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 meets between 6 – 17 October to conduct a lengthy round of interviews, with candidates vying for vacancies on the Constitutional Court, SCA, Labour Court, and several high courts, including a Deputy Judge President’s position in the Eastern Cape High Court.

The General Council of the Bar (GCB) has released it’s feedback on the candidates. Some of the more significant comments are highlighted below (the reports on the Constitutional Court candidates were not available when this note was finalised):

• The reviews are generally positive about the SCA candidates, with few significant concerns raised. Judge Norman’s judgments while acting at the SCA are said to “reflect[] the candidate to be independent minded”, but the review notes “clear errors” in one of the judgments. Regarding Judge Vally, the review notes that he would only be eligible to serve 3 years and 7 months if appointed (a considerably shorter time than the other candidates). The review also notes divergent views on the candidate’s temperament, and whilst praising Vally J’s “unwavering determination to exercise an independent mind”, it also raises concern over his “occasional disregard for the binding nature of precedent and, in particular, his reliance on his own decisions”.
• The sole candidate for the Labour Court, Advocate Harvey, is praised for her “disciplined” jurisprudential approach, though this is tempered by a concern that in some judgments “it appears that the equity considerations took precedence over the rule of law insofar as the reasoning of the candidate was concerned”.
• Among the candidates for Deputy Judge President of the Eastern Cape High Court, it is noted that Judge Makaula “has had a history of being tardy in producing judgments”, although he is praised for his managerial and administrative skills. Judge Pakati’s credentials are said to be “beyond reproach”.
• Perhaps the most interesting candidate for the Eastern Cape High Court is Professor Ntlama-Makhanya, who is a former JSC commissioner and a current member of the Electoral Court. Notwithstanding this experience, the review notes that she has never practised as a legal practitioner, and notes that this lack of experience “is apparent from the manner in which she conducts court proceedings.” The review further notes the “concern that the candidate could benefit from more experience as an acting judge given her lack of experience as a legal practitioner.”
• Among the Gauteng High Court candidates, the GCB notes that Advocate Bokako’s judgments “still show poor reasoning, or no reasoning” since her 2023 interview, and takes the view that despite “numerous acting appointments … the candidate is still not ready for permanent appointment.” Concerns are also expressed about judgments by Judge Mahosi (currently a judge of the Labour Court) which have been overturned on appeal and she was found to have “failed to consider the totality of the evidence.” Comments from counsel who have appeared before her raise concerns that Mahosi J can be “ill-prepared to hear matters and elevates form over substance when it comes to the rules of court and the practice directives”, is “abrupt with counsel and refuses to grant counsel a fair opportunity to be heard”, and note the impression “that the candidate is desirous of removing matters from her role by any means, indicating that the candidate is perhaps not ready to deal with the lengthy rolls that are commonplace in the Gauteng Division.” 

Regarding Ms Ma-Myeni Mazibuko, the review finds it “difficult to get a sense of her knowledge beyond general litigation or RAF litigation”, and that “her judgments do not show depth or any particular degree of insight.” The review finds that notwithstanding the candidate’s “dedication to promoting access to justice”, “her experience does not demonstrate the requisite knowledge of the law that would engender confidence in her appointment.” The review of Advocate Mogale-Makinta SC considers that whilst her earlier judgments were considered “below average”, her more recent judgments show improvement, though some “would be improved with a more detailed analysis of the legal principles.” The candidate is said to have “performed poorly” at an earlier JSC interview, having been diagnosed with long COVID. (The candidate was notoriously unable to define the Plascon Evans rule during her interview in October 2021). 

Advocate Moultrie SC is praised for “proven competence in the judicial office”, whereas Advocate Strydom’s judgments are said to “reflect judicial inexperience”, and her appointment would be “premature”. 

The review of Mr Thobane notes that the candidate had been suspended from practice in 2021 after being found to have committed unprofessional conduct for failing to file auditors reports and for practicing without a fidelity fund certificate. The GCB review takes the view that the judgment suspending the candidate from practice:

“places considerable doubt on his integrity and ethics. His application further evidences a lack of remorse, downplaying the transgression and reasons of his suspension to “administrative”.

Advocate Van Niekerk SC is praised for the level of his preparation in urgent court. The review of Ms Vuma recalls an issue raised in a previous interview about her presiding over an urgent matter at a restaurant, but is otherwise largely positive about the candidate. Advocate Wentzel is praised for her wide range of experience and expertise.

• Regarding the candidates for the KwaZulu-Natal High Court, the review notes that while Mr Gwagwa made no disclosures relating to unprofessional conduct on his application form, reviewers identified two cases involving the candidate and the Legal Practice Council on court rolls. The nature of the cases is not clear. The candidate is additionally said to have “limited experience in High Court litigation.” It is noted that Ms Sipunzi had previous withdrawn her candidacy due to adverse comments from a retired magistrate, but the reviewers do not identify any circumstances which would disqualify her from appointment. A further objection is said to “attack[] the candidate’s independent-mindedness and suggests that she panders to political interests.”

Another notable candidate is Judge Siwendu, who is seeking a transfer from the Gauteng High Court. According to the review, the request is based on “health and compassionate grounds” due to ongoing medical treatment which requires monitoring and care by health care professionals based in Durban. The reviewers take the view that whilst “the candidate herself identifies that her judgment writing requires some development”, this “should [not] serve to block the candidate’s appointment” and note improvement in the candidate’s judgments.

Judicial Conduct

There was no movement on any of the ongoing conduct tribunal matters, although closing arguments in the Mbenenge tribunal are due to take place in October. Two alarming stories relating to the conduct of judicial officers received media coverage. In the first, a former traffic department employee was convicted of a range of offences relating to the issuing of bogus learner’s and driver’s licenses, only for the acting judge who convicted him to be charged with fraud and corruption in a different matter.

In the second, it was reported that the JSC has received a complaint that a Johannesburg high court judge solicited a bribe in exchange for a favourable judgment. Subsequent reports have alleged that the judge had, while serving as a magistrate, been convicted of fraud, although the conviction was overturned on appeal. The conviction related to the misrepresentation of personal information when applying for a loan. The judge, who was an unsuccessful candidate in October 2022 and was appointed following the October 2024 interviews, is reported to have disclosed the conviction and subsequent acquittal to the JSC.  

It goes without saying that the allegations are thoroughly alarming, and it must be hoped that the JSC will deal with them efficiently and transparently. Whatever the eventual outcome, the incident raises uncomfortable questions for the JSC about how the judge’s previous track record was dealt with during the appointment process.   

Significant cases

In Schoeman v Director of Public Prosecutions, the SCA dealt with the interpretation of section 17(2)(f) of the Superior Courts Act, in terms of which the President of the SCA “may in exceptional circumstances” refer a decision refusing leave to appeal back to the court for reconsideration. Specifically, the issue was whether the existence of exceptional circumstances was a jurisdictional fact to be determined by the court hearing the reconsideration application (as has been held by the SCA in an earlier decision of Bidvest v Mabena), or whether it was a matter for the President of the SCA to determine in deciding whether to refer the matter for reconsideration.

In a minority judgment, Matojane JA held that the Bidvest case had been wrongly decided, and that the section “makes it clear that Parliament entrusted the determination of ‘exceptional circumstances’ exclusively to the President's discretion.” Matojane JA further held that the Bidvest decision disregarded precedent, and that its approach would create a “redundant and illogical two-stage process” whereby an applicant must first persuade the SCA President that exceptional circumstances exist, and then “persuade a panel of the very same court of the same preliminary point before the merits can even be considered.”  

However, the majority (Unterhalter JA, Meyer and Kathree-Setiloane JJA and Windell AJA concurring) disagreed, holding that the minority:

“affords an inadequate engagement with the principles of interpretation. And it ignores the value of institutional norms on a mistaken understanding of what it supposes to be the unique attributes of the office of the President.”

The majority also expressly differed from the majority’s treatment of the doctrine of precedent:

“Litigants are entitled to a settled regime of rules that govern appeals in this Court. The first judgment is antithetical to this essential requirement of the rule of law.”

The majority held that for earlier binding decisions to be departed from, they must be “so aberrant that it cannot count as a possible meaning because it cannot be derived from a conscientious application of the principles of interpretation.” The majority went on to find that exceptional circumstances did indeed exist and partially upheld the appeal.

The fallout from the allegations of criminal infiltration and interference in law enforcement by KwaZulu-Natal Provincial Police Commissioner Mkhwanazi (see our July 2025 note) continues to play out in the courts. In Sibiya v South African Police Department and Others, the applicant, a Deputy National Police Commissioner, was ordered to “stay at home” while an investigation was conducted regarding case dockets removed from the so-called political killings task team. On completion of the investigation, applicant was issued with a notice of intention to suspend. Applicant sought to have the stay at home order declared unlawful and to interdict any disciplinary steps against him pending finalisation of the work of the Madlanga Commission.

A full bench of the Gauteng High Court, Pretoria (per Davis J, Mngqibisa-Thusi and Moshoana JJ concurring) dismissed the application, finding that the stay-at-home instruction had been “suitable, necessary, reasonable, relevant, rational and proportional under the circumstances”, did not amount to a suspension, and was not unlawful. The court held further that none of the requirements for an interdict had been met, describing the applicant’s argument on balance of convenience (particularly that the disciplinary proceedings would ‘taint’ the work of the Commission) as “rather astounding”. The court declined to apply the Biowatch principle, and awarded costs against the applicant.

In  Auditor-General of South Africa and Others v Nene, the respondent, who had been employed by the National Lotteries Commission, had been suspended and charged with misconduct, and sought to review several reports of the Auditor-General. She then resigned, preventing the continuation of the disciplinary proceedings. She subsequently withdrew the review applications without tendering costs. The night before the hearing, she withdrew her opposition to the costs application, on condition that the applicants did not demand costs against her, on the basis that an insurer was required to indemnify her.

Unsurprisingly, the court (Swanepoel J) took a dim view of the respondent’s conduct:

“The respondent persisted with the application notwithstanding the fact that the applicants had taken the point, which in my view is unassailable, that the respondent did not have locus standi to seek the review of the reports. She persisted with the application for months, even after a court in a judgment in an interlocutory application … made the remark … that the Court could not fathom how the respondent could possibly have locus standi to bring the review application.”

Swanepoel J held that “[i]n light of the respondent’s conduct, her abuse of the processes of court, and the fact that there was no merit whatsoever to the review application”, a punitive costs order was appropriate, and awarded costs against the respondent personally on an attorney-client scale.

The perjury trial of former public protector Busisiwe Mkhwebane is set to proceed in February 2026. The charges relate to the 2017 report on the South African Reserve Bank’s bailout of Bankorp. The Constitutional Court found that Mkhwebane had included a “number of falsehoods” in affidavits deposed to during subsequent litigation.    

Administration of justice

Threats to the safety of stakeholders in the justice system were again highlighted by the killing of insolvency lawyer Bouwer Van Niekerk. FUL issued a statement highlighting how such incidents constitute a threat to the rule of law. In this context, it is unsurprising that Western Cape High Court judge Vincent Saldanha was reported to have raised concerns over court safety and the adequacy of emergency plans. 

The South African judiciary hosted a summit of Constitutional and Supreme Courts, known as the “J20”, one of the lead-up activities to the 2205 G20 summit. The J20 summit focused on judicial independence and accountability, climate change justice, and combatting cybercrime.    

Legal profession

Parliament’s standing committee on public accounts (SCPOPA) is to conduct an inquiry into allegations of corruption and maladministration at the Road Accident Fund, including allegations of collusion between judges and lawyers. This follows earlier claims by suspended RAF CEO Collins Letsoalo that he faced persecution for “terminating a panel of attorneys who were bleeding the RAF dry.” (As mentioned in our July 2025 note, Letsoalo was unsuccessful in an application to set aside his suspension).

Articles

The Serjeant at the Bar column raises concerns about the ability of the Constitutional Court “to live up to the obviously profound and pressing challenges which confront it as the apex court.” Attention is drawn to delays in delivering judgments, and the JSC is criticised for failing to engage with the issue. The author cites the recent Rabinowitz lecture by Professor David Bilchitz, who has served as an acting justice of the court, highlighting that it appears there is no longer a post-hearing conference. The author decries this development, arguing that:

“The absence of deliberation, and the convoluted fashion in which various email exchanges appear to be central to the process, may well clearly contribute to the increasing delays in the delivery of judgments, and therefore the failure to adhere to a fundamental principle of expeditious justice.”     

The author is also critical of the style of the Court’s judgment writing.

The Constitutional Court has also come under scrutiny for declining to hear an appeal in the case relating to the singing of the ‘Kill the Boer’ struggle song, in light of a subsequent decision by the Equality Court that EFF leaders Julius Malema had committed hate speech with remarks directed at a white man following unrest at Brackenfell High School in 2020. The Professor Balthazar column argues that the Equality Court decision:

“stands in sharp contrast to the unfortunate way in which the Constitutional Court ducked out of an equally controversial decision that unquestionably required a determination from it. Had it decided the “Kill the Boer” case, the judgment that would then have been delivered by the Constitutional Court would have greatly assisted in the resolution of this particular dispute.”  

In a review of Justice Maya’s first year as Chief Justice, Judges Matter ranks as “notable successes” the introduction of the revised sexual harassment policy for the judiciary, and the resolution of “a decades-long impasse over the judiciary’s institutional independence.” Slower progress is identified in the implementation of resolutions from the 2023 judges’ conference relating to reforming the judicial conducting process and restoring the credibility of the JSC to attract suitable candidates for judicial appointment. Concern over the demands of the role taking the Chief Justice away from core judicial duties are also noted.

FUL published an op-ed discussing the growing trend of heads of court not sitting in cases.   

Zekhethelo Cele and Kayan Leung of Lawyers for Human Rights argue that the Mbenenge tribunal has “exposed a set of fault lines in South Africa’s legal culture that go beyond the fate of a single judge”, and “has forced into the open the uneasy collision between claims of “African cultural values”, the neutrality of the law and the entrenched persistence of sexual assault myths in our judicial reasoning.”

The authors argue that debates about the invocation of African cultural practices as a defence to the allegations against Mbenenge:

“echo[] familiar patterns in other anti-women’s rights stances within African societies, often masked as cautioning against the perceived maligning of African values in human rights debates.”

The author argue further that the core issue is not whether African culture is worthy of respect, but whether culture “should function as a cloak for behaviours that strip women of dignity and agency. They express concern that the tribunal “risks entrenching a narrative in which women’s experiences of harm are culturally negotiable, while men’s appeals to tradition are beyond reproach or sacrosanct.” Entertaining a ‘cultural defence’, the authors suggest:

“implicitly validates the notion that harassment is relative, that its meaning depends on the cultural background of the perpetrator rather than the autonomy of the victim. This relativism erodes the universal promise of equality enshrined in the Constitution.”

A Freedom Index  developed by the Atlantic Council, based on 30 years of data, finds that the rule of law is the “most influential factor” in driving prosperity, and enables democratic governance and market reforms. However, it also finds that the rule of law “has been in global decline for more than a decade.”

Issued by Freedom Under Law