Minister Mmamoloko Kubayi: Judicial Conference

Programme director, Justice Theron, Justice of the Constitutional Court of South Africa

Chief Justice of the Republic of South Africa Mandisa Maya

Deputy Chief Justice of South Africa Dunstan Mlambo

Deputy Minister of Justice and Constitutional Development, Andries Nel

Deputy President of the Court of Appeal of Zambia Justice Charles Zulu

Justice of the Supreme Court of Appeal of Kenya Justice Isaac Lenaola

Justice of the Supreme Court of Namibia Justice Thomas Masuku

Chief Judge of the High Court of bono State in Nigeria Justice Kashim Zannah

Judge Presidents, Regional Court Presidents, Chief Magistrates

Distinguished jurists and Distinguished guests

OCJ administrative Staff led by Adv Potgieter

Ladies and Gentlemen

Good morning

We are gathered in this session under the theme: "GOVERNANCE AND ACCOUNTABILITY IN AN INSTITUTIONALLY INDEPENDENT JUDICIARY". This theme recognises that as we work together to realise full judicial independence, we should never lose sight of the fact that good governance and accountability is the only way that will be able to maintain the strength of our judiciary, increase access to justice and ensure that public trust is sustained so that judicial decisions enjoy the respect of all our citizens.

An independent judiciary and a well-functioning court system that gives full effect to the right to justice for all is the cornerstone of our democracy and a pillar upon which the rule of law which we strengthen our democracy, political stability, and economic growth. 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 in Section 165 (2) and (4) of the Constitution. Judicial independence includes institutional independence, which can only be achieved if the Judiciary enjoys structural independence, which includes financial, operational and perceived independence.

Both the Glenister and Sonke judgments impose an obligation on the State to take reasonable steps to establish and maintain independent bodies to safeguard fundamental rights. Glenister and Sonke judgments apply to the Judiciary because those institutions which were the subject of litigation are ordained as independent by the Constitution or by Statute.  This is the case with the courts as they are designated as independent by the Constitution.

President Cyril Ramaphosa has committed to transforming the Judiciary into a fully independent arm of state, comparable to the Executive and Legislature. This includes recognising the Judiciary as institutionally separate from the Executive and Parliament. Achieving judicial independence means ending the current arrangement where court administration is controlled by the Department of Justice which is a constitutional necessity and therefore, not optional.

Government remains committed to advancing judicial institutional independence in a manner that is responsible, orderly and sustainable. In this regard, we undertook and continue with consultations with relevant stakeholders with the view to fully realising the provisions of section 165 of the Constitution. This transition is not about disruption or abrupt structural change. Rather, it is about building stable, credible and accountable administrative, governance and financial capabilities required to support a stronger and more independent institutional model, while ensuring continuity in court operations and maintaining public confidence in the court system.

When deciding on an institutional model for the Judiciary, three constitutional standards ought to be met, namely structural independence which includes financial independence, operational independence and perception of independence.  Financial independence is concerned with the institution's ability to have access to funds required to perform its core functions.  Operational independence relates to control over and freedom from interference in matters connected with the performance of the institution's functions, inclusive of appointment and accountability of staff and operational reasons.  Perception of independence has to do with evaluating whether an entity enjoys adequate level of independence. Accordance with our commitment to realise independence, we have commenced with the process of transitioning to judiciary-led court administration.

In this regard, Phase 1 of the transition to Institutional Independence took effect on 1 April 2026 and marked a significant milestone in the transfer of retained and shared services relating to the Superior Courts from the DoJ&CD to the OCJ. The services transferred to the OCJ with effect from that date include Security Services, comprising guarding services in the Superior Courts, close protection services to Judges facing threats to their lives, repairs and maintenance of security infrastructure in courts, cash-in-transit services, and reimbursement of Judges for security measures installed at their private residences. The transfer also included Facilities Management Services, such as day-to-day maintenance, planned maintenance, minor capital works, lease management, municipal services, and user changes on state-owned facilities.

In addition, Library Services, including access to Juta, LexisNexis and Sabinet online publications, were transferred, together with Information and Communication Technology services relating to Court Recording Technology (CRT) and the Sexual Offences System (SOS), as well as Transcription Services.

Phase 2 will focus on the promulgation of enabling legislation to establish the Judiciary as a co-equal branch of government alongside the Executive and the Legislature, and this process is expected to be completed during the 2026/27 Financial Year. We await the Heads of Courts and the Magistracy to conclude discussions on outstanding policy matters so that the department can commence with the legislative process. We hope this conference will provide a platform to clarify and close the gap between magistracy and superior courts on matters where there are still different views such as institutional frameworks and structures amongst others

Phase 2 of the transition which is underway also includes the creation of a single judiciary. A single judiciary means creating a unified system that all judicial officers from local magistrates to Constitutional Court judges would fall under a single governance framework. Given that the majority of the litigating public interacts with or is served by the lower courts, it is these courts with which the Executive should be most concerned from an access to justice and democratic accountability perspective. Admittedly, transferring the administration of the lower courts from the Department of Justice to the OCJ will likely be complex. However, it is an important element without which the creation of a single and independent judiciary will not be possible and can assure you that the department will remain (whoever said that there will be no department left if we allow Singe Judiciary is not factual) as currently The Minister of Justice oversees two departments and Court Administration in the department is a Branch.

Establishing a single judiciary must keep access to justice at the centre and this requires the courts to be rationalized in accordance with the rationalization report produced by the rationalization committee which was chaired by former Deputy Chief Justice Dikgang Moseneke as a start. We can all agree that even as we look at that report and when it is fully implemented, there will still remain gaps in terms of the infrastructure and human capital required to meet population growth. Though significant progress has been made, post 1994, in configuring the court system in a way that increases access to justice for all, the court system that existed in South Africa prior to the democratic transition was left largely intact. After 30 years of our constitutional democracy, the rationalization of the courts is long overdue. Cabinet has approved the rationalization committee report and has given us a go-ahead to proceed with the implementation. The implementation has commenced and it has been organised to proceed in two phases, phase 1 and phase 2.

Phase 1 involves the implementation of the immediate recommendations of the Rationalisation Committee, which entails recommendations regarding the Magisterial Districts and Sub-Districts in respect of which the Main and Local Seats of the respective Divisions of the High Court shall exercise jurisdiction, with the view to enhance access to justice as recommended by the Rationalisation Committee. With Regards to local seats, Phase 1 of the implementation entailed the gazetting and the usage of courts where infrastructure is already available.

After consultation with the judicial services commission (JSC) and Heads of Court the Notice was published in the Gazette for implementation. The commencement of the changes excludes Eastern Cape where there are still disputes regarding the proposed relocation of the seat from Makhanda to Bhisho. Consultations will be undertaken with the Eastern Cape stakeholders regarding this process. The implementation will be monitored on a continuous basis to ensure smooth transition.

With regards to the capacity of the courts, a process has been initiated with National Treasury and Office of the Chief Justice to e,ffect the 20% increase of the judicial posts to deal with the capacity challenges across the Divisions of the High Court, as recommended by the Rationalisation Committee in the report.

Phase 2 will involve a phased-in approach for Implementation of the recommendations of the Rationalisation Committee regarding the establishment of additional local seats which entails the establishment of additional Local Seats through the building of new courts or expansion of the existing magistrates courts. These will include the Gauteng Division at Palm Ridge, Free State Division at Welkom, North West Division at Rustenburg, Northern Cape Division at Upington and the Western Cape Division at Thembalethu.

To strengthen the efficiency of the courts and increase access to justice, the Justice, Crime Prevention and Security (JCPS) cluster has embarked on an integrated justice system which is an electronic, inter-departmental platform designed to modernize the criminal justice process. This system links the police, national prosecuting authority, courts, and correctional services to streamline workflows, reduce case cycle times, and eliminate paperwork and duplication. For its part the OCJ has been implementing Court Modernisation and Digitisation through the Court Online system as part of the broader modernisation of court administration services. The system provides a platform for the public, legal practitioners and litigants to file court documents electronically from anywhere in the world, thereby improving access to justice, strengthening record management, reducing reliance on paper-based processes and minimising the physical movement of people to courts.

The focus now is on deepening implementation, improving system utilisation, strengthening user support, and embedding Court Online as a core enabler of efficient, transparent and modern court processes.

A judiciary that is financially independent must be funded by Parliament free from Executive control. In this regard, an act similar to the Financial Management of Parliament and Provincial Legislatures Act, which provides for managing Parliament's finances, must be enacted for managing the Judiciary's budgetary and financial administration. Under the FMPPL act, an oversight mechanism has been established to maintain oversight of the financial management of Parliament and the judiciary will have to do the same. This means that the accounting officer and Executive Authority of the judiciary should be accountable to parliament. An Act of this nature would allow the Judiciary to propose directly to Parliament, its annual budget and safeguards its right to independently manage such budget in accordance with the law.  It is expected that those who have a role in making decision on financial management as this are South African people resources must be accountable in a transparent manner.

The effect of this is that the OCJ should be re-established outside the public service and be capacitated to appoint its staff in line with its own prescripts. This will require human resource framework tailored to judicial operations and principles of independence.

Generally, Judiciaries grapple with balancing judicial independence and accountability in actual practice. The primary models are the executive-based model wherein ministries manage budgets and appointments; the separate department model with an independent state agency running court administration, and the judiciary-based model which means the judges self-govern. There are two notable areas of interface between the executive and the judiciary, in setting and approving the budget for the administration of the courts, and in the appointment of judicial officers. Different countries have different models, in India the budget for court administration is pre-set and dispensed by the executive. USA has similar model, it is Congress and the President which allocates funds for the judiciary as well as oversee judiciary budgets. Whereas Canadian Supreme Court, the Minister of Justice and Chief Justice collaborate in the drafting of the court administration budget, which is submitted for legislative approval by the Minister of Justice. Brazil has a judiciary-led budgeting, the judiciary first proposes the budget whereafter the executive may edit the budget, and the legislature votes to approve it.

Similarly, when it comes to the appointment of judges, the approaches are far from even. In the USA the President is responsible for the nomination of federal judicial officers and on the other extreme, Hong Kong has the Judicial Officers Recommendations Commission, made up predominantly of members of the judiciary who recommend persons for judicial appointment. In Germany, the legislature is involved in choosing judges.

Each model comes with its risks. Executive models are vulnerable to political Capture and interference, which happens when governments and politicians routinely attempt to control court appointments and budgets to influence judicial outcomes.  This risk threatens democratic separation of powers. The judiciary-based or self-governance model is vulnerable to Judicial Councils and Inside Capture. When judges self-govern, the governing bodies can be hijacked by powerful cliques of senior judges, resulting in elitism, nepotism, or cronyism. The other risk is corporatism, wherein judges become immune to performance reviews, public accountability, or efficiency measures. This in turn lead to institutional vulnerability to Corruption. Inadequate or non-transparent proceedings for judicial appointments and promotions increase vulnerability to bribery and external lobbying.

In the end, this transition must culminate in a judiciary that is independent, characterised by good governance, transparency and accountability.

Let me conclude with a quote from former president Nelson Mandela when he addressed the then Transvaal law society in 1993, and he said the following, among others: "There can be no justice without a strong independent judiciary. The judiciary can do little without the support of a strong legal profession. A profession which identifies itself with the needs and aspirations of all the people in South Africa, is likely to prosper."

Thirty years on, the courts that derive their power from the constitution remain a beacon of our democracy. As we celebrate the 30 years of the adoption of the constitution, let us stand and proclaim ONE CONSTITUTION, ONE NATION REFLECT. RENEW. RECOMMIT. Let us recommit to the values of our constitution.

Let us use the opportunity in this conference to reflect on what has been achieved in the past years of constitutional democracy and what still needs to be achieved, which is a South Africa that is non-racial, democratic and prosperous. Let me conclude with an African quote that says "if you want to go fast, go alone. If you want to go far, go together".

Ndza Khensa