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.
- Judicial Appointments
As discussed in our previous note, the JSC meets in the week of 2 – 6 October 2023 for the latest round of interviews of candidates for judicial appointment. Some significant positions are up for grabs, including positions on the Supreme Court of Appeal and Labour Appeal Court, as well as for the Deputy Judge President of the Labour and Labour Appeal Court. The interviews will be livestreamed on the Office of the Chief Justice’s YouTube channel.
Freedom Under Law has published an op-ed previewing the interviews, from the perspective of the JSC’s recently-announced criteria, and how these may be expected to play out in the interviews.
The General Council of the Bar’s comments on the candidates have been released. This input from practitioners who have regular contact with candidates and their professional work often feature prominently during the interviews. An overview of significant aspects of the comments follows.
- Supreme Court of Appeal
The GCB’s comments on most of the candidates are positive. We observed in our previous note that some difficult past interviews made the candidatures of Judges Kathree-Setiloane and Unterhalter particularly interesting to watch. These past challenges do not feature in the GCB comments, which are very positive about both candidates. The GCB praises Judge Kathree-Setiloane for her for a “long history of activism and commitment to social causes that align with the values enshrined in the Constitution”, and for her commitment to transformation and gender equality. Regarding Judge Unterhalter, the GCB notes that his “knowledge of the law is widely acknowledged … to be of the highest order”, and that his “percentage of reported judgments since his permanent appointment as a judge is notably high”.
The GCB calculates that Judge Daffue would only serve for another three-and-a half years if appointed. He is however commended for his commitment to the values of the Constitution, and the GCB is complimentary about his judgments. The GCB notes that in Judge Masipa’s interview for appointment to the high court, she had been found guilty of misconduct while an attorney and fined. That findings have since been set aside by the high court.
Comments on Judges Kgoele, Mjali, Nhangulela, Phatshoane and Smith are favourable, although it is notable that several of these reviews are sparser than those of other candidates (see for example the reviews of Judges Mjali and Nhlangulela). Judge Mjali is praised for her Ndabeni judgment, which is said to be “a true reflection of her deep knowledge and appreciation of both the law and the Constitution”, and to show an understanding of “the sufferings and plight of underprivileged litigants.” Judge Phatshoane is said to “epitomize what is expected of a judge namely, to act without fear, favour, or prejudice.”
The only candidates against whom there are any significantly adverse comments are Judges Mali and Siwendu. Regarding Judge Mali, the GCB notes “several decisions” which have been overturned on appeal, with two of the appeal decisions criticizing her “for making findings regarding the honesty of witnesses and parties for which there was no basis.” The GCB also suggests that Judge Mali’s decisions “appear to have been overturned on appeal more often than upheld.” The GCB further notes an “apparently elementary error in an area of expertise”, and instances of decisions which show “what is (at best) a lack of attention to detail.” Concern is expressed over three outstanding judgments which have been reserved for over a year, and that though Judge Mali has been a judge since 2016 she appears to have only one reported judgment – thus “there may … be a concern that appointment to the Supreme Court of Appeal is premature”.
Reports shortly before the start of the interviews suggest that Judge Mali has withdrawn her candidacy.
Regarding Judge Siwendu, the GCB raises concerns about a sometimes-unclear application of constitutional principles in her judgments, noting instances where “the candidate’s reasoning stops at the recognition of the vulnerable group. As this is the limit of the candidate’s reasoning it is not clear what right the candidate sought to protect or whether the candidate sought to develop the common law to achieve such protection.” In similar vein, the GCB suggests that the judge’s analysis of evidence, application of the law to the evidence and reasoning to conclusions “can benefit from further development.” The GCB does, however, note a “marked improvement in the candidate’s judgments” at the SCA, indicative of “judicial maturity.”
- Labour Appeal Court and Labour Court
Comments on the sole candidate for Deputy Judge President, Judge Molahlehi, are positive, with his judgments said to show “a good understanding of both procedural and substantive law.” It is noted that he would only serve 3 more years before retirement.
Among the Labour Appeal Court candidates, Judge Van Niekerk is noted as having a “long and illustrious professional history, and Judge Savage’s judgments are praised for showing “judgments show her deep understanding and application for law, the values that underpin our Constitution, fairness, and impartiality in the adjudication process”. Judge Nkutha – Nkontwana is said to have “limited” judicial experience, having served as a judge of the Labour Court for six years. But the most significant concerns are raised regarding Judge Lallie, who despite her experience (As a judge of the Labour Court for over ten years) is said to write judgments that are “generally brief and do not engage with case law or the Constitution in any detail. Concerns are also raised over a “significant number” of judgments that have been overturned on appeal, and over only a “handful” of reported judgments. The GCB comments that her experience in the field of labour law “is not demonstrated in her written judgments.” The GCB further suggests that her judgments “are generally not reasoned sufficiently” and raises concerns over a few outstanding judgments. The GCB concludes that if Judge Lallie is appointed to the LAC, “it will be indicative that length on the bench takes precedence over demonstrating judicial leadership through well-reasoned and useful judgments.”
In respect of the Labour Court candidates, the GCB is complimentary about Advocate Yaman’s “intimate knowledge of labour law and constitutional law”, commenting that her judgments “reveal a detailed understanding of the requisite procedural and substantive legal principles.” Advocate Mthombeni is complimented for “vast experience in labour law and procedural court practice”. There appear to be question marks over whether the other candidates have sufficient experience. Although positive about Mr Daniels, the GCB notes that he has only acted in the Labour Court for two weeks, and only delivered one judgment. Mr Makhura has acted for just over 11 weeks, delivering 15 judgments. Ms Mthalane, who will only be 40 years old when she is interviewed, has 14 years’ experience in practice, but has only 46 days of acting experience. The GCB notes that three of her nine judgments were delivered after more than three months. Mention is also made of an allegation that “[t]he candidate is alleged to have refused leave to appeal in chambers, without the parties’ legal representatives being present, and then issuing a variation order on the same day.”
- Electoral Court
Comments about the sole candidate, Judge Adams, are generally positive. The GCB observes that he “appears to be appropriately independent-minded”, and “does not appear to have any political leanings that could impair his ability to conduct himself objectively and with integrity as a member of the Electoral Court.”
- KwaZulu-Natal High Court
Comments about Ms Hirallal, Advocate Smart and Mr Zaca are understated but positive. Regarding Professor Mathenjwa, the GCB notes that despite his “long and diverse professional career”, he “does not have lengthy experience in legal practice as a lawyer”, but that his “significant experience” as an academic suggests he has “the necessary potential to demonstrate knowledge of the law as is required of a judge.”
- Gauteng High Court
One of the most interesting professional backgrounds of this or indeed any JSC round must be that of Advocate Mooki SC, who prior to his legal career, obtained a Bachelor of Science, Immunology & Microbiology and a Master of Science in Physiology at the University of Oxford. It is not surprising that he is said to write “impeccably.” The reviews of Advocate Hassim SC and Ms Mahomed are also very positive. Judge Moshoana (currently a judge of the Labour Court) is praised for the “exceptional” delivery time of his judgments, although an LAC judgment is noted which criticized a “reason-defying” decision not to grant a recission application.
Regarding Advocate Mkhabela SC, the GCB notes that a “limited number” of judgments made it “difficult to establish the breadth of his knowledge of the law”, although those judgments do “reflect a working knowledge of the areas of the law considered.” The GCB notes that he has acted on six occasions, “each lasting only a week or two”, and suggests that “[t]he volume of judgments produced in that time seems relatively limited.”
A couple of judgments overturning decisions by Advocate Strijdom SC are noted, and the GCB suggests that though the quality of his judgments is “adequate”, some of his judgments “may have been better structured and his process of reasoning made clearer”. Advocate Wanless SC is praised for his handling of busy motion court proceedings.
- Judicial Conduct
While the ongoing conduct tribunals against showed no signs of movement during this month, there were some significant developments in the processing of other complaints. Perhaps most notably, Parliament determined to place the impeachment of Judge President Hlophe back on its agenda, after the Judge President’s appeal to the SCA, to challenge the JSC’s finding of gross misconduct, lapsed. It appears that proceedings in respect of JP Hlophe and Judge Motata will be run in parallel. Parliament has adopted guidelines for the process, which will involve a “procedural presentation” from the JSC to the portfolio committee, followed by written representations on extenuating circumstances. The committee will then deliberate and report to the full National Assembly, which will consider the committee recommendation and vote.
Complaints of sexual harassment against Eastern Cape Judge President Selby Mbenenge have been referred to a judicial conduct tribunal. As we have seen repeatedly, it is from this stage onwards where the most serious delays in handling complaints tend to occur, and it will be interesting to see whether this case is any different.
Retired Judge Anton Van Zyl (formerly of the KwaZulu Natal High court) has been reported to the JSC for failing to deliver several judgments. These judgments reportedly include a judgment which has not been delivered for over ten years.
- Judicial independence
In a defence of the judiciary from a leading politician which is as welcome as it has been rare, President Ramaphosa responded to a parliamentary question by stating the attacking the judiciary without evidence undermines public confidence in the courts, and interfered with the functioning of the courts. The President was also quoted as saying that “[t]he executive has no wish whatsoever to interfere with the work of the judiciary. It has no wish whatsoever to stop the judiciary from executing its task.”
- Significant cases
It was a quiet month in terms of cases of major significance for the rule of law. (According to the SAFLII database, the SCA handed down only eight judgments during the month, and the Constitutional Court, none).
In a sequel to a case we have previously discussed, the Constitutional Court has refused an application by the Moti Group to appeal against the judgment in favour of amaBhungane directly to the apex court. It seems likely that the matter will continue to run, however.
In Ramulifho v Groundup News NPC and Others, another case we have discussed in previous notes, the high court has refused leave to appeal against its judgment, which had set aside the Legal Practice Council’s decision to dismiss a complaint against the applicant, and remitted the complaint to the LPC for proper investigation.
University of Cape Town Professor Emeritus and FUL board member Hugh Corder discusses the increasing litigiousness of South African society and the pressure this places on the courts, noting that while the positive use of litigation to asset rights is to be welcomed, the courts are “overwhelmed by the endless litany of criminal trials, which reflects the violent and careless existence that most of the population experiences daily.” Corder notes concern over delays in criminal trials and the lack of prosecutions for corruption and highlights the trend of political parties and groups litigating to achieve what cannot be obtained through usual political means. Corder highlights the “endless, costly and cynical exploitation of every possible avenue to avoid having to face the consequences of their decisions and actions” by Judge President Hlophe, former Public Protector Mkhwebane and former President Zuma, and comments that it is “near miraculous” that the courts function as effectively as they do under these circumstances.
Corder emphasises the importance of an independent and accountable legal profession to underpin the court system, and highlights challenges which may undermine the legitimacy of the profession, namely the JSC’s failure to deal adequately with instances of judicial misconduct, and “the flagrant display of abuse of process, including outright disrespect both to the Bench and opposing parties, by high-profile lawyers in prominent trials”. Corder finds grounds for optimism in recent judgments which constitute a “robust and justified assertion of judicial authority that is not only consistent with constitutional requirements but also long overdue in drawing a line in the sand in the proper enforcement of the doctrine of the separation of powers”, and “give hope for an end to the relentless undermining of constitutional rules and values”.
Following on from the referral of the complaint again Judge President Mbenenge to a tribunal, Judges Matter’s Zikhona Ndlebe discusses the broader context of sexual harassment in the legal profession, noting that a 2019 survey by the International Bar Association found that sexual harassment in the South African legal profession was more prevalent than the global average, and noted a lack of confidence in the handling of complaints of sexual harassment. Ndlebe suggests that the factors show the need for a “comprehensive anti-sexual harassment policy that caters for all court users.”
An op-ed by Narnia Bohler-Muller advances suggestions on how to prevent the court system from being abused by powerful people. Bohler-Muller focuses her analysis on the so-called Stalingrad approach to litigation and adopts retired Justice Edwin Cameron’s argument that blame for this situation is shared between unscrupulous clients, unscrupulous lawyers, lax oversight by the Legal Practice Council, and judges being alert to the use of cynical tactics. Bohler-Muller makes several suggestions to address these issues: for the state attorney to determine guidelines for what the state will and will not fund, including the power to refuse to pay legal costs in matters where a court awards costs against a public official; the use of punitive costs orders “to make litigants feel the financial burden of their misuse of the legal system”; taking measures to protect journalists and human rights defenders from SLAPP suits; and imposing personal costs orders against legal representatives.
Pierre de Vos picks up on concerns about the governance of the legal profession, arguing that the Legal Practice Council is failing to act to protect the public and the legal profession “against unscrupulous and unethical legal practitioners whose actions bring the legal system into disrepute.” De Vos criticizes the LPC for its “lackadaisical enforcement of the applicable ethical and professional rules, as well as its sometimes irrational or politically motivated refusal to act against some wrongdoers” and argues that the LPC’s failure to take “timeous and effective steps to protect the public” is a systemic problem. De Vos argues that the LPC is under a duty:
“to act against legal practitioners who serially make self-evidently false factual claims to a court or other tribunal, assist clients to have matters endlessly postponed for no valid reason or based on false claims, pursue hopeless matters with no prospect of success whatsoever on behalf of their clients as a delaying tactic or to gain a political advantage for their client, or assist their clients to facilitate the launching of scurrilous and unsubstantiated attacks against the legal system, the judiciary or individual judges.”
De Vos further criticizes the courts for failing to curb abuses and hold practitioners accountable.
Finally, FUL’s report on the JSC is discussed by the Daily Maverick’s ‘Professor Balthazar’. The analysis highlights the important proposals made by the report, including for structural changes to the JSC, the adoption of appointment guidelines, the JSC’s handling of transformation issues, and the lack of even-handedness in interviews. The article also highlights calls for the development of a code of conduct for commissioners and discusses the report’s analysis of the JSC’s handling of complaints against judges at some length.
The article concludes that:
“This is an important report. The JSC is the constitutional gateway to the promotion and protection of an independent judiciary suitably equipped to transform the South African legal system so that the central values of the Constitution — freedom, dignity, and equality — are justifiably employed to ensure the renovation of the South African legal system so that it supports the constitutional vision of a country based substantively on these values. To date, it has performed poorly. The changes proposed by FUL should receive immediate consideration.”