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Christo Smith Law Blog

High Court in limping mode

The LSSA Legalbrief of 16 October expresses serious concerns over the state of the judiciary nationwide. Locally, in Mpumalanga, we recently addressed the dismal state of the filing system of the civil division of the Magistrate’s Court in a Facebook post, subsequent to which the system was drastically improved. The LSSA Legalbrief focusses on the lack of service in many High Court Divisions. A full report is included below.

We are especially concerned about the reluctance of the judiciary to normalise court functions post Covid-19. Pending opposed matters cannot proceed due to the suspension of the case management system. Actions are delayed and clients are frustrated. Attorneys can no longer explain to clients why their matters cannot proceed. This system was allegedly introduced to facilitate speedy completion of matters, however, presently, it has become a major stumbling block. Despite most public amenities opening up for the public, albeit with attendance restrictions, the High Court refuses to return to full open court hearings despite very few persons being involved and despite the fact that social distancing can be optimally applied – another of the irrational decisions we have become accustomed to.

Even more alarming are the rumours that court by way of electronic means is “here to stay”. Why a court building that cost billions was built in the first place, boggles the mind. How electronic proceedings is going to comply with the statutory requirement of the open court concept, is another question. Even more puzzling, is the question how cross-examination is going to be conducted in a Zoom hearing – Imagine witnesses being tipped off out of sight of the camera!

The reluctance of state institutions to return to normality echoes the norms of our anti-work culture – we are a nation bent on taking advantage of every excuse not to work – a culture where protesting about the most trivial matter is always favoured to work. After all, civil servants are being paid handsomely for doing nothing. Legal practitioners in Mpumalanga are extremely unhappy  with the current state of affairs and have appealed over and over again for the High Court to get its house in order.  When I heard the term “third world” years ago, I always wondered what it meant. I knew it referred to a certain sector of the globe, but what was the real philosophy behind the term? It has become clearer over time – its all got to do with norms and standards. Global norms and standards. And Africa is, well, not what you would call a pacemaker in the globe’s normative race. Not by far.


Judiciary: Finger pointed at CJ over problems in courts

The Gauteng High Court (Pretoria) has been hit by an infrastructure collapse – and some of the blame is being placed at the door of the Chief Justice. The ‘dire’ state of the court was revealed in a WhatsApp message sent by a senior judge at the court to colleagues, notes a GroundUp report. Legal writer Tania Broughton says the court – and apparently most courts around the country – have not had e-mail access after a massive system failure on 21 September, which has yet to be fixed. Internet access is especially important for the courts during the Covid-19 pandemic because much of the work is being done online. While the Pretoria court has had access to wifi over the lockdown period it is presently not working. Others, including Durban and Pietermaritzburg, still do not, and judges have to use their personal accounts. In a message sent to colleagues this week, the judge said: ‘Just sharing frustrations at court despite proactive attempts at many meetings to ensure that this week we will function, even without e-mails.’ Private contractors engaged to manage technology had left the building and ‘their contract will not be renewed’. The contractors’ role is to manage Case Lines – the court’s online document management system – and enable virtual meetings. The Case Lines clerks, who helped with invitations to attend virtual hearings, had also not had their contracts renewed. On top of these technical hurdles, there were just too few judges to handle too many cases, with 129 not placed on the roll last Monday because of this. By Wednesday, Monday’s roll had still not been finalised with cases not being allocated to judges. ‘The attorneys are complaining … They are having to pay fees to counsel even though matters are not being allocated,’ the judge said in her WhatsApp message. She said in the first three days (of this court session) there had been seven requests for urgent applications which had merit. ‘We have no dates or judges available to hear them but I am trying to accommodate them.’

An advocate, who often appears in the court, notes the shortage of judges in Gauteng was a long standing problem, and the problems being experienced were not as a result of mismanagement of the court, but because of inefficiencies in the Office of the Chief Justice (OCJ). Another source reportedly told GroundUp: ‘How do you run a court in a pandemic without Internet? The management of the court are decent exemplary people who are doing a competent job. The problem is they’re not getting the resources they need.’ The Legal Practice Council reportedly told GroundUp that it was aware of the problems in the Gauteng High Court and trying to address them.

An accompanying GroundUp editorial says the situation in Pretoria is not unique. ‘Many of our courts are in dire straits. We spoke to several legal practitioners this week and their views are unanimous: the people running the Pretoria High Court are both competent and doing their best; the problem seems to lie with the systems and officials in the Office of the Chief Justice.’ The editorial points out that some of the problems long predate the pandemic. The judiciary used to be administered by the Department of Justice. The OCJ was set up during the tenure of Justice Mogoeng Mogoeng to ensure the independence of the judiciary and to give the Chief Justice the power and capacity to improve management of the courts. The OCJ has a budget of hundreds of millions of rands a year. But instead of getting better, under Chief Justice Mogoeng, things seem to have deteriorated, the editorial claims. ‘Several lawyers pointed out … that the Chief Justice seems to have lost interest in the hard business of managing court administration. He has spent far too much time on international commitments.’

Full GroundUp report

General: CJ Office hacking, department disarray concerns MPs

The Office of the Chief Justice was hacked in September, but its secretary-general, Memme Sejosengwe, prefers not to divulge too much information at this stage, says a News24 report. Sejosengwe informed the Portfolio Committee on Justice & Correctional Services this week that the office’s information technology systems had been breached in September. She said the state’s law enforcement agencies were investigating and asked the committee not to discuss it further until that investigation was completed. The ACDP’s Steve Swart nonetheless wanted more details. Sejosengwe said it happened on 19 September and assured the committee it would be briefed about the matter once the investigation was completed. She was not pressed further on the matter, but one of the officials said at the time of the breach, the whole network had to be switched off.

MPs also expressed grave concern at the ‘declining performance’ of the Department of Justice & Constitutional Development, and described the performance as dismal after it briefed the committee on its fourth-quarter performance for 2019/20 and its first-quarter performance for 2020/21. According to News24, the committee resolved it would consider requesting the assistance of the Public Service Commission to address the department’s poor performance and systematic challenges to improve the situation. The department has a vacancy rate of 23.4% at senior management level. The committee said the department could not complain about proposed budget cuts and then continue to miss targets and under-spend on its budget. The department reported approximately R1.2bn in irregular expenditure and underspent by R757m. ‘We cannot in good conscious support that you should not have budget cuts when you are not able to spend the money that is given to you,’ said committee chairperson Bulelani Magwanishe.

Full News24 report


Some MPs were so alarmed about the state of the department that they proposed placing the department under urgent administration, Beeld reports. Deputy Justice Minister John Jeffery had to field questions after telling MPs Minister Ronald Lamola was ‘ill and booked off’. After hearing the department met only 51% of its own service delivery targets for the year, Richard Dyantyi, an ANC MP, said the department was in ‘a mess’. ‘This department is failing hopelessly. It must be saved and not turned around. The Minister should rather prepare a Cabinet memo to place it under administration as it has failed in every aspect,’ Dyantyi said. The opposition jumped in, with Glynnis Breytenbach, of the DA, highlighting the fact that the Master’s Office ‘has been in tatters and dysfunctional for years’. ‘The department is so broken that it would probably be best to start from scratch rather than to fix it,’ Breytenbach said. Jeffery conceded that the deteriorating performance of the department was ‘concerning’. Magwanishe said Lamola will be requested to appear before the committee personally as matters cannot continue ‘as normal’.

Full Beeld report (subscription needed)


High Court in limping mode