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 shortlist of candidates for the JSC’s April 2024 interviews has been released. It will be a short but important round of interviews, with 15 candidates being interviewed for 4 vacancies (no candidate was shortlisted for the advertised vacancy of Labour Court Judge President). The Constitutional Court vacancy has finally received enough candidates to shortlist, with Professor David Bilchitz, Advocate Matthew Chaskalson SC, Advocate Alan Dodson SC, and SCA judges Tati Makgoka and Ashton Schippers vying for the position.
After having waited for so long for candidates to be interviewed for this vacancy it may seem churlish to raise questions about the shortlist. However, the presence on the shortlist of three candidates who are not sitting judges, and who were part of a much publicised effort to bolster the pool of candidates for the court (see the discussion in our October 2023 note), resurrects long-standing concerns about the process of making acting appointments, and the significant power that it vests in heads of court. To give but one example, concerns about a lack of gender diversity were raised at the time the three acting appointments were announced. The announcement of an all-male shortlist seems to bear out those concerns.
Of the other candidates, Gauteng High Court judges Leicester Adams, Majake Mabesele and Seena Yacoob are candidates for a longstanding vacancy on the Electoral Court. As noted, there is surprisingly no candidate for the vacant Labour and Labour Appeal Court Judge President’s position. This may be due in part to the position of Deputy Judge President only having been filled in the October 2023 sitting, but a further leadership vacancy is concerning, in light of well documented challenges the Labour Court has experienced. By contrast, the position of President of the Land Claims Court is set to be keenly contested, with SCA judge Zeenat Carelse contesting the position with Gauteng High Court Judges Susannah Cowen and Shanaaz Mia, and KwaZulu-Natal High Court judge Muzikawakhelwana Ncube. Three candidates have also been shortlisted for a vacancy on the North West High Court.
The interviews will take place in the week of 8 – 12 April 2024.
2. Judicial Conduct
There have been a significant number of developments regarding judicial conduct. There was finally some movement on the longstanding complaint and counter-complaint between Judge President Hlophe and Deputy Judge President Goliath. To recap this saga briefly, in January 2020 DJP Goliath lodged a complaint with the JSC accusing JP Hlophe of an assault on another judge, using abusive language towards her, and unlawfully diverting powers away from her as Deputy Judge President. Judge President Hlophe in turn lodged a counter-complaint against DJP Goliath, accusing her of disclosing confidential information relating to active matters, gross incompetence, racism, and leaking her complaint to the media.1
After a convoluted process before the Judicial Conduct Committee (JCC), the JCC’s appeal committee recommended that aspects of both the complaint and counter-complaint be referred to a judicial conduct tribunal.
The JSC has now finally (more than a year after the JCC appeals committee decision was handed down in September 2022) made a decision on these recommendations. Regarding the complaint against Hlophe JP, the JSC accepted the recommendation that a tribunal be appointed to consider the complaints relating to assault and the use of abusive language. Regarding the complaint against DJP Goliath, the JSC did not accept the JCC’s recommendation that a tribunal be established. DJP Goliath issued a statement saying that she feels “pleased to have been vindicated” by the finding.
This development takes place against a backdrop of the National Assembly’s vote (on 21 February) to remove Judge President Hlophe (as well as Judge Motata) from office in respect of the 2008 complaint by Constitutional Court judges (see our November 2023 note, and further discussion to follow in our next note), and it remains to be seen what impact that has on the outcome of the Goliath DJP complaint.
In an unusual move, Judge President Hlophe elected to give a television interview shortly after the portfolio committee had voted to recommend his removal from office.2 During the interview, Judge Hlophe commented that it would be sad for him to be removed from office “for merely making a remark”, when he was “not the only one who remarked about the Zuma matter”, but “the only one obviously who is charged is me.” He further suggested that he would be “the first judge ever in the world to be fired for comments made”,3 and – entirely without foundation – that FUL had been formed specifically to “chase” him.4 He suggested that he was held in high regard by academics around the continent, had written scholarly judgments that would be quoted in the future, and that he would like to be remembered as an effective administrator.
It is of course entirely misleading to suggest that Hlophe JP’s potential removal from office would simply be on the basis of ‘making remarks’ about the Zuma case. The JSC accepted the finding of a judicial conduct tribunal that Hlophe JP was guilty of gross misconduct for improperly attempting to influence two Justices of the Constitutional Court to violate their oaths of office.
Another high-profile matter is now progressing, with the JSC deciding to convene a judicial conduct tribunal to deal with the complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge. The composition of the tribunal and its starting date have not yet been revealed. It has been reported that a decision on the judge president’s suspension has been deferred, with the judge president having requested special leave until March 2024.
The conduct tribunal dealing with the complaint against Gauteng High Court judge Mngqibisi-Thusi was postponed following its first hearing, and only sat again on 29 January. The tribunal is chaired by retired Constitutional Court judge Chris Jafta and includes retired Judge President Dennis Davis and Advocate Nasreen
Rajab-Budlender SC as its other members. When the tribunal resumed, a rare issue arose when the judge’s legal team requested that the hearing take place in private, alternatively that the testimony of three witnesses be heard in private. The three witnesses in question were identified as the judge herself, a clinical psychologist, and an expert in spirituality who is likely to testify about “aspects of initiation” and the stigma attached to this aspect of the respondent judge’s life. Justice Jafta noted that the default position was that tribunal hearings are held in-camera, subject to an application to open the hearing to a wider audience. Whilst this is correct as a matter of law,6 the practice of tribunals has been to for hearings to be open to the public and live streamed, which is surely the preferably default position. This issue can be added to the lengthy list of necessary reforms to the judicial complaints process.
Another unusual feature of this tribunal is that the judge is represented by fellow Gauteng judge G.M. Malindi, “as a colleague”, and Judge Malindi indicated that discussions were underway which could see former National Director of Public Prosecutions Shaun Abrahams assisting Judge Mngqibisi-Thusi’s team. No objections appear to have been raised to what is to our knowledge an unprecedented situation of a judge representing a colleague in a conduct tribunal.
The tribunal hearing the complaint against Judge Makhubele is proceeding, despite procedural hurdles relating to the judge’s legal representation. When the tribunal reconvened on 22 January, Judge Makhubele’s counsel indicated that he was not able to proceed due to late confirmation by the state attorney’s office that it would be responsible for the payment of fees. The tribunal declined a request to postpone the hearing until the end of February, and after two short postponements, Judge Makhubele began presenting her evidence. The tribunal’s refusal to be held hostage by further delays to already long-running proceedings is to be welcomed.
The Judicial Conduct Committee has dismissed, by a 2 – 1 majority, the complaint by Shadow World Investigations and Open Secrets and against retired judges Willie Seriti and Hendrik Musi. The complaint accused the judges of gross incompetence, alternatively gross misconduct, for failing to conduct a full and meaningful investigation in the commission of inquiry into the arms deal. The JCC was unanimous in finding that on the evidence before it, it was not possible to make a finding of prima facie gross incompetence or gross misconduct, warranting a referral to a judicial conduct tribunal. The minority decision of Mabindla-Boqwana JA would have ordered an inquisitorial inquiry in terms of section 17(2) of the JSC Act.7 However, the majority, per Zondi JA with Maya DCJ concurring, held that the complaint should be dismissed as being solely related to the merits of a judgment or order.
In our November 2023 note, we discussed the debate about extra-curial comments by Chief Justice Zondo. Not to be outdone, his predecessor, Justice Mogoeng Mogoeng, delivered an “inaugural SAfm lecture on constitutionalism and upholding the rule of law in South Africa.” According to reports of the lecture, some aspects were benign, such as the former chief justice’s call for the development of a public funding model to ensure that government and political parties owe their allegiance to taxpayers rather than private funders. More contentiously, he criticized the President’s failure to make public the sources of his 2017 campaign to become ANC president. Justice Mogoeng is quoted as saying thatthis was a “sure albeit unintended recipe for corruption under the cover for the facilitation of a well-structured mechanism or legal stratagem having the inescapable effect of evading accountability”, and that “What the president self-evidently did, was to undermine and to frustrate the efforts of that (Public Protector) office to fulfil its constitutional obligations, by not just withholding the truth, but deliberately asserting the opposite of it”.
Whilst the harm in such comments by a judge who is no longer hearing cases may not be as apparent as in the case of a sitting judge, the judicial code of conduct does require that judges not“become involved in any political controversy” unless necessary for the discharge of judicial office. The Code also specifically requires that all activities of a judge no longer on active service must be compatible with their status as a retired judge. It is worth recalling that Justice Mogoeng has previously been sanctioned (and ordered to apologise) for comments made while still a sitting judge relating to South Africa’s foreign policy regarding Israel. President Ramaphosa appears to have taken the metaphorical high road, commenting that he did not intend to “get into a wrestling match with the judiciary”. Whilst there is no doubt merit in that approach, it can only be hoped that, particularly considering national elections looming later in 2024, we do not see continuing instances of judges entering into traditionally political terrain.
A complaint against Judge Unterhalter was dismissed by the JCC. The complaint, which was mentioned in Judge Unterhalter’s October 2023 JSC interview, related to an incident where his e-mail had been hacked and spam e-mails sent out, one of which reached a party to a past case before Judge Unterhalter, who claimed that the e-mail was an attempt to solicit a bribe. In an important comment on the complaint, Sowetan editor Nwabisa Makunga notes that such incidents are an “all too frequent occurrence in our public discourse. Baseless accusations such as these against the judiciary have become common place …” Whilst accepting the need for judges to be held accountable, Makunga notes that the media has “as much a responsibility to hold power to account as we do to expose disinformation that seeks to destroy public trust in institutions that safeguard our constitutional order.”
3. Significant cases
December was quite a month for judge Norman Davis of the Gauteng Division of the High Court, Pretoria. First, in United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others, writing for a full bench of the court, he found that ongoing energy crisis, as manifested through loadshedding, and the failure to remedy it constituted a breach of Constitutional rights to human dignity, life, freedom and security of the person, to an environment not harmful to health and wellbeing, access to healthcare services, access to sufficient food and water, and basic education. The Minister of Electricity was ordered to take steps to ensure sufficient supply and generation of electricity to prevent interruption of supply to public health institutions, public schools, and SAPS and police stations. An application to review electricity tariffs determined by NERSA was dismissed.
The case consolidated various applications, including the UDM case discussed in our May 2023 note, although Part B of the UDM application was withdrawn. Many of the separation of powers concerns expressed about the original UDM application will no doubt be raised regarding the scope of this latest order.
Then in Prince Mbonisi Bekithemba Ka Bhekuzulu and Others v President of the Republic of South Africa and Others, Davis J set aside the President’s recognition of the King of the Zulu Nation for failure to convene an investigative committee to report on whether the identification of the King had been carried out in terms of customary law and customs, as required by the Traditional and Khoi – San Leadership Act.14 The matter was remitted to the President for an investigative committee to be established.
The Constitutional Court handed down two judgments which will have great significance for the 2024 elections. In One Movement South Africa NPC v President of the Republic of South Africa and Others, the court considered a challenge to provisions of the Electoral Act which required that independent candidates, in order to register, had to secure the signatures of 15% of a quota registered voters in the relevant region. The majority (Kollapen J, with Maya DCJ and Mhlantla J concurring, and Theron and Rogers JJ concurring in part) found that the signature requirement constituted a limitation of rights, created a legal barrier or pre condition for the exercise of the right to stand for public office, and that it was expressly intended to exclude potential candidates from standing for public office. The limitation was further not reasonable and justifiable. The declaration of constitutional invalidity was suspended for 24 months to allow Parliament to address the signature requirement, with an interim reading-in measure which provides that candidates are required to obtain 1 000 signatures per region they are contesting in order to register. Should Parliament fail to remedy the unconstitutionality in 24 months, this reading-in will remain in effect.
The minority judgment (Zondo CJ with Mathopo J and Schippers AJ concurring) found that the real nature of the complaint was with the size of the regions and quotes involved, rather than with the percentage of signatures required. The minority found that the signature requirement did not constitute a limitation of rights, since it did not require independent candidates to do anything “unconnected with their personal goals or ambitions.”
A further challenge to the recalculation of seats when seats were forfeited in the National Assembly or a provincial legislature, or vacancies arise in a legislature, was rejected by both the majority and minority judgments. The separate judgment of Theron J (Rogers J concurring) expressed concerns about the constitutionality of the recalculation method, concluding that it was a limitation of rights and was not justifiable. However, the separate judgment would have declined the application for urgent direct access, on the grounds that it would not be possible to justice to the issue in these proceedings.
In Independent Candidate Association South Africa NPC v President of the Republic of South Africa and Others, the court (in a unanimous judgment by Mhlantla J) held that an item in the schedule to the Electoral Act providing that 200 seats in the National Assembly could be filled by independent candidates and candidates from the regional lists of political parties, and 200 by candidates from the national lists of political parties, with independent candidates excluded from contesting for the latter category of seats, did not infringe any rights in the Bill of Rights.
The Department of Home Affairs’ annus horribilus continued with the Constitutional Court’s decision in Scalabrini Centre of Cape Town and Another v The Minister of Home Affairs and Others. The court, in a unanimous judgment by Schippers AJ, upheld the high court’s finding of unconstitutionality and struck down provisions of the Refugees Act which provided that asylum seekers who had not renewed their visas within one month of the date of expiry were regarded as having permanently abandoned their asylum applications. Schippers AJ held that refugees are an “especially vulnerable group”, and that the impugned provisions violated the principle of non-refoulement, as well as fundamental rights to dignity, since the issuing of visas was essential to asylum seekers’ dignity and to their ability to access employment, education, and health care facilities. The provisions further violated the rights to just administrative action, personal liberty, and even life, and further unjustifiably limited the rights of children. The court also held that the provisions were irrational and arbitrary in that they failed to serve a legitimate government purpose.
In Nedbank Limited and Another v Survé and Others, the SCA overturned a decision by the Equality Court that the closure of bank accounts of the Sekunjalo group of companies by the appellants amounted to unfair discrimination on the grounds of race. The SCA (per Keightley AJA; Gorven, Meyer and Weiner JJA and Binns-Ward AJA concurring) found “fundamental inadequacies in the respondents’ case” on each aspect required to draw an inference of unfair racial discrimination, and that the case “rested on no more than an assumption of racial designation.” The court found further that the Equality Court had Readers of Ngalwana AJ’s judgment in Mogoai and Others v City of Tshwane Metropolitan Municipality may have been expecting a standard treatment of an application for restoration of access to makeshift homes, alternatively provision of emergency accommodation, the likes of which are all too common in the courts. They would have been surprised, then, to read the following excurses on South Africa’s “cesspool of lawlessness” at the beginning of the judgment:
“People generally seem to do as they please without any fear of consequence … An independent panel of jurists, led by a former Chief Justice, has found that the President, no less, “may have committed” a serious violation of section 96(2)(a) of the Constitution, a serious violation of section 34(1) of PRECCA, serious misconduct in that the President violated section 96(2)(b) of the Constitution by acting in a way that is inconsistent with his office, and serious misconduct in that the President violated section 96(2)(b) by exposing himself to a situation involving a conflict between his official responsibilities and his private business. There is even a suggestion that the President may be implicated in money laundering. The Legislature, which is supposed to hold the President accountable, decided that these prima facie findings do not deserve further investigation. The President, under oath at a judicial commission of enquiry, characterised the ruling party as “accused number one when it comes to corruption”. Yet South African voters, like fanatical club football supporters, continue to return the ruling party to power. Voters seem to have become numb to criminality. This is not a political statement. It is an observation on the cosy relationship that South Africans seem to have with criminality. The state of the nation seems to be one of endemic lawlessness.”
For the record, the respondent was ordered to provide emergency alternative accommodation to the applicants, pending the determination of Part B of the application.
The Supreme Court of Appeal has denied former President Zuma’s application for leave to appeal against the invalidation of his private prosecution against Billy Downer and Karyn Maughan (see the discussion of the case in our June 2023 note).
4. Judicial governance and independence
In early December, South African judges held a conference, for the first time since 2011. The conference theme was ‘towards a single, effective, fully independent judiciary’ and the event was described as a “great success” by the Chief Justice. The conference resolutions will apparently be made public, although this had not been done at the time of finalizing this note. The opening session and the opening and closing media briefings are available online.
The post-conference engagements identify several key outcomes from the conference. First, that the issue of the institutional independence of the judiciary “should be expedited”. Conference noted that for around ten years after the judiciary had given the executive their proposals regarding the preferred model for court administration, the executive had not responded, which, the Chief Justice commented, had impeded attempts to obtain full institutional independence. In his opening address, the Chief Justice highlighted the importance of full institutional independence, to allow the judiciary to control the funds and budget needed to ensure that court operations can run smoothly. It appears that an initial meeting between the judiciary and the executive to discuss the issue further was due to take place in the week after the conference.
A second, closely related outcome was that the Magistrates’ Courts should be administered by the Office of the Chief Justice. Considering the extensive challenges facing the administration of all levels of the courts, and questions about whether the OCJ is adequately addressing its existing functions, questions must be asked about whether such a measure, without more, would be sufficient to address the myriad challenges involved. (See further section 6 below). During his opening address, the Chief Justice himself acknowledged the “extremely difficult conditions” under which the judiciary, and particularly the lower courts, operate.
Other issues noted included a need to make sure that complaints against judges are dealt with expeditiously, and an intention to make more use of retired judges in the process. The Chief Justice indicated that it would be necessary to seek an amendment to the JSC Act to increase the number of members of the Judicial Conduct Committee. There was also an acknowledgement of concerns about reserved judgments, and a suggestion that this would be “looked at properly”, as the problem was often due to an excessive workload. Conference urged judicial leadership to expedite pending initiatives such as the Moseneke Commission, looking at the judicial establishment, and a greater role for alternative dispute resolution mechanisms.
The extent of the structural and workload challenges facing the judiciary was highlighted by media reports that Gauteng High Court, Johannesburg Deputy Judge President Roland Sutherland issued a notice placing a moratorium on case management assignments in the court. It was reported that the notice stated that:
“It is no secret that the volume of work in this division is enormous and the pressure to enrol [sic] cases within a reasonable lead time of a request for a set-down date is stretching the capacity of the bench. The litigating public is not served by a critical mass of chronically fatigued judges. … It seems plain to me that the present system of case management is unsustainable. No time in the work programme is allocated to perform this work, a feature which it shares with no time allocated to read appeals or opposed motions or write judgments”.
An article by the Daily Maverick’s Kevin Bloom raised concerns that the discharge of a judge from active service had been used to stymy a case involving former Deputy President DD Mabuza. The issue arose when the President discharged the presiding judge, Sardiwalla J, in July 2023 due to incapacity. The article suggested that the government defendants were aware of the discharge before the plaintiffs were, and highlighted that Sardiwalla J had handed down several judgments after July 2023, and raised the question of whether there had been a “conspiracy” to quash the case, highlighting concerns that evidence already led could be lost if the trial were to begin again de novo, as argued for by the defendants.
The article prompted the Department of Justice and Correctional services to issue a statement describing the article as “border[ing] on disinformation”, and described the article as having given the impression that “the President may out of his own volition just decide to discharge a Judge if he is of the opinion that the Judge suffers from a medical condition that renders him or her incapable of performing his or her official duties”, which assumption was “incorrect and misleading.” The statement asserts that due process was followed and the discharge of Sardiwalla J and points out that it is normal for judges to deliver reserved judgments after being discharged from active service.
It does appear that the article was written without a full understanding of the process involved when judges are discharged from active service. The incident does show, however, that there is a keen public understanding of the importance of the judiciary, and an anxiety to ensure that independence of the judiciary is not compromised.
Concerns about the separation of powers and relations between the judiciary and other branches of government are not unique to South Africa. In Kenya, President William Ruto was reported to have made remarks alleging collusion between corrupt individuals and judges to bring cases to hamper government initiatives in healthcare and housing, and suggesting that he would be willing to disregard court orders from these allegedly compromised courts in the greater public interest.
Understandably, these comments have been described an “assault on the very essence” of Kenya’s constitutional democracy and criticised for disregarding individual’s rights to have disputes determined by the courts. And in Zambia, concerns have been expressed about cases involving the main opposition party being allocated to judges from one ethnic language group, most of whom had only recently been appointed to the bench. This in a context where the executive has been accused of “surreptitiously using its powers to undermine the vestiges of autonomy” in state institutions designed to ensure checks and balances on executive power, and where questions have been raised “about the susceptibility of some judges to influence from both private individuals and State actors.”
5. Legislative reform
On 6 December 2023, the Judicial Matters Amendment Bill (B7-2023) was passed by the National Council of Provinces. Clause 34 of the Bill repeals the common law crime of defamation, although civil liability for defamation remains unaffected. The Bill is currently awaiting Presidential signature.
6. Articles
In a preview of the judges’ conference, Judges Matter’s Alison Tilley and Vuyani Ndzishe trace the historical roots of moves to establish a single judiciary and the Office of the Chief Justice. They suggest that the OCJ should be established in legislation and/or the Constitution, arguing that this is necessary to clarify and improve the current division of judicial governance responsibilities between the OCJ, Department of Justice, and Department of Public Works. They contrast the institutional independence of the OCJ unfavourably with entities such as the Auditor-General, noting that OCJ administrative personnel are faced with dual responsibilities in that they are required to report to both the judiciary and the executive. They argue that moves towards a fully independent, judiciary-led administration is fundamentally handicapped by an insufficient budget and suggest that distinct phases of change are required to implement incremental reforms to the system of judicial governance. Such reforms are necessary, they argue, to ensure the judiciary’s constitutional mandate is fulfilled.
The issue of SLAPP suits as a form of abuse of the legal process continues to receive attention. Busisiwe Kamolane-Kgadima of CALS writes that poor and working-class activists have long been subjected to “predatory [law]suits”, and argues that while awaiting legislative intervention, courts “can and must adopt a more hands-on approach in preventing the success of Slapp suits.” Kaolane
Kgadima suggests that such a proactive approach could include judges being alert to a promptly identify SLAPP suits, which could for example prompt proactive measures to allow responses in urgent applications. She also emphasizes the need for early judicial intervention, to counter the aim of SLAPP suits to exhaust funding, energy and attention. Finally, the article argues that costs must be awarded to those on the receiving end of a SLAPP suit, if they are able to prove an abuse of court process. The article concludes by emphasizing that SLAPP suits undermine the integrity of courts and the constitutional principles of an open and free society.
In an article previewing major events facing the judiciary in 2024, Judges Matter’s Mbekezeli Benjamin highlights several pending changes in key leadership positions, with vacancies in the positions of Chief Justice, Deputy President of the SCA, and potentially Deputy Chief Justice, if – as expected – Justice Mandisa Maya is appointed as the next Chief Justice. Benjamin also highlights the potential for disputes relating to the national elections to come before the Electoral Court; the imminent removal from office of judges Hlophe and Motata; the range of complaints currently serving before judicial conduct tribunals which might also lead to judges being removed from office; challenges to the judicial appointments process, as illustrated by FUL’s litigation against the JSC; and tensions in the relationship between the judiciary and other branches of government, including over the slow pace of judicial governance reforms.
