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

This month’s news was dominated by the sad passing of two former Constitutional Court judges, both from among the court’s original judges. Justice Yvonne Mokgoro passed away on 9 May, while Justice Laurie Ackermann passed away on 26 May. Tributes to Justice Mokgoro emphasised her contribution to developing the concept of ubuntu and championing the role of African values in the development of South African law. Justice Ackermann’s contribution the development of the concept of human dignity in South African jurisprudence was particularly highlighted.

FUL has published tributes to Justices Mokgoro and Ackermann.

Judicial Appointments

The JSC convened on 20 and 21 May to interview candidates for the Supreme Court of Appeal (following FUL’s litigation challenging the JSC’s decision to leave two vacancies open following the October 2023 interviews), and to interview Justices Maya and Zondi for the positions of Chief Justice and Deputy President of the Supreme Court of Appeal respectively.

10 candidates were interviewed for the SCA vacancies, with the JSC recommending the appointment of judges Keightley, Smith, and Unterhalter. With the JSC’s previous repeated refusals to recommend the appointment of Judge Unterhalter for appellate court positions proving to be such a lightening rod of criticism, this outcome should at least assuage some concerns over the JSC’s recent appointment practices.

Prior to the interviews, it was argued that with three further vacancies for the SCA having been advertised for the October 2024 sitting, the JSC should fill all six vacancies in the May 2024 sitting. Although there is merit in this argument, especially considering the strong list of candidates shortlisted for the May interviews, the JSC did not follow this approach. Despite concerns about the JSC’s ability to interview all the shortlisted candidates on one day, the interviews were completed on the scheduled day.

To nobody’s surprise, the JSC found Justice’s Maya and Zondi suitable for their respective appointments. The interview of Justice Maya was naturally a particular focus of attention. The importance of the position of Chief Justice need hardly be emphasised, and Justice Maya stands to serve nearly ten years in the position. There was therefore keen interest in what vision she would articulate for the judiciary, particularly drawing on her experience as the sitting Deputy Chief Justice. From this perspective, the interview was a disappointing event. Perhaps because of JSC fatigue after being interviewed for the third time in as many years, many have remarked on the brevity and absence of detail in Justice Maya’s responses. Rebecca Davis described the interview as follows:

“By the end of the interview, her responses were of astonishing brevity; sometimes just a few words in length. But perhaps that reflected the nature of the JSC questioning, which rarely seemed designed to test her in any significant way.”

It must be noted that this contrasts with the more expansive vision Justice Maya articulated in her 2022 interview for Chief Justice, when Justice Zondo was appointed ahead of her. It was also striking to hear Justice Maya describe the intense workload at the Constitutional Court and the demands it places on the judges, and to note her remark that she was a “very different” candidate from the one interviewed in 2022. Justice Maya described it as a “sobering experience” to have gained insight into what the job of Chief Justice entails, and recounted –hopefully at least partly tongue in cheek – a conversation with Justice Zondo where she had remarked that there was “nothing attractive” about the position of Chief Justice, which is “too hard”. Perhaps many a true word is indeed spoken in jest, insofar as these remarks give insight into just what a challenging and multifaceted role the position of Chief Justice has become.

FUL produced an op-ed previewing the interviews, highlighting in particular the range of issues that we suggested the JSC should explore with Justice Maya. These included her judicial philosophy, relevant to her intellectual leadership of the judiciary; her plans for addressing backlogs and delays at the Constitutional Court; her views on the appropriate governance model for the judiciary; her plans to address concerns about the JSC’s performance; examples of her demonstrated personal independence; and her plans for judicial training and development.  Unfortunately, the interview cannot be said to have shed significantly more light on these issues than what was already in the public domain.

The JSC has released a call for nominations for vacancies to be filled at its October 2024 sitting. This promises to be a bumper round, both in terms of the number of vacancies and their significance. 26 vacancies have been advertised, including the longstanding Constitutional Court vacancy (which will have stood open for three years by the time the interviews take place), three further vacancies on the SCA, Judge President positions for the Labour Court and Western Cape High Court, and Deputy Judge President positions for the Land Court, KwaZulu-Natal High Court and Mpumalanga High Court.

The interviews are scheduled to take place from 7 – 11 October 2024.

Judicial Conduct

There has been significantly less activity on the judicial conduct front this month. The JSC has declined to endorse the Judicial Conduct Committee’s recommendation that a complaint against Judge President Mlambo be referred to a judicial conduct tribunal (see our March 2024 note).  

The tribunal dealing with the complaint against Judge Makhubele has set timelines for the finalisation of its proceedings.  Heads of argument are to be submitted by the end of June, with oral arguments to be heard between 22 – 24 July 2024.  

The corruption case against suspended KwaZulu-National Regional Court President Eric Nzimande has been postponed to August 2024 for pre-trial proceedings. Nzimande also faces a disciplinary inquiry relating to 162 counts of misconduct. 

Significant cases

In last month’s note, we discussed and noted criticism of the Electoral Court’s judgment in Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others. Considering the concerns raised about the Electoral Court’s reasoning, it was not a great surprise that the Constitutional Court has now overruled the Electoral Court’s decision, confirming that former President Zuma is not eligible for the National Assembly.

In a unanimous judgment by Theron J (Maya DCJ, Bilchitz AJ, Gamble AJ and Madlanga, Majiedt, Mathopo, Mhlantla and Tshiqi JJ concurring), the Constitutional Court held that the fact that Zuma had been sentenced by the Constitutional Court, and that no appeal had been possible, did not prevent the operation of the disqualification in section 47|(1(e) of the Constitution. Theron J held that any suspension of the disqualification “would not serve the specific purpose sought to be achieved by the proviso because there is no possibility of the conviction and sentence being overturned on appeal.” The Electoral Court’s finding that because Zuma could not appeal the sentence imposed by the Constitutional Court, it did not qualify as a sentence in terms of section 47(1)(e), was expressly rejected:

“The interpretation of section 47(1)(e) of the Constitution adopted by the Electoral Court subverts the very purpose sought to be achieved by the section.  The Electoral Court’s interpretation means that a person convicted and sentenced by this Court as a court of first and final instance is permanently immunised from the disqualification contained in section 47(1)(e).  On the Electoral Court’s interpretation, the disqualification will never kick in because the conviction and sentence are not able to be appealed. …

[T]he Electoral Court’s reasoning undermines the authority of this Court, the apex court of the country.  It means that had the same sentence been imposed by the Magistrate’s Court, Mr Zuma would be disqualified (because there are appeals), but since he was sentenced by this Court, he is not disqualified (because there is no appeal).”

On the effect of the remission of Zuma’s sentence, Theron J held that section 47(1)(e) engaged the length of the sentence imposed, not the length of sentence served. Remission of sentence was irrelevant for the purposes of section 47(1)(e), and Zuma was therefore disqualified from being a candidate for the National Assembly.

The court also rejected an application for the recusal of six of the justices (Madlanga, Majiedt, Mhlanthla, Theron and Tshiqi JJ) who had been members of the bench in the contempt proceedings which gave rise to Zuma’s conviction. The Court found that the present case concerned “a narrow and defined legal issue that is capable of determination without an interpretation of the contempt judgment.”

Notwithstanding the substantive outcome, some concerns have been raised about the conduct of the hearing, as discussed in section 6.

In My Vote Counts NPC v President of the Republic of South Africa and Others, the applicant sought an interdict to preserve the upper limits and disclosure thresholds for political parties under the Political Parties Funding Act, which had (it argued) been repealed by the Electoral Matters Amendment Act. The applicant sought to revive these limits pending the finalisation of a challenge to constitutionality of relevant provisions of the Electoral Matters Amendment Act and the Political Parties Funding Act. Thulare J agreed that the upper limit and the threshold had been repealed, and that a prima facie right had been established. The interdict was granted.

Judicial independence and governance

The Judicial Officers Association of South Africa (JOASA), an organization which represents South Africa’s district court magistrates, is reportedly considering strike action over concerns about pay (reports identify two components to this issue – dissatisfaction over the gap between pay for judges and magistrates, and pay increases being lower than inflation), as well as poor working conditions. The Department of Justice has cautioned that as the Labour Relations Act does not apply to magistrates, any strike action would be illegal.

According to reports, JOASA was taking advice on the potential strike, and with no further developments at the time of finalizing this note, the threat may well not eventuate. However, the incident is further evidence of concerning challenges relating to the working conditions of South Africa’s magistrates.   

Articles

In a preview of the May JSC interviews for the SCA, Mbekezeli Benjamin of Judges Matter calculates that over the past decade, the SCA has lost “more than 240 years of appellate judicial experience” due to “natural attrition, including several promotions, retirements and two deaths”, and that over the past five years “at least 18” of the court’s complement of 25 judges have been replaced. Benjamin highlights that when the court’s current Deputy President, Xola Petse, retires in July, “only two of the remaining judges will have more than a decade’s experience on the SCA.”

Benjamin also notes that whilst the SCA is regarded as the country’s best performing court in terms of the judiciary’s most recent annual report, concerns have been expressed about “a few exceptions where the SCA has taken months and the general quality of its judgments.” (In this context, the JSC’s decision to recommend the appointment of three experienced and respected judges to the SCA is to be welcomed.)  

Benjamin also previewed the interviews of Justices Maya and Zondi, highlighting that Justice Maya’s presumptive tenure as Chief Justice would come at a time “when the South African judiciary is facing serious challenges and rapid changes”:

“The top resolution of the judges’ conference in December was two demands: that the administration of the courts move from the hands of the minister of justice to the hands of judges themselves and that the magistrates’ courts and the superior courts be unified under a single judicial branch.  Both demands are complex and fraught with political tension between the judiciary and the executive.”

Benjamin further argues that Maya needed to address the need for a greater number of judges in the judiciary, the digitisation of the judiciary, and demonstrate “how she will speak out in defence of the judiciary and inspire public confidence.”

In a less than fulsome assessment of Justice Maya as a presiding judge, Rise Mzansi leader Songezo Zibi has described the Constitutional Court hearing in the Zuma candidacy case as “a violation of the last-remaining sacred space of our democracy, the Constitutional Court”, arguing that:

“Advocate Dali Mpofu’s behaviour – and the way the court permitted it – is a sign of how deeply corroded our democratic institutions have become due to the anti-democratic politics of the ANC and its spin-off parties.”

Zibi asserts that Mpofu “spoke for a whopping six hours rather than the approximately two hours allocated to him”, without seeking the Court’s permission:

“Once or twice, Deputy Chief Justice Mandisa Maya, the presiding judge, asked Mpofu to wrap up. But he simply ignored her, and she pretended he wasn't breaking the rules. This is a critical moment we might look back on and view as a tipping point towards the chaos that comes when there is not an independent and respected judiciary. “

Zibi is critical of Justice Maya for “not reining Mpofu in”, arguing that by doing so, she “participated in the denigration of an institution that is supposed to be where all of us conform to the principles and norms that make us a democratic country.”

He further criticises Mpofu’s representation of politically contentious clients as a means of pursuing an agenda:

“to undermine the judiciary, and to weaken the rule of law. His behaviour drives the point home that our courts do not deserve respect or deference. They are to be ignored and insulted and must be seen to submit to powerful politicians.” 

Zibi suggests that:

“There is verifiable pattern of bad behaviour that Mpofu reserves for certain judges, certain cases and public hearings ... He is an experienced advocate with significant intellect. He knows what he is doing is wrong and chooses to do it anyway … [H]e is more than simply doing his best for a vexatious client. He is part of a conscious effort by actors both within and outside the ANC to discredit the courts – so that they can govern, now or in the future, without the disinfecting sunlight of an independent and respected judiciary.”

The Zuma candidacy case also raised questions about the strength of the Electoral Court (see the analysis of the judgment in last month’s note). Mbekezeli Benjamin analyses the challenges faced by the court, noting that the court operates on an ad-hoc basis, staffed by part-time judges. According to Benjamin, the court has gone five years without a full complement of judges, relying on acting appointments to maintain its quorum. He suggests that “[t]he lack of a permanent corps of members has serious implications for the court’s efficiency and effectiveness.” Benjamin notes that few members of the court have experience of working in five-judge panels (as the Electoral Court does), and suggests that this may explain the multiple, divergent judgments in the MK v IEC case.

Other challenges identified as facing the court are difficulties with attracting candidates for appointment to the court; a lack of permanent administrative or research staff; and the absence of any additional budgetary allocation to help the court cope with the likely increase in workload caused by the 2024 elections.      

With the passing of the National Health Insurance Act, attention has been drawn to potential legal challenges to the legislation. Pierre de Vos expresses skepticism about the likely success of such challenges, arguing that:

“[T]he Constitutional Court will decline any invitation … to torpedo the implementation of the entire Act, not least because it is not the role of the court to make decisions on whether a specific policy choice of the government is good or bad, or whether there were better ways for the government to achieve its legitimate policy objectives.”

De Vos acknowledges that there are “valid concerns about the ability of a weak and corrupt government to fund and implement the [NHI] scheme,” but argues that “the Constitutional Court is not the appropriate body to address such concerns”, and that the court’s role in invalidating legislation “is a limited one in cases where it is called upon to review legislation that implements the policy choices of the elected government.”

De Vos considers various grounds for potential challenges. He suggests that an argument that the legislation is a violation of the right to freely choose a trade or profession would likely be based on an argument that NHI would eventually “put some or most medical schemes out of business.” De Vos regards such an argument as unlikely to succeed, as “the court would be asked to invalidate legislative provisions based on sweeping claims about their possible effect in the distant future, which is never a winning argument.”

Regarding a possible argument that “the NHI would infringe on the section 27 right of access to healthcare of those who already enjoy easy access to high-quality healthcare”, De Vos argues that “it would be surprising if our courts found that any such limitation was not justifiable … particularly given the important purpose being served by the NHI and uncertainty about the exact impact of the new policy.”

Issued by Freedom Under Law