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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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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