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

President Ramaphosa has still yet to make appointments to the two vacancies on the Constitutional Court, despite having received a list of candidates following the JSC’s October 2025. The delay (of four months and counting) is increasingly difficult to justify or explain.   

Judicial Conduct

A judicial conduct tribunal has handed down its decision in the complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge. The tribunal found that the judge president was not guilty of gross misconduct (which could have led to his removal from office) but that he had committed misconduct simpliciter. The finding of no gross misconduct was based inter alia on adverse credibility findings against the complainant, including that she had omitted “flirtatious or positive messages, some even salacious” which had been sent by her, from her statement. The tribunal held that an “objective reading” of these messages and the complainant’s evidence related thereto “belie her version that she was an unwilling participant.” The tribunal rejected the complainant’s version that various “flirtatious messages sent and admitted by the respondent”, bar one, were unwelcome.

The finding of misconduct simpliciter was based on a contravention of article 5.1 of the Code of Judicial Conduct, which requires judges to act honourably and in a manner befitting judicial officer, and (as per a note to the article) not to engage in conduct prejudicial to the effective administration of court business. The tribunal found that, by initiating and conducting a “flirtatious relationship” with the complainant, at work and during work hours, the judge president violated this provision.    

The decision is provoked much criticism, as discussed in section 6. The Women’s Legal Centre, representing the complainant, noted what it described as “deeply disappointing language used in parts of the report.”

The JSC will now consider the tribunal’s decision. Indications were that the judge president intended to return to work immediately, prompting the JSC to issue a statement clarifying that he would remain on special leave until the JSC had considered the tribunal’s report and communicated its decision. (The JSC is due to meet on 5 March for this purpose). This episode raises questions of why the judge president was not suspended, as has been the case with most other judges facing allegations of potentially impeachable misconduct.

The portfolio Committee on Justice and Constitutional Development has decided to accept the JSC’s findings of gross misconduct in respect of judges Makhubele and Parker. The judges will now be requested to make submissions to the Committee in mitigation.

Meanwhile, Judge Makhubele has launched an application to set aside the JSC’s decision to find her guilty of gross misconduct, and to set aside the relevant decisions and proceedings of the Judicial Conduct Committee and Judicial Conduct Tribunal.

Gauteng Acting Judge President Aubrey Ledwaba has laid a complaint against Judge Portia Phahlane. Judge Phahlane has until the end of the month to make submissions to the Judicial Conduct Committee. The JSC has confirmed that the judge “will not preside in any part-head matter until the JSC complaint process has run its course.”

A complaint has been lodged against Western Cape High Court judge Daniel Thulare. It is alleged that Judge Thulare continues to occupy a property provided to him while he was Chief Magistrate of Cape Town (a benefit to which he was no longer entitled once appointed as a high court judge), at a rental rate well below market value and in spite of the lease having expired and notice being given to vacate the property.

According to news reports, Judge Thulare has argued that “state housing is a historical benefit for judges, and that the Constitution provides that “salaries, allowances and benefits of judges may not be reduced.”

News24 has reported that Free State judge Mpina Mathebula, who is facing charges of theft, money laundering and contempt of court stemming from allegations of misappropriation of funds while he was an attorney, has spent the last two years on special leave, with no complaint against him having being lodged with the JSC. According to the report, this is despite the JSC having resolved “that the Head of Court is duty-bound to lodge a formal complaint against a judge in their division in an instance where criminal proceedings are instituted.”

Meanwhile, Judge Mathebula has claimed in an interview to be the “victim of a legal costs calculation error” by the NPA, and “that he is actually a whistleblower who exposed a fellow attorney for stealing around R1.3-million from a child’s Road Accident Fund … payout.”  

These various incidents raise numerous concerns, both regarding the conduct of judges but also about the JSC’s process of dealing with complaints. For instance, it is not clear why neither Judge President Mbenenge nor Judge Mathebula were suspended, despite the gravity of the allegations against them. There is an evident inconsistency emerging regarding the laying of complaints against judges facing criminal charges, with a complaint having been laid against Judge Phahlane but not against Judge Mathebula. And it must also be said that some of the justifications reportedly made by judges for their conduct appear on their face to be self-serving and not grounded in the law, which is not conduct expected of judges.  

Some of these issues were raised in FUL’s 2022 report on the JSC, and as we have discussed in op-eds (see further section 6), the issues remain very much live and deserving of attention.     

Significant cases

In Essa v Judicial Commission of Inquiry into State Capture and Another, the Commission brought an interlocutory application to dismiss a review application brought by Essa, alternatively directing him to pay security for costs, on the basis that he was a fugitive from justice. The Commission’s report had implicated the applicant and his companies in corruption. Essa had relocated to Dubai, and respondents argued that he had no standing to pursue the review application, as he was a fugitive from justice.

Mlambo JP (as he then was) held that the applicant’s claim to have left the country for legitimate reasons was undermined by the timing of his departure “shortly after the release of the Public Protector’s report … implicating him in corrupt activities.” The report had recommended criminal investigations into entities including those associated with the applicant.

Mlambo JP noted the applicant’s stated intention not to return to South Africa, and held that his residence in Dubai “has undoubtedly placed him beyond the reach of South African legal processes”:

“His claim of legitimate motives does not negate the effect of his absence, which prevents the Court from enforcing orders for instance, requiring his presence for testimony or enforcing cost awards without security. Indeed … both criminal proceedings and civil claims would, in practical terms, prove futile against him.”

Furthermore, the recommendation for investigations in the Public Protector’s report “created a reasonable apprehension of future legal action”, and the applicant’s departure having pre-empted this, and “a litigant’s absence after incriminating evidence is sufficient to infer fugitive intent.” The applicant’s failure to appear before the Commission “prevented the Commission from fully investigating his role in State Capture, an act of non-compliance that aligns with the clean hands doctrine’s prohibition on abusing legal processes.”

Mlambo JP held further that the conclusion was:

“inescapable that he is outside the country and expressly indicated that he has no intention of returning. He has therefore placed himself beyond the reach of our justice system and it would be untenable for him to benefit from a system he has fled from.”

The applicant was this found to be a fugitive from justice. The interlocutory application succeeded, and the review application was dismissed.

In Matsi and Another v South African Legal Practice Council (Gauteng Province), the applicant sought reconsideration of a decision by two SCA judges to dismiss an application for leave to appeal. The LPC had applied for the applicant (an attorney) to be struck off the roll of legal practitioners, and to be suspended from practising pending the finalisation of the main application. The application was based on alleged failures to report trust account deficits, effecting irregular transfers from the trust account, refusing to allow inspection of the practice’s accounting records, submitting manipulated audit reports, and misrepresenting the true state of affairs of accounting records. It was also alleged that several clients did not receive compensation for Road Accident Fund claims.

The high court held that the applicant’s immediate suspension was warranted and refused an application for leave to appeal. Petse AJA held that the high court had correctly found that a proper case has been made out to suspend the first applicant “with immediate effect, in the public interest” pending the final determination the striking-off application. After reviewing a selection of complaints against the applicant, Petse AJA noted that:

“in their answering affidavit the applicants did not make even the slightest attempt to meaningfully proffer a plausible answer to any of these damning and overwhelming allegations against them. Apart from resorting to their oft-repeated refrain that the clients were ultimately paid what was due to them, they elected not to address the gravamen of the complaints against them, namely that they misappropriated trust funds. …”

Petse AJA held that once the high court had decided that the immediate suspension of the applicant was warranted, “it passed a value judgment and in effect exercised a true discretion. Therefore, an appellate court’s interference with the exercise of such discretion is permissible only on restricted grounds.” Petse AJA held that the high court had not exercised its discretion improperly. The application for reconsideration was dismissed.

Administration of justice

During his State of the Nation address, President Ramaphosa indicated that measures would be introduced to establish specialised courts, with dedicated judges and court rolls, to deal with tender disputes stemming from large infrastructure projects. Analysts have reacted with caution to the announcement, highlighting a lack of resources for specialised courts, although there is also support for the measure, on the grounds that tender reviews could be resolved more quickly, thus relieving the burden on the judiciary. Other views emphasise the need for specialised skills among investigators, prosecutors and judicial officers, and the need for more judges in general. (See further discussion in section 6).

Testifying at the Khampepe Commission of Inquiry into potential suppression of the investigation and prosecution of apartheid era crimes, former NPA official Dr Silas Ramaite has alleged that former justice minister Brigette Mabandla instructed him to halt all investigations stemming from the Truth and Reconciliation Commission, and that former national police commission Jackie Selebi had interfered in the work of the NPA.   

A News24 report notes the slow progress of the prosecution of former public protector Busisiwe Mkhwebane for perjury. Despite a first court appearance early in 2021, the trial has yet to begin. According to the report, Mkhwebane has applied to court to review the NPA’s rejection of her representations to have the charges dropped. As the report notes:

“Since Mkhwebane first set foot in the dock, she has been suspended as the Public Protector, found guilty by a parliamentary committee of misconduct and incompetence, impeached in 2023, and joined two different political parties – the EEF and, more recently, former president Jacob Zuma’s MK Party.”  

Legal Profession

An attorney, who has also served as an acting magistrate, was found guilty of contempt of court for having abandoned his clients at the outset of a murder trial. The high court found that the attorney’s explanations were “inconsistent, tardy and inadequately supported”, and questioned whether some supporting documents had been fabricated after the fact. Sentencing proceedings are ongoing.

Articles

FUL published two op-eds. In the first, we previewed the year ahead for the judiciary and the rule of law, highlighting the importance of judicial accountability (a focus which already seems sadly prescient). In the second, we highlight the apparent crisis of ethics in the South African judiciary evidence by the increasing number of serious allegations of misconduct, and discuss some of the difficulties in how complaints are dealt with.

As noted in section 2, there has been lively debate over the Mbenenge tribunal’s decision. Dr Sheena Swemmer of the Centre for Applied Legal Studies (CALS) argues that the tribunal’s framing of its task in terms of “how it understood neutrality, bias and power” was significant, in that it “signalled an approach to neutrality that does not align with South African equality and sexual violence law.”

This is so, Dr Swemmer argues, because sexual harassment is a “constitutional harm”, and affected groups “require more substantive and context-sensitive protection if equality is to be meaningful”. As the complainant fell within a category of persons historically subjected to harm, the “protective mechanism built into section 9 of the Constitution” required a shift in the evidentiary burden. On this argument, it should have been necessary to show only prima facie discrimination (in the form of sexual harassment) before the evidentiary burden shifted to the respondent.

Dr Swemmer further criticises the tribunal’s approach to questions of power, arguing that:

“Once equality law is properly engaged, the tribunal is therefore required to do more than simply avoid bias. It must take account of the historical and ongoing reality that women, and particularly black women, are disproportionately subjected to violence, including gender-based violence.  … [T]he tribunal’s insistence that no inference should be drawn from the complainant’s junior position and the respondent’s institutional authority reflects a conception of neutrality that the Constitution does not require …”

Similar criticisms are levelled against the tribunal’s decision by Nkanyiso Ngqulunga, who draws on the SCA’s decision in Director of Public Prosecutions v Coko as authority for the approach that “[w]hen a decision-maker is required to assess credibility, probability, and harm in the context of unequal power relations, it is a misdirection to demand corroboration, certainty, or conduct-based proof from the complainant.”

Ngqulunga also criticises the tribunal’s approach to the issue of power imbalances, arguing that:

“it failed to operationalise that imbalance in its reasoning … It merely treated hierarchy as a neutral fact, not necessarily a structural issue that can shape behaviour. This is at odds with our jurisprudence …”

Ngqulunga argues that the tribunal focused on judge president Mbenenge’s conduct “in isolation from power”, and that it made a “fatal error” in “shifting focus to negative inferences” about the complainant. The author further argues that the tribunal conducted a “piecemeal evaluation of the evidence, where each incident was isolated, ignoring patterns of conduct and how cumulative the situation became.”   

Serjeant at the Bar suggests that whilst the tribunal’s decision “might not be surprising in the light of the manner in which the hearing was conducted”, the “implications for the judiciary are truly shocking.” The article suggests that if the JSC confirms the tribunal’s decision, the matter ought to be taken on review, arguing that “profound questions” arise about the way the hearing was conducted:

“[W]hile a complainant was subjected to lengthy, fierce cross-examination, arguably of a kind that may be inappropriate in the context of such a complaint, the chair of the tribunal refused to allow the complainant’s senior counsel to cross-examine the judge. That itself raises profound questions about the way the hearing was conducted.”

The column argues further that evidence of WhatsApp messages before the tribunal raises “fundamental issues, which are not really dealt with in the tribunal’s questionable reasoning.” One of these is the tribunal’s failure to grapple with the question of the power imbalance between the parties:

“The Judge President of a division of the High Court has enormous authority over all who work in the building. … To suggest that a woman in the tenuous position of being a registrar (secretary) to a High Court judge would not suffer from the consequences of an extraordinary imbalance of power between the two parties … is to close one’s eyes to reality. …”

The column further questions the impact on public confidence in the judiciary “[i]f senior members of the judiciary reflect the attitude taken by this Tribunal”, and questions the appropriateness of a judge, “let alone Judge President”, engaging in the Whatsapp exchanges in question with “a vulnerable employee”. The column concludes that the JSC should “surely reject this unfortunate finding and set of reasons that support it.”               

In an analysis of the path forward in the Mbenenge proceedings, Judges Matter suggests that the tribunal’s credibility findings against the complainant “make[] it unlikely that the JSC will overturn the Tribunal’s finding of misconduct”, and may influence “the type and severity of sanctions ultimately imposed.” Echoing other criticisms, Judges Matter expresses concern that the tribunal’s decision “does not sufficiently engage with Constitutional Court jurisprudence on equality, power and sexual harassment.”

Discussing the President’s announcement of specialist courts to deal with tender disputes, Serjeant at the Bar argues that “[t]here is hardly a court in South Africa that is not under-resourced and under extreme pressure to deliver justice to the thousands of people who seek it on a daily basis.” The column highlights the “extreme pressure” the court system is under:

“[W]hile there has been a substantial increase in the South African population over the last 15 years, the country has continued to operate with approximately 250 judges. This is simply an insufficient number of judges to deal expeditiously with both criminal and civil justice.”

The column argues further that whilst it is “all very well announcing specialist courts”, more skilled practitioners need to make themselves available for permanent judicial appointment, and takes aim at the JSC for providing “a significant deterrent insofar as the brightest and the best applying for judicial appointments” is concerned.  The column also raises concern over judges’ remuneration packages and conditions of employment, and criticises the President’s failure to make appointments to the Constitutional Court (see section 1).

Similar concerns are raised by Mbekezeli Benjamin of Judges Matter. Benjamin argues that whilst more courts and judges are needed, implementing the plan as announced “would be a waste of resources.” Benjamin emphasises the lack of any substantial increase in the number of judges over the last 16 years, despite significant growth in the size of the population, and notes that this has placed pressure on the courts.

Benjamin argues that:

“A better solution would be to first increase the number of judges across various high court divisions. This would immediately increase the judicial capacity to carry out this specialised work, as well as assist in other areas.”

He further suggests the creation of a specialised hybrid court, with judges being redeployed to their normal courts if workloads are low.         

Academics Nurina Ally and Leo Boonzaier have carried out important work analysing the Constitutional Court’s judgment processing times. Their latest article examines the Court’s performance between 2022 – 2024, and finds that “the Court is continuing to experience serious efficiency problems, with its judgment processing times now at an all-time high.”

Issued by Freedom Under Law