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
No sooner had the JSC’s April sitting concluded then the JSC called for nominations for vacancies to be interviewed for at the commission’s October sitting. We have previously discussed concerns about the JSC’s failure to shortlist enough candidates to interview for a vacancy on the Constitutional Court. It is alarming to note that the JSC has not even advertised this vacancy for the October sitting. The vacancy would therefore likely not be filled before the April 2024 interviews, at the earliest. This would mean the vacancy, which has existed since October 2021, would have stood open for over 2 years. It is highly problematic for a vacancy on the country’s highest court to have stood open for so long.
Five vacancies on the Supreme Court of Appeal have been advertised. The sitting will be the first since the appointment of Justice Molemela as President of the Court, and it will be interesting to observe the impact of new leadership will be on these appointments.
Unlike the Constitutional Court, two vacancies which failed to attract shortlisted candidates in April, for the Electoral Court and the Deputy President of the Labour Court, have been re-advertised for October. And notably, four vacancies on the Labour Appeal Court (LAC) have been advertised. By our estimation, this is the first time since April 2014 that the JSC will interview candidates for the LAC. The reason for such a long delay is unknown. Three vacancies on the Labour Court (for the Durban, Gqeberha, and Johannesburg seats) have also been advertised.
Other vacancies advertised are for the Gauteng High Court (four), the KwaZulu-Natal High Court (two vacancies in Durban), and the Limpopo High Court (one vacancy in Thohoyandou). The interviews are scheduled to take place in the week of 2 – 6 October 2023.
On 26 May, the Presidency formally announced the appointment of Justice Molemela as the new President of the Supreme Court of Appeal.
On 31 May, FUL held a webinar to review the JSC’s April 2023 sitting. A wide-ranging discussion highlighted the need to continue to advocate for the JSC to adopt a code of conduct for commissioners (including comparative research regarding the situation in other SADC jurisdictions), the need for greater clarity on the role and functioning of the JSC’s sifting committee, and the need to engage with organisations from which JSC commissioners are drawn, and that consideration could be given to civil society organisations being more proactive in nominating candidates.
2. Judicial Conduct
The judicial conduct tribunal dealing with the complaint against Judge Makhubele sat from the 8th – 18th of May. The proforma prosecutor has now called all her witnesses, and it is to be expected that Judge Makhubele’s team will begin presenting their case when the tribunal resumes on 19 July. After concerns about the slow pace of proceedings initially, the tribunal has at least been proceeding, albeit slowly, without fundamental delays in the process.
In our previous note, we highlight the JSC’s recommendation that Judges Maumela and Mngqibisa-Thusi be suspended pending judicial conduct tribunal proceedings against them for delays in handing down judgments. Subsequently, the Limpopo – based Amalgamated Lawyers Association have announced that they intend to challenge the suspension.
3. Significant cases
The judgment of the full bench of the Gauteng High Court in United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others has excited considerable public interest. The court ordered the Minister of Public Enterprises to take “all reasonable steps” to ensure “sufficient supply or generation of electricity to prevent any interruption of supply as a result of loadshedding” to public health establishments, public schools, and the SAPS and police stations. Davis J (Collis and Nyathi JJ concurring) held that there had been “repeated breaches by the State of its Constitutional and statutory duties” which are “continuing to infringe on citizens’ rights to healthcare, security and education.”
The court considered whether it would “overstep the line delineating the separation of powers” by granting the relief sought, but found that the “roadmap” to increase generation capacity “merely deals with emergency relief from loadshedding in limited areas where it is needed the most”, and that the emergency relief sought was “disconnected from policy-making or executive governmental decisions and is justifiable.” Granting the relief sought therefore did not, the court found, breach the separation of powers.
Whilst the outcome will doubtless meet with widespread public approval, the judgment has raised eyebrows among legal commentators (see the discussion in section 4 below), and it will be interesting to see whether the judgment will survive the inevitable appeal process.
Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others is another case in the many strands of former President Zuma’s legal travails, this one relating to attempts to access his tax records to investigate allegations that the former President was not tax compliant. The applicants challenged the constitutional validity of statutory prohibitions of the disclosure of taxpayer information held by SARS (contained in the Promotion of Access to Information Act (PAIA) and the Tax Administration Act), in circumstances where disclosure would reveal evidence of a substantial contravention of the law and would be in the public interest. The high court granted a declaration of invalidity.
The Constitutional Court divided 5 – 4 in confirming the declaration of invalidity. It was not disputed that the impugned provisions limited the rights of access to information and freedom of expression. The case turned on whether the limitation could be justified under the limitations clause (section 36 of the Constitution).
The majority judgment, written by Kollapen J (Baqwa AJ, Majiedt J, Mathopo J and Rogers J concurring), held that the limitations test was not met. The majority cautioned against “elevat[ing] taxpayer confidentiality to some sacrosanct place where no exception to enable public access to it is possible”, and rejected the argument that absolute confidentiality was necessary to ensure taxpayer compliance. Whilst some limitation on access may be justified, there was no case for an absolute limitation. The order of invalidity was confirmed.
For the minority, Mhlantla J (Madlanga J, Mbatha AJ and Tshiqi J concurring) found that the limitation was not absolute, and that the Tax Administration Act contained numerous exceptions allowing for disclosure. The minority also expressed concern that the ambit of the proposed public interest override could lead to “indiscriminate” application to ordinary citizens. (The majority found that the Tax Administration Act exceptions could not permissibly be incorporated into PAIA, and that concerns about the application of the override were unfounded, since it was directed not at a category of individuals, but at information in the public interest.)
On the same day as the Arena Holdings judgment was delivered, the court handed down judgment in Mogale and Others v Speaker of the National Assembly and Others. In a unanimous judgment penned by Theron J, the court found that the Traditional and Khoi-San Leadership Act was invalid due to Parliament failing to comply with its constitutional obligation to facilitate public involvement prior to passing the Act. The court found “numerous and material deficiencies” in the public participation process, including insufficient notice of public hearings, lack of pre-hearing education, inaccessible hearings, unequal opportunities to speak at hearings, and inaccurate and inadequate reports of public hearings. The declaration of invalidity was suspended for 24 months to allow Parliament to pass the legislation in a constitutionally compliant manner.
It is a poor reflection on Parliament that, with the law regarding public consultation being firmly established, legislation continues to be invalidated due to a failure to follow these requirements. As Theron J noted, the Constitutional Court “has set a standard for public participation facilitated by Parliament and the provincial legislatures” in cases dating back to 2006.
In our April briefing note, we highlighted concerns about the conduct of some legal practitioners, and issues relating to the state of the profession have come before the courts this month. In Vatsha v Johannesburg Society of Advocates, an applicant for admission as a legal practitioner and enrollment as an advocate had previous convictions for theft and escaping from police custody, and was said to have participated in a robbery which was not prosecuted due to a lack of evidence. Sutherland DJP (Molahlehi J concurring) found that the application could not succeed, as the applicant’s account of the commission of these crimes were found to have contained “inconsistencies which point to untruthfulness or, at best, a cavalier attitude to the truth”.
Sutherland DJP was also critical of the role of the Legal Practice Council (LPC), which has issued a certificate of no objection upon receipt of the application:
Sutherland DJP suggested that a rule of practice should be in traduced, requiring the LPC “to provide a court with more than a mere notice of no objection and for the courts to insist on a clear statement that the application has been considered and that the admission is supported or not supported.”
The importance of ensuring the legal practitioners conduct themselves in an ethical way, and concerns that the LPC is adequately regulating the conduct of legal professionals, was further highlighted in the decision of the Gauteng High Court in Groundup News NPC and Others v South African Legal Practice Council and Others. Applicants had lodged a complaint with the LPC over the conduct of the fifth respondent, an attorney, in the course of an interdict application against GroundUp, alleging perjury and forgery by the fifth respondent. The LPC dismissed the complaint and advised that, as an appeal tribunal had yet to be established, no appeal of the decision would be possible. Yacoob J found that the LPC committee had “incomprehensibly” failed to exercise its investigative powers, had followed a “fundamentally flawed” approach, and set aside the LPC’s dismissal of the complaint.
The Vatsha and GroundUp judgments point to a worrying situation where the LPC is not fulfilling its role in the governance of the legal profession adequately. This is an issue which requires ongoing vigilance and scrutiny. The legal system and the rule of law cannot be expected to be in good health if the legal profession does not ensure that its members are persons of integrity.
Finally, in a notable judgment from elsewhere in the SADC region, the Namibian Supreme Court has held, in the case of Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN and Others, that same-sex marriages validly concluded in countries where they are permitted, are valid in Namibia. (This despite same – sex marriages not being possible in Namibia itself).
As noted in the previous section, the judgment in United Democratic Movement v Eskom has attracted criticism. Pierre De Vos describes the judgment as “vague and practically impossible to implement”. He criticises the requirement that “reasonable steps” be taken as excessively vague, since “[a]rguably this means that almost anything the minister does in the next 60 days might turn out to comply with the order to “take reasonable” steps to do something.” Furthermore, De Vos argues that the judgment’s emphasis on the supply and generation of electricity “conflates … systemic long-term problems that cannot easily be fixed, with the short-term question of how to limit the impact of load shedding on hospitals, schools and police stations.”
Finally, De Vos criticizes the judgment for misconceiving the location of the obligation to provide uninterrupted electricity supply, as it “wrongly assumes that the minister of public enterprises has the legal authority to take all the steps envisaged by the order”. De Vos argues that as the constitution lists the provision of electricity as a shared competence between national government and municipalities, and as the Municipal Systems Act imposes an obligation to provide basic services, including electricity, on municipalities, “it is possible that municipalities carry the can on this.” Furthermore, as the provision of healthcare services and basic education are shared national and provincial government competences, De Vos questions whether provincial or national departments bear ultimate responsibility “for the financing and installation of solar panels and generators at schools and hospitals.”
“What is certain”, De Vos concludes, “is that the minister of public enterprises is not responsible for any of this and has no authority to interfere in the matter by instructing national or provincial departments on what to do.”
In further criticism of the judgment, the anonymous Daily Maverick columnist Professor Balthazar picks up on the separation of powers issues raised by the decision, focusing criticism on the remedy ordered. The article argues that the court was not in a position to make a clear assessment of whether government was “able to solve the immediate problem in terms of its available resources and a reasonable timespan” and finds the court’s conclusion about the insufficiency of generators “speculative” and argues that the finding “cross[es] the boundary between courts and the executive as set out in the doctrine of separation of powers.”
The columnist argues that “courts cannot run the country and most certainly cannot fix Eskom” and concludes that it would have been more appropriate for the court to have granted a structural interdict “demanding of … government … within a reasonable period (say 30 days) to stipulate precisely how it would ensure the rights affected by load shedding could be safeguarded”.
The long-standing inability to fill the vacant position of deputy Judge President of the Labour Court has focused attention on the functioning of the Labour Court. Writing in De Rebus, Judges Matter’s Mbekezeli Benjamin describes a “crisis” in the court, with trials, as of October 2022 onwards, only being enrolled in 2024. Benjamin argues that the Labour Court has insufficient judicial capacity and lacks courtroom and chamber space. (It is to be hoped that the JSC’s subsequent advertisement of vacancies in both the Labour and Labour Appeal Court will assist in addressing the first of these).
The Judge President of the Labour Court has also addressed the backlog of cases in the court, citing amongst other factors the expansion of the court’s jurisdiction without an accompanying increase in personnel or infrastructure. The Judge President also noted that the court’s Cape Town and Durban seats lacked generators, and therefore struggled to function during loadshedding.
Finally, Freedom Under Law’s challenge to the JSC’s decision not to endorse the finding of gross misconduct against Judge Motata (which could have led to his impeachment), which was heard by the Supreme Court of Appeal, has received media coverage.
-  ZAGPPHC 280 (5 May 2023).
- Paragraph 1.
- Paragraph 38.
- Paragraphs 46 — 47.
- (CCT 365/21)  ZACC 13 (30 May 2023).
- Paragraph 172.
- Paragraph 183.
- Paragraph 189.
- Paragraph 113.
- Paragraph 112.
- Paragraphs 157; 192.
- (CCT 73/22)  ZACC 14 (30 May 2023).
- Paragraphs 61 — 81.
- Paragraph 33.
- (0978/2021)  ZAGPJHC 453 (10 May 2023).
- Paragraph 2.
- Paragraph 21.
- Paragraph 31.
- Paragraph 32.
- (20150/2021)  ZAGPJHC 559 (24 May 2023).
- Paragraphs 1 — 2.
- Paragraph 40.
- Paragraph 43.
- (SA 6/2022; SA 7/2022)  NASC 14 (16 May 2023).