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
As noted in last month’s newsletter FUL is bringing an application to review the JSC’s decision to leave open two vacancies on the Supreme Court of Appeal. With this challenge ongoing, we are constrained in relation to comment regarding the JSC’s October sitting, although some analysis of the interviews by other writers is included in section 5.
The Presidency has announced the formal appointment of the candidates recommended by the JSC at the April sitting.
Judge President Waglay of the Labour and Labour Appeal Court has retired from active service. The vacant position had been advertised for the JC’s April 2024 sitting.
2. Judicial Conduct
The Portfolio Committee on Justice and Correctional Services has recommended that the full National Assembly vote for Judge President Hlophe and Judge Motata be removed from office. In terms of section 177(1)(b) of the Constitution the National Assembly must now adopt a resolution calling for the judges’ removal with a supporting vote of at least 2/3rds of its members. It appears that the vote will take place next year.
Freedom Under Law has welcomed the Committee’s decision.
The tribunal hearing the complaint against Judge Makhubele reconvened but was again postponed, this time until January 2024. Once again, the issue was the payment of Judge Makhubele’s legal fees. In granting the postponement, the chairperson of the tribunal indicated that if Judge Makhubele was still not ready to proceed, she would have to interdict the tribunal’s proceedings – in other words, no further postponements would be granted. It remains to be seen whether the proceedings will indeed be completed in time to allow the tribunal to achieve its avowed goal of reporting to the JSC in time for the JSC’s April 2024 sitting. It must be said that the trajectory of the matter to date makes this target look distinctly ambitious.
Not for the first time (see our June 2023 note), extra-curial remarks by Chief Justice Zondo have been a cause for concern in some quarters. The Chief Justice was quoted as saying, in a television interview, that former President Zuma should be prosecuted “as long as the National Prosecuting Authority is saying it has got enough evidence to justify prosecuting him”. This was in response to a question about “whether there was a point in prosecuting Zuma on graft charges dating back to 2005.” It was also reported that, during the interview, the Chief Justice commented on the implementation of recommendations of the state capture commission, and judicial misconduct.
The Council for the Advancement of the South African Constitution (CASAC) released a statement describing the Chief Justice’s comments as “unfortunate and ill-advised”, and expressing concern that:
“With his comments on contentious political issues, the Chief Justice may be perceived as wading into the public discourse about partisan politics and potentially bringing his impartiality (and that of his colleagues) into question at a time of fierce political contestation ahead of the 2024 general elections.”
Some analysts have expressed sympathy with the Chief Justice’s frustrations over the handling of the state capture report’s recommendations. The potential dangers of judges being drawn, even unwittingly, into the political firmament ahead of the 2024 national elections was illustrated by the remarkable occurrence of Deputy Chief Justice Maya’s photograph appearing on an ANC election poster. This prompted the Office of the Chief Justice to release a statement clarifying that the use of the imagine was unauthorized, and that the Deputy Chief Justice was not a member of the ANC or any political party, and to demand the removal of the image and an apology for its use.
Allegations of corruption have led to a regional court president in KwaZulu-Natal facing trial over allegations that he “sought and accepted gratifications to the tune of R238 260 from attorneys he recommended for the acting [magistrates] positions between 2012 and 2015.”
The issue of delayed judgments has also featured regularly in these notes over the course of this year, and the Constitutional Court has found itself in the firing line for a number of late judgments, and has also been criticised for the apparently poor state of its website making it difficult to determine the status of cases. According to a GroundUp report, of the judgments the Constitutional Court has reserved since August 2022 and subsequently handed down, ten were late when measured by Groundup’s six month benchmark – with 19 qualifying as late under the three-month benchmark of the judicial norms and standards Freedom Under Law has released a statement expressing concern about the issue, and urging the court’s leadership to address the matter urgently.
A delayed judgment which has caused particular concern is the decision in a challenge brought to provisions of the Electoral Amendment Act for allegedly restricting the participation of independent candidates. The case was heard in late August. The delay in delivering the judgment was reportedly described by the chair of the IEC as “creating anxiety”, since the “IEC could only finalise plans for the elections once the judgment had been handed down.” GroundUp notes that the court has previously ruled quickly on election disputes with judgments being delivered in under a month in cases in 1999 and 2009. (The judgment was subsequently handed down in early December and will be discussed in next month’s note).
Groundup’s ongoing reporting on delayed judgments has identified 264 judgments as outstanding for more than six months, as of mid-November. This is said to be the highest number since reporting on the issue began in 2017.
In an unusual development, it was reported that former Northern Cape Judge President Frans Kgomo is suing politician John Block and two of Block’s legal representatives for defamation. This relates to an allegation, made during Block’s corruption trial, that Judge Kgomo had instructed the presiding judge to “convict the bastard”, and had exerted undue influence on the presiding judge. Incidentally, the presiding judge in question was Judge Violet Phatshoane, who was an unsuccessful candidate for the Supreme Court of Appeal at the JSC’s October sitting. The issue had been raised in earlier interviews, but more recently the JSC appears to have lost interest in it.
3. SigniKicant cases
Fresh from his rejection by the JSC for a position on the SCA, Justice Unterhalter delivered an important decision as an acting justice of that court, dealing with the constitutional right to further education (section 29(1)(b) of the Constitution).1 The respondent, a prisoner, had requested to use his personal computer in his cell for the purposes of completing an online data processing course for which he had enrolled. The request was refused on the basis that the relevant educational policy prohibited the use of personal computers in cells (though it permitted the use of personal computers in a designated room at set times, under supervision). The high court found that the policy was an unjustifiable limitation of the constitutional right to further education and constituted unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act.2
1 Minister of Justice and Constitutional Development and Others v Ntuli (Judicial Inspectorate for Correctional services intervening as amicus curiae) (539/2022) [2023] ZASCA 146 (8 November 2023).
2 Paragraphs 1 – 2; 8.
Unterhalter AJA (Dambuza, Meyer, Matojane and Goosen JJA concurring) dismissed the unfair discrimination challenge, as the high court lacked jurisdiction (the challenge should have been brought in the Equality Court).3 However, the policy’s outright prohibition of the use of a personal computer in cells for the purpose of study was found to be an infringement of the right to further education.4 The court emphasised that the decision did not deal with any question of a positive obligation on the state to provide computers in such circumstances, nor that every course of further education would require a prisoner to be allowed to use a personal computer in their cell, since:
“What matters is whether the ability of a prisoner to pursue their chosen course of study would benefit from access to a personal computer during periods of time when a prisoner is confined to their cell. If there is such a benefit, its removal infringes the right of a prisoner to further education. …”5
A twelve-month period to re-formulate the policy was granted, with an interim order allowing computer use subject to certain restrictions.6
In Savoi and Others v National Prosecuting Authority and Another, 7 the Constitutional Court considered the appropriate procedure to consider documents which were claimed to be protected from disclosure by legal professional privilege, but were necessary for the determination of an application for a permanent stay of proceedings.8 In a unanimous judgment by Theron J, the court acknowledged the importance of both the principle of open justice and legal professional privilege, and found that an appropriate balance could be struck through an in camera consideration of the documents alleged to be privileged.9 Such proceedings would allow representatives of the respondents to view the contested documents under conditions of confidentiality, and the procedure was “arguably less drastic” than a “judicial peek.” The court emphasised that as in camera review was a deviation from the general principles of the administration of justice, it was a discretion which had to be exercised “judiciously.”10
Factors which would determine whether it was in the interests of justice to allow such a procedure could include the purpose for which the court must consider the relevant documents, and the consequences for the parties if the documents were made public. In the circumstances of the Savoi case, the court found that, without an in camera review, the applicants would be forced to choose between dealing with the documents in open court, or “drastically weakening” their case for a permanent stay by arguing that professional privilege had been breached, without giving the court sight of the documents.11
3 Paragraphs 12 – 14.
4 Paragraph 23.
5 Paragraph 24.
6 Paragraphs 35 – 36.
7 (CCT 146/22) [2023] ZACC 38 (28 November 2023).
8 Paragraphs 2, 18.
9 Paragraphs 19 – 20.
10 Paragraph 24.
The court emphasised that the secrecy involved in an in camera review of allegedly privileged documents was not “absolute and irreversible”, since if the documents were privileged, the law provided an exception to the principle of open justice. If the documents were not privileged, they should then be disclosed in the main proceedings for a permanent stay. The court further emphasised the need for the court to ensure that a record of in camera proceedings was kept and made available to the parties and the public if it was subsequently determined that the documents were not privileged.12
Groves N.O. v Minister of Police13 dealt with the question of whether a police officer had a discretion not to arrest a suspect when executing a warrant, and if so, what the discretion entailed. The Constitutional Court, in a unanimous judgment by Potterill AJ, found that the issue remained open, as the prior SCA judgment in Sekhoto, which appeared to establish that a discretion did arise, had incorrectly relied on previous caselaw, and in any event dealt with a situation of an arrest without a warrant.14
The Constitutional Court distinguished an arrest in terms of a warrant from warrantless arrest, as a warrant would have been issued through a process which ensured that it was not only the decision of the arresting officer which determined a suspect’s fate.15 The court found that there was no discrepancy in the use of the words “may” and “shall” in sections 43 and 44 of the Criminal Procedure Act.
Section 43(2) imposed a positive duty to arrest the person identified in a warrant using the word “shall”, which did not grant a discretion. Section 44 provided that a warrant “may” be executed by a peace officer in terms of the section. The court held that this related to who had the power to execute the warrant and did not confer a discretion when doing so.16
4. Regional news
The African Union has adopted a resolution on a Focal Point on Judicial Independence in Africa. The aim would be to better document and monitor threats to judicial independence. Whilst it will have to be seen how this initiative will play out in practice, its inclusion on the AU’s agenda is a positive first step towards greater commitment to judicial independence on the continent.
5. Articles
The Daily Maverick’s Professor Balthazar column discusses the JSC in the wake of the controversy over the October SCA appointments. Describing the JSC as having “consistently failed to fulfil its core constitutional obligations”, which “imperils the future of an independent, resilient judiciary committed to the independence and transformation of the South African legal system”, the column details the JSC’s reasons for its decisions to appoint and not appoint candidates to the SCA, as expressed in its response to a request from CASAC.
11 Paragraph 25.
12 Paragraph 26.
13 (CCT 223/22) [2023] ZACC 36 (14 November 2023).
14 Paragraphs 50 – 51.
15 Paragraphs 52 – 53.
16 Paragraphs 55 – 56.
The columnist describes the reasons as “a textbook case of irrationality”, and criticizes the JSC’s reasons for deciding to appoint Judge Kgoele, arguing that:
“her interview revealed gaping holes in her legal knowledge. It is difficult to understand how her writing abilities were superior to those of any of the candidates who were not appointed.
The argument that there was symbolism from a transformation perspective conveniently elides over the fact that in at least two cases (judges Phatshoane and Siwendu) the same symbolism would have been achieved by their appointment.”
The article also takes issue with the voting procedure articulated by the JSC, particularly with the fact that in the first round of voting, more candidates had obtained a majority of votes than there were vacancies, but in the second round, only two obtained a majority of votes:
“It is extremely difficult to understand how commissioners at the JSC would vote for a candidate to be appointed and then change their mind and decide they were not sufficiently qualified. The upshot was that three of the four judges who initially received 12 votes were suddenly relegated.”
After criticising the reasons for the non-appointment of Judge Unterhalter, the article concludes that the reasons for only filling two vacancies are “risible”, and advocates for the reconstitution of the JSC, specifically:
“to ensure a reduction of the number of members of the JSC, with fewer politicians to sit thereon and consideration of a smaller, representative body which will apply itself fastidiously to justifiable reasons for appointments or non-appointments.”
FUL board member Professor Hugh Corder had written an op-ed arguing that the removal of judges Hlophe and Motata from office will strengthen South Africa’s constitutional democracy. Corder locates his analysis in the context of threats to constitutional democracy globally and praises the judiciary for having “shown remarkably intelligent, nuanced and resilient commitment to its assigned role in government, despite some challenges within its ranks and in the face of unprincipled, indeed outrageous, vilification from party-political quarters sporadically.” Corder notes that there are those “who resent being held to account for their unlawful and unconstitutional conduct”, leading to frequent litigation to achieve what cannot be achieved politically, and attempts to undermine the independence and impartiality of the judiciary.
Corder raises the question of what, in this context, protects the judiciary, and suggests that it is the institution’s popular legitimacy, “in the sense that a strong majority of the citizenry must trust the judges and treasure their independence.” This respect must be earned through courts operating openly, deciding disputes expeditiously and fairly, and justifying their decisions though rational and logical judgments. The consequences of appointing unsuitable candidates to judicial office, Corder points out:
“can seriously destabilise and rapidly erode public confidence in the institution, so it is vitally important that those (few) who are alleged not to be up to the exacting standards expected of a judge be dealt with fairly and without undue delay.”
Noting that the JSC’s performance in dealing with such matters “is notoriously defective”, Corder emphasises the significance of the Hlophe and Motata matters reaching the stage that they have in Parliament, as well as the gravity of the potential outcome. Removing judges from office is “a traumatic moment in our constitutional experience” which “marks a significant signpost strengthening the state of our constitutional democracy” and will strengthen public confidence in the judiciary.
The role of legal practitioners in fomenting so-called “Stalingrad” litigation is also the subject of a Professor Balthazar column, which discusses the recent Minister of Home Affairs v Lawyers for Human Rightsjudgment of the Constitutional Court(see discussion in last month’s note). The article comments on the significance of the costs order:
“There have been many cases in the past which, at least on a reasonable basis (even on the standard of an average LLB student) legal arguments have been advanced that palpably have no merit other than to postpone an inevitable adverse outcome against a litigant.
All too often, arguments in court have been targeted at the press or the public at large rather than at the courts to gain political mileage for a client without any recourse to a justifiable legal argument. To date, the court has failed to mulct legal practitioners who have conducted themselves in this fashion.”
The article suggests that the courts need to extend the approach taken in the LHR case to other, Stalingrad style cases, and award costs ‘against a recalcitrant legal practitioner for effectively wasting the time of the court in order to perpetuate an unjustified Stalingrad legal strategy”, but queries whether the LHR precedent is limited to “non-Stalingrad” cases.
The potential removal of judges Hlophe and Motata from office, and the costs order in the Minister of Home Affairs judgment, are both identified as crucial to the rule of law in an op-ed by FUL.
ENDS
