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.
- Judicial Appointments
The JSC’s short sitting, at the beginning of April to interview candidates for the Electoral Court and Labour Court passed relatively uneventfully. Judge Leicester Adams was appointed, at the third attempt, to the Electoral Court. Only one candidate, Ms Gandidze, was recommended for appointment to the Labour Court. The most dramatic moments of the interviews occurred when another Labour Court candidate, Ms Norton, faced questions about delays in reporting theft from the trust fund of her law firm by a former partner in the firm.
The President has finally announced nominees for appointment as the Deputy Chief Justice, a position which has been vacant since September 2024. In a surprising move, four candidates were initially put forward: Gauteng Judge President Dunstan Mlambo, SCA President Mahube Molemela, Free State Judge President Cagney Musi, and Northern Cape Judge President Pule Tlaletsi. It was noted that, when interviewed for the position of President of the SCA in 2023, Justice Molemela had emphasised her commitment to the position and stated that she would not imminently seek appointment to the Constitutional Court. Shortly after the announcement, Justice Molemela announced that she had declined the nomination.
The nomination of multiple candidates is reminiscent of the approach taken to the appointment of Chief Justice Zondo in 2022, when four candidates were also put forward. On that occasion, the JSC interviews were particularly unedifying, with several inappropriate and problematic questions being put to candidates, and a distinctly uneven treatment of the candidates being evident. Thereafter, the President appeared to have abandoned the approach of nominating multiple candidates, with Justice Maya being the sole nominee for Deputy Chief Justice in 2022 and Chief Justice in 2024. It can only be hoped that the JSC’s approach to interviewing the candidates will not repeat of the turbulent 2022 interviews. Interestingly, it has been reported that “several potential candidates” had declined nomination. The JSC’s interviews of the candidates, through which the consultation with the JSC required by the Constitution is carried out, will take place between 2 – 3 July.
The JSC has also called for nominations for its October 2025 sitting. Vacancies include two on the Constitutional Court, one on the SCA, as well as the Land Court, Labour Court, and various high courts. The deadline for nominations is 12 June, with interviews taking place from 6 – 17 October 2025.
- Judicial Conduct
In last month’s note, we discussed the complaint against retired judge Anton Van Zyl. Judge Van Zyl has since handed down one of the outstanding judgments that featured in the complaint – a judgment which had been outstanding since 2012.
The tribunal dealing with allegations against Judge Parker heard closing arguments. Curiously, Judge Parker opted not to put forward any response to the allegations, seemingly gambling that the tribunal and then the JSC will take the view that the allegations do not amount to gross misconduct. Considering the nature of the allegations – of putting forward inconsistent versions under oath of an alleged assault by former Judge President Hlophe, and failing to disclosure a trust fund deficit while practising as an attorney – such an outcome seems improbable.
The tribunal dealing with complaints of sexual harassment against Judge President Mbenenge continued, with the evidence of several witnesses being led on topics such as digital forensic analysis of messages allegedly sent, the linguistic meaning of emojis, the processing of the complaint by the JSC administration, and discussions between the complaint and court colleagues. Evidence was also led regarding CCTV footage which appears to have gone missing for the day when it is alleged that the judge president exposed himself to the complainant. A dispute over hearing the evidence of a gender expert led to the tribunal being postponed to allow the judge president’s legal team time to prepare. The expert will be permitted to testify when the tribunal resumes at the end of June.
The Parliamentary Portfolio Committee on Justice and Constitutional Development will recommend to the National Assembly that a magistrate who was found to have provided false information to a reviewing judge and changed a plea without justification, be removed from office.
- Significant cases
South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another concerned the constitutionality of the inclusion of the phrase “staff member” in section 71B of the Local Government: Municipal Systems Act. The phrase meant that the section had the effect of barring all employees, rather than only municipal managers and their direct subordinates, from holding office in political parties. The Labour Court had found the inclusion of the phrase to be unconstitutional. It was accepted that the provision infringed the right to political participation in section 19 of the Constitution.
A majority of the constitutional Court (in a judgment by Mathopo J, with Madlanga ADCJ, Majiedt J, Mhlantla J, Rogers J, Tolmay AJ and Tshiqi J concurring) confirmed the order of invalidity. The majority held that the infringed rights were “crucial to our democratic order and issues of past disenfranchisement weigh heavily in favour of the protection of these rights”, and that there was no empirical evidence before the court to justify the limitation.
In a dissenting judgment, Kollapen J (Theron J concurring) held that the depoliticisation of local government, was a legitimate governmental purpose, and differed from the majority on the justification for the limitation of the right. The minority held that there was sufficient information before the court regarding the policy of depoliticisation, which “constituted the pursuit of a rational and legitimate response to the problems of political interference in local government.”
In Minister of Justice and Correctional Services and Others v Ntuli the Constitutional Court confirmed the SCA’s decision (see our November 2023 note) that a blanket ban by the Department of Correctional Services on the use of personal computers in their cells, by inmates who were registered students, was unconstitutional. In a unanimous judgment by Majiedt J, the Constitutional Court held that the policy violated the right to education, and highlighted South Africa’s international law obligations to respect inmates’ rights to education.
In Malema v Speaker of the National Assembly N.O and Others, the applicant sought to set aside a decision by the National Assembly that he had breached Parliament’s code of ethics by asking questions in a JSC interview relating to a court case in which he had an interest, thereby placing his own interests above those of the public. The National Assembly had found that the applicant had dealt with a matter which directly concerned himself and his political party, was before a court of law, and that the applicant had “placed himself in a position of conflict … as he represents the National Assembly on the Judicial Services [sic] Commission and should not have used the platform for his personal interests.” The applicant was ordered to apologise to the affected judge and the JSC.
A full bench of the Western Cape High Court (Fortuin and Nuku JJ and Van Zyl AJ) identified the key question as being whether the “code applies to MPs except when they serve on the JSC.” The court held that the code continued to apply to MPs when they served on the JSC, since the applicant remained an MP while designated to serve on the JSC:
“As such, the duties imposed on the applicant by the Code continue to find application while he serves on the JSC, even though he acts independently while there. The effect of the NA’s enforcement of the Code against the applicant was not to direct the applicant as to who he should be supporting on the JSC, but rather that he should adhere to the rules of engagement as set out in the Code.”
The court further rejected an argument that the sanction violated the applicant’s right to freedom of speech, as there was not an “untrammeled right to question candidates for judicial appointment irrespective of the subject matter of the questions, and its implications for the administration of justice and the integrity of the process.” The application was dismissed with costs.
The Gauteng High Court has granted an interdict suspending the analogue television switch off, which formed part of government’s digital migration policy and had originally scheduled for the end of March. Baqwa J accepted arguments that the decision had been taken by cabinet, rather than the responsible minister; that there had been a lack of required consultation; and that the setting of the analogue switch off date had been irrational.
In a significant decision for accountability for apartheid-era crimes, the Gauteng High Court has dismissed objections by the accused to an indictment relating to the kidnapping and killing of the “Cosas 4” in 1982. The accused argued that the state’s right to prosecute had lapsed, with the key issue being whether counts based on alleged contraventions of customary international law read with s 232 of the Constitution could be utilised as a self-standing basis for prosecution.
Dosio J held that section 232 of the Constitution provided “an independent legal basis for the State to fulfil its obligations under the Constitution and under international law to prosecute international crimes including those committed before 1994.” An argument that the prosecution was impermissible on the grounds of legality was rejected, as the crimes charged were not subject to prescription:
“Based on South Africa’s international obligations there can be no time bar for the prosecution of crimes against humanity. The seriousness of crimes against humanity must be prosecuted irrespective of when they occurred. Therefore, there is no period within which charges must be brought. A delay in prosecution is not a defence … nor does it waiver [sic] the State’s right to prosecute.”
The Labour Court has blocked the reinstatement of a municipal manager who had been found guilty of financial misconduct. The manager had been reinstated following an arbitral finding that his dismissal was substantively unfair, despite
the arbitrator acknowledging that the manager had committed “rather serious” financial misconduct. The municipality took this decision on review.
Kroon AJ contextualized the misconduct in light of the importance of the role of municipal managers, the accountability of government administration, the need to protect procurement processes from interference, and the nature of misconduct by municipal officials. Kroon AJ held that the nature of the misconduct meant that dismissal was the only possible sanction, and that the arbitrator had “abdicated his responsibility to properly evaluate the evidence when determining whether the sanction imposed … was fair.” The award was substituted with a finding that the dismissal was fair.
In South African Legal Practice Council v Kgaphola and Another, the high court had dismissed an application by the LPC to remove the first respondent from the roll of attorneys, alternatively to suspend him from practice. Respondent was alleged to have practiced without a fidelity fund certificate, and to have infringed various regulations relating to the financial management of his practice. The SCA (per Makgoka JA, Mothle and Mabindla-Boqwana JJA and Hendricks and Baartman AJJA concurring), having dismissed an application for postponement due to the respondent’s “flagrant disregard” for the court’s rules, set aside the high court’s decision. The SCA held that the high court had misdirected itself, and that the complaints had been established. The SCA highlighted the respondent’s conduct in response to the LPC’s application:
“The respondent’s allegations were clearly intended to convey that the LPC had sinister motives against him. These are serious insinuations against a professional regulatory body whose function is, among others, to maintain ethical standards. They should not be lightly made. … A time will soon arrive when legal practitioners who make themselves guilty of this unprofessional conduct risk being suspended from practice or struck off the roll, solely based on this, as this may be indicative of, or border on, lack of fitness to practise as a legal practitioner.”
As most of the issues underlying the complaints had been rectified by the time the appeal was heard, the SCA held that whilst the respondent was guilty of unprofessional conduct, he was not unfit to continue to practise as an attorney. He was however suspended from practice for 12 months.
The Constitutional Court has dismissed with costs an application by the MK Party and former judge Hlophe to appeal the Part A interdict barring Hlophe’s designation as a member of the JSC.
- Administration of justice
Officials and administrators in the courts have not been cast in a good light by recent developments. An alarming report alleged that court officials at the Mthatha High Court regularly solicit bribes from attorneys in order to carry out routine administrative tasks. Then, three court officials at the Pretoria High Court were suspended following a raid by the Hawks, in the course of an investigation into the issuing of fraudulent court documents. Finally, the high court set aside the award of a tender to Thomson Reuters for the provision of the Caselines system, after the Office of the Chief Justice initiated a self-review due to OCJ officials involved in the procurement process standing to benefit as subcontractors to Thomson Reuters.
The Gauteng High Court directive on mandatory mediation (see the discussion in our March 2025 note) came into effect at the end of April.
- The legal profession
Dali Mpofu SC appeared before an inquiry convened by the LPC’s disciplinary committee, to faces charges described as “breaching the code of conduct for legal practitioners — including bringing the profession into disrepute, impugning people’s characters and failing in his duty to the court.” These complaints related to conduct during the parliamentary enquiry leading to the removal of Busisiwe Mkhewebane as public protector (including the cross examination of former public protector Thuli Madonsela), questions asked during the JSC interviews of candidates for chief justice in 2022 (particularly a question put to now Chief Justice Mandisa Maya), as well as a letter sent to a full bench of the Gauteng High Court which was described as having “reprimanded [the bench] for having the impertinence to request clarification on the issues which fall for determination”.
The Pan African Bar Association (PABASA, an organization of which Mpofu is the secretary), wrote to the LPC requesting it to “rethink” the decision to charge Mpofu, reportedly describing the proceedings as “bordering on political persecution.” The chair of the LPC is reported to have declined to do so and dismissed the intervention as “inappropriate.”
These proceedings might have been seen as providing encouragement for those who have been concerned that the LPC has failed to properly hold lawyers accountable. Any such hopes, however, would prove to be short lived. The inquiry was postponed indefinitely, and charges relating to the Madonsela and Maya were withdrawn after both indicated that they were not willing to be involved in the process.
The LPC’s handling of the matter thus far will only serve to heighten concerns about how it deals with such complaints. The Council for the Advancement of the South African Constitution (CASAC) has questioned the withdrawal of the charges relating to Madonsela and Maya, since it (CASAC) had laid the complaint, which “was not dependent on the approval, or even the evidence, of those two people, because the evidence is publicly available”. Concerns have also been expressed about the delays in the process, with CASAC’s complaint having been lodged in May 2023. Furthermore, the chair of the inquiry is reported to have indicated that CASAC, despite being a complainant, would have to apply to attend the inquiry when it resumes, following objections by Mpofu’s legal team.
Chief Justice Maya, in turn, was highly critical of both the LPC and CASAC, asserting that it was “utterly disrespectful and patronising” that her name was used in the charges against Mpofu without informing her. The Chief Justice is further quoted as saying:
“The arrogance of the men-led Casac and the Legal Practice Council to arrogate upon themselves the right to be offended on my behalf and on behalf of women generally, without so much as a word to these women, is breathtaking and feels to me very much like gross patriarchy cloaked in false chivalry.”
The LPC has taken on another high profile matter, as it will apply for former public protector Busisiwe Mkhwebane to be struck off the roll of advocates. Mkhwebane has described the move as “political persecution.”
The criminal trial of attorney Zuko Nonxuba, who is accused of fraud for allegedly filing fake medical negligence cases, has been delayed after the magistrate recused herself. It was reported that the magistrate was “deeply affected by a television insert on his alleged exploitation of disabled children” and could not “be sufficiently impartial to give Nonxuba a fair decision.” As discussed in our December 2024 note, Nonxuba has been struck off the roll for misuse of trust funds.
The Fidelity Fund has reported that 59 legal practitioners have been convicted of theft of trust funds over the past seven years, 25 of whom have been sentenced to direct imprisonment. There are an alarming 561 active claims relating to missing trust funds, involving R1,4 billion.
- Articles
FUL has published three opinion pieces during this period. The first argues that the Chief Justice needs to show inventive leadership to address the paucity of candidates for the long standing vacancies on the Constitutional Court. The second discusses the Constitutional Court’s rejection of the MK Party and Hlophe appeal and the Mpofu inquiry, in the context of the ned to protect the institutions and systems of government which underpin the rule of law. The third discusses the challenges posed by the corruption allegations relating to the Mthatha High Court, and the issues relating to the complaints against Mpofu.
Mondli Makhanya locates the complaints against Mpofu in the context of the work done by legal practitioners in the transition to democracy:
“It was from this crop of individuals, moulded in the furnace of those repressive days, that south Africa’s judicial leadership corps and the senior ranks of the legal profession were drawn. They set the bar for those who would follow and are the reason that our transformed judiciary is one of the most respected in the world.”
However, Makhanya points out, an ethical judiciary “can only be sustained by the quality of its pipeline in the legal profession”. He emphasises the importance of the profession valuing integrity, and criticises PABASA’s response to the charges against Mpofu, arguing that “Pabasa doesn’t want it’s senior members to face any scrutiny at all.” Makhanya urges that, “[f]or the sake of the credibility of the profession and its self-regulatory mechanism”, proceedings against Mpofu should be allowed to run their course.
Sithuthukile Mkhize and Mazi Chosane of the Centre for Applied Legal Studies discuss the Gauteng High Court mediation directive, and raise the question of what can be done to alleviate delays in the magistrates’ courts. The authors emphasise the devastating consequences of lengthy delays in the lower courts and suggest that a “multipronged approach” is needed, “including increased judicial appointments, improved case management and greater accountability for unnecessary delays.”
Letlhokwa Geoge Mpedi and Tshilidzi Marwala argue that artificial intelligence can play a role in resolving labour disputes, giving the example that, in unfair dismissal cases:
“AI could review company policies and similar historical cases alongside the relevant labour laws to determine whether the termination was justified. It might flag potential biases in decision-making by comparing outcomes across different demographics, ensuring consistency and fairness.”
The authors argue that AI could serve to reduce backlogs and cut costs, whilst also assisting HR departments to detect patterns of discrimination or unfair dismissals. They further argue that AI systems can promote consistency and reduce the effect of human biases or inconsistencies, whilst acknowledging that “issues such as algorithmic bias and accountability in case of errors would need to be addressed through transparency and oversight.”
Jean Redpath writes on the need for reform of the National Prosecuting Authority (NPA). Redpath notes an increase in the murder rate and a decrease in the number of people sentenced to imprisonment since 2000, attributable in part to delays in the criminal justice system. Factors contributing to these delays include a decrease in the hours for which courts sit, as well as infrastructural and power supply issues.
Redpath further argues that the police and the NPA continue to suffer from the damage caused by state capture, but that there is a lack of urgency to introduce reforms:
“In the current administration, there has been no mention yet of any further reforms to NPA legislation … The constitutional value of accountability and the rule of law hinges on the ability of the prosecution service to act without fear, favour or prejudice. This is compromised in the current legal framework.”
Redpath argues that there is a need for an NPA “that is financially and administratively independent of the control of the minister of justice and the director-general of justice”, and for the NPA’s leadership to be appointed transparently, and to have term limits with security of tenure. Redpath however notes a “real apprehension” that the department of justice “may itself not be on board with the need for change, given that the needed changes will curb its powers.”
Mondekazi Ntshele argues that South Africa should deposit a declaration under the Protocol to the African Charter on Human and Peoples’ Rights, which would allow nationals to submit cases directly to the African Court on Human and Peoples’ Rights. Ntshele takes the view that doing so “will show South Africa’s commitment to promoting and protecting the human rights of its citizenry at the regional level” and indicate it’s “willingness to collaborate with other African states to build strong human rights systems.”
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