Mthatha justice hobbled

All South Africans are equal before the law and have the right of access to justice. But these constitutional provisions might not help you if you need to assert or defend your rights in the Mthatha High Court.

If you live within the jurisdiction of the court – between the Great Kei and Mtamvuna rivers and including communities in the furthest north-eastern parts of the Eastern Cape – you’ll soon discover the general malaise associated with the administration of justice through the Mthatha High Court.

It is reflected in:

l The broken, dilapidated building, where the roof leaks when it rains, airconditioners don’t work and water might run out of the back of the precinct but not through the taps;

l The lack of security for the public and court officials;

l The difficulty of getting your case on the roll timeously because of a shortage of judges and a reduction in the daily hearings of opposed matters; and

l The possibility that you might have to travel to Grahamstown to appeal a decision in your case because of a prescript that only the seat of the court can hear full bench appeals.

The court has a permanent bench of seven judges and currently has two acting judges to serve 28 magisterial districts.

The most telling indictment of the democratic government is that it has done nothing to upgrade the court building erected by Transkei bantustan leader Kaiser Matanzima.

A flurry of meetings involving the minister and deputy minister of justice and constitutional development, scheduled between December last year and this month, might suggest that government has finally woken up to the crisis in the court.

But Transkei Society of Advocates chairman Vusumzi Msiwa is blunt about the fact that the sudden burst of attention is not a signal that progress is being made.

“Yes, we got a receptive mind but one cannot be optimistic. We were talking with somebody who told us he has no authority as far as the human resource or infrastructural issues are concerned,” he said.

The provision and maintenance of court buildings and related physical infrastructure are the responsibility of the minister of public works. It is up to the head of the Eastern Cape division of the High Court, Judge-President Themba Sangoni, to deploy his slate of judges as needs arise.

A proposed visit to the province by Justice Minister Michael Masutha to meet with Sangoni on February 20 also gets short shrift from Msiwa.

“We’re less interested in jolly visits. We want somebody with authority to deal with these issues and give us a definite answer as to when these things can be done,” he said.

Msiwa said the problems at the Mthatha court have been there “since time immemorial” but the Mthatha advocates’ ire was raised most recently by two directives from the judges.

The first “arbitrarily” limited the number of opposed civil cases that could be placed on the roll, while the second directed that all appeals from Mthatha cases should be heard in Grahamstown, the seat of the Eastern Cape High Court.

“We as advocates are saying: Enough is enough. There is what we see as a marginalisation of this high court. That’s what annoys us.

“This system – whether intentionally or unintentionally or unwittingly – just undermines the services of this court to the people of this area. This is a social inequity, we are not going to keep quiet.”

National Association of Democratic Lawyers national deputy president Mvuzo Notyesi said Mthatha was the busiest court in the province.

“Justice is supposed to be brought closer to the communities. The decision to remove appeals, and a reduction of opposed and unopposed matters is ludicrous and envisaged to close down the court and retrench court staff.

“If Mthatha High Court’s jurisdiction is reduced by 80% it will no longer be viable as a high court,’’ said Notyesi.

Sangoni has dismissed concerns around appeals, saying nothing had changed and that Mthatha appeals continue to be heard in Mthatha.

Although the legal framework provides for full bench appeals to be heard at the seat of the court, there had been no directive on the issue, he said. The duty roster put out by Sangoni’s office also lists judges allocated to hear appeals in Mthatha.

But Msiwa is adamant that local advocates have not been advised formally that appeals will continue to be heard in Mthatha.

Ironically, the Superior Courts Acts provides for the Supreme Court of Appeal to conduct circuit courts around the country, which will have the effect of bringing justice closer to the people.

Jeffery, during his second meeting with Mthatha lawyers last week, said that new posts for judges had been frozen and called for comparative statistics on the case loads of the various high courts in the Eastern Cape, in order to assess the need for more judges and courtrooms.

But a simple examination points to the stark differences between Mthatha and Port Elizabeth, where the high court is undergoing a multimillion-rand upgrade which includes additional courtroom space. The justice department did not respond to queries on the updated costs of the renovations yesterday.

The Port Elizabeth court also provides two judges to hear weekly motion court matters, which include applications for divorces, as opposed to a single judge in Mthatha.

Msiwa said that those tasked with managing the courts should look at the volume of cases and budget accordingly.

“The complement of judges for Transkei is the same as had been there before the democratic government took over,” Msiwa said.

“We are in a constitutional dispensation; litigation everywhere in South Africa has increased because people are there to defend or enforce their rights. You can’t keep saying for 10 years ‘I have no budget’. There must be something wrong with your auditing of your work.”

Currently, judges in the Eastern Cape are routinely switched from one high court to another, an initiative of former JP Doc Somyalo to overcome the ongoing delays in repealing the Transkei and Ciskei constitutions, which continued to regulate the Mthatha and Bhisho high courts respectively. Despite the area being one province under the democratic dispensation, the homeland constitutions were only repealed by the Superior Courts Act 17 years after democracy, in 2013.

The current practice of judges travelling between Grahamstown, Bhisho, Port Elizabeth, Mthatha and East London ought to make it possible for Sangoni to allocate an additional judge from his existing quota of judges to Mthatha without the need for a permanent new post.

At a push, government also could unfreeze the posts for judge-president of the former Transkei and Ciskei high courts which, technically, are still on the books, according to the deputy minister.

A new deputy judge-president position for Bhisho also remains frozen, despite being advertised last year.

Jeffery told the Dispatch this week that rationalisation of magisterial districts was ongoing. This will affect high court jurisdictions and posts, but he could not say when the process would be implemented in the Eastern Cape.

United Democratic Movement MP Mncedi Filtane intends to take the Mthatha High Court issue up in parliament. “This will have a bad effect on the far-flung and impoverished people in the former Transkei. The court is serving a population of about four million in the former Transkei; we cannot allow a situation that Mthatha High Court is rendered useless and people denied justice,” said Filtane.

Justice Department spokesman Mthunzi Mhaga said they were looking at reprioritising funds to improve security in high-risk offices.

“The installation of security systems was not done because of budgetary constraints,” said Mhaga.

Speaking on the administration of high courts, Office of the Chief Justice spokesman Nathi Mncube said the issue of appeals was informed by the promulgation of the Superior Courts Act.

“The act gives concurrent appeal jurisdiction with a local seat. The judge-president may direct that an appeal from a local seat be heard at ,’’ said Mncube.