South Africa’s previous Constitutions starting from the 1909 Constitution placed the administration of justice of the Union of South Africa under the control of a Minister of State (section 139 of the Union of South Africa Act, 1909). The administration of justice included the management of courts. Likewise, the 1961 Constitution assigned the administration of justice functions to the Minister of Justice at the time (section 95 of the 1961 Constitution). The 1983 Constitution also located the administration of justice under the control of the Minister of Justice (section 69 of the 1983 Constitution).
The 1993 Constitution marked a turning point in the history of our country in that it enshrined constitutional supremacy and the independence of the Judiciary. Likewise, the 1996 Constitution vests the judicial authority of the Republic in the courts and these courts are independent subject only to the Constitution and the law (section 165 of the Constitution).
The Constitution provides that the Republic of South Africa is one, sovereign, democratic state founded on, amongst others, human dignity, the achievement of equality, advancement of human rights and freedoms and Constitutional supremacy. The State consists of the three branches of government: the Judiciary, Legislature and the Executive with separate and clearly defined powers, roles, duties and functions. The Constitution makes provision for this doctrine of separation of powers by vesting the legislative autonomy in the Legislature, the Executive autonomy in the Executive, and the judicial authority in the courts. This doctrine recognises the functional independence of branches of government which checks and balances to prevent the branches of government from usurping power from one another. An essential part of the separation of powers is therefore an independent Judiciary that functions independently of the Legislature and the Executive.
The Constitution expressly recognises the independence of the courts as it provides that the judicial authority of the courts is vested in the courts and that the courts are independent, and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
Section 165 of the Constitution further prohibits any person or organ of state from interfering with the functioning of the courts. It also enjoins the state, through legislative and other measures, to assist and ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Judicial independence is also implicit in the rule of law, which is one of the foundational values of the Constitution.
Over the years, the role and functions of the Chief Justice as Head of the Judiciary and Head of the Constitutional Court have steadily escalated. The Chief Justice has, however, not had the benefit of an adequate support structure to provide the capacity and human resources required for this purpose. As a result, the attention of successive Chief Justices has been diverted from their core judicial functions to the need to attend to various administrative tasks, and they have had to rely in large measure on support from the executive to enable them to do so.
This raised important issues concerning the independence of the Judiciary, and led to requests by the Chief Justices concerned for the capacitation of their office to facilitate the discharge by them of their duties and functions. Important issues were also raised by the Judiciary concerning the system of court administration inherited from the apartheid state, which was highly centralised and driven by the Executive. There have been ongoing discussions between the Judiciary and the Executive regarding these matters and the establishment of a system of court administration consistent with the Constitution and the evolving system of judicial independence contemplated by it.
Ultimately, agreement on how to address these issues was reached between Chief Justice Ngcobo and the Minister of Justice and Constitutional Development (the Minister) which led to correspondence between the Minister, and the Minister for Public Service and Administration, concerning the establishment of permanent capacity for the Chief Justice to perform his or her functions as Head of the Judiciary and Head of the Constitutional Court, and the need to establish a judicially based system of court administration. The process agreed to was defined in the following three distinct Phases:
Phase 1: The establishment of the Office of the Chief Justice as a national department located within the Public Service to support the Chief Justice as head of the Judiciary and Head of the Constitutional Court;
Phase 2: The establishment of the Office of the Chief Justice as an independent entity similar to the Auditor-General; and
Phase 3: The establishment of a structure to provide judicial-based court administration.
Phase 1 was subsequently initiated by the President who established the Office of the Chief Justice as a government department. This was done by means of proclamation 44 of 2010, dated 23 August 2010, which amended schedule 1 to the Public Service Act 44 of 2010 to make provision for the new department. In the absence of both tailored legislation for such an office and a self-standing regulatory framework for the judicial branch of government, the proposal to establish a national department has, of necessity, been crafted in line with current legislation governing the executive branch of government.
The establishment of this office is a transitional first step in the advancement of the independence of the Judiciary. The office is currently institutionalizing all that is necessary for the Chief Justice to properly execute his or her judicial and administrative functions. The functions of the OCJ in Phase 1, as determined by the Minister for Public Service and Administration in terms of the Public Service Act 1994, are to:
- provide and coordinate legal and administrative support to the Chief Justice;
- provide communication and relationship management services and inter-governmental and international co-ordination;
- develop courts administration policy, norms and standards;
- support the development of judicial policy, norms and standards;
- support the judicial function of the Constitutional Court; and
- support the Judicial Service Commission in the execution of its mandate.
The establishment of the Office of the Chief Justice provides a platform for the implementation of initiatives that are designed to enhance effective functioning of the courts.