South Africa: Who Holds Acting Judges Accountable for Late Judgments?

The Legal Practice Council says it has taken action but it has not yet amended its code of conduct to reflect this

Acting judges are responsible for more than half of South Africa's late court judgments. But when their terms end, holding them accountable for outstanding judgments becomes complicated.

According to the last available report, there were 302 reserved judgments outstanding for more than six months, of which 163 were from acting judges.

The problem is particularly stark in the Labour Court with 102 late judgments across its divisions in Cape Town, Durban, Johannesburg and Gqeberha, of which acting judges were responsible for 96. Durban's Labour Court had 31 late judgments, all by acting judges. In Johannesburg, acting judges were responsible for 50 of the court's 51 late judgments.

Acting judges are temporarily appointed to assist courts, often to address workloads, vacancies or backlogs. Many are practising advocates or attorneys who return to legal practice once their acting terms end.

The Judicial Norms and Standards state that judgments should be handed down within three months of a hearing. Permanent judges who fail to do so can face complaints through the judicial disciplinary system. But difficulties arise when an acting judge leaves office with reserved judgments still outstanding.

The accountability problem came into focus in 2024 when KwaZulu-Natal Judge President Thoba Poyo-Dlwati filed a complaint against a former acting judge who had five reserved judgments outstanding. The Judicial Conduct Committee (JCC) declined to recommend a tribunal hearing, finding the conduct did not meet the threshold for gross misconduct.

"It would be procedurally irrational to recommend a tribunal where it is apparent that there is no office from which the respondent [acting] judge is to be removed," the JCC said.

The ruling highlighted concerns about what mechanisms exist to hold former acting judges accountable.

A legal opinion prepared for the Legal Practice Council (LPC) by the Democratic Governance and Rights Unit at UCT concluded that an accountability gap exists.

The opinion found that once an acting judge leaves office, the Judicial Service Commission no longer has jurisdiction over them.

It further advised that the LPC "currently does not have general jurisdiction over all legal practitioners who fall foul of their duty to deliver judgments within a reasonable period".

Legal practitioners who leave judicial office with outstanding judgments therefore "fall into an accountability gap", the opinion stated.

But the LPC disagrees that