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.

With July being a quieter month than usual due to mid-year holidays, this briefing note combines events in July and August. We will then return to the usual format of one newsletter per month hereafter.

  1. Judicial Appointments

The Judicial Service Commission has announced the shortlist of candidates to be interviewed at the JSC’s October 2023 sitting. A total of 34 candidates have been shortlisted for 20 vacancies.

Of particular significance in this round are the vacancies for the Supreme Court of Appeal. Initially, 5 vacancies were advertised, but this has been reduced to 4, for unspecified reasons. A total of 11 candidates have been shortlisted, making these vacancies keenly contested. Two candidates who will be especially interesting to watch are Judges Kathree-Setiloane and Unterhalter. Both are judges of the Gauteng High Court, and both have previously been candidates for the Constitutional Court.  Judge Kathree-Setiloane has endured some difficult interviews, with questions arising about a complaint against her by law clerks during her time acting at the Constitutional Court. However, she was included on the shortlist of candidates sent to the President for selection in 2021 and following the October 2022 interviews.

Judge Unterhalter is one of the country’s most renowned jurists, but he has twice been excluded from the shortlist of candidates recommended to the President for appointment to the Constitutional Court. His exclusion in the April 2022 interviews was especially contentious, as it meant one of the two vacancies would have to remain open. In that interview, issues arose around him having sat on both the SCA and Constitutional court panels which had rejected a leave to appeal application, and over his track record in working with only a small number of black female counsel while at the bar. The JSC’s criteria deal at great length with how transformation criteria are understood, and it will be fascinating to see how these principles are applied to Judge Unterhalter’s latest interview. 

There is a potential knock-on effect for the Constitutional Court if Judges Kathree-Setiloane and/or Unterhalter are appointed. We have noted before that there have been serious concerns about the lack of candidates for Constitutional Court vacancies, resulting in the vacancy not even being advertised for this round. If either or both judges are appointed to the SCA, this will have the effect of making the pool even smaller, as at least in the short term it is hard to imagine a candidate putting themselves forward for the Constitutional Court so soon after appointment to the SCA.

There is of course no guarantee that either will be appointed, with a competitive field of candidates for the SCA. Other candidates to watch out for include senior judges such as Eastern Cape DJP Zamani Nhlangulele (who may face questions about his high court judgment in the Motata which has since been overturned by the SCA – see June briefing note), Northern Cape Deputy Judge President Violet Phatshoane, and experienced Eastern Cape High Court judge John Smith. 

Candidates for the Labour Appeal Court will be interviewed, the first time this court will have new permanent appointments since 2014. Four candidates have been shortlisted for as many vacancies, including experienced Western Cape High Court judge Kate Savage, and Labour Court stalwart Andre van Niekerk. Judge Van Niekerk was shortlisted as a candidate for DJP of the Labour and Appeal Court in April 2019, when that position was advertised and then withdrawn. The sole candidate for that long-vacant position is Judge Edwin Molahlehi, who had also been a candidate in April 2019.

We will preview the interviews further in our next note. FUL has made a submission to the JSC, discussing aspects of the JSC’s process in light of the FUL report on the JSC’s performance.     

The interviews take place in the week of 2 – 6 October 2023. They also take place against a wider context where there are increased concerns about a shortage of judges, with reports that several matters in the Western Cape High Court could not proceed due to a lack of judges to hear them, resulting in long postponements.     

  1. Judicial Conduct

After a profusion of conduct matters in recent months, this period has been quiet, with the only matter to have shown any movement being the Makhubele tribunal, and even this was extremely limited. The tribunal reconvened on 1 August, only to be postponed due to an apparent dispute over payment of Judge Makhubele’s legal team. The tribunal is scheduled to resume on 13 November, and the chair indicated that it would proceed on that day whatever the status of the fees issue. (These developments are discussed further in section 5 below).

There does not appear to have been any movement at all on any of the matters which have been referred to judicial conduct tribunals. This state of play illustrates two of the major concerns about the conduct process highlighted in the FUL report on the performance of the JSC – the slow pace, and the lack of transparency about proceedings (no information about the status of any of the other tribunals has been made public). The delay in the Makhubele tribunal also highlights how the issue of legal fees has come to be a brake on accountability. (See further discussion under section 5 below).

The Motata matter will, at least, have one less obstacle in the path of its eventually finalization, after the JSC opted not to appeal against the SCA judgment. 

As we have noted in previous notes, GroundUp has been regularly reporting on the issue of reserved judgments. They have now launched an online reporting system to crowdsource information about delayed judgments. 

Meanwhile, reports of serious delays in delivering judgments continue. KwaZulu-Natal High Court judge Jacqueline Henriques was reported to have delivered a judgment almost three years after reserving it. The judgment is said to account for the delay as being caused by a lack of secretarial support, a voluminous record (of 22 volumes and over 2 000 pages), and the complexity of the matter.  

An alarming news report has accused KwaZulu Natal magistrate Ashin Singh of “dabbling in spying, provocation and politics, while simultaneously occupying high magisterial office.” The magistrate is accused of having deposed to an affidavit supporting an explanation of covert spending by a crime intelligence officer who is reportedly being investigated for gross misconduct. The article also quotes from an affidavit by the magistrate in which he appears to describe himself as having undertaken work for Crime Intelligence. Clearly such conduct would be entirely incompatible with judicial office. 

  1. Judicial independence

On 21 July, amended regulations under the Judges’ Remuneration and Conditions of Employment Act were issued. A curious, not to say concerning, feature of the regulations is the new regulation 4(1), dealing with additional leave:

“If a Constitutional Court judge or judge in writing waives his or her right to unreduced remuneration in terms of section 176(3) of the Constitution of the Republic of South Africa, 1996, he or she may be granted additional leave on half pay for a period not exceeding one and a half months by the Chief Justice, the President of the Supreme Court of Appeal or the Judge President concerned, as the case may be.” 

Protection of judges’ remuneration is a fundamental component of judicial independence. It must be questioned whether a judge can indeed waive their right to unreduced remuneration. Academics have questioned whether constitutional rights can be waived at all, and even if this is possible, it is doubtful whether it is appropriate for this provision to found in regulations. 

  1. Significant cases

After the celebrated decision in Maughan v Zuma and Others, discussed in our previous note, the former President’s private prosecution efforts suffered a further setback. In President of the Republic of South Africa v Zuma and Others, a full bench of the Johannesburg Local Division of the Gauteng High Court granted President Ramaphosa’s application to set aside the summons issued by former President Zuma in pursuance of a private prosecution. The putative prosecution related to the disclosure of Zuma’s medical certificate and claimed that Ramaphosa was an accessory after the fact to the alleged crimes of Downer and Maughan, on the grounds that the President had not established an inquiry into the disclosure of the medical certificate.

The court (Ismail, Baqwa and Modiba JJ) granted the application. In addition to finding that the nolle prosequi certificates relied on did not apply to the President, and that Zuma had failed to pay the required security, the court held that the prosecution would not have yielded a conviction, since the President had responded lawful to Zuma’s request, and as in the Maughan and Downer case, that it was instituted for an ulterior purpose and constituted an abuse of process. The court found Zuma’s denial of an ulterior purpose “so far-fetched that this court may not reasonably rely thereon.”

The Constitutional Court has since rejected an urgent application to bring an appeal directly to the apex court against the high court judgment.

In Democratic Alliance and Another v Public Protector of South Africa and Others, the Constitutional Court considered consolidated appeals against the decision by the Western Cape High Court to set aside the suspension of the public protector (see the discussion in our previous note), and a cross-appeal by the suspended Public Protector against other relief which had been denied by the high court. The high court had found that the President had acted with bias or that there was a reasonable apprehension of bias due to a conflict of interest arising from investigations into the President, which disqualified him from personally exercising the power to suspend.

In a unanimous judgment by Maya DCJ, the Constitutional Court held that there was justification for precautionary suspension due to “gravely adverse findings” against the suspended Public Protector. The decision to suspend “was, on the merits, the only possible rational outcome”. On the alleged conflict of interest, the court held that the test was that there must be a real risk of such a nature that would be reasonably apprehended by a reasonable person, and that a lower standard “would result in the exercise of executive power being hamstrung”. Maya DCJ held that the finding that the decision to suspend was biased depended on the assumption that the President stood to benefit from the decision. The mere fact that the Public Protector was investigating him could not create a reasonable apprehension of bias or expose him to a conflict of interest. After noting the constraints on the power to suspend, Maya DCJ found that the evidence did not show that the President had acted in a manner that exposed him to a risk of conflict between his official responsibilities and private interests. There was no evidence to support the allegation that the suspension was intended to influence the outcome of the Phala-Phala investigation.  The high court’s finding that the suspension was ‘hurried’ or ‘retaliatory’ was also rejected, based on the timeline of events which were found to establish that the suspension had been “long in the making”.  

The court therefore concluded that there was no exposure to a risk of conflict of interests as contemplated by section 96(2)(b) of the Constitution, and that whilst it was unnecessary to decide the question of bias, on the facts “the conclusion would plainly be the same.” The main appeals were therefore upheld, and leave to appeal was denied in respect of the Public Protector’s cross-appeal.

A chilling judgment by the South Gauteng High Court in Smith and Other v Minister of Justice and Correctional Services (unreported) marks the first time in the post-apartheid era that a court has found that the state has committed torture. The plaintiffs, inmates at the Leeuwkop Maximum Correctional Centre, claimed damages for torture and assault by Correctional Services Officials, and for unlawful and wrongful detention in isolation, also amounting to torture. Francis J found that the defendant’s evidence had been “so riddled with material gaps and inconsistencies” that no coherent version of events emerged. It was held that the assaults sustained by the plaintiffs and the isolated segregation to which they were subjected rose to the level of torture, and the defendant was found 100% liable for all proven damages. 

Concerns about the conduct of legal practitioners again emerged as a common theme in judgments during this period. In the unreported judgment of Halstead v MEC for Public Transport and Road Infrastructure of the Gauteng Department, Sutherland DJP dealt with a recission application involving a “catalogue … of procedural missteps” on the part of the defendant and the state attorney. The defendant had not been represented at the hearing of a default judgment application and had not entered a plea. No explanation for this failure was given in the recission application, nor was there any indication of a defence to the allegations of negligence. Sutherland DJP found that the “disgraceful way in which this matter has been handled by the State Attorney warrants investigation”, and that it was:

“all the more disgraceful that it is the public interest that is prejudiced by the neglect, not only of the State Attorney, but I can infer, from the Defendant itself. The people of South Africa are ill-served by public servants who, in spending other people’s money, do not take proper care of how to deal with their responsibilities. Such people who are responsible or this degree of dereliction ought not to be in office.”     

  1. Articles

In a comment on the suspension of Judges Maumela and Mngqibisa – Thusi, the HSRC’s Narnia Bohler-Muller discusses the connection between the failure of judges to conclude cases timeously, and the conditions in which they work. Arguing that “empathy is understandable but the judiciary must be held to account”, particularly considering that survey research indicates declining public confidence in the courts. Bohler-Muller notes the infrastructural challenges facing judges and argues for the establishment of “clear reporting and accountability structures” in the governance of the judiciary, as well as modernization of the court system.    

Commenting on the delays to the Makhubele tribunal, Unite behind’s Zackie Achmat and Zukiswa Vuka write that:

“Since December 2018, #UniteBehind has spent R1.3-million on legal fees on our complaint to the JSC against Judge Makhubele. We have also spent money on our own staff to research, educate, organise, protest and litigate against corruption at PRASA during her tenure. …

#UniteBehind will not receive a single cent of our costs back because complainants against judges must pay their own way. Judge Makhubele has been suspended on full pay (of about R2-million per year) for almost three years. Her lawyers refused to represent her on Tuesday because they are owed “millions”.”

Achmat and Vuka note that Judge Makhubele had previously withdrawn a court application to prevent the Unite Behind complaint from proceeding, and tendered costs – which, they report, have yet to be paid. They then situate this case in a wider context:

“The State Attorney cannot be used as an ATM by state capture-accused officials. When there is a case to answer for corruption or related crimes, the state must refuse payment.

From the criminally convicted former president Jacob Zuma to the suspended and impeached Public Protector and suspended Western Cape Judge President John Hlophe, legal proceedings have been deliberately delayed and stymied by fee disputes. The same is now true for Judge Makhubele. Such disputes should not be a barrier to justice and cannot be used as a delaying tactic.”

The issue of SLAPP suits and the media’s interaction with the legal system continues to receive attention. An op-ed by SANEF’s Gauteng coordinator Glenda Daniels (writing in her personal capacity) raises concerns about journalists being denied access to court proceedings, which is said to be an increasingly frequent occurrence. Daniels comments that:

“Media are often told their access will be decided on a case-by-case basis. This can’t be right. Access should be the default position and courts should be the ones interrogated about why they are making such decisions, messing with the public’s right to know.”

Picking up specifically on SLAPP suits and the Moti Group’s case against amaBhungane, Media Monitoring Africa Director William Bird argues that while the high court judgment in the amaBhungane case was “important as a vindication of the importance of media freedom, of the need for journalists to protect their sources, to disallow efforts that seek to abuse the court system and to highlight the importance of journalists exposing wrongdoing”, more is needed. Highlighting the economic resources of those who engage in SLAPP litigation, Bird argues that:

“What is … clear is that the costs order is not enough. The judiciary needs to seriously consider how it will respond to baseless cases, and the government needs to look at possible Slapp suit interventions, including the possibility of anti-Slapp law.

SLAPP suits don’t just impact on the target of the suit, they undermine the judiciary, use up precious resources, divert attention from real wrongdoing, and allow the powerful to think they can continue to bully and win.”