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

In the aftermath of two JSC sittings in the first half of the year, and with Presidential attention no doubt fully occupied by the formation of a government following elections, it has been a very quiet month on the appointments front, with no further movement on the appointments of Justices Maya and Zondi.

An interesting case in England, R (on the application of Kate Thomas) v Judicial Appointments Commission revolves around the fairness of the appointment process and particularly whether the Judicial Appointments Commission (JAC) was correct to take the position that obligations of confidence meant it could not give candidates the opportunity to respond to adverse comment raised in statutorily prescribed consultations. The appellant, a District Court judge, had received contradictory feedback on whether she was selectable for appointment, treatment described by the courts as “very unfortunate indeed.”

The appellant sought to bring judicial review proceedings against the JAC for not recommending her appointment as a circuit court judge. The High Court had refused permission to apply for judicial review, but the Court of Appeal found that it was arguable that there were circumstances where the JAC may be obliged, as a matter of fairness, to at least seek the consent of consultees to disclose their feedback, or to give candidates the gist of feedback without identifying the source. The Court of Appeal held that it was in the public interest for the fairness of the JAC’s procedure to be examined at a full hearing, and granted permission to proceed with the review. The Court of Appeal found that the consultation process was critical to the fairness and transparency of judicial appointments in England and Wales”, and that there should “be complete public confidence in it.”

2. Judicial Conduct

Fresh from making history as the first judge in South Africa to be removed from office, former Western Cape Judge President John Hlophe was back in the news when it was announced that he was to take up the position as chief whip of the MK Party. Wasting no time in embracing a role free from the constraints of judicial office, the former judge was quoted as saying of the South African legal system that:

“I call it a legal ‘shitstem’ which was introduced and everything else changed; the result is that the laws in our courts, which we have mastered by the way … it was imposed upon us and forced down our throats.”

It was noted that these comments appear consistent with MK’s manifesto pledge to abolish the Constitution and create a second house of Parliament comprising traditional leaders. 

Hlophe’s appearance in the National Assembly alone created a stir. As Rebecca Davis has described it:

“Hlophe is one of only two judges to lose their jobs in democratic South Africa, after more than a decade of allegations of his political meddling in judicial matters. The impeached former judge has referred to South Africa’s Constitution and legal system as a “shitstem” in need of complete overhaul – yet, in being sworn in as an MP, he has now taken an oath to uphold the Constitution and all South African laws.”

Questions have been raised about whether Hlophe was eligible to serve in the National Assembly at all, in terms of the law governing party lists. The issue also raises a broader question about whether someone who has been removed from public office should be eligible to serve as a Member of Parliament (as well as Hlophe, former Public Protector Busi Mkhwebane, who was also removed from office, is an MP for the EFF).  

However, the controversy has now morphed, as speculation that Hlophe would be designated as one of the National Assembly on the JSC proved to be well founded. This is a quickly developing issue, with FUL preparing for legal action over the National Assembly’s decision to designate Hlophe as a JSC representative. The issue will be discussed further in our next note.

The prospect of a former judge, removed from office for gross misconduct, serving on the JSC is a truly alarming one. As Stephen Grootes put it:

“it would mean that the first person to be impeached as a judge in democratic South Africa was now playing a role in selecting judges. This would surely damage the legitimacy of the JSC and of the entire process of appointing judges.”

Prior to the announcement that former Judge Hlophe would be designated to serve on the JSC, FUL published an op-ed focusing on the importance of the new Government of National Unity paying due attention to issues relating to the judiciary, including the composition of the JSC, and highlighting concerns about Hlophe’s potential designation to the JSC.   

Hlophe has, despite his new role, commented on his removal from judicial office. Speaking on a podcast, he was quoted as alleging that in the wake of allegations that he had attempted to influence justices of the Constitutional Court, now-Chief Justice Raymond Zondo had lobbied former Judge Jerome Ngwenya to persuade Hlophe “to vacate his judicial post”, and even more remarkably, is quoted as claiming that “ late chief justice Pius Langa had also offered [Hlophe] R10-million to leave the judiciary.”

It is notable that former Chief Justice Langa passed away in 2013 and is therefore unable to respond to this striking claim.

A judicial conduct tribunal has recommended that Gauteng High Court Judge Nomonde Mngqibisa-Thusi note be removed from office. (The decision is dated 29 April but was only publicly released in the middle of June). The complaint had been occasioned by the judge accumulating numerous reserved judgments and reserving judgments for lengthy periods:

Twenty seven (27) cases were listed as matters within which the respondent failed to deliver judgments ‘within the prescribed period or within a reasonable time’. In five of those matters, judgments were allegedly delivered within periods that ranged between 12 and 27 months. In 14 cases the respondent allegedly took between 10 and 19 months to hand down judgments. And in seven matters, judgments were allegedly delivered after 7 to 9 months.   

The tribunal (Jafta J, Davis J and Rajab-Budlender SC concurring) found that mental health challenges the judge had experienced constituted a temporary disability and did not amount to incapacity, since the judgments which formed the subject matter of the complaint had ultimately been delivered, and further that it was common cause that the evidence did not establish gross incompetence.

The only potential ground for removal from office was therefore gross misconduct. The tribunal found that the judge had committed a grossly negligent breach of the Judicial Code of Conduct, and therefore had committed misconduct. Whilst accepting that, without a reasonable explanation or excuse, “the failure by a judge to deliver reserved judgments over a long period of time would ordinarily constitute gross misconduct”, as it would erode public confidence in the judiciary, the tribunal found that there was “extensive evidence” explaining the delays, relating to the judge’s mental health, her caring for her husband while he suffered from covid-19, her sustaining a significant arm injury, and that she “had spirituality challenges which had a debilitating effect on her.”

Accordingly, the tribunal concluded that the misconduct did not rise to the level that supported removal from office, but rather attracted remedial sanctions under the JSC Act. The nature of these sanctions will be determined by the JSC in due course.   

3. Significant cases

Politics and election matters unsurprisingly continue to occupy the courts. In Khumalo v Independent Electoral Commission of South Africa, the applicant sought an order to set aside the IEC’s decision to remove him and record former President Jacob Zuma as president and leader of the MK party, and to direct the IEC to record him as president of the MK party. The applicant claimed that he had not resigned as party leader, and that his signature had been forged on a letter in terms of which he purportedly resigned. The Electoral Court (per Modiba J, Adams and Yacoob AJJ concurring) found that, as the applicant had been expelled from the MK party, he lacked locus standi to bring the application, since “[o]nly members of a political party may approach the court for relief for breach of that political party’s constitution.”

The Electoral Court further found that there had been a unreasonable delay in bringing the application, with the applicant having “fail[ed] to take this court into his confidence regarding when and how he became aware of the impugned decision.” On the merits, the court found that the applicant’s version regarding the alleged forgery was “riddled with contradictions”, and that the IEC had acted reasonably in accepting the letter. The application was dismissed with costs awarded on an attorney and client scale, the court describing the application as “frivolous and completely devoid of merit”, and finding that the applicant had perjured himself in his affidavits.

In Economic Freedom Fighters and Others v Speaker of the National Assembly and Others the applicant sought a declaratory order that the ejection of its parliamentary members from Parliament, following the disruption of proceedings, was unconstitutional. It was alleged that the members had been the victims of unlawful, violent assaults. Contingent on the success of this claim, the applicant additionally sought constitutional damages.

The claim, however, related to events which had occurred 5 and 7 years previously, and condonation had not been applied for. Furthermore, the applicant had failed to give the statutorily required notice of its claim.  Wille J found that the applicant had followed a “disguised and chameleonic approach of dressing up the true cause of action”, which “was simply an attempt to circumvent several statutory hurdles,” and that the application “was not infused with any true constitutional ingredients.” The application was dismissed with costs.

In Minister of Mineral Resources and Energy v Becker and Others the respondent had been discharged as a non-executive director of the National Nuclear Regulator by the appellant, in terms of the National Nuclear Regulator Act, and successfully applied to have the decision set aside in the High Court. The respondent was spokesperson for “an organisation that is opposed to nuclear energy in general, and in particular, to the extension of the life-span of the Koeberg Nuclear Power Station in Cape Town”, and had been nominated by concerned civil society organisations. The respondent had been discharged on the basis that he had placed himself in a position where he had a personal interest which conflicted with his duties to the Regulator.

On appeal, the SCA (per Meyer JA and Tlaletsi AJA, Molemela P, Schippers JA and Koen AJA concurring) held that if the jurisdictional fact of misconduct, in terms of the statute, was no present, the Minister’s decision was unlawful. The SCA found that it had not been established that the respondent had committed misconduct as contemplated by the Act and dismissed the appeal.

The case of General Council of the Bar of South Africa and Another v Minister of Finance and Others involved a challenge to a tender for applications to be included on the panel of legal practitioners assisting the State Attorney. The tender was challenged specifically in relation to its impact on referral advocates.

Millar J set aside the tender on several grounds. The court found that the tender would require advocates to enter a transversal contract with National Treasury, which would require fee agreements to be entered into without an instructing attorney, thereby making affected referral advocates guilty of misconduct. The tender was also found to be inconsistent with the transformational goals of section 217 of the Constitution, as its “narrow” definition of historically disadvantaged individuals excluded any person born on or after the date on which the Interim Constitution came into force (27 April 1994). Millar J found that this breached the right to freedom of trade on section 22 of the Constitution, holding that:  

“To place all new entrants into the profession in a position where they are denied state work and are forced to rely solely on the private sector until the tender is renewed defeats the very purpose for which … the tender was issued”.

The tender was reviewed and set aside.

In Lesotho, the Court of Appeal delivered a significant judgment dealing with the ‘basic structure’ doctrine of constitutional law. The issue in Democratic Congress and Others v Puseletso and Others revolved around the Ninth Amendment Act to the Constitution of Lesotho, which would have excluded the Prime Minister's power to advise the King to dissolve Parliament and would have mandated the King's appointment of the Prime Minister based solely on the choice of the National Assembly, without public participation.

The majority of the Court of Appeal (Mosito P; Damaseb and Musonda AJJA concurring) expressed “profound concern over the Amendment's impact on the democratic process and the role of the electorate in choosing their government”, and the “the perceived diminution of the King's role and powers as the symbolic head of state in this democratic kingdom”. After a thorough analysis of comparative law and scholarship, Mosito P found that:

“certain fundamental features of Lesotho's Constitution, such as the separation of powers, the independence of the judiciary, and the protection of fundamental rights and freedoms, form part of the basic structure and cannot be abrogated or diminished through the amendment process.”

Mosito P found that one such fundamental feature of Lesotho’s Constitution was “the principle of responsible government, which is closely linked to the concept of parliamentary democracy and the notion that the government must maintain the confidence of the elected legislative body.” Furthermore, the Prime Minister’s duty to advise the monarch to dissolve Parliament following a vote of no confidence was “a fundamental convention that ensures the accountability of the executive to the legislature.” An amendment, such as that under consideration, which:

“seeks to prevent the Prime Minister from requesting a dissolution of Parliament in the face of a no-confidence vote, undermines the principle of responsible government and the delicate balance of powers between the executive and legislative branches. The amendment runs contrary to the foundational principles of responsible government and the constitutional balance of powers between the executive and legislative branches in the parliamentary system and violates the basic structure of Lesotho’s Constitution.”

Damaseb AJA and Musonda AJA both wrote additional separate concurring judgments. The minority (Van Der Westhuizen AJA, Chinhengo AJA concurring) found that concerns about the Amendment did not “rise to the level of being destructive” of constitutional democracy, since it “neither amounts to abolition rather than amendment of the Constitution, nor undermines the basic structure of the Constitution.”

4. Administration of justice

In previous notes, we have cited several examples of shortcomings in the governance of the legal profession, particularly instances of professional misconduct being inadequately dealt with by the Legal Practice council (LPC). In a remarkable story where, on this occasion, the LPC appears to be blameless, it has been reported that a lawyer appeared, in a different case, in front of the same judge who had previously suspended her from practising (pending investigation into allegations of fraud).  The LPC was reported to be seeking a sentence of imprisonment against the lawyer for contempt of court.      

5. Articles

Daily Maverick columnist Professor Balthazar explores the constitutional framework for the formation of a new government following the elections. Emphasising that “the Constitution must be the starting point for a consensus between parties”, the article notes that the Constitution does indeed “ provide a framework for political, economic and social policy”, inter alia by promoting “the values of transparency and accountability of government”, and promoting the principle of substantive equality.

The article goes on to suggest that this requires “ensuring that the state is capable of fulfilling these constitutional obligations imposed on it”, and advocates measures including an independent inquiry into the assets and income of directors-general and deputy directors-general; an overhaul of the National Prosecuting Authority; and designing economic policy “to meet the obligations imposed upon the state”, cautioning that “[w]ithout such steps to redress devastating poverty and stark inequality, the very legitimacy of the Constitution will continue to give way to national socialists, tribalists and other opportunists.”

The article further argues that the formation of a government of national unity “will require an agreement which binds the participants to ensure stability and it must be made public to promote transparency.” 

An article by Judges Matter raises issues affecting the processing of GBV cases and protection orders under the Domestic Violence Act – such as problems with court facilities, equipment and technology – and links them to the challenges presented by having different centres of governance responsible for the courts. The article looks back at Justice Maya’s 2022 interview for Deputy Chief Justice, where proposed greater institutional independence for the judiciary, including a greater role of the judiciary in the governance of the courts. The article also emphasises the need for the Office of the Chief Justice to be established in law and highlights the importance of the new Parliament and incoming Chief Justice addressing issues of judicial governance and court administration.       

Issued by Freedom Under Law