SA acts to strengthen independence of judiciary
Publish date: 23 June 2025
Issue Number: 1131
Diary: IBA Legalbrief Africa
Category: Legislation
While the judiciary in many parts of Africa comes under threat and judges fight to maintain their independence (see Regional News), South Africa has taken a bold leap forward by announcing changes aimed at strengthening ‘the institutional and administrative independence’ of the judiciary. Legalbrief notes that Mandisa Maya is set to become SA's most powerful Chief Justice since the advent of democracy following the moves by government on Friday. New legislation under way will result in her assuming sweeping powers over the management of all courts, which will for the first time put the administrative structures and systems of the judiciary under the control of a serving Chief Justice, reports the Sunday Times. The move towards ensuring the judiciary is fully independent comes after years of sustained pressure from previous Chief Justices and other senior judges. According to Justice & Constitutional Development Minister Mmamoloko Kubayi, Maya, as the sitting CJ, will have full control over the judiciary’s budget and internal financial systems. Kubayi emphasised ‘she will oversee a fully independent and single judiciary.’ The Minister added that legislation was in the making that might also, for the first time, result in a sitting CJ appearing before a parliamentary oversight committee as the executive authority of the judiciary. At present, the head of administration in the office of the CJ (the secretary-general) appears before the Justice Committee – at least once a year – to account for spending. ‘The judiciary will account directly to Parliament as an independent arm of the state, similar to how the legislature manages its affairs independently,’ Kubayi said.
In promising the long sought independence of the Constitutional Court as an institution on the same level as Parliament is finally to become a reality, President Cyril Ramaphosa praised the court’s contribution to freedom, dignity, and justice during his keynote address at the court’s headquarters at Constitution Hill, Braamfontein, on Friday, notes Legalbrief. At an event celebrating the court's 30 years of existence he extended his gratitude to all the Chief Justices and senior justices who have led the court over the past three decades. He noted the court’s profound impact on SA law, including the abolition of the death penalty in 1995, the 2002 right to health care and access to HIV/AIDS treatment, the 2004 right of access to social security by permanent residents, among many others. ‘When the Constitutional Court was established 30 years ago, it was a bold response to a history that had denied the majority of South Africans basic human rights. The court was tasked with safeguarding the Constitution of 1996. Each role was deeply symbolic, and it acted as a symbol of a bold, immortal legal compass.
This court was established and built by former President Nelson Mandela 'to embody and become an instrument of justice', he is quoted as saying in a Saturday Star report. ‘As we cast our minds back to May 1996, when our Constitution was established … It became our nation’s birth certificate, reflecting a history we have emerged from, built on the values of dignity, equality, and freedom. It sought to affirm the identity and legality of every human being. Just as a parent would attend to the health of their child, the establishment of the court allowed it to be free, as it was born of struggle and hope.’ He added that despite recent challenges with the court being dragged into the political arena, those who have led the court have managed to keep it out of politics and political interference through some of its judgments and the impeccable work they have done and continue to do.‘This court has contributed a rich jurisprudence. These judgments have not been mere legal decisions but have shaped and strengthened our democracy and affirmed the rights of same-sex couples, the sick, and the infirm,’ he said.
However, the President acknowledged that ‘the advancement of socio-economic rights is not as far as we wish it to be, particularly with respect to housing and basic services’. Referencing the landmark Grootboom judgment, in which Irene Grootboom and her family’s right to access adequate housing was affirmed by the court, Ramaphosa said it was a blight on SA’s hard-won democracy that Grootboom died without her dream of a decent house being fulfilled. ‘Deepening respect for constitutionalism across all sectors must start with the state. We must acknowledge the troubling irony of lauding the Constitutional Court’s progressive judgments on one hand, especially on socio-economic rights, with the reality that the state apparatus has in many of these cases had to be compelled by this very court to fulfil its obligations,’ said the President, according to the Daily Maverick. ‘Our people should not have to resort to litigation to have their rights realised, and this is the paramount consideration.’ Ramaphosa said the state had on many occasions failed to support the court adequately and vowed that this would change. To this end, Ramaphosa vowed that the government would increase its support to the judiciary to ensure that it could execute its duties independently, effectively and with dignity. ‘Government must and will provide a range of institutional, infrastructure, financial, administrative, and legal support. The support is crucial to maintaining judicial independence, which is a cornerstone of democracy and the rule of law,’ he said.
The challenges faced by the court are well documented, especially concerning finalising matters against targets, the DM points out. The Constitutional Court Review found that over the years, the court’s workload had increased significantly, which has led to longer processing times for judgments. The government is working to solve this. Ramaphosa said that funding for the court was mentioned for the first time in Finance Minister Enoch Godongwana’s recent Budget speech, with money being allocated to enhance access to justice and improve court services. ‘We reaffirm our commitment to providing all the necessary support to our courts as they administer justice. At our meeting with the judiciary recently, we committed to taking steps to advance the independence of the judiciary and the future of our courts’ administration,’ he said.
Maya noted Ramaphosa’s announcement was a long time coming. ‘We are quite happy, naturally, about this development,’ Maya told journalists on the sidelines of the commemoration. ‘It was understood that the rendering of the judiciary to be fully independent would happen in two stages, the first one starting in 2013. It was anticipated that the finalisation of the process would be put into place soon thereafter, but it has dragged and dragged for well over a decade. It’s never too late to do the right thing, here we are now, and moves are afoot,’ Maya said. According to the DM, she said that the judiciary is in a hurry to finally obtain full judicial independence, jokingly adding that they would not allow the President and his team to delay the process any further. Standing next to Maya, Ramaphosa said that a joint committee had been appointed to work on the modalities, and everything that needs to be in place to ensure that the judiciary can execute its role without any hindrance. ‘Its own independence as an entity has always been secured, it’s just been the support that it needs from government that we are now putting in place,’ Ramaphosa said.
Effectively, this development means the judiciary will no longer fall under the Department of Justice & Constitutional Development, but will be independent like other arms of state, the executive and the legislature. This heeds long-standing calls from judges and civil society to ensure the independence of the judiciary would be safeguarded from political infiltration. In her speech at the 30th anniversary celebrations, Maya spoke about the importance of the independence of the judiciary and lamented the need to bolster its independence. And according to BusinessLIVE, Ramaphosa said: ‘At our (recent) meeting with the Chief Justice and members of the judiciary, we committed to taking steps at advancing the independence of the judiciary.
‘A (Parliament) joint committee is now in action to finalise this whole process of the independence of the judiciary.’ He said the committee would develop the action plan and finalise it within six weeks. BusinessLIVE says he noted 'the judiciary has on an unfair basis had to depend on the government on a variety of matters from getting approval for the appointment of people and not even being in complete control of their own budget'. He added: 'This comes to an end now. The judiciary will be independent. We will ensure the judiciary is rightly constituted as an equal branch of the state, same level as government and the legislature.’ Ramaphosa said this was a policy change that former Chief Justice Raymond Zondo had insisted that the government adopt. ‘To ensure that the judiciary executes its duties independently, effectively and with dignity, the government must and will provide a range of institutional infrastructure, financial and administrative legal support.
