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 Conduct

The tribunal dealing with complaints against Western Cape High Court judge Mushtak Parker has concluded the hearing of evidence. Two complaints are in issue. A complaint by the Western Cape Bar council alleges a failure to disclose a trust account deficit while Judge Parker was practising as an attorney, whilst a complaint by ten judges of the Western Cape High Court alleges that Judge Parker gave contradictory versions under oath of an alleged assault by former Judge President Hlophe. (See the discussion in our November 2024 note).

The tribunal, comprising retired judges Ngoepe and Boruchowitz and non-judicial member Ms D Mthimunye, concluded this stage of proceedings within one day, due to Judge Parker’s representatives electing not to call any witnesses or challenge the evidence led. Closing arguments are scheduled to take place on 29 April.

Gauteng High Court judge Denise Fisher is to appeal the finding of the Judicial Conduct Committee that she committed (non-impeachable) misconduct for making adverse findings against attorneys and expert witnesses, and reporting them to professional bodies, without giving them an opportunity to be heard. (See the discussion in our December 2024 note). It is reported that one of the grounds of appeal is that as the JCC had found that she was neither willful nor grossly negligent, it could not then find her guilty of a breach of the judicial code of conduct, as the JSC Act requires a finding of willful or gross negligence in order to find a breach of the code. The appeal is scheduled for 9 – 10 April.

The Sunday World has reported that a complaint has been laid against Gauteng High Court judge Bonakele Mkhabela, alleging that while an advocate, Mkhabela J had at a time represented the complainant, and then subsequently, while acting as a judge, granted an interdict impacting the execution of a warrant of attachment against the complainant’s ex-husband. 

Significant cases

The challenge to the designation of impeached judge Hlophe to the JSC continued in the Western Cape High Court. It will be recalled that in September 2024, the Western Cape High Court granted the DA and Corruption Watch an interim interdict barring Hlophe from participating in the following month’s JSC interviews. FUL’s application for final relief was postponed, to be heard together with Part B of the DA and Corruption Watch’s applications.

That hearing took place before a full bench of judges ( Mbhele DJP of the Free State High Court, Basson J and Mudau J of the Gauteng High Court). FUL argued that the National Assembly failed to exercise its discretion in making the designation, that it failed to discharge its obligations under section 165(4) of the Constitution, that the decision was irrational and unreasonable, and that the National Assembly had considered irrelevant, and ignored relevant, considerations. Judgment was reserved.

In a surprising procedural development, notwithstanding this hearing, Hlophe has approached the Constitutional Court to appeal against the initial interdict.

In Media 24 (Pty) Ltd and Another v Maluleke, the appellant published an article headlined “‘Dishonest’ Limpopo lawyer struck off the roll of advocates, but dismisses ruling as ‘a joke’.” . Despite the respondent having indeed been struck off the roll, he successfully obtained a court order declaring that the averment was false and defamatory. The court a quo found, inter alia, that as the respondent had lodged an application for leave to appeal against his striking off, section 18 of the Superior Courts Act meant “that such application did not only suspend the operation of the order made, but the order should be seen as having not taken place.”

A full bench of the Limpopo High Court (per Ratshibvumo DJP, Van Zyl and Mathabathe AJJ concurring) overturned the decision, giving short shrift to the finding about the impact of the Superior Courts Act:

“If this approach by the court a quo is the correct interpretation of the provision pertaining to suspension of court orders, it would entail that the publication of any court outcome … would have to be barred, for as long as there is an application for leave to appeal since that application suspends the operation of the order. The publication would then only be sanctioned once there is an outcome on the application for leave to appeal or the appeal itself. If the appeal takes four or five years to finalise as some of them do, only then would members of the media report on court order made four or five years earlier. This approach defeats logic …” 

The court also expressed doubt as to whether reporting that an order was made to remove the name of an advocate from the roll could be defamatory but found that in any event the court a quo had misdirected itself by not finding that the publication constituted qualified privilege.

In Board of Governors of Mitchell House School and Others v M[...], the SCA decided an appeal which it accepted was moot, in order to re-emphasise the importance of the doctrine of precedent. The high court had initially dismissed an urgent application challenging the appellants’ termination of a contract with the respondent regarding the enrolment of respondent’s children at the school. The application was subsequently “re-enrolled”, and a different judge granted an order set aside the termination of the contract. Makgoka JA and Chili AJA (Meyer JA, Gorven and Coppin AJJA concurring) found that the judge a quo had:

“created an untenable situation in the Limpopo Division by considering herself entitled to overrule an order granted by another Judge. That is a recipe for disaster for judicial comity and jurisprudential coherence. Furthermore, there seems to be a problem in the Limpopo Division about the observation of the res judicata doctrine. ...” 

The SCA held that the “re-enrolled” application was the same as the application previously decided, and therefore the court a quo had lack jurisdiction to consider the “re-enrolled” application. The SCA further awarded costs against the respondent on an attorney and client scale:

“[Respondent’s] application was not properly before court for the simple reason that it was re-enrolled based on an affidavit that should never have been allowed by the high court. There is no indication on record that he had sought and was granted leave by the court to file this affidavit. As a legal practitioner [respondent] must have known that his application was not properly before court. Furthermore, the conduct of [respondent] resulted in the school receiving two conflicting judgments from Judges of the same Division, within the space of five days, which could lead to confusion on the part of legal practitioners. It is unbecoming of legal practitioners to conduct themselves in the manner [respondent] did. His conduct is reprehensible, and worthy of a punitive costs order – both in this Court and in the high court.”

The Constitutional Court has refused former President Jacob Zuma’s attempt to appeal the dismissal of his putative private prosecution of President Cyril Ramaphosa. (See further discussion of the case in our July – August 2023 note).

The court also refused an application for leave to appeal by former public protector Busisiwe Mkhwebane against the decision of the SCA to dismiss various challenges to the process by which she was removed from office.  

The criminal trial of former advocate Seth Nthai (see the discussion of the case in our November 2024 note) will have to proceed before a different judge, after presiding judge Dario Dosio recused himself due to a personal relationship with a prospective witness.

Eastern Cape High Court judge Avinash Govindjee ordered copies of two judgments be sent to the Minister of Health to consider adding warnings about domestic violence to the labels on alcoholic beverages. The recommendation was made while delivering two judgments in cases involving the killing of women by intimate partners, in circumstances involving alcohol consumption. 

Administration of justice

A News24 report highlights serious concerns about the state of infrastructure in South Africa’s courts, with descriptions of “[b]roken and damaged court infrastructure”, “perilous working conditions”, including a ceiling collapse at the Middleburg magistrate’s court, and descriptions of a lack of water and electricity supplies in many courts. The report further notes that a 2024 report by the public protector found that “only one of 38 courts inspected were operating for “efficient service delivery”.”

It hardly needs to be spelt out that infrastructural and other challenges which affect the judiciary’s ability to fulfil its constitutional functions are a serious threat to the rule of law.   

Another embattled institution is the Masters Office. A Daily Maverick report highlights a litany of worrying issues affecting the Cape Town Masters’ Office, including major backlogs, allegations of corruption, and unreliable online systems.  The report emphasises the potentially serious consequences of these inefficiencies, citing a case where “a frail, dying man cannot access funds for his healthcare because his estate matters are tangled in the Master’s Office backlog after the suicide of his spouse.”

The legal profession

In the latest instance of serious allegations of impropriety against a legal practitioner gaining significant public attention, it has been reported that the Legal Practice Council (LPC) is seeking the striking-off of an attorney facing complaints from 27 clients, including that the attorney “allegedly took money from a deceased person's bank account and bought herself eight houses and later sold a couple's home without their knowledge.” The attorney, who was only admitted in 2022, is also alleged to have masqueraded as a conveyancer, failed to submit unqualified audit reports for 2024, and to have practiced without a Fidelity Fund certificate.      

Articles

There has been continued analysis of the Mbenenge tribunal and how the judicial conduct process deals with claims of sexual harassment. Rebecca Davis discusses “multiple concerning aspects” of the proceedings, noting that the tribunal chair “appeared to struggle at points to understand the meaning or function of WhatsApp emojis, necessitating agonising exchanges”. Davis criticises the lack of protection received by the complainant and condemns the cross examination of her as “quite shocking”. Davis draws parallels with the treatment of the complainant in the 2006 rape trial of former president Zuma.

Zikhona Ndlebe and Mbekezeli Benjamin of Judges Matter discuss the tribunal in the context of broader issues of sexual harassment in the judiciary and the legal profession, arguing that “not enough is done to deal with the structural causes and effect of sexual harassment”. The authors raise the question of what test the tribunal will apply to determine the existence of sexual harassment:

“Will it focus on the narrow legal definition of “sexual harassment” … [o]r will it focus on the more expansive definition of “judicial misconduct” in the Code of Judicial Conduct, which includes the legal duty of a judge to act honourably, in both their professional and private lives, including the avoidance of impropriety?”

Ndlebe and Benjamin raise the question of whether “whether systemic problems such as sexual harassment can be dealt with through “normal” disciplinary proceedings like the Judicial Conduct Tribunal”. They note survey reports of sexual harassment among magistrates and magistrates’ court users, and in the legal profession. The authors emphasise the need for the “entire legal community” to be involved in developing solutions.   

A preview of the year facing the judiciary by Judges Matter highlights the series of ongoing judicial conduct matters, and notes “structural issues hobbling the system to hold judges accountable.” The article also identifies significant challenges in the resourcing and governance of the judiciary, the need to address the performance and functioning of the Constitutional Court, and the urgent need for the nomination of a new Deputy Chief Justice. The article further discusses growing concern over the shortage of candidates for judicial appointment, suggesting that this may reflect a lack of confidence in the JSC. It is suggested that:

“The JSC needs to adopt a written code of conduct to set high ethical standards for its current and future members, with the option of recall for members who fail to adhere to it.”  

FUL has published an op-ed discussing the implications for the rule of law of failures to comply with court orders by the Gauteng Department of Social Development.   

Issued by Freedom Under Law