Major events relating to the judiciary and the rule of law

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

In the previous newsletter we reviewed the shortlist of candidates who will be interviewed at the JSC’s April sitting. Since then, the General Counsel of the Bar (GCB)’s comments on candidates have been made publicly available. The GCB’s comments provide an important insight into the courtroom performance and professional reputation of the candidates. Some noteworthy comments include the following:

  • The GCB is complimentary about Justice Molemela (candidate for the President of the SCA), citing her minority judgments which have subsequently been upheld by the Constitutional Court as an example of her “keen insight into the principles of constitutional law [and] her commitment to the values of the Constitution”; and her “exceptional independent mindedness.” Members of the bar are said to be of the view that Justice Molemela successfully managed the Free State High Court during her tenure as Judge President.  
  • Regarding the Competition Appeal Court candidates, the GCB raises concerns that Judge Nuku has limited competition and appellate experience, has written relatively few reported judgments, and has had many of his more notable judgments overruled on appeal. Regarding Judge Spilg, the GCB notes that he only has a year left before retirement and has not been shortlisted for previous rounds due to a pending complaint relating to a reserved judgment. GCB reviewers appear to have struggled to obtain clarity about the nature and status of the complaint, and it will be interesting to see what, if anything, comes of this issue during the interview.
  • The GCB has raised concerns about several of the Gauteng High Court candidates. Advocate Bokako is criticised on the grounds that a number of her judgments “demonstrate weak legal reasoning, and a reliance on authority without a proper basis being set out therefor.” The GCB concludes that appointing her would send the message “that it is not necessary for judges to conform to the highest of standards.” 
  • The GCB notes that in 2008, Ms Lenyai was the subject of a striking-off application, and was suspended from practising for her own account for 8 years before the LPC decide not to proceed with the application. 
  • The GCB notes that in previous JSC interviews, Mr Malungana “appears to have overstated his involvement in social upliftment projects and confused or conflated his involvement in the Congress of South African Students and the South African Students Congress.” The GCB also raises the concern that his “knowledge and understanding of the law appears to be limited.”
  • The GCB makes adverse comments about the lack of reasons and motivations for conclusion provided in the judgments of Mr Manyathi, and notes an instance where he named a minor rape victim in a judgment. The GCB suggests that whilst we has extensive criminal law experience, Mr Manyathi does not appear to have sufficient experience in other areas of law.
  • Mr Motha is criticised for applying the incorrect test for leave to appeal on multiple occasions, as well as for a lack of reasons in his judgments, and for not taking parties’ arguments into account. The GCB again suggests that his appointment would send the message “that it is not necessary for judges to conform to the highest of standards.” 
  • In the previous briefing note, we observed that Advocate Wanless withdrew his candidacy during the course of his previous JSC interview, due to allegations of sexual harassment. The GCB review notes that LPC has since issued a certificate of good standing in respect of Advocate Wanless. 
  • The GCB provides a positive review of Advocate Retief, who must be one of very few candidates to be described as an authority on fertility law.
  • Ms Mahlangu (candidate for the North West High Court) is criticised for not understanding evidence in some cases, for failing to take into account the constitutional rights of plaintiffs in unlawful arrest matters, and for a lack of knowledge of the rules of court. The further concern is raised that some of her judgments are “not well-reasoned”, and that she “has a reputation for not being fair, or properly prepared” and that “her temperament is not always befitting a judicial officer”.
  • Regarding Ms Mfenyana, the other North West candidate, the GCB describes her as possessing “extensive knowledge of the law”, and writing clear and concise judgments. 
  • Advocate Stanton (Northern Cape candidate) is praised for her reputation for integrity, and for her personal commitment to the values of the Constitution. Whilst noting two judgments that were overturned by full benches on appeal, the GCB describes her knowledge of the law as thorough. The GCB’s comments about Advocate Venter, the second candidate, are also positive. 

The interviews are scheduled to take place in the week of 17 – 21 April, and will be livestreamed on the Office of the Chief Justice’s You Tube page. Freedom Under Law is hosting an online discussion forum with civil society, academics and journalists to preview the interviews, and discuss possible areas of engagement.

2. Judicial Conduct

In the February briefing note, we indicated that the judicial conduct tribunal hearing the complaint against Judges Seriti and Hendrik Musi, arising from the judges’ handling of the Arms Deal Commission of Inquiry, was due to take place during March. In fact, this was not correct, as the judges brought a legal challenge to the application of the JSC Act to retired judges. Specifically, they argued that the provisions of section 7(1)(g) of the JSC Act, which includes a judge who has been discharged from active service in the definition of a judge, was inconsistent with section 176 of the Constitution. In an op-ed written prior to the hearing of the case, Luthando Vilikazi and Luvo Mnyobe of Open Secrets (the complainant) argued that the judges were attempting to evade accountability, and that failure to investigate allegations of misconduct would undermine the judiciary.  

As this note was being finalised, the High Court handed down judgment, dismissing the retired judges’ application. Sutherland DJP (Wepener and Molahlehi JJ concurring) found against the applicants, rejecting the argument that a person can only be a judge during their term of active service. Sutherland DJP found that this argument “elide[d] the status and identity of a judge with the concept of an “office-holder”.” The court found that the Judges Remuneration and Conditions of Employment Act clearly contemplated the concept of a “judge for life”, and that this was not inconsistent with the Constitution.   

It remains to be seen whether the judgment will be taken on appeal. 

Otherwise, it was a mercifully quiet month on the conduct front, with no additional scandals or complaints being reported. More concerningly, there appears to have bene no further movement on any existing conduct tribunals or other complaints, either. 

3. Significant cases

Whilst the February briefing note focused on a busy month of matters relating to judicial conduct, March has been notable for several significant judgments handed down by the courts. In Ledla Structural Development (Pty) Ltd and Others v Special Investigating Unit [2023] ZACC 8, the Constitutional Court considered the question of whether the Special Tribunal established under the Special Investigating Unit Act qualified as a court, and possessed review powers and powers to grant preservation and forfeiture orders. In a unanimous judgment, the court found that the tribunal did not qualify as a court, citing in particular the ad hoc nature of the tribunal, the referral of matters by the President, and the absence of security of tenure of members of the Tribunal. 

Notwithstanding its further finding that the Special Tribunal was not empowered to conduct reviews under PAJA, the court held that the Tribunal did have the jurisdiction to adjudicate legality reviews, distinguishing the case from the court’s earlier judgment in the Group Five case to find that the SIU statute empowered the Tribunal to adjudicate legality reviews. The court held that the intention of the legislature “was to cast a wide net over the scope of the proceedings the Special Tribunal is empowered to adjudicate upon”, and that a legality review was not excluded. 

The judgment has been criticised by CASAC’s Dan Mafora for thin reasoning, and for its interpretation of the Group Five judgment. Mafora argues that the judgment illustrates outcomes-based reason at the expense of sound legal reasoning, and that it:

“represents what is increasingly becoming a trend of the Court deciding cases apparently unmoored from any legal constraints; fashioning new legal rules, completely ignoring existing ones or attempting to circumvent their application. In essence, it represents a court that has abandoned the discipline of rules.”

Dan Mafora, CASAC

In NEHAWU v Minister for The Public Service And Administration and Others, the Labour Appeal Court upheld a decision to allow the execution of an order interdicting a national strike in the public service sector. The court was especially critical of the conduct of the union in relation to the strike by members employed in essential services, which had “illustrated a flagrant disregard for the law, the employer and the people of this country entitled to access essential public services.” 

As the corruption trial against former President Jacob Zuma remains in stasis, the former President’s private prosecution of Prosecutor Billy Downer and journalist Karyn Maughan was the subject of high court proceedings to have the private prosecution set aside. The outcome of the case will be closely watched, due to its importance for media freedom.  

Another seemingly never-ending saga, namely South Africa’s electricity crisis, was also the subject of court proceedings, with a range of applicants, including the United Democratic Movement and various trade unions, seeking to have load shedding declared unconstitutional. It is reported that the application comprises two parts: in part A, an order is sought to compel the state to exempt specific sectors of the economy and social services from load shedding. In part B, an order is sought holding the President “legally responsible for the human cost of load shedding.”  With South Africa’s energy crisis showing no signs of abating, the outcome of this case is sure to generate significant public interest. It remains to be seen whether the courts will be prepared to make such potentially far-reaching orders, however.  
Finally, an interesting case in a neighbouring jurisdiction challenges a provision of the Botswana criminal code (specifically, article 59(1)) dealing with “alarming publications” and provides that “[a]ny person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of an offence.” The provision is challenged for being vaguely-phrased and infringing the right to freedom of speech. The underlying matter relates to a prosecution based on comments posted on Facebook which criticized the police for their handling of a series of ritual killings and disappearances.

4. Articles

Parliament’s section 194 inquiry to consider the possible removal from office of Public Protector Busisiwe Mkhwebane continues to grind on. With proceedings having run since October 2022, the conduct of the Public Protector’s legal representatives has attracted scrutiny. UCT Professor Pierre De Vos writes that the conduct of Mkhwebane’s lead advocate, Dali Mpofu SC, in questioning former Public Protector Thuli Madonsela, “points to larger problems with the way in which the committee has chosen (or has been forced) to conduct its business, and raises broader questions about the ability and willingness of the Legal Practice Council (LPC) to uphold ethical standards within the legal profession.” 

De Vos bemoans the amount of time that has been wasted during the inquiry on “often spurious objections, lengthy monologues, politically motivated digressions, and ad hominem attacks on witnesses and political opponents sometimes seem to have only a tenuous connection to the applicable (accurate) legal principles and the relevant verifiable facts.” He notes that the Constitutional Court’s decision in Speaker of the National Assembly v Public Protector and Others may have contributed to the problem by failing to unpack what the “full legal representation”, to which the Public Protector was found to be entitled, would look like in the inquisitorial process the committee has followed. 

De Vos argues that these debates would have become moot if the LPC had acted on earlier complaints and acted to strike Mkhwebane from the roll of advocates. He further argues that Advocate Mpofu has made several “self-evidently wrong claims about the law when representing Ms Mkhwebane”, but expresses doubt that the LPC would act against him. De Vos concludes that:

“I worry that the LPC’s inaction may encourage other legal practitioners to advance self-evidently mistaken legal arguments and false factual claims in support of the seemingly dishonest actions of their clients.
It may also send a signal to Mr Mpofu that he will not be held bound by the Code of Conduct – no matter how appalling his behaviour when representing clients politically aligned to the party he belongs to.”

Prof. Pierre De Vos, University of Cape Town