Mandisa Maya is set to become South Africa’s most powerful chief justice since the advent of democracy after the government moved this week to introduce changes aimed at strengthening “the institutional and administrative independence” of the judiciary.
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.
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 chief justice, will have full control over the judiciary’s budget and internal financial systems.
She will also have “the ability to appoint and manage [the judiciary’s] own administrative personnel, an independent governance and oversight framework akin to that of parliament, administrative structures and systems wholly under the authority of the chief justice”.
Asked whether this would make Maya the most powerful chief justice in the history of the South African judiciary, Kubayi replied: “Yes, she will oversee a fully independent and single judiciary.”
Having been appointed for a 12-year non-renewable term as the first female chief justice in September last year, Maya is likely to be the first chief justice to enjoy these sweeping new powers once the law is passed.
Kubayi said legislation was in the making that might also, for the first time, result in a sitting chief justice appearing before a parliamentary oversight committee as the executive authority of the judiciary.
At present, the head of administration in the office of the chief justice (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.
It is envisaged that the new legislation will provide for the chief justice to become the executive authority. The secretary-general would be the accounting officer. This will be clarified in the enabling legislation currently under development
— Mmamoloko Kubayi, justice & constitutional development minister
“It is envisaged that the new legislation will provide for the chief justice to become the executive authority. The secretary-general would be the accounting officer. This will be clarified in the enabling legislation currently under development.”
Kubayi said that in terms of the mooted legislation, the judiciary will also be responsible for its budget. Currently, the judiciary receives administrative support from the department of justice, and its budget forms part of the department’s allocation.
“Under the new dispensation, the judiciary will prepare and manage its own budget. It will directly account to parliament. It will oversee all internal support functions, including human resources, procurement and court operations,” Kubayi said. “It will transition from being supported by a department in the executive to becoming a self-managed, constitutional institution.”
According to Kubayi, the justice department will be responsible for developing legislation in the broader justice system, though her department will not be directly responsible for the judiciary.
The justice department will offer “support access to justice through legal aid and transformation of the legal profession, and uphold its constitutional duty to strengthen and support the independence of the judiciary without encroaching on its institutional functions”.
Kubayi said moves to ensure the judiciary is fully independent came from the recognition that a modern and democratic constitutional state requires it, and that the question of separation of powers among the three arms of state needed be fully addressed.
“South Africa’s democracy is maturing, and this evolution towards full judicial independence is an important milestone that will contribute to enhancing public confidence in the courts and the overall functioning of our democratic state,” she said.
The move to make the judiciary fully independent of the government was first announced by President Cyril Ramaphosa after a meeting he and Kubayi had with senior members of the judiciary earlier this month, in which they raised concerns about being too reliant on the state.
Of particular concern was that though by its nature the judiciary was an independent third arm of the state, its functions remained under the control of the department of justice & constitutional development.
They were also not happy that the judiciary had to get approval on a range of issues — including its budget and the filling of vacancies — from the minister of justice.
Speaking at the Constitutional Court’s 30th birthday celebration on Friday, Ramaphosa said he had set up a team to work on making the judiciary fully independent of the government.
The judiciary will now independently run its affairs — as do the executive and the legislature — and will have its budget allocated directly by the Treasury, the president said.
He said the dependence of the judiciary on the government had been odd, and a joint committee would now put in action a process to make the judiciary independent.
“It has been an anomaly of our constitutional architecture that we’ve had parliament as an independent institution in our constitution fully and properly recognised, and the executive, but the judiciary has — on an unfair basis — had to depend on government on a variety of matters,” Ramaphosa said. This included getting approval on the appointment of people, as well as not being in complete control of its own budget.
“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, at the same level as the executive and the legislature.”
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