Monday, November 06, 2006

By Nombulelo Beauchamp

In October 2001, the Department of Justice and Constitutional Development initiated the Justice Footprint Project, whose objectives were, among others, "to optimise delivery of justice in South Africa by right-sizing the core functions of the Department, and harnessing innovative solutions to enable the effective and equitable delivery of justice in South Africa". These are noble objectives. They go to the core of efficient administration of justice. But they cannot operate in the abstract. These objectives need to operate within a framework of sound, practical and workable solutions.

The government is alive to the fact that there are challenges in the administration of justice. The various fora that have been held are evidence of this fact. One of these forums is the recently held Cabinet Lekgotla in mid-July of this year. The disturbing attributes about these fora is that they seem to only point out the challenges which are apparent without necessarily proposing sound practical solutions or if solutions are indeed proposed, they add further complications. And not only that, these "solutions" tend to digress from addressing the real challenges. Some of these complications include a recommendation and conclusions reached at Cabinet Lekgotla which deal with incorporating specialist courts, for example the Labour Courts, the Labour Appeal Court, the Competition Appeal Court, the Special Income Tax Court, under the aegis of the High Courts. Another conclusion was that the Labour Relations Act 66 of 1995, to the extent that it established the Labour Court and Labour Appeal Court is unconstitutional; and further that Labour Court judges to the extent that they do not enjoy security of tenure, their appointment is unconstitutional.

The statistics released at Cabinet Lekgotla show that existing High courts have a backlog of 1 047 and 1 121 cases for 2004 and 2005, respectively. Regional courts, on the other hand, have a backlog of 44 432 and 44 993 cases for 2004 and 2005, respectively. This has serious implications for the proposed Superior Courts Bill which seeks, among other factors, to incorporate certain specialist courts as pointed out above. It is uncertain whether bringing all these specialist courts under the auspices of the High Courts is necessarily the only way or the best way to achieve efficient service delivery and access to justice. These specialist courts were created solely to ameliorate the burden currently experienced by High Courts. To attempt to reverse the process now would be to defeat the very purpose that these specialist courts were created.

In retaining the status quo as far as specialist courts are concerned a practical solution would be to improve the service delivery in institutions that already exist as mentioned earlier. Civil servants serving in these public institutions need to understand the significance of the positions they hold and the impact that those roles have on the Constitution in terms of bringing live those rights enshrined in the Constitution. One of the practical ways in which the Department could achieve service delivery, particularly in courts, could be by ensuring that both hard and soft copies of pleadings are submitted to the case flow manager. This will ensure that lost files can be easily reproduced. Lost files and missing files are currently the order of the day in our courts. A counterargument could be that not every South African has access to technology. An alternative solution could be that the case flow manager could scan the court documents and in that way retain them as soft copies. This is currently the practice at the Constitutional Court. This will go a long way in alleviating delays at every stage of the judicial process and thus allowing for an expeditious and efficient administration of justice.

With regard to the conclusion that the Labour Relations Act, to the extent that it established the Labour Court and the Labour Appeal Court, cannot pass constitutional muster, is with respect, incorrect. These courts borrow their essence from the Constitution. The Constitution is the supreme law of the land. Any institution created under the Constitution is, therefore, constitutional. The Constitutional Court recognizes the Labour Court and the Labour Appeal Court as specialist courts in labour matters. The Constitutional Court recently asserted that "the Labour Appeal Court is a specialised appellate court that functions in the area of labour law. Both the Labour Appeal Court and the Labour Court were established to administer labour legislation. They are charged with the responsibility for overseeing the ongoing interpretation and application of labour laws and the development of labour jurisprudence. Effect must be given to this by ensuring that these courts are not bypassed in matters that fall within their jurisdiction unless there are compelling reasons to do so".

It is with respect, incorrect, for Cabinet Lekgotla to have concluded that Labour Court judges to the extent that they do not enjoy security of tenure, their appointment is unconstitutional. This could be resolved by way of legislative intervention, thus bringing the terms and conditions of employment of Labour Court judges on par with those of their counterparts in the High Courts. This could even have a ripple effect of attracting permanent candidates to this bench.

The objectives enunciated in the Justice Footprint Project need to be a recurring theme in government, especially the Department of Justice and Constitutional Development. The Department should utilise the resources at its disposal to ensure speedy and efficient service delivery. The solutions proposed by government in an endeavour to address challenges, should not serve to digress from the core challenges faced in the administration of justice.