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 gap between the JSC’s April and October sittings, there have been few developments in this area. A point of interest is the (acting) Public Protector’s dismissal of complaints against the President and Justice Minister Ronald Lamola, relating to the appointment of Gauteng Judge President Dunstan Mlambo as an acting judge of the Constitutional Court.

This issue arose during the interviews of candidates for the Chief Justice position in 2022. It appeared that judges Madondo and Rogers had initially been recommended for acting appointment on the Constitutional Court, whereupon the Minister suggested that Judge President Mlambo be one of the candidates. Then-Acting Chief Justice Zondo ultimately agreed, but during his interview for Chief Justice, described the Minister’s action as “not the norm” and “unusual”.  The complaint portrayed the appointment as an attempt to ensure that Judge President Mlambo gained an unfair advantage in the process of selecting the new Chief Justice.

The Public Protector’s report found that the complaints were not substantiated, noting that when the Acting Chief Justice had initially indicted that it had been too late to appoint Mlambo JP to act, the Minister had not proceeded to recommend Mlambo JP at that stage. The Public Protector also found no evidence to support the allegation that Mlambo JP was the President’s preferred candidate.

Whilst the prominent role of the executive in the appointment of acting judges is not ideal and arguably requires reform, the dismissal of these complaints seems to be correct. Section 175(1) of the Constitution empowers the Minister to recommend acting appointments to the Constitutional Court with the concurrence of the Chief Justice. As the Public Protector’s report notes, the Constitution does not specify who is to suggest the names of potential acting judges, merely that there must be agreement between the Minister and between the Chief Justice before a recommendation is made to the President. It is hard to see how the complaints in question could ever have provided a basis for a finding that this provision was violated.   

2. Judicial Conduct

Freedom Under Law’s challenge to the JSC’s decision not to find Judge Nkola Motata guilty of gross misconduct was successful, with the Supreme Court of Appeal overturning a prior high court decision and ordering the JSC to deal with the matter by referring a finding of gross misconduct to the Speaker of the National Assembly. The SCA divided on the issue of remedy, with the minority finding that it would be appropriate to remit the matter to the JSC to decide afresh. There was no disagreement among the justices that the JSC had erred fundamentally in its handling of the matter.

The Motata matter has become a poster child of the JSC’s failure to deal with complaints against judges, and the dilatory approach by the JSC clearly informed the majority’s decision not to remit the matter for re-determination:

“The incident occurred on 6 January 2007. Sixteen years have since passed. It has taken nearly thirteen years for the JSC to make a final decision. Undoubtedly, some of the delays were on account of Judge Motata’s high court challenges and points in limine before the Tribunal. Should this Court remit the matter to the JSC, there is every likelihood that any fresh decision by it will be reviewed, and the matter will again wind its long, slow journey through the courts. Further delay does not serve the interests of justice.”

We have published an op -ed discussing the decision.

In an earlier briefing note, we cited reports that the Office of the Chief Justice has not been publishing lists of late judgments, contrary to their previous practice. Groundup, which has been diligently reporting on this issue, has noted that the OCJ has now again published the list. GroundUp reports that “as of 31 December 2022 there were 184 judgments outstanding for at least six months in courts across the country. In total, 904 judgments were reserved. This is the highest it has been since GroundUp started reporting on late judgments in 2017.” The article notes that both GroundUp’s reporting and the OCJ report utilize the “more generous” six-month benchmark for the handing down of judgments, as opposed to the three-month period mentioned in the norms and standards. 

GroundUp reports that the Johannesburg seat of the Labour Court had the highest number of reserved judgments, with 116, 24 of which had been outstanding for over 6 months. The Northern Cape High Court in Kimberley had the second highest number of outstanding judgments, with 23 outstanding for over 6 months, followed by the Western Cape High Court and the Cape Town seat of the Labour Court. GroundUp reports further that while the Constitutional Court only had one judgment listed as outstanding for longer than 6 months, the court’s website reflects that there were, at the time of writing, 9 judgments outstanding since November 2022 or before.  

This reporting is an important aspect of judicial accountability. It is a well-worn saying that justice delayed is justice delayed, and failure to deliver judgments in a timely manner is likely to weaken public confidence in the judiciary. However, it is also important to consider why judgments might be delayed. The judiciary appears to be working in particularly difficult circumstances, with long-standing infrastructural issues likely exacerbated by the impact of loadshedding. On their own, therefore, statistics about the number of delayed judgments do not necessarily provide the full picture of the circumstances under which judges are expected to operate – not that this absolves errant judges from responsibility where the delays are down to pure dilatoriness on their part.

The serious consequences for judges who do delay in handing down judgments was highlighted when the Presidency announced the formal suspension of judges Maumela and Mngqibisa-Thusi for excessive delays in delivering judgments.

The limits of judges’ extra-curial speech as been the subject of growing debate over recent years, and this month has seen the issue again the subject of public attention.

First, the Judicial Conduct Committee (JCC) upheld a complaint by the South African Zionist Federation (SAZF) against retired judge Siraj Desai. The complaint related to numerous alleged breaches of provisions of the Judicial Code of Conduct which preclude judges from being involved in political controversy or activity. Writing for the JCC, Dambuza JA dismissed most of the complaints, but found that by signing a BDS (Boycott, Divestment, Sanctions) collation statement condemning Israeli policies towards Palestine, Judge Desai had become involved in political controversy. Dambuza JA found that it was “not open to Judge Desai to assert the right to freedom of association or human rights activism when provisions of the Code are involved”. Judge Desai was warned not to participate or become involved in any political controversy or political activity in future unless it was necessary for the discharge of judicial duties. 

Judge Desai was quoted as saying that he was being “muzzle[ed] … on something judges have traditionally been vocal about. Judges have spoken out on human rights issues”, and describing the warning issued as “offensive for several reasons, the most important being, it’s a warning not to criticise apartheid Israel. It is a warning which effectively curbs criticism of the Israeli state”. Judge Desai is also quoted as describing Dambuza JA as having placed herself “on the wrong side of history” with the ruling. A statement by Usuf Chitke, described as “Spokesperson, Judge Siraj Desai” also criticizes the JCC decision:

“This far-reaching decision by Judge Dambuza, cautions Judge Desai, without any rhyme or reason, to avoid political controversy. This muddled decision by Judge Dambuza comes across as vacuous and is phrased in manner which makes it incapable of implementation by any judge as it places several other judges at risk in their support for human rights and fidelity to the constitution.”

The outcome of any appeal against the JCC decision will be monitored with interest, not least to see whether these latest comments will attract censure. 

Further debate on the scope of extra-curial judicial speech ensued when Chief Justice Zondo appeared at a colloquium organized by the Human Sciences Research Council on the one-year anniversary of the submission of the eponymous State Capture Commission report. The Chief Justice commented that  Parliament had failed to act to ensure that state capture was exposed earlier, and was quoted as saying that “[i]f another group of people were to do exactly what the Guptas did to pursue State Capture, Parliament would still not be able to stop it and that is simply because I have seen nothing that has changed”.  

This prompted Parliament to raise concerns that these criticisms undermined the separation of powers, with a spokesperson commenting that it was “inappropriate for the Chief Justice, representing one of the arms of state, to engage in public attacks on Parliament”. Parliament subsequently requested a meeting with the Chief Justice “to address matters of concern between the judiciary and the legislature” relating to the Chief Justice’s comments, and to “clarify any potential misunderstandings and to establish a common understanding of the respective roles and responsibilities of each arm of government within the context of Parliament’s implementation of the commission’s recommendations”. A brief statement following this meeting described the engagement as a “fruitful meeting” with discussion “characterized by frankness, mutual respect, courtesy and an appreciation of the roles of the institutions they [the Chief Justice, Speaker of the National Assembly and Chair of the NCOP] represent.” 

Questions have arisen about whether it was wise for the Chief Justice to make these remarks, considering his position as the head of the judiciary and head of the Constitutional Court which regularly decides on the validity of the actions of Parliament and other branches of government. Whilst the Chief Justice occupies a unique position as chair of the commission of inquiry, this in turn highlights why concerns have been expressed about sitting judges chairing commissions of inquiry at all. However, the Chief Justice has also received strong support from  various quarters, as discussed more fully in section 4 below.

3. Significant cases

It seems that not a month passes without some or other legal struggle involving former President Jacob Zuma featuring among the most significant cases, and this month was no exception. In Maughan v Zuma and Others, the applicants (Downer, a senior prosecutor in the National Prosecuting Authority, and Maughan, a legal journalist)  sought to set aside summonses issued by Zuma for the institution of private prosecutions against them, and to interdict Zuma from taking any further steps to pursue the private prosecution. The private prosecution related to the alleged disclosure of an (asserted) confidential medical letter.    

The court (Kruger, Henriques and Masipa JJ) granted the relief sought by both applicants. It held that the nolle prosequi certificates relied on both referred to Downer, not Maughan, and that there had therefore been no certificate which would justify the prosecution of Maughan when summons was issued against her. Furthermore, the court found that Zuma had failed to allege and prove injury, as required by the Criminal Procedure Act, rendering the summons against both applicants defective.  

The court held further that the medical letter in question was not confidential, and any confidentiality had been waived by filing it in earlier court proceedings. In respect of the private prosecution of Downer, the court agreed that it was an attempt to further delay Zuma’s prosecution, and to prevent Downer from executing his duties. Accordingly, the private prosecution was an abuse of process. 

Regarding Maughan, the court found that it was evident from Zuma’s affidavit and from the conduct of his associates and supporters that he “harbours great hostility towards her”, and held that the private prosecution was a violation of Maughan’s write to freedom of expression. In a particularly significant aspect of the decision, the court accepted an amici submission that the private prosecution of Maughan had “all the elements of a SLAPP suit”, and that there was a need to protect against SLAPP suits in criminal proceedings. The private prosecution of Maughan had the ulterior motive if intimidating, harassing, and silencing her.

In a striking indication of judicial displeasure, the court awarded costs on an attorney and own client scale. The judgment carries great potential significance for the protection of journalists (and indeed, prosecutors) from the chilling effect of unjustified private prosecutions.

It has not been a good month before the courts for the Department of Home Affairs. In Democratic Alliance v Minister of Home Affairs and Another, the Supreme Court of Appeal held that a provision of the Citizenship Act providing for automatic loss of South African citizenship upon acquisition of citizenship of another country was unconstitutional and invalid. Overturning an earlier high court decision, the SCA held (in a unanimous decision by Zondi JA) that all those who lost South African citizenship by virtue of the provision are deemed not to have lost their South African citizenship. The SCA held that the provision was irrational, noting that the Department had been unable identify a legitimate government purpose served by the provision, and finding that a sub-provision allowing citizenship to be retained on application to the Minister “merely underscores the arbitrariness and irrationality” of the provision. The provision also unjustifiably limited  political rights, the right to enter and remain in South Africa, and the right to freedom of trade, occupation and profession. 

Then, in Helen Suzman Foundation and Another v Minister of Home Affairs and Others, the highly contentious decision to terminate the Zimbabwean Exemption Permits (ZEP) programme was set aside by the high court. The court found that the decision was procedurally unfair and irrational due to a lack of prior consultations and a failure to invite and consider representations; due to a failure to take relevant information, specifically the impact on ZEP holders and their children, into account; that the decision was unreasonable; and that it constituted an unjustifiable limitation of rights. The court remitted the matter to the Minister for reconsideration, pending which the ZEP’s remain valid for a period of 12 months.

Parliament’s failure to comply with its constitutional obligation to facilitate public involvement has again caused legislation to be struck down (see the discussion of Mogale v Speaker of the National Assembly in our May note). In South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others, the Constitutional Court found that amendments to the National Environmental Management Laws Amendment Act were material and triggered the need for further public involvement. As Parliament had not afforded the public the opportunity to make inputs on the impugned amendments, the amendments were declared unconstitutional and invalid.

Finally, the case of Mazetti Management Services (Pty) Ltd v AmaBhungane Centre for Investigative Journalism NPC has attracted great public interest and is highly significant for the work of investigative journalists. The applicants had obtained an urgent court order, ex parte and in camera, ordering the respondent to return various digital documentation allegedly stolen from the applicant, and forbidding publication of anything based on the documentation. A modification of the order was obtained, and following a reconsideration haring, the order was set aside in its entirety. 

Sutherland DJP described the matter as involving “a most egregious abuse of the process of court”, in that it was “manifest” that the initial order “should never have been sought ex parte, still less granted. There is not a smidgen of justification for it being brought ex parte.”  Sutherland DJP found that in the circumstances of the case, bringing the application ex parte amounted to an abuse of process. It was held that as a general principle, a journalist receiving information in confidence was justified in refusing to perform an act which would reveal the source, unless that refusal was inconsistent with the public interest. Additionally, an interdict to restrain or forbid intended publication must be brought on appropriate notice to the journalist in question. On the facts, no case had been made out to compel the respondents to disgorge the data files which formed the subject matter of the application, or to interdict the respondents from publishing articles referring to the files. Due to the abuse of process in how the case had been brought, costs were awarded on an attorney and client scale.

4. Articles

As discussed under section 2, the Chief Justice’s controversial remarks about the role of Parliament in relation to state capture have been defended by some commentators. Lawson Naidoo argues that the principle of separation of powers does not operate as mechanically as prohibiting one branch of government from reflecting on the performance of another. Naidoo comments that as chair of the Commission of Inquiry, Zondo “is in a better position than most of us to understand its impact and ramifications for our democracy”, and notes that “very little has been achieved to date” in government’s implementation of the Commission’s recommendations.   

Naidoo emphasizes that the Chief Justice’s remarks should be contextualized in light of this “lackadaisical approach” by the other branches of state, and furthermore, that:

“It must also be recognised that the Chief Justice has a responsibility to promote and strengthen the rule of law. Not only did State Capture undermine the rule of law, but the failure to address it further threatens it. Perhaps Zondo had, not just a responsibility, but a constitutional duty to speak out.”

In a further defence of the Chief Justice, Paul Hoffman emphasizes that Zondo was invited to deliver the address in his capacity as head of the Commission, and that the Commission “is a creature of the executive branch of government and is not part of the judiciary as such.” Hoffman argues further that, as the Chief Justice chairs the JSC, and as the JSC is constitutionally mandated to advise government on matters relating to the judiciary and the administration of justice:

“The reason behind the affirmative response of the Chief Justice to the question of democracy being at risk is that those in the executive and national legislature whose business it is to govern in accordance with the Constitution do not appear to be up to the task at hand. Wearing his JSC hat, it is surely the duty of the Chief Justice not to sit on his hands in the current circumstances of SA.”

The SCA decision in Freedom Under Law v Judicial Service Commission has also received comment. Pierre De Vos remarks that the case illustrates that:

“the exclusion of the elected politicians from JSC decisions on whether a judge is incapacitated, grossly incompetent or guilty of gross misconduct, has not prevented the JSC from making entirely irrational decisions based on political or other loyalties, instead of on the facts and the law.”

De Vos also considers what steps might be taken to prevent similar errors by the JSC in future. He ponders a constitutional amendment to remove the minister of justice and the four presidential appointees from such matters, and the adoption of a more stringent test to limit the circumstances under which the JSC could override the recommendation of a judicial conduct tribunal. However, De Vos cautions that:

“ultimately, the problem is not merely a structural one, but also a human one. In the case of Judge Motata, the JSC would not have made the irrational and dishonest decision to protect Motata if different individuals had served as the presidential nominees and as the nominees representing the legal profession on the JSC. In this sense, the failure of the JSC to protect the integrity of the judicial system was not only caused by a bad system, but also by bad people.”

References:

• Report of the Public Protector No. 07 of 2023/24, para. 6.1.17.
• Freedom Under Law v Judicial Service Commission and Another (550/2022) [2023] ZASCA 103 (22 June 2023), para. 95.
• Freedom Under Law v Judicial Service Commission para 118.
• Freedom Under Law v Judicial Service Commission para 91.
• As noted in last month’s note, these factors have been specifically identified as reasons for backlogs in the Labour Courts. See Ernest Mabuza “Myriad reasons, including shortage of courtrooms, behind backlogs at labour court” TimesLive 30 May 2023. Available at https://www.timeslive.co.za/news/south-africa/2023-05-30-myriad-reasons-including-shortage-of-courtrooms-behind-backlogs-at-labour-court/?utm_medium=Social&utm_source=Twitter#Echobox=1685457769.
• Judicial Conduct Committee, South African Zionist Federation v Judge Siraj Desai, Decision Made in terms of section 17 of the Judicial Service Commission Act 9 of 1994, paras 38 – 40.
• (12770/22P) [2023] ZAKZPHC 59 (7 June 2023).
• Paragraphs 40 – 50.
• Paragraph 63.
• Paragraphs 107 – 109.
• Paragraphs 121, 125.
• Paragraph 131.
• Paragraphs 188, 192.
• (67/2022) [2023] ZASCA 97 (13 June 2023).
• Paragraphs 25 – 26.
• Paragraph 37.
• (32323/2022) [2023] ZAGPPHC 490 (28 June 2023).
• Paragraphs 80 – 81.
• Paragraphs 95 – 96.
• Paragraph 98.
• Paragraphs 126 – 127.
• Paragraph 136.
• (CCT 240/22) [2023] ZACC 18 (26 June 2023).
• Unreported judgment, case no. 2023-050131 (Gauteng Division, Johannesburg).
• Paragraph 4.
• Paragraph 7.
• Paragraph 13.
• Paragraph 45.