Judicial appointments reform needed to strengthen Bench and protect rule of law By Judith February
The JSC’s judicial appointments process faces scrutiny over inconsistent procedures and delays, raising concerns about the quality and independence of the judiciary. Reforming the process is crucial to strengthen the Bench, improve legal certainty and protect public confidence in the rule of law.
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FREEDOM UNDER LAW SUBMISSION TO THE JUDICIAL SERVICE COMMISSION: CRITERIA AND GUIDELINES FOR JUDICIAL APPOINTMENT
On 15 September 2026, pursuant to a settlement agreement reached between FUL and the JSC in the matter FUL v the JSC and Others (case number 2023-129593) (“FUL v JSC”), the court ordered the JSC to publish for comment the latest iteration of the JSC Criteria and Guidelines for Judicial Appointment, to take a decision in relation to the review and consideration of the guidelines at its meeting in October 2026, and publicly announce its decision in this regard, once a decision is made.
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BEN BEINART LECTURE: 15 SEPTEMBER 2026“FROM APARTHEID TO ILLIBERALISM”
We gather, once again today, to honour the enduring legacy of Ben Beinart, a principled legal scholar and courageous activist whose work shaped the struggle for justice in apartheid South Africa. Since its inception, this lecture has covered diverse topics in areas of public, private and commercial law. It has attracted an impressive list of speakers. I am deeply honoured to deliver this year’s lecture.
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FREEDOM UNDER LAW SETTLES LITIGATION WITH THE JUDICIAL SERVICE COMMISSION
Freedom Under Law (FUL) has entered into a settlement agreement with the Judicial Service Commission (JSC) relating to litigation brought by FUL to challenge the JSC’s decision-making following interviews for four vacancies on the Supreme Court of Appeal (SCA) at the JSC’s October 2023 sitting.

By way of background, the JSC had interviewed multiple candidates but only recommended two candidates for appointment, leaving the remaining two vacancies unfilled.
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JUDITH FEBRUARY & CHRIS OXTOBY | Judge President Mbenenge’s fight to stay in office explained
Following a meeting in early July 2026, the Judicial Service Commission (JSC) announced that it had resolved to recommend that President Cyril Ramaphosa suspend Eastern Cape Judge President Selby Mbenenge, pending Parliament’s decision on whether to remove the judge president from office.

A few weeks later, Mbenenge was granted an interim interdict, suspending the finalisation of the complaint until the courts deal with the application to review the finding of gross misconduct made against him.

The complaint against the Judge President has been ongoing for several years, and it may be confusing to see how these various developments relate to each other and what they mean for the ultimate outcome of the complaint.
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CHRIS OXTOBY & JUDITH FEBRUARY | Fixing the ConCourt – what can SA learn from other countries?
Earlier this year, Freedom Under Law (FUL) released a research report that discusses the challenges that the Constitutional Court faces as it attempts to deal with a significant and increasing workload.
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Freedom Under Law warns Constitutional Court is under severe strain
Johannesburg, 19 May 2026 – South Africa’s Constitutional Court is facing mounting institutional strain that threatens its ability to fulfil its constitutional role effectively, according to a comprehensive report released today by Freedom Under Law (FUL). The report, titled “A review of the Constitutional Court’s jurisdiction and operating practices in light of its increased workload and consequential delays”, examines how a dramatic rise in appeals, growing backlogs and procedural inefficiencies have placed the country’s apex court under increasing pressure.
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CHRIS OXTOBY & JUDITH FEBRUARY | Vacancies on the constitutional court again an issue (June 2026)
In April 2026, President Ramaphosa announced the appointment of Justices Dambuza-Mayosi and Savage to the Constitutional Court. The announcement followed a seemingly interminable wait (of six months) for the President to make his decision, after the Judicial Service Commission (JSC) had interviewed candidates and provided him with a shortlist to select from in October 2025.
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CHRIS OXTOBY & JUDITH FEBRUARY | Seriti appointment a hidden concern (May 2026)
But Justice Seriti’s appointment raises eyebrows for a different reason.  The judiciary has again been much in the news of late. One of the heads of our country's high courts (Judge President Selby Mbenenge) was found to have committed gross misconduct and now faces potential impeachment. The Constitutional Court’s long-awaited judgment in the so-called Phala Phala case was finally delivered, with potentially significant political repercussions, but also highlighting concerns about the functioning of the courts in light of the lengthy delay from the hearing of the case to the delivery of judgment. As is often the case where significant, high-profile events dominate attention, other developments can easily escape public notice, when they ought to receive proper attention. The report, titled “A review of the Constitutional Court’s jurisdiction and operating practices in light of its increased workload and consequential delays”, examines how a dramatic rise in appeals, growing backlogs and procedural inefficiencies have placed the country’s apex court under increasing pressure.
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FREEDOM UNDER LAW WELCOMES CONSTITUTIONAL COURT JUDGMENT IN SOCIAL GRANTS CASE (April 2026)
Freedom Under Law (FUL) welcomes the judgment handed down by the Constitutional Court (CC) on 8 April 2026 in the matter of Black Sash Trust v Minister of Social Development. FUL was the second applicant in this litigation. The judgment is the latest development in a long-running saga originating in the award of a tender by the South African Social Security Agency (SASSA) to Cash Paymaster Services (Pty) Ltd (CPS) for the payment of social grants. The original contract and subsequent contract between SASSA and CPS were both set aside by the CC. The event is of course of interest to political analysts and followers of MK’s seemingly never-ending churn in leadership positions. But Hlophe’s position in Parliament raises other questions which are important to consider.
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CHRIS OXTOBY & JUDITH FEBRUARY | Time to revisit eligibility requirements to be a member of parliament?
Earlier this month, the MK Party announced that it had re-instated John Hlophe as deputy president and party parliamentary leader. Hlophe had been suspended in November 2025, ostensibly for making changes to the position of party chief whip without collective consultation.

The event is of course of interest to political analysts and followers of MK’s seemingly never-ending churn in leadership positions. But Hlophe’s position in Parliament raises other questions which are important to consider.
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Freedom under Law deeply concerned by killing of attorney Chinette Gallichan
Media interviews, contact Judith February, Executive Officer, Freedom Under Law 083 453 9817

Freedom Under Law (FUL) is deeply troubled by reports of the killing of attorney Chinette Gallichan. According to news reports, Ms Gallichan was shot in central Johannesburg in broad daylight. It appears that she was on her way to represent the mining company Sibanye-Stillwater at the CCMA. The killing has been described as having the hallmarks of a targeted hit.
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JOINT STATEMENT BY CIVIL SOCIETY ORGANISATIONS ON DELAYS IN CONSTITUTIONAL COURT APPOINTMENTS
Civil society organisations committed to the protection of the rule of law and the integrity of South Africa’s constitutional democracy express deep concern at President Cyril Ramaphosa’s delay in appointing judges to the Constitutional Court. It has now been over five months since the Judicial Service Commission (JSC) concluded interviews and submitted its recommendations for appointment of two judges to the Constitutional Court. To our knowledge, this is longest any president in democratic South Africa has taken to appoint judges to the apex court.

The Constitutional Court has not operated at a full complement of 11 permanent judges for several years. The current delay exacerbates the problem
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CHRIS OXTOBY & JUDITH FEBRUARY | The Judicial Service Commission in 2026 (March 2026)
The time of year is suddenly upon us when the Judicial Service Commission (JSC) will be interviewing candidates for appointments as judges. As always, this will be a significant event, and there are several issues of interest which will be worth watching. The steady march of time has illustrated concerns about inaction by the President following the JSC’s last sitting in October 2025. Following these interviews, the JSC was finally able to send a list of candidates to the President, from which he will appoint two Constitutional Court judges.
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CHRIS OXTOBY & JUDITH FEBRUARY | Is there a crisis of ethics in the South African judiciary?
A recently published article highlighting that Free State judge Mpina Mathebula has been on special leave while criminal proceedings against him are underway has raised more than a few eyebrows. News reports indicate that the judge has not been suspended and there has yet to be a formal complaint of misconduct lodged against him with the Judicial Service Commission (JSC).
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CHRIS OXTOBY & JUDITH FEBRUARY | 2026: What lies ahead for the judiciary and the rule of law (February 2026)
If the past few years are any indication, 2026 will be another highly consequential and challenging year for the judiciary and the rule of law. Significant concern regarding the accountability and conduct of members of the judiciary has been simmering for a while. The prevailing narrative about the judiciary was that it was a rare example of a democratic institution that worked effectively, and, particularly in the context of state capture, ensured accountability and protection of the law while other institutions capitulated to political pressure.
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FREEDOM UNDER LAW OBJECTS TO THE CANDIDACY OF ADVOCATE MENZI SIMELANE FOR NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (December 2025)
Freedom Under Law has submitted an objection to Menzi Simelane’s nomination as National Director of Public Prosecutions (NDPP). On 27 November 2025, the Advisory Panel for the selection of the NDPP announced that it had “identified six candidates who met the minimum requirements.” These candidates are advocate Nicolette Bell, advocate Hermione Cronje, advocate Andrea Johnson, advocate Xolisile Khanyile, advocate Adrian Mopp, and advocate Menzi Simelane. The panel invited comments on the suitability or otherwise of these candidates.
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CHRIS OXTOBY & JUDITH FEBRUARY | Ethics in the law – should we be concerned? (November 2025)
The wave of recent negative publicity for the legal profession is concerning because it takes place against a backdrop where public trust and confidence in the rule of law and institutions that uphold it are precarious, writes Judith February.
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CHRIS OXTOBY & JUDITH FEBRUARY | JSC interviews – Showing a challenging road ahead? (October 2025)
The Judicial Service Commission (JSC) has just wrapped up a lengthy sitting which, as is often the case, illustrates many of the significant challenges that face the South African judiciary. Starting on the 7th of October, the JSC interviewed candidates to fill positions on the Constitutional Court, Supreme Court of Appeal (SCA), Labour Court, and several positions on the High Court.
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Headlines

CHRIS OXTOBY & JUDITH FEBRUARY | Vacancies on the constitutional court again an issue (June 2026)

“The legal provisions governing the tenure of Constitutional Court judges have remained unchanged for decades.” -Judith FebruaryIn April 2026, President Ramaphosa announced the appointment of Justices Dambuza-Mayosi and Savage to the Constitutional Court.The announcement followed a seemingly interminable wait (of six months) for the President to make his decision, after the Judicial Service Commission (JSC) had interviewed candidates and provided him with a shortlist to select from in October 2025. The delay raised significant concerns about the impact of the delay in making the appointments on the functioning of the Constitutional Court. Despite this unprecedented delay, the appointments were welcomed. They carried tremendous significance as

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The state of the rule of law in SA: Freedom Under Law Chair, Justice Azhar Cachalia in discussion with Ann Bernstein of the Centre for Development Enterprise (CDE)

Azhar Cachalia, former judge of South Africa’s Supreme Court of Appeal from 2006 until his retirement in 2021, and now a visiting professor at Rhodes University and chairman of Freedom Under Law, joined me in a discussion about the current state of the nation and the rule of law. Cachalia noted that a strong and independent judiciary remains a pillar of South African democracy but cautioned that not all the judges who have been appointed have the necessary experience or competence. In his view, after Jacob Zuma was elected President the judiciary and the JSC became highly politicised. Many candidates who went through the JSC interview

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In Defence of the Common Law

Remarks by Retired Judge of the Supreme Court of Appeal Azhar Cachalia, Chair of the Freedom Under Law Board at the Annual Bar Dinner of the Grahamstown Society of Advocates: 21 February 2025 Grahamstown – now Makhanda – is a town for which I have developed a special fondness. Some of my favourite colleagues, including Judges Mpati, Leach, Plasket, Dambuza, Eksteen and Froneman have spent much of their lives here. I have enjoyed hearing their stories about it, but not their descriptions of how it is currently managed. I also have an interest in Rhodes University as a visiting professor. I learnt much about the

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Events

The Jurisdiction of the Constitutional Court: Time for Reform?

Azhar Cachalia

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Reforming the Constitutional Court: 

Why does South Africa’s Constitutional Court take a year or more to decide who it will even hear? Professor Azhar Cachalia, retired judge and FUL Chairman, delivers a forthright lecture on the crisis in the Court’s functioning — and what could be done about it.

This is an edited version of a public lecture delivered at Rhodes University on 26 August 2026. This edited version was compiled by Lance Myburgh, a final-year law student. Watch the full lecture [here]

See the full article [here]

Timelines

Timeline of Judge Hlophe’s Removal

DOWNLOAD THE PDF VERSION NOVEMBER 2004 Oasis Crescent Property Fund sues Judge Desai for alleged defamation. It comes to light that Judge Hlophe had been receiving regular monthly payments from Oasis at the time that he authorised the defamation action. Judge Hlophe initially denies receiving the payments before changing tack and insisting that they were reimbursements for ‘travelling expenses’. Either way, the payments fell foul of Judge Hlophe’s statutory and ethical duties not to receive such payments without the prior approval of the Minister of Justice. FEBRUARY 2005 Judge Hlophe submits a report on alleged racist practices within the Western Cape legal community, directly to

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Timeline of Judge Motata’s Removal

DOWNLOAD THE PDF VERSION JANUARY 2007 Judge Motata drives into a residential wall whilst intoxicated and is subsequently involved in a verbal confrontation with the property owner. Judge Motata uses racial slurs, profanities and language of a derogatory nature, all of which is recorded by the owner. The Catholic Commission for Justice and Peace files a complaint against Judge Motata alleging that his conduct brought disgrace upon him and the judiciary and undermined public respect. JULY 2008 Afriforum lodges complaint against Judge Motata alleging that he has committed gross racist misconduct and should therefore be impeached in terms of section 177 of the Constitution. SEPTEMBER

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Promoting Democracy Under Law

• Advancing understanding of and respect for the Rule of Law •  Litigating in relation to institutional conduct in conflict with the Rule of Law • Strengthening the independence of the judiciary •  Supporting the legal profession in serving the courts • Enhancing understanding between legal role-players, the media and society at large • Furthering legal education appropriate to the needs of constitutional democracy • Protecting freedom of speech and freedom of the media concerning the administration of justice.

Our mission

FUL’s objectives are the promotion of democracy and the advancement of the Rule of Law and the principle of legality, understanding these to be the foundation for constitutional democracy in South Africa.

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How we work

Litigation before the courts

Primarily, FUL uses litigation before the courts as its defining method of promoting and defending the Rule of Law and democracy in South Africa. The composition of its board affords it particular expertise and experience in this area.

Non-profit company

FUL is registered as a non-profit company and a public benefit organisation.

FREEDOM UNDER LAW NPC REG.
NO. 2008 000 384 08

PUBLIC BENEFIT ORGANISATION REF.
NO. 930031764

Address threats to the Rule of Law

Recognising the importance of the criminal justice system to the Rule of Law and the realisation of any number of rights, FUL has since its inception sought to make this a particular focus area, although it directs its efforts wherever it believes it may effectively address threats to the Rule of Law.

Trial observation

However, litigation is not the only distinguishing feature of Freedom Under Law's approach. FUL also undertakes trial observation across the region and seeks to coordinate informed debate of topical regional legal issues.

Board of Directors

Ezra Davids

Ezra Davids, an alumnus of the University of Cape Town (UCT) and Harvard Law School Executive Programme, is Chairman and

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Kate Hofmeyr

Kate Hofmeyr is a senior counsel practising at the Johannesburg and Cape Bars. She has a varied practice with a

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Upcoming Events

Ongoing Cases

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Concluded Cases

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Richard Mdluli

In September 2020, Richard Mdluli, former head of Crime Intelligence in the SAPS, was sentenced in the High Court, Johannesburg to an effective five years

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Serving the Judiciary?

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Service Providers

Freedom Under Law expresses its gratitude for the fully pro bono or subsidised professional expertise and time of these agencies. We would not be able to function without this invaluable support.