Administration of Justice
Jurisdiction | South Africa |
Author | Brickhill, J. |
Pages | 1-69 |
Published date | 10 March 2021 |
Date | 10 March 2021 |
Citation | 2019/2020 YSAL 1 |
DOI | https://doi.org/10.47348/YSAL/v1/i1a22 |
1
1. INTRODUCTION
While thi s is the inaugural is sue of the Yearbook of South African Law, this
chapter on the Admini stration of Justice is the successor to an eq uivalent
chapter of the Annual Survey of South African Law. Until 1962, the Annual
Survey of South African Law inc luded a chapter entitled ‘General’, which
was the precursor to the c hapter entitled ‘The Admini stration of Justice,
Law Reform and Jurisprudence’ published from 1962 to 2016.1 The chapter
became a forum for a critica l account of the administ ration of justice,
discussing topics th at go to the heart of the legal system and th at would
seldom be found elsewhere. The authorship of the chapter has c hanged over
the yea rs,2 but its purpose has always been to provide an an nual appraisal of
the state of the admini stration of justice in South Africa. The admi nistration
of justice is understood to include the cour ts, the legal profession, police,
prisons and prosecut ing authority. In addition, in some years we have had
regard to important comm issions of inquiry or t he work of constitutional
institutions such a s the Public Protector.
In most years of writing th is chapter’s predecessor, we have encountered
an unexpected m ajor development or controversy that has required special
* LLB (UCT) MSt (Oxon); Member of the Johannesburg Bar; DPhil Candidate and Tutor in
Human Rights Law, University of Oxford; Honorary Research Associate, University of Cape
Town; Research Director, Oxford Human Rights Hub. ORCID: https://orcid.org/0000-0002-
3871-1524.
† BCom LLB (UCT) LLB (Cantab) DPhil (Oxon); Professor Emeritus of Public Law and
Interim Director, Graduate School of Business, University of Cape Town. ORCID: https://orcid.
org/0000-0001-5193-9227.
‡ BCom LLB (UCT) MPhil (Cantab) LLD (HC, Cape Town); Judge President of Competition
Appeal Court; Honorary Professor, Faculty of Law, University of Cape Town.
§ BA (LLB) (Wits) LLM (Cantab); Senior Counsel; Member of the Johannesburg Bar,
Honorary Professor of Law, University of the Witwatersrand.
1 The preface to the Annual Survey of South African Law (1962) announced this change,
referring to the ‘General’ chapter as a ‘rag-bag section’.
2 The current authors wrote the equivalent chapter in the Annual Survey of South African
Law from 2010 to its final issue in 2017.
Administration Administration
of Justiceof Justice
Jason Brickhill*, Hugh Corder†, Dennis Davis‡ and Gilbert Marcus§
2019/2020 YSAL 1
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YEARBOOK OF SOUTH AFRICAN LAW
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https://doi.org/10.47348/YSAL/v1/i1a22
consideration, such as a controversy around the appointment of a new Ch ief
Justice or the outcome of a commission of inquir y. This year – in common with
the other chapters in t his volume – we have had to begin by engaging with
the implications of the COVID-19 global pandemic for the admini stration of
justice. We situate the discussion by recal ling the period of emergency r ule
in the late 1980s, comparing and contrasti ng that period with the COVID-19
lockdown regulations in s ection 2. In section 3, we consider in broad terms
how the courts have decided the chal lenges to COVID-19 regulations and the
implications of their decision s for the relationships between the branches of
government. We then home in on how the courts and legal professiona ls
have had to adapt in order to function.
From section 4, we turn to the legal profes sion, beginni ng with some
key implications of the transit ion to the Legal Practice Act (LPA).3 We
comment on the establishment of the Pan A frican Bar Asso ciation of South
Africa, a new professional assoc iation for advocates. We discuss some legal
difficulties t hat arose relating to the ad mission of legal practitioners under
the LPA. The remainder of the section deals with lega l misconduct and the
cases that have arisen i n the period under review.
Section 5 then tu rns to the judiciar y, with two major topics covered this
year. The first is the controversy and mi sconduct complaint arising from
comments made by Chief Justice Mogoeng Mogoeng on Israel and Palesti ne.
The second major topic, picking up on a saga that we have been covering
since it began over a decade ago, is the latest set of misconduct complaints
(and counter-complaints) regarding Judge President Hlophe, head of the
Western Cape High Court. Section 6 then co nsiders the magistracy, with a
discussion of a case on appoint ment of magistrates.
Section 7 shif ts its focus to the police, discu ssing an importa nt case
challenging t he allocation of police human re sources in the Western Cape,
analysing recent juri sprudence on police liability in delict for the conduct of
members of the police services, before coveri ng the latest annual statistics on
crime. Finally, we address developments relating to the prisons, includi ng
the appointment of Justice Edwin Cameron as t he Judicial Inspector of
Prisons and the work of the Judicial In spector in secur ing the parole of
prisoners to reduce overcrowding and mitigate the risk of t ransmission of
COVID-19 in prisons.
3 28 of 2014.
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AdmINISTRATION OF JUSTICE 3
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2. LEGISLATION
2.1 COVID-19 AND THE FUNCTIONING OF THE COURTS: FROM
EMERGENCY TO DISASTER
2.1.1 Emergency r ule: 1985–1990
In the space of 30 years, the admin istration of justice in South Af rica has
been faced with two profound chal lenges: the emergency regime of the
late 1980s and the coronavirus pandemic of 2020. The successive states of
emergency from 1985 to 1990 saw the invocation of powers akin to marti al
la w.4 The resourc es of the state were mobilised to quell decades of grow ing
unrest. Thousand s of citizens, including c hildren, were detaine d without
trial, allegations of tort ure were widespread, organisations and individuals
were banned and a draconia n regime of censorship was i mposed. Civil
liberties were brutal ly repressed and the courts gave emphatic endorsement
to sweeping executive powers.5
The emergency measures were an authorita rian response to a pol itical
revolt against apartheid. These heavy-handed measure s lacked political
legitimacy save in the eyes of the white m inority. There were many challenges
in the courts. Thes e included challenges to the de claration of the state of
emergency itself, to the myriad regul ations that were promulgated and to
decisions relating to the a rrest and detention of individuals. Although there
were occasional successes, by the th ird emergency in 1987, cases had reached
the Appellate Division, which left litt le room for meaningf ul challenge. It
was a dark period for the law. Commentators were strident in their criticism
of the Appellate Division’s decisions.6
The degradation to the law wrought by the emergency deci sions did not
simply reside in their outcome, oblivious as they were to the destruct ion
of the remaini ng civil libertie s that existed in the dyi ng days of apartheid.
It emerged that the process was the outcome of a form of manipu lation of
the case-allocat ion process and a deliberate endeavour by then Chief Justice
Rabie to ensure that only a selec t few of his colleagues in Bloemfontein sat on
emergency cases. Thi s select few comprised what the late Stephen Ellmann
described as ‘the emergency team’.7 Ellmann ana lysed the composition of
the Bench in 12 emergency cas es. Although the Appellate Division at the
time comprised 22 judges, it emerged that there was a n overwhelming
4 The states of emergency were declared in terms of the Public Safety Act 3 of 1953.
5 For an overview of the emergency powers imposed pursuant to the successive states
of emergency, see the chapters entitled ‘The Administration of Justice’ Annual Survey of South
African Law from 1985–1990.
6 See, for example, N Haysom and C Plasket ‘The War Against Law: Judicial Activism
and the Appellate Division’ (1988) 4 SAJHR 303; J Grogan ‘The Appellate Division and the
Emergency: Another Step Backward’ (1989) 106 SALJ 14; and C Forsyth ‘The Sleep of Reason:
Security Cases before the Appellate Division’ (1988) 105 SALJ 679.
7 Stephen Ellmann In a Time of Trouble (1992) 64.
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