continent.

Mogoeng has served as one of the organisation’s Vice-Presidents, and at the 4th CCJA Congress he was expected to be elected its President. In this capacity, he is cognizant of just how vast and intimidating the jurisdictional diversity in Africa is, as well as the value of the economic advances experienced over the past five years, which have played a significant role in effective and efficient change to African legal frameworks.

‘Judicial independence and the speedy delivery of quality justice to all in an effective and efficient manner has a very important role to play in creating the stability and investor confidence to incentivise more – and new – investment or capital injection in an economy,’ he says.

Whether real or perhaps imagined, the perception that African jurisdictions are (among other issues) corrupt, not impartial and unreliable given political instability or civil unrest has been a factor that has restricted corporate investment.

‘The reality is that the corporate world and potential investors ordinarily require a particular environment to settle down, particularly in developing countries,’ says Mogoeng.

‘Broadly speaking, the environment they tend to insist on is one where peace, stability and constitutionalism exist – and where the rule of law is observed.

‘The success or failure of business often depends on the type of judiciary a particular country has. A compromised or corrupt one could easily ruin an otherwise flourishing business depending on what its members have been offered.

‘A judiciary that lacks independence could shipwreck an investment, depending on who has the capacity to blackmail or intimidate its members or even grease their palms.’

This is something Mogoeng is sincerely passionate about. His view is that in many respects there is a lack of enforcement of corruption-busting legal machinery.

‘Africa desperately needs a truly independent and efficient judiciary in each of its nations to create peace and stability,’ he says.

‘I have no doubt that when citizens know that there is an effective and efficient court system in their country, and that arrest, prosecution, conviction and sentence for the guilty is predictable, then corruption and crime in general will decrease.’

According to Mogoeng, the theme of the 4th CCJA Congress – namely Strengthening the Independence of the Judiciary and Respect for the Rule of Law – highlights the significance of the role of African Heads of Courts in terms of being able to influence legal frameworks that effectively have the ability ‘to see all our courts and arbitration systems characterised by impartiality and real justice’

Private Bag X 1, Constitution Hill, Braamfontein, 2017
Tel: +27 (0)11 359 7400
[email protected]
www.judiciary.org.za

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Justice can only be served when citizens are exposed to and experience good practices. In this vein, South African courts have taken the lead on the continent for entrenching socio-economic rights that bridge the gap between policy and practice.

The connection between the rule of law and access to justice is intrinsically linked to inclusive development. The enhancement of judicial systems ultimately serves to protect human rights, and while no constitutional or legal act can completely eliminate poverty, crime or unemployment, for example, what they do together is provide the frameworks for functional systems necessary to ensure the expansion of sound and effective political, civil, social, cultural and economic rights.

South Africa, not unlike many of its continental counterparts, has been working for more than two decades to enhance its judiciary – one that previously included legacies of disadvantages and incapacities. However, the country now has a Constitution and Bill of Rights that Chief Justice Mogoeng Mogoeng says ‘any African country desirous of strengthening its democratic orders would find aspects of it worthy of incorporation in its own constitution’.

No matter how great, however, a constitution requires the support of a strong and expansive judiciary, and in South Africa’s case, this is played out in the Constitutional Court, Supreme Court of Appeal, the divisions of the High Court and Specialist Courts, such as the Labour and Labour Appeal Courts, Competition Appeal Court, Electoral Court and Magistrates’ Courts.

This is in addition to any other court established in terms of an act of Parliament, such as Traditional Courts, Community Courts, Small Claims Courts and Equality Courts.

Judges (other than the Chief Justice and their Deputy, the President and Deputy of the Supreme Court of Appeal – who are appointed by the president of the country) are nominated by any person or legal body following a call for nominations by the Judicial Service Commission, which is chaired by the Chief Justice.

According to Mogoeng, the shortlist is reached after a public interview process with successful candidates recommended to the head of state for appointment in superior courts. ‘Unless there is a requirement for specialisation in a particular field, the only requirement is that candidates for judicial appointment must be adequately qualified, fit and proper persons, except in the case of the Labour Court, which requires nominees to have knowledge of labour law,’ he says.

It is the judges that heed and apply the government’s directive to follow global best practices, which in turn has resulted in improved operational systems in the higher courts.

One of these addresses the length of procedures – something that South Africa had been criticised for in the past.

Mogoeng says that over the last several years judges have been empowered to take control of the process of ripening cases for hearing, the result of which is that there is no room for a case to be set down for hearing unless all preparations necessary to obviate delays have been made.

‘This system has been a resounding success elsewhere on the continent, and it is yielding admirable fruits in South Africa. Not only has case finalisation improved significantly, but the waiting period for the enrolment of cases has also been reduced.

‘We now have a system that does not allow a case to be enrolled for hearing without certification of trial readiness by the Head of Court.

‘In support, we are introducing innovations that include electronic filing and record-keeping, as well as including norms and standards with specific timelines for cases to be finalised,’ he says.

The establishment of the National Efficiency Enhancement Committee (NEEC) further brings together all stakeholders in the judicial system to deal with existing bottlenecks and identify solutions, which Mogoeng says has cascaded down to the Provincial and Regional Efficiency Enhancement Committees, both of which report to the NEEC.

In addressing other judicial hiccups, a Heads of Superior Courts meeting is held annually. In the most recent meeting, one of the focus areas was on the accountability, monitoring and reporting by the judiciary. Mogoeng says that a strategic document is also being prepared that will outline court performance targets and how to report on those.

‘We have been taking stock of how our courts perform, identified problematic areas related to reserved judgments and case backlogs, and committed to adopt the best and excellent pockets of practice experienced in divisions of the High Court,’ he says.

‘Finalising our strategic plan will greatly enhance the efficiency and effectiveness of the courts by fulfilling a role that complements norms and standards. Further, the plan will facilitate greater openness, transparency and accountability, given it will be shared publicly – providing knowledge of how individual judges and magistrates carry out their duties.’

A matter of concern for the Heads of Superior Courts is the persistent problem of overcrowding in prisons. ‘This issue is exacerbated by awaiting trial inmates whose matters were enrolled prematurely and at a time when investigations where not completed,’ says Mogoeng. ‘Suspects also tend to be arrested and detained in circumstances that can be avoided.

‘Our consensus is that we have to encourage our law-enforcement agencies to desist from such practices and embrace more fully the concept of presuming innocence until proven guilty.’

The latter point can certainly be applied to the number of fraudulent Road Accident Fund cases and medical malpractice suits that make their way into courts, resulting in wrongful arrest and detention. Of this, Mogoeng says his colleagues determined that there is a need to be more vigilant than ever in scrutinising settlement amounts and filtering out fraudulent court orders.

‘Almost all these issues are included in the draft strategic plan, which will be finalised as soon as we have taken into account the views of judges in the various courts.’

Repositioning a judiciary as independent and ensuring the rule of law is respected is no easy task, nor is it a speedy one.

It goes without saying that it requires an ongoing expansion of fair and just judicial powers, a holistic approach to the rule of law, and the embrace by all in recognising that judicial operatives are agents of positive change.

Private Bag X 1, Constitution Hill, Braamfontein, 2017
Tel: +27 (0)11 359 7400
[email protected]
www.judiciary.org.za

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