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

The JSC held its first sitting of 2023 to interview candidates for positions in the High Court, and to interview the nominee for President of the Supreme Court of Appeal. In the build-up to the interviews, Freedom Under Law hosted a webinar to preview the sitting with civil society organisations, academics and journalists, and published an op-ed previewing the interviews. 

The interviews are discussed in greater detail in a separate note. Perhaps the most significant development at this sitting was the announcement that the JSC has formally adopted the “summary and explanation of the criteria and guidelines used by the Judicial Service Commission when considering candidates for judicial appointment”, which had been released for comment in late 2022. This is a welcome development, responding to long-standing concerns that the lack of sufficiently detailed appointment criteria was having a negative impact on the JSC process. The application of these criteria and guidelines in practice will be followed with close interest. The April 2023 interviews showed positive signs of incisive and relevant questions being asked, although this was not always consistent. Several commissioners also seemed mindful of the approach the JSC was taking to the interviews. However, the JSC’s longstanding timekeeping challenges remain, with several interviews running far over their scheduled time.   

Prior to the sitting, concerns had been raised about the absence of candidates for several vacancies which had been advertised for the sitting. These concerns were amplified by a range of weaknesses displayed by many of the candidates who were interviewed. Rebecca Davis described the interviews as reflecting “a problem with the calibre of candidates who are willing to put themselves forward for nomination as judges”, highlighting concerns with candidates lacking knowledge of basic legal concepts. Davis comments that “the pool of people applying to be first-time judges appeared to be very shallow” and suggests that this raises questions about the process of identifying acting judges.

Of the candidates who were interviewed, some significant recommendations were made for appointment. The JSC found the nominee for President of the Supreme Court of Appeal, Justice Mahube Molemela, to be suitable for appointment. Judge Sheila Mphahlele was recommended for appointment as Judge President of the Mpumalanga High Court, and Judge Lister Nuku was recommended for appointment to the Competition Appeal Court.    

Outside of the JSC interviews, a point of interest regarding judicial appointments was the launch of the Brigitte Mabandla Aspirant Women Judges’ Programme. According to the Judiciary’s newsletter, the programme “aims to address
the under-representation of women in the Judiciary by creating a pool from which women Judges can be appointed.” Headed by retired South Gauteng Deputy Judge President Phineas Mojapelo, the programme includes theoretical and practical components, the latter involving placing participants “at various High Court Divisions for mentorship.” 

Training programmes targeting women specifically have proved controversial in the past. In 2012, Judge Kathy Satchwell was quoted as commenting that “[i]f you are a woman you have to go on a course to become a judge but a man can simply serve as an acting judge and apply for the job … Men have thought of this as a marvelous thing. They think this is helping women become judges. They are incredibly proud of their expensive courses … I think those people who thought there should be courses for women maybe haven’t worked with lots of women”. 

Further afield, an intriguing dispute has arisen in Kenya regarding the role of the President in the appointment of members of the Judicial Service Commission. The President solicited public comment on the suitability of a member of the Court of Appeal (selected by the judges of that court) to serve on the JSC and sent the judge’s name to the National Assembly for approval. The Supreme Court found that the Kenyan Constitution did not permit the national assembly to vet and approve an elected member of the JSC, and that to do so constituted bad faith, a breach of the judge’s legitimate expectation, and was “a fundamental contravention of the constitution.” Indeed, the court found that the President did not even have a ceremonial role in the appointment, with the country’s Independent Electoral and Boundaries Commission being the body required to confirm the appointment.  

2. Judicial Conduct

Although conduct matters are dealt with through a distinct Judicial Service Commission process, issues relating to how complaints against judges are handled, and how specific complaints impact on candidates’ suitability for appointment, regularly arise during the JSC’s appointment interviews, and the April 2023 sitting was no exception. 

During the interview of Judge Brian Spilg for a position on the Competition Appeal Court, considerable attention was paid to a complaint against the judge. Judge Spilg recounted having tried to establish details of the complaint for 2 years, prompting the Chief Justice to apologise for how the complaint had been handled. A JSC spokesperson subsequently advised that the JSC was having ongoing discussions about timing and capacity issues affecting the Judicial Conduct Committee. This is clearly a much-needed engagement. 

The JSC provided updates on the status of some high-profile complaints. The complaint against Judge President Mbenenge was before the Judicial Conduct Committee, with submissions being exchanged by the parties. Litigation by Judge President Hlophe is ongoing, with the Judge President having brought an application for funding, which appears to relate to the Judge President’s challenge to the process relating to the longstanding complaint against him by judges of the Constitutional Court. The matter between Judge President Hlophe and Deputy Judge President Goliath is currently before the “small JSC”, which will consider the JCC recommendation to appoint a judicial conduct tribunal. The JSC was scheduled to meet at the end of the interviews to “discuss and finalise” the matter, though it has subsequently been reported that the matter was not finalized due to an “important administrative matter” needing to be resolved. 

The JSC also announced that it has resolved to develop a sexual harassment policy. The policy is said to cover what action, if any, the JSC could take at the stage between a sexual harassment complaint being made and the Judicial Conduct Committee dealing with the matter. Subsequent media reports suggest that the policy would deal with the possible suspension of judges against whom such complaints are lodged while the complaint is pending before the JCC.

Away from the JSC interviews, it was announced that Gauteng judges Maumela and Mngqibisa-Thusi would face judicial conduct tribunals for delays in delivering judgments, and that the JSC had recommended their suspension pending the outcome of those hearings. With Judge Maumela currently presiding over the trial of those accused of the murder of Senzo Meyiwa, the development has attracted considerable public attention. Reports suggest that Judge Maumela would continue to hear the case, as part of the conditions of his putative suspension.   

With no little irony, in the same week as the announcement of these referrals, Groundup published an article reporting that the Office of the Chief Justice has failed to release a report on delayed judgments since December 2021.  

The judicial conduct tribunal dealing with the complaint against Judge Makhubele resumes in the week of 8 May.

3. Significant cases

Perhaps the most notable judgment delivered during the month was the SCA’s decision in Afriforum NPC v Nelson Mandela Foundation Trust
and Others, upholding a decision by the Equality court (with variations to the order) that “any gratuitous display” of the old South African flag constitutes hate speech, unfair discrimination based on race, and harassment. Writing for a unanimous court, Schippers JA found that:

“As a revered icon of apartheid, the old flag represents hate, pain and trauma for most people, particularly black South Africans. The gratuitous public displays by people of the old flag – a provocative symbol of repression, authoritarianism and racial hatred – brings into unmistakeable view their affinity and mourning for the apartheid regime, characterised by its degrading, oppressive and undignified treatment of black South Africans. The message conveyed is a longing for the days of apartheid and the restoration of white minority rule.”

Schippers JA

Schippers JA held further that “[t]he gratuitous public display of the old flag is extremely degrading and dehumanising to those who suffered under apartheid” and found it “unsurprising that white supremacists around the world have adopted and used the old flag as a symbol of hatred, oppression, and racial superiority.”

With the limits of free speech being such a hot-button topic internationally, the judgment is sure to be an important component of South Africa’s jurisprudence on the right to freedom of expression.

Judgment in two cases highlighted in previous notes have been handed down. In Public Protector of South Africa v Chairperson: Section 194(1) Committee and Others, a full bench of the Western Cape High Court rejected the Public Protector’s application to set aside decisions relating to the recusal of the chairperson and a member of the committee, and to refuse to summon certain witnesses. The court found that the public protector had effective remedies available to her once the Committee had completed its work, and that no grave injustice or material or irreversible harm existed which would justify the court entertaining review proceedings prior to the Committee finalizing its work. 

In African Transformation Movement v Speaker of the National Assembly and Others, another full bench of the Western Cape High Court dismissed applications to set aside the Speaker’s refusal hold a vote of no confidence against the President by secret ballot, and to decline a request for a secret ballot procedure for the National Assembly’s consideration of the independent panel report into the so-called “Phala-Phala” scandal. The court’s primary finding was that both applications had become moot.  

In National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd, the issue was whether the respondent was entitled to use replacement labour to perform the work of locked-out employees where the lockout took place in response to a strike. Overturning the Labour Appeal Court, the Constitutional Court held that it was not. 

4. Articles

The JSC interviews have naturally attracted a lot of attention. In a review of the sitting on the Judges Matter website, Niren Tolsi highlights the role of the chairpersons (Chief Justice Zondo and Deputy Chief Justice Maya) in “restoring rigour and precision to proceedings.” Tolsi suggests that the JSC as currently composed:

“has caught a course-changing wind, moving away from the rancour, misogyny, political point-scoring and ad hominem attacks on candidates, academics, public interest legal organisations and “non-governmental organisations” which had become normalised during the latter years of former Chief Justice Mogoeng Mogoeng’s tenure.” 

Niren Tolsi

Tolsi highlights the role played by the lawyers on the Commission in “dissecting poorly written judgments, illogical legal rationale and a lack of critical reasoning while relentlessly testing candidates’ knowledge of the law”, which “sometimes made for brutal, but always respectful and fair, interviewing.” Commenting specifically on the interview of Justice Molemela, Tolsi observes that:

“where Mogoeng’s JSC had focused on the administrative abilities and personal skills of judges applying for senior positions in the judiciary, commissioners like … were cognisant of the intellectual role the Supreme Court of Appeal President plays … [Commissioners] pressed Supreme Court of Appeal[] judge Mahube Molemela … on more insight into her judicial philosophy.”

Niren Tolsi

In conclusion, Tolsi suggests that “with a crew finding its sea-legs and a substantive map to charter its journey along, the “Zondo JSC” has the potential to steer clear of the tumultuous waters it found itself in during the Mogoeng years.”

References:

• (Case no 371/2020) [2023] ZASCA 58 (21 April 2023)
• Paragraph 41.
• Paragraphs 53 – 54.
• (18882/2022) [2023] ZAWCHC 73 (13 April 2023).
• (7186/2022; 21574/2022) [2023] ZAWCHC 101 (26 April 2023)
• Paragraph 53.
• (CCT 105/22) [2023] ZACC 11 (18 April 2023).