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’.


“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  

Para 11. 

Para 14. 

Para. 8. 

Para 28. 

Para 36. 

(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  

Paras 4- 5. 

Paras 6 – 7, 10. 

Para 118. 

Para 63. 

Para 68. 

Paras 96 – 97. 

Para 110. 

Paras 112 – 114, 118. 

(21196/2022) [2023] ZAGPPHC 1797 (25 October 2023). 

Paras 1 – 3.

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. 

Para 45. 

Para 56. 

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.