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.

1. Judicial Appointments

The JSC has released a call for nominations for its April 2025 sitting. This is set to be a short round of interviews, with the only vacancies advertised being two vacancies on the Competition Appeal Court, one vacancy on the Electoral Court, and three vacancies on the Labour Court.  The deadline for nominations is 2 December 2024, with the interviews scheduled to take place between 31 March – 4 April 2025.

The outcome of the JSC’s call for nominations to fill the longstanding vacancy on the Constitutional Court remains uncertain, with no shortlist having been released nor interviews scheduled. With the deadline for nominations having closed at the end of August, it seems likely that the JSC has again not received enough candidates to interview for the position. Considering that a new Deputy Chief Justice must still to be appointed following Justice Maya’s elevation to Chief Justice, and that a further vacancy is imminent with Justice Madlanga due to retire from the court in 2025, the lack of appointments to the highest court is a matter of increasing concern.    

Following a reported delay of around three months following the resignation of the previous president of the Special Tribunal, President Ramaphosa has appointed new judges to serve on the tribunal (see further our July – August 2024 note). The Tribunal will now be headed by retired Gauteng High Court judge Margie Victor, with high court judges Thandi Norman, David Makhoba, Brian Mashile, Andre Petersen, and Chantel Fortuin also being appointed.

2. Judicial Conduct

There has been little discernible movement in any of the ongoing judicial conduct matters.  The tribunal dealing with complaints against Judge Parker was postponed due to the judges’ inability to secure counsel. Judge Parker’s attorney was quoted as saying that if there were to be a material dispute of facts, which “would require Western Cape lawyers to cross-examine judges of their own courts and contest the version of the body that regulates them”, then “it would be better for Parker to be represented by counsel from outside Cape Town”. The chair, retired judge Bernard Ngoepe, is reported to have been “emphatic that the next time the tribunal gathered it was “for hearing””, when granting the postponement. The tribunal has already been delayed for four years due to judge Parker’s ill-health (indeed, it has been reported that Judge Parker has been suspended for longer than he has been at work as a permanently appointed judge).  The complaints relate to allegations by ten other judges of the Western Cape High Court that Judge Parker had given contradictory and mutually exclusive versions about whether he had been assaulted by former judge president Hlophe, and a separate complaint by the Cape Law Society relating to allegations of misappropriation of trust funds in Parker’s former law firm, and Judge Parker’s failure to disclose this information to the JSC when interviewed for appointment.  

A concerning story has emerged from the magistracy, with reports suggesting that a magistrate was, whilst previously an attorney, an accused (though charges were ultimately withdrawn in a high-profile corruption and money-laundering trial (the so-called ‘Amigos’ case), and was suspended from practising as an attorney due to allegations of misappropriating trust money. If reports are accurate, the order suspending him from practice was obtained more than two years after appointment as a magistrate.

Perhaps the most striking aspects of the story are a statement by the Legal Practice council that the magistrate “would have been entitled to the Certificate of Good Standing prior to a resolution being taken by the Council to institute suspension proceedings”, as “[t]he LPC is not permitted to withhold a Certificate of Good Standing on the basis of there being a complaint against a legal practitioner but can only do so when proceedings have been instituted in court.” The incident suggests that re-evaluation of the processes of both the LPC and the Magistrates Commission in such situations is warranted.

3. Significant cases

A case of great potential significance was heard by the Constitutional Court at the end of the month, with the Economic Freedom Fighters seeking to set aside the decision by National Assembly not to adopt the report of an independent panel into the so-called Phala-Phala controversy, and refer it to an inquiry which could have led to the impeachment of the President. The case is the latest in a long line of political battles being litigated in the courts, and the outcome will be awaited with great interest.

A perceived lack of accountability for public officials involved in irregular and wasteful expenditure is a frequent source of frustration for many South Africans. The SCA’s judgment in Mbambisa and Others v Nelson Mandela Bay Metropolitan Municipality is significant for finding that section 32 of the Local Government: Municipal Finance Management Act creates a statutory claim for the recovery of unauthorised, irregular, or fruitless and wasteful expenditure from the official(s) in question. The SCA (per Schippers JA, Mokgohloa, Nicholls JJA, Baartman, Masipa AJJA concurring) agreed with the high court that not only did the section create statutory liability for municipal officials, but that the municipality was furthermore obliged to recover such expenditure. An argument that a section 32 claim should fail when significant value had been received for work done, was rejected.

In Mfalapitsa v Minister of Justice and Correctional Services and Others, the applicant sought to set aside a decision by an amnesty committee to refuse his application for immunity for his role in the murder of the ‘COSAS Four’ in 1982. The applicant’s trial was set to begin in November 2024. Wilson J described the applicant as having been “a foot soldier, or “askari”, in the Vlakplaas apparatus”, noting that “Vlakplaas was a death squad, charged with the torture and extra-judicial execution of identified opponents of the Apartheid state.”

On the substance of the case, Wilson J found that although the explanation for the lengthy delay in bringing the review application was “extremely weak”, it was in the interests of justice to consider the merits of the application. The application was nevertheless dismissed. Wilson J held that the controlling provision of the Promotion of National Unity and Reconciliation Act:

“makes clear that a killing is not just a killing. It is a conscious act performed in a particular set of circumstances. Section 20 (3) (f) recognises that, even in the context of war, or widespread civil unrest, the protagonists can and do deliberate over the proper and most effective courses of action to take, and that they generally have the space in which to pursue more or less destructive methods to achieve their objectives. In order to obtain indemnity for what even the Apartheid state would officially have deemed criminal offences, section 20 (3) (f) requires that a proportionality between a political objective and a specific act or omission be shown. There is no reason to doubt that the majority of the amnesty committee was correct in deciding that Mr. Mfalapitsa had shown no such proportionality.”

A trial within a trial in the corruption case against former advocate Seth Nthai – accused of attempting to solicit a bribe while acting for a South African government in a mining rights dispute, which ultimately led to him being struck off the roll of advocates - considered whether a founding affidavit prepared for re-admission as an advocate was admissible in the criminal trial, having been handed in during the making of a warning statement. Dosio J found that Nthai had been under no obligation to hand in the founding affidavit, and had done so voluntarily after his rights were explained to him. It had not been shown that any rights had been infringed. Dosio J concluded that:

“Although the facts alleged to in the founding affidavit were made during the course of civil proceedings, Mr Nthai must have been aware that a criminal investigation might ensue. He disclosed the  information freely and voluntarily when the application for re-admission was made and was in his sound and sober senses and not coerced ... Mr Nthai [sic] is not a lay person, he is an advocate with many years of legal experience and understood his Constitutional rights and the full realisation of the implication of the contents of this founding affidavit when he made the statement and when he handed it over …”

The affidavit was thus found to be admissible.

We have previously noted recent instances where legislation has been struck down for failing to meet the requirements of public participation. The issue of public participation has arisen again in relation to appointments to a chapter 9 institution, with Corruption Watch reported to be instituting proceedings to set aside the appointment of five members of the Commission for Gender Equality, alleging a failure by Parliament to facilitate reasonable public involvement when the commissioners in question were interviewed by a parliamentary portfolio committee.     

4. Administration of justice

FUL’s annual lecture on the rule of law, in collaboration with the department of journalism at Stellenbosch University, was delivered by advocate Shamila Batohi, the National Director of Public Prosecutions. The speech, titled “Strengthening the Rule of Law: Challenges and Opportunities for the NPA”, focused on the NPA’s role in upholding the rule of law, the challenges it faces how these are being addressed, as well as the initiatives being taken to strengthen the NPA. The NDPP emphasised that:

“Notwithstanding that we have seriously ramped up our communication efforts, it is clear that the work of the NPA is not fully understood or appreciated. Hopefully it is clear that the NPA has not been sitting idle or sleeping … rather we have been actively engaged in fighting the twin crises of violent crime and corruption, in the most complex and complicated, and often toxic and dangerous environment.”

A full copy of the speech is available here. 

The courts are not immune from the practical impact of governance problems at other levels of government, a point emphasised when it was announced that since the beginning of the month, the Constitutional Court had been unable to hold physical hearings due to the unreliable water supply in the court building.  

5. The legal profession

The conduct of legal practitioners and the regulation of the profession has become such a regular feature of these notes that the issue appears to justify its own section. This month, it was reported that the Legal Practice Council (LPC) has refused to release information requested under the Promotion of Access to Information Act, relating to misconduct complaints against advocate Dali Mpofu SC, on the basis that Mpofu did not consent to releasing the information. As discussed in our previous note, the complaints in question relate to advocate Mpofu SC’s conduct during the section 194 parliamentary inquiry preceding the impeachment of former public protector Busisiwe Mkhwebane, and the infamous comment telling a colleague to “shut up” during the State Capture Commission of Inquiry.

Concerns about the state of the profession have focused particularly on failures to hold practitioners accountable for misconduct. In what appears to be a further and particularly egregious example of this trend, it has been reported that a disciplinary committee of the LPC has cleared an attorney of misappropriating funds, following allegations that the attorney had paid only R50 000 for an R15 million medical negligence settlement to “a severely disabled child’s trust account”.  According to reports, the attorney suggested that payment had not been made “because of certain undisclosed legal costs and expenses.” Remarkably, the committee is reported to have found that there was “no evidence before the committee where [the attorney] clearly shows that he did not misappropriate his client's money nor, at the very least, did not breach the code of conduct governing all legal practitioner[s]”, and that the attorney “had failed to transfer to the child's trust account "the amount ordered in the order of the court"”, the LPC had nevertheless failed to prove the charge of misappropriation. The attorney was found guilty of misconduct for breaching various accounting rules.      

The LPC is not completely inactive in dealing with allegations of misconduct– indeed, reports indicate that 100 practitioners have been struck off the roll this year, with a further 150 practitioners being suspended from practice. Whilst comparative figures are not immediately available, this number seems alarmingly high.

One lawyer not facing the music is advocate Nazreen Bawa SC, who served as an evidence leader in the section 194 Mkhwebane inquiry. An LPC investigative committee dismissed complaints of professional misconduct and racism, following the tendering of evidence at the request of the inquiry relating to litigation expenditure by the office of the public protector during Mkhwebane's tenure.

Submitted by Freedom Under Law