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

The President is still to make appointments to the Constitutional Court, after the JSC sent the President a list of candidates following its October 2025 sitting. It is hard to understand why these appointments should have taken so long, particularly considering the Court’s well documented challenges in handling its workload.

The JSC has announced the shortlisted candidates for its April 2026 sitting, which will take place from 13 – 17 April.

Judges Bloem, Chili, Norman, Steyn, Vally, and Windell are candidates for three vacancies on the SCA, after the JSC failed to fill a single vacancy at the October 2025 sitting (see the discussion in our October 2025 note). But perhaps the most closely scrutinised candidate will be Deputy Judge President Aubrey Ledwaba, who is the sole candidate for Judge President of the Gauteng High Court. As we describe in our November 2025 note, DJP Ledwaba was mentioned at the Madlanga Commission in connection with bail being granted to KT Molefe, who has been implicated in the capture of the criminal justice system. Allegations were made that a sum of money had been “earmarked” to secure Molefe’s bail, although the Office of the Chief Justice (OCJ) was quick to point out that the allegation was not even clear on whether the money was intended for Ledwaba DJP, and Ledwaba DJP denied any wrongdoing. Nevertheless, his interview is sure to attract significant public attention.

This vacancy is also extremely important as the Gauteng High Court has experienced a significant loss of leadership, with the Deputy Judge President of the Johannesburg court, Roland Sutherland, having retired at the end of 2025, following Justice Mlambo’s elevation to the position of Deputy Chief Justice earlier in the year. Filing the position will be crucial for the functioning of the country’s largest and busiest High Court.   

Judicial Conduct

The JSC has referred the finding of gross misconduct against Judge Mushtak Parker to the National Assembly. The National Assembly will now vote on whether to remove Judge Parker from office. This means that there are currently two potential removals from judicial office under consideration by the National Assembly – judges Makhubele and Parker.

The Judicial Conduct Committee (per Mlambo DCJ, Jafta J and Saldulker JA) has recommended that a complaint against Eastern Cape High Court judge Belinda Hartle be referred to a judicial conduct tribunal. The complaint alleges that judge Hartle insulted an OCJ employee, including using profanity and racist language.   

Gauteng High Court judge Portia Phahlane, who was arrested on corruption charges last year (see our November 2025 note), has been placed on special leave.    

An allegation that a Johannesburg High Court judge solicited a bribe in exchange for a favourable judgment (see our September 2025 note) has been referred to the Judicial Conduct Committee for investigation. Media reports have identified the judge in question as Judge Samuel Makamu.

The Citizen has reported that complaints against judges have “ballooned to unprecedented levels” over the past four years, with the JCC having resolved only 29% of complaints in the 2024-25 financial year, a notable decrease from 56% in the previous year, and 94% in 2021- 2022. The report states that in the 2024 – 2025 cycle, the JSC received 132 new complaints, only 38 of which were finalised, with 94 complaints being carried over into the forthcoming financial year.

Significant cases

The Constitutional Court has held that the Executive, and not the National Prosecuting Authority, is empowered to make outgoing extradition requests. The Court, in a unanimous judgment by Theron J, held that outgoing extradition requests were not merely prosecutorial proceedings, but involved domestic and international components. Whilst the domestic component fell within the powers of the NPA, the international aspects involved powers beyond the ambit of prosecutorial authority. The national Executive was vested with the authority to make extradition requests to foreign states.

The Court held that the former Appellate Division’s 1991 decision in S v Ebrahim “should not be interpreted to mean that any irregularity in extradition proceedings, no matter how insignificant, should result in a court declining to exercise its criminal jurisdiction.” To adopt such an interpretation “would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity” both of which “support the rule of law.” A court would only be divested of its criminal jurisdiction in cases “where the exercise of its criminal jurisdiction would bring the administration of justice into disrepute.”

The decision has significance in the context of the prosecution of state capture cases. One of the respondents, Moroadi Cholota, was formerly the personal assistant to ex – Free State premier Ace Magashula and had been extradited from the United States to stand trial. Magashula, Cholota and other co-accused were charged in relation to an alleged tender fraud scheme. The Free State High Court had declined to exercise jurisdiction over Cholota, finding her extradition to have been irregular and unlawful as her extradition had been requested by the NPA. The Constitutional Court held that whilst the extradition had been unlawful, it did not deprive the High Court of jurisdiction and remitted the matter to the High Court.

Misconduct by judges has also been in the spotlight before the courts. Free State High Court judge Mpina Mathebula, who has been charged with theft for misappropriation of funds while he was an attorney, failed in an attempt to obtain a permanent stay or prosecution, with the SCA dismissing an appeal against a decision by the High Court denying a permanent stay.

The SCA (per Makgoka ADP, Mokgohloa, Mothle and Molefe JJA and Henney AJA) held that the appellant had raised arguments in the SCA which departed impermissibly from his pleaded case. As none of the grounds had been covered in the pleadings, none of them had been considered by the High Court, and the submissions in any event lacked merit. No case had been made out for trial-related prejudice, nor had extraordinary circumstances warranting a stay been proved. 

A further attempt by former President Zuma to halt the Madlanga Commission and set aside the placing of Minister Senzo Mchunu on special leave and the appointment Professor Firoz Cachalia as Minister of Police was unsuccessful. The North Gauteng High Court, Pretoria (per Molopa–Sethosa, Moshoana and Labuschagne JJ) found that the Constitution vested the President with an implied power to suspend or place the Minister on a leave of absence, and rejected a challenge to the rationality of the President’s exercise of his implied powers to withdraw the powers and functions from Minister Mcunu pending the outcome of the Madlanga commission.   

The power to place a Minister on precautionary suspension was held to be “an ancillary power to the President’s constitutional power to dismiss a Minister”, and the exercise of the power was “reasonably necessary when it is not apparent whether the facts warrant the dismissal of a Minister or not.”

The application was dismissed, with the parties bearing their own costs.

Zuma endured a further legal setback when the Gauteng High Court, Pretoria dismissed an application for leave to appeal against the decision ordering him to repay R28-million in legal costs to the state attorney. (See our October 2025 note).  

In Joseph and Others v Head, Department of Social Development Gauteng, the Western Cape High Court (per Sher J, Holderness J concurring) dealt with an appeal against an order by a magistrate in the court a quo granting limited disclosure of information sought under the Promotion of Access to Information Act (PAIA). The information sought related to social grants paid to NPOs. The magistrate had:

“held that the appellants had made out a case for the relief which they sought. But, despite this, and despite noting that the application was not opposed and the only version before her was that which was put up by the appellants and that she should consequently ‘let’ the Constitution and the Act ‘take effect’, she held that a limited disclosure order should be granted … She refused the relief sought in respect of the general body of NPOs who had received funding from the respondent.”

Sher J held that the information requested “was information which would, and should, have been kept”, and published, by the Department in terms of a Sector Funding Policy. The refusal to disclose the requested information on commercial and financial grounds was “spurious”, and the magistrate had “misdirected herself materially in refusing the request for information in respect of the general body of NPOs and other entities who received funding”. The appeal was upheld.

Limpopo Provincial South African Legal Practice Council v Moeng and Another is another troubling instance of serious misconduct by a legal practitioner. The first respondent was struck off the roll of legal practitioners for forging a court order and a letter of good standing.

Administration of justice

The appointment of South Africa’s new National Director of Public Prosecutions is a critically important moment, considering the ongoing travails of the National Prosecuting Authority. The tenure of outgoing NDPP Shamila Batohi concludes at the end of January 2026. Following a similar process to that which preceded Batohi’s appointment, President Ramaphosa convened an advisory panel chaired by justice minister Mmamoloko Kubayi. The panel interviewed six candidates who were found to have “met the minimum requirements” - advocates Nicolette Bell, Hermione Cronje, Andrea Johnson, Xolisile Khanyile, Adrian Mopp and Menzi Simelane.   

The inclusion of Simelane, who had served as NDPP from 2010 – 2011, was a surprising and controversial move. Simelane had been strongly criticised in the report of the Ginwala Enquiry due to his conduct during the Enquiry. This ultimately led to the premature end of his tenure as NDPP when the Constitutional Court held that it had been irrational for the President to ignore these concerns when appointing Simelane.

FUL drafted an objection to Simelane’s candidacy, arguing that he was not a fit and proper person to be appointed as NDPP. The submission received widespread media coverage (See for example here, here, and a Business Day editorial here).

Whilst Simelane was interviewed despite these concerns about his suitability, the panel ultimately found that none of the candidates were suitable for the position. President Ramaphosa then announced the appointment of the head of the Special Investigating Unit, advocate Andy Mothibi (who had not been interviewed by the advisory panel), as the new NDPP. Mothibi’s tenure will begin on 1 February 2026.

The President has approved a 4.1% increase in the salaries of judicial officers.

A court intermediary based at the Montagu Magistrate’s Court in the Western Cape has alleged that systemic failures in implementing domestic violence legislation are infringing the rights of domestic violence victims. The official alleged that an audit of domestic violence case files revealed widespread noncompliance with the Domestic Violence Act, and that failures to properly serve protection orders have rendered these orders unenforceable.    

Legal Profession

We have previously discussed the troubled journey of the Legal Practice Council (LPC)’s charges against Dali Mpofu SC (see our April – May 2025 note). According to news reports, Mpofu is now seeking to have four of the charges set aside by the High Court. The charges in question relate to his conduct in the parliamentary inquiry which led to the removal of Busisiwe Mkhwebane as Public Protector; his conduct in the JSC interviews of candidates for Chief Justice in 2022; and his conduct in litigation by former Old Mutual CEO Peter Moyo against the company.

Mpofu is quoted as characterizing the Council for the Advancement of the South African Constitution, a complainant, as:

“a right-wing conservative foreign funded non-governmental organization which has habitually litigated in a partisan way against some of the more prominent clients when (sic) I have represented such as president Zuma and advocate Busisiwe Mkhwebane.”

Mpofu is also reported to accuse “conservative elements” of the legal profession of “repeatedly and unsuccessfully attempt[ing] to concoct baseless charges” against him.

The LPC has indicated that it will oppose the application.     

Articles

FUL published an op ed reviewing key events in 2025. We argued that whilst the year was a busy one, there has been little movement on important issues, such as addressing the Constitutional Court’s challenges with its workload. We also discussed areas where improvements can be made in the appointment and accountability of judges.

Judges Matter’s review of year highlights the importance of governance reforms for the judiciary, and concerns over unfilled judicial vacancies and delays in judicial conduct matters. In previewing 2026, Judges Matter highlight the need for the judiciary’s sexual harassment policy and proposed strengthening of institutional judicial independence to be translated into “concrete, measurable change.”

Pierre de Vos argues that whilst 2025 was a “challenging year” for the judiciary, due to incidents of judicial misconduct and delays in delivery of Constitutional Court judgments, the judiciary is “in a marginally stronger position than it was four years ago after Jacob Zuma launched a full-frontal attack on the legitimacy of the Constitutional Court.”

A News24 editorial describes allegations against judge Phahlane and Constitutional Court candidate Madumetja Malepe (see our October 2025 note) as “stark reminders of the potential vulnerabilities” of the judiciary. The article notes that:

“The judiciary thrives on the pillars of integrity, impartiality and public trust. The actions of a few “rotten apples” risk contaminating these foundations if decisive action is not taken. ….

South Africans have every reason to expect more from their judiciary. It is their last refuge against injustice, a guardian of democracy and a check on the abuse of power in a country with a history of legal manipulation.

For citizens to retain faith in the courts, judicial officers must not only act ethically, but also be seen to do so.”       

Delivering lectures at the University of Cape Town, judge Dennis Davis and advocate Geoff Budlender SC have raised concern about the threat to constitutional democracy of government’s failure to implement social and economic rights. Concerns over a lack of popular support for the Constitution, and calls for the JSC to be reformed, were also highlighted.

Issued by Freedom Under Law