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 President has formally appointed Justice Dunstan Mlambo as the Deputy Chief Justice, following the JSC’s finding after last month’s interviews that he was “suitable for appointment” to the position.

The appointment is a welcome step after the position had stood open for almost a year, and it also means that one of the three longstanding vacancies on the Constitutional Court has now been filled. As we noted in last month’s note, the JSC readvertised two vacancies on the Court, and has finally been able to shortlist enough candidates to be interviewed at the October sitting. The shortlisted candidates are Supreme Court of Appeal justices Nambitha Dambuza – Mayosi, Glenn Goosen, and Ashton Schippers, high court judges Ingrid Opperman and Kate Savage, advocate Alan Dodson, and Dr Madumetja Malepe.    

Supreme Court of Appeal justice Vishvanathan Ponnan has retired after 24 years on the bench.    

2. Judicial Conduct

The JSC has resolved to recommend the removal of Judge Makhubele from office, thereby endorsing the finding of the judicial conduct tribunal (see our January 2025 note). The matter will be referred to the National Assembly. If a resolution for removal is adopted with a two-thirds majority, Judge Makhubele will become the third judge to be removed from office under the Constitution, following former judges Hlophe and Motata.

3. Significant cases

In his final judgment before the end of his tenure, Constitutional Court Justice Mbuyiseni Madlanga provided the latest judicial verdict on the “regrettably unending dispute” between Vodacom and Nkosana Makate over the compensation due to Makate for the development of the “Please Call Me” idea. In a unanimous decision, Madlanga ADCJ was notably scathing about the SCA decision under appeal, holding that:

“a court will have failed in its constitutional duties to give the case proper consideration and to give reasons for its decision if the court’s judgment does not contain adequate reasons evidencing such proper consideration.”

Applying this standard, the SCA was held to have breached the rule of law and the right to a fair hearing:

“Unfortunately, I cannot but say that the judgment is thinly reasoned.  At times it is characterised by confusing reasoning.  At other times it is characterised by statements that evince a disregard for or lack of awareness of the facts and issues.”

The SCA majority had been “totally confused” by the application of the Plascon-Evans rule, as a result of which it “failed altogether to address and decide important questions to which the applicability of the rule related”, constituting a breach of the duty of proper consideration. The SCA’s confusion was “symptomatic of a Court that did not appreciate the facts and issues it had to determine”, and it was “guilty of failing to assess evidence or being unaware of evidence that it ought to have assessed.” Furthermore, the SCA had substituted the order of the high court in the absence of a cross-appeal, with the result that it had “decided a case that was not before it and which Vodacom was not called upon to answer.” The case was remitted to the SCA for reconsideration by a differently constituted panel.

It is, needless to say, extremely alarming to see a judgment of the country’s second highest court subjected to such unwavering judicial criticism.

The Constitutional Court has held that the appointment of several Commissioners to the Commission for Gender Equality were invalid due to the National Assembly’s (NA) failure to facilitate reasonable public involvement. The NA had provided online forms with limited opportunity to make comments and published a list of information regarding candidates which excluded CVs. The period for commenting was under a month. In a unanimous judgment, Goosen AJ identified public participation as “a central feature of our democracy” and held that the information provided was insufficient to allow meaningful and effective participation. The time period allowed for comments was also held to be insufficient, and combined with the limited information made available on the candidates, constituted a “further impediment to effective and meaningful public involvement.

In addition, Goosen AJ held that the mechanisms adopted to facilitate public involvement were had failed to allow for effective public participation. The NA had “acted upon an interpretation of POPIA which was manifestly incorrect”.

This is another case in a lengthening line of cases where Parliament has fallen foul of public participation requirements (see the discussion in our June 2023 note), and it is troubling that Parliament continues to fall short on this front.

In My Vote Counts NPC v President of the Republic of South Africa and Others, the Western Cape High Court (per Erasmus, Slingers and Holderness JJ) dismissed a challenge to the constitutionality of provisions of the Political Party Funding Act establishing donation limits and disclosure thresholds for donations to political parties. (For previous discussion of the litigation, see our May 2024 note). The court held that it lacked jurisdiction to consider a challenge to the validity of the public participation process prior to the passing of the Act, on the basis that the matter fell within the exclusive jurisdiction of the Constitutional Court. The court also found that Parliament’s delegation of the power to determine the limit and threshold to the President was constitutional.

The court further rejected arguments of an absence of clear guidelines for the exercise of the President’s discretion. A challenge based on the President’s failure to determine the limit and threshold when the Act came into effect was held to be moot, as the determinations had subsequently been made.

In Naude and Another v South African Legal Practice Council, the appellant had been suspended from practice as an attorney pending finalization of the LPC’s application to strike him from the roll. A full bench of the Gauteng High Court, Pretoria (per Millar J, Van der Schyff and Labuschagne JJ concurring) upheld an appeal against this decision, with scathing criticism of the LPC’s handling of the matter:

“Had the members of the Gauteng Provincial Council of the LPC properly considered all the documents that were before them, they would have realized that there was simply no case, prima facie or otherwise, for the suspension of Mr. Naude.  The failure on the part of the LPC to afford Mr. Naude a right to be heard does not appear to have moved the members of the Council in their consideration of the matter and this is a matter of concern.”

Costs were awarded against the LPC on an attorney and client scale.

A case of “unprecedented” misconduct has led to an attorney being struck off the roll for re-writing a magistrate’s judgment in a claim for damages where she represented the claimants. Govindjee J (Appels AJ concurring) noted that the orders in the two judgments were “substantively distinguishable”, and “included a detailed order as to costs, either for her own benefit or that of her clients, in circumstances where the magistrate had made no costs order.” Furthermore,

“the amount awarded to plaintiff Dada was R60 000.00 in circumstances where his claim, as amended, was for R50 000.00. In addition, the respondent had no compunction in stipulating the full figures (or, in the case of Dada, more than the figure) that had been claimed, despite the assault claim having been dismissed.”

Govindjee J held that the attorney’s conduct had brought the legal profession into disrepute “and created the reasonable suspicion that her integrity was compromised.” She was found not to be a fit and proper person to practice as an attorney.

#Unite Behind has challenged the validity of Parliament’s updated Code of Conduct, which was introduced during litigation where the organization challenged delays in dealing with complaints against MPs implicated in state capture.

4. Administration of justice

The judiciary has released its long-awaited sexual harassment policy. The announcement identified the key principles of the policy as “[z]ero tolerance for sexual harassment by or against any judicial officer, staff member, or individual engaging with the judiciary”; “[c]lear, confidential and fair” reporting procedures; accountability “with disciplinary consequences for offenders; and a “safe and respectful workplace, free from discrimination and intimidation.” The policy contemplates the establishment of a gender desk in the Office of the Chief Justice, where complaints will be reported.    

The policy has been welcomed, but experts have emphasised the need for it to become a “living document” in order to be effective.

The Association of Regional Magistrates of Southern Africa instituted litigation to compel increases in magistrates’ salaries, as recommended by the Independent Commission for the Remuneration of Public Office Bearers, to be put into effect. “Last minute” papers revealed that the President had remitted the Commission’s recommendations for determination as part of a “major review.”

The much-anticipated start of the Madlanga Commission of Inquiry, which was scheduled to begin on the 1st of September, has been delayed because of “delays in the procurement of vital infrastructure”, leading to the suspension of the Director-General and Deputy Director-General for ICT of the Department of Justice.          

5. Legal profession

An inquiry into sexual harassment complaints against a “prominent Cape Town lawyer” is to be closed to the public. The decision has been contentious, with the decision reportedly not being provided to the complainants’ lawyers or to the media, and to have been based on provisions of the Criminal Procedure Act, the relevance of which have been called into question. It was also reported that the complainants were not consulted before the decision was made.    

6. Articles

The Professor Balthazar column describes the Constitutional Court’s Vodacom v Makate assessment that the SCA decision was “so monumental a failure” as “a most disturbing reflection on the judiciary.”  

“For a long time, there has been considerable complaint that the Judicial Service Commission … has not fulfilled its function of ensuring that properly qualified candidates make their way on to the courts and, in particular, to the higher courts of South Africa.

This judgment surely imposes upon the JSC an even more onerous obligation to do its job to ensure that the courts of South Africa in general, and the higher courts in particular, are sufficiently staffed with lawyers who can exercise a duty of proper consideration.”

Lauren Kohn praises the judgment for furthering the legality element of the rule of law, and suggests that the decision provides guidance as to the content of the “fit and proper” appointment criterion for judges.   

The Constitutional Court’s judgment in Mereki v Moladora Trust is praised by Serjeant at the Bar as an indicator that the court “is finally beginning to embrace a more coherent transformative vision of our Constitution.” The case turned on the transferability of a right to graze cattle on farmland, with the Court holding that there had been tacit consent for the cattle to remain on the land. The column argues that the judgment “reflects the direction in which the court was designed to travel” and “represents a hopeful sign that the Constitutional Court will continue to develop all of our law … [to ensure] that the Constitution works for all South Africans.”

Following the Constitutional Court’s dismissal of the MK Party’s application to challenge the suspension of police minister Senzo Mchunu, the appointment of acting police minister Firoz Cachalia, and establish the Madlanga commission of inquiry, Karyn Maughan discusses the party’s description of the decision as a “miscarriage of justice.” Maughan argues that “[t]he MK Party has made it clear that, despite swearing allegiance to the Constitution, they have no respect for it”, and that the party holds a “fundamental belief that any court that rules against the MKP is going against the so-called “will of the people”.” Maughan further argues that this approach deflects from “fundamental legal failures”, and who is responsible for them.     

FUL published an op-ed examining ongoing controversy over the Legal Sector Code, as well as a statement condemning the assassination of Eastern Cape prosecutor Tracy Brown.  

Issued by Freedom Under Law