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

There have been no major developments so far this month. In our previous note, we remarked on the need for a new Deputy Chief Justice to be appointed to fill the vacancy created by Justice Maya’s appointment as Chief Justice. This issue is discussed again in section 6.

Judicial Conduct

The conduct tribunal dealing with the complaint against Judge President Mbenenge will take place from 13 – 24 January 2025. The president of the tribunal, retired judge Bernard Ngoepe, has ruled that the tribunal will be held partially in public and partially in camera, with evidence relating to WhatsApp messages and pictures which the judge president denies were sent from his phone being heard in camera. Finding that “[t]he very purpose of the prosecution of complaints against judges in proceedings of this nature is to protect the image of the Judiciary as an institution”, judge Ngoepe held that the possibility of “irreparable damage to the Judiciary if all of the hearing were to be in public” meant that the requirement of public interest was not met so as to justify holding all the tribunal’s proceedings in public.  

A similar approach, where parts of a tribunal hearing took place in camera, was followed in the tribunal dealing with complaints against Judge Mngqibisa-Thusi – see the discussion in our December 2023 – January 2024 note.   

Gauteng High Court judge Denise Fisher has been found to have committed misconduct for making findings against a firm of attorneys and certain expert witnesses, and reporting them to professional bodies, without giving them an opportunity to be heard. The Judicial Conduct Committee found that this did not amount to a wilful or grossly negligent breach of the code of conduct and ordered that the judge be reprimanded.  

In an extremely concerning matter emanating from the magistracy, media reports have raised concerns about the disciplinary proceedings against KwaZulu-Natal regional court magistrate Kholeka Bodlani (who was repeatedly found in review proceedings to have imposed overly lenient sentences on child rapists) proceeding “at a snail’s pace”, while she is estimated to have received around R6 million in salary payments whilst suspended.  According to the reports, Bodlani is charged in relation to “lenient sentences [which] were overturned by the high court on review after findings that they were “shockingly inappropriate”, had the potential to undermine the administration of justice, to cause an outcry, and were incorrect and outrageous.” Further charges relate to “racist and derogatory” comments to her superiors and insubordination.

Bodlani also features in proceedings against regional court president Eric Nzimande (see our March and May 2024 notes):

“Evidence during that hearing indicated that Nzimande had failed to manage her properly while he was aware of the allegations against her. Bodlani, it is alleged, had also paid Nzimande R3,000 while she was an acting magistrate — and in spite of concerns over her competence, he recommended her for permanent appointment.”

A Sunday Times editorial, commenting on the case in the context of the annual period of activism against gender based violence, describes it as “confounding”:

“While our country prides itself on our constitution and enshrines the rights and affirms the democratic values of human dignity, equality and freedom to all our people, it seems repugnant the wheels of justice are not moving in this matter.

Bodlani is no doubt entitled to a fair hearing, but for it to drag on for four years while taxpayers fork out millions appears to be an injustice — almost like a double assault on the voiceless victims.

The Magistrate’s Commission confirms the delays, and while we are painfully aware budgetary constraints nationally have left hundreds of departments in all spheres of government vastly under-resourced, this failing speaks to a fractious crack in the system.”

Significant cases

The SCA has found former Minister of Social Development, Bathabile Dlamini, liable for the cost of protection services provided for her children and paid for by the South African Agency for Social Security (SASSA). Unterhalter JA (Makgoka, Mbatha, Weiner, and Kgoele JJA concurring) found that the procurement of security services to protect SASAA officials involved in the administration of social assistance might have fallen within the ambit of the SASSA Act. However:

“Had … the CEO of SASSA, taken reasonable and proportionate measures to provide security for the protection of SASSA officials who were subjected to criminal threats and intimidation, I should have been inclined to conclude that such measures fall within the remit … of the SASSA Act. But that is not what occurred. Dr Petersen procured protection services for people who were not SASSA officials – Ms Oliphant, her children, and Ms Dlamini’s children. Ms Dlamini used her position as the Minister of Social Development, with direct authority over Dr Petersen … to require Dr Petersen, as the CEO of SASSA, to procure, through SASSA, the close protection services that the former Minister considered necessary for the protection of an official of the DSD, Ms Oliphant, her children, and the children of Ms Dlamini.”

Unterhalter JA accepted that a threat was posed, and that the Minister would have been entitled to provide security for officials in the Department of Social Development, in the absence of police protection. However, the Act did not allow for the use of SASSA and it funds to procure protection services for officials of the department.

“Although the work of SASSA and the DSD is closely related … it was for the former Minister to exercise her executive authority over the DSD, the department for which she was responsible, to protect officials of that department, and their families. Hence, such protection cannot form part of what is necessary for the realisation of SASSA’s objects.”

The decision to procure and pay for the security services was thus found to be unlawful.

In Ibex RSA Holdco Limited and Another v Tiso Blackstar Group (Pty) Ltd and Others, the SCA dismissed an appeal against a high court decision to grant an application under the Promotion of Access to Information Act (PAIA) for access to the report (produced by Price Waterhouse Coopers) of a forensic investigation into fraud and financial irregularities at Steinhoff International Holdings. In a unanimous judgment, Schippers JA (Zondi ADP, Hughes and Meyer JJA and Tlaletsi AJA concurring) rejected a claim of privilege, holding that the was no evidence that PwC had understood that their services were sought in relation to any claim or for legal advice to Steinhoff, - the purpose of the report had been to enable the preparation of financial statements.

Schippers JA held that the applicable test one of “dominant purpose”, in terms of which “[a] document created with the dominant purpose of its author, or of the person or authority under whose direction it was created, of using it to obtain legal advice, or in the conduct of existing or contemplated adversarial litigation, is privileged and shielded from inspection and production.” The dominant purpose of the PwC report had been to investigate accounting irregularities within Steinhoff and to finalise financial statements. Disclosure was thus justified.

Furthermore, Schippers JA held that even if the report were privileged, this had been waived when Steinhoff published an overview summarizing the content of the report:

“Having chosen disclosure by publishing the overview … its election became final; and fairness and consistency dictate that the media and the public are entitled to disclosure of the full Report. It would not only be unfair to allow Steinhoff to use part of the Report whilst claiming privilege over the remainder of it; but also inconsistent with the confidence preserved by any privilege, since Steinhoff has voluntarily disclosed the gist or substance of PwC’s findings – the irregular transactions and their impact – the very reasons for the forensic investigation and the existence of the Report.”

Additionally, the public interest override under PAIA was found to apply, as there was “no question” that disclosure of the report would reveal evidence of a failure to comply with the law, and would be in the public interest, clearly outweighing any potential harm to Steinhoff. Schippers JA concluded that there was “simply no basis to shield the Report from public scrutiny”.

The Gauteng High Court, Pretoria has set aside the planned procurement of new coal-fired power stations, finding that no assessment had been made of the impact on environmental rights and the rights of children and future generations.

The regulation of the legal profession featured in several judgments this month. In South African Legal Practice Council v Nonxuba and Another, the Western Cape High Court struck the respondent off the roll of legal practitioners, after finding that he had “failed to comply with various court orders, fabricated accounting records, breached a number of LPC Rules relating to the management and operation of his firm’s trust account, and engaged in the widespread theft of funds held in trust on behalf of his clients.” (It is notable that the affected clients are described as parents or guardians of minor children who suffered birth injuries due to medical negligence) Francis J (Henney J concurring) found that considering the “considerable deficit” in the respondent’s trust funds, it was “difficult not to conclude that Mr Nonxuba engaged in the theft of trust funds on an industrial scale.”

It is also noteworthy, from a process perspective, that when the respondent was initially suspended from practice after a finding that his accounting records had been fabricated, the LPC was directed to bring a striking off application within four months, but was only able to do so after 17 months, a delay attributed (at least in part) to the respondent unsuccessfully exercising the full range of his appeal options.

In Siyabonga Gugulethu Galela (Ex parte application), the SCA had to consider the impact of a lack of full disclosure in an application for admission as a legal practitioner.  The SCA found that though there had been negligent non-disclosure of certain information, there were grounds to condone the non-compliance, and the applicant was a fit and proper person and qualified for admission. In the course of the judgment, Nicholls JA (Molefe, Smith and Unterhalter JJA and Dolamo AJA concurring) made the following remarks regarding the role of the LPC:

“There was no appearance by the LPC to object to the admission of Ms Galela. The high court quite correctly pointed out that the LPC is obliged to do more than merely send an email in which its objections are set out. In such circumstances there should be a substantive contribution by the LPC indicating that it has properly considered the matter and whether it supports the admission or not.”

Administration of justice

Significant concerns have been raised about allegations against minister Thembi Simelane, relating to allegations that she received a loan from a company that had brokered unlawful investments into the since-collapsed VBS Mutual Bank. We have previously argued that the allegations made the minister’s position untenable, and that she should step down or be dismissed. The President has belatedly acted, redeploying Simelane to become minister of Human Settlements, swapping places with Mmamoloko Kubayi, who becomes the new Minister of Justice and Constitutional Development.   

FUL issued a statement criticising the re-deployment, arguing that minister Simelane’s credibility will continue to be undermined, whichever portfolio she holds, if the allegations against her are not fully addressed, and noting further media reports which raise questions about Simelane appearing to live a lifestyle well beyond her means while mayor of Polokwane (the position she held when the alleged loans were made).

The legal profession

The LPC continues to be in the news, and for concerning reasons. It has been reported that the LPC’s CEO, Charity Nzuza, has authorized some questionable spending, including the purchase of ice cream and embroidered bath robes for LPC staff, whilst citing cost implications to justify opting for an internal rather than forensic investigation into allegations that a provincial director had allowed a suspended lawyer to continue practicing for 13 months.

It has further been reported that LPC’s head of risk and compliance recently resigned and released a report “detailing what he described as the deep rot at the regulatory body and Nzuza's alleged failure to address it.” It is also reported that Nzuza had raised objections to lifestyle audits of LPC staff being conducted. The legal ombud is reported to have recommended an “impartial, transparent and rigorous investigation” into the allegations.

In an unprecedented development, it has been reported that Constitutional Court justice Owen Rogers and retired judge Dennis Davis have agreed to testify before an LPC committee dealing with complaints against attorney Barnabus Xulu, long time attorney for former judge Hlophe. Reports note significant delays in the process, with the complaint lodged by several judges (including judges Rogers and Davis) having been referred to a disciplinary committee in October 2021. Whilst there is mention of the disciplinary committee having to be reconstituted due to some members becoming unavailable, this hardly seems an adequate explanation for such a long delay.

Reports have also questioned why the two judges’ testimony would be required in the first place, “as the complaint made centred completely on statements he [Xulu] had made under oath about them.” (The complaint relates to allegations made by Xulu in affidavits during litigation. This raises further concerns about the LPC’s process for dealing with complaints against legal practitioners. In similar situations, it is not unusual for judges to refer the conduct of legal practitioners to professional bodies during judgments. It surely cannot be the case that the judge would have to give testimony at subsequent enquiries, for the LPC to act. For one thing, this would only serve to further delay processes which already appear to be subject to very significant delays.  

Articles

FUL published at op-ed reviewing key events for the judiciary in 2024. We highlight the historic appointment of Justice Maya as South Africa’s first female chief justice, but caution that she faces a series of significant challenges for her leadership to address, including the ongoing saga of attempts to designate former judge Hlophe to the JSC; the large number of complaints against judges which the JSC system is struggling to cope with; continuing challenges with the appointments process, notably the shortage of candidates for the Constitutional Court; and the serious capacity challenges facing the courts.    

Mbekzeli Benjamin discusses the need for a new Deputy Chief Justice to be appointed, highlighting the wide discretion given to the President to make this appointment. Benjamin contrasts the current situation with the President’s rapid move to appoint Maya as Deputy Chief Justice shortly after the appointment of Chief Justice Zondo in 2022 and highlights the importance of the role of the Deputy Chief Justice as a senior judge of the Constitutional court, and in presiding over the Judicial Conduct Committee.  

The cabinet reshuffle involving minister Simelane has been criticized in the Professor Balthazar column, which describes the reshuffle as an example of a “failure to grasp the importance of institutions” and charges that the President has for the “umpteenth time revealed that institutions of integrity are not central to governmental policy.” The reshuffle is described as:

“hardly illustrative of a deep-seated commitment to accountable institutions, including an executive that is transparent and accountable and which comports itself with the utmost integrity. To the contrary, a minister under a cloud is removed from one important portfolio, Justice, to another, Human Settlements.

…

[A]t the very least, the President should have suspended Simelane following the credible evidence that had been provided to determine with clarity whether these reports were sufficiently credible to justify her removal. For three months he sat on a report provided by Simelane.

All we now know is somehow she is no longer suitable for Justice, but perfectly suitable for Human Settlements. That is not the way to promote the idea of a government that is committed to the kind of model which will promote inclusive development.”

The chair of the justice portfolio committee, Xola Nqola, has written an op-ed discussing the LPC, in which he notes that the Council’s role in regulating the conduct of legal practitioners “is perceived to not exist.”

“It was also clear from the briefing that the disciplinary process outlined in the Legal Practice Act is cumbersome and time-consuming and, while substantial amendments to the act may not be feasible, there are potential improvements that could expedite the process.”

Nqola notes concern with the fact that the LPC’s funding is provided by the same practitioners it is supposed to regulate and cautions that calls to amend the governing legislation must consider that “lawmaking can take a long time”. Nqola concludes that:

“Ultimately, it is clear that we that we must find ways to strengthen the LPC so that it can exercise its mandate and protect both vulnerable citizens against unscrupulous and unethical conduct and the integrity of the legal profession.

If we need to amend legislation to give the LPC more bite, we must do that. If we need a new funding model for the LPC, we will have to consider that. But we need regulations in the meantime. That is the first step in this effort to restore the integrity of the profession, which will also safeguard our people.”

Nathan Geffen discusses the long delays in finalising cases, suggesting that the “justice system is almost paralysed.” Geffen identifies several reasons for the crisis, including the “acute shortage” of judges, lack of judicial administrative autonomy, problems in the police and prosecution services, and the use of “Stalingrad tactics” by lawyers. Geffen suggests that the use of punitive costs orders is “compelling” but cautions that:

“The Office of the Chief Justice (OCJ) is supposed to report regularly on late judgments. But its last report was published in May and only goes to the end of 2023. If even the OCJ is late, and with a report on late judgments at that, what hope is there that the rest of the creaking justice system can be fixed?”

Marking the 28th anniversary of the Constitution being signed into law. Stuart Morrison and Zanele Fengu discuss the “unrealized promise” of the Constitution, arguing that the practical effectiveness of constitutional safeguards has been “uneven.” The authors note the concern that “[h]igh-profile corruption cases and systemic inefficiencies in prosecution capability and efficacy have eroded public trust” and identify and discuss systemic failures which they argue have impinged on efforts to counter corruption, namely political interference, a lack of accountability for political leaders, and inadequate funding and capacity for institutions.  

Submitted by Freedom Under Law