Chief Justice Directive 'Beyond His Powers'
Mpho Mokwape | Tuesday November 16, 2021 06:00
The LSB says on top of that, the directive does not offer solutions to the already existing problems within the judiciary.
According to the LSB chairperson Tshekiso Tshekiso, the Chief Justice went beyond his powers on the directive to make rules in respect of practice and procedure to bail appeals.
The directive of 2021 concerning bail appeals, states that appeals against refusal to grant bail or the setting of excessive bail conditions should not be enrolled unless a record of proceedings had been lodged.
Tshekiso explained that although the Chief Justice was not obligated, it would have been great if the legal professions as a representative of accused persons who are adversely affected by the directive were consulted and that they would have been able to highlight the challenges that the directive presented.
In an interview to clarify more on the issue, Tshekiso said the directive went beyond the power of the Chief Justice to make rules in respect of practice and procedure.
“The interpretation of constitutional provisions and appearing to direct other judicial officers to follow the interpretation has nothing to do with practice and procedure. The provisions at issue deal with entrenched rights of individuals and cannot be seen limited in their interpretation through a practice directive,” he said.
He explained that judicial independence entails that every judicial officer should make decisions independent of influence from any other person, without fear or favour based on their understanding of the law and facts of which they do it subject to judicial precedent, especially on similar cases decided by higher courts.
Asked if the directive isn’t a good development that could allow judicial officers to avoid making mistakes caused by inadequate information, the LSB chairperson said the directive would have been a good development if there was no problem with the timeous transcription of trial records.
Tshekiso pointed out that their concern was with the blanket nature of the directive more so that the courts have for a long time had issues with transcription of trial records.
“Courts are presently inundated with appeals that cannot be heard on account of trial records, which are for a long time on the transcription cue. The result is people serving large portions of their sentences. Some of them succeed on their appeal and are left with no remedy for the lengthy period spent in jail awaiting appeal,” he said.
He added the practice directive made matters worse without proposing a solution to the years-old problem of transcription of records and making it impossible to secure bail pending appeal until the records of proceedings have been transcribed.
Tshekiso noted that part of the solution would be coming up with ways to expedite the transcription of records and admitting appellants to bail to minimise the prejudice.
Quizzed if the LSB often holds conversations or engagements with judicial officers, especially the Chief Justice to address these kinds of issues that seem to be affecting the judiciary, Tshekiso said their interactions are limited in nature and in time and that they do not afford adequate opportunity to address matters of mutual concern.