This briefing note seeks\u00a0 to provide a short overview of significant events in\u00a0 the\u00a0 preceding month, relating to Freedom Under Law\u2019s work on the judiciary and the\u00a0 rule of law. The note aims to provide a short overview of key issues, with links to\u00a0 underlying documents and articles where they are available. It is not intended to\u00a0 provide a comprehensive analysis of all the issues raised.\u00a0<\/p>\n\n\n\n
1. Judicial Appointments <\/strong><\/p>\n\n\n\n As noted in last month\u2019s newsletter FUL is bringing an application to review the JSC\u2019s 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\u2019s October sitting, although some analysis of the interviews by other writers is included in section 5. <\/p>\n\n\n\n The Presidency has announced the formal appointment of the candidates recommended by the JSC at the April sitting. <\/p>\n\n\n\n Judge President Waglay of the Labour and Labour Appeal Court has retired from active service. The vacant position had been advertised for the JC\u2019s April 2024 sitting. <\/p>\n\n\n\n 2. Judicial Conduct <\/strong><\/p>\n\n\n\n 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\u2019 removal with a supporting vote of at least 2\/3rds of its members. It appears that the vote will take place next year. <\/p>\n\n\n\n Freedom Under Law has welcomed the Committee\u2019s decision. <\/p>\n\n\n\n The tribunal hearing the complaint against Judge Makhubele reconvened but was\u00a0 again\u00a0 postponed,\u00a0 this\u00a0 time\u00a0 until\u00a0 January\u00a0 2024.\u00a0 Once\u00a0 again,\u00a0 the\u00a0 issue\u00a0 was\u00a0 the\u00a0payment\u00a0 of\u00a0 Judge\u00a0 Makhubele\u2019s\u00a0 legal\u00a0 fees. In\u00a0 granting\u00a0 the\u00a0 postponement,\u00a0 the\u00a0 chairperson of the tribunal indicated that if Judge Makhubele was still not ready\u00a0 to\u00a0 proceed,\u00a0 she\u00a0 would\u00a0 have\u00a0 to\u00a0 interdict\u00a0 the\u00a0 tribunal\u2019s\u00a0 proceedings \u2013 in\u00a0 other\u00a0 words, no further postponements would be granted. It remains to be seen whether\u00a0 the proceedings will indeed be completed in time to allow the tribunal to achieve\u00a0 its avowed goal of reporting to the JSC in time for the JSC\u2019s April 2024 sitting. It\u00a0 must be\u00a0 said\u00a0 that\u00a0 the\u00a0 trajectory\u00a0 of\u00a0 the\u00a0 matter\u00a0 to\u00a0 date\u00a0 makes\u00a0 this\u00a0 target\u00a0 look\u00a0 distinctly ambitious.\u00a0<\/p>\n\n\n\n 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 \u201cas long as the National Prosecuting Authority is saying it has got enough evidence to justify prosecuting him\u201d. This was in response to a question about \u201cwhether there was a point in prosecuting Zuma on graft charges dating back to 2005.\u201d 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. <\/p>\n\n\n\n The Council for the Advancement of the South African Constitution (CASAC) released a statement describing the Chief Justice\u2019s comments as \u201cunfortunate and ill-advised\u201d, and expressing concern that: <\/p>\n\n\n\n \u201cWith his comments on contentious political issues, the Chief Justice may\u00a0 be perceived as wading into\u00a0 the public discourse about partisan politics\u00a0 and potentially bringing his impartiality (and\u00a0 that of his colleagues) into\u00a0 question at a time of fierce political contestation ahead of the 2024 general\u00a0 elections.\u201d\u00a0<\/em><\/p>\n\n\n\n Some analysts have expressed sympathy with the Chief Justice\u2019s frustrations over the handling of the state capture report\u2019s 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\u2019s 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. <\/p>\n\n\n\n Allegations of corruption have led to a regional court president in KwaZulu-Natal facing trial over allegations that he \u201csought and accepted gratifications to the tune of R238 260 from attorneys he recommended for the acting [magistrates] positions between 2012 and 2015.\u201d <\/p>\n\n\n\n The issue of delayed judgments has also featured regularly in these notes over the\u00a0 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\u00a0 for\u00a0 the apparently\u00a0 poor\u00a0 state\u00a0 of\u00a0 its\u00a0 website\u00a0 making\u00a0 it\u00a0 difficult\u00a0 to\u00a0 determine\u00a0 the\u00a0 status\u00a0 of\u00a0 cases.\u00a0 According\u00a0 to a GroundUp <\/em>report,\u00a0 of\u00a0 the judgments\u00a0 the\u00a0 Constitutional\u00a0 Court\u00a0 has\u00a0reserved since August 2022 and subsequently handed down, ten were late when\u00a0 measured by Groundup<\/em>\u2019s six month benchmark \u2013 with 19 qualifying as late under\u00a0 the three-month benchmark of the judicial norms and standards\u00a0\u00a0Freedom Under Law has released a statement expressing concern about the issue,\u00a0 and urging the court\u2019s leadership to address the matter urgently.\u00a0<\/p>\n\n\n\n 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 \u201ccreating anxiety\u201d, since the \u201cIEC could only finalise plans for the elections once the judgment had been handed down.\u201d GroundUp <\/em>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\u2019s note). <\/p>\n\n\n\n Groundup\u2019s <\/em>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. <\/p>\n\n\n\n In an unusual development, it was reported that former Northern Cape Judge President Frans Kgomo is suing politician John Block and two of Block\u2019s legal representatives for defamation. This relates to an allegation, made during Block\u2019s corruption trial, that Judge Kgomo had instructed the presiding judge to \u201cconvict the bastard\u201d, 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\u2019s October sitting. The issue had been raised in earlier interviews, but more recently the JSC appears to have lost interest in it. <\/p>\n\n\n\n 3. SigniKicant cases <\/strong><\/p>\n\n\n\n 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<\/sup> 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<\/sup> <\/p>\n\n\n\n 1 <\/sup>Minister of Justice and Constitutional Development and Others v Ntuli (Judicial Inspectorate for Correctional services intervening as amicus curiae) <\/em>(539\/2022) [2023] ZASCA 146 (8 November 2023). <\/p>\n\n\n\n 2 <\/sup>Paragraphs 1 \u2013 2; 8.<\/p>\n\n\n\n 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 <\/sup>However, the policy\u2019s 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 <\/sup>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: <\/p>\n\n\n\n \u201cWhat matters is whether the ability of a prisoner to pursue their chosen\u00a0 course of study would benefit from access to a personal computer during\u00a0 periods of time when a prisoner is confined to their cell. If there is such a\u00a0 benefit, its removal infringes the right of a prisoner to further education.\u00a0 \u2026\u201d5<\/sup>\u00a0<\/em><\/p>\n\n\n\n A twelve-month period to re-formulate the policy was granted, with an interim order allowing computer use subject to certain restrictions.6<\/sup> <\/p>\n\n\n\n In S<\/em>avoi and Others v National Prosecuting Authority and Another, <\/em>7 <\/sup>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 <\/sup>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 <\/em>consideration of the documents alleged to be privileged.9<\/sup> Such proceedings would allow representatives of the respondents to view the contested documents under conditions of confidentiality, and the procedure was \u201carguably less drastic\u201d than a \u201cjudicial peek.\u201d The court emphasised that as in camera <\/em>review was a deviation from the general principles of the administration of justice, it was a discretion which had to be exercised \u201cjudiciously.\u201d10<\/sup> <\/p>\n\n\n\n Factors which would determine whether it was in the interests of justice to allow\u00a0 such a procedure could include the purpose for which the court must consider the\u00a0 relevant documents, and the consequences for the parties if the documents were\u00a0 made public. In the circumstances of the Savoi <\/em>case, the court found that, without\u00a0 an in camera <\/em>review, the applicants would be\u00a0 forced to choose between dealing\u00a0 with\u00a0 the\u00a0 documents\u00a0 in\u00a0 open\u00a0 court,\u00a0 or\u00a0 \u201cdrastically\u00a0 weakening\u201d\u00a0 their\u00a0 case\u00a0 for\u00a0 a\u00a0\u00a0permanent stay by arguing that professional privilege had been breached, without\u00a0 giving the court sight of the documents.11<\/sup>\u00a0<\/p>\n\n\n\n 3 <\/sup>Paragraphs 12 \u2013 14. <\/p>\n\n\n\n 4 <\/sup>Paragraph 23. <\/p>\n\n\n\n 5 <\/sup>Paragraph 24. <\/p>\n\n\n\n 6 <\/sup>Paragraphs 35 \u2013 36. <\/p>\n\n\n\n 7 <\/sup>(CCT 146\/22) [2023] ZACC 38 (28 November 2023). <\/p>\n\n\n\n 8 <\/sup>Paragraphs 2, 18. <\/p>\n\n\n\n 9 <\/sup>Paragraphs 19 \u2013 20. <\/p>\n\n\n\n 10 <\/sup>Paragraph 24.<\/p>\n\n\n\n The court emphasised that the secrecy involved in an in camera <\/em>review of allegedly privileged documents was not \u201cabsolute and irreversible\u201d, 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 <\/em>proceedings was kept and made available to the parties and the public if it was subsequently determined that the documents were not privileged.12<\/sup> <\/p>\n\n\n\n Groves N.O. v Minister of Police<\/em>13 <\/sup><\/em>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<\/em>, 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<\/sup> <\/p>\n\n\n\n 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\u2019s fate.15 <\/sup>The court found that there was no discrepancy in the use of the words \u201cmay\u201d and \u201cshall\u201d in sections 43 and 44 of the Criminal Procedure Act. <\/p>\n\n\n\n Section 43(2) imposed a positive duty to arrest the person identified in a warrant using the word \u201cshall\u201d, which did not grant a discretion. Section 44 provided that a warrant \u201cmay\u201d 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<\/sup> <\/p>\n\n\n\n 4. Regional news <\/strong><\/p>\n\n\n\n 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\u2019s agenda is a positive first step towards greater commitment to judicial independence on the continent. <\/p>\n\n\n\n 5. Articles <\/strong><\/p>\n\n\n\n The Daily Maverick\u2019s Professor Balthazar column discusses the JSC in the wake of\u00a0 the controversy over the October SCA appointments. Describing the JSC as having\u00a0\u00a0\u201cconsistently failed to fulfil its core constitutional obligations\u201d, which \u201cimperils the\u00a0 future of an independent, resilient judiciary committed to the independence and\u00a0 transformation\u00a0 of\u00a0 the\u00a0 South\u00a0 African legal\u00a0 system\u201d,\u00a0 the\u00a0 column details the\u00a0 JSC\u2019s\u00a0 reasons\u00a0 for\u00a0 its decisions\u00a0 to\u00a0 appoint\u00a0 and\u00a0 not\u00a0 appoint\u00a0 candidates\u00a0 to\u00a0 the\u00a0 SCA,\u00a0 as\u00a0 expressed in its response to a request from CASAC.\u00a0<\/p>\n\n\n\n 11 <\/sup>Paragraph 25. <\/p>\n\n\n\n 12 <\/sup>Paragraph 26. <\/p>\n\n\n\n 13 <\/sup>(CCT 223\/22) [2023] ZACC 36 (14 November 2023). <\/p>\n\n\n\n 14 <\/sup>Paragraphs 50 \u2013 51. <\/p>\n\n\n\n 15 <\/sup>Paragraphs 52 \u2013 53. <\/p>\n\n\n\n 16 <\/sup>Paragraphs 55 \u2013 56.<\/p>\n\n\n\n The columnist describes the reasons as \u201ca textbook case of irrationality\u201d, and criticizes the JSC\u2019s reasons for deciding to appoint Judge Kgoele, arguing that: <\/p>\n\n\n\n \u201cher interview revealed gaping holes in her legal knowledge. It is difficult\u00a0 to understand how her writing abilities were superior to those of any of the\u00a0 candidates who were not appointed.\u00a0<\/em><\/p>\n\n\n\n The\u00a0 argument\u00a0 that\u00a0 there\u00a0 was\u00a0 symbolism\u00a0 from\u00a0 a\u00a0 transformation\u00a0 perspective\u00a0 conveniently\u00a0 elides\u00a0 over\u00a0 the\u00a0 fact\u00a0 that\u00a0 in\u00a0 at\u00a0 least\u00a0 two\u00a0 cases\u00a0 (judges Phatshoane and Siwendu) the same symbolism would have been\u00a0 achieved by their appointment.\u201d\u00a0<\/em><\/p>\n\n\n\n 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: <\/p>\n\n\n\n \u201cIt is extremely difficult to understand how commissioners at the JSC would\u00a0 vote for a candidate to be appointed and then change their mind and decide\u00a0 they were not sufficiently qualified. The upshot was that three of the four\u00a0 judges who initially received 12 votes were suddenly relegated.\u201d\u00a0<\/em><\/p>\n\n\n\n After criticising the reasons for the non-appointment of Judge Unterhalter, the article concludes that the reasons for only filling two vacancies are \u201crisible\u201d, and advocates for the reconstitution of the JSC, specifically: <\/p>\n\n\n\n \u201cto ensure a reduction of\u00a0 the number of members of\u00a0 the\u00a0 JSC, with\u00a0 fewer\u00a0 politicians\u00a0 to\u00a0 sit\u00a0 thereon\u00a0 and\u00a0 consideration\u00a0 of\u00a0 a\u00a0 smaller,\u00a0 representative\u00a0 body\u00a0 which\u00a0 will\u00a0 apply\u00a0 itself\u00a0 fastidiously\u00a0 to\u00a0 justifiable\u00a0 reasons\u00a0 for\u00a0 appointments or non-appointments.\u201d\u00a0<\/em><\/p>\n\n\n\n FUL board member Professor Hugh Corder had written an op-ed arguing that the\u00a0 removal of judges Hlophe and Motata\u00a0 from office will strengthen South Africa\u2019s\u00a0 constitutional democracy. Corder locates his analysis in the context of threats to\u00a0 constitutional\u00a0 democracy\u00a0 globally\u00a0 and praises\u00a0 the\u00a0 judiciary\u00a0 for\u00a0 having\u00a0 \u201cshown\u00a0 remarkably intelligent, nuanced and resilient commitment to its assigned role in\u00a0 government,\u00a0 despite\u00a0 some\u00a0 challenges\u00a0 within\u00a0 its\u00a0 ranks\u00a0 and\u00a0 in\u00a0 the\u00a0 face\u00a0 of\u00a0 unprincipled,\u00a0 indeed\u00a0 outrageous,\u00a0 vilification\u00a0 from\u00a0 party-political\u00a0 quarters\u00a0 sporadically.\u201d Corder notes that there are those \u201cwho resent being held to account\u00a0 for their unlawful and unconstitutional conduct\u201d, leading to frequent litigation to\u00a0 achieve\u00a0 what\u00a0 cannot\u00a0 be\u00a0 achieved\u00a0 politically,\u00a0 and\u00a0 attempts\u00a0 to\u00a0 undermine\u00a0 the\u00a0 independence and impartiality of the judiciary.<\/p>\n\n\n\n Corder raises the question of what, in this context, protects the judiciary, and suggests that it is the institution\u2019s popular legitimacy, \u201cin the sense that a strong majority of the citizenry must trust the judges and treasure their independence.\u201d 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: <\/p>\n\n\n\n \u201ccan\u00a0 seriously\u00a0 destabilise\u00a0 and\u00a0 rapidly\u00a0 erode\u00a0 public\u00a0 confidence\u00a0 in\u00a0 the\u00a0 institution, so it is vitally important that those (few) who are alleged not to\u00a0 be up to the exacting standards expected of a judge be dealt with fairly and\u00a0 without undue delay.\u201d\u00a0<\/em><\/p>\n\n\n\n Noting that the JSC\u2019s performance in dealing with such matters \u201cis notoriously defective\u201d, 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 \u201ca traumatic moment in our constitutional experience\u201d which \u201cmarks a significant signpost strengthening the state of our constitutional democracy\u201d and will strengthen public confidence in the judiciary. <\/p>\n\n\n\n The role of legal practitioners in fomenting so-called \u201cStalingrad\u201d litigation is also the subject of a Professor Balthazar <\/em>column, which discusses the recent Minister of Home Affairs v Lawyers for Human Rights<\/em>judgment of the Constitutional Court(see discussion in last month\u2019s note). The article comments on the significance of the costs order: <\/p>\n\n\n\n \u201cThere have been many cases in the past which, at least on a reasonable\u00a0 basis\u00a0 (even on\u00a0 the standard of an average LLB student) legal arguments\u00a0 have been advanced that palpably have no merit other than to postpone an\u00a0 inevitable adverse outcome against a litigant.\u00a0<\/em><\/p>\n\n\n\n