KEEPING SOUTH AFRICAN JUSTICE ALIVE AND ACCESSIBLE

Keeping South African justice alive and accessible

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Faced with the injustices of an undemocratic South Africa from a young age, a little boy, who had witnessed his grandfather’s unfair treatment from the people who were charged to protect him, has grown up, and he has become the man responsible for ensuring justice for all.

Chief Justice Mogoeng Mogoeng, born in Goo-Mokgatha village, located northeast of Zeerust, looks back on the incident that would later shape his life as if it had happened just the other day, remembering what would, otherwise, have been a normal day with his mother and grandfather, helping to herd their cattle.The police came and asked my grandfather for his ID Document, and he explained to them that he had left it at home. Instead of taking him home so that he could fetch it, they buckled him up in the back of their van and took him to the police station, which was quite far compared to the short distance to our home.“We had a very close relationship, I loved him dearly and he loved me dearly. I was traumatised because I looked up to him, he was my mother’s father and the treatment that he received from these police officers was so shocking that I cried, I just couldn’t believe that an elderly person would be treated in this manner by people who were his junior,” he says.

It was at this moment that Mogoeng vowed to fight for justice for everyone, regardless of their race or gender, starting with the struggle to free the country from the grips of the apartheid regime.“Before I even started to study law, I was actively involved in the struggle. What drove me then, and what still drives me now is the memory of the multitude of people who suffered, and others who died, just so that I could, one day, practice law freely in South Africa. I know that others sacrificed for me to be able to be anywhere I like in this country, for me to be able to be a Judge—I think I owe it to those who have sacrificed, those who have died and their families and the nation of South Africa to take the struggle where they left off and make my own contribution to the betterment of the country,” says Mogoeng.

“In these current circumstances, where I don’t stand the risk of being arrested for doing the right thing, the possibilities of what I can achieve are unlimited. The chances of getting myself into trouble are remote, compared to the challenges that surrounded those who have gone before me. So what reason do I have, then, for not doing the right thing? This is what drives me every day and I am committed to doing everything within my limited power to make sure that justice in this country remains as pure as it was designed to be. And it is this vision that drives me to make sure that as many people as possible have access to justice,” he adds.

In 1983, Mogoeng graduated from the University of Zululand with a B Juris. In 1985, he completed his LLB at the University of Natal, Durban. In 1989, he completed his studies at the University of South Africa, where he studied an LLM, concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure. In 2013, the University of the North West awarded him an honorary Doctor of Laws (LLD).Mogoeng started his professional career as a Supreme Court prosecutor in Mafikeng. He then practised as an advocate in Johannesburg, later becoming a member of the Mafikeng Bar Association—known as North West Bar Association today—until May 1997.While there, he served as the Deputy Chairperson of the Bar Council and as the Chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. In June 1997, he was appointed as a Judge of the North West High Court, Mafikeng. He was also appointed a Judge of the Labour Appeal Court in April 2000 and in October 2002, he was appointed Judge President of the North West High Court.In his capacity as the Chairperson of the North West Provincial Case Flow Management Forum, Mogoeng hosted annual conferences attended by key role players in the justice system. These conferences addressed issues like the efficiency and effectiveness of the justice system, restorative justice and non-custodial sentences, access to quality justice and building the capacity of intermediaries and probation officers. He also organised joint workshops for Judges and Magistrates on leadership and sensitivity training as well as workshops for Magistrates on judgment writing and trial administration.

Mogoeng was appointed to the Constitutional Court in October 2009. “I was also the Chairperson of the North West Parks Board, the Chairperson of the Agricultural Services Cooperation, the Chairperson of the North West Agricultural College and High School, as well as other Provincial Government Institutions, and Dirapeng Pty Limited. These roles really prepared me for my leadership role. “I was Judge President for seven years before I became Chief Justice. And as Judge President, you participate in a structure of leaders of the Judiciary known as Heads of Court. There, you interact with the Chief Justice, the President of the Supreme Court of Appeal and other Judges President, and I believe that that experience helped to sharpen my leadership capabilities. When I was appointed Chief Justice, I already had a fair sense of what challenges the Judiciary was facing, both the Magistracy and the higher Judiciary. I knew what needed to be done in order to help the Judiciary perform better, and what changes were necessary to improve and enhance our capacity to deliver quality justice to all the people,” he explains. In his current role, Mogoeng is now responsible for ensuring that all courts in the country perform to their best, that all the necessary systems are in place to help these courts, and that there is an effective administrative system in place to provide a quality justice system for all South Africans.“As Chief Justice, you also become the link between the Judiciary and the other two arms of the State and, of course, other jurisdictions in Africa and outside of Africa. My responsibilities also expand to chairing the Judicial Service Commission as well as the South African Judicial Education Institute,” he adds.

How does the Judiciary work?

The Judiciary is the ultimate guardian of the Constitution, tasked with the hefty responsibility of ensuring that the Constitution becomes a living document, guiding and informing organs of state and all their functionaries. “This applies to all the authorities upon whom obligations have been imposed to settle issues, to settle disputes whenever they arise as a result of either the failure by organs of state to fulfil their obligations or in inadequacies in the manner in which obligations have been fulfilled where an attempt has been made to fulfil obligations. We have a responsibility, in other words, to also ensure that everybody does what the Constitution requires of him or her to do,” he says.

In South Africa, the Constitutional Court is the highest court when it comes to the interpretation, protection and enforcement of the Constitution. The Supreme Court of Appeal, which sits in Bloemfontein, is the second highest court with regard to all other matters and it can hear and decide an appeal against any decision of a High Court.Decisions of the Supreme Court of Appeal are binding on all courts below it and the decisions of the High Courts are binding on Magistrates’ Courts within their areas of jurisdiction.With regard to the selection of our Judges, a number of parties are involved. There is the Judicial Service Commission, which is chaired by the Chief Justice and also serving there are the Minister of Justice and Correctional Services, the President of the Supreme Court of Appeal and the Judge President representing the body of Judges President, several members of the National Assembly, several members of the National Council of Provinces, both from the ruling party and the opposition parties, and presidential appointees who are lawyers.“There are also representatives of the Attorneys’ Profession, as well as representatives of the Advocates’ Profession and one representative from academia and, of course, in circumstances where the appointment relates to the High Court, you would have a team here of that province. The Judge President and Premier of that province also sit as members of the panel,” Mogoeng explains.In circumstances where there are appointments to either the Labour Court or the Labour Appeal Court, there will also be a representative from NEDLAC, who is allowed to pose questions but does not have the right to vote.

This body will, after interviews, deliberate and make recommendations to the President, which are conveyed by the Chief Justice. In the case of the Chief Justice, the Deputy Chief Justice, the President of the Supreme Court of Appeal and its Deputy, the President will make his nominations, unlike the other posts where they must be advertised and candidates get nominated,” he says.  In the case of Magistrates, interviews and recommendations are done by the Magistrates Commission, and these appointments are not made by the President but by the Minister of Justice and Correctional Services.All courts are important, and equally important. It is just that they fulfil different roles. But no role is more important than the other. They play co–equal roles. Suitability for appointment requires the same core values, which are competence, integrity, hard work, and humility. There’s simply no room for arrogance in the South African Judiciary,” Mogoeng says.

Challenges facing SA’s Judiciary

“I don’t think we face any major challenges, at least none that are out of the ordinary. Whenever any court anywhere in the world delivers a judgment that has far-reaching implications, the reaction or response by those who are unsuccessful in that litigation is predictable. Whether it’s a private individual, an institution or an arm of the state, nobody enjoys defeat. Nobody enjoys paying the resultant litigation costs. Nobody enjoys disappointment. I wouldn’t say that we have had any serious challenges to contend with. What we experience the most are expressions of disappointment,” says Mogoeng. Each year, the Heads of the Superior Courts meet to discuss matters concerning the Judiciary, the effective and efficient administration of the courts and speedy delivery of access to quality justice. At the first meeting held in 2017, Mogoeng outlined the Judiciary’s programme for the year, highlighting a number of concerns he and his colleagues intend to tackle in the coming months.

One of the major problems he highlighted was the Road Accident Fund, where cases are often dragged out unnecessarily, severely impacting the legal costs involved.“We would set the cases down for hearing and set aside a number of days for these cases to be heard, only to find that on the day of the hearing, the RAF would settle. Now, that has had a profoundly negative impact on the court rolls, because you take a Judge away from other work to deal with these cases, only to find that RAF knew all along that they would not proceed with their case, and that they were going to settle it. But they wait until the last day to signify their intention to do so,” he says.According to him, the second problem identified by the Heads of Court are exorbitant settlements, resulting in the RAF now not being able to pay claims as a result of a lack of funds.“It has become necessary for the Judiciary to be more vigilant in scrutinising or examining the settlement agreements arrived at or reached in relation to the Road Accident Fund.“There have been many problems in so far as the Road Accident Fund is concerned. We are now trying to have the Road Accident Fund develop the capacity to process their cases properly, while also ensuring that the time of the Courts is not unnecessarily wasted by their failure to reach an agreement earlier when circumstances permit,” he says.Another issue highlighted by Mogoeng during the press conference is overcrowding in prisons, with police often too eager to make an arrest. According to him, police immediately arrest a person once they are believed to have committed a crime and this practice puts unnecessary pressure on the court system.

“Any arrested or detained person must be brought to court within 48 hours. When they are brought to court, a Magistrate must be available to postpone the case but, quite often, people will apply to be released on bail or to be warned to appear before the court. This, in turn, requires evidence to be led. The result is that a day, or even days are spent working through these cases when there are other cases that are ready to be tried waiting for their turn,” he explains. But there is another problem, he says, as correctional facilities are overcrowded, and these hasty arrests only add to an already uncontrollable population in these facilities.“If the police, in some cases, were to make an arrest only after the investigation was complete, we would not have this problem. As a result, we now face correctional facilities that are overcrowded and court cases that take too long to be finalised, mainly because they are competing for Magistrates, who are few in number. If the police could arrest and detain only when it’s unavoidable, this would alleviate these problems,” Mogoeng says. Court facilities have also proved another challenge but Mogoeng says the Department of Public Works has been very helpful so far in addressing this issue. A number of courts needed courtroom space. Some court buildings have burned to the ground and others are dilapidated. But through a now solid partnership, processes have been put in place to ensure that those courts, where there are infrastructural challenges, are attended to.“We do also need to address the current judicial capacity. We are looking at the additional capacity needed. We need more Magistrates and more Magistrates’ Courts. Looking at a number of larger divisions of the High Court like Gauteng, both Pretoria and Johannesburg, Durban and Pietermaritzburg and, to some extent, the Western Cape as well, we will need more judicial capacity, because the workload has grown significantly.“The challenge, now, is providing the President and the Executive with a convincing report to explain why we need more Judges, courtrooms and offices,” he says.

Justice for Africa

An honour and a highlight in his career, Mogoeng was recently elected President of the Conference of Constitutional Jurisdictions of Africa (CCJA) at its fourth congress held in Cape Town. Previously serving as Vice-President under the outgoing President, Marie Madeleine Mborantsuo of Gabon, he will serve in this new capacity for two years. 

The CCJA, established in 2010 by constitutional judiciaries in Africa, was born from a desire by the African Union to assist the continent in strengthening its judicial mechanisms against corruption and state abuse.“The CCJA is also there to strengthen constitutionalism, to promote human rights and the observance of the rule of law. It was inspired by the need to set up a structure, a judicial structure that would help to give practical expression to the African Charter on Human and Peoples’ Rights. There are many challenges in relation to judicial independence in Africa, the training of Judges, the manner in which Judges are appointed, terms that are renewable and even the security of Judges.“In circumstances where Judges are not able to protect themselves, it becomes the responsibility of the CCJA to find a way—a less intrusive way—of intervening so that Judges can operate in a somewhat comfortable space,” he says.The CCJA also provides a platform for Judges to exchange best practices, share experiences and strengthen each other.

“I have a host of colleagues coming here, asking for help from South Africa and they want us to show them how to go about creating systems in their own countries to enable their courts to function better. This last meeting was amazingly rewarding,” Mogoeng says.The theme for this year’s conference was promoting judicial independence and the rule of law. According to Mogoeng, the engagement and quality of the presentations were very high.“Participation was just incredible, the attendance, the interest that has been generated by this Congress is just unbelievable. It’s been an enriching experience and it will continue to be so. I have no doubt that all African jurisdictions will never be the same after this meeting. This year, we invited jurisdictions that have not yet joined the CCJA and after the conference, nine of those had elected to join,” he says.According to him, the outgoing president joined him in a meeting with the representatives from these jurisdictions, including Botswana, Seychelles, Swaziland, Namibia, Zambia, Libya, Equatorial Guinea and Zimbabwe, during the tea break and each and every one expressed their gratitude for the invitation by Mogoeng and how they had benefited by simply participating in the conference.Security of tenure for Judges is not a problem in South Africa. But in some African countries, Judges often have little protection when it comes to the security of their jobs.

Mogoeng says that it is our constitutional arrangements that ensure our Judges and Magistrates are well catered for in South Africa. According to him, Supreme Court of Appeal and High Court Judges may retire at 65 if they have already served for 15 to 20 years, but they may serve up until the age of 70 if they so wish.Judges from the Constitutional Court serve a non-renewable term of 12 years if they were already a Judge for at least three years when appointed. “We have got no reason to complain as far as our remunerations are concerned and it’s difficult to remove a South African Judge or Magistrate from office. So we are fairly comfortable. But we know that there are a number of jurisdictions in Africa, which don’t have any security. With others, their terms of office are renewable,” he says.“A non-renewable term would, however, serve the independence of the Judiciary much better. There are challenges relating to independence where some of the people who are Judges are not actually trained lawyers. So how do you deal with legal issues when you don’t know the law? Some countries do not have institutes for the training of Judges. A forum like this where we can extend the facilities we already have to other jurisdictions is helpful. We are able to come to an arrangement and invite them here for training,” he adds.To this end, the South African Judicial Education Institute Act has a provision that allows other countries to receive training. Judges from Namibia and Botswana have already received training and Judges from other jurisdictions have started showing interest in participating in some of the institute’s programmes.

Mogoeng believes that South Africa’s own painful experience, its history before it became a true constitutional democracy, has shaped not only the kind of highly progressive constitution that we have but also the institutions that we have in place to strengthen and promote our constitutional democracy in future.“Because our experience was very painful and they are still relatively fresh, we are energised to make sure that our constitutional democracy is not a democracy in name only but in reality. We need to share our experiences in terms of the progress made in strengthening our democracy with our sister countries in Africa. We need to show them what we have been able to achieve. For as long as they think it can work for them, we’re willing to share our experiences.‘”Some colleagues were here to say, ‘We like what you are doing in terms of the national efficiency enhancement committee and your provincial efficiency enhancement committee, can you tell us how to go about establishing similar structures in our jurisdictions? We also know of countries that turn to South Africa because they like the way we appoint Judges. I don’t want to name names but we also know of a country that has adopted a judicial appointment mechanism that is essentially identical to that of South Africa. We shared our experiences with them and they took what we showed them and established their own. There are others who simply want to further improve the operations of their courts and they approach us for help,” he says.

Other countries look to South Africa as an example when taking the institutional independence of their Judiciary several steps forward, specifically the Office of the Chief Justice as the administrative arm, learning from its structure, and how it operates. “In that way, we’ve been able to play a meaningful role at a regional level and at a continental level.“Even some jurisdictions outside of Africa have approached us for intervention. Whenever the Conference of Chief Justices of Asia and the Pacific have their meetings, they have almost, without fail, invited South Africa as the only African country to come and participate, sharing our views with them in relation to how best their systems could be improved,” he says.Some Judges of the European Court of Human Rights also recently approached Mogoeng, asking for assistance because judicial independence was non-existent in at least two countries there.“They approached South Africa because they knew that our courts enjoy a high level of independence."We had the opportunity to share our views with them. We were also humbled to learn from the jurisdictions represented at the European Court of Human Rights that our jurisprudence, our case law, is often referred to at that level, at a continental level there. So the South African Court system has indeed contributed significantly, not only to the development of the jurisprudence of other countries and continents but also in terms of the best practices and the court system that operates in our country,” says Mogoeng.

Personal success for Mogoeng

Mogoeng took over as Chief Justice on 8 September 2011, at a time when the South African Judicial Education Institute had never operated at all. In the space of just three months, he ensured that the country had a fully-functional institute, offering programmes to Judges, Regional Court Magistrates as well as District Court Magistrates.

Under his leadership, the establishment of the National and Provincial Efficiency Enhancement Committees has also helped the court system dramatically. This is a forum led by Judges. These committees look for solutions to challenges relating to the speedy finalisation of cases and these solutions are jointly put forward by all key role players in the justice system.“The drafting and publishing of a document, which explains how cases are expected and required to be processed within what timeframes, what case management system ought to be put in place to help the courts handle or manage cases better and more efficiently will also go a long way towards enabling us to monitor court performance. When it comes to the Judicial Conduct Committee and the Judicial Conduct Tribunal, I don’t think we have ever had misconduct cases solved in a more structured way than we do now,” he says.

When Mogoeng took office, he approached the Speaker of the National Assembly and the Chair of the National Council of Provinces to speed up the finalisation of the legal instruments that would enable the Judicial Conduct Committee to begin to operate, enhancing its ability to deal with cases of misconduct lodged against Judges, as well as the Judicial Conduct Tribunal, which deals with cases relating to potentially impeachable misconduct.“As a result, those systems have since been put in place by Parliament and we have been able to dispose of many cases of misconduct relating to Judges.“Unfortunately, people have isolated a few cases that have not been dealt with at the Judicial Conduct Tribunal level, largely due to court challenges. But we have been able to do a lot in terms of disposing of cases of misconduct against Judges through the structures that were put in place since 2011. We, as the South African Judiciary, have also been able to produce a document, both for the SADEC Chief Justices Forum and for the CCJA that is basically the blueprint for both forums on how they could begin to use a more structured way of confronting the challenges that the region and continent face when it comes to judicial misconduct,” he says.

Leading the way, together

Moving from the premise that no human being is indispensable, Mogoeng values collective leadership and sees himself as one piece of a much bigger picture.

“I believe that the leadership position I occupy actually belongs to the people of South Africa. The people of South Africa are Judges, the people of South Africa are the Chief Justice. But because they cannot all fulfil that role, in their collective wisdom, they saw the need to create an office to be occupied by one of them on their behalf. I am privileged to occupy that position and I am here to do what they would want to see the incumbent do on their behalf. And because the position does not belong to me, it belongs to them, as does any other judicial position, it is necessary that I work together with fellow Judges and Magistrates in the execution of my mandate,” he explains.Working together as a team is important, he says, and he makes a point of not holding all of the responsibilities of his position to himself, choosing not to work as though his colleagues do not have the strength or capacity to do what needs to be done.

“I believe that my fellow Judges and officials in the Office of the Chief Justice have what it takes to carry out the responsibility of ensuring that South Africans have access to speedily delivered quality justice. Therefore, team spirit, teamwork and delegation are key. There must be other human beings who are groomed to take the baton from me if it becomes necessary so that they can run with this mandate on behalf of the nation.“If, God forbid, I was to drop dead now, nothing should come to a halt. In every section of the Judiciary, you will find that there are systems in place, people who have been properly exposed to higher responsibilities and who are properly groomed,” he says.“I also believe that you can’t just look at the now, you’ve got to plan ahead and say, ‘In five years’ time, in ten years’ time, where would I like to see this country and the Judiciary of this country, the Judiciary of the region, the Judiciary of the continent and the Judiciary in the global village? We must plan ahead,” he concludes.

 

 

 

 

 

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