Late judgments: Is the Cape High Court doing better?
Something troubling has shaken our confidence in the data
We have been reporting the problem of judgments being delivered late at the Western Cape High Court since December 2017. Then we reported that at least 11 judgments were months overdue.
The definition of a late judgment is clear. According to norms laid out for judges in 2014 by Chief Justice Mogoeng Mogoeng, judges should hand down their judgments “no later than three months after the last hearing”. We’ve been generous and counted a late judgment as one that has not been delivered six months since the last hearing. The reason why we’ve used this criterion is that all judges would have had at least one break from hearings over six months, which they could use to write their outstanding judgments.
In the latest list of reserved judgments, from 20 August 2020, only two judgments meet these criteria. And the judge who is supposed to deliver those two judgments may have a reasonable excuse. He was writing a seminal, massive 219-page judgment that was handed down at the end of August.
On the face of it things appear to have improved greatly. But we noticed something that calls into question the quality of the reserved judgment list and shakes our confidence in this apparent improvement.
On 25 August Judge Nathan Erasmus delivered a judgment that found the appointment of the PRASA Administrator unlawful. The case had been brought by commuter activist group #UniteBehind on an urgent basis. It was heard in late May. When reserving judgment Erasmus asked the sides to try to reach an accommodation with each other but after a week he was notified this was not possible. Urgent matters are supposed to be ruled on within days. But it took Erasmus three months from the date the judgment was reserved to hand down his ruling. In that time the unlawful situation at PRASA continued, with the possibility of further deterioration of efforts to fix Metrorail.
What’s more, this case was not on the 20 August list of reserved judgments, nor any of the reserved judgment lists that we have seen since June. In other words, it appears that Judge Erasmus did not notify those who compile the list of reserved judgments, that he had reserved judgment in this urgent matter.
Judge Erasmus has been named previously in our reports on late judgments.
The list of reserved judgments is based on an honour system: Judges are expected to ensure their reserved judgments are listed.
We wrote to the spokesperson for the Judiciary, Nathi Mncube, and asked him to send these two questions to Judge Erasmus:
1. Why did Judge Erasmus not list [the PRASA Administrator case]?
2. Can Judge Erasmus assure us that in no other cases has he failed to list a reserved judgment?
Mncube definitely received our questions, because he responded: “In terms of what law, rule or policy should Judge Erasmus have listed the judgment in question?”
There is no law or policy that compels Judge Erasmus to list his judgments. It’s a matter of workplace honour and competence. We asked Mncube to forward our questions to the judge. This is as per the process with media queries that the Judiciary itself has insisted upon. That was nine days ago. We have not heard anything since. Possibly it is because the judiciary email system has been down since then - yet another worrying aspect of the management of our court system.
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