The Judicial Officers Association of South Africa (Joasa) has thrown down the gauntlet to South Africa’s Chief Justice, Mogoeng Mogoeng, saying there was ‘an over-concentration of power’ in the Office of the Chief Justice and calling for a symposium to establish a constitutionally-mandated judicial authority for South Africa.

Outgoing president of the Judicial Officers Assocation of South Africa, Daniel Thulare, gave his presidential address at the association’s AGM in Johannesburg this weekend, urging the Minister of Justice and Correctional Services to back calls for a symposium that would include ‘judicial officers of all ranks’. The proposed symposium, given strong support by Joasa’s members during the AGM’s business meeting, would allow all the country’s judicial officers to define what was meant by a ‘single judiciary’ and to identify the consequences that would follow from that definition.

The ‘heads of courts’, a powerful body representing the top judges in each province, met ‘at the pleasure and invitation’ of the Chief Justice, Thulare said. Conspicuously absent from those meetings were the chief magistrates and regional court presidents who were also heads of magistrates court at district and regional level. ‘There are no reasons advanced as to why the current decision-making governance structure of the judiciary excludes the magistracy.’

Their exclusion meant that key decisions were made affecting courts without the representation of magistrates. It also ran contrary to the philosophy of a single judiciary. Magistrates were alienated and felt pushed to the periphery of judicial governance structures.

For magistrates to be represented by a judge president at the heads of court meeting of the judiciary, was like the days of ‘marital power’, Thulare said. In those days, the spouses were supposed to be equal, but one partner did not have a voice on matters of interest to that party. It was a ‘paternalistic idea’ that had been discarded in the new democratic, constitutional South Africa, and to treat magistrates in this way was ‘problematic’.

The current governance structure within the judiciary perpetuated this problem and even created new systems where magistrates were at the bottom of a ‘vertical hierarchy’, with no opportunities or structures for their needs and concerns to be heard by decision-making structures.

The office of the Chief Justice was not a ‘judicial kingdom’, he said. A new document from that office had been sent to the Minister of Justice and Correctional Services, Ronald Lamola. It outlined an institutional model for the judiciary and proposed a new judicial council. Addressing the Minister, who attended the meeting, Thulare said, ‘I have to tell you that we in Joasa do not support it.’ The proposed model excluded SA’s 2000 magistrates. ‘They are not represented in this plan. You should send it back for that reason alone.’ He urged the Minister, ‘Whenever you engage with the judiciary, please ask – where are the magistrates?’

  • Legalbrief, 29 July 2019