Nkosikhulule Nyembezi
Oh South Africa, South Africa, you who continued to kill, harm, threaten and corrupt a third of magistrates in 2021/2022.
How often I have longed to see your mobilised community voices working together as advocates of administrative justice rights. As patriotic citizens, you should gather and speak with one voice against crime and corruption in our lower courts but you are not willing. Look, your magistrate’s courts are left desolate.
It is the second time since the Democratic Governance and Rights Unit (DGRU) at the University of Cape Town’s law faculty released its magistrates’ perception survey on their work conditions.
The survey captured the nature of threats to magistrates by asking about the harm or threats they experienced between October 2021 and October 2022.
Its survey results, released on January 31 and titled “Under Pressure”, revealed that magistrates were under increasing pressure, inside and outside the courts. They showed that almost 23% of magistrates said they were threatened or harmed once or twice because of their work.
A further 10% said this happened a few times. The two figures combined mean a third had been threatened or harmed in the past year, underscoring that they were one misfortune away from recusing themselves from adjudicating cases or seeking a job transfer to another town.
However, the survey results do not tell us how many of the 230 (13%) of 1 726 magistrates interviewed have since been driven out of service because of deaths, attacks, threats or corruption.
But they do reveal the severity of the problem as, for example, in the Western Cape, 39% (four in 10) of magistrates experienced this degree of direct harm and threat, which, according to DGRU researcher Mbekezeli Benjamin, “is of serious concern as it threatens judicial independence and the rule of law”.
Throughout the survey results, the pendulum of the gravity of the danger swings backwards and forwards between the two halves of the respondents in each province. Half as many surveyed magistrates nationwide who were struggling in 2021 are now desperate as the sources of danger continue to spread. The government is unable to meet basic security needs.
The problem of organised crime and all its attendant harms has dramatically worsened.
Some threats ended at the Magistrates Commission, where magistrates asked for a transfer to other courts, for safety reasons. The approval of such transfers is often unpredictable and depends on several factors, including whether the magistrate reported the threats to law enforcement agencies.
This snapshot of life for those in charge of lower courts is full of upsetting details.
Many reported threats related to the outcome of a matter the magistrate was presiding over. A magistrate in Ulundi, KZN, reportedly received death threats from a minibus taxi association for denying bail to some of its members and colleagues. Others received threats when they had gang-related cases before them in court.
Shockingly, on the questions related to security inside and outside the court building and in the courtroom, more than a quarter indicated non-existent security, including in the parking area.
A breakdown of responses by geographic location of respondents reveals a worrying pattern of the widespread occurrence of the phenomenon. In South Africa today, everyone is a loser when citizens threaten or harm a third of our magistrates. We should see ourselves as losers when almost half of magistrates admit that some, most or all magistrates are involved in corruption.
When asked: “How many of the following people do you think are involved in corruption?” almost half (49%) of magistrates said some, most or all, were involved. More than 10% said they or a magistrate they knew was offered a bribe “once or twice” or several times in the past two years.
Another finding of particular concern was that 10% of those aware of a bribe identified another magistrate as offering the bribe.
“It is extremely concerning that there is a perception of corruption among magistrates, from magistrates themselves. The results suggest that some who have no place in the magistracy seem to have entered it,” noted the report.
The plight of magistrates is an urgent moral mission requiring co-operation from inside and outside the government. The choice of words in the survey results points to a growing sense that terms such as “fairness” and “rule of law”, commonly used in the administration of justice discussions, fail to convey the need and urgency to address the factors militating against a safe work environment for magistrates.
Any solution to the crisis must involve raising security inside and outside courtrooms and an intensive national moral regeneration programme. However, salary improvements and training on good ethical conduct are also crucial.
Beyond such practical steps, there is also a colossal communications challenge. Public attitudes to the criminal justice system have also become polarised in recent years due to a shrinking budget to invest in critical areas such as qualified personnel and court infrastructure.
This opens chances of opportunistic empty promises of a more generous budget allocation, a risky possibility by politicians courting popularity.
South Africans must work together to ensure access to justice and contribute towards rebuilding a magistracy and a court system free from the crippling dangers faced by court officials.
We all know this will take political courage and a workable policy. Tackling killings, threats, corruption and the myriad social problems associated with crime should not be regarded as the exclusive purview of anti-corruption civil society organisations, as important as they are, but a national priority that concerns everyone.
As we head into another election, there’s an opening for a leader with a fresher message – say that South Africans should work together to protect our magistrates and courts and start acting more like the winners so many are.
Nyembezi is a researcher, policy analyst and human rights activist
Cape Times