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 held interviews for numerous vacancies on the superior courts. This proved to be an interesting session, with both positive developments and significant concerns being evident.

A major positive was that the JSC was finally able to list enough candidates to fill the two longstanding vacancies on the Constitutional Court. The JSC sent the required list of five candidates – Justices Dambuza, Goosen, Savage and Schippers and Advocate Dodson SC - to the President, who at the time of writing has yet to make the appointments.

Prior to the interviews, we noted concerns over the shortlisting of Dr Madumetja Malepe, which the interviews bore out. Dr Malepe endured a calamitous interview, highlighting just how inexplicable the decision to shortlist her had been. Indeed, the shortlisting process came under the spotlight in other interviews. Some of the (unsuccessful) candidates for the Mpumalanga High Court faced scrutiny for not having acted in that court, raising the question of why they had been shortlisted in the first place, and the JSC postponed interviews for the Eastern Cape High Court due to unspecified “issues relating to the shortlisting of candidates”. The shortlisting process is clearly an issue that the JSC needs to reform – as highlighted in FUL’s report on the JSC in 2022.

FUL’s litigation against the JSC over the JSC’s appointment process and voting procedure remains ongoing, and its continued relevance was highlighted when the JSC was unable to recommend an appointment to the vacancy on the SCA. This was despite at least three of the candidates (judges Bloem, Norman and Windell) interviewing impressively and appearing to be appointable. The JSC subsequently indicated that it would formally review its voting procedures. The JSC was also unable to recommend an appointment for the position of Deputy Judge President of the Eastern Cape High Court.

Another particularly concerning aspect of the interviews was the number of candidates who faced questions over their ethical suitability for appointment. Attorney Malizo Gwagwa was taken to task for failing to disclose that he had been suspended from practice, and for a dismissive reference to the complainant as “that woman” during his interview. Attorney Stephens Thobane disclosed a suspension from practice, but appeared to downplay its severity. And Advocate Lesibana Ledwaba faced scrutiny over an allegation of overcharging.   

For those wishing to see their glass as half full, the JSC can be commended for not recommending the appointment of any of these candidates, and the issues were interrogated through rigorous questioning by several of the commissioners. (Although questions about how such candidates were shortlisted to begin with must still be asked).  But the interviews highlight growing concerns, as we have highlighted in several previous notes, about the state of ethics in the legal profession, and whether practitioners are being adequately held to account for transgressions. The non-disclosures and other shortcomings evident in these interviews are extremely worrying and suggest that the processes of holding practitioners accountable are not having the salutary effect that they ought to. (See also sections 5 and 6 below).  

In an unusual postscript to the interviews, the OCJ issued a statement on behalf of Judge Makaula, on of the unsuccessful candidates for the Eastern Cape Deputy Judge President position. During his interview, Judge Makaula had made comments to the effect that legal practitioners at the Mthatha High Court were untrustworthy. The OCJ statement indicated that Judge Makaula withdrew and apologised for those remarks.  

FUL published op eds previewing and reviewing the interviews. The articles highlighted concerns about the shortlisting process, the deliberation and voting process in respect of the SCA vacancy, and the strength of the candidate pool.  

Further discussion of the interviews is included in section 6 below.

Judicial Conduct

Closing arguments were heard in the Mbenenge tribunal. The tribunal proceedings have attracted significant media and public attention, and the closing arguments were no exception. Comments by the chair of the tribunal, retired judge Bernard Ngoepe, that “a woman has got given, by God or nature, depending on what you believe, the absolute power to decide who has access into her heart”, and that “[w]hen a beautiful woman wants to give her heart and she says, ‘You want me? Catch the stars for me,’ that is an assertion of power”, attracted particular media attention. The tribunal’s final decision will be awaited with keen interest.

The JSC has referred a complaint against Free State High Court judge Lekale by Judge President Musi to a judicial conduct tribunal. The JSC’s statement noted that the complaint followed “the continuous failure of Judge L J Lekale to perform his judicial functions over a period of six (6) years due to ill-health”. It therefore appears, although the statement does not expressly say so, that this would be an instance of a potential removal from office for incapacity, rather than gross misconduct or gross incompetence.

The issue of delayed judgments remains an ongoing concern. Gauteng High Court judge Malopa-Sethosa was reported to have handed down a decision more than three years after reserving judgment – the judgment is said to have been omitted from the OCJ’s reserved judgment list due to an “oversight”.  The picture when delayed judgments are reported remains concerning, with a GroundUp report observing that “[n]early 280 judgments were late as of April or May this year”.      

Significant cases

In Minister of Cooperative Governance and Traditional Affairs v Speaker of the National Assembly and Others, the Constitutional Court extended the declaration of invalidity of the Traditional and Khoi-San Leadership Act . The Act had been declared unconstitutional due to a failure to facilitate public involvement (see our May 2023 note). Despite granting the extension, the Court (in a unanimous judgment by Theron J) was critical of the delay, describing the explanation as “not completely satisfactory”, and finding that the 2024 national elections had resulted in the Bill being “deprioritised.” But as “potentially disastrous consequences” would follow were the extension not granted, a further extension was granted.

The Gauteng High Court, Pretoria has ordered former President Zuma to repay an amount of R28 million to the state attorney, for legal costs incurred in relation to a criminal prosecution against him, and ancillary litigation instituted against him in his personal capacity. This followed a 2018 high court decision, upheld by the SCA, that the State was not liable for these costs.

In Calata and Others v Government of the Republic of South Africa and Others, the first and second respondents brought an application to postpone or stay an application relating to the failure to investigate and/or prosecute cases referred to the National Prosecuting Authority by the Truth and Reconciliation Commission, pending the outcome of a commission of inquiry into delays in prosecuting apartheid-era crimes. Janse Van Nieuwenhuizen J declined to grant the postponement/stay application, holding that there were no parallel court processes, and that “[t]he risk that some or all of the issues will be relitigated simply does not exist.”  A stay would delay the finalisation of he litigation, and “the findings and recommendations by the Commission of Inquiry will not be binding on the court and will not be dispositive of any of the disputes between the parties”. Accordingly, it was not in the interests of justice for s stay of proceedings to be granted.

The Gauteng High Court, Pretoria has awarded damages of R306-million against the Mpumalanga Tourism and Parks Agency and Regional Land Claims Commissioner, finding that a “land claims racket” had thwarted businessman Fred Daniel’s attempts to establish a conservation area. The judgment is particularly significant for finding that the late former Deputy President, DD Mabuza, had been closely involved in the scheme to frustrate Daniel’s plans.

In South African Legal Practice Council v Engelbrecht, the respondent was struck off the roll of legal practitioners. The respondent, an independent advocate, had been found guilty of accepting funds directly from the public without a brief; undertaking to perform the functions of an attorney, and misrepresenting to the investigating committee that she had refunded the complainant. Whilst the disciplinary committee recommended suspension from practice for three years, the LPC brought the matter to court. Nuku J (Dolamo J concurring) held that the respondent should be struck off the roll, and that having “met [the striking off application] with a vexatious review that was abandoned in the last minute”, costs on an attorney and client scale were appropriate.

Momsen v Davies and Others involved an eviction under the Prevention of Illegal Eviction from and Occupation of Land Act (PIE). The case is striking for the first respondent resisting eviction in part on the grounds of a purported lease agreement which had been made an order of court – only for the court order to be found to be a forgery.  Moorcroft AJ referred to forged court order to the NPA and the LPC for investigation.

Administration of justice

Economic Freedom Fighters leader Julius Malema was convicted on charges relating to the unlawful possession and discharging of a firearm in public. FUL, together with Defend Our Democracy and the Council for the Advancement of the South African Constitution, released a statement calling for Malema to step down from the JSC. This call was made on the grounds that the conviction, together with previous adverse judicial and parliamentary findings and remarks made by Malema and the EFF about the magistrate and the judiciary following the conviction, meant that Malema was not a fit and proper person to serve on the JSC. The statement received considerable media coverage.        

A witness at the Madlanga Commission alleged that a sum of money had been earmarked to secure bail for KT Molefe. Molefe was subsequently granted bail by Gauteng High Court Acting Judge President Aubrey Ledwaba. Molefe is facing five charges of murder, and was named by Lieutenant-General Mkwanazi as one of the alleged underground figures involved in capture of the criminal justice system. A statement released by the judiciary noted that “the witness did not know if this money was intended for the presiding judge … or the Public Prosecutor”, and that the allegation was yet to be tested.  The statement noted further that no formal complaint had been made against Ledwaba AJP under the JSC Act, and that Ledwaba AJP “strenuously denied” the allegation and would not be taking special leave.

In response to a Parliamentary question, the Minister of Justice and Constitutional Development has indicated that South African courts lost a total of 21 days due to water cuts, electricity cuts, and maintenance challenges during 2024 – 2025. The Minister was quoted as describing this number as “insignificant”, but civil society groups have expressed scepticism about the numbers, arguing that they “do not at all reflect the full extent of the systemic dysfunction” in the courts.    

Magistrates continue to protest against their working conditions and salaries, with a picket being held outside the Durban Magistrate’s Court followed by a march to Parliament.

Legal profession

As discussed in section 1, concerns about the state of ethics in the legal profession continues to be a matter of concern. Law reports editor Louis Podbielski commented that he had recently “noticed an alarming increase in judges' comments regarding the lack of ethics, unprofessional conduct, and poor standards of litigation among some legal practitioners.” Podbielski notes further that:

“We are witnessing judges criticising practitioners for their tactics, lack of knowledge of the rules, and intentional disregard for practice directives. Furthermore, we see costs orders de bonis propriis … and referrals to the Legal Practice Council for investigations into practitioners’ conduct. … I can confidently say that misconduct and litigation quality have deteriorated in recent years.” 

Articles

As we have already seen, concerns about ethical conduct in the legal profession have received significant attention. Rhodes University Associate Professor Helen Kruuse discusses the JSC’s interview of Malizo Gwagwa (see section 1), describing the non-disclosure of his suspension as revealing “something uncomfortable about the legal profession: our remarkable capacity to fudge.” Noting that “too often, honesty gets treated as an optional extra”, Kruuse highlights several instances of ethical breaches being rationalised, and cautions that:

“The fudge factor doesn’t usually announce itself with drama. It seeps quietly into the profession: a late disclosure here, a misrepresented affidavit there, a small “technical” breach of confidentiality – all justified in the name of expediency or client interest.

But once fudging becomes normalised, the profession’s moral imagination shrinks. We start viewing honesty not as a value but as a tactical choice.”

Kruuse argues that the “most worrying lawyers” are those “who have convinced themselves that their half-truths are fine, that context absolves them, that relevance is a matter of personal interpretation.” She concludes that “[i]f the profession wants to hold on to its moral authority, it must rediscover … plain, unvarnished honesty”, and that what is at stake is not only the integrity of the legal profession, but the rule of law. 

An article by KwaZulu-Natal High Court judge Rishi Seegobin discusses judicial ethics, frankly acknowledging that the judiciary:

“has been plagued of late by misdemeanours, unethical and even disgraceful conduct on the part of certain members, eroding public confidence in judges and in the judicial process.”

Judge Seegobin suggests that it may be time “for some serious introspection into our roles as judges”, and, drawing on the Bangalore Principles of Judicial Conduct, emphasises the importance of a judiciary of undisputed integrity. Judge Seegobin identifies independence, impartiality, integrity, proprietary, equality, competence, and diligence as “core values to which all judges should subscribe”, and concludes that:

“As judges in an ever-changing society, we must conduct ourselves with the highest degree of honesty and integrity at all times; we must dispense justice fairly and impartially …; and we must respect the principle of the separation of powers by exercising judicial restraint.”

In an article reflecting on the approaching 30th anniversary of the adoption of the Constitution, Lawson Naidoo, Dan Mafora and Kyle Jordaan note that this “coincides with a period of global and domestic constitutional unease”, with liberal constitutional democracy “under increasing strain” globally. The authors caution that the Constitution “faces its own moment of reckoning”, as “[t]he founding promise of a just, equal, and transformed society has not been fulfilled.” The authors suggest that:

“[T]he Constitution’s very success in preserving the democratic form has, paradoxically, contributed to frustration with its seeming inability to deliver on substance. Structural poverty, inequality and corruption remain deeply entrenched.”

The authors argue that the experience in South Africa and other countries “highlight a central lesson”:

“[C]onstitutional texts alone cannot guarantee democracy or transformation. They are only as strong as the social and political coalitions that sustain them. Without public trust, institutional accountability, and genuine inclusion, even the most progressive charters can become hollow.”

Judges Matter considers the impact of the judiciary’s new anti-sexual harassment policy on misconduct complaints against judges, arguing that in many respects the policy “simply codifies many of the long-standing principles that undergird judicial integrity and form the bedrock of the Code of Judicial Conduct”, and that “all of the principles articulated in the policy would apply to any inquiry into judicial (mis)conduct.”

Submitted by Freedom Under Law