Major events relating to the judiciary and the Rule of Law

This inaugural 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 article where they are available. It is not intended to provide a comprehensive analysis of all the issues raised.

1. Judicial Appointment

The Judicial Service Commission holds its next round of interviews of prospective judges from 17 – 21 April. The shortlist of candidates presents several points of interest.

Most strikingly, the JSC has been unable to shortlist enough candidates for the permanent vacancy on the Constitutional Court. This is not the first time this has happened – in April 2012 and April 2016, the JSC was unable to hold interviews for Constitutional Court vacancies due to there being insufficient candidates to meet the requirements of s 174(4)(a) of the Constitution. Around this time, there were also instances where the JSC interviewed the bare minimum of candidates required. Then, during the October 2016 interviews, the late Justice Bosielo withdrew during his interview, meaning the interviews were unable to proceed. There were cautious grounds for optimism, with more than the minimum number of candidates being interviewed at the JSC’s April 2017, April 2019, and April and October 2021 sittings. But unfortunately, a lack of candidates appears to be becoming a trend again. In April 2022, the JSC interviewed the minimum number of candidates required (five) for two vacancies and ended up only recommending enough candidates to fill a single vacancy (ultimately filled by the appointment of Justice Rogers). In October 2022 and now April 2023, the JSC has again been unable to shortlist enough candidates to hold interviews for a Constitutional Court vacancy.

In the past, there has been speculation that the shortage of candidates may have been due to, inter alia, the often abrasive and confrontational nature of the JSC interviews. With the issue persisting under the tenure of the new Chief Justice, it is difficult to proffer any explanation other than that the conduct of the JSC interviews is having a deterrent effect. It is surely no coincidence that following the treatment, in particular, of Judge Dhaya Pillay in the April 2021 interviews (prompting the interviews to be re-run in October 2021, on pain of litigation), and Judge Unterhalter in April 2022, the JSC has been unable to shortlist sufficient candidates for two consecutive sittings.

During the media briefing at the annual judiciary day, Chief Justice Zondo indicated that he was extremely concerned about the lack of candidates, and that the JSC would be discussing the issue during the April sitting. It is vital that the issue is addressed, as the inability to fill a permanent vacancy on the highest court is obviously highly problematic for the court’s functioning, and for public confidence in the judiciary generally. It may be that the adoption of a code of conduct for JSC commissioners, which has been widely advocated for following the conduct of certain commissioners in the April 2021 Constitutional Court and February 2022 Chief Justice interviews, will be a necessary step to restore confidence in the JSC’s interview process.

It is notable that there are other instances of vacancies advertised for this round not attracting sufficient candidates. It is especially concerning to note that no candidate was shortlisted for the Deputy Judge President of the Labour Court and Labour Appeal Court. This position has been vacant since Judge Tlaletsi’s appointment as Judge President of the Northern Cape in 2017. In April 2019, the vacancy was advertised, but the interviews were then cancelled without public explanation. The failure to fill this role has previously been criticised, and it is of concern that, when the position was finally re-advertised, no suitable candidate could even be shortlisted.

Furthermore, while five vacancies were advertised for the Competition Appeal Court, only two candidates (Judges Nuku and Spilg) have been shortlisted. No candidate was shortlisted for the single judicial vacancy on the Electoral Court (which may not be surprising after some unimpressive interviews of candidates for this position in previous JSC sittings). Gauteng offers a more cheerful picture, with ten candidates shortlisted for five vacancies.

Of the candidates who have been shortlisted, several have had notable issues emerge in past interviews, or have aspects of their candidacy which are likely to make their interviews interesting to watch:

  • Judge Nuku (Competition Appeal Court candidate).
    Proximity to suspended Western Cape Judge President John Hlophe often invites controversy, and while still an attorney, Judge Nuku represented the Judge President at the beginning of his confrontation with the judges of the Constitutional Court. Judge Nuku was a member of the full bench of the Western Cape High Court which found that President Ramaphosa had been conflicted when he suspended the Public Protector, in a judgment which has been subject to searching criticism.
  • Judge Spilg (Competition Appeal Court candidate)
    When Judge Spilg appeared before the JSC in April 2014, as a candidate for the SCA, he faced sharp questions about having a large number of reserved judgments, and over his handling of a trial which resulted in censure by the SCA for “breach[ing] many of the canons of judicial behaviour”.
  • Advocate Wanless SC (Gauteng High Court candidate)
    Advocate Wanless has been interviewed by the JSC on two previous occasions. In April 2021, he withdrew his candidacy during the interview due to allegations of sexual harassment, with commissioners advising him to clear his name before putting himself forward for appointment again.
  • Judges Mphahlele and Mashiele (Mpumalanga Judge President candidates)
    Contested judicial leadership positions sometimes point to a divided court, although it is not known whether that is the case in Mpumalanga. Judge Mphahelele was appointed Deputy Judge President in 2021, and therefore could be the ‘anointed’ candidate. As a woman, her appointment would be attractive to counter criticisms of the lack of women in judicial leadership positions. Judge Mashile would provide a different kind of diversity – he is blind and would to our knowledge be the first such judge to hold a permanent leadership position. It is not apparent, however, that he has held any previous formal leadership role in the judiciary, which is likely to place him at a disadvantage in comparison with Judge Mphahlele. Judge Mashiele is perhaps best known to the wider public for handing down a decision ordering the reinstatement of former Old Mutual CEO Peter Moyo, following which he was described as a “a single individual wearing a robe” by Old Mutual board chairperson and former cabinet minister Trevor Manuel (comments for which Mr Manuel subsequently apologised).
  • Justice Molemela (nominated for SCA President)
    Much of the JSC’s focus during interviews for the SCA (or in interviews of candidates from the SCA for other positions) has been on the role of the so-called “top six” at the court, and on allegations of divisions and internal tensions at the court. It will be interesting to see whether and how these issues are dealt with in this interview. Justice Molemela is eighth (out of 23 permanent judges) in the SCA’s list of seniority, and has a reputation as a regular dissenter (i.e. she frequently writes dissenting judgments). It will be interesting to see how these dynamics play out in her interview, although it would seem extremely unlikely that the JSC would not ultimately endorse her. Her appointment will, again, be an attractive one to address concerns about the lack of gender diversity in judicial leadership positions.

A final point to note regarding the interviews is that they will be the first since the JSC published and invited comment on detailed supplementary criteria for appointment. This step has long been called for as a key aspect of improving the JSC’s interview process. It will therefore be of critical importance, considering concerns about an apparent lack of trust in the process, to see how these criteria are applied during the interviews.

2. Judicial conduct

It has not been a good month for judicial conduct. First, it was revealed that a judge of the Free State High Court was to appear in court to face charges of theft, money laundering and contempt of court. The charges relate to the handling of a Road Accident Fund matter when the judge was practising as an attorney. Then it emerged that a complaint of sexual harassment had been made against the Judge President of the Eastern Cape High Court. The matter is currently before the Judicial Conduct Committee.

Shortly after these stories broke, the Judicial Conduct Tribunal hearing the complaint by civil society organisation #UniteBehind against Gauteng Judge Nana Makhubele finally began. As we highlighted in an op ed, the timing of the tribunal, coming so soon after two serious allegations against sitting judges, was significant, and offered an opportunity for the many concerns about the JSC’s handling of the process to be addressed. Unfortunately, the Tribunal’s proceedings have instead served to reinforce many of those concerns, particularly (as we discuss in the op-ed) concerns about the timelines within which matters are dealt with; and the role of complainants. After four days of hearings, the evidence in chief of the second witness is not yet completed, with the matter being postponed until May 2023. There are also concerns that the role of the complainant, which is legally represented at the hearing, has been significantly curtailed, with the Tribunal ruling that whether the complainant was entitled to put questions to a witness on a case-by-case basis, where it felt an issue was not sufficiently covered by the evidence leader.

We understand that the judicial conduct tribunal enquiring into complaints against Judges Seriti and H. Musi, regarding their handling of the Arms Deal Commission of Inquiry, is due to commence in March 2023, although the exact dates and the identity of the panel are not currently known.

3. Judiciary day and annual report

The annual judiciary day took place on 24 February 2023, with Chief Justice Zondo presenting key points from the judiciary’s annual report for the 2021 – 2022 financial year. A separate briefing note has been prepared, discussing this event and the report in more detail. Key points include that the judiciary met a majority (10 out of 13) of its key performance targets, although we raise questions about whether these are sufficient to provide a full picture of the judiciary’s performance. The report identifies challenges in case finalisation experienced by the Competition Appeal Court and the Land Claims Court, which are attributed to the challenges of obtaining the services of judges, and (particularly in the case of the Land Claims Court) serious infrastructural challenges, and delays in updating the governing legislation.

What drew most attention, however, were the Chief Justice’s comments affirming the role the courts had played in upholding the Constitution in the face of political attacks, and affirming that judges would not be intimidated in carrying out their constitutional duty.

4. Notable cases

Some significant cases were heard in the past month, which may have important outcomes for the rule of law and constitutional democracy.

In the Western Cape High Court, the ATM political party challenged the refusal by the speaker of the National Assembly to allow voting by secret ballot in considering the section 89 “Phala Phala” report, which could potentially have led to the President’s impeachment. The order sought, if granted, would set aside this decision, and require the vote to be held by secret ballot.

In Mncwabe and Others and Mathenjwa and Others v President of the Republic of South Africa, the applicants were appointed as directors of public prosecutions by former President Zuma shortly before he relinquished office. Their appointments were then revoked by President Ramaphosa, who appointed different candidates. Whilst the case will be legally significant for addressing the question of when a presidential order becomes final, the validity of (non)appointments to such senior positions will likely be of significance for the already-beleaguered National Prosecuting Authority.

In Mogale and Others v Speaker of the National Assembly, the Constitutional Court heard a challenge to the constitutionality of the Traditional and Khoi-San Leadership Act. The applicants argue that Parliament and Provincial legislatures failed to meet their constitutional obligation to facilitate public involvement before passing the Act. Numerous substantive concerns have previously been raised about the Act, and the outcome of the case is likely to have a major impact on the lives of rural South Africans.