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. This note includes events that took place in late December 2024, after the finalisation of our previous note.

1. Judicial Appointments

The appointing of acting justices Nambitha Dambuza and Ingrid Opperman -  together with justice Glen Goosen – to act on the Constitutional Court for the first two terms of 2025 means that the court will, for the first time in its history, have a majority of women judges on the bench. The acid test will of course be what the situation is when the longstanding permanent vacancies on the court are finally filled.

The JSC has announced the shortlist of candidates for the April 2025 interviews. In addition to the Constitutional Court vacancy receiving insufficient candidates, only one nomination for the two vacancies on the Competition Appeal Court was received. As the nominee was not a judge, the JSC was unable to shortlist any candidates for these vacancies. This absence of candidates putting themselves forward is clearly a matter of increasing concern beyond the Constitutional Court.

For the remaining vacancies, Judge Leicester Adams has again been shortlisted for the Electoral Court (having been an unsuccessful candidate in 2023 and 2024), and Ms Tapiwe Gandidze, Advocates Bartholomew Ford and Suzanna Harvey, and Ms Dawn Norton have been shortlisted for the three vacancies on the Labour Court.  Interviews are scheduled to take place on 1 April.     

2. Judicial Conduct

The tribunal hearing allegations of misconduct against Eastern Cape Judge President Selby Mbenenge began its proceedings. The tribunal was initially scheduled to last for two weeks, but that time has been taken up entirely by the testimony of the complainant. The tribunal is due to reconvene at the beginning of May.

As discussed in our previous note, the tribunal president had ruled that the tribunal proceedings would be partly open and partly closed – a decision that was criticised for “plac[ing] the judiciary's reputation above the public's right to be fully informed of its proceedings” and “elevat[ing] an accused judge president's desire to shield his image and reputation from harm at the expense of society's interest in open and transparent justice for all.” However, once proceedings commenced, the respondent’s legal team requested that proceedings take place entirely in public (as the complainant had initially requested).

The proceedings have accordingly been open to the public and have attracted considerable attention due to the historic significance of the proceedings, and the at times salacious nature of the evidence. The proceedings are the first in which a judge faces potential removal from office for sexual misconduct, and are thus an important test of how allegations of sexual harassment within the judiciary are dealt with.

Further analysis of the tribunal is set out in section 6 below.     

A judicial conduct tribunal has found that Judge Nana Makhubele committed gross misconduct in accepting and serving as chair of the interim board of PRASA whilst a prospective or current judge of the high court; and for her conduct while chairperson, relating in particular to the settlement of claims against PRASA. The tribunal was particularly damning in its evaluation of Judge Makhubele’s evidence in respect of the first ground. which was found to be “deliberately misleading and … unambiguously insufficient”. This finding will now need to be confirmed by the JSC. If confirmed, the matter will proceed to a parliamentary vote on Judge Makhubele’s removal from office.

Former judge Nkola Motata’s application for direct access to the Constitutional Court to overturn his removal from office (as discussed in our July  - August 2024 note) has been dismissed.

3. Significant cases

In Mohlaba and Others v Minister of Cooperative Governance and Traditional Affairs and Others, the Constitutional Court found that section 25 of the Limpopo Traditional Leadership and Institutions Act was unconstitutional. The provision purported to empower traditional councils to levy a “traditional council rate” on taxpayers in a “traditional area”. In a unanimous judgment by Theron J, the Constitutional Court held that only legislative bodies could impose taxes, and that as traditional leaders were not democratically elected legislative bodies, they had no power to impose taxes. The levies and taxes authorised by the impugned section were further held to amount to “taxes, rates and levies” as defined in the Constitution (therefore falling outside the powers of the traditional councils).

The judicial independence of military judges arose in O'Brien N.O. v Minister of Defence and Military Veterans and Others. The applicant challenged various legislative provisions relating to the appointment and removal of military judges. The Constitutional Court (in a unanimous judgment by Majiedt J) found that military courts qualified as courts in terms of section 166 of the Constitution, and that international law and jurisprudence further supported the conclusion that the guarantee of judicial independence was applicable to military courts, particularly where those courts had jurisdiction over criminal cases. The court held that the provisions empowering the executive to convene and control military courts were unconstitutional, and ordered the provisions to be read down so as to exclude military judges.

On the challenge to the provisions empowering the executive to make renewable assignments of military judges, the court held that non-renewable terms of office were an “essential prerequisite of structural independence”, and the unconstrained discretion combined with opaque requirements for the assignment of these terms was also inconsistent with judicial independence. The court suspended this order of invalidity and ordered a reading-in to allow for fixed, non-renewable assignments coupled with a time lapse before any subsequent assignment as a military judge. Majiedt J emphasised the objection to short, renewable terms of appointment, which:

“undermine[] public confidence inasmuch as non-renewability is an essential component of structural independence; and second, absent cognisable objective criteria it affords the Executive … unconstrained discretion in assigning military judges.”        

Finally, on the challenge to provisions relating to the removal of military judges without independent oversight, the court held that it was “unconstitutional for the Executive to have the power to remove military judges without independent oversight or control.” The declaration of invalidity was suspended to allow Parliament to cure the invalidity.

In an important case impacting on the proper use of public funds, the Gauteng High Court, Johannesburg has set aside a resolution by the Council of the City of Johannesburg purporting to endorse a VIP protection policy which would have provided bodyguards well in excess of the applicable ministerial determination to the executive mayor and other senior officials. Wilson J emphasised that:

“Both the Act and the determinations are designed to prevent the creation of armies of security guards surrounding public office bearers, insulating them from the people they are appointed or elected to serve. The value of public accountability is enshrined in section 1 (d) of the Constitution. It is a basic requirement of accountability that public office bearers should be reasonably accessible. They are not entitled to exist in a security bubble, abstracted from the day-to-day concerns of the general public.”

Wilson J was also critical of the respondent’s handling of the case:

“The City opposed the application while putting up no substantial defence on the merits. It then did almost nothing to assist me in crafting a just and equitable remedy, even when given an additional opportunity to do so. The practice of empty opposition to transparently meritorious public law claims brought in good faith against organs of state must end. I intend to underscore that necessity with a costs order on the attorney and client scale.”

In one of the more puzzling legal challenges in recent memory, Jacob Zuma and the MK Party have failed in an application to declare that the SABC’s use of the term “government of national unity” (GNU) to describe the governing coalition was unconstitutional. Fisher J held that no constitutional rights were implicated, and dismissed the challenge as “mischievous” for seeking to draw courts into “idealistic debates” outside of their jurisdiction. Fisher J found that “[t]he challenge is so obviously without foundation that it is difficult to accept that it has been brought to further any real interest either of the applicants or more generally”, and dismissed the application with costs.

The SCA has held that the Legal Practice Act does not alter the standing of advocates’ societies under the common law to bring applications for the suspension or removal of advocates, and that “the LPA does not detract from the position of Advocates’ Societies, who are still custodes morum over the profession of advocates, neither does the LPA intend to afford exclusive jurisdiction to the LPC in this regard.”

The use of artificial intelligence by lawyers has been a source of concern in recent years, and the issue was raised squarely in the case of Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KwaZulu-Natal and Others.The applicant had filed a supplementary notice of appeal “which contained, in addition to the grounds of appeal, rather unusually, several references to case authorities in support of submissions made in respect of the grounds of appeal.” These case authorities proved to be problematic:

“During the course of writing this judgment it came to my knowledge that the case reference or citation for Pieterse might be incorrect. …. There is no such case reported in the South African Law Reports, nor in the All South African Law Reports, and no reference to such a case could be found on the website of the South African Legal Information Institute ... No reference could likewise be found for Burgers, Dube or Aon SA. I requested the two law researchers … to peruse the supplementary notice of appeal and to provide all the cited cases to me. Of the nine cases referred to and cited, only two could be found to exist, albeit that the citation of one was incorrect.”

E Bezuidenhout J, after emphasizing the importance of public faith in the legal system for the rule of law, found that the two of the cases handed up when the question was raised were “not authority for the submission made and in my view misleading, to say the least”; “not authority for the submission made”; or could not be located at all. It was held that “a court should also be able to assume and rely on counsel’s tacit representation that the authorities cited and relied upon do actually exist”, and the court expressed the view that “relying on AI technologies when doing legal research is irresponsible and downright unprofessional.” Leave to appeal was refused and the matter referred to the Legal Practice Council for further investigation. The applicant’s attorneys were directed to pay the costs of the court appearances to establish the nature of the disputed authorities.

In Choeu v Department of Justice and Constitutional Development Limpopo and Others, the Labour Appeal Court overturned a determination by the Labour Court that an advocate not be entitled to charge fees for services rendered in the matter. The Labour Court had found that the appellant had prosecuted a case she knew to be “absolutely hopeless”, but the LAC found that there was no basis for this finding. The LAC further found that the Labour Court had erred in not giving the appellant a hearing before making the adverse finding.

Families of victims of apartheid-era crimes have brought a case against government to compel the establishment of a commission of inquiry into “the suppression of the investigation and prosecution of the TRC cases”, and to claim constitutional damages. The cases are described as relating to “some of the most egregious and brutal acts of the Security Police” and having been subject to “long investigative delays (some as long as 40 years)”.  

In what has been described as an “extraordinary judgment … almost unheard of in that country”, the Supreme Court of Swaziland (Eswatini) has found against the government in a dispute over pay increases for members of the police service. The dispute arose from the implementation of a government circular aimed at increasing police salaries. Whilst these increases were implemented for senior officers, the phase for junior officers was not implemented. After a peaceful march by members of the appellant organization, the police commissioner barred further demonstrates, prohibited members from meeting to discuss the circular, and charged several members for not obeying this order. Whilst the high court found in favour of the commissioner, the Supreme Court took a different view, holding that the commissioner:

“had not proffered any reasons for his actions except a display that he had powers to do what he did. Without justification his actions fall short of what is expected in a democratic society.”

The court found further that the government had not acted in good faith by reneging on the Circular and failing to implement salary increases for the junior officers. The Minister had acted ultra vires and therefore unlawfully in ordering the staff association not to hold a meeting. The court found that the disciplinary proceedings against the appellant’s members were unlawful, and ordered government to comply with the circular.

Another remarkable case unfolded in Botswana, when the high court found (by majority) a sentence imposed by the Court of Appeal (a higher court in the judicial system) to be a nullity. The situation arose when the Court of Appeal imposed an extended sentence on the applicant on the basis that it would otherwise be “failing in its duty and seen [sic] to be eroding public confidence in the judicial system”, and pertinently:

“The court would also be seen to undermine the Honourable President’s stated desire to see an end to corruption.”

The high court found that by referring to the President’s views on corruption, the Court of Appeal had “allowed itself to be improperly influenced by the President”, thereby breaching the applicant’s right to adjudication by an independent and impartial court. The high court found that this rendered the sentence imposed by the Court of Appeal a nullity, and reinstated the previous sentence.

4. Administration of justice

A request by the Director of Public Prosecutions in the Free State for judges from outside the province to be allocated to hear the “asbestos scam” case, where the accused include former Premier Ace Magashule and businessman Edwin Sodhi, has not been well received by the leadership of the Free State High Court. The DPP had requested an outside judge with experience in criminal matters be allocated to hear the case on the basis that this would ensure effect was given to the constitutional rights of the accused and that a speedy trial would ensue, and furthermore:

“If an appointment such as that suggested is made, not only is the impartiality of the presiding judge with respect to his or her knowledge of and acquaintance with officials in this province likely to be ensured, but the safety of the presiding officer is likely to be enhanced …”

In response, Free State Deputy Judge President Martha Mbhele (who responded as Judge President Cagney Musi was acting at the SCA at the time) took issue with the “serious aspersions” said to be cast on the Free State bench:

“I understand your letter to mean that the whole Free State High Court Bench is incompetent, contaminated and therefore disqualified to handle this matter. The insinuation that the whole Free State High Court Bench, without exception, lacks the necessary experience and expertise to handle a matter of this profile is, to say the least, insulting, derogatory and libelous ...

"The insinuation that Free State High Court Judges might be beholden to the accused politicians and other high-ranking officials in the Free State is defamatory and an attack on the independence of the judiciary, a sacred principle that the NPA is enjoined to uphold, respect and protect".

The full letter from DJP Mbhele to the DPP is available here. 

5. The legal profession

It has been reported that the Legal Services Ombud, retired judge Siraj Desai, will be holding hearings in early February as part of an investigation into allegations of financial mismanagement and mishandling disciplinary cases against Legal Practice Council (LPC) CEO Charity Nzuza. The allegations were referred to the ombud by the LPC, and the investigation is reportedly due to be completed by April 2025.

The LPC is certainly keeping the Ombud’s office busy. In a separate investigation, the ombud found that the LPC was responsible for a “staggeringly high failure rate” in the May 2024 competency-based examinations (pass rates of between 1 and 4% in respect of various papers). The Ombud found that the process of setting and moderating some of the exams had been “insufficient” and is quoted as saying that “the LPC failed in one of its most fundamental tasks - to properly regulate the entry of aspirant attorneys to practice. It caused untold misery, if not harm, to many young men and women”.

6. Articles

The Mbenenge tribunal has understandably attracted considerable attention. Tebogo Khaas considers the power dynamics involve, raising the question of “how consent could ever be freely given in the context of such stark power imbalances”, and highlights the “inherent difficulty” for the complainant “of speaking truth to power, especially when the accused occupies a position as elevated as that of a judge president.” Khaas praises the courage of the complainant and acknowledges the importance of the tribunal hearings being fully public but cautions that it is important to “ensure that proceedings remain focused on the substantive issues at hand rather than devolving into a sideshow.”

Mamphela Ramphele is critical of the cross examination by Mbenenge JP’s counsel, charging that the suggestion that the complainant “enjoyed the harassment and played along with it, is testimony to the unreconstructed patriarchal attitudes that assume women are playthings that just need to be coerced into acknowledging their enjoyment of being the centre of attention of men.” Ramphele calls for action to prevent “the continuation of the re-traumatisation” of the complainant.   

Modidima Mannya considers the impact on the allegations on the reputation of the judiciary:

“The public, at the least, now know that the most senior judge in a division may be unable to control his sexual urges. They now know that a Judge President may have lost the moral courage and at the least exchanged sexually explicit messages with a far more junior official.

Is this what the public expects of a man of the age and position of the Judge President, or any judge for that matter? Should the public believe that this was an isolated incident?”

Mannya argues that the episode “necessitates a review of the law, systems and processes of dealing with the conduct of members of the judiciary in matters of this nature.”  

The impact of the episode on the integrity of the judiciary has also been highlighted in editorials. TimesLive notes “that public officials, including judges, must recognise the profound impact their personal choices can have on public trust”, and emphasises that “[i]ntegrity for a man of [Mbenenge’s] stature is … the very foundation of his role as he wields significant influence over people's lives, careers and freedoms, making it critical that their conduct remains beyond reproach.” Highlighting further that the judiciary’s “moral authority hinges not only on its legal decisions but also on the ethical behaviour of its members”, the editorial argues that the case demonstrates the need for broader systemic reforms, as “[m]echanisms to address misconduct, ensure accountability and support victims of inappropriate behaviour must be robust and transparent.”    

A Mail & Guardian editorial argues that Mbenenge should resign as a judge, regardless of the outcome of the tribunal:

“He should acknowledge that his behaviour was unbecoming and resign, regardless of the conclusion the judicial conduct tribunal reaches. It is the biggest service he can render the judiciary and the only route to personal redemption.”

William Gumede discuss concerns with ethics in the legal profession, suggesting that it has “been a key enabler of state capture and its associations urgently need to launch an inquiry into their members’ conduct, be they public, private or the judiciary.” Gumede argues that “in many cases self-regulation [of the profession] has failed spectacularly”, and further that:

“Legal professional associations, oversight organisations and peers have been slack in policing conflicts of interest among legal professionals, including those on the JSC who appoint judges. Legal professionals attacking the judiciary should be disqualified from sitting on the JSC. Lawyers representing clients in cases presided over by judges being interviewed for bench positions by the JSC should not be part of the interviewing process.”

Gumede takes the view that civil society should be more proactive in holding the legal profession to account, and bemoans the time taken to hold errant practitioners accountable:

“The slackness of legal oversight organisations in holding their members accountable has meant victims of legal malpractice are increasingly using the courts to hold professionals accountable for unethical behaviour.”  

In an interview with the Sunday Times, Dali Mpofu SC has defended himself, and the MK Party of which he is now a member, against criticism. Mpofu is quoted as asserting that he has “[a]bsolutely, without question” acted ‘honourably in every case he took on’, and that the private prosecution of journalist Karyn Maughan “was a very good case”. Mpofu also denies that the MK Party is anti-constitutional, arguing that it is merely in favour of parliamentary sovereignty.

Issued by Freedom Under Law