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. In memoriam

Former Limpopo High Court judge Nare Kgomo passed away at the age of 75. Judge Kgomo was appointed as a judge of the Gauteng High Court in 2008 and was transferred to the Limpopo High Court in 2016. He was discharged from active service in 2022.  

2. Judicial Appointments

FUL’s litigation against the JSC, relating to the JSC’s decision-making in interviews of candidates for the SCA in October 2023, has been settled. In line with the settlement agreement, the JSC released its Revised Procedures For Shortlisting, Interviewing And Recommending Candidates For Judicial Appointment And Regarding Breaches Of Members’ Duties Of Confidentiality, Law And Ethical Standards for public comment. FUL had sought an order requiring the JSC to develop and publish criteria to assess candidates for appointment through the application of objective criteria, and to require commissioners to evaluate candidates in writing for compliance with these criteria. The settlement requires the JSC to publish this request for comment, to decide on the review and reconsideration of its appointment guidelines at its October 2026 sitting, and to publicly announce its decision on this review within one week of that sitting.

FUL has made a submission commenting on the guidelines, raising concerns that the amendments provided for in the revised procedures do not address the concerns raised in FUL’s litigation. These concerns include the document’s failure to address the JSC’s deliberative processes, to ensure accountability and transparency in relation to the JSC’s voting processes; a failure to adopt standard appointment criteria against which candidates are to be evaluated; and insufficient protections against improper questioning of candidates.      

The JSC’s October sitting takes place from 5 to 13 October 2026. The General Council of the Bar (GCB)’s comments on the candidates have been released, and notable evaluations are highlighted here.

• The reviews of the SCA candidates are largely positive. Judge Bloem is praised for his “active pursuit of dismantling systemic barriers for black practitioners”, and is praised for the quality of his judgments, in particular his “ability to reduce technically dense disputes to their legally determinative propositions without losing sight of the factual record.”  Judge Opperman is described as having a “special depth of knowledge in civil and commercial law and tax law”, and as being “not reluctant to adopt her own reasoning that departs from the majority position or from the views of more senior judges”.  Judge Masipa is praised for her “sound and evolving knowledge of the law” and for her independent mindedness. Judge Phatshoane is described as having “made significant contributions towards the advancement of women, gender equality and their representation in the judiciary and the legal profession”, and as being “well versed” in complex areas of the law. Judge Steyn is said to have a “good knowledge of the law”, and the review notes that her “knowledge of, and experience in, criminal law make her a good candidate for the SCA, which has relatively few judges who previously specialised in criminal law.”    
• Of the candidates for Deputy Judge President of the Labour Court, the review of Judge Mahelelo highlights praise for her stint as Acting Deputy Judge President, but notes concern that several of her judgments have been handed down late. The review of Judge Moshoana  describes his “legal reasoning and analytical skills” as “generally sound and sufficiently rigorous”, with “[a] few exceptions”. His delivery of judgments is described as “on time and prolific[]”, although “from  stylistic point of view, perhaps the candidate’s writing may at times be viewed as florid or verbose.”   
• Regarding the candidates for the Labour Appeal Court, whilst Judge Prinsloo’s judgments are said to “display a deep understanding of constitutional principles in so far as they relate to labour law jurisprudence” and to be “thorough and thoughtfully considered”, the review finds “little … that demonstrates a personal commitment to the values of the Constitution outside of any judicial or quasi-judicial role.” Judge Whitcher is said to have a “good grasp of legal principles”, although the review notes several instances of her judgments being overturned on appeal.
• The reviews of the Competition Appeal Court candidates are mixed. Judge Nkosi’s jurisprudential record is described as demonstrating “strong and directly relevant knowledge of competition law and appellate public law”, whereas concern is expressed that Judge Lekhuleni “has only one judgment in the CAC, which was resolved on administrative-law grounds.” Whilst “[t]he candidate has a strong academic background”, the review cautions that “his judgments have not involved large commercial matters and therefore do not display his ability to determine complex commercial issues.”
• Of the Land Court candidates, the reviews are again largely positive about Ms Mabasa (an unsuccessful candidate in April 2026), who is said to have a “clear knowledge” of land law. Advocate Maluleke is lauded for a “sustained commitment to constitutional values”, and her judgments are said to “reflect a sound knowledge of land tenure law and the applicable constitutional principle.” Whilst her “overall professional experience is broad and substantial”, her “conventional litigation experience is not particularly extensive”. Concerns are raised about the extent of Advocate Tebeile’s experience, particularly in land law, and his “relatively substantial number” of reserved judgments. The review also suggests that the JSC probe a court appearance where he appeared to represent an entity in which he may have had an interest.      
• Among the candidates for the Western Cape High Court, the review flags some “questionable reasoning” in judgments of Dr Adams. Advocate Janisch SC is described as having delivered “comprehensive and well-researched judgments” and is praised for “his ability to distil complex legal questions to their essential components and articulate them with precision and clarity.” It is noted that Ms Jonker has “has endeavoured to consider race and gender diversity when briefing counsel”, and she is commended for her “well-rounded understanding of the law.” 

More concerningly, the review of Professor Moosa highlights an incident where his conduct as an attorney was referred to the LPC by a presiding judge, and an adverse costs order made against him; and another where his conduct as an executor was subject to judicial criticism. Furthermore, the review notes criticism of “controversial aspects” of a judgment written by the candidate on the issue of subrogation in insurance law, which are “arguably out of step with the legal position”.  The review of Ms Mthimunye is largely positive, though the GCB suggests that her judgments do not “establish consistently advanced expertise in any single field”. Whilst advocate O’Brien SC’s extensive professional experience is noted, the review suggests that “some of his judgments fall short of his general standard”.

• Among the candidates for Deputy Judge President of the Eastern Cape High Court, the review notes that Judge Noncembu has limited acting experience in the position, but has “extensive experience in the administration of justice”, and “has demonstrated a remarkable efficiency in managing the administration and affairs and functioning of the Gqeberha High Court” while acting as DJP. Judge Pakati’s administrative ability is said to have “been well illustrated during her acting appointments as Deputy Judge President”.
• The sole candidate for the KwaZulu-Natal High Court, Ms Marion, is praised for her judgments and her “personal commitment to the values of the Constitution”. 
• As to the candidates for the Northern Cape High Court, Advocate Olivier receives a positive review, while the review of Ms Snyders notes that five of her judgments have been overturned on appeal, with none upheld.  Advocate Tyuthuza is notably young (39 years old at the time of the interviews) but is described as having a “very broad range” of knowledge of the law. 

Arguably as significant as the vacancies that were advertised for this round are those that were not. As described in our previous note, the Constitutional Court is again short of its full complement of permanent judges following the retirement of Justice Tshiqi, and yet this vacancy has yet to be advertised. The position of Deputy Judge President in both the Pretoria and Johannesburg high courts – two of the busiest in the country – also remains vacant.

3. Judicial Conduct

After a disturbing number of tribunal referrals in recent months (see our winter 2026 note), it has been a relatively quiet month on the judicial conduct front, though Western Cape High Court judge Thandazwa Ndita has been reprimanded for a 14 month delay in delivering a judgment. 

The travails of Judge Phahlane continue to receive media coverage, with reports indicating that vehicle tracking technology places a vehicle “linked to” the judge at venues where it is alleged that secret meetings occurred relating to the church succession dispute, regarding which it is alleged that bribes were paid to the judge. A further report raises questions about how Judge Phahlane came to be allocated the case, quoting a letter from the Judge President indicating that no record of the case being formally allocated to Judge Phahlane could be found.    

A case accusing Justice David Unterhalter of bribery has been dismissed due to failure to obtain consent from a head of court as required by section 47 of the Superior Courts Act. The claim related to an e-mail sent when the judge’s e-mail was hacked. The presiding judge was quoted as describing the case as “frivolous and vexatious litigation”.       

4. Significant cases

With South Africa’s local government elections taking place in November, electoral disputes have inevitably come before the courts. In African National Congress v Electoral Commission of South Africa and Another, the Electoral Court dismissed a challenge to the Commission’s decision that certain party lists and ward candidate nominations had not been validly submitted before the statutory deadline. The information had been uploaded, but the portal’s “submit as final” function had not been clicked. The court (per Modiba J, Mangcu-Lockwood AJ and additional member Prof Phooko concurring) dismissed the ANC’s argument that this was sufficient to comply with the legislative framework:

“the “submit as final” function is not merely an internal administrative convenience. It is the mechanism through which a party completes the prescribed electronic nomination process. The Act required submission in the prescribed manner; the prescribed manner incorporated the OCNS functionality; and the OCNS required final submission before nominations acquired legal effect. Failure to click “submit as final” therefore constitutes a failure to comply with the statutory nomination requirements.”   

Modiba J accepted that “the consequence of this interpretation is disenfranchisement rather than enfranchisement” but held that “[o]nce the framework is correctly interpreted, courts are not at liberty to disregard its requirements in the name of enfranchisement.” As the ANC had not challenged the validity of the statutory and framework, and was aware of the “submit as final” requirement, which it had complied with in respect of other municipalities,  its “belated challenge” to the electronic submission requirements was “legally untenable.”

The Constitutional Court is due to hear an appeal against the decision on 5 October 2026.

In another electoral dispute, the Electoral Court dismissed a review application by the MK Party challenging the Electoral Commission’s determination that the 2024 national and provincial elections had been free and fair. The Commission was alleged to have deliberately interfered with the functioning of the digital votes capturing and reporting system, in relation to a temporary malfunction with the system (the “leaderboard incident”). The court (per Adams J, Steyn and Mangcu-Lockwood AJJ and additional members Professors Ntlama-Makhanya and Phooko concurring) held that the Commission’s evidence “that the leaderboard incident had no impact on the capturing and verification of the election results” had not been “meaningfully challenged or disputed”.  

In Legal Practitioners’ Fidelity Fund Board v Rodney Adrian Love and Another, the high court had issued an order extending the time period within which the respondent had to lodge a claim with the appellant. The SCA had previously upheld a special plea raised by the appellant that the claim had been correctly rejected for being lodged out of time. The time period was then extended by the high court in a separate review application.  

The SCA, per Schippers JA (Koen and Vally JJA and Reinders and Mooki AJJA concurring) held that “the findings of the SCA and the High Court are directly contradictory factual findings concerning the same claimant, the same R10 million, the same theft and the same historical events.” The high court had exercised its discretion “on a factual premise it was not legally entitled to revisit”, and had improperly rejected the SCA’s factual finding. Accordingly, the high court’s order was an unlawful exercise of judicial power:

“It is settled law that judges are bound by the principle of legality. The judicial function is not an unrestricted licence for a court to do what it considers just; judicial power must have a legal foundation. …” 

The high court’s order also infringed the doctrine of stare decisis:

“The High Court’s contrary finding … effectively means that a litigant who has lost in the SCA can return to the High Court by a different procedural route, and obtain a result based on a factual proposition which the SCA has rejected. The authority of an appellate court and the finality of its judgments cannot be allowed to be undermined in this way. The High Court’s disregard of the doctrine of precedent is a further reason why the substitution order is incompetent.”

The appeal was upheld with costs.

Ered v Minister of Home Affairs and Another concerned the correct interpretation of the Constitutional Court’s judgment in Scalabrini Centre of Cape Town v Minister of Home Affairs regarding the detention of asylum seekers. Wilson J held that the effect of the Scalabrini judgment was that as soon as a detainee evinced an intention to apply for asylum, they had to be released from detention in terms of the Immigration Act. 

Wilson J noted that in the case of Mnamo v Minister of Home Affairs, the high court had declined to order the release of a group of putative asylum seekers, replying on the Constitutional Court’s decision in Ashebo v Minister of Home Affairs, a judgment which pre-dated the Scalabrini decision. Wilson J expressly disagreed with the Mnamo decision:

“The reliance on Ashebo is misconceived, since Ashebo dealt only with detention pending a good cause interview, which … is no longer part of the refugee application process. … On the facts set out in the Mnamo judgment, the applicants should have been released. …

It appears that the decision in Mnamo was animated to some degree by what the court believed to be “the views of organizations such as Dudula and March and March” which the court identified with “the views of the impoverished and downtrodden members of the society” … I do not think that the two can be treated as identical. I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable, most of whom may well strive to avoid the egregious mistake of blaming the poverty they endure on the presence of foreign nationals in South Africa. 

That aside, the more fundamental point is that the duty of a court is not to channel the views it attributes to a judicially constructed vision of a virtuous majority, but to apply the law as it stands …”

A full bench of the Gauteng High Court will consider the conflicting approaches at a hearing on 29 October 2026. 

In M.C v Minister of Police, the applicant sought an order to compel the respondent to finalise a criminal investigation of a complaint of sexual assault of minor children, within seven days. The court (per von den Bogert AJ) held that the time period specified was unreasonable, and that there was no evidence that the police were refusing “to properly and with the necessary expediency complete the investigation.” This court could not “tell the police service how and within what period to do its job.” With no case having been made out for the court to interfere with the investigation, the application was dismissed.  

5. Administration of justice 

EFF leader Julius Malema has finally apologised for his questioning of Judge Matojane at the JSC interviews in April 2021, as ordered by the National Assembly.  Malema has also been granted leave to appeal against his conviction and sentence for firearm-related offences (see our October 2025 note). The Helen Suzman Foundation application challenging Malema’s suitability to sit as a member of the JSC is due to be heard in November 2026. 

An amendment to the jurisdiction of the Pretoria High Court, which would have ended the concurrent jurisdiction of the Pretoria and Johannesburg High Courts, is to be challenged. Meanwhile, the removal of Mabideng from the jurisdiction of the Pretoria court has been set aside following the settlement of another legal challenge. 

According to media reports, the Competition Tribunal is experiencing serious capacity constraints, with only one full-time lawyer among its current members.      

6. Articles

The chair of FUL, Justice Azhar Cachalia, delivered the annual Ben Beinart memorial lecture at the University of Cape Town. The lecture, titled “From Apartheid to Illiberalism”, discussed the impact of apartheid and experiences of legal practice under that system, and threats to South Africa’s constitutional order today. Justice Cachalia also delivered a public lecture at Rhodes University on the challenge of delays at the Constitutional Court and potential solutions, drawing on FUL’s recent research report (see our previous note).  

FUL has published op-eds discussing the settlement of the litigation with the JSC.

Retired SCA judge Trevor Gorven has joined FUL’s board. 

In a review of Magistrates Commission interviews with candidates for leadership positions, Genevieve Maujean and Dimakatso Nchodu of Judges Matter describe a process where interviews were “conducted calmly and constructively” with “respectful, focused and consistent” questions being asked. However, concerns are raised about the “unrealistically long” interview schedule, short time periods for public comments on the candidates, and he interviews being “largely inaccessible.”   

ENDS