CHRIS OXTOBY & JUDITH FEBRUARY | The role of the Chief Justice and judicial leadership – time for a reset?

In an evaluation of Chief Justice Mandisa Maya’s first year as head of the judiciary, civil society organisation Judges Matter note that whilst the Chief Justice has “achieved notable successes” thus far in her tenure, concerns have been raised “that the sheer weight of the role is taking her away from her primary judicial duties”, with the Chief Justice having “presided over relatively few” of the Constitutional Court’s hearings, and not yet having written a judgment as Chief Justice.

The question of a chief justice’s absence from hearing cases has been a longstanding concern. In 2018, media reports highlighted that the then–Chief Justice, Mogoeng Mogoeng, had been absent from over half of the cases heard by the court until November of that year.

A 2022 article by academics Nurina Ally and Leo Boonzaier notes the “conspicuous absences” of Mogoeng and then Deputy Chief Justice, Raymond Zondo (the latter due to his role in chairing the State Capture commission of inquiry) from sitting to hear cases.

The authors’ analysis indicated that Mogoeng had participated n 67% of the judgments handed down by the Constitutional Court during his tenure.

By contrast, two of the most senior judges on the Court at that time (Justices Jafta and Khampepe) participated in over 80% of judgments handed down over the same period.

Research by Freedom Under Law, due to be released shortly, confirms that the Chief Justice has sat in relatively few cases, but also that the issue may be a broader one, in that heads of courts of the superior courts generallyare hearing fewer cases, and therefore delivering fewer judgments, than might be expected.

For this analysis, we examined the judgments reported on the SAFLII and LawLibrary South Africa databases from the beginning of September 2024 (when Justice Maya was first appointed Chief Justice) until the end of July 2025.

Of the 29 judgments of the Constitutional Court reported during this period, Chief Justice Maya was only part of the panel 11 times (under half of the cases), without writing any judgments.
Similar patterns are evident for the heads of many of the other superior courts.

For example, Supreme Court of Appeal (SCA) President Mahube Molemela only sat in two of the 175 cases where the SCA delivered judgments during this period, and none of the judge presidents of the high courts sat in more than 20% of the reported cases.

Indeed, the ratio of cases in which the Chief Justice has sat compares favourably with other heads of court. In several instances, heads of court appear not to have sat in any reported cases during the sample period.

Some caveats can, of course, be taken into account. Judges may be on leave or be acting temporarily in another court (it has, for example, been common in recent years for high court judge presidents to act as judges of the Constitutional Court).

And heads of court do have many administrative and other responsibilities that demand their attention. But nevertheless, the trend of leaders of the judiciary spending less time presiding over cases is a cause for concern.

It invites serious consideration about what judicial leaders are prioritising, and whether it is desirable for them to be taken away from the core function of a judge.

If, as we argue, this is not a sensible division of labour, then serious consideration needs to be given to what reforms are necessary to ensure our senior judges spend more time hearing cases and writing judgments

Traditionally, the head of a court was seen as providing intellectual leadership of the court. This was particularly so in the case of the Chief Justice, who was expected to provide intellectual leadership for the whole judiciary.

One can recall such luminaries as Michael Corbett, Arthur
Chaskalson, Pius Langa and Sandile Ngcobo, all of whom provided such intellectual leadership during their tenures as Chief Justice.

But if a Chief Justice, or other senior leaders, are not sitting in cases they are not writing judgments that contribute to the development of the law and are then hardly able to provide intellectual leadership to their colleagues.

This is especially significant in a context where the judiciary has lost a large number of senior judges, particularly from the SCA and the Constitutional Court, in recent years.

Indeed, it has beenmany years since the Constitutional Court had its full complement of permanent judges.

In these circumstances, it is even more important that the Chief Justice and other heads of court provide intellectual leadership to the judiciary.

As far as Chief Justices are concerned, part of the problem is that the role has expanded significantly in recent years, particularly since the establishment of the Office of the Chief Justice (OCJ), an initiative designed to increase the judiciary’s independence by giving judges more control over the administration and governance of the judiciary.

Earlier this year, government announced that it was taking steps to finalise the process of establishing the judiciary as a fully independent branch of government.

The announcement was widely welcomed, but as the process is finalised, it is important to ensure that the heads of court are not so burdened by administrative responsibilities that they are not able to fulfil their core function of judges, namely, hearing cases and delivering judgments.

There are various ways in which this might be achieved. It will be important that when these reforms are finalised, the judiciary is provided with properly capacitated and competent administrative support structures to ensure that judges are not bogged down by organisational minutiae.

It may also be a good time to re-evaluate the non-judicial functions which have become vested in judges, and to re-allocate or jettison those which it is not essential for judicial leadership to perform.

Many of these might just as easily be performed by a senior retired judge, such as a former Constitutional Court of SCA judge.
Heads of court themselves should also strive to ensure that they continue to hear cases and deliver judgments as often as possible, notwithstanding the other demands of their roles.

It is good for the image of the judiciary to see its leaders ‘leading from the front’ and providing the intellectual guidance and leadership that has always been associated with these positions.