Phased transfer of administrative and operational functions from the Department of Justice to the Office of the Chief Justice (OCJ) are some of the steps outlined by Minister of Justice and Constitutional Development Mmamoloko Kubay, as part of her plans for an operationally independent judiciary.

The minister spoke on Saturday during a Judge’s Matter webinar on judicial independence and reforms to court administration.

Speaking about her plans for judicial reform, the minister stressed the principles of the separation of powers and the independence of the judiciary. She said the Constitution entrenches and guarantees the independence of the judiciary and at the same time mandates all organs of State, through legislative and other measures, to protect courts to ensure their dignity, impartiality, accessibility and effectiveness as per the Constitution.

“Constitutional reforms relating to judicial governance and court administration constitute part of judicial transformation packages aimed at establishing a judicial system suited for our constitutional democracy,” she said. 

A meeting was convened by President Cyril Ramaphosa in June between the executive and the judiciary to advance the process to ensure institutional independence by accelerating efforts to create a single judiciary, and enhancing the capacity of the Constitutional Court, Supreme Court of Appeal, and high courts.

The minister remarked that as a sequel to this meeting, it was agreed that a task team comprising the executive and the judiciary would guide the process of transferring identified functions from the justice department to the OCJ, as well as the draft Bill that would serve as the enabling legislation to facilitate the institutional independence of the judiciary. 

This process has been initiated with the understanding that the Constitution dictates that the governance of the judiciary and administration of the courts be placed under the authority of the judiciary itself.

 In this respect, judicial independence includes institutional independence which can only be achieved if the judiciary enjoys structural independence including financial and operational independence, she said.

Currently the Superior Courts Act allows the Chief Justice to request funds for court administration after consulting with heads of courts. However, the judiciary argues that this provision places the minister as a gatekeeper of the OCJ’s budget, undermining financial independence. 

Kubay said the judiciary should be governed by a legislative framework similar to that of Parliament, such as the Financial Management of Parliament and Provincial Legislatures Act.. This model would ensure that the Secretary-General appears before parliamentary committees to account for finances, promoting sound financial management and oversight.

The OCJ will be tasked with administering and supporting the courts, providing services such as information technology, case flow management, and resource management. It will also manage human resources and the budgeting of the courts and OCJ.

The minister said significant progress has been made since the formation of the task team to transition to an administratively and operationally independent judiciary. The transfer of functions from the department to the OCJ will occur in phases.

Phase 1 will involve the immediate transfer of shared services related to the Superior Courts, effective from April next year. Phase 2 will focus on operationalising legislation that grants the judiciary full institutional independence, including the creation of a single judiciary.

Regarding the lower courts, the transfer of District and Regional Courts to the OCJ may be complex, she said, but it is believed that this will strengthen the judiciary as an independent third arm of the state. 

Kubay concluded that she is committed to the creation of a single judiciary that is administratively and operationally independent and led by the judiciary.

zelda.venter@inl.co.za

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