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.

In memoriam

The former Judge President of the Eastern Cape High Court, Clement Temba Sangoni, passed away on 10 June, at the age of 77. Judge Sangoni was appointed as a judge in 2003 and served as Judge President between 2010 and 2017.  

Judicial Appointments

The JSC will interview Judge Presidents Mlambo, Musi and Tlaletsi on 2 – 3 July, as part of the process for the appointment of the next Deputy Chief Justice.

The General Council of the Bar has published their comments on the candidates. Judge President Mlambo is praised for his “outstanding” ethical track record, and is characterised as “a judge not afraid to walk a path less travelled and to chart new territory for our jurisprudence”. The review notes Mlambo JP’s “willingness to speak out constructively against executive failures where they impact on the functioning of the judiciary.” He is also said to have “demonstrated an independence of mind within the judiciary”, but “not [to be] prone to dissenting and is clearly a consensus builder”.

The GCB takes the view that it is “clear … that the candidate has the requisite judicial stature and professional pedigree to pursue transformative jurisprudence”, and characterises Mlambo JP’s judgments as “for the most part, lengthy, scholarly, well structured, and well-reasoned.” His track record as Judge President of the Gauteng High Court is described as “testimony to his leadership qualities and ability to maintain an exemptional judicial culture and work ethic in the busy, culturally and geographically diverse division.” With specific reference to the mandatory mediation directive for the Gauteng High Court, Mlambo JP is described as “willing to take risks in attempting to address and solve multi-faceted challenges within the court administration.”

Were he to be appointed as DCJ, Mlambo JP’s tenure would last until September 2029.

Judge President Musi is described as having an “unblemished” record, with his integrity having “been quietly but manifestly demonstrated in his judgments and judicial conduct.” His career has “exemplified the ethical qualities our Constitution requires of judicial leader.” His judgments are said to “consistently demonstrate impartiality, fairness, and an adherence to the rule of law”, and to be “thorough, concise, [and] well-reasoned”.

Musi JP is said to “possesses strong administrative capabilities” and to have “implemented several initiatives to enhance the efficiency of the court” including, while serving as Deputy Judge President, taking “decisive steps to address a significant backlog of appeals” and implementing “an efficient system to extract outstanding judgments from his colleagues.” The GCB regards him as “possess[ing] the qualities required to be a leader of the judiciary in effectively defending, protecting, and upholding the Constitution”, and to have delivered judgments demonstrating a “fearless assertion of independence and respect for the separation of powers.”

The review concludes that Musi JP “possesses the qualities necessary to promote a culture of professional accountability within the judiciary”, and that he “has demonstrated the capacity to uphold and advance the performance norms essential to the integrity of judicial office.”   

Musi JP’s tenure, if appointed as DCJ, would last until November 2032.

The review of Judge President Tlaletsi (which is notably shorter than the other two candidates) notes that there were no adverse comments received regarding his integrity and ethical behaviour, nor over his administrative and leadership abilities. Tlaletsi JP is said to have “broad and extensive” experience as a jurist, producing judgments which are “comprehensive and well-reasoned but succinct” and “demonstrate a commitment to the Constitution.” His judgments are also said to “demonstrate a keen understanding of the role of the judiciary in upholding the separation of powers” and to show a “dedication to transformative jurisprudence.”  

If appointed as DCJ, Tlaletsi JP’s tenure would last until November 2030.

Judicial Conduct

The tribunal dealing with complaints of sexual harassment against Judge President Mbenenge resumed on 30 June. News24 has reported that the complainant received a handwritten death threat at a workplace in the Eastern Cape High Court in Makhanda.

Significant cases

A full bench of the Western Cape High Court has handed down judgment in the challenge to former judge Hlophe’s designation as a member of the JSC. Hlophe had been designated as a member of the Commission by the National Assembly (NA), shortly after his removal from judicial office for gross misconduct.  The Democratic Alliance and Corruption Watch successfully obtained an interdict barring Hlophe from participating in the JSC’s October 2024 interviews. FUL’s application for final relief was postponed, to be decided with Part B of the DA and Corruption Watch’s application.   

The court (Mbhele DJP, Basson and Mudau J) held that when designating a member to the JSC, the NA exercised a public power and was required to act reasonably and rationally. The court held that the NA had failed to appreciate that it had a discretion to designate, and had failed to exercise it. The NA was required to designate individuals who were not just formally eligible, but “substantively suited” to the role. Designating a person who was not fit and proper to serve on the JSC undermined the requirements of section 165(4) of the Constitution.

The court held that the NA had committed a material error of law by designating Hlophe without proper consideration of his suitability. The fact that section 178 of the Constitution did not contain an express fit and proper requirement:

“does not imply that it would be lawful or rational to appoint individuals who are not fit and proper. Such requirement is necessarily implied through a proper interpretation of the Constitution as a whole. …”

The court further held that designating Hlophe merely because he was a nominated MP was not rational:

“Dr Hlophe … was found guilty of gross misconduct and removed from judicial office. He has refused to acknowledge the impropriety of his conduct and continues to engage in scandalous attacks on the judiciary. His presence on the JSC ineluctably undermines the legitimacy of the judicial appointment process. Given his serious breach of the judicial oath, Dr Hlophe is plainly unfit to assess the suitability of candidates for judicial appointment and has exhibited a marked deficiency in the qualities essential to the office of a judicial officer.”

The NA had also failed to consider relevant considerations, it being “untenable” to find that the removal of Hlophe as a judge, a “glaringly relevant fact”, was not relevant.

The court therefore concluded that Hlophe was not fit and proper to be designated to the JSC. The court placed great emphasis on statements by Hlophe and the MK Party attacking the credibility of the judiciary, and found that these statements also rendered him unfit. The statements were held to underscore ongoing efforts to undermine the judiciary, and justified costs on a punitive scale.

The decision to designate Hlophe as a member of the JSC was accordingly reviewed and set aside, and the court held that the NA may not designate Hlophe to serve on the JSC.

The decision is a resounding endorsement of the independence and integrity of the judiciary and establishes important principles for the suitability of all members of the JSC. It has been reported that Parliament is to take steps to ensure that future designations are consistent with the court’s findings, and that a private member’s bill is being prepared which would bar any person removed from judicial office or a Chapter 9 institution from holding any other public office.   

FUL released a statement welcoming the judgment, which was reported in media coverage of the judgment.  

The National Prosecuting Authority’s travails in prosecuting state capture related cases is well known, but it received some respite in S v Thabethe and Others (the so-called “Nulane” case). The case related to a public – private business partnership which, the State alleged, had seen a process of fraudulently extracting funds from the Free State Department of Agriculture and Rural Development, which were laundered through Gupta – associated companies. Nulane Investments had been appointed, without a tender process, to conduct due diligence and feasibility studies, at the cost of almost R25-million. Nulane did not in fact render services to the Department but subcontracted the work at a cost of only R1.5-million.

The respondents had been charged with contravening the Public Finance Management Act, fraud (including via the doctrine of common purpose), and money laundering in terms of the Prevention of Organised Crime Act. All but one of the respondents were discharged at the conclusion of the State’s case. The State reserved several questions of law.

The SCA (per Schippers JA and Norman AJA, Meyer and Matojane JJA concurring) was scathing about the high court decision, holding that the judge had made the “disturbing finding” which was “central to the entire case” that the state’s case was “abortive from the outset” due to issues regarding the authentication of documents. However, the SCA held that the judge had failed to look at the totality of the evidence, and had “closed her mind to the evidence adduced by the state.”

The high court had applied the wrong legal standard in applying the common purpose doctrine; admitted documents into evidence and then ruled them to be inadmissible; misapplied the rules on the admission of documentary evidence; and misapplied the law on section 204 of the Criminal Procedure Act regarding the immunity of witnesses. The SCA held that the state had established evidence on all four counts on which a reasonable person might have convicted. The acquittal on the count of common purpose fraud was described as “baffling.”

The SCA concluded that the acquittal was “unfair to the prosecution and compromised the administration of justice”,and was unyielding in its views on the high court’s decision:

“The High Court made numerous errors of law that resulted in the acquittal of the respondents. This is unfortunate, particularly in a case such as this, where it was prima facie established that scarce public funds were unlawfully extracted from the Department and channelled [sic] to the UAE, by fraud and the misuse of power. This subverted the aims of the Project to generate income through farming and alleviate poverty, undermines the functionality of democratic institutions, and endangers the rule of law. The trial in the High Court can be summed up in a single sentence: This was a failure of justice. Regrettably, this erodes public confidence in the criminal justice system.”

Six of the reserved questions of law were decided in favour of the state, and the SCA ordered that the respondents could be retried for the offences for which the high court had acquitted them.

Whilst it remains to be seen what outcome follows in any retrial, the SCA’s stinging criticism of the high court decision invites consideration of the allocation of judges to such cases. The Nulane case was allocated to an acting judge (Gusha AJ) against a backdrop of an earlier dispute between the NPA and the leadership of the Free State High court over the allocation of judges to another state capture related case (see our January 2025 note). In a curious twist, the Free State Judge President served as an acting justice of appeal on the SCA panel in the Nulane case (and wrote a partial dissent, differing from the majority on the discharge of one of the accused in terms of the common purpose doctrine). Judge Musi is, as we have seen, one of the candidates for Deputy Chief Justice, and the issue is likely to be interrogated in the forthcoming JSC interviews.

In Afriforum NPC v Ngwathe Local Municipality and 14 Others, the applicant sought an order declaring that the respondent municipality was in breach of its obligations to residents, that the jurisdictional facts for intervention by the provincial government were present, and that the failure by the provincial authorities to intervene was unconstitutional, and therefore that the provincial authorities be directed to intervene in the municipality’s affairs.

Daffue J held that it was common cause that the municipality was “dysfunctional”, and that the dysfunctionality of the municipality and its municipal council constituted “exceptional circumstances” justifying provincial intervention:

“There is no doubt that the Provisional respondents … failed to act in accordance with s 139(1) of the Constitution, read with ss 136 to 140 of the MFMA. Notwithstanding the fact that Ngwathe cannot fulfil its constitutional obligations, the Provisional Executive did not intervene and did not take appropriate steps to ensure fulfilment of such obligations. The Provincial Executive did not issue any directive to the municipal council, stating steps required to meet its obligations.  The Provincial Executive also failed to assume responsibility to, for example, maintain essential national standards, or meet established minimum standards for the rendering of services.”

Daffue J held further that the municipality:

“should be placed under administration due to its dismal record of service delivery, its managerial instability, its insolvent status and mounting debt. It is impossible … for it to dig itself out of this hole without financial, logistical and administrative assistance that could be provided through Provincial intervention.”

The declaratory orders were granted.

A judge in the Gauteng High Court, Pretoria has criticised the Road Accident Fund for its “chaotic approach to litigation”. Swanepoel J noted that the conduct of RAF matters led to “ huge sums of money, public moneys it must be emphasised” being lost,  and that the RAF’s failure “to efficiently execute its Constitutional mandate requires … urgent attention.”

Administration of justice

At the 30 year anniversary celebrations of the Constitutional Court, President Ramaphosa announced that government had “committed to taking steps to advance the independence of the judiciary and the future of our courts’ administration”, and accordingly that a joint committee was to develop an “action plan” to be finalised in an (optimistic?) six weeks. The President emphasised the intention to “ensure the Judiciary is rightly constituted as an equal branch of government”.   

This follows a meeting earlier in the month between the President and other members of the executive and the Chief Justice and senior judges, which is reported to have “reaffirmed” a “shared commitment to building a stronger, more effective justice system”. Relevant ministers are reported to have prioritised “improvements in court infrastructure, human resources, security and judicial independence.” “Key discussions” focused on “advancing a process to ensure institutional independence and unification of a “single” judiciary, and boosting the Constitutional Court, Supreme Court of Appeal and High Court’s capacity.”   

According to subsequent reporting, these reforms will see the Chief Justice assume “sweeping powers over the management of all courts, which will for the first time put the administrative structures and systems of the judiciary under the control of a serving chief justice,” with “full control” over the judiciary’s budget and internal financial systems.

As the reports note, these moves follow “years of sustained pressure from previous chief justices and other senior judges”, but whilst progress is to be welcomed, the exact modalities of the proposed reforms will need to be carefully evaluated. For example, the Minister of Justice was quoted as saying that the reforms could “result in a sitting chief justice appearing before a parliamentary oversight committee as the executive authority of the judiciary”, a prospect that invites careful consideration of the implications for judicial independence.  

Articles

FUL chairperson, Justice Azhar Cachalia, delivered an address on the state of the rule of law in South Africa. Issues discussed included the importance of strong legal systems, the judicial appointments process and the performance of the JSC, the responsibility of judges and lawyers to speak out against attacks on the legal system, and the independence, strength and competence of the judiciary FUL has also published two op-eds, analysing the Hlophe and Nulane decisions.

In an analysis of the Hlophe decision, the Professor Balthazar column describes the judgment as being of “extreme importance” for how it “asserts the centrality of the JSC to the integrity and legitimacy of the judiciary and the need to ensure that members of the JSC are suitably qualified for purpose.” The judgment constitutes “an important step by the judiciary to protect the integrity of the legal system against the kind of flagrant abuse which has characterised this sad Hlophe saga.”

A Sunday Times editorial is also supportive of the Hlophe judgment:

“If people who are appointed to a structure such as the JSC, which nominates judicial officers, are of questionable character it is obvious that that would undermine the judiciary’s legitimacy, public trust and respect. … [I]t would have been the height of irony that an impeached judge should end up being party to, and influencing, the selection of the nation’s judges, who are expected to be people whose character is beyond reproach. His membership would have risked eroding the integrity of the JSC and by extension the judiciary itself. 

The Constitutional Court’s 30th anniversary has prompted several reflections. Another Professor Balthazar column describes the court as having “set out to develop a viable constitutional jurisprudence that would contribute significantly to the transformation of South Africa from its racist, sexist, authoritarian past to a nonracial, non-sexist democracy.” The pattern of the court’s jurisprudence under the leadership of former Chief Justice Mogoeng is described as “more difficult to divine”, with “clear divisions … evident in the court”, notably in the field of administrative law. It is argued that the court, “with an extended jurisdiction to hear non-constitutional cases, struggled to deal coherently with tax, competition and other commercial disputes.”

The article further points to issues created by the judicial appointments process:

“There can be little doubt that the JSC during the leadership of Mogoeng did not discharge its constitutional mandate as was required by the Constitution. Applicants were subjected to aggressive and offensive questioning, while judges who would have added greatly to the overall knowledge and expertise of the court were not recommended for no justifiable reason. The upshot was that talented, deserving potential members of the court refused to be subjected to this pattern of unfair treatment, and thus did not apply for appointment, much to the overall cost of the court.”

The article argues that there has been “significant positive change” under the leadership of Chief Justice Maya, building on positives under the leadership of former Chief Justice Zondo, and concludes that whilst the court “faces a challenging future” and “some of the initial gloss has worn off from the record of the first court”, there is still “much to celebrate concerning the 30 years of the court’s existence.”

In a reflection on the court’s socio-economic rights jurisprudence, Professor Sandra Liebenberg argues that an “impressive body” of jurisprudence has been developed, through judgments which “are not only jurisprudentially extremely rich and nuanced, but … have also had real world impacts in improving the material conditions for those socioeconomic exclusion and discrimination.”

Professor Liebenberg discusses the standard of review utilized in socio-economic rights cases, arguing that the reasonableness standard “enables the Court to navigate separation of powers issues by placing the primary burden of realising socioeconomic rights on the State, but preserving its own role to evaluate the reasonableness of the measures adopted by the State.” Professor Liebenberg argues that this has allowed the court:

“to achieve a balance between appropriate respect for the legislative and policy-making roles of the other branches of government, whilst fulfilling its own constitutional mandate to provide appropriate relief when socioeconomic rights are violated.”  

The article concludes that the court’s jurisprudence “has had a significant international influence and has strengthened the trend towards ensuring that all fundamental rights are treated equally with regard to both their status and enforcement.”

Ahead of the Deputy Chief Justice interviews, an analysis of the role by Judges Matter emphasises the importance of the DCJ providing intellectual leadership on the Constitutional Court, and playing a leadership role on judicial conduct and ethics.   

Issued by Freedom Under Law