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 met in the week of 2 – 6 October to conduct its second round of interviews for 2023. The interviews included positions on the Supreme Court of Appeal and Labour Appeal Court, and Deputy Judge President of the Labour and Labour Appeal Court.
After some glass-half-full optimism about the JSC interview process, the interviews provided a sharp reminder that the appointments process remains contentious and confounding. Some of our key observations of the interviews follow below. We have also written a note highlighting key issues from the interviews.
The JSC interviewed 34 candidates to fill 20 vacancies on various superior courts. Only 14 appointments were recommended, with the remaining 6 vacancies left open. Whilst it would not be fair to see instances of a vacancy being left open as an inevitable failure of the JSC (sometimes it may be necessary not to appoint weak candidates), leaving open two vacancies on the Supreme Court of Appeal has provoked a firestorm of criticism. FUL has released a media statement commenting on this decision, and following the interviews, the Council for the Advancement of the South African Constitution (CASAC) wrote to the JSC requesting reasons for the appointment and non-appointments to the SCA positions. As this note was being finalized, the JSC’s reply was published. FUL has since announced that it will be taking the JSC’s decision on review. In these circumstances, this note will not analyse the JSC’s reasons relating to the SCA appointments in any detail.
We have noted with growing alarm the long-standing vacancy on the Constitutional Court, which has stood open since October 2021. In a significant development, the Chief Justice announced that he has sought to address this issue by expanding the pool of potential candidates to practitioners and academics. To this end, he indicated that two practitioners and one academic had been approached to act, and that they had been encouraged to make themselves available for permanent appointment. The Chief Justice indicated that the Constitutional Court vacancy will be advertised for the April 2024 sitting of the JSC.
It was subsequently announced that the three acting justice are to be advocates Alan Dodson SC (who has previously been a candidate for the Constitutional Court), Matthew Chaskalson SC and Professor David Bilchitz.
The Chief Justice deserves some credit for identifying the problem and taking steps to address the issue. Questions have been raised about the fact that all three of the appointees are white men, which highlights longstanding challenges with the process of appointing acting judges.
The JSC has announced the vacancies for its April 2024 sitting, which will take place in the week of 8 – 12 April 2024. The Constitutional Court vacancy has indeed been advertised. This sitting promises to be a short one (only five vacancies have been advertised), but it will be important. In addition to providing insights into how the JSC will respond to the fallout from the October 2023 interviews, the vacancies include the positions of Judge President of the Labour Court and Land Claims Court, in addition to the long-overdue Constitutional Court vacancy. It will also be interesting to see how the controversy surrounding the October 2023 sitting impacts on the willingness of candidates to put themselves forward for this round.
2. Judicial Conduct
Parliament’s Portfolio Committee on Justice and Correctional Services has announced that Judge President Hlophe and Judge Motata are to be given until mid-November to place extenuating circumstances before the committee, which is considering their potential removal from office. According to media reports, Hlophe JP had written to the committee arguing that it was “jumping the gun as there were still matters pending in court”, and suggesting “that parliament should conduct an inquiry into the “serious issues” he raised concerning public statements made to unduly influence the working of the … [JSC]”. Although the timeline for submissions on extenuation does constitute a further delay in matters which have been ongoing for well over a decade, there does at least seem to be an appreciation of the need to keep the matter moving, with ANC MP Richard Dyantyi quoted as saying that “we no longer have any luxury for any further delays after so many years.”
There was little movement on any of the other ongoing conduct matters, although the tribunal hearing the complaint against Judge Makhubele was scheduled to reconvene on 13 November.
During a media briefing during the October JSC interviews, it was announced that the JSC intended to seek an amendment to the JSC Act to expand the Judicial Conduct Committee, due to a recognition that the JCC’s processes “take long to run”, due to it being comprised of senior sitting judges. Regarding the complaint against Judge President Mbenenge, where the JCC has recommended the establishment of a conduct tribunal, the JSC has invited the parties to make representations. Regarding the recommendation of a tribunal to deal with the complaint and counter-complaint between Judge President Hlophe and Deputy Judge President Goliath, the judges have been invited to make submissions. Regarding the complaints against judges Mngqibisa – Thusi and Maumela, a tribunal and an evidence leader have been appointed, and the tribunal is scheduled to meet in October to plan its way forward.
Following the civil society webinar hosted by FUL in September, discussed in last month’s note, a joint op-ed by FUL and civil society partners was published, highlighting the major issues to emerge from the webinar. These include the institutional design of the complaints process, the institutional capacity of the JSC to deal with complaints, delays in the process, the limited role of complainants, issues regarding the payment of legal fess for judges to defend themselves, the costs incurred by complainants, a lack of transparency, inconsistent practice in recommending suspensions, and questionable decision making by the JSC in deciding complaints. The op-ed identifies key suggested reforms including improving the JSC’s capacity to deal with complaints, introducing timelines for the resolution of complaints, providing a greater role for complainants, better reporting, applying a policy of default suspension for judges accused of potentially impeachable conduct, and providing a greater role for retired judges in adjudicating complaints, particularly on the Judicial Conduct Committee.
3. Judicial administration
A directive by Acting Judge President Goliath of the Western Cape High Court has provoked some consternation. According to media reports, the directive provides that where an accused is on trial or awaiting trial in the high court, no other matter in which the accused is to be tried may be transferred to the high court until the prior matter is completed, unless the Judge President gives prior authorisation.
With it being fairly common for accused to be involved in more than one case at a time, particularly in organized crime matters, the directive has, according to the report, prompted concerns due to the length of time taken to conclude cases, and the resultant impact of court backlogs and the workload of prosecutors and judges.
4. Significant cases
Another month, another setback in former President Zuma’s efforts to privately prosecute prosecutor Billy Downer and journalist Karyn Maughan, as the Supreme Court of Appeal dismissed an appeal against the high court’s order that the setting aside of Zuma’s private prosecution remain in force pending the outcome of Zuma’s appeal. 1 Writing for a unanimous court, Ponnan JA affirmed that the private prosecution constituted an abuse of court process. Regarding Downer, it was found that:
“[F]irst, as the high court found, it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct, delay and prevent his criminal trial – this is an ulterior purpose, and the institution of the private prosecution was accordingly unlawful; second, it was instituted in order to have Mr Downer removed as the prosecutor in Mr Zuma’s trial – this too is an ulterior purpose, which renders the private prosecution unlawful; and, third, the contemplated private prosecution is patently a hopeless case. It is obviously unsustainable. Mr Zuma has not made out any possible basis on which Mr Downer might be convicted, even on Mr Zuma’s own version of the facts. This, too, renders the private prosecution an abuse of the process.”
Regarding Maughan, the SCA held that there was nothing to gainsay the characterisation of her private prosecution as:
“one that has been brought by a powerful former President against a journalist (who has been reporting on his legal troubles in a manner that displeases him), which will have a chilling effect on her journalistic freedom and press freedom more widely. It also means that she will have to continue to report, in the face of insults and threats from his supporters, with a cloud of criminal opprobrium hanging over her head, which undermines her journalistic credibility.”
Ponnan JA found that an even abbreviated history of the former President’s corruption trial “illustrates that on any reckoning, the scale of litigation, which is likely unprecedented in the South African courts, justifiably attracts the epithet ‘Stalingrad’.
Furthermore:
“The private prosecution is part of the ‘Stalingrad strategy’ announced by Mr Zuma’s counsel … over a decade and a half ago … It is further demonstrated by the patent lack of substance to the charges; by the fact that Mr Zuma has clearly not pursued the prosecution as would someone intent on obtaining a conviction; and, by Mr Zuma’s identification of witnesses. …”
The appeal was dismissed with costs on an attorney and client scale.
This saga invites further questions about the responsibility of legal practitioners for bringing unmeritorious cases. In Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs and Others, 7 the
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(CCT 38/16) [2023] ZACC 34 (30 October 2023).
Constitutional Court delivered a judgment which provides potential impetus to penalise practitioners and clients who are found to have abused the court process. In this case, the Constitutional Court had, in 2017, confirmed a finding of constitutional invalidity in respect of provisions of the Immigration Act, and suspended the order of invalidity for two years. 8 The amended legislation contemplated was never passed, and no extension of the order of invalidity was sought before it expired. The Minister and Director-General then applied to the Constitutional Court to revive the 2017 order.9
The court, in a unanimous decision written by Majiedt J, made a reading-in order subject to the adoption of remedial legislation,10 but the judgment is particularly significant for how it deals with the issue of costs (an issue which took up around half of the judgment). The applicants and their legal representatives were criticised for dealing with the extension of the expired deadline as if it was a “mere formality” and taking an approach which amounted to “extraordinarily lax, and arguably even foolhardy, litigating”.11 The court remarked that it was “difficult to conceive of a more egregious instance of neglect of a constitutional duty”,12 and found that the applicants’ legal representatives bore the “major share of the blame for the deplorable state of the litigation”, having “abysmally failed in their duty to represent their clients in the manner required by their professional rules.”13
Finding that the legitimacy of the judicial system and the courts would “fall into disrepute if the shockingly poor conduct of litigation as in the present instance is allowed to continue unchecked”, 14 the court ordered that the applicants’ legal representatives were not entitled to recover their fees, and that the Minister and the Director-General were respectively liable for 10 and 25% of Lawyers for Human Rights costs, in their personal capacities.15
The judgment has potential significance as means for courts to sanction those who bring unmeritorious cases for ulterior motives – such as the phenomena of so called “Stalingrad” litigation and SLAPP suits which have featured regularly in these notes.
In Afriforum NPC v Minister of International Relations and Co-operation and Others, 16 a full bench of the North Gauteng High Court was faced with an application to set aside a decision to approve a request to retain an accumulated cash surplus in the budget of the African Renaissance Fund, and to donate an
amount of R50 million to the Republic of Cuba.17 The court (Mlambo JP, Dlamini and Cowen JJ concurring) held that approval of the surplus retention request was an exercise of public power that was executive in nature, and did not have a direct
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(21196/2022) [2023] ZAGPPHC 1797 (25 October 2023).
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and external legal effect on Afriforum and its members, nor did it adversely affect their rights. It therefore did not qualify as administrative action.18 The decision also survived a challenge based on legality.19
Regarding the donation to Cuba, the court held that the decision was “embedded in the foreign policy of South Africa towards Cuba”, and “was more concerned with foreign policy than with the implementation and the application of policy more specifically.” Accordingly, it fell to be considered under the principle of legality rather than as administrative action.20 The court upheld an argument that the decision had not been taken with the support of a majority of members of the relevant advisory committee to the Fund. 21 The donation decision was accordingly set aside.
5. Regional news
The Southern and Eastern African Chief Justices’ Forum (SEACJF) held its annual meeting this month. The SEACJF has the potential to play an important role in upholding the rule of law in the region and has been involved in some important initiatives – for example, the Lilongwe Principles were developed under its auspices. Eyebrows were raised, however, when the Chief Justice of Swaziland, Justice Bheki Maphalala, was elected as the organisation’s new chairperson. To give one example of why the Chief Justice’s election was surprising to many observers, one can consider a 2022 statement by the Centre for Human Rights at the University of Pretoria regarding the Chief Justice’s role in disbarring lawyer Muzi Simelane:
“The Chief Justice disbarred Mr Simelane by way of notice in April 2018 based on alleged contempt. Since he was banned from appearing in any court in Eswatini, Mr Simelane has not practised law for the past four years. The Chief Justice issued the notice from his chambers without any court hearing, application by the Law Society of Swaziland or determination by a tribunal that the lawyer had committed an act of misconduct.
…
By ruling that Mr Simelane was in contempt of court without a Supreme Court order to that effect, as provided in section 139(3), the Chief Justice acted ultra vires the clear provisions of the Constitution. The Chief Justice took it upon himself to make a ruling in his chambers that Mr Simelane was in contempt of court and then issued a notice banning the lawyer from appearing in any court of law in Eswatini. … [T]he rules regulating the practice of lawyers are made by the Law Society and not the head of the judiciary in Eswatini. The Chief Justice, therefore, acted unlawfully and not in accordance with constitutional provisions or any act of parliament. …”
Paras 28 – 32.
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Paras 59 – 62, 65.
6. Articles
A case which may invite the type of scrutiny applied by the Constitutional Court in the Minister of Home Affairs judgment, as discussed above, is the challenge by former President Zuma and his Foundation to President Ramaphosa’s decision to appoint Justice Zondo as Chief Justice. Professor Pierre De Vos discusses the application, which he describes as “a legal nonsense and an abuse of the court process, and thus yet another attempt by Zuma to delegitimise the State Capture Report as well as the Constitutional Court to avoid accountability for his dubious actions.” De Vos ponders, pertinently considering the subsequent Minister of Home Affairs judgment, “what kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?”
De Vos notes that, according to a media statement by the JG Zuma Foundation, the challenge is based on two grounds: first, that the appointment was irrational because the President ignored the JSC’s recommendation that Justice Maya be appointed, claiming that Justice Zondo “scored the lowest number of votes from the JSC following the week-long interviews”, and therefore that the JSC “effectively declared [Justice Zondo] as unsuitable for the position”.” De Vos rejects this argument, pointing out that it is incorrect that the JSC found that Justice Zondo was unsuitable, and that in respect of the appointment of the Chief Justice, the President is not bound to follow the advice of the JSC.
Second, the Foundation argues that President Ramaphosa “acted in breach of the equality clause and section 174(2) of the Constitution “both of which prohibit gender discrimination”.” De Vos gives short shrift to this argument, pointing out that section 174(2) does not contain a prohibition against gender discrimination, and that following the Hugo judgment, the exercise of such a power may not be reviewable.
De Vos suggests that the real reason for the litigation lies in the Foundation’s statement that “the case will require Ramaphosa to “dispel the allegations or suspicions that Zondo was being unduly rewarded for absolving Ramaphosa for his role in the Bosasa/CR17 scandal, among other things, in the so-called State Capture Commission Report”.” De Vos describes this argument as a “self-serving political (and not a legal) claim, aimed at promoting Zuma’s campaign to discredit the State Capture Commission, his successor as President, and the Constitutional Court”.
In addition to the shortcomings identified by De Vos, the challenge is especially remarkable considering that it was Zuma himself who, while President, appointed Justice Zondo as a justice of the Constitutional Court in 2012 and as Deputy Chief Justice in 2017. Should the case indeed proceed to argument in court, it will surely be a prime contender for the type of sanction of lawyers and litigants that the Constitutional court has illustrated in the Minister of Home Affairs judgment.
ENDS
