Mogoeng's conundrum: How to unclog the court system

2018-11-23 20:30
Chief Justice Mogoeng Mogoeng. (Jabu Kumalo)

Chief Justice Mogoeng Mogoeng. (Jabu Kumalo)

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When Chief Justice Mogoeng Mogoeng appealed to MPs for the police to only arrest suspects once they had completed their investigations, he was met with indignation.

"Please", he said at the time. "You are clogging up the system and undermining your own performance."

Recounting the story to journalists at a press conference, following the launch of the first Judiciary Annual Report 2017/2018 on Friday, Mogoeng seemed exasperated.

It was a theme that featured strongly in his address to judiciary leaders, MPs, the legal profession and the media on Friday: how to unclog the court system.

It will come as no surprise to anyone who has had the displeasure of going to court that court rolls are too full, matters take too long to finalise, and justice delayed, as they say, is justice denied.

Mogoeng has introduced case management targets for judges to adhere to, to encourage the speedy resolution of matters. He has been hard on those who take too long to hand down reserved judgments, or who write long, "scholarly", time-consuming judgments, unnecessarily. A pilot project to digitise the courts will be rolled out in the next six months in the superior courts.

Norms and standards intended to ensure that judgments are delivered within three months have been introduced, and Mogoeng explained on Friday that this was intended to be a "red light" to alert judges when taking too long, as opposed to a disciplinary measure.

It is not the first time Mogoeng has complained about court backlogs and delays in handing down reserved judgments. While it is acknowledged that judges should not rush their judgments or sacrifice quality for quantity, Mogoeng has no patience for unreasonable delays.

He is known for taking candidates to task about this at Judicial Service Commission (JSC) interviews.

'I don't understand' 

In the April 2013 interviews, he implied that judges with "embarrassing" records of outstanding judgments shouldn't even bother applying to the JSC, eNCA reported. He lamented delays, particularly in the North and South Gauteng high courts, where reserved judgments could last "anything from two years and beyond".

Overall, 74% of all judgments handed down in the higher courts, including the Labour and Land Claims courts, were handed down in three months in the 2017/2018 year.

On Friday, Mogoeng said that a list of judgments outstanding for more than six months will be made available on the Office of the Chief Justice website, "as part of accountability and in an effort to remain transparent".

READ: Populist judges are guilty of 'corrupting justice' – Mogoeng

But Mogoeng raised the problem with the Gauteng division again on Friday, and said it had a much lower number of judges compared to the workload, contributing to delays, "notwithstanding the Judge President and colleagues' best endeavours".

According to the report released on Friday, the South Gauteng High Court (Gauteng Local Division) delivered 77% of its 873 judgments in the 2017/2018 year. Of these, 78% were delivered in three months.

In the court's Pretoria cousin, (Gauteng Local Division), 59% of 573 judgments were delivered. Of these, 56% were delivered within three months.

According to the Mail & Guardian, Mogoeng quizzed each candidate about their outstanding judgments at the 2014 interviews. He was furious at one judge who had taken more than six months to deliver a judgment.

"I don't understand," Mogoeng reportedly said. "You get out of court, before you sleep, you read the file, the issues are fresh, and you write the judgment."

But the impression given by Mogoeng's passionate remarks on Friday was that judges alone are not to blame for long delays. It is the management of a case at its very genesis that needs to be tightened up.

He had made this plea to the police before, Mogoeng said. Over and over, in meetings with police management, even in his former job as Judge President of the North West, Mogoeng appealed to the police to stop clogging up the courts with cases that were not trial ready.

'Judges know a good police statement when we see it'

Police should only arrest a suspect when investigations have been completed, he said. This would free up magistrates to attend to trials, instead of the thousands of first appearances and bail applications for trials that are postponed an "embarrassing" number of times, which currently clog up their court rolls.

Mogoeng told the police that not only were these endless postponements an embarrassment to the policing profession, but an embarrassment to the court system as a whole. The public's confidence in the judiciary, Mogoeng explained, is critical.

But the police told Mogoeng that they were under pressure to make arrests.

Then there is the problem of sloppy police work. Without putting it so harshly, Mogoeng said more resources needed to be given to the police, particularly detectives, to "sharpen" their capacity. Judges were even prepared to train officers in how to write proper police statements, he said.

"Judges know a good police statement when we see it," he said.

And then there is the National Prosecuting Authority (NPA).

Mogoeng said there were more than 600 vacancies in the NPA and that resource constraints were a problem. And prosecutors needed training from "hands-on" seniors.

In the past, said Mogoeng, leaders of the NPA would appear in court and would give practical mentorship to juniors. But somewhere along the way, he said the message was sent out that NPA leaders only needed to be good managers, and that they needn't appear in court. The result was that junior prosecutors lacked hands-on training, he said.

Ultimately, Mogoeng said he could do little more than advocate for the needs of prosecutors to be met. He was asked about instability in the leadership of the NPA, and said he could only try to make sure that the courts don't suffer as a result of it.

"Strong leadership is called for," he added.

Read more on:    npa  |  mogoeng mogoeng

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