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 JSC interviews for candidates for vacancies on the Constitutional Court, Electoral Court, and High Court took place at the beginning of the month. The JSC was again unable to list enough candidates for the President to make an appointment to the Constitutional Court in terms of section 174(4) of the Constitution. One of the candidates, Matthew Chaskalson SC, withdrew before the interviews, meaning that the JSC would have had to list all four of the candidates interviewed to meet the requirements of section 174(4). Unfortunately, many commissioners had obvious reservations over the candidacy of Professor Bilchitz, centering around his limited prior adjudicative experience, and on a 2019 article he had written about the Israel/Palestine conflict.
As we have previously discussed (see here and here). Professor Bilchitz is serving as an acting justice as part of an initiative announced by the Chief Justice to broaden the pool of candidates, to address the serious problem of a lack of candidates for the court. The Chief Justice expressly stated at the time these measures were announced that he would expecting those appointed to act under this scheme to make themselves available for permanent appointment. However, the reservations expressed by several commissioners about Professor Bilchitz’s judicial experience raise uncomfortable questions about whether he and similarly placed candidates are effectively being “set up to fail” by being encouraged to put themselves forward for permanent appointment in circumstances where a majority of the JSC clearly feels that they are not ready.
The scheme therefore will need more fine-tuning (see also the discussion in section 5 regarding the appointments of academics to the court). But the bottom line is that the vacancy will now have stood open for three years (since October 2021) before the next opportunity to fill it comes around in October 2024.
As we have previously noted, the issue of case backlogs at the Constitutional Court has been a matter of serious concern, and unsurprisingly was the subject of questions to the candidates. Suggestions that the Constitutional Court merge with the SCA did not find favour with the candidates.
The JSC was also unable to recommend an appointment to the Electoral Court – an unfortunate situation so close to the national elections. Judge Zeenat Carelse was appointed as the Land Court Judge President, and magistrate Andrew Reddy was recommended for appointment to the North West High Court.
The JSC has been commended for the level of focus on candidates’ judgments and jurisprudential outlook, and for focusing “almost exclusively on the candidates’ qualities and suitability, without the dreaded political sideshows.” Whilst there were not any examples of the egregious mistreatment of candidates seen in some previous rounds, and some commissioners rigorously probed jurisprudential questions to the extent that even seasoned candidates struggled to respond convincingly, there do continue to be serious time keeping issues. This was most striking on the first day, when the JSC was only able to complete one interview (that of Professor Bilchitz) before adjourning. This practice raises a red flag for the forthcoming round of interviews, as discussed below.
FUL published an op-ed previewing the interviews, highlighting concerns about the JSC’s failure to follow the 2022 criteria in practice, and emphasising the importance of the Constitutional Court vacancy being filled.
A date has finally been set for the interviews of candidates to fill the vacancies on the Supreme Court of Appeal which were left open following the October 2023 interviews, in terms of the settlement of litigation brought by FUL against the JSC. The number of vacancies has in fact increased from two to three, presumably because of Justice Carelse’s appointment to the Land Court creating an additional vacancy. Ten candidates have been shortlisted. These include five candidates who were unsuccessful in the October 2023 round (judges Masipa, Mjali, Siwendu, Smith and Unterhalter), two candidates who did not stand in that round but have previously bene unsuccessful (judges Baartman and Koen), and three who are first time candidates for the SCA (judges Coppin, Keightley, and Windell). The OCJ’s announcement states that the candidates will all be interviewed on 20 May, which seems completely unrealistic, considering that as we have seen, the JSC took an entire day’s sitting over just one interview in the April 2024 sitting. The fact that the interviews are scheduled to take place just over a week before the national elections must also raise concerns about the potential availability of those commissioners from the political branches of government.
South Africa is not unique in experiencing challenges relating to judicial appointments. The appointments process in Zimbabwe has been the subject of criticism that, whilst the 2013 Constitution was intended to create greater accountability and public participation in the appointments process, the JSC has committed a series of errors which violate the Constitution and undermine the integrity of the judiciary. These errors are said to include a demand, without legal basis, that candidates submit medical records; and a refusal to disclose the results of aptitude tests undertaken by aspirant judges.
- Judicial Conduct
Compared to recent months, April has been quiet as far as conduct proceedings are concerned. The judicial conduct tribunal dealing with the complaint against Eastern Cape Judge President Selby Mbenenge has been convened. It will comprise of former Gauteng Judge President Bernard Ngoepe, retired Gauteng High Court judge Cynthia Pretorius, and advocate Mashaba SC. It is not yet known when the tribunal will commence hearings.
Judge Lebogang Modiba, of the Gauteng High Court and President of the Special Tribunal, has been reported to the JSC for an alleged failure to give reasons for the setting aside of a tender by the Special Tribunal. It is also reported that the complaint accuses the judge of being “hostile” and taking a “strong and, at times, belligerent tone” with the complainant’s legal representative in response to attempts to obtain a written judgment.
- Significant cases
Undoubtedly the most significant case of the month was the Electoral Court’s decision, in Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others, to overturn the Independent Electoral Commission (IEC)’s decision to uphold an objection to the candidacy of former President Jacob Zuma for the MK party.
The objection was based on section 47 of the Constitution, which excludes from eligibility for the National Assembly anyone who is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine. The section includes the proviso that such person may not be regarded as being sentenced until an appeal against conviction or sentence has been determined, or the time for appealing has expired. The disqualification ends five years after completion of the sentence. Zuma had been convicted of contempt of court for failing to comply with an order of the Constitutional Court to appear before the Commission of Inquiry into allegations of state capture. Zuma had however benefitted from a special remission which affected his sentence and resulted in his serving under 3 months of his 15-month prison sentence.
The Electoral Court handed down its order on 9 April. The decision naturally sparked intense public interest. FUL issued a statement urging that the court provide reasons for the decision as a matter of urgency, mindful of the intense and potentially harmful public speculation that was likely to follow.
On 26 April, reasons for the decision were finally given. Whilst unanimous regarding the outcome, the Electoral Court divided regarding the reasoning. The main judgment by Zondi JA, the President of the court (with Modiba J, Yacoob AJ and additional members Ntlama-Makhanya and Phooko concurring), found that the sentence imposed on Zuma did not qualify as a sentence contemplated by section 47, seemingly (the reasoning in the judgment is far from comprehensive) on the basis that as the sentence was imposed by the Constitutional Court, there was no possibility for appeal:
“[T]he conviction and sentence do not take effect until the appeal process has taken place alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence. In my view the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates.”
Arguments that the IEC lacked standing to make a finding of eligibility regarding membership of the National Assembly under section 47; that a commissioner was biased; that Zuma had not been convicted as contemplated by the section due to the nature of contempt proceedings; and that the remission had extinguished the remainder of Zuma’s sentence were rejected.
In a separate judgment, Modiba J (with the two additional members concurring) held that the remission constituted a reduction of sentence (a finding rejected in Zondi JA’s judgment). Yacoob AJ wrote a further separate judgment disagreeing with Modiba J’s finding on the effect of the remission of sentence.
The decision has been subject to fierce criticism. The Professor Balthazar column describes it as “based … on legal quicksand”, and “ not only disappointing … this kind of judgment can only erode confidence in the judiciary’s ability to maintain its hard-won reputation as a custodian of the Constitution.” On the merits of the decision, the column argues that as there is no right of appeal from a sentence imposed by the Constitutional Court, the caveat in section 47 regarding appeals is inapplicable. The column also points out the anomaly of the two additional members concurring in both the judgments of Zondi JA and Modiba J, when, as we have seen, the judgments come to different conclusions on the effect of the remission of sentence.
An appeal against the decision was heard by the Constitutional Court on 10 May.
Meanwhile, Zuma’s private prosecution of Billy Downer and Karyn Maughan has been removed from the roll by the KwaZulu-Natal High Court, pending the outcome of an appeal to the Constitutional Court against the setting aside of the prosecution.
The Constitutional Court has finally handed down its first judgments of the year. An additional factor in the long delay was revealed at the beginning of the first judgment, where Rogers J states that the writing of the judgment had been assigned to him “following the unfortunate indisposition” of Van Zyl AJ, who was to have written the judgment, and expresses the Court’s regret for the resultant delay. As of the end of April, the Court had handed down four judgments – one of which has prompted concerns about the judiciary in general (see section 5 below).
In Centre for Child Law and Others v South African Council for Educators and Others, an application had been brought to review and set aside a decision by the South African Council for Educators (SACE) in disciplinary proceedings against two educators who had assaulted children in a school environment. The high court dismissed the application to set aside the decisions of the disciplinary hearings on due to undue delay but granted relief ordering SACE to reconsider and revise its mandatory sanctions.
On appeal, the SCA (per Tolmay AJA, Nicholls, Mbatha and Mothle JJA and Mbhele AJA concurring) found that there had been no unreasonable delay in bringing the application, and rejected SACE’s argument that the appeal was moot. The court held that the decisions in the disciplinary proceedings violated numerous provisions of PAJA, including a lack of procedural fairness due to the affected learners and their parents not being heard or otherwise participate in the proceedings. Furthermore, the decisions were influenced by an error of law in failing to consider provisions of the Constitution and the Children’s Act relating to the best interests and protection of the rights of children. The lack of discretion allowed when sanctions were imposed also rendered the decisions capricious and arbitrary. The decisions and sanctions were set aside and remitted to SACE for reconsideration.
The SCA in Makwakwa and Others v Minister of State Security overturned a decision by the high court to interdict the appellant from publishing an intelligence report compiled by the State Security Agency (SSA). The SCA (per Makgoka JA, Weiner and Goosen JJA and Chetty and Masipa AJJA concurring) found that the Minister had not observed the requisite good faith required in ex parte proceedings, identifying a misrepresentation (over the report’s classification) and five material misstatements made during the ex parte proceedings. The SCA further found that the high court had erred in not looking beyond the classification of the report, and that no case had been made out for considerations of national security militating against the report’s publication.
In Poulter v CSARS, the Western Cape High Court had to determine whether the tax court qualified as a court of law. The issue arose following orders made by the tax court without hearing the taxpayer (who was absent from the proceedings) or her father, who had sought an audience as her authorised representative. This was denied on the grounds that as he was not a legal practitioner, the father was not entitled to appear.
Binns Ward J (Nuku and Slingers JJ concurring) held that it did not:
“Whether the Tax Court possesses the discretionary power to permit lay representation in the course of regulating its own procedures depends on whether it is a superior court within the common law’s understanding of the concept, i.e. a court with inherent jurisdiction to regulate its process and procedure and develop the common law. Such courts are undoubtedly ‘courts of law’. The Tax Court is certainly not one of the courts to which s 173 of the Constitution applies.”
Binns Ward J considered the position under foreign law and the structure of the South African judicial system, and found that a “court” under section 166(e) of the Constitution referred to a “court intended by Parliament to be part of the country’s ‘judicial system’”, and not to “a tribunal intended to serve an administrative purpose, even if it is labelled as a ‘court’ by the legislation in terms of which it is established.” Binns Ward J found further that the characteristics of the tax court:
“impel the conclusion that its function is essentially that of an administrative tribunal. The fact that it has been established as a ‘court’ and that it is called upon to discharge its functions in a judicial manner and appropriately constituted to be able to do so do not negate its role essentially as an administrative-decision maker. That role positions the Tax Court outside the judicial system provided in s 166 of the Constitution and confirms that tax courts are not courts of law.”
Binns Ward J found that the legislation establishing the tax court did not exclude the representation of a taxpayer by a non – legal practitioner, and that the tax court had therefore misdirected itself in refusing to entertain the appearance by the taxpayer’s farther. The tax court’s order was set aside, and the case remitted.
As this note was being finalized, the SCA delivered a notable judgment in The DPP Western Cape v Bongo. The respondent, a member of parliament, had been charged with corruption relating to alleged conduct to provide gratification to a legal advisor in the office of the speaker of Parliament, in order to delay or halt an enquiry by a Parliamentary Portfolio Committee into the affairs of Eskom. At the trial, Hlophe JP granted the respondent’s application for a discharge at the conclusion of the state’s case, and dismissed an application by the state to reserve various questions of law.
The SCA (per Smith AJA, Zondi, Mbatha and Gorven JJA and Keightley AJA concurring) overturned the trial court’s decision, finding that Hlophe JP had made “several mistakes of law.” The SCA found that Hlophe JP had incorrectly applied the elements of the offence of corruption, and that there could:
“hardly be a more straightforward and unambiguous account of the unlawful offering of gratification to a public officer in order to induce him to perform a proscribed act. That the trial court was oblivious to this unequivocal and overt evidence of the commission of the crime of corruption can only be ascribed to its fundamentally erroneous understanding of the elements of that crime.”
Hlophe JP had, the SCA found, come to the “erroneous view” the crime of corruption could only be established if there had been an offer of “a specific sum of money as gratification”, which conflicted with established legal principles, and was “oblivious of the purposely wide definition” of “gratification” in the Prevention of Corruption and Corrupt Activities Act (PRECCA). The trial court’s finding was accordingly “manifestly wrong.”
The SCA further found that Hlophe JP’s finding that an affidavit made by the respondent in proceedings before the Parliamentary Ethics Committee constituted a previous consistent statement with probative value constituted a material misdirection. The respondent’s discharge was set aside, and the case was remitted for a new trial.
Concerns about slow delivery of judgments are not restricted to the Constitutional Court. The Reserved Judgment Report for the last term of 2023 reveals that 236 judgments were outstanding for at least six months.
A valuable interactive database has been launched by the University of Cape Town’s Centre for Law and Society and iNtaka Centre for Law and Technology, allowing for the tracking and monitoring of statistics relating to the work of the Constitutional Court.
The repeal of the offence of criminal defamation, as highlighted in an earlier note, has now taken effect, with the Judicial Matters Amendment Act of 2023 being signed into law.
- Judicial independence and governance
Judge Modiba has again been in the news, this time for allegedly interfering in the recruitment process for a registrar at the Tribunal, it being reported that she “instructed staff at the Department of Justice and Constitutional Development not to fill the post because she had a preferred candidate, who she would mentor.”
This is not the first time that an issue such as this has arisen. In the April 2021 JSC interview of Judge Soma Naidoo for Deputy Judge President of the Free State High Court, an objection was raised over the role the judge had played in the appointment of a judges’ secretary. The incidents suggest that there may an underlying issue with how judges’ perspectives are taken into account (or not) in the recruitment of court staff.
A useful pre-election article by Groundup examines the positions of major political parties regarding the backlog of judgments in the courts. Notable points include the Democratic Alliance proposing electronic document management and the establishment of municipal courts; the EFF suggesting strengthening the JSC to speed up the judicial appointments process, expanding judicial training programs, establishing specialized commercial crime courts, and modernizing the criminal justice system; the IFP would strengthen the NPA and establish a range of specialized courts; the FF Plus would increase the budget allocation to the judiciary; ActionSA commits to increasing court capacity by acquiring and building more court facilities, as well as establishing more specialized courts and expediting investigations and prosecutions; the PA proposes greater use of online courts and the penalizing of delaying tactics; and Rise Mzansi favours the establishment of integrated IT systems, specialized courts, and exhorts the judiciary to deal with ‘Stalingrad’ delaying tactics.
- Articles
In the wake of the Constitutional Court interviews, the Daily Maverick’s Professor Balthazar column considers the issue of academics as candidates for the Court. After tracing the history of previous candidates from academic backgrounds, the column notes the difference in context in terms of judicial transformation and the Court’s jurisdiction compared to the situation in the 1990’s, and argues that:
“[C]onsideration should be given, in exceptional circumstances, to the appointment of an academic to the highest court in South Africa. Far preferable, however, is for a talented academic lawyer to be given an opportunity to act on the high court and gain forensic experience before elevation to the Constitutional Court. …
The key question is whether the academic applicant is of so exceptional a kind that his or her lack of any judicial experience can justify an appointment to the highest court in the land where issues of company law, competition law, tax law, contract law ad delict, for example, constitute a significant part of the cases dealt with by the Constitutional Court.”
The column concludes that the high court, rather than the Constitutional Court, should be “the forum for seeking to mine unproven talent”.
Another Professor Balthazar column criticises the Constitutional Court’s judgment in Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another, on the grounds that it is “overwritten, not particularly clear and compares unfavourably to the lucid and well written and reasoned approach of the [Competition] Tribunal”. The column argues that:
“the right result was reached in circumstances where the lack of clarity, duplication of reasoning with a multitude of justifications for its order being offered will present problems for lower courts seeking to divine the appropriate test. What has happened to compliance with the canons for writing judgments – brevity, simplicity, and clarity?”
The column suggestions that the answer to this question can be found in the judicial appointments process, and in particular the manner in which the JSC has conducted interviews, which is said to have resulted in “many of the best of our judges and legal practitioners are reluctant to be nominated for judicial office”, and to have rendered the JSC “an obstacle rather than a promoter of judicial excellence.” The column concludes that a reduction in size of the JSC, including a reduction in the number of politicians, is necessary to “promote the resilience of the constitutional project”.
The complaint against Judge President Mbenenge highlights the issue of sexual harassment in the courts. Zikhona Ndlebe and Jenna Maujean write that despite high profile allegations of sexual harassment, including in the magistracy, the Chief Justice “has not appeared to prioritise the introduction of a sexual harassment policy during his tenure”, noting that despite a February 2023 announcement of the establishment of a committee to draft an ani-sexual harassment policy, no such policy appears to have been produced.
Writing before the release of the court’s first judgments of the year, Nurina Ally and Mbekezeli Benjamin raise concerns about the “unprecedented” delay in the Constitutional Court handing down judgments in 2024, noting that at the equivalent stage of the two preceding years, the court had handed down ten and “at least 13” judgments. Ally and Benjamin note that measures suggested to deal with the crisis “have not inspired confidence”, and express reservations about a comment by the Chief Justice (in the 2023 judgment in Mmabasotho Christinah Olesitse N.O. v Minister of Police) that in certain cases, a short “statement” of reasons may be provided, rather than a full judgment. The authors note that:
“it would be a novelty for this to be done in cases that have been set down for a full hearing. After all, if a matter is considered important enough to be placed on the court’s roll, one would assume it at least deserves a reasoned opinion.”
Ally and Benjamin caution that the ‘democracy and accountability-reinforcing role of the court is diminished when debate and disagreement are sacrificed at the altar of efficiency” – particularly when there are no discernable efficiency gains in the first place. The authors conclude that structural changes are necessary, “to ensure the efficient administration of justice, and to uphold the court’s role as a forum for reason.”
Responding to an earlier article by Stephen Grootes, which drew on remarks by former Finance Minister Trevor Manuel to advocate for reducing presidential powers in South Africa, Bhaso Ndzendze and Dan Mafora argue against weakening presidential powers, and suggest that “[i]mposing additional (and unnecessary) procedural hurdles on the exercise of executive power, which is meant to be the most agile of the three kinds of constitutional powers, would likely worsen governance and not improve it.” They further argue that weakening presidential powers to make appointments would weaken the ability of the electorate to hold the president and their party accountable.
In an analysis of 30 years of South Africa’s Constitutional Democracy, the Serjeant at the Bar column cautions that there are “warning sings flashing” with “forces that seek to undermine the Constitution … growing.” Concern is expressed that the “fragility of the institutions that promote and protect democracy” – notably the National Prosecuting Authority – “provide[] an ominous prediction of the future.” The JSC is again criticised for conducting itself in a manner which has resulted in a “paucity of talented lawyers across the demographic spectrum who have made themselves available as candidates for judicial office”, resulting in a judiciary which is, “in the main … at its weakest in the past decade.” The column concludes that:
“[T]he failure of the government … to implement economic policies that meaningfully address the poverty of millions and the growing levels of stark inequality has manifestly created the breeding ground for populist politics and an anti-constitutional discourse.
The weakness of key institutions that were designed to promote the Constitution and its vision constitutes a growing threat.
One cannot help thinking that the 29 May is going to be an inflection point – a continuation of the constitutional journey or a wild ride into populist destruction of the hope the nation held in 1994.”
ENDS
