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

Justice Leonora Van Den Heever, South Africa’s first ever female judge and the first ever female judge of the former Appellate Division, has passed away at the age of 99. A statement by the Chief Justice paid tribute to Justice Van Den Heever’s “sharp, principled” legal mind and the “clarity and conviction” of her judgments, which “mould[ed] legal doctrine with integrity and a sense of justice”.

Judicial Appointments

The JSC has announced 15 vacancies for its April 2026 sitting: three for the SCA, one for the Land Court, two for the Competition Appeal Court,  five for the Western Cape High Court, three for the Eastern Cape High Court (these being the vacancies which were postponed from last month’s sitting), and the position of Judge President of the Gauteng High Court. Interviews will take place between 13 – 17 April 2026.   

Judicial Conduct

In an unprecedented development, Gauteng High Court judge Portia Phalane has been arrested on charges of corruption. According to news reports Judge Phalane, who was appointed to the bench in 2021, is alleged to have received over R2-million to rule in favour of one of the parties to a succession dispute in the International Pentecost Holiness Church. It is further reported that one of the parties to the litigation had brought an unsuccessful recusal application alleging that the judge had been bribed.

The judiciary released a statement, noting the arrest “with great concern”, and observing that it comes at a time when “public confidence in our courts is already under strain.” Judge Phalane was placed on special leave with immediate effect, pending finalisation of the criminal proceedings against her, “while the process of her suspension from duty is being considered.” The statement further notes that the event “underscores the critical importance of having a robust and transparent system for the swift handling of complaints against Judicial Officers”, and “implores the nation to have faith in the resilience of our constitutional order.”

For her part, Judge Phalane is reported to have claimed in her bail application that the charges are “the result of a personal vendetta” by those involved in the church dispute. Court proceedings are set to continue in March 2026.   

It hardly needs saying that this is an extremely serious development which has the potential to do tremendous harm to public confidence in the judiciary and the rule of law. It must be hoped that the matter will be dealt with expeditiously, transparently and credibly.  

Parliament has referred the finding of gross misconduct against Judge Makhubele to the Portfolio Committee on Justice and Constitutional Development. Should the Committee agree with the finding, the matter will be referred to the full National Assembly to vote on the judge’s potential removal from office.

The Judge President of the Limpopo High Court, George Phatudi, has been found to have violated the Constitution and the Judicial Code of Conduct for presiding over a case involving a former client. It appears that Phatudi JP had represented the client in a dispute over property ownership. After Phatudi JP’s appointment to the bench, his erstwhile client brought an application to compel the transfer of the land into his name. Phatudi JP presided over the application.

The JCC (per Jafta J) held that Phatudi JP had deliberately sat in the matter and rejected the argument that Phatudi JP had made only “procedural orders”. The JCC held that Phatudi JP had committed a breach that was “not only wilful but was also grossly negligent.”

We have not been able to locate the decision of the JCC and rely on media reporting of the finding. This may be why the basis of the finding and sanction are not entirely clear. It is reported that the JCC found that Phatudi JP had committed gross misconduct, which is a potential ground for removal from office. However, the JCC did not recommend removal, instead ordering Phatudi JP to submit a written apology and be reprimanded. It is unclear why the matter was not referred to a tribunal, despite the finding of gross misconduct.

The JCC’s finding of misconduct against Gauteng High Court judge Denise Fisher has been overturned. (See our December 2024 and February 2025 notes). Fisher J had declined to make settlement agreements in certain Road Accident Fund matters orders of court, making adverse findings against a firm of attorneys and expert witnesses. This decision was subsequently overturned by the SCA on the grounds that Fisher J’s findings had been made without admissible evidence and without affording the affected parties a hearing. The JCC, per Shongwe JA, had upheld a complaint against Fisher J, finding that she had breached the Code of Judicial Conduct and ordering a reprimand.

An appeal panel of the JCC (per Majiedt J, Mocumie JA and Musi AJA concurring) upheld Fisher J’s argument that Shongwe JA had erred in finding that her conduct was not wilful or grossly negligent, yet finding that the complaint had been established:

“[Shongwe JA] did not find that Fischer J was in breach of any of the other grounds set out in section 14(4) of the [JSC] Act. Once he found that the conduct was neither wilful nor grossly negligent, it was not open to him to find the complaint to have been established. …”

The appeal panel held further that:

“[C]onsidering that at the time of this incident there was a Practice Directive in the Gauteng Division guiding judges to inquire into such agreements before confirming them, it is difficult to conclude that a judge who raised concerns in court can be wilful or grossly negligent.”

Fisher J’s conduct was not wilful or grossly negligent under the JSC Act, and the appeal was accordingly upheld and the complaint dismissed.

The JSC has requested the Chief Justice to establish a judicial conduct tribunal to enquire into a complaint against KwaZulu-Natal High Court judge Jacqueline Henriques, but has not recommended her suspension.  

Significant cases

The Gauteng High Court, Johannesburg has interdicted Operation Dudula from disrupting and blocking foreign nationals from accessing social services. This follows a series of disruptions at healthcare facilities and some schools in the Johannesburg area.  

Misconduct by legal practitioners continues to feature with alarming regularity. In South African Legal Practice Council v Oosthuizen, the SCA overturned a decision by the Free State High Court to dismiss an application to strike the respondent from the roll of legal practitioners. The respondent had been accused of misappropriating trust funds and pleaded guilty to three charges before a disciplinary committee of the LPC, which imposed a sanction of suspension from practice and a fine, as well as ordering that monies be refunded to the complainant. Dissatisfied with the sanction, the LPC brought an application for striking off.

In dismissing the application, the High Court held that there was no basis on which the LPC could revisit the sanction. The SCA (per Meyer JA, Molefe, Kgoele and Coppin JJA and Chili AJA concurring) disagreed, holding that the court remained the final arbiter of whether a practitioner should be struck off the roll. The sanction imposed by the disciplinary committee was not final and binding on the LPC, and in any event the committee lacked legal authority to impose a sanction of suspension.

Meyer JA held further that the respondent’s conduct displayed “a lack of integrity and dishonesty” and was not a fit and proper person to practice as an attorney. In the absence of exceptional circumstances, the only appropriate sanction was for the respondent to be struck from the roll.     

South African Legal Practice Council v Nonxuba and Others is another striking off for misappropriating trust funds. The first respondent was the former wife and co – law firm director of former attorney Zuko Nonxuba, who was previously struck off the roll for misappropriation and is facing ongoing criminal charges for fraud (see our December 2024 and April – May 2025 notes).

Monies had been paid to the firm for the benefit of minors who had been the victims of medical negligence. The firm failed to establish and pay the money into trust funds and failed to account to their clients. The LPC alleged that the funds had been stolen. The first respondent contended that the firm’s trust accounts had been operated and managed solely by her former husband.

Bam J (Davis J concurring), relying on SCA authority, rejected this defence:    

“[First respondent] is as responsible for the theft of the trust monies as her husband. The first respondent must in addition be held accountable for the failure to comply with the court’s orders. That she has since resigned from the second respondent does not relieve her of the duty to answer to what became of the monies.”

Bam J held that misconduct had been established, and that the first respondent “has neither interest in acquainting herself with nor upholding the law. She is indeed not a fit and proper person to continue to practice”. The first respondent was accordingly struck off the roll.

Administration of justice

The judiciary’s annual reports for 2023 – 2024 and 2024 – 2025 have been released. 8 out of 14 of the performance targets in the 2023 – 2024 report were achieved. Notable targets not achieved include the finalisation of Constitutional Court matters (66%, target 70%); the finalisation of SCA cases (74%, target 80%); the finalisation of Labour Appeal matters (77%, target 80%); and the finalisation of criminal cases across all divisions of the High Court (66%, target 75%). The target for finalised civil cases in the High Court was exceeded (87%, target 64%).

The performance of the Constitutional Court has been a longstanding concern. The report highlights that the Court’s caseload has “increased significantly year-on-year” whilst the judicial establishment has not increased. The report further notes that:

“The research capacity of the Court is objectively inadequate ... The tremendous pressure under which the Justices work necessitates the urgent need for adequate capacitation of the Court.”

The SCA’s deviation from its target is attributed to the postponement of appeals at the request of the parties, and inadequate research support.

Across all superior courts, 4 880 out of 7 062 judgments were delivered within 3 months of being reserved (69%, just short of the target of 70%).

The report notes the finding of the committee on court rationalisation highlighting that the “shortage of Judges has had a negative effect resulting in serious court delays and backlogs.” The report expresses firm support for “the establishment of a single Judiciary and the attainment of full institutional independence of the Judiciary, which includes a Judiciary-led court administration model, financial autonomy and operational independence”.     

The 2024 – 2025 annual report reflects a slight improvement in meeting performance targets, with 10 out of 14 targets being met. The targets not achieved were the finalisation of SCA cases (72%, target 80%); finalisation of Labour Appeal matters (71%, target 80%); the finalisation of criminal cases (73%, target 75%); and the percentage of finalised Labour Court matters (55%, target 58%). It is notable that three of the four targets not achieved were also not achieved in the previous reporting period. (The finalisation of Labour Court matters had been achieved in 2023 – 2024).

The percentage of finalised Constitutional Court cases increased to 71%, exceeding the target of 70%. The SCA’s deviation from its target is again attributed to the postponement of appeals and inadequate research support. The target for finalised civil cases in the High Court was again exceeded (88%, target 64%), and the delivery of reserved judgments improved slightly, with 5441 out of 7 611 judgments being delivered within 3 months of being reserved (71%, target 70%). The report does note the “noticeabl[y] low finalisation rate at the Constitutional Court”, with only 13% of a target of 70% being achieved. The report attributes this to extensive case records which require a greater volume of reading and preparation than in other courts, protracted deliberations, and navigating “an ever-expanding body of complex jurisprudence.”

In her keynote address, Chief Justice Maya acknowledged concerns about the performance of the Constitutional Court, noting that “as at 1 November 2025, judgment in 13 matters had been reserved for longer than 6 months, four of them from 2024”. The Chief Justice highlighted that the Court:

“is engaged in processes to capacitate it, including constitutional amendments which will allow it to adjudicate some matters in smaller panels … and establishing a body of senior lawyers to assist the Court”.

The Chief Justice also noted a “significant increase” in complaints against judges and noted proposals to improve capacity to deal with complaints, including increasing the number of judges on the Judicial Conduct Committee. The challenges of a “lack of resources in administrative support” to the JCC and conduct tribunals, and difficulties in dealing with complaints against acting judges, were also noted.

The Chief Justice further acknowledged “with deep concern … reports indicating that public confidence in the Judiciary has waned, accompanied by troubling perceptions tarnishing the integrity and honour of this revered institution.”

An interim court order against civil society organisation Open Secrets attracted significant public attention when it was reported that Open Secrets had been “issued with a prepublication gag order”, preventing it from reporting any details on the case in question.

The Office of the Chief Justice then issued a statement, setting out the terms of the court order and describing it as a “ standard and proportionate measure to preserve the status quo until all arguments can be properly heard and considered.”

The interim order was subsequently discharged and the application dismissed with punitive costs awarded against the applicant.   

Judge Margie Victor has resigned as the head of the special tribunal after just one year in the position. Her replacement has yet to be announced.

A Statistics South Africa survey on governance and public safety reported a decrease of trust in the courts (from 80% to 75%), despite noting improvements in physical access to courts.    

Articles

FUL published op-eds on the crisis of ethics in the legal profession evidenced in the JSC interviews and in the profession generally, and reviewing key developments impacting on the judiciary and the rule of law in 2025.

Former Chief Justice Raymond Zondo delivered the annual Helen Suzman Memorial Lecture. Justice Zondo is reported to have called for reform of the JSC by reducing the number of politicians and increasing the number of judicial members, cautioning that the current structure was “a completely inadequate representation for a body that is about judges” and could even lead to the capture of the judiciary, although he indicated that he did not “believe the judiciary has been captured at this stage.”    

Marianne Thamm writes on sexual harassment in the legal profession and the judiciary, highlighting the Mbenenge tribunal, the judiciary’s sexual harassment policy, and a survey by the journal Advocate regarding sexual harassment in the profession. The article quotes extensively from the reflections of FUL board member Kate Hofmeyr SC published in the Advocate article.  

The Professor Balthazar column focus on accountability failures in the legal profession. Drawing on an earlier article by Professor Helen Kruuse (see last month’s note), the column addresses failures by professional bodies to hold their colleagues to account, and describes the LPC’s credibility as being “in free-fall.” The article also criticises the role of the JSC, arguing that “it is not surprising that a number of candidates who come before the Judicial Service Commission appear to feel that they can get away with disingenuous answers to questions”, and argues that there is a broader problem:

“For a number of years, the JSC, whether in its vacillation regarding what was the interminable case relating to Dr John Hlophe, or the utterly inconsistent treatment visited upon candidates for judicial office, has contributed to a significant reduction in the legitimacy of itself and concomitantly of the judiciary. …

The real problem is that the JSC and the LPC, the two institutions which are central to the regulation of the profession, have both displayed a record that fills the public with little, if no confidence, that the legal profession will be held accountable both to its legal and ethical commitments.”

Written by Freedom Under Law