Courts in crisis, but solutions are simple

A recently released report by the University of Cape Town’s (UCT) Democratic Governance and Rights Unit (DGRU) has revealed that 16% of female magistrates experienced sexual harassment at work in the 12 months preceding the survey which took place between February and August 2021. Even more alarming is the fact that the most commonly identified perpetrators are other magistrates.

The report, titled Isidima – Magistrates’ Court Users Survey Report 2023 was launched on 31 January 2024 by the Faculty of Law’s DGRU. It focused on the work environment in, and the functioning of South African Magistrates’ Courts. While the research indicates that there are many issues in these tribunals, it also shows that there are some positives.

According to the report, “This is the first time that the extent of sexual harassment within the magistracy has been measured. It strongly suggests that the magistracy is not immune to the sexual harassment which occurs in broader society, and even in the courts.”

This lack of information is not confined to issues of gender-based violence. Despite nearly all civil and criminal cases being heard in the Magistrates’ Courts, there has historically been little information available that sheds light on their ability to carry out justice and the working environment in which magistrates must function.

Remedying this lack of understanding was the driving force behind the research that culminated in the release of the report “Under Pressure: The Magistracy After COVID-19 – The 2022 Survey of South African Magistrates’ Perceptions of their Work Environment”.

Speaking to UCT News ahead of International Women’s Day, which is celebrated on 8 March, Mbekezeli Benjamin, a researcher who works on the Judges Matter programme in the DGRU said: “Our motivation was to get to know and understand more about the Magistrates’ Courts. Upwards of 90% of all cases in our courts will start and finish in these courts, so this is where most South Africans access justice”.

“There’s very little that’s known and understood about the magistracy, so we thought we would try to break this information drought by doing some research to find out what’s happening in these courts.”

The state of the Magistrates’ Courts

The Magistracy After COVID-19 report follows from a perception survey that was answered by a representative sample of magistrates across demographics and ranks within the magistracy in all nine provinces.

“What we’re trying to do is give their perceptions of their working environment on issues such as safety in courts, court infrastructure, the workloads they have, some of the stresses that they have to deal with, issues of remuneration, how well they’re able to carry out their functions and what motivates them to stay in the magistracy,” explained Benjamin.

“The magistrates say they’re working hard and this shows in some of the rates of finalisation of cases.”

On the face of it, the report doesn’t seem to provide much positive news. Aside from the prevalence of sexual harassment, work stress is high. More than a third of magistrates work more than 50 hours per week and 52% deem their workload to be too heavy. This has an effect on job satisfaction; only 33% of respondents are satisfied with court conditions and pay, while 78% find that the existing support structures at their disposal are inadequate.

However, noted Benjamin, there are other “really positive” movements that have been made since the 2019 report was published.

“Things like workload have increased, but the quality of justice is still quite good. The magistrates say they’re working hard and this shows in some of the rates of finalisation of cases.

“Court users also say that they are treated with dignity, their constitutional rights to legal representation and to be assisted in their own languages are being upheld. Those kinds of positive themes are also repeated in the complementary 2023 court-user survey, which we published alongside the magistracy report. So, there’s a lot of positivity at the same time as these difficulties.”

Big problems, simple solutions

Benjamin explained that many of the difficulties in these lower courts arise because the “Magistrates’ Courts are an ecosystem” and the majority of issues are interrelated. With its understanding of these issues, the DGRU has posited a variety of easy-to-implement solutions that could drive improvements relatively quickly.

“One of the practical steps that we believe should be taken is improving the training programme for new magistrates. That support should go beyond just a few months and extend to about a year.

“Digitisation of records, mobile recording machines and more resources, like research and administrative staff, would also help to relieve some of the pressure on these and more experienced magistrates,” noted Benjamin.

“Police should take threats that are reported by magistrates seriously and these should be dealt with and as soon as they arise.”

“Infrastructure should be a key priority – simply having a fence around the court precinct and having clear, well-lit and marked paths, doors and gates would go a long way to help [in] improving safety.

“More safety officers should be appointed to the different courts and the police should take threats that are reported by magistrates seriously and these should be dealt with as soon as they arise.”

In terms of sexual harassment, the first step would simply be to draw up a policy on this type of conduct. “One of the things that we believe should be a key intervention to protect, particularly female magistrates, is just to have a sexual harassment policy in place.

“Currently, there is no policy. These issues must be dealt with by the Magistrates Commission as part of a misconduct process, which is extremely laborious. There should be a clear policy that speaks to what should happen, the internal measures that must be put in place to prevent this type of behaviour and how we can protect the victim when these types of cases are going on,” explained Benjamin.

This lack of policy to protect and support female magistrates is especially pertinent as we move towards International Women’s Day, whose 2024 theme focuses on creating a sense of belonging, relevance and empowerment for women – both at work and in the world in general.

A positive outlook

Since the release of “Magistracy After COVID-19” and its sister publication, “Isidima – Magistrates Court User Survey Report 2023”, the research has “taken on a life of its own”.

“We’ve been lucky enough to have both the deputy minister of justice and the chairperson of the Magistrates Commission at the launch. It was the first time we managed to get the judiciary, the government, civil society and academia into one room to discuss the issues of the Magistrates’ Courts. So, that was really powerful.

“We’ve also presented the reports at the Regional Courts Presidents’ Forum and to the Magistrates’ Commission. Then there is the Department of Justice and Constitutional Development’s conference, where I was able to speak about the research, what we found and how those insights can assist in the reform of our criminal justice system,” said Benjamin.

“So, we’re pleased that the different stakeholders are taking up the recommendations and there seems to be some movement towards trying to understand what the research shows.”

“We have also met with the deputy director general responsible for court administration and their team to discuss what comes from our research and recommendations that they can take up as the government institution responsible for the courts. Parliament has also indicated that there’s interest from the justice committee.

“So, we’re pleased that the different stakeholders are taking up the recommendations and there seems to be some movement towards trying to understand what the research shows and how people can respond. That for us is what’s really important.”