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
The President has announced the nomination of Deputy Chief Justice Maya to be the new Chief Justice, and Justice Zondi to be the new Deputy President of the SCA. The tenure of current Chief Justice Raymond Zondo ends in August 2024, and the tenure of SCA Deputy President Xola Petse ends in July 2024. At the time of writing, no date for the JSC’s interviews of the nominees has been announced.
The nomination of Justice Maya, who many expected to be appointed as Chief Justice in 2022, comes as no surprise. The most notable aspect of the announcement is that the President has reverted to the practice of nominating a single candidate, rather than following the 2022 approach of putting forward multiple candidates for consideration. Whilst in principle a process of considering multiple candidates is arguably preferable, the JSC’s shambolic handling of the 2022 interviews no doubt ensured there was little appetite for a repeat performance. The nomination of Justice Zondi is somewhat more surprising. Although appointed President of the Electoral Court in 2022, he has no other formal leadership experience. He has been a permanent judge of the SCA since 2014.
Part A of FUL’s litigation against the JSC over the October 2023 SCA interviews was settled on the basis that the JSC would hold interviews in April or May 2024 to fill the two remaining vacancies left open following the October 2023 interviews.
The JSC’s response has not been one to inspire confidence. Initially, it was announced that it would take place in June 2024. After FUL pointed out that the terms of the settlement agreement (which was made an order of court) required the interviews to take place during April or May 2024, the JSC announced that the interviews would be held in May 2024. Then, it further announced that an additional vacancy had become open, so that three vacancies will now be interviewed for. With the interviews also needing to be held for Justices Maya and Zondi, the remainder of 2024 promises to be a busy and highly consequential year for the JSC.
- Judicial Conduct
By far the most significant development of this month – and indeed, one of the most significant developments affecting the judiciary since the dawn of constitutional democracy – the National Assembly voted to remove Judge President Hlophe and Judge Motata from office, with both resolutions obtaining the required two-third’s majority. 305 MPs voted in favour of Hlophe’s removal, with 27 voting against. 296 voted for the removal of Motata, with 1 against and 13 abstentions. The abstentions were recorded for EFF MPs refusing to indicate their vote when called on to do so. In terms of section 177(2) of the Constitution, the President must now remove the judges from office.
FUL issued a statement welcoming the outcome of the National Assembly vote.
Judge Hlophe had sought to interdict Parliament from voting on his removal from office, but this was struck from the roll, with the court finding that any urgency was self-created. FUL had sought to intervene in the application. Judge Hlophe has also sought direct access to the Constitutional Court to challenge the process followed by Parliament. This application is still pending.
It has been reported that the state has spent over R10 million on Judge Hlophe’s litigation relating to his removal from office.
The progress of the impeachment process to this stage is a historic development – the National Assembly having never being called on to vote on a judge’s removal from office – and one which has for a long time seemed unlikely. It is a hugely important development to ensure judicial accountability, and to show that the process of dealing with complaints against judges, for all its flaws, remains capable of ensuring such accountability. It is also testament to the efforts of FUL and other organisations to ensure that the complaints were not dismissed for flimsy and legally unsustainable reasons – as the JSC had in the past tried to do.
The outcome of the National Assembly vote has, unsurprisingly, been the subject of much public comment, some examples of which are set out in section 5. It also received international media attention, including coverage by the BBC.
The tribunal dealing with the complaint against Judge Makhubele continues to move slowly but inexorably towards its conclusion. Judge Makhubele completed her evidence and has been cross-examined by the evidence leader. The tribunal reconvenes on 11 March, when Judge Makhubele is due to call a witness. Judge Makhubele continues to deny any wrongdoing.
The tribunal dealing with the complaint against judge Mngqibisa – Thusi has completed hearing evidence, and written submissions were due at the end of the month. The tribunal dealing with the complaint against Judge Maumela is scheduled to sit on 18 -20 and 24 March and comprises the same embers as the Mngqibisa – Thusi panel (namely judges Jafta and D Davis, and Ms Rajab-Budlender SC).
In our previous note, we recorded that the JSC had deferred a decision on whether to recommend the suspension of Eastern Cape Judge President Selby Mbenenge. The JSC has since decided not to recommend the judge president’s suspension, on the grounds that he is “is on special leave pending the outcome of the Tribunal and in this period is required to finalise all partly-heard matters.” This decision has sparked concern, particularly in light of reports that the judge president has laid a charge of crimen injuria against the complainant. (As discussed in our previous note, this offence is on the verge of being abolished). It has been noted that many judges have been suspended pending the outcome of investigations into allegations of serious misconduct, whilst still being required to complete work on outstanding matters. Reports also raise concern with the role of JSC spokesperson Mvuso Notyesi, who addressed media queries relating to the complaint, but has what is described as “a long professional relationship” with the judge president.
The JCC has found that a complaint against Gauteng High Court judge Denise Fisher does not constitute gross misconduct, but referred it to an inquiry in terms of section 17 of the JSC Act. The complaint relates to findings of impropriety made by Judge Fisher against attorneys, medical experts and an actuary for their conduct in two cases against the Road Accident Fund. The SCA subsequently overturned these orders, on the grounds that it had not been open to Judge Fisher to make these findings, which had also not been made based on admissible evidence.
The conduct of South Africa’s magistrates was put under the spotlight following a parliamentary hearing of the Portfolio Committee on Justice, which focused on complaints against magistrates. Some of the incidents highlighted were truly alarming. It was reported that a magistrate in Limpopo was found by the high court to have made a:
“deliberate attempt … to mislead this court in trying to cover herself for the irregularity committed by her in the manner in which she had acquitted the accused. She had created imaginary proceedings… despite the transcribed record speaking for itself. … [The magistrate] tried to manufacture evidence which does not exist.”
Another magistrate was reported to have “sent inappropriate and threatening WhatsApp messages to journalists following the publication of an article.” (It appears that this refers to KwaZulu-Natal magistrate Ashin Singh – see the discussion in our July – August 2023 note). Another magistrate was accused of running a pyramid scheme. Committee members raised concerns about the slow pace of finalizing complaints by the Magistrates Commission.
- Significant cases
It has been a quieter month as far as judicial decisions are concerned – indeed, according to the SAFLII database, the Constitutional Court has yet to hand down a full substantive judgment in the first two months of 2024.
A legal challenge by the Democratic Alliance to the ANC’s practice of cadre deployment has attracted considerable attention. The Constitutional Court rejected an application for leave to appeal against an earlier high court decision requiring the ANC to hand over relevant records. The content of these records has excited much interest insofar as they relate to the judiciary. News24 reports that at a 2019 meeting, the ANC’s deployment committee “noted that it valued judicial independence but, in the same paragraph, complained that the judiciary had too much power.” The report also highlights a March 2020 communication from the late ANC deputy secretary-general and then secretary of the deployment committee Jessie Duarte to Justice Minister Ronald Lamola, in which she “expressed her concern that a woman advocate with no judicial experience was removed from the shortlist to fill a vacancy on the Constitutional Court bench.” The communication further, and somewhat cryptically, requested the Minister to ensure “that the issue with regard to lack of transparency [regarding the removal from the shortlist] be addressed, as well as the influential role of the chief justice, legal profession.” As the report notes, there are no indications that the Minister acted on this request.
Commentary in the Daily Maverick is more cautious, noting that while the minutes show the deployment committee discusses its preferred judicial candidates (contrary to what the President testified to at the state capture inquiry):
“almost all the judge candidates preferred by the deployment committee did not succeed, meaning that President Ramaphosa felt comfortable overruling the decisions of this supposedly all-powerful committee. … [I]t was likely that other political parties similarly discussed their desirable judicial candidates ahead of meetings of the judge selection body, the Judicial Service Commission. …
[R]eferences from within the minutes to candidates being loyal ANC members were far less frequent than references to candidates possessing the necessary skills and experience, and being drawn from representative groups in terms of age, gender, race and geography.”
The main legal challenge by the DA, which sought to have the policy of cadre deployment declared unconstitutional, was subsequently dismissed. A full bench of the Gauteng High Court, Pretoria (Ledwaba DJP, Bam J and Mojapelo AJ) found that the state capture commission of enquiry findings relied on by the DA had not referred to or made a finding of unconstitutionality regarding the cadre deployment policy, that the minutes of the deployment committee meetings did not provide sufficient evidence to support the DA’s arguments, and similarly, that there was insufficient evidence for the argument that cadre deployment was a conduit of state capture. The court further found that there was no properly pleaded attack on the policy.
Litigation relating to the closure of the bank accounts of the Sekunjalo group (see the discussion in our previous note) has continued to make news, with an application for leave to appeal being lodged with the Constitutional Court. It has been reported that in this application, Justice Trevor Gorven, who concurred in the SCA judgment under appeal, is said to have been “conflicted” due to having played a “founding role in an environmental charity that previously received donations from Nedbank-linked entities.” Nedbank is reported to have countered that the information had been publicly available prior to the hearing, and that the entity involved in making the donations operated independently of the bank, and last made such a donation “nearly half a decade ago.” Even if true, these allegations appear to fall some way short of the standard for recusal set out by the Constitutional Court in Bernert v ABSA Bank.
The SCA has rejected an application for leave to appeal in the case of Groundup News NPC and Others v South African Legal Practice Council and Others, thereby meaning that the LPC must properly investigate a complaint against a lawyer accused of forging court documents. (See the discussion of the high court judgment in our May 2023 note).
Former President Zuma’s attempt to appeal the decision to enforce the invalidation of his private prosecution against Billy Downer and Karyn Maughan has been dismissed by the Constitutional Court. The SCA has dismissed an application for leave to appeal the high court judgment setting aside the Zimbabwean Exemption Permits program (see our June 2023 note for discussion of the high court judgment).
- Judicial independence and governance
A puzzling development at the Constitutional Court began with media reports that retired Justice Zak Yacoob was fulfilling a role at the Constitutional Court, in dealing with applications for leave to appeal. The OCJ initially attempted to clarify the role by explain that Justice Yacoob – as well as fellow retired Justice Johan Froneman – had been brought in to assist the court with its increasing workload, by reading new applications referred to him and preparing a draft memorandum which would then sent to the Chief Justice, and then to a serving Justice, who would be free to adopt the memorandum, or write their own. The OCJ emphasised that the retired justices did not take part in the adjudication of cases but rendered “only a support service to the Justices of the Constitutional Court and to the Constitutional Court”.
After further concerns were raised, including by FUL and CASAC, highlighting the potential circumvention of Constitutional constraints on the extension of judicial tenure and the danger of undue influence caused by the status of retired judges, the Chief Justice appears to be backtracking, indicating that the scheme was at a “trial stage”, and that it was to be reviewed at a forthcoming meeting – and would be “likely to be discontinued” if it was found not to be effective.
The transformation of the legal profession has long been a burning issue in South Africa, and it received unexpected attention when a judge questioned the racial composition of the teams of lawyers appearing in a case before him. According to reports, Gauteng High Court judge Mandlenkosi Motha sent an e-mail to the four advocates requiring “that both legal teams in the case make a 10-minute presentation about the “failure to have even a single black lawyer in this matter”” and questioning whether this amounted to a violation of section 9 of the Constitution. It was reported that the judge subsequently withdrew the requirement of a hearing, but sought written argument on “the court’s concern, namely the possible violation of section 9.2 of the Constitution, due to the failure to have a black advocate in this case”.” It was also reported that one of the advocates had declined to submit the requested written argument, instead submitting a memorandum to the judge, which described the judge’s actions as “totally inappropriate and unbecoming the office of a judge” and argued that a judicial officer “may not and should not descend into the arena of politics.”
The incident has drawn mixed reactions. The state attorney, which briefed counsel for one of the parties to the case (ironically, the Broad-Based Black Economic Empowerment Commission) has been quoted as saying that it chose white lawyers on the grounds of experience and “irrespective of their colour of skin”, and characterised the judge’s demand for an explanation as “impermissible”. The Pretoria Society of Advocates denied reports that it had described the judge’s action as “inappropriate and indecent”, noting that the matter was “currently under consideration.” NADEL has supported the judge’s approach, arguing that “the legal profession remains highly untransformed” and that “a judge is entitled, if not obligated, to question the lack of black counsel in our courts.” It praised Judge Motha for “underscore[ing] a judicial commitment to transformation”. The Pan African Bar Association of South Africa (PABASA) also supported the judge’s action, and emphasised the link between briefing patterns and judicial appointments,
With the election date set for 29 May, it is to be expected that the judiciary will be caught in political crossfire. Unsurprisingly, former President Zuma has been one of the first politicians to target the judiciary. Zuma was quoted as advocating for changes to the Constitution because it is “unfair to African people” and claiming that he had been imprisoned in 2021 without committing a crime. To illustrate the skepticism that should be attached to these remarks, they were delivered at the church of a bishop who is currently on trial for the alleged rape of seven women.
- Articles
As would be expected, the imminent removal of judges Hlophe and Motata from office attracted considerable comment. A City Press editorial confronted allegations (including by EFF MP Busisiwe Mkhwebane) that the process was tainted by racism:
“Both Hlophe and the EFF should be taken to task for implying that black members of the judiciary, which is already under attack by crooked politicians, have been captured by nefarious forces out to stop black excellence. …
In many cases, black people still have to work twice as hard to excel in traditionally white spaces, overcoming all the obstacles of our past. It is an insult to those who do so with integrity when those caught with their pants down suddenly pull the race card as a fight back strategy.”
Writing for News24, Karyn Maughan also discusses the role that allegations of racism played in the complaints against both judges. Noting that both judges had attempted to deflect the complaints against them with allegations of racism, and that MPs defending them in speeches preceding the vote had attempted to “desperately push the manifestly false narrative that demanding accountability from black judges was, inevitably, racist”, Maughan notes that no evidence was produced to substantiate any of these claims of racism, and argues that:
“This kind of blunt-force trauma silencing is nothing new. Courts that do not rule in favour of the EFF and their RET-aligned cohorts are “captured”, journalism that reports on their alleged corruption is “Stratcom”, and black professionals who point out their manifest inconsistency are “clever blacks” and “puppets”.
This is a strategy that never seeks to engage with the merits of allegations and is disinterested in facts.
Worse still, it weaponises racism – prejudice that dehumanises people on the basis of race – and uses it to make victims out of very powerful people, while delegitimising the experiences of the disempowered and vulnerable.”
The Serjeant at the Bar column describes the Hlophe impeachment as “a moment of great sadness and constitutional importance”, describing Hlophe as “a legal talent, unlike many judicial appointees, trained in precise legal writing and complex research”, who was a “path breaker”. The article attempts to trace “where it all began to go wrong”, and discussed Hlophe’s “racism report”, commenting that:
“while there was merit in some of his account and hence he had doubtless encountered racism in his tenure as Judge President, his own conduct and certain egregiously untransformed judgments (the eviction of thousands of poor people from Joe Slovo township overturned by the Constitutional Court is one such example) gave fertile ground to legitimate critics.”
The article notes that the saga highlights “warning signs”, such as the JSC’s longstanding and lamentable failure to deal with the complaint against Hlophe, and highlights the:
“perpetuation of a populist narrative in terms of which John Hlophe was defended as the great transformer, no matter the content of some of the judgments he wrote, the turbulence on his Bench or the fact that other Judges President had been far more successful in judicial transformation. ”
The perpetuation of these claims during the parliamentary debate, the article concludes, is:
“a warning sign, as the national election looms, that there are politicians who place populist rhetoric above fidelity to the Constitution and who care little about the development of a body of jurisprudence that promotes societal welfare by way of legal development, particularly the fashioning of the legal system to ensure rights for the millions living on the margins.”
FUL have also written an op-ed on the judges’ removal, setting out the history of the complaints, and emphasizing the need for reforms to the process of dealing with complaints.
Writing on the controversy over Judge Motha’s questioning of all-white legal teams, Pierre De Vos argues that:
“the (at the very least) incestuous practice of appointing all-male and all-white legal teams breeds (or perpetuates) a special kind of elite mediocrity. The only people who seem to be oblivious to this problem are those who benefit from it.
The failure of attorneys and their clients, as well as advocates, to take active steps to address briefing patterns skewed by race and gender is also bad for the legal system in general and the judiciary more specifically. It deprives many talented black and women lawyers of the opportunities and experience that would better prepare them for a judicial role, thus either making it more difficult for them to be appointed in the first place, or setting them up for possible failure if they were lucky enough to be appointed.”
ENDS
