South Africa's judiciary is in crisis as a severe shortage of judges leads to alarming backlogs and delays in the country's court systems.

This has prompted legal experts to call for urgent reforms to address the increasing litigation demands.

Alison Tilley from Judges Matter, a legal NGO, has sounded the alarm, asserting that the nation has only 250 judges to manage the ever-increasing litigation demands.

Tilley pointed out that the last significant governance review of the judiciary occurred in 2014, and since then, the number of judges has failed to rise with the demand from litigants.

“We only have 250 judges, who have to staff all provincial High Courts, as well as appeal courts and specialist courts. The shortage of judges is reflected in how long litigants have to wait for court dates,” she said.

According to Tilley, the judiciary and the government have not addressed retired Deputy Chief Justice Dikgang Moseneke's investigation into the number of judges and courts in his court rationalisation project.

In 2021, the Minister of Justice established a committee, chaired by Moseneke, to address the shortage of judges.

The committee, now referred to as the Moseneke Committee, released its initial report on rationalisation in July 2023 and its initial report on judicial establishments in June 2024.

“All the responses received from the Judges President spoke in unison about the need for more permanent judges to be appointed,” stated the latest report.

The Moseneke Committee found that population and economic growth have increased judges' workloads. Due to insufficient data, the committee could not recommend an ideal number of judges but did recommend a mandatory data collection system and a new policy for acting judges.

Additionally, the committee proposed eliminating recess periods for judges and requiring them to track their working hours.

Tilley stated that the shortage of judges has resulted in a severe case backlog. “The caseloads of the current judges are very high. Judges themselves describe the workload as very difficult.”

In order to address this, Tilley said that the Moseneke report needs to be considered, and the number of judges increased.

“The delay in having matters heard is significant. It results in people trying to avoid the courts and using mediation. There is nothing wrong with that, but only wealthy litigants can afford mediation,” she stated.

Last week, the Office of the Chief Justice (OCJ), as a government department, circulated a draft directive on the implementation of obligatory mediation in the Gauteng Division of the High Court.

The directive called for the input of law bodies, practitioners, and litigants in general, for comment and suggestions by Thursday, April 3, to alleviate the backlogs and constraints that currently plague the Division’s Civil Court roll.

The OCJ stated that the Civil Court roll currently has trial dates issued as far ahead as 2031.

“This situation is untenable and infringes on the right to access to courts as guaranteed by section 34 of the Constitution. The effect of the presence of these matters on the trial rolls prejudices matters that genuinely deserve judicial attention by means of a trial. Expedited litigation is in the best interest of the litigants involved; hence mediation has been selected as the option to fulfill this objective.”

It stated that in an attempt to deal with the case backlog, the Division has, in consultation with stakeholders, made efforts to find solutions to mitigate these challenges.

“One of these solutions has culminated in the development of the Draft Directive on Mandatory Mediation. The option of mandatory mediation is informed by the fact that more than 85% of trial matters that have waited years to be on the trial roll always settle upon the arrival of the trial date. This clearly demonstrates that the majority of matters that are congesting the trial roll should have been resolved a long time ago.”

The OCJ noted that, as contemplated in Section 173 of the Constitution, the Judge President shall exercise policy oversight over how matters are brought before the Division for hearing.

“This empowers the Judge President to put in place measures that will promote the efficient administration of justice in the Division.”

The OCJ further stated that all efforts have been made to ensure that the draft Directive does not detract from or impede any established Rules of Court.

Senior counsel Francois Botes from the Pretoria Society of Advocates, who has in the past been appointed as an acting judge, stated that there is a massive shortage of judges.

“The first reason is the resources. There seems to be a reluctance from the government, specifically the Minister of Justice Mmamoloko Kubayi, to budget and to make provision for enough money to appoint more judges.”

Botes said acting judges are appointed from time to time by the Minister of Justice to give some relief and to alleviate the pressure in a specific division.

He said the High Courts in Pretoria and Johannesburg, known as the Gauteng Division of the High Court, are the busiest in South Africa.

“Judges are inundated with matters as the workload is simply impossible to attend to in a manner that is expected from a judge to do. If one has regard to the Constitution, the responsibility of a judge is enormous,” he said.

Botes asserted that no judge in South Africa views their appointment as a retirement position. Every judge in the country aims to uphold justice by correctly applying the law and delivering judgments that the public can comprehend.

Except for the smaller divisions of the High Court, such as Kimberley, Mthatha, and Grahamstown, among others, all the other courts in the bigger divisions, including Pretoria, Johannesburg, Pietermaritzburg, Durban, and Cape Town, are inundated with matters.

“There's a critical shortage of judges in South Africa, and that's something that needs to be addressed by the government urgently,” he said.

He said the unavailability of court dates in Pretoria until 2031 could lead to lawlessness, as people may feel they can breach agreements, incur debts, or engage in unlawful activities without fear of immediate consequences.

The adage "justice delayed is justice denied" highlights the injustice of the situation, stated Botes.

Like everyone else, Botes said judges experience anxiety, and stress, and are burdened by a massive workload.

Furthermore, he said the enormous workload that judges must endure can have tragic consequences.

He recalled that a judge in his division committed suicide a few years ago, and he believes the immense pressure he was under played a role. There are also instances where judgments have been outstanding for more than three years, which is a travesty of justice.

“It's unacceptable for litigants to wait years for a judgment after their case has been finalised in the High Court. It makes a mockery of the judicial system,” Botes said.

He said while the “wheels are coming off”, there is no urgency in the office of the Justice Minister to address the problem, which requires vision and ambition to rectify.

“In the Pretoria and Johannesburg High Courts, more than 120 000 case numbers are issued by the Office of the Registrar every year. How many judges are there? Eighty judges or less to attend to all these matters, and I'm not even talking about the historical backlog that in itself runs into hundreds of thousands of matters, that either await a trial date or await judgment. Within this process, there are time delays, such as the filing of pleadings, notices, pre-trial conferences, requests for further particulars, expert notices, discovery, etc.”

Botes warned that without leadership and immediate intervention, disaster is looming. “It's not critical as we speak, but if it carries on, I'm afraid in two or three years, the integrity of the justice system may come under severe ‘threat of attack’ because people exploit the current challenges.”

While the Constitution affords the public the right to a speedy and fair trial, Botes said the government is turning a blind eye.

Regarding mediation, Botes said it is underpinned by honesty and transparency, and it is subject to challenges like delay tactics by one or both parties who do not want the matter to be resolved.

He said that an appropriate, experienced mediator with integrity and the necessary gravitas to establish the rules, who is also familiar with legal proceedings, would have to be appointed.

According to Botes, litigants cannot be forced to mediate, and some cases cannot be mediated, such as divorce, Road Accident Fund matters, which make up 90% or more of litigation in the civil trial court in Pretoria and Johannesburg, and medical negligence claims, among others.

“I don't think mediation is the solution,” stated Botes.

He added that the conditions of the court facilities themselves are also a huge challenge that needs to be addressed.

He also highlighted that the remuneration and benefits that judges receive are far below what one would expect from senior public servants. “That’s also something that should be addressed and investigated; otherwise, the cream of the crop will not apply for judicial appointments.”

Ministry of Justice and Constitutional Development spokesperson Terrence Manase said the reason there are shortages of judges is that the judicial establishments of the Divisions of the High Court have never been reviewed to respond to the increasing number of litigations.

“The process of reviewing the judicial establishment has now been undertaken through the rationalisation process, which will guide the government on the additional number of judges to be appointed,” he said.

Manase said the Judicial Service Commission, on which the Minister of Justice serves, advises the president on the appointment of judges, thereby playing a crucial role in the selection process.

He said with regard to the management of caseloads, that function falls within the purview of the Judiciary, which is an independent arm of the State.

“The minister is committed to finding solutions to mitigate the impact of the limited financial resources, ensuring that the creation of additional judicial posts, necessary to address the current shortage, can proceed unhindered,” he stated.

Explaining how judges are remunerated, Manase said South African judges continue receiving a salary post-retirement and passed on to their spouses after death.

He said in South Africa, retired judges receive a pension that is equal to their salary. When a judge passes away, their surviving spouse receives a portion of the judge's pension. The average salary of a judge, according to the Ministry, is R2 108 470.

“Judges who are retired from active service continue to be paid a salary which is adjusted whenever the annual salary applicable to the judges is increased. They are also entitled to a once-off non-taxable gratuity which is paid in addition to the annual salary. When a judge dies, his or her surviving spouse is entitled to two-thirds of the salary which was payable to the judge until he or she (surviving spouse) dies.”

karen.singh@inl.co.za