This briefing note seeks to provide a short overview of significant events in the preceding month, relating to Freedom Under Law’s work on the judiciary and the rule of law. The note aims to provide a short overview of key issues, with links to underlying documents and articles where they are available. It is not intended to provide a comprehensive analysis of all the issues raised.
1. Judicial Appointments
The JSC’s second sitting of the year took place between 7 and 16 October 2024. 47 candidates were interviewed for 26 vacancies, with 3 shortlisted candidates withdrawing prior to the interviews. The JSC recommended the appointment of 22 candidates, leaving 4 vacancies open.
The National Assembly’s (NA) decision to designate impeached former judge and now MK parliamentarian John Hlophe as a member of the JSC, and the litigation which followed, loomed large over the interviews. On 27 September, the Western Cape High Court granted an interdict barring Hlophe from participating in the interviews. [1] FUL had brought an application for final relief, whereas the Democratic Alliance and Corruption Watch initially sought interim relief. The court (Baqwa, Collis and Daffue JJ) decided “after much deliberation … not to finally pronounce on FUL’s application”, which was postponed to be heard together with Part B of the DA and Corruption Watch applications.[2] The court further found that it could take FUL’s submissions into account in determining whether a prima facie right had been established for the granting of an interdict.[3]
The court granted the interim interdict on the grounds that the NA had committed a material error of law by failing to exercise a discretion when voting on Hlophe’s nomination. It further found that the NA had violated its obligations under section 165(4) of the Constitution, as “[t]he appointment of Dr Hlophe to the JSC will inevitably undermine the independence, dignity and effectiveness of our courts.”[1] The court further held that the NA had taken irrelevant factors into account, and:
“the NA failed to appreciate that it had a discretion in designating MPs to the JSC and consequently, it failed to exercise such discretion and did ‘rubberstamp’ MK’s nomination of Dr Hlophe.”[1]
[1] Democratic Alliance v Hlophe and Others (16170/2024; 16771/2024; 16463/2024) [2024] ZAWCHC 282 (27 September 2024).
[2] Para 52.
[3] Para 58.
[1] Paras 58; 61.
[1] Paras 62 – 64.
Costs were awarded against Hlophe and MK on an attorney and client scale.[1]
After MK threatened legal action if the JSC proceeded with the interviews in Hlophe’s absence, on the grounds that the JSC would not be properly constituted, the JSC decided to proceed with the interviews. Hlophe and the MK party then sought to interdict the interviews from proceeding.[2] FUL was one of the parties opposing the application. The Gauteng High Court, Johannesburg refused to grant the interdict. Wilson J found that the JSC acted rationally in refusing to postpone the interviews, and that the decision “did not infringe, even prima facie, any of the MK Party’s or Dr. Hlophe’s rights.”[3]
The latest (though likely not the final) chapter in the saga took place on the first day of the JSC sitting, when it was announced that Hlophe had resigned as a member of the JSC. Despite suggestions by the MK party that Hlophe’s resignation meant that the composition of the JSC was not consistent with the constitution, the remainder of the interviews passed without interruption. Hlophe has subsequently described his resignation as a “temporary setback”, and stated without evidence that “[i]It did not surprise us when we lost, because we know the judiciary is captured.”
As to the interviews themselves, there were some grounds for optimism over how they were conducted. There continues to be evidence of a closer and more rigorous scrutiny of candidates’ track records and understanding of the law, particularly in the questioning from advocates Baloyi, Ngcukaitobi, Pillay and Steinberg. In her first round chairing the JSC, Chief Justice Maya showed a pleasing willingness to keep a tight rein on proceedings, with proactive rulings being made on whether questions could be put. Generally, the timekeeping of the interviews was better than in previous sittings.
[1] Para 71.
[2] Umkhonto Wesizwe Party and Another v Judicial Service Commission and Others (2024/111939) [2024] ZAGPJHC 992 (5 October 2024).
[3] Para 5.
One obvious exception was the interviews for Judge President of the Western Cape High Court, but considering the challenges experienced in that division, including the impeachment of the previous judge president, this was understandable (the interview of the Acting Judge President and incumbent Deputy Judge President, Patricia Goliath, lasted for almost four hours). Considering that this position was to replace Hlophe, a long serving judge president who was mired in controversy for much of tenure and considering that no fewer than seven candidates accepted nominations to stand for the position, it was to be expected that these interviews would prove contentious.
The interviews indeed drew a picture of concerning issues relating to the leadership of the court and deep divisions among the judges, including alleged favouritism, issues with communication, and an apparent lack of collegial relations generally. The interview of DJP Goliath provided a natural lightning rod for these issues, particularly considering an objection by fellow judge Roshenie Allie, which described Goliath’s leadership of the court as “ruinous”. In this context, the JSC’s decision to recommend the appointment of a relative outsider in Judge Mabindla-Boqwana, who originally served on the court but has been a judge of the Supreme Court of Appeal since 2021, is understandable. It can only be hoped that Judge Mabindla – Boqwana’s leadership of the court will prove to be less turbulent than what has gone before.
We have previously noted concerns about the depth of the pool of candidates appearing before the JSC, and there were further examples of this concern in the October sitting. Judge Baartman was recommended for appointment to the SCA despite the GCB expressing significant concerns about her record on appeal, and no appointment was recommended for the Eastern Cape High Court as both candidates endured turbulent interviews. This phenomenon may also be a manifestation of previous shortcomings in the JSC process, as candidates who perhaps should not have been appointed, or were appointed too soon, begin to move their way up the judicial ladder. Karyn Maughan makes a similar point in relation to the Western Cape Judge President interviews, arguing that the JSC’s interrogation of Goliath AJP and Le Grange ADJP about the environment at the court elided the “huge elephant in the room” of “the JSC’s manifest failure to protect [the] court, and the public, from Hlophe’s misconduct.”
A full list of the vacancies, candidates interviewed, and recommended appointments follows.
| CANDIDATES | APPOINTED |
| Supreme Court of Appeal (3 vacancies) | |
| Baartman J Chetty J Coppin J Koen J Mjali J Windell J | Baartman J Coppin J Koen J |
| Land Court (Deputy Judge President) | |
| Cowen J Mia J Ncube J | Cowen J |
| Labour / Labour Appeal Court (Judge President) | |
| Molahlehi J | Molahlehi J |
| Eastern Cape High Court (Mthatha) (1 vacancy) | |
| Mr Khalil Adv Msiwa SC | No appointment recommended. |
| Gauteng High Court (six vacancies) | |
| Adv Ally Prof du Plessis Adv Labuschagne SC Adv Mahomed Mr Makamu Adv Mkhabela SC Moshoana J Prof Phooko [withdrew during interview] Mr Thupaatlase | Prof du Plessis Adv Labuschagne SC Adv Mahomed Mr Makamu Moshoana J Adv Mkhabela SC |
| KwaZulu-Natal High Court (DJP) | |
| Chili J Nkosi J | Nkosi J |
| KwaZulu-Natal High Court (Six vacancies) | |
| Adv Chithi Adv Harrison Adv Jikela SC Mr Khalil Adv Pitman Adv Singh Ms Sipunzi | Adv Chithi Adv Harrison Adv Jikela SC Adv Singh |
| Limpopo High Court, Thohoyandou (One vacancy) | |
| Adv Ledwaba Ms Ngobeni | Ms Ngobeni |
| Mpumalanga High Court (DJP) | |
| Mankge J Ratshibvumo J | Ratshibvumo J |
| Western Cape High Court (JP) | |
| Goliath DJP Le Grange J Mabindla-Boqwana JA Mantame J Potgieter J Slingers J Thulare J | Mabindla-Boqwana JA |
| Western Cape High Court (4 vacancies) | |
| Ms Andrews Adv Holderness Adv Magona-Dano Dr Moses Ms Parker Ms Pangarker Ms Ralarala | Adv Holderness Ms Pangarker Ms Ralarala |
2. Judicial Conduct
After an otherwise quiet period regarding judicial conduct matters, the Judicial Conduct Committee (JCC) delivered a bombshell by recommending that a tribunal be established to consider a complaint by former judge Hlophe against former Chief Justice Mogoeng Mogoeng. The complaint alleges that Justice Mogoeng met with Goliath DJP prior to Goliath lodging a complaint against Hlophe, and then subsequently presided over the complaint. The JCC (per Maya DCJ, Shongwe and Saldulker JJA) found that if it was established that Mogoeng had indeed met secretly with Goliath DJ about her allegations of gross misconduct against Hlophe, Mogoeng would have “acted dishonorably”.
Concerns have been raised about a lack of depth in the reasoning of the JCC’s finding, and the length of time it has taken for the decision to be made. FUL has published an op – ed highlighting how the episode demonstrates shortcomings in the process of dealing with complaints against judges. We also raise the question of why the Chief Justice sat on the JCC in this matter when she has previously recused herself from matters involving Hlophe.
The tribunal hearing the complaint against Judge President Mbenenge was due to hold a preliminary meeting at the beginning of October.
Issue relating to judicial conduct have also arisen in other SADC countries. The JSC in Malawi has announced investigations into allegations of corruption against four judicial officers. And in Zambia, the Judicial Complaints Commission has been accused of having “elevated itself … above the Constitution” and having “acted outside the confines of the law” in recommending the removal from office of three judges of the Zambian Constitutional Court due to an alleged failure to meet appointment criterion.
3. Significant cases
Former Public Protector Busisiwe Mkhwebane has endured another torrid time before the courts. An appeal against the dismissal of an application to set aside various decisions made in the course of the inquiry leading to her removal from office was dismissed by the SCA in Public Protector of South Africa v Chairperson of the Section 194(1) Committee and Others.[1] The SCA (per Ponnan JA, Nicolls and Mothle JJA and Masipa and Dippenaar AJJA concurring) struck the appeal from the roll, finding that following advocate Mkhwebane’s removal from office, no proper substitution had taken place,[2] and that the appeal would in any event have no practical effect.[3]
The court was also critical of the conduct of advocate Mkhwebane’s counsel, advocate Mpofu SC, during the hearing, remarking that:
“Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom, particularly in response to searching questions from the bench. The taking of ‘miserable, pettifogging point[s]’ … are bound to fail.”12
Then, in Mkhwebane v Office of the Public Protector and Others,[1] the Gauteng High Court, Pretoria dismissed an application by advocate Mkhwebane to ensure payment of a gratuity to which she claimed to be entitled in terms of the Public Protector Service Conditions. The court, per Mooki J, was again critical of the conduct of the litigation, commenting that:
“There is much that is regrettable in what the applicant said about the respondents. She did not substantiate the very serious allegations that she made, both in relation to the ofice of the public protector and the person of Ms. Gcaleka as the Public Protector. There was no need for the applicant’s intemperate comments against the National Assembly regarding events leading to her removal from ofice. …”14
Advocate Mkhwebane is attempting to appeal the decision directly to the Constitutional Court.
Advocate Mkhwebane’s response to the judgments was to issue two statements which contained scurrilous and intemperate comments about both individual judges and the judiciary in general, which may well amount to scandalising the court. The statements also likely constituted a breach of the Parliamentary Code of Ethical Conduct. However, advocate Mkhwebane subsequently resigned as a member of the EFF and of parliament, thus removing herself from the jurisdiction of the code, at least for the time being.
Similar sentiments are appear to have been included in an application for leave to appeal to the Constitutional Court against the SCA judgment regarding the section 194(1) committee. Advocate Mkhwebane is reported to have accused Ponnan JA of having “launched an unwarranted if not scurrilous attack targeted on lowering the professional and personal integrity of my legal representative, Adv Mpofu SC”. The Constitutional Court has dismissed the Sekunjalo group’s application for leave to appeal decisions challenging Nedbank’s closure of the group’s bank accounts. (See our previous discussion of the SCA judgment).
[1] (023495/2024) [2024] ZAGPPHC 995 (9 October 2024). 14 Para 84.
[1] (627/2023) [2024] ZASCA 131 (1 October 2024).
[2] Paras 10 – 14; 23 – 27.
[3] Paras 30 – 35. 12 Para 48.
4. Administration of justice
In our previous note, we highlighted the increasingly long lead-in times to obtain trial dates in the Gauteng High Court. The situation appears to be worsening by the month, with lead times of over five years (until October 2029) anticipated for the general civil trials roll of the Johannesburg High Court. The situation has been attributed, at least in part, to cases involving the Road Accident Fund. The situation in Gauteng does not take place in a vacuum – the Auditor-General has reported to Parliament that as at the end of June, the courts had a backlog of 37 497 cases (although not entirely clear from media accounts, this number appears to refer to criminal cases across both the lower and superior courts).
Suggestions to alleviate the backlog include more permanent judges, more courts, and greater use of mediation.
It was reported that shortly before his tenure ended, outgoing Chief Justice Zondo finalised an anti–sexual harassment policy for the judiciary. The policy is said to “set[] out the judiciary’s legal obligation to ensure a safe and healthy work environment”, to affirm that sexual harassment allegations and complaints “shall be responded to promptly and dealt with seriously, professionally, expeditiously, fairly, sensitively and confidentially”, and to ensure that complainants are protected against victimisation and retaliation.
Judges Matter have raised a concern that the policy “only refers possible complainants to the current ineffective complaint structures”, and the policy has also been criticised for including a warning in the policy that false allegations will not be tolerated, and the threat of disciplinary action against anyone acting in bad faith. Critics argue these caveats “contain[] sexist undertones that appear to cast doubt on the enthusiasm and commitment of the courts to eliminate this form of violence from their midst”, and are reflective of a victim-blaming outlook.
Parliament has endorsed an increase in the salaries of judicial officers, but concerns have been raised that judicial officer’s salaries have been reduced in real terms since 2009, constituting a threat to judicial independence.
Such is the concern about the conduct of some legal practitioners in court that group of retired judges (judges Ngoepe, Leeuw, Legodi, Mbha, Mojapelo, Boruchowitz, Tsoka, Mavundla) released a joint statement “plead[ing] for respect by all practitioners for all judicial officers in court”, and noting that “[i]n a constitutional state, the rule of law demands nothing less.” The statement further notes that:
“Courts are meant to be a peaceful and civil mechanism for the resolution of even the sharpest of disputes. We cannot afford to have that role compromised, otherwise anarchy would prevail.”
The Legal Practice Council has again come in for criticism, this time from the Legal Ombud (retired judge Siraj Desai), for failing to properly investigate a complaint, which included allegations of fraud and misappropriation of trust funds. The impugned attorneys had pleaded guilty to charges which the ombud found did not capture the most serious allegations against them, and to pay a fine without being required to repay their erstwhile clients.
5. Articles
With September marking the start of the tenure of Chief Justice Maya as the head of the judiciary, there has been considerable discussion of the challenges that await her.
Stephen Grootes highlights the scale of the challenges facing her leadership, identifying the need for Maya to assert her authority in the face of political pressure and attacks; the challenge of chairing the JSC; dealing with instances of judicial misconduct; and concerns about an apparent decrease in the legitimacy of the judiciary.
Judges Matter suggest that Maya “might … be one of the most prepared Chief Justices in history” and praise her performance as head of the SCA. They identify key challenges awaiting Maya as the resource crisis facing the judiciary, including a shortage of judges; leading the JSC; developing a strategy to ease the workload on the Constitutional Court; and defending the judiciary against political attacks.
Serjeant at the Bar also highlights Maya’s qualifications to serve as Chief Justice, but identifies “immense” challenges facing her leadership, highlighting the struggle “to attract the brightest and the best from the legal community” to join the judiciary, particularly in light of concerns about the level of common law and commercial law expertise on the current Constitutional Court bench; the challenge presented by chairing the JSC; the importance of protecting the judiciary from populist attacks and “Stalingrad” litigation tactics; concerns about the erosion of judicial salaries; and delays in delivering judgments by the Constitutional Court.
Ann Bernstein notes the historic nature of the appointment but cautions that this should not “gloss over a looming crisis in our judiciary”, highlighting concerns over shortcomings with the JSC.
Pierre de Vos focuses on the challenges facing Maya as the head of the Constitutional Court, which “does not currently function as efficiently and effectively as it should.” De Vos raises concerns about long delays in handing down judgments, and a lack of accessibility of court documents, but identifies the “most pressing issue facing the court” as “the perception that the quality of the judgments produced … are not always up to scratch.”
De Vos cites “truly woeful judgments” as examples of this trend, criticizing the court for “completely fail[ing] to engage with the applicable law”, failing to “mention or apply the factors a court must consider to establish whether or not … discrimination is unfair”, and “fail[ing] to explain the entirely foreseeable ramifications of [a] judgment, a problem sometimes made worse by a vague or ambiguously phrased order.”
De Vos suggests that the court’s judgments may have been affected by its collegial environment being “clearly lost during the term of Chief Justice Moegoeng Moegoeng” but takes the view that “Chief Justice Maya seems to be well placed to address this problem.”
In our previous note, we discussed the SCA’s judgment in South African Human Rights Commission v Agro Data CC, which found that the remedial powers of the Human Rights Commission are not binding. The commission has since announced that it will seek to appeal this decision to the Constitutional Court. Dan Mafora and Sfiso Benard Nxumalo criticize the commission’s approach. They describe the Constitutional Court’s celebrated Nkandla judgment as having “created a rule that has no basis in the text or structure of the Constitution, or even the law as it related to the Public Protector’s office at that time”, and as having “introduced the concept of binding powers that exist outside of the traditional executive, judicial and legislative powers” to Chapter 9 institutions which had been created with “carefully circumscribed” powers.
Mafora and Nxumalo argue further that the role of the Human Rights Commission:
“is not to make definitive findings; it is to investigate, to monitor and to report. Its remedial function is only auxiliary. That is how the Constitution intended for it to function”.
The authors caution against “idolising independence for its own sake”, arguing that in this context, independence “can only exist to further the constitutional aims set out in Chapter 9, none of which grants those institutions binding powers.”
In an article discussing the importance of various governance institutions, Professor Balthazar argues that there are “[m]ajor gaps within the judiciary … insofar as expertise in key areas of law are concerned”, and highlights the JSC’s “deeply disturbing” failure to fill the longstanding vacancy on the Constitutional Court. The article suggests that “it would be naïve not to observe that the vast majority of the most talented lawyers in South Africa … have not made themselves available [for judicial appointment]”, and touches on the impact of former judge president Hlophe’s leadership of the Western Cape High Court:
“For years the JSC dilly-dallied on the sustained case against the then Judge President until, sadly, it was too late. This case is a luminous example of the ease with which a key institution can be destroyed.”
Ann Bernstein discusses concerns with the ongoing failure to fill vacancies on the Constitutional Court, arguing that this is “the latest indicator that all is not well with the processes through which our judges are appointed. Bernstein attributes the shortcomings of the JSC to its composition,
“which is skewed in favour of political representation. Those who can be expected to have intimate knowledge of the qualities required of a judge are vastly outnumbered by those appointed by virtue of political office.”
Bernstein argues that it is necessary to appoint JSC commissioners “who will best serve the national interest and not any other political or sectional interest”, and to increase the influence of judges in the appointment process.
In a call for the JSC to improve its “human resources function”, Judges Matter argue that input from heads of court on the suitability of candidates needs to be provided at the shortlisting stage of the JSC process:
“That means the Sifting Committee must approach the shortlisting with the needs of the court firmly at the front of its mind. The Committee must first review the candidates’ legal technical skills and experience and then assess the individual candidate’s suitability based on the needs of the court at that particular time. …”
Furthermore, the sifting committee and the full JSC “must receive comprehensive reports on the needs of specific courts and the judiciary in general”, and the age of judges based at a particular court, as well as “the pipeline of skilled judges to appoint to leadership positions, to specialist courts, and to appellate courts” should be considered.
Finally, Minister of Justice and Constitutional Development Thembi Simelane has been under intense scrutiny for allegedly receiving a loan from a company that had brokered unlawful investments into the since-collapsed VBS Mutual Bank by the Polokwane Municipality, at a time when the minister was the mayor of the municipality. FUL published an op-ed arguing that the Minister cannot remain in office due to the lack of judgment demonstrated by the incident, and the inadequacy of subsequent explanations.
ENDS