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 has called for submissions on the candidacies of prospective Chief Justice Maya and SCA Deputy President Zondi. The deadline for comments is 2 May 2024. No date for the interviews of the candidates has yet been announced.

The JSC sits from 8 – 10 April to interview candidates for the Constitutional Court, Judge President of the Land Court, and judges of the Electoral Court and North West High Court. As this note was being finalised, it emerged that Advocate Matthew Chaskalson SC had withdrawn from the Constitutional Court interviews. This means that the JSC will now be interviewing the minimum number of four candidates, with four names needing to be sent to the President to make the final selection.

The General Council of the Bar has released its comments on the candidates. The diversity of the background of Constitutional Court candidates is highlighted by the GCB’s comment that it is “simply not possible to evaluate” Professor Bilchitz “in accordance with the criteria ordinarily applied to other candidates”, as he has not written any judgments. The review does praise his academic writing, and notes that he has a “vast knowledge of law” and that “his academic writings strongly suggest that he is fiercely independent”.

Advocate Dodson SC is praised for “a long history of anti-apartheid work whilst a legal professional” and for his “commitment to human rights and the values and the needs of the community” as evidenced from his judgments while serving as a judge of the Land Claims Court. Judge Makgoka’s judgments are said to “show an understanding and application of legal principles” and “reflect the development and maturity of the candidate as a Judge”. The GCB notes that Judge Schippers would be eligible to serve for just over four years as a judge of the Court and praises his commitment to the values of the Constitution.

Regarding the candidates for Judge President of the Land Court, the GCB states that Judge Carelse “has shown that she has a good grasp of the principles in land claims and would be an asset as the Court’s head” and praises the quality of her judgments. The GCB suggests that her experience of acting as DJP of the Gauteng High Court shows peer support for her leadership. Judge Cowen is praised for her “judgments and the passion she has for issues associated with land restitution”. The GCB suggests that her “judicial candour makes her suitable for the position” and notes some degree of experience with the “dynamics and technicalities” of managing the court. The GCB is also positive about Judge Mia, describing her as having an “impressive professional history” and as “maintaining proper judicial …[and] being polite and patient”, whilst conducting proceedings “with a firm hand and retain[ing] firm control of all proceedings”.  Judge Ncube is noted to have “extensive experience” in the Land Claims Court, and to have delivered “several seminal judgments” which have been upheld on appeal. It seems likely that the position will be very keenly contested.

As to the Electoral Court, no notable adverse comments are made about either candidate, although the GCB notes that whereas Judge Adams has some experience of acting on the court, Judge Yacoob does not. The view of candidates for the North West High Court is less rosy. Concerns are raised regarding Mr Matshitse failing to answer, in a previous interview, a question about the process to be followed if a judgment omitted to deal with the questions of costs. The GCB also notes that whilst the candidate has prior acting experience, he has not acted in the North West High Court. Regarding Ms Mogwera, the GCB notes concerns about a lack of experience outside criminal and family law and suggests that she requires more exposure to civil litigation. There are further concerns about the time taken to deliver judgments, that the candidate has also not specifically acted in the North West court, and issues arising in previous interviews about “court files and notes missing, resulting in a delay in handing down judgments”.  Mr Reddy receives more positive feedback, being described as “potential to be an exceptional Judge”.

Judicial Conduct

The President has now formally removed former Judges Hlophe and Motata from office, bringing to an end two infamously long-running sagas, and confirming the historic moment of the first ever removals of judges from office in South Africa’s history. (There is no indication of any decision on Hlophe’s application to the Constitutional Court to set aside proceedings against him).

The conduct tribunal dealing with the complaint against Judge Maumela began sitting, but after hearing evidence from the Gauteng Judge President, the tribunal had to be postponed after Judge Maumela was hospitalised. It is not known what his current state of health is or when the tribunal is likely to resume.

The tribunal dealing with the complaint against Judge Makhubele continues to grind slowly towards a conclusion. The tribunal resumed on 11 March, with the expectation that Judge Makhubele would call a witness, although it was revealed that the witness’ statement “did not accord” with the judge’s version of events. The tribunal declined a further postponement for the judge to consult with her new legal team, and for the judge to be re-examined by counsel. The parties were due to meet the following day to finalise the record and set dates for the filing of heads of argument, and oral argument. These details have not yet been announced.  

A Sunday Times report on the written submissions made to the tribunal into the complaint against Judge Mngqibisa-Thusi, relates that submissions describe a “wide range of personal circumstances” which “proved challenging” for the judge, including that “she had been struggling with a spiritual calling since the age of nine but had resisted it because of her strong Christian beliefs. This is said to have led to “periods in which she suffered from “migraines, visions, nightmares, disorientation, and mindlessness”, which had affected her work. It is submitted that the judge has now “fully recovered” from these challenges and would be able to cope in future.     

A complainant against both Judges Maumela and Mngqibisa–Thusi, Gauteng Judge President Dunstan Mlambo, may himself be referred to a tribunal over allegations that he misled the Minister of Justice and Parliament in relation to the non-appointment of a lawyer while the Judge President was the chairperson of Legal Aid South Africa. The recommendation, by the Judicial Conduct Committee appeals committee, must be confirmed by the Judicial Service Commission.

The situation regarding judicial conduct appears to be every bit as problematic in respect of the magistracy as it is in the superior courts. An ongoing hearing of complaints against KwaZulu-Natal regional court president Eric Nzimande has heard allegations that the magistrate “harassed" an acting magistrate after she rejected his alleged sexual advances”, and that he had received money from attorneys he recommended for acting positions.  

Just as alarmingly, it was reported that acting magistrate Stanley Jacobs, who struck the criminal case against former Eskom executive Matshela Koko from the roll due to unreasonable delay, is a director and shareholder of a company which received over R14-million from Eskom during a time “that Koko and another of his co-accused, Frans Sithole, held senior positions at the power utility”. The acting magistrate is further accused of providing “contradictory versions” when asked about his failure to disclose his interest in the company.

Significant Cases

In last month’s note, we observed that the Constitutional Court had not yet handed down a judgment in 2024. No judgment was handed down in March either, and the situation has moved from being an oddity to a matter for alarm – particularly in the context of issues relating to the court’s workload and attempts to address them, discussed in section 4.

It can only be hoped that the imminent appointment of a new Chief Justice will lead to this matter being addressed urgency. The JSC should raise the issue with Justice Maya in her interview, to establish the incoming Chief Justice’s understanding of the problems, and her plans to address them.

In an unusual case of recusal, the SCA in SAP SE v Systems Applications Consultants (Pty) Ltd t/a Securinfo and Another considered a scenario where the judge hearing a trial online (during the Covid-19 pandemic) had become “irritated and summarily abandoned the proceedings with the parting words, ‘when you’ve finished you’ll let me know. I am taking a break’”, with the expectation that the ongoing cross-examination would continue in his absence.  

The SCA (per Ponnan JA, Gorven and Meyer JJA and Koen and Baartman AJJA concurring) found that the judge had thereby  “curtail[ed] … a legitimate avenue of cross examination and … fail[ed] to keep an open mind” on the issues in question, which “undoubtedly infected the substantive merits of the matter, thereby resulting in a manifest failure of justice.” Ponnan JA further emphasised the need for judicial scrutiny of counsel’s performance to be “highly deferential”, and that in the circumstances, there was a reasonable apprehension of bias.

The judgment is discussed by Carmel Rickard, who describes it as “one for the history books – never before has a judge simply walked out in irritation with counsel, directing that the proceedings should continue in his absence”, and notes the cost implications of a case which had been “hugely expensive to run” potentially having to restart from scratch.

With a due sense of inevitably, former President Zuma’s application for reconsideration or variation of the SCA’s refusal of a previous application for leave to appeal against the invalidation of his private prosecution of Billy Downer and Karyn Maughan has been dismissed.    

In Namibia, the Supreme Court has re-confirmed the convictions of South African advocates Mike Hellens and Dawie Joubert for immigration offences, overturning a high court decision that the initial proceedings were vitiated by irregularities. At the time of their arrests, the advocates were reported to be due to represent six of the accused, including former Namibian government ministers, in a bail application for the so-called "Fish-rot" corruption case.

Judicial Independence and Governance

In last month’s note, we discussed reports of the programme introduced at the Constitutional Court where retired judges of the Court appeared to be playing a role in advising the current court on applications for leave to appeal, and the concerns raised by FUL and other organisations about the initiative. The OCJ has since released a statement “at the instance of the Chief Justice” announcing that the programme was being withdrawn. The statement attributed the backlog of cases which had prompted the programme’s introduction to the “huge increase in matters that are brought to the Constitutional Court since the expansion of the Court’s jurisdiction”. The statement indicated that to deal with the issue in future, steps would be taken to employ “experienced lawyers” to provide support to the judges in dealing with new applications” (supplementing the existing role of law clerks); and to seek a Constitutional amendment to ensure that the Court would not be required to sit en banc in deciding whether to grant leave to appeal.

While the withdrawal of what we have argued to be a problematic intervention is to be welcomed, care should be taken to ensure that any reforms fully address the context and underlying issues, rather than providing a short-term “sticking plaster” to the problems. As we note in an op ed, FUL will be conducting research to analyse these issues, in order to develop proposals which address the fundamental design and structure of the apex courts.

In a speech at the National Conference on the State of Human Rights, Chief Justice Zondo was reported as stating that “not once have I ever had any minister, president, or official phone me or ask me for a meeting to discuss how a particular case should be decided”, and that it was “clear that we need stronger independence of the judiciary”, specifically in respect of “serious challenges when it comes to institutional independence.” The Chief Justice is quoted as saying that he had “begun discussions” with the President “aimed at making sure that the institutional independence that is contemplated by our Constitution will be conferred”, although no further details were given.

The potential impact of a smaller budgetary increase than requested by the Department of Justice includes an estimated increase in backlogs of court cases of 150 000, as well as hampering the expansion of specialised commercial crimes courts and the full implementation of gender-based violence legislation. Delays are also anticipated in processing maintenance cases and administering estates.

Articles

An article by journalist Ray Hartle raises concerns about “about judges and lawyers inveigling themselves into one or another role in support of [Eastern Cape Judge President] Mbenenge, outside of legislated processes. (As discussed in an earlier note, a complaint of sexual harassment against the Judge President has been referred to a judicial conduct tribunal). Hartle concludes that whilst the removal from office of former judges Hlophe and Motata might make it “enticing to imagine … that our country has appropriately answered the question: “Quis custodiet ipsos custodes?” (“Who judges the judges?”) … [T]he fact that the process took 15 years to be concluded and required legal intervention by civil society before motions to impeach the two judges were presented to the National Assembly gives the fantasy to such imaginings.”

In a pertinent contribution to the buildup to the elections, Ben Winks considers the regulation of anti-constitutional and anti-democratic speech in political campaigns. He considers examples of speech hostile to migrants and the LGTQI community and argues that the law does not prohibit parties from campaigning based on such speech, since the Electoral Code of Conduct does not include national origin and sexual orientation among the grounds of discrimination prohibited in connection with an election. Noting that the Constitution’s prohibition of unfair discrimination is cast more widely, Winks argues that this creates a “serious and dangerous gap in our electoral legislation”, since “the IEC cannot do anything to stop parties and candidates from propagating homophobic and xenophobic hatred”.

“An election should, while permitting robust debate, still be an environment where all who live in South Africa have a sense of belonging, legitimacy, and acceptance. 

Electioneering should not come at the cost of anyone's essential human dignity.”

Winks concludes that the Electoral Act is unconstitutional to the extent it does not provide equal protection from populist attacks to all marginalised groups.

Also on the topic of the forthcoming elections, FUL has published an op-ed analysing the manifesto positions of major political parties on rule of law issues.

Issued by Freedom Under Law