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 JSC’s interviews of candidates for Deputy Chief Justice concluded with the Commission recommending Gauteng Judge President Dunstan Mlambo as being “suitable for appointment” for the position. A JSC spokesperson would not be drawn on what view the JSC had taken on the other two candidates.

The Constitution only requires that the JSC be consulted on the appointment, so it is notionally possible that the President might make a different appointment, although this would seem unlikely. Mlambo JP offered the most comprehensive vision for the judiciary of all the candidates, and a member of the JSC was quoted as describing the recommendation as “correcting a major injustice” occasioned by the controversial treatment of Mlambo JP when interviewed for the position of Chief Justice in 2022.

FUL has produced an op ed discussing the importance of the position and noting that, by contrast with some previous judicial leadership positions, the conduct of these JSC interviews were largely unproblematic.  

The JSC has announced the shortlist of candidates for its October sitting. The most striking feature is that it has once again been unable to shortlist candidates for the Constitutional Court. Two vacancies were advertised, and whilst six applications were received, only five were eligible to be shortlisted. The JSC took the view that “[t]his means that if one of the candidates does not make the final list to be recommended to the President, there will be one candidate short to fill the two vacancies.” The JSC therefore readvertised the vacancies, still with the intention of conducting interviews at the October 2025 sitting.

Six candidates were shortlisted for the single vacancy on the SCA: Judges Gerald Bloem, Busisiwe Masipa, Ephraim Molitsoane, Thandi Norman, Bashier Vally and Leonie Windell. Judges Majiki, Makaula and Pakati were shortlisted for the Deputy Judge President position in the Eastern Cape High Court.

The tenure of Constitutional Court judge and current Deputy Chief Justice Mbuyiseli Madlanga comes to a conclusion at the end of this month. This means that the Constitutional Court now has a complement of only eight permanent judges, and it can only be hoped that vacancies can be filled following the JSC’s October sitting (the eventual appointment of the new Deputy Chief Justice will also fill one of the vacancies).   

Judicial Conduct

The leading of evidence in the tribunal dealing with the complaint against Judge President Mbenenge concluded. The tribunal has adjourned until October for final arguments. The tribunal has sparked considerable public interest (see the discussion in section 6), and the Judge President has been criticised by women’s rights organisations for “misogynistic and patriarchal” remarks during his testimony which are said to “reinforce gender inequality”, and for distorting cultural norms.   

A judicial conduct tribunal has found that Western Cape High Court judge Mushtak Parker committed gross misconduct and brought the judiciary into disrepute. The tribunal found that Judge Parker had given “diametrically opposed versions of the alleged assault” by former judge president Hlophe, leading “to the inevitable conclusion that Judge Parker has failed to uphold the integrity of the judiciary …

and, further, that he has failed to act honourably in the discharge of his duties” as required by the Code of Judicial Conduct. The tribunal additionally found that a trust account deficit at Judge Parker’s former law firm had been a “a live financial circumstance [at the time of his appointment as a judge] that he should have disclosed”, and that Judge Parker had “lied to the Judicial Service Commission that there were no circumstances, financial or otherwise, known to him which might cause embarrassment in undertaking the office of a Judge.”

If the JSC endorses this recommendation, the matter will proceed to Parliament to vote on removing Judge Parker from office.

The JSC has established a tribunal to deal with a complaint against KwaZulu-Natal High Court judge Jacqueline Henriques. The complaint relates to a delayed judgment which has been outstanding since 2013, and which reportedly has still not been delivered. The JSC itself appears to have been guilty of a significant delay in dealing with the complaint, with reports suggesting that the Judicial Conduct Committee recommend referral to a tribunal in September 2017, but the JSC’s decision to establish the tribunal “was ultimately only taken by the JSC in April 2025 and finalised this month.”

This delay is especially concerning in light of ongoing concerns about delays in delivering judgments, with Groundup reporting that at the start of the fourth term of 2024, 233 judgments were outstanding for at least six months.

One matter that will not be considered by a conduct tribunal is the complaint by former Judge President Hlophe against retired Chief Justice Mogoeng Mogoeng. As we discussed in a previous note, the Judicial Conduct Committee had recommended the establishment of a tribunal, but the JSC has now declined, by majority vote, to endorse the recommendation.    

Significant cases

The KwaZulu-Natal High Court, Pietermaritzburg has declined to confirm an interdict preventing a segment on the television program Carte Blanche from being broadcast. The segment included interviews with patients of the applicant, a cardiologist, alleging medical malpractice. Jikela J noted that “any restriction on media reporting warrants careful and cautious consideration”, and held that the applicant had failed to establish a clear right justifying the interdict:

“Vague references to pending investigations or hearings, without evidence of imminent or actual prejudice, are insufficient to justify a restraint on publication.”   

Jikela J held that the broadcast would not prejudice the adjudication of ongoing complaints against the applicant, and discussed the importance of media reporting in this context:

“Media reports are vital in ensuring transparency, accountability, and the protection of the public, particularly in sectors as essential as health care. Moreover, the ethical obligations of medical practitioners … emphasise the duty to act in the best interests of patients, to do no harm, and to maintain professional integrity. Where there are alleged breaches of these obligations, the public has a constitutionally protected right to be informed …”

Jikela J held further that the rights to dignity and reputation “cannot be invoked to shield conduct that may endanger lives or compromise patient care.” The public’s right to be informed thus outweighed reputational harm “provided the broadcast is responsible, truthful expression and without malice.” Granting the interdict sought “would amount to unjustified prior restraint and would undermine the essential role of the media in a democratic society.”

The decision will be welcomed in media circles. The granting of the interim interdicted had illustrated concerns about “[j]udges … hav[ing] twice in the past few months, for no persuasive reason, gagged journalists from reporting stories of public interest.”

Suspended Road Accident Fund CEO Collins Letsoalo has failed to interdict his precautionary suspension.

In another instance of artificial intelligence “hallucinating” nonexistent case citations, the Gauteng High Court, Johannesburg has referred the conduct of practitioners to the Legal Practice Counsel for investigation. DJ Smit AJ noted that while the judgment was being drafted, it had emerged that two cases cited in the applicant’s heads of argument “that could have been dispositive of this matter if they applied, do not exist.” Further non-existent cases were subsequently identified, and concerns were raised that other cases did not support the propositions for which they were cited. Smit AJ accepted that there had been no deliberate attempt to mislead the court and accepted counsel’s apologies, but held that “even negligence in this context may have grave repercussions particularly to the administration of justice and … could constitute serious professional misconduct.

In South African Legal Practice Council v Beukman, the respondent was struck off the roll of legal practitioners for misappropriating funds in the course of acting for a party in the sale of a property. Mayosi AJ (Slingers J concurring) held that the respondent had consistently failed “to conduct himself ethically” and shown “blatant disregard for upholding his oath as an attorney”.

The court was also critical of delays by the LPC in dealing with the matter:

“The LPC’s reasons for its internal delay of more than three years in prosecuting the case to completion are not ideal, given the critical oversight role it plays over the conduct of legal practitioners in the promotion and protection of the public interest. … [I]t must be said that as a regulatory body charged with championing the integrity and dignity of the legal profession in the eyes of the public, it must do better. The importance of its statutory mandate enjoins the LPC to act with the necessary haste in prosecuting complaints that come before it.  …”

Administration of justice

Allegations by the provincial police commissioner of KwaZulu Natal, Nhlanhla Mkhwanazi, that organised crime groups have infiltrated government structures include reference to the judiciary, although the exact nature and extent of the impact on the judiciary is currently unclear. The OCJ released a statement noting that the claims, “made without substantiation, are extremely damaging to public confidence in the independence and integrity of our courts - a fundamental pillar of our constitutional democracy.” The OCJ has requested evidence in support of the allegations to be furnished, and formal complaints to be made to the JSC or the Magistrates Commission where appropriate.

A commission of inquiry chaired by Justice Madlanga has been established to probe the allegations. The Constitutional Court has dismissed a challenge by former president Zuma and the MK Party to the president’s decisions to place the Minister of Police on special leave, appoint Professor Firoz Cachalia as Minister of Police, and establish the commission of inquiry. The court held that the application did not engage its jurisdiction and that no case for direct access had been made out.

Chief Justice Maya delivered a speech describing the use of English as the language of record in the courts as giving “priority to judges’ understanding of court proceedings over the needs of litigants”. The Chief Justice argued that many judicial officers are now “able to deal with court proceedings and legal records in languages other than English and Afrikaans”, and that “indigenous languages will only be developed and given intellectual status through regular use in professional settings, including in the legal profession and the courts.”

The Chief Justice is quoted as describing the marginalisation of indigenous languages as a “constitutional failure”, lamenting that “the association of English with professionalism, authority, elegance, sophistication, convenience and efficiency has created a false … assumption that indigenous languages are somehow less suited to legal reasoning … That assumption must be rejected.”

The Chief Justice also acknowledged the need to address capacity and resource constraints in the courts if parity between languages was to be achieved.   

A FUL op ed cautions on the practical challenges of implementing the type of reforms mooted by the Chief Justice.

Speaking at an anti-corruption conference hosted by the South African Council of Churches, former Chief Justice Zondo commented on moves to strengthen the institutional independence of the judiciary (see last month’s note), and argued that the structure of the JSC gives presidents and majority parties “too much power” and that “this door remains open for the capture of the judiciary.”

Zondo was subsequently quoted expressing discomfort at having had to swear in ministers against whom the state capture commission had made adverse findings, and describing the President as having been “inconsistent” in acting against cabinet ministers implicated in wrongdoing.  

Minister of Justice Mmamoloko Kubayi has indicated that the Department will “ask private companies to help revamp dilapidated court buildings”, following a budget allocation of R400-million, “well below the R1.6-billion [the department] estimates the upgrades require.” 

Legal profession

The Pan-African Bar Association (PABASA) has reportedly been rocked by mass resignations, with concerns being expressed about the organization having become “politicised”.    

Former advocate Seth Nthai has pleaded guilty to one count of corruption, arising from attempts to solicit a bribe while acting for the South African government in an arbitration. In terms of a plea agreement, a fine of R500 000 or two years’ imprisonment was imposed. (The previous history of this matter was discussed in our November 2024 and February 2025 notes).  

Articles

In an important discussion of the arguments about power dynamics at issue in the Mbenenge tribunal, Songezo Zibi draws on the dynamics between members of parliament and parliamentary staff:

“I have power they do not have. I have access they do not have. I have influence they do not have. It would be preposterous for me to say in any forum that, because I am not their manager, we are equals in terms of power dynamics. I hope the judicial conduct tribunal looking into a sexual harassment complaint by a staff member against Mbenenge does not buy this nonsense.”

Zibi describes Mbenenge’s attempts to suggest an equality of power dynamics between himself and the complainant as “laughable”, and argues that the implications of Mbenenge’s testimony in this regard are “staggeringly disturbing”:

“The effect is that in the Eastern Cape division of the high court it is OK for judges to send WhatsApp messages to junior staff and proposition them and pester them for nude pictures. The judge president of the Eastern Cape would have absolutely no problem with it.”

Zibi is also critical of “the invocation of culture, where it is apparently fine for a grey-haired church elder to ask a woman young enough to be his daughter to take off her clothes and send him a revealing picture.” He concludes that:

“In the final analysis, Mbenenge’s attitude and behaviour — and the tribunals, where he was allowed to be argumentative rather than directly answer questions, and was allowed to fire questions back at the evidence leader — reflect the patriarchal society we are. They show the steep mountain of sexism, mansplaining and subliminal violence women face every day, including female legal practitioners.” 

In similar vein, Fred Khumalo criticises the reliance on culture in Mbenenge’s defence:

“It is sad and infuriating that such senior members of society – two educated advocates, representing an equally educated, therefore presumably enlightened judge – have chosen to take aegis behind culture to cover up for the judge.

It is not only a distortion of African cultural reality, but it is also an insult to all South Africans who have been following this unnecessary drama.”

Gugu Lourie notes that the prospective appointment of Mlambo JP as Deputy Chief Justice “comes at a critical juncture for the Constitutional Court”:

“Once celebrated as a pillar of post-apartheid justice, the apex court is at risk of becoming a symbol of institutional failure. Outdated systems and little transparency conspire to delay justice for the poor and needy.”

Lourie notes delays in obtaining dates for court hearings and delivering judgments, and argues that Mlambo’s appointment “would present an opportunity for urgent reform”, considering a career path which “demonstrates a jurist willing to challenge the status quo.”  

Issued by Freedom Under Law