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

With the JSC interviews taking place in the week of 13 – 17 April, the GCB has released its comments on the candidates. The GCB’s comments are regularly referred to during the interviews and give valuable insight into issues that may arise. Some of the more notable comments in the reviews are highlighted here.

• The reviews of the SCA candidates are generally positive. Judge Bloem would be eligible to serve for only 4 years if appointed, though he is praised for the quality of his judgments and his knowledge of the law. The review notes that Judge Chili “has written fewer than 20 judgments over the last 12 years, few of which have dealt with complex or novel legal issues”, making it “difficult to fully assess the candidate’s knowledge of the law.” Judge Vally would only be eligible to serve for 3 years if appointed, and the review notes several instances of judicial criticism of the candidate’s judgments when decisions were overturned. While the review describes the candidate as “undoubtedly independently minded”, it notes concerns over his “occasional disregard for binding precedent, especially when preferring his own earlier judgments, is concerning.” 

• Among the candidates for the Eastern Cape High Court, concern is raised that Ms Cengani-Mbakaza “lacks an understanding of certain aspects of procedural law” and that her “ability to structure succinct, clearly structured, and reasoned judgments dealing crisply with the issues placed before her for determination could be improved.” It is noted that advocate Colett previously had a summary judgment given against her, and although she is said to have fully settled the debt, the review raises the concern that “it may be that these events have the potential to compromise the candidate in future.” The review of Mr Dunywa states that “having regard to the nature and complexity” of the judgments referred to in his application, “it cannot be stated positively that the candidate has the requisite knowledge of the law … to be appointment as a permanent judge.” 
  
  Regarding Professor Krüger, it is noted that she lacks practicing experience, and that whilst her judgments “reveal a good command of language” they are “not always well constructed and accessible to litigants.” Practitioners appearing before her are said to report that “her lack of experience is apparent from the manner in which she conducts proceedings before her and that at times she strays from the facts presented in evidence and is distracted by irrelevant issues.” Advocate Molony is said to have “proved to be of exceptional ability during her periods of acting … and her appointment is universally commended.” 
  
  The review of Professor Ntlama-Makhanya, a former JSC commissioner also notes a lack of practicing experience, raising concern that she “has little or no experience in the diverse fields of law which face a judge on a daily basis.” Several judgments written by the candidate are cited to illustrate this concern. The review of Ms Tilana-Mabece highlights that her law firm “has concluded an agreement with an attorney in his private capacity who practises as an associate in another firm”, and takes the view that “certain provisions of the agreement may be improper”. The candidate is also said to have “limited experience in the motion court and limited knowledge of motion court procedure.” A further concern raised is that the candidate may not have accurately reported her involvement in certain cases in her questionnaire. 
• We have previously noted that Deputy Judge President Ledwaba, the sole candidate for Judge President of the Gauteng High Court, was sure to face questions over allegations made at the Madlanga Commission implicating him in the payment of a bribe to ensure the granting of bail to a murder accused. The allegation is unsurprisingly noted in the GCB’s review, but it emphasizes that, with the allegation not being established, there are no circumstances to suggest that Ledwaba DJP is not fit and proper for appointment, noting that “[t]he candidate’s nominators highlight his integrity.” The candidate is further praised for his commitment to constitutional values and for showing “competence and familiarity with multiple fields of law”, although a question is raised about the “volume and depth” of his judicial output since being appointed as DJP.

• Of the candidates for the Land Court, the GCB is positive about Ms Mabasa, but judgments furnished by advocate Mthembu are said to “demonstrate inadequate legal analysis and understanding of legal principles” and linguistic and communication skills that “are inadequate for judicial office.” The review also expresses concern that the candidate does not appear to have any experience in the Land Court.  

• Whilst comments on the candidates for the Western Cape High Court are generally positive, the review of advocate Bhoopchand SC is striking. The candidate is said to be the subject of an action for defamation by a litigant based on an allegedly defamatory statement made in a judgment, and to have a “fairly limited” range of exposure to different areas of the law in his practice. Reservations are also expressed about his ability to conduct court proceedings. But most striking are the GCB’s comments on the candidate’s approach to costs orders, which are worth setting out in full:

“[T]he candidate in his questionnaire records that he makes “creative use of costs orders to deprive legal teams that refuse to represent the demographics of the country”.

• The candidate references a judgment in which he made obiter remarks to the effect that costs should only be awarded on Scale A unless a party “promotes the principles of transformation in selecting Counsel to represent them”. The candidate in his questionnaire describes that this was a matter in which the counsel for the applicant were both white men.
• This comment is deeply concerning. It indicates that the candidate believes a court may reduce the quantum of costs a successful litigant may recover based on the candidate’s view of what the appropriate race and gender composition of a legal team should be.
• This indicates a punitive attitude towards counsel based on their race and gender, alternatively, towards a litigant based on the race and gender of counsel. Both cast serious doubt on the candidate’s ability to conduct court proceedings fairly.
• In the judgment referred to by the candidate, he recorded that, “A Court may be receptive to granting a more favourable costs order against a Department of the State if the opposing party promotes the principles of transformation in selecting Counsel to represent them. That is not the case in this matter.”

The review expresses concern that this approach “indicates that the candidate believes it would be appropriate to award costs against an organ of state on a higher scale to ‘reward’ litigants for briefing counsel of a certain race or gender.  The GCB raises the further concern that an approach of “depriving” lawyers of costs “casts doubt” on the candidate’s “understanding of the purpose of costs awards and of the nature of the lay client’s liability for costs”. 

Another month has gone by without President Ramaphosa making appointments to the two vacancies on the Constitutional Court. FUL signed on to a joint civil society statement expressing concern about the delay in making the appointments, and calling on the President to make the appointments without further delay; publicly explain the reasons for the delay; and commit to ensuring that future appointments are made timeously.

2. Judicial Conduct

There was no significant movement on any of the ongoing complaints against judges. It has been reported that Judge Thulare has been issued with a notice to vacate the state-owed residence he has been occupying. (See further details in last month’s note).    

3. Significant cases

In Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs and Others, the applicant challenged the constitutionality of section 27 of the Disaster Management Act (DMA). The section empowered the Minister to declare a national state of disaster in specified circumstances, and to make regulations or issue directions dealing with a wide range of issues relating to the disaster. The applicant argued that these measures should be tabled for Parliament to approve or disapprove (if the latter, the regulations would lapse). The challenge was unsuccessful in the High Court and the SCA. 

In the Constitutional Court, the majority (per Theron J, Goosen AJ, Kollapen J, Majiedt J, Mhlantla J and Opperman AJ concurring) held that it would amount to judicial overreach to “grant to Parliament what amounts to a veto power over subordinate legislation enacted pursuant to section 27 of the DMA”. Theron J rejected an argument that the DMA permitted an unconstitutional, simulated state of emergency, identifying “fundamental differences between a state of emergency … and a national state of disaster under the DMA.” Theron J further emphasised that any limitation of rights would render the regulations subject to judicial review. Disagreeing with the minority judgment, Theron J held that:

“to dismiss judicial review … as an ineffective remedy as compared to an override power by Parliament, seems … to mischaracterise the roles assigned to the Legislature and the Judiciary by the Constitution.  The separation of powers assigns to the courts the responsibility to determine whether legislation or executive conduct complies with the Constitution. …”

Turning to the argument that the section failed to empower the National Assembly to scrutinise and oversee executive action, as required by the Constitution, Theron J held that the Act “does not interfere with this responsibility of Parliament to exercise oversight over the Executive”, but “the National Assembly’s oversight powers do not entitle it, without more, to veto or overturn any decision taken by the Executive in the lawful exercise of its powers.” Theron J further found no impermissible delegation of legislative power by Parliament to the Minister.

The appeal was dismissed. The minority judgment (per Tshiqi J, Dambuza AJ and Rogers J concurring) would have found the section unconstitutional for not empowering the National Assembly to approve the regulations. The majority judgment has been subject to stringent criticism, as discussed in section 6. 

The delegation of lawmaking powers was also in issue before a full bench of the Western Cape High Court in Democratic Alliance v Minister of Finance and Others. This case dealt with a challenge to section 7(4) of the VAT Act, which empowered the Minister of Finance to alter the rate of VAT by announcement in the national annual budget. Francis J (Cloete and Lekhuleni JJ concurring) held that the section authorised the executive “to determine, with immediate effect, the quantum of a broadly based national tax that applies across the economy.” There were no statutory criteria to govern the magnitude of the alteration, and while Parliament was required to enact confirmatory legislation within 12 months, the absence of a requirement of legislative ratification within a defined, short period meant that during its operation, the VAT rate was “fixed exclusively by executive announcement.”  As a result:

“Parliament’s control over the imposition of the altered rate operates only retrospectively and prospectively — that is, by either confirming the measure or permitting it to lapse after twelve months — but not contemporaneously at the point of imposition. In the specific context of VAT, whose operation is transaction-based and practically irreversible, this structure assumes particular significance.”

The section was held to be an impermissible delegation of legislative power to the executive, inconsistent with the Constitution and invalid. The declaration of invalidity was suspended for 24 months to allow Parliament to remedy the defect.  

In Goliath and Others v Minister of Sport, Arts and Culture and Others, the Gauteng High Court, Pretoria dealt with a high-profile challenge relating to the film Elegy, which had been selected for display at South Africa’s stand at the Venice Biennale. The Minister raised concerns that the film’s focus on “the subject of Palestine” dealt with “highly divisive” subject matter, and then terminated the partnership with the implementing partner, Art Periodic, which had selected the film, indicating that the Department would resume direct management of the South African Pavilion.  

Kubushi J characterised the dispute as relating to “an ordinary private agreement between two parties”, and whilst accepting that a broad approach to standing was required, Kubushi J did not accept that the applicants’ rights and interests under section 16 of the Constitution (the right to freedom of expression) had been adversely affected by conduct of the respondents:

“the only decision that the Minister withdrew is the contractual relationship in terms of which Art Periodic was granted access to the Pavillion … Such a decision … did not interfere with the selection or cancel the selection of the applicants’ artwork. This, it could not do because there was no relationship between the Minister and/or the Department and the applicants. Because there was no relationship, contractually or otherwise, between the respondents and the applicants, the Minister would not have the authority to interfere with the relationship between Art Periodic and the applicants, which was a relationship or agreement separate from that of the respondents and Art Periodic.” 

Kubushi J concluded that the applicants lacked locus standi and dismissed the application with costs. It has been reported that the judgment is to be appealed. 

4. Administration of justice 

In the 2026 budget speech ,it was announced that R883 million is to be moved from the Department of Justice to the Office of the Chief Justice (OCJ), the rationale being to allow the judiciary to assume control of its own budget and thereby ensure its institutional independence. 

GroundUp has reported that the judiciary has not published a list of reserved judgments for over five months.

In the latest of a troubling line of killings of legal practitioners, attorney Chinette Gallichan was shot outside the CCMA in central Johannesburg, in what was described as a killing having “the hallmarks of a hit.” FUL published a statement expressing concern about the impact of killings such as this on the rule of law. The statement attracted considerable media coverage. (See for example here, here, and here).    

5. Legal Profession

 An attorney, who has also served as an acting magistrate, was found guilty of contempt of court for having abandoned his clients at the outset of a murder trial. The high court found that the attorney’s explanations were “inconsistent, tardy and inadequately supported”, and questioned whether some supporting documents had been fabricated after the fact. Sentencing proceedings are ongoing.

GroundUp reports on troubling instances of dishonesty by legal practitioners, highlighting two judgments where an order of admission as an attorney was rescinded due to the use of fraudulent documentation in the original application; and where an application for admission was refused due to a candidate having lied about being paid as a company director while undertaking articles. 

6. Articles

FUL has published op-eds previewing the JSC’s April sitting, and discussing possible eligibility requirements for members of parliament.  

The situation at the Constitutional Court, relating to appointments to the court and to the court’s functioning, have received attention. Mbekezeli Benjamin of Judges Matter looks at the President’s longstanding failure to make appointments in the context of a gradual decline in the Court’s performance since 2010, with research indicating that it is “taking longer to hear cases and deliver judgments.” Benjamin notes that this leaves the Court without a full complement of judges “for the tenth year in a row”, and highlights arguments that declining judicial capacity is a major contributing factor to delays in finalizing cases. 

This, Benjamin argues “makes the now four-month-long delay in Ramaphosa appointing judges to the Constitutional Court even more alarming.” Benjamin also notes the impact of how the JSC has conducted interviews in deterring candidates from coming forward, and argues that the JSC needs to adopt a code of conduct for commissioners and follow its selection criteria more closely to increase confidence in the appointments process. 

In similar vein, Professor Balthazar focuses on the Court’s struggles, highlighting “the plethora of acting justices … and the absence of chief justices Zondo and Maya from sitting in numerous cases” as well as the President’s failure to make new appointments. Regarding the role of judicial leadership, the column notes that:

“The work required of a Chief Justice in running the Office of the Chief Justice, apart from being head of the court, has manifestly placed a great burden on the Chief Justice. Somehow, resources must be found to deal with this problem in that primarily it is the role of the Chief Justice to preside over the court.”

The column further highlights the impact of “the ill-considered 17th Amendment to the Constitution”, which expanded the Court’s jurisdiction beyond constitutional matters only, although it notes that the Court does retain the power to manage its roll by declining to hear cases. The column argues that the Court has:

“been the author of its own problem by repeatedly hearing appeals from specialist courts – the Labour and Competition appeal courts – where the court has, certainly at present, little expertise. 

There is indeed a plausible argument that its jurisprudence in these specialist areas has retarded rather than developed these key areas of law. Indeed, the same can be said for complex commercial and tax-related cases …”

The column further criticises the Court’s current judgment writing style as “opaque, prolix and often unnecessary”, and highlights the negative impact of shortcomings in the performance of the JSC. 

A Daily Maverick article discussing the Constitutional Court’s struggles quotes an OCJ spokesperson saying that:

“sight should not be lost of the added responsibilities and workload that the Constitutional Court carries since its jurisdiction was expanded. It must also be pointed out that, despite this, there was no reciprocal improvement in the Court’s capacity and resources.”

In a forceful critique of the majority judgment in Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs, Dan Mafora describes the judgment as containing “genuinely startling propositions of law”, and concludes that it “is a genuinely bad judgment”:

“Basic and settled legal principles are upended, the argument is internally incoherent, large portions of it are unsupported by any authority, and many of the conclusions are simply stated and never reasoned through. Even with access to sources from which the correct legal principles could have been drawn … it reached a most absurd result.”

Limpopo Regional Court President Jakkie Wessels discusses the judiciary’s “landmark” sexual harassment policy. Highlighting research indicating sexual harassment in the magistrates’ courts, Wessels praises the policy’s “comprehensive and unequivocal definition of sexual harassment” and sees its victim-centered approach as representing “a critical shift in institutional culture.”. Wessels concludes that the policy is “not simply a rulebook” but “a commitment to cultural change” and “a declaration that the judiciary must embody the constitutional values it interprets and applies.”