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

Justice Mandisa Maya has formally been appointed as the next Chief Justice. Her tenure will commence on 1 September 2024. The Minister of Justice and Constitutional Development hailed the appointment:

“This appointment signifies the deeper appreciation of how far we have come as a nation and how much our courts have transformed, both in terms of race and gender. It signifies the transformation agenda of what was previously a male-dominated judiciary ...

Justice Maya brings with her profound experience and legal brilliance spanning many decades in the legal profession.”

Commentary on the appointment has been positive, with Maya being described as a “trailblazer and a true leader”, although the many of the issues highlighted in this note indicate the scale of the task awaiting Justice Maya.

A special ceremonial sitting of the Constitutional Court in honour of outgoing Chief Justice Raymond Zondo was held in late August.  

The JSC announced the shortlist of candidates for the October 2024 interviews. There are several notable aspects of the list.

• Most concerningly, the JSC only received three nominations for the vacancy on the Constitutional Court, which has stood open since October 2021. In a sign that the JSC at least recognises the seriousness of this issue, the vacancy has already been re-advertised, with further nominations due by the end of August.
• Six candidates are shortlisted for three vacancies on the SCA. Five of these (Judges Baartman, Coppin, Koen, Mjali and Windell) were unsuccessful candidates in the May 2024 interviews, with KwaZulu-Natal High Court judge Mahendra Chetty a new candidate.
• Similarly, the three unsuccessful candidates for the Land Court Judge President’s position in April 2024 (judges Cowen, Mia and Ncube) are now vying for the position of Deputy President of that court.
• The position of Judge President of the Labour and Labour Appeal Court, which puzzlingly had no nominees when advertised for the April 2024 interviews, now does have a candidate (Judge Edwin Molahlehi).
• Judges Chili, Henriques and Nkosi will contest the vacancy for Deputy Judge President of the KwaZulu-Natal High Court, while judges Mankge and Ratshibvumo will context for the Deputy Judge President of the Mpumalanga High Court.
• The most striking of the interviews that will take place is sure to be the vacancy for Judge President of the Western Cape High Court, created by the impeachment of former judge Hlophe. No fewer than seven candidates have been shortlisted, ranging from the incumbent Deputy Judge President and Acting Judge President (Judge Goliath, who has previously laid a complaint against Hlophe), an experienced judge who was previously an unsuccessful candidate for the position of Deputy Judge President (Judge Le Grange), an SCA judge who previously served on the Western Cape Court (Judge Mabindla-Boqwana), to judges who have been serving permanently for just over two years (judges Potgieter and Thulare. Similarly, Judge Slingers has been a permanent judge for under five years). The additional candidate is Judge Mantame.

The Western Cape Judge President position is particularly noteworthy, not only because of the symbolism of replacing an impeached judge, but also because of the impact if Dr Hlophe’s designation as a member of the JSC (see the discussion in section 2) remains in effect.

FUL has published an op-ed discussing the shortlist, focusing particularly on concerns about the lack of candidates for the Constitutional Court.

A challenge is reportedly pending to the appointment of Judge George Phatudi as judge president of the Limpopo High Court. Although the precise basis and nature of the challenge is not clear from the available reports, the judge appears to be the subject of unspecified allegations of corruption, and it is alleged that he sought to block the appointment of Judge Violet Semenya as deputy judge president of the division. It is difficult at this stage to evaluate the veracity of these claims based on the limited information currently in the public domain.      

2. Judicial Conduct

As we touched on last month’s note, the designation of impeached former judge John Hlophe as one of the National Assembly’s representatives on the JSC has provoked widespread controversy, including discussion of whether the law on eligibility to become a member of parliament needs to be changed. FUL has instituted litigation to challenge Dr Hlophe’s designation to the JSC. (See also our earlier statement of concern about the designation). In light of this, we will not discuss the issue in any further detail while litigation is ongoing, beyond the summary of articles discussing the issue set out in section 5.

The other judge removed from office in February 2024, Nkola Motata, is challenging his removal from office, seeking direct access to the Constitutional Court to have his removal from office set aside.

The judicial conduct tribunal dealing with the complaint against Judge Makhubele heard closing arguments. Submissions on behalf of Judge Makhubele (now represented by counsel) advance arguments that she has  been treated unfairly due to challenges in obtaining legal representation and that there is “ not … a single shred of evidence” in support of the assertion she was involved in “illicit” conduct at the Passenger Rail Agency of SA.

In our June 2024 note, we discussed the finding of the judicial conduct tribunal into the complaint against Judge Mngqibisi – Thusi, relating to delays in delivering judgments. The tribunal had found that whilst the judge had committed misconduct but not gross misconduct which would justify her removal from office. The JSC has now considered the tribunal’s finding. Whilst rejecting the tribunal’s distinction between gross negligence and gross misconduct, the JSC agreed that Judge Mngqibisa – Thusi had committed misconduct, but not gross misconduct. The JSC ordered that the judge write a letter of apology to the judge president and the attorneys of all affected parties, and that she be formally reprimanded by the judge president and receive a written warning.

3. Significant cases

The binding effect of orders given by Chapter 9 institutions has been the subject of lively debate since the Constitutional Court’s celebrated ‘Nkandla’ judgment. In South African Human Rights Commission v Agro Data CC & Another (Afriforum, Centre for Applied Legal Studies and Commission for Gender Equality intervening as Amici Curiae), the SCA had to consider whether the South African Human Rights Commission (SAHRC) had the power to issue binding directives to those found to have violated human rights. The court (per Mbatha JA, Mocumie, Mothle and Mabindla – Boqwana JJA and Tolmay AJA concurring) held that the SAHRC did not have such power. The court distinguished the powers of the SAHRC from those of the Public Protector, finding that:

“the drafters of the Constitution intended that the SAHRC would investigate and, if it is of the opinion that there is substance in any complaint made to it, take steps to secure redress.”

The court found further that the power to assist affected persons:

“can be interpreted to mean that the SAHRC acts in a supportive or enabling role in assisting the adversely affected persons to seek redress. It does not itself make a violation order or exonerate a person from an allegation of a violation of human rights.”

The court rejected an argument that the SAHRC was a quasi-judicial body, and held that it did not have adjudicative powers. Accordingly, the SAHRC was not empowered to issue binding directives.

In Economic Freedom Fighters and Others v Chairperson of Power and Privileges Committee NO and Others, the Western Cape High Court rejected an application to declare parliamentary rules dealing with allegations of misconduct unconstitutional, and to set aside decisions of the National Assembly finding various applicants guilty of misconduct and contempt of parliament. Six members of the applicant had taken to the stage from where the President was delivering the 2023 state of the nation speech after having being ordered to leave the house. They were suspended from parliament for a month.

The court (per Davis J, Fortuin and Nziweni JJ concurring) found that there was no support for the argument that parliament could not establish its own committee and rules to deal with such matters, rejecting an argument that an independent person should conduct a fact-finding investigation prior to the National Assembly considering disciplinary action against an MP. The court further rejected an argument that the rules lacked sufficient guidance on the appropriate sanction and were open to abuse.

Regarding the attack on the National Assembly’s decision, the court found that:

“In the absence of any attack on the substance of the finding of the Committee and within the context of a careful evaluation of the initiator’s recommendations, there was no basis placed before this Court by which it is possible to conclude that the Committee did not take account of the important components of s 12 (9) of the Privileges Act, namely that the applicants were guilty of a serious act of contempt and that none of the other penalties set out in s 12 (5) were sufficient.”

Solidarity Trade Union and Others v Minister of Health and Others involved a challenge to the “Certificate of Need” (CON) scheme set out in the National Health Act. These provisions required healthcare service providers and facilities to apply for a certificate of need for the place where they wish to render services. As the court described the scheme, it “is not aimed at regulating how services are rendered but rather the place where they are to be rendered.”

The Gauteng High Court, Pretoria (Millar J) found that the scheme was procedurally unfair, as it failed to require a consideration of the rights and interests of healthcare practitioners when deciding whether to issue a certificate; it failed to create a fair process to be followed in deciding on conditions to be imposed; and no provision was made for substantive representations. The court held that:  

“The power to withhold the issue of a certificate or the renewal of a certificate is nothing more than a blunt instrument which would be used by the DG to reduce the number of private healthcare establishments and private healthcare providers who could lawfully provide medical care within a particular area in the hope that having been deprived of their property and ability to earn a living they would without more accept the losses foisted upon them and relocate to an area in respect of which the DG had determined that a certificate would be issued.  Even if this did occur, there would be no certainty.  The sword of Damocles hangs over every private healthcare establishment and private healthcare provider in perpetuity for so long as they are required to renew a certificate of need.”

The court found further that the scheme violated section 25(2) of the Constitution (dealing with the requirements for the expropriation of property) as it did not provide a mechanism to provide affected parties with just and equitable compensation and did not establish a process for agreement. The scheme was not rational as no nexus was shown between the scheme and its implementation, and its purpose, and therefore the provisions were not saved by the limitations clause. The impugned sections were declared invalid and severed from the Act.

In a somewhat intemperate response to the judgment, the Minister of Health was quoted as saying that:

“[W]e respectfully wish to differ with the honourable court. We note that while we execute our mandate of provision of healthcare as a human right, the court seems to have placed economic property rights at the expense of the right to health ...

It is very unfortunate that while we live within the borders of the same country we seem to be existing in two different worlds – one world where it is believed that the right to health must reign supreme, and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing. We are even struggling to understand how a right to health by all people in our country interferes with other people’s rights to own property”.

The Gauteng High Court, Pretoria has set aside a decision by the National Conventional Arms Control Committee (NCACC) to authorise arms sales to Myanmar. It had been argued that South Africa had exported arms to Myanmar between 2017 and 2021, despite knowledge of grave human rights violations and potential violations of the Genocide Convention, in contravention of the National Conventional Arms Control Act and international law. (No written judgment could be located).

Former President Zuma is reportedly approaching the Constitutional Court to overturn the invalidation of his attempted private prosecution of President Ramaphosa. (The high court decision invalidating the private prosecution is discussed in our July – August 2023 note).

4. Judicial governance and the administration of justice

The judiciary’s 2022/23 annual report was released at the end of July. The report presents an optimistic picture of court performance. 11 of the 13 performance targets for the superior courts were achieved, with the two unsuccessful targets being the percentage of finalised Constitutional Court matters (55% achieved against a target of 70%) and the percentage reduction of the backlog in criminal cases. Only 6 divisions of the high court achieved the target for finalising criminal matters. This under-performance is attributed to “logistical challenges due to the continuous load shedding”, and “to the complex nature of the cases that the Courts have to deal with, coupled with having multiple accused persons per case.” Perhaps surprisingly, all divisions of the high court exceeded the target (of 64%) for finalising civil matters, although the report notes a decrease in the number of civil matters enrolled. It is also notable that the achievement of targets in some instances met modest targets. For example, the Labour Court merely met a modest target of finalising 58% of matters.

In his presentation of the report, Chief Justice Zondo highlighted the need for the judiciary’s institutional independence to be strengthened, and noted that the Labour Court faced challenges due to a shortage of judges.

That the ‘state of the judiciary’ may be even less rosy than the report suggests is evident from a Notice issued by the Deputy Judge President of the Gauteng High Court, Johannesburg dealing with set down dates in the court. The Notice sounds a note of alarm about the lead in times to have matters set down:

“Practitioners ought to be alarmed by the dates that are at present being issued for civil trials. The furthest dates issued are in November 2027, three and a half years hence. Dates in 2028 are about to be allocated. Trials of long duration – i.e. more than 5 court days - have already been set down to fill all available slots up to the end of 2025, and further set downs are being issued for term 2 of 2025. Slots for special opposed motions - requiring a day or more to argue - are full up to the end of term 1 in 2025 and term 2 of 2025 is steadily filling up.”

The Notice is unequivocal in identifying a lack of judicial capacity as a major problem:

“The courts … are severely compromised by the lack of judicial capacity to meet the demands of the litigating public. Despite the utilisation of pro bono additional acting judges… the court is still not able to deploy enough judges to hear the cases at a rate that can reduce the civil trial lead times. It is estimated that in order to reduce the civil trial lead-time to less than 12 months would require about 20 judges in civil trials alone each week. With present resources, we can muster a range of between 2 and 6 judges per week during the course of a term to hear civil trials.”

The situation is no better in the Pretoria court, where reports suggest that litigants are having to wait for around four-and-a-half years for hearings in civil trials, which are said to be the longest lead times in the divisions history.

In another concerning development, it was reported that the head of the Special Tribunal, Judge Lebogang Modiba, had resigned from the Tribunal, with no replacement having been appointed for three and a half months. Reports suggest that this has hamstrung the work of the Tribunal, and limited the ability of the SIU to proceed with cases. It has subsequently been reported that the President has received a list of judges recommended to serve on the Tribunal. The President will then consult with the Chief Justice before making appointments.    

In previous notes, we have cited several examples of shortcomings in the governance of the legal profession, particularly instances of professional misconduct being inadequately dealt with by the Legal Practice Council (LPC).  Further illustrations of this phenomenon were provided by reports into two sets of allegations of misconduct against advocate Dali Mpofu SC.

The first related to incidents during the parliamentary inquiry which preceded the removal from office of former public protector Busisiwe Mkhwebane. Mpofu is said to have threatened the chair of the inquiry and erroneously accused former public protector Thuli Madonsela of criminal conduct. Despite the impugned conduct being publicly broadcast, the LPC is reported to have raised doubts over the “quality” of the evidence, as the affected parties had not lodged a complaint.  It appears that the LPC’s national council elected not to endorse the recommendation of an investigating committee, opting instead to “refer the matter back to the Gauteng provincial council, which then reconvened a newly constituted investigating committee to consider the available evidence.” The content of the rejected recommendation is unclear.

The second issue relates to Mpofu infamously telling fellow advocate Michelle Le Roux to “shut up” during proceedings of the State Capture Commission. A disciplinary committee of the LPC found that the remark was not disrespectful. However, reports suggest that disquiet within the LPC led to an internal push for the LPC to overturn this finding in court, a step which would require the support of a majority of the national council. According to the reports:

“After a protracted argument … eight members of the then 21-member council walked out of the … vote, in what LPC minutes record as a "protest".

That "protest" blocked the review from going ahead, because - according to legal opinions sourced by the LPC - a necessary majority of 12 members had not voted in support of it.”

It is reported that a further motion fell one vote short of the requisite majority.

In another remarkable story where, on this occasion, the LPC appears to be blameless, it has been reported that a lawyer appeared, in a different case, in front of the same judge who had previously suspended her from practising (pending investigation into allegations of fraud).  The LPC was reported to be seeking a sentence of imprisonment against the lawyer for contempt of court.      

5. Articles and speeches

FUL’s chair, retired Justice Azhar Cachalia, delivered a lecture evaluating the performance of the JSC and setting out FUL’s ongoing litigation over failures of the JSC. The lecture has attracted media attention, with much focus on the issue of former judge Hlophe’s designation to the JSC.

The potential presence of former judge Hlophe on the JSC has, unsurprisingly, prompted vigorous debate. The Professor Balthazar column describes it as a “constitutional disgrace”, noting that negotiations preceding the formation of the government of national unity “were proclaimed to be based on the premise that all parties which joined were committed to the Constitution in general and the rule of law in particular”, and hence:

“One would have thought that the rest of the GNU membership would regard the judiciary as a key constitutional institution and seek to ensure that the body that selects judges and holds them accountable, the Judicial Service Commission (JSC), would be comprised of members deeply committed to constitutional democracy.”

The column is sharply critical of the designation of Hlophe to the JSC, querying “on what rational basis can an impeached judge be deemed to be an appropriate person to determine whether applicants for judicial office should be elevated to the Bench?”, and whether “any question put to an applicant about judicial temperament or commitment to judicial ethics by Hlophe [can] be taken seriously?” It further points out that it would be especially problematic for Hlophe to be a member of the JSC when interviewing for the new Judge President of the Western Cape High Court (the position from which Hlophe was removed, and for which replacements will be interviewed at the October 2024 sitting of the JSC).

The column notes that this development comes at a time when, based on the JSC’s previous sitting, “the hearings and appointments seemed to have turned a corner”, but suggests that Hlophe’s designation to the JSC would signal an end to that trend:

“The smart money will now be on “back to the populist hearings” of the past years in line with the Mpofu/Malema tag team. A huge burden will rest on the new Chief Justice, Mandisa Maya, as chair of the JSC to ensure that hearings continue to be directed to probe the quality of applicants as opposed to grandstanding and posturing by certain JSC commissioners.”

The column further criticizes the MP’s who voted in favour of Hlophe’s designation, arguing that it “bodes poorly for the commitment of the majority of MPs to promote and defend the very Constitution they swore to uphold.”    

A different view is taken by Mpumelelo Mkhabela, who argues that, whilst “the prospects of Hlophe – the violator of judicial ethics – being a member of the JSC are untenable”, there is “[n]othing in law or in the rules of Parliament prevents Hlophe from being nominated to serve on the JSC.” Mkhabela argues that:

“As an MP, Hlophe is entitled to participate fully in the affairs of the legislature. And his party, the third largest in the legislature, wants his duties to include serving on the JSC. It's ridiculous to try to stop him.

If he is stopped from serving on the JSC, will he also be prevented from participating in the justice portfolio committee? Will he be stopped from participating and voting on parliamentary recommendations arising from JSC investigations? Will he be stopped from questioning the integrity of the president during robust parliamentary debates simply because the president had fired him as a judge? Will he be stopped from interacting with parliamentary parties who supported his impeachment in the two-thirds majority vote?”

Mkhabela argues that the crucial issue is that nothing prevents Hlophe from being an MP, and that “we have created a system that allows Hlophe to be a perfect fit for Parliament. It doesn't make sense to attack his role and not the system.” Mkhabela further suggests that there is a need for a “long overdue national debate … about the qualifications to be a public representative.”

Modidima Mannya points out that “[t]he JSC is … not a committee of Parliament but a body responsible for an important constitutional function of managing the appointment of judges and their conduct.” Emphasising that the National Assembly had recently voted to remove Hlophe from judicial office, Mannya observes that:

“Hlophe must, among other responsibilities, ensure that judges who are to be appointed meet the highest standard of ethical conduct – which he was found to have failed to meet.

It is not an argument that Hlophe is not the final decision maker on the appointment of judges.

The argument is that someone who has failed to uphold the very instrument used to determine the suitability for judicial office cannot be expected to enforce it without fear or favour.”

Stephen Grootes writes that Hlophe’s designation is “certain to undermine the legitimacy of the JSC” and suggests that “there may now be space for a national discussion about whether there should be a higher legal bar to becoming an MP.”

“It might be relatively easy to get broad agreement that someone who has previously been impeached from a position, or been found guilty of an offence involving abuse of trust (such as fraud or corruption) should not be an MP. Or that the disqualification as a result of a conviction should be extended from the current five years to 10 years.

Grootes does, however, sound a note of caution about tightening the requirements for eligibility to be a member of parliament:

“Imagine, for a moment, if Thuli Madonsela had been impeached as Public Protector by an ANC led by Jacob Zuma and that she was the victim of a political campaign at the time. What would happen when the political winds changed and she wanted to campaign to be an MP?”

The end of Justice Zondo’s tenure has naturally also received considerable attention.  An analysis of his tenure by Judges Matter describes him as a “prolific” writer of judgments while on the apex court, and praises his efforts to reform the JSC, although noting that many issues remained. Zondo’s main priorities as Chief Justice are identified as implementing the full administrative independence of the judiciary, addressing problems at the Constitutional Court, and enforcing performance standards in the judiciary to speed up the delivery of judgments. Although relatively little progress was noted on the first two priorities, Justice Zondo is credited with greater success on the third, directing judges president to submit misconduct complaints against judges who delayed in delivering judgments, and establishing multiple conduct tribunals.   

The analysis also notes instances where Justice Zondo’s outspoken comments, particularly relating to the aftermath of the work of the state capture commission, led to conflict with the political branches of government, although he is also praised for speaking out in defence of the judiciary.

Mpumelelo Mkhabela notes that, whilst Justice Zondo’s work on the Commission on Inquiry on State Capture receives much praise, it had implications for the constitutional Court on which he served:

“[F]or more than five years, Zondo was practically not a full-time member of the Constitutional Court.

His appointment to the commission meant that the judiciary, which is under-resourced – something he has complained about – was robbed of an active senior justice at the Constitutional Court. The apex court has, in recent times, experienced a worrying trend of the increase in the number of acting appointments.”

Mkhabela also notes how Zondo’s role as chair of the commission could involve public pronouncements promoting or defending its work, meaning that “a judge chairing a politically charged inquiry would occasionally stray into the political terrain because of the nature of the work.” Mkhabele argues that this “points to the dilemma of appointing serving justices or judges to chair commissions.”

Wits University political scientist Mcebisi Ndletyana remarks wryly that:

“Zondo must be relieved that he's unlikely to preside, ever again, over a case that involves Zuma. The former president was a nuisance that plagued Zondo not only as a chairperson of the commission into state capture for over four years, but also as Chief Justice. And, Zondo turned out to be a formidable sparring partner to Zuma.”

Ndletyana praises Zondo’s chairing of the State Capture Commission, arguing that Zondo:

“has provided exemplary public leadership. He's effective without being pompous. It's about the task at hand, not him. Zondo's work speaks for him. Those of us who continue to read the commission's reports shall forever be grateful to him.” 

As we have seen, the historic nature of Justice Maya’s appointment has been widely remarked on. However, Genevieve Maujean and Mbekezeli Benjamin of Judges Matter argue that whilst Justice Maya’s appointment “further affirms women’s progress in the judiciary”, their remain too few women in judicial leadership positions:

“This is partly a result of structural obstacles standing in women’s way, including juggling family versus career demands, sexism and sexual harassment, and women lawyers being sidelined for career opportunities, which weakens the talent pipeline feeding the judiciary.”

Noting that only a third of the heads of court forum are women, Maujean and Benjamin argue for more women heads of court to ensure “diversity of perspectives to avoid blind spots in developing policies such as on sexual harassment and on acting judges”. Maujean and Benjamin further highlight the importance of pending policies on acting appointments and combatting sexual harassment to “bring transparency, accountability and fairness” to the judiciary.  

In previous notes, we have discussed the concern about the role of lawyers in pursuing litigation which serves to undermine South Africa’s Constitutional democracy.  Former Constitutional Court Justice Edwin Cameron addressed the issue in a speech delivered in acceptance of the Sydney and Felicia Kentridge Award.  Cameron identifies two major threats to the rule of law and the constitution. The first is poverty, with Cameron arguing that “lawyers have to do far, far more, both individually and structurally to pursue a legal system that serves everyone.”

The second, “more insidious” peril is “those who aim to undermine the law and the constitution from within.” Cameron argues that while some politicians seek to rubbish the constitution for self-serving ends:

“More dangerous are the lawyers, including some advocates, who seek to propel that agenda. Some are skilled liars, dissemblers, manipulators and propagandists. They employ the implements of legal practice to bedevil and confuse and dismay. … [T]he lawyer-enablers embrace the worst cases, and use dishonourable and disingenuous methods to undermine the law itself.

They have even used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment.”

Cameron argues that this demands a focused response, starting with a re-commitment “to the struggle for a just legal dispensation that does not benefit only ourselves and a small privileged elite, but advances the interests of those whom our society continues to marginalise.” Cameron advocates for the organised legal profession to lead the way, by exercising their power and responsibility to hold lawyers to account, and for the judiciary to defend the rule of law and the constitution:

“Judges should be alert that disingenuous arguments, bogus legal interventions and cynical tactics are not merely distracting and exasperating, they are part of an assault on the Judiciary and on the rule of law, in service of a larger programme of destruction for avarice.”

Cameron emphasises the power of judges to enforce limits on “diversionary, repetitious and rhetorically devious arguments”; to issue costs orders “against manifestly frivolous applications”, including orders preventing counsel from recovering any fees, and in some cases, ordering that practitioners personally pay the costs of the litigation.

A Professor Balthazar column discusses the issue in the context of confounding litigation by the MK Party which purports to challenge the SABC using the phrase ‘government of national unity.’ Describing the application as “a mash of half-completed sentences and unjustified assertions”, the column highlights “[t]hat lawyers have prepared this legal shambles yet again raises the role of lawyers in this kind of litigation.”       

In the aftermath of the elections and the establishment of the government of national unity, there has been talk of a national dialogue initiative. Christo van der Rheede and Ismail Joosub of the FW De Klerk Foundation argue that such an initiative must address systematic and deep-rooted issues of inequality and division. They argue further that “social cohesion must be a cornerstone of this dialogue, which also “should foster unity, reconciliation and a renewed commitment to justice and equality.”

Van der Rheede and Joosub further caution that “[t]he crisis of confidence in our democratic institutions cannot be ignored”, highlighting that the dialogue must address the “profound disconnect between the ideals of our Constitution and the realities faced by our people”, in order to restore faith in the democratic processes. The authors highlight that:

“We need to strengthen our democratic institutions. Success in the national dialogue will be reflected in reforms that enhance transparency, accountability and responsiveness within our governance structures. The Bill of Rights should be the bedrock of these reforms, ensuring that our institutions uphold the principles of justice and equality for all.”

With the constitution coming under attack by populist political parties, a timely intervention from advocate (and member of the JSC) Tembeka Ngcukaitobi cautions against calls for a return to a system of parliamentary sovereignty. Delivering the Mapungubwe Institute for Strategic Reflection annual lecture, Ngcukaitobi was quoted as saying of remarks by former President Mandela, that the survival of democracy depended on the Constitutional Court:

“In saying so, he was not conceding democratic power to an unelected branch of government. Instead, he was giving due recognition to the role of the judicial branch in holding the two other branches to the spirit and letter of constitutionalism”

Ngcukaitobi further highlighted how the system of parliamentary sovereignty under the nationalist government had led to the disenfranchisement of coloured voters in the 1950s, and criticised arguments for land ownership by traditional leaders:

“To argue … that our traditional system entrusts ownership of the land to traditional leaders is to distort true customary law. It is to return to a discredited colonial version of customary law. When the Constitution recognises customary law, it does not intend to resuscitate colonial and apartheid versions of it, which increased the power of chiefs and placed them above the people. Instead it intends to empower the people so that they can exercise their own self-determination, sometimes against the chiefs”.

Issued by Freedom Under Law