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

With the JSC set to interview candidates at its upcoming sitting on 1 April, the GCB has released its comments on the candidates. The candidate for the Electoral Court, Judge Leicester Adams, is described as a “competent judge” whose “knowledge and understanding of the law appear to be of a high standard and his ability to adjudicate complex disputes is evident from his judgments.” He is described as having a “good knowledge of constitutional law” and as having demonstrated a “sound knowledge” of electoral law. The review also comments that Judge Adams “does not appear to have any political leanings that could impair his ability to conduct himself objectively and with integrity as a member of the Electoral Court.”   

Of the candidates for the Labour Court, the GCB notes that Advocate Ford disclosed a complaint against himself and two permanent members of the Labour Court, which has been dismissed, but was subject to an appeal. Whilst noting that the candidate has “significant experience as a CCMA commissioner and in extra-curial labour dispute resolution”, the GCB observes that he has only acted in the Labour Court for eight weeks over the past two years.

Ms Gandidze is said to have “to have spent a significant portion of her legal career specialising in the field of labour law”, and no notable adverse comments are made regarding her candidacy. The GCB praise Advocate Harvey for having “devoted her career to utilising the law – particularly labour law – as a means to achieving social justice”, and for exhibiting “a commendable grasp of the law” in her judgments.

The GCB notes a previous finding against Ms Norton, together with other directors in a law firm, for failing to ensure adequate internal safeguards to protect trust funds. The GCB takes the view that “[a]s the fine was imposed for negligence rather than dishonesty, the infraction does not appear to disqualify the candidate from being appointed as a judge.” The candidate is praised for a “deep, long-held commitment to equality” and “a personal commitment to the rule of law and constitutionalism.”   

Freedom Under Law’s ongoing challenge to the process followed at the JSC’s October 2023 sitting has received media coverage highlighting the case’s “significant consequences for how the commission does its work.”     

Judicial Conduct

A decision by the Judicial Conduct Committee (JCC) in respect of complaints against retired KwaZulu-Natal High Court judge Anton van Zyl has called into question some fundamental assumptions about the accountability of judges. It has long been accepted that a judge can be removed from office in terms of section 177 of the Constitution even though they may have retired from active service. The removal of former judge Motata from judicial office is the most high-profile example, and the JCC itself accepted this premise when, in October last year, it  referred a complaint by impeached former judge Hlophe against former Chief Justice Mogoeng to a tribunal.

Judge van Zyl faced complaints relating to failures to deliver judgments timeously (it appears that some of the judgments in question are still yet to be delivered, and one of the overdue judgments dates back to 2012). Van Zyl J had retired from active service when the complaints were lodged. A majority of the JCC (Jafta J, Saldulker and Shongwe JJA concurring) held that a judge could only be removed from office under section 177 of the Constitution if they held judicial office and had not been discharged from active service. As Van Zyl J had retired from active service, the complaint could not be referred to a judicial conduct tribunal. The complaints were remitted to the Chairperson of the JCC for an inquiry in terms of section 17 of the JSC Act.

A dissenting opinion by Mabindla-Boqwana JA, concurred in by Maya DCJ (as they then were), would have recommended the establishment of a tribunal. The dissent placed great emphasis on the SCA’s decision in Freedom Under Law v Judicial Service Commission (the judgment which had paved the way for the removal of judge Motata from office), holding that this decision was binding on the JCC, and that the SCA had “clearly construed section 177 as applicable to a retired judge as a holder of judicial office.” The dissent also highlighted the judgment in Seriti v Judicial Service Commission, where the Gauteng High Court had expressly rejected the argument that “that a person can only be a judge during the term of active service or term of office.”

A separate concurring opinion by Saldulker JA (Jafta J and Shongwe JA concurring) held that the SCA’s comments were obiter dicta, and differed from the minority’s view that the constitutional and legislative scheme did not permit the distinction between sitting and retired judges drawn by the majority.

As we discuss in an op-ed, the majority decision is problematic in several respects. It is inconsistent with court decisions which, even if they were not strictly binding on the JCC, ought to be highly persuasive. For the JCC to take a contrary approach creates incoherence and uncertainty in the law. The decision is inconsistent with the JCC’s own practice and is hard to reconcile with the arrangements whereby judges continue to be paid a proportion of their salary on retirement from active service. The decision would present a barrier to judicial accountability.    

Furthermore, it seems anomalous that a retired judge cannot be subject to removal from office but remains subject to sanctions short of removal under the JSC Act. It is hard to accept that a principled distinction can be made to justify a retired judge being sanctioned under section 17 of the JSC Act if they do not, as per the JCC majority ruling, in fact hold judicial office and are not subject to removal from it.

The JSC Act does not provide for an appeal process at this stage of the process, so it remains to be seen what will transpire following the section 17 inquiry. It is open to the inquiry to return the matter to the JCC with the recommendation that a tribunal be convened, so it is notionally possible that the chair of the inquiry may attempt to countermand the JCC majority. However, this would likely result in the JCC, simply reasserting its position. Once the inquiry is concluded, there will be opportunities for the complainant or the judge to appeal. It may also be that other parties will seek to review the JCC’s decision. 

The JSC will reportedly consider the tribunal recommendation that Judge Makhubele be removed from office, and the recommendation that former judge Hlophe’s complaint against Justice Mogoeng be referred to a tribunal, at its April meeting. If the JSC accepts the tribunal recommendation in the Makhubele matter, the matter will be referred to Parliament to vote on the judge’s potential removal from office.       

Significant cases

The Constitutional Court handed down its first judgment of the year on 24 March. Last year, we noted concerns about how long it took the court to deliver substantive judgments. In 2024, the first such decision was handed down on 12 April. The situation in 2025 is therefore only better by a couple of weeks, highlighting that concerns about the efficiency and functioning of the Constitutional Court remain very much alive.

The judgment itself, Ekapa Minerals (Pty) Ltd and Another v Sol Plaatje Local Municipality and Others, concerned a challenge to the imposition of municipal rates on mining properties. The applicants had successfully sought to review and set aside the Council’s decision to fix a ratio of rates for mining properties that was 22 times greater than those for residential properties. The high court had, however, ordered that the setting aside only operate prospectively. In a unanimous judgment by Gamble AJ (Zondo CJ, Maya DCJ, Biltchitz AJ, Madlanga J, Mathopo J, Mhlantla J and Tshiqi J concurring), the Constitutional Court held that the high court had misdirect itself in granting the order with prospective effect only. The Constitutional Court held that the high court had failed to have due regard to the “impact of the principle of legality and Ekapa’s rights and substantial prejudice in having to pay … unlawful rates.”

Gamble AJ held further that:

“if the prospective order of the High Court stands, the municipality will be entitled to sue and recover the unpaid portion of the rates, despite the decisions levying the rates having been found to be unlawful and having been set aside. …”

The order of invalidity was made fully retrospective.

In Frankel Engelbrecht N.O and Another v Mokitimi and Others, a full bench of the Northern Cape High Court (Tlaletsi JP, Phatshoane DJP and Mamosebo J) was faced with a situation where an interim interdict had been issued, prohibiting the first respondent from receiving and dealing with rental income due to an estate, and interdicting her from dealing with the assets of the estate. The order was initially ignored, and the first appellant brought an application for contempt of court.

The court a quo expressed concern about the Prescence of an alternative remedy, and “bizarrely” rescinded the rule nisi. During the proceedings, the presiding judge, Nxumalo J, had remarked that:

“Every accused person has a right to a fair trial, which include the rights to be informed of the charge with sufficient detail to answer it, to have adequate time and facilities to prepare a defence. Now with the greatest respect I’m not going to tell you what the Constitutional Court did to Zuma. I’m not gonna do that. I might be a [indistinct] judge but I know something about fundamental rights. I’m not going to convict somebody of contempt of court in circumstances when there is an alternative relief right within the four corners of the very Act that is being enforced. It would be egregious and very career limiting.”

The full bench criticized these comments, describing them as:

“egregious, uncalled for and unprincipled. Their import is plainly that “what the Constitutional Court did to Zuma” was a misdirection. They fly in the face of the doctrine of precedent or the stare decisis system.”

The full bench further held that Nxumalo J had violated the appellants’ constitutional right of access to courts, as the main application had been adjudicated, despite not serving before the court a quo and despite the absence of affected parties, since the appellants “were neither served nor made aware that the main application would be adjudicated.”

The full bench held that the interim interdict was “for all intents and purposes a valid order” which “did not deserve” a “gratuitous attack in a busy open unopposed motion court proceeding” from the court a quo. The appeal was upheld and the order of the court a quo rescinding the rule nisi was set aside.

The Gauteng High Court, Johannesburg has ordered the City of Johannesburg to pay over R12 million in damages for pure economic loss caused by the City’s failure to obtain emergency accommodation for the occupiers of a building owned by a private company. The original order had been granted in 20212 following an eviction application brought by the company. Mahosi J held that the City had not complied with the original order, with the offers of accommodation tendered having been “non-existent, inadequate or unacceptable.” The manner in which the City had litigated was held to constate a “Stalingrad approach … justif[ying] an order of costs on a punitive scale between the attorney and own client.”

Longstanding concerns about the performance of the National Prosecuting Authority (NPA) were heightened by the discharge of the accused in the so-called Nulane trial, relating to allegations of fraud and money laundering, for which attempts were made to extradite Atul and Rajesh Gupta. This month, the SCA heard an application by the NPA to set aside the discharge and order a retrial. The outcome of the case will be vital for public confidence in the NPA’s ability to prosecute this and other state capture related cases.     

In a further embarrassment for the NPA, it has been ordered to pay Afriforum’s costs for the successful private prosecution of a man who assaulted his neighbour. The NPA had declined to prosecute, but Afriforum’s private prosecution unit was able to obtain a conviction.   

Administration of justice

Gauteng Judge President Dunstan Mlambo has released a draft directive for comment, in terms of which a mediation protocol for civil trials will be introduced  whereby trial dates will not be allocated unless a mediator’s report is provided. The directive especially mentions that the judicial establishment of the division was last increased in 2008, but that the caseload “has now reached unmanageable levels”, with civil trial dates being allocated as far ahead as 2031. The proposal would come into effect on 14 April 2025.

Reactions to the directive have been mixed. Arguments in favour of the scheme highlight the impact of the large number of cases which settle on the morning of trial, and suggest that mediation can further the constitutional right of access to justice.   Reservations include making mediation, by definition a voluntary process, mandatory; the impact on litigants’ right of access to courts; and the capacity and cost implications of providing mediation on such a large scale. (See also the discussion under section 6).

Democratic Alliance MP’s have criticised the Department of Justice and Constitutional Development for employing legal representatives to assist a magistrate in seeking an interim protection order against two journalists. The magistrate had been accused of ignoring warnings that a 13 year old boy (accused of raping an 11-year-old) presented a high risk of re-offending when he was released. The boy subsequently fatally stabbed a 15-year-old girl.

The magistrate argued that the reporting on the case constituted harassment and defamation, although the interim protection orders were subsequently discharged. The use of state resources was justified on the basis that the underlying issues were “intrinsically linked” to the course and scope of the magistrate’s employment. The MP’s criticise this decision, describing it as a “serious misuse of public resources” and arguing that it “raises serious concerns about the government’s willingness to weaponise legal mechanisms to supress oversight or criticism rather than uphold press freedom.”           

UCT’s Democratic Governance and Rights Unit and Judges Matter program have launched a running progress report on the fight against corruption, featuring a record of decisions by the Special Tribunal and Specialised Commercial Crimes Courts.   

The legal profession

A former advocate who was struck off the roll in 2023 and “continues to come into the court buildings ... demanding a right of appearance before a number of judges” has been barred from the Gauteng High Court.

A former attorney who similarly sought to continue practicing despite having been struck off the roll is reported to have been arrested for fraud contempt of court. The former attorney, who is reported to have changed his surname after being accused of trust fund misappropriation by the Legal Practice Council, had attempted to represent one of the accused in the ‘asbestos scam case’ which also features former Free State Premier Ace Magashule and businessman Edwin Sodhi as accused.       

Articles

Mbekezeli Benjamin of Judges Matter previews the JSC’s April 2025 sitting, highlighting the need to fill the vacancies on the Electoral and Labour Courts for which interviews will be conducted, but pointing out that several significant vacancies – including on the Competition Appeal Court and various high courts – were not advertised. Benjamin notes pertinently, considering the Gauteng directive discussed above, that the Minister of Justice is due to meet with the JSC to discuss the Moseneke Commission’s recommendations on the judicial establishment.

Benjamin also notes that the JSC will be dealing with important conduct matters (as discussed under section 2) and repeats the call for the JSC to adopt a code of conduct for its commissioners.

Dan Mafora raises concerns about the Gauteng mediation directive, arguing that “mandatory mediation cannot and would not vindicate the right of access to courts”, and that “it would effectively deny thousands of litigants their right to have “any dispute that can be resolved by the application of law” decided by a court in a fair public hearing.” Mafora also questions the legal authority to impose the directive, expressing doubt as to whether the power given to the judge president to manage the judicial function of the division under the Superior Courts Act includes “the ability to shut the doors of the court to litigants — by diverting them to private mediation”.

Mafora also suggests that the private nature of mediation would undermine the principle of open justice, and that the removal of questions of law from consideration by the courts “would stunt the development of the law”. Mafora argues further that mediation process does not provide for the equal protection of the law and cautions that “the unequal power relations that often characterise civil disputes will be laid bare and, indeed, exploited.”

Mafora contends that the underlying issues are:

“structural and enduring and will not be fixed by diverting civil trials out of the judicial system into private mediation. They are symptoms of the failure of parliament and the executive to take seriously the concerns that judges have been raising about congested court rolls, deteriorating infrastructure and the lack of resources …”

Issued by Freedom Under Law