Issues facing the SA judiciary in 2024

While South Africa does not have an official “start of the judicial year”, it is worth previewing some of the major events facing the judiciary in 2024, which will be a historic year in many ways, said Mbekezeli Benjamin, a research and advocacy officer at the Democratic Governance and Rights Unit in the University of Cape Town’s (UCT) Faculty of Law.

In 2024, South Africa’s judiciary will face a historic leadership transition. Possibly three of the top four positions in the judicial hierarchy will have new incumbents. This will be the most rapid change in judicial leadership since 1994.

Chief Justice Raymond Zondo is due to retire in August when his 12-year term on the Constitutional Court expires. Supreme Court of Appeal Deputy President Xola Petse also retires, in July, when he turns 70. The third vacancy will arise if (it is not automatic) Deputy Chief Justice Mandisa Maya is promoted to Chief Justice — the first woman to occupy the position.

Section 174(3) of the Constitution gives the President wide discretion when it comes to filling the top four positions in the judiciary. He may nominate any suitably qualified persons for the positions. He only needs to consult — without being bound by such advice — the Judicial Service Commission (JSC), usually through public interviews. For the Chief Justice and Deputy Chief Justice posts, he also needs to consult leaders of political parties in Parliament. This means whoever is elected President after the general elections will have a once-in-a-lifetime say in the leadership direction of the judiciary.

A historic test for the Electoral Court

The general elections will present the Electoral Court with its toughest test since 1994. The court is a specialist court meant to resolve electoral disputes and exercise oversight over the Electoral Commission and its decisions. Unique among all courts is that all its cases are inherently urgent and must be resolved in the shortest time possible.

However, for several years the court has operated without its full complement of judges and associated institutional memory. Luckily, in recent months Justice Dumisani Zondi was appointed as the new head of the court while a senior judge and two senior professors were appointed as court members. However, this will be their first major election and there are many moving parts to it. This includes independent candidates historically taking the field and the longest voters’ roll since 1994.

Historic impeachments

In late January, two judges face impeachment and removal from office on the grounds of gross judicial misconduct. The first, Judge Nkola Motata, faces impeachment for his drunk-driving conviction and putting up a false defence at the trial. The second, suspended Western Cape Judge President John Hlophe, faces impeachment for attempting to influence two Constitutional Court judges in a case involving former president Jacob Zuma.

In November 2023, Parliament’s Justice Committee voted to confirm the JSC’s gross misconduct findings against both judges and will table its recommendation to the full National Assembly at a special sitting in late January. Two-thirds, or 267 of 400 members of the National Assembly need to vote “yes” for both judges to be removed from office.

While the full consequences of removal from office are not spelt out in the Constitution, on the reasoning of the Seriti v JSC case it is clear that a judge removed from office loses the title, status and privileges that come with judicial office — including a R1.9-million annual salary for life.

Judges behaving badly

Several judges are also facing judicial misconduct proceedings that could lead to impeachment.

The Judicial Conduct Tribunal against Gauteng High Court Judge Nana Makhubele is reaching its final stretch, with the last hearing from 22 to 26 January set to hear her testimony. Makhubele is facing charges of unlawfully holding dual roles as a judge and chairperson of the parastatal Prasa, where she allegedly involved herself in State Capture-related transactions. She denies this.

The tribunal chairperson, Judge Achmat Jappie, said the hearing would proceed with or without Makhubele, who is currently in a legal wrangle with the State Attorney over the payment of her legal fees, which exceed R3-million. Makhubele has been on suspension on full pay since 2020 and if found guilty of gross misconduct might face impeachment and removal from office.

Two other Gauteng judges are also facing Judicial Conduct Tribunals, for delivering judgments late. They are both on suspension. Judge Nomonde Mngqibisa-Thusi’s tribunal began in December 2023, but was postponed to 29 January for the legal teams to exchange papers, including expert medical evidence.

Judge Tshifhiwa Maumela was suspended at the same time and on the same charges as Mngqibisa-Thusi. The JSC has not yet indicated when his tribunal will begin. However, it is likely that the delay is attributed to his ill health, which also led to him being removed as presiding judge in the Senzo Meyiwa trial. He would be in the same position as Western Cape High Court Judge Mushtak Parker, whose tribunal has been postponed indefinitely due to ill health.  Should both judges be found guilty of gross misconduct, they face impeachment and removal from office.

Eastern Cape Judge President Selby Mbenenge is also facing a Judicial Conduct Tribunal, over charges of sexually harassing a judge’s secretary at the Makhanda High Court. Although he denies the charge, a preliminary hearing of the Judicial Conduct Committee found that there was a prima facie case against him. The JSC has now set up a tribunal to investigate the facts in full, including hearing forensic and other evidence. The date for the tribunal hearings has not yet been set, but the JSC gave the judge until 21 December 2023 to indicate why he should not be suspended. The JSC’s suspension decision is likely to come in the next few weeks.

Hlophe faces an additional tribunal for a 2020 complaint laid by his deputy, Judge Patricia Goliath, over allegations that he used racially abusive language towards her and assaulted a fellow judge, Mushtak Parker. The date for when that tribunal commences hasn’t been announced but should Hlophe be found guilty, he faces a second risk of impeachment.

Corruption in the judiciary

Two senior magistrates are on trial for corruption-related charges. Pretoria Chief Magistrate Desmond Nair is accused of receiving R200,000 worth of security upgrades at his private home from the State Capture-implicated company Bosasa. Nair was one of only two judicial officers (the other being Judge Makhubele) to come before the Zondo Commission, which recommended criminal charges. Nair’s trial is postponed to 23 January and he is on suspension.

KwaZulu-Natal Regional Court President Eric Nzimande is facing corruption charges for receiving bribes from aspirant magistrates for acting positions in courts across the province. Nzimande appeared in court in November 2023. His trial has been transferred to the high court, where it will be presided over by a retired judge and is set to resume on 20 May. Nzimande is also facing investigations by the Magistrates Commission for his involvement with rhino poachers. He has been on suspension on full pay since 2018.

Meanwhile, new research by the Democratic Governance and Rights Unit at the University of Cape Town’s Law Faculty sheds fresh light on the perceptions of corruption in the magistracy. One research report, titled Under Pressure, is based on a representative survey of 230 of a total of 1 765 magistrates across SA on issues such as caseloads, work-related stress, court infrastructure, safety at court, corruption and sexual harassment, among other issues.

Magistrates were asked whether they or a magistrate they knew had been offered a bribe in the past two years. Three in four magistrates (74%) said “never”; one in 10 (9%) said “once or twice”, while 2% said “several times” (15% of the respondents answered “don’t know”). When asked who offered or whom they saw offer the bribe, the majority (35%) said a lawyer. About half of respondents said that the purpose of the bribe was directly related to the outcome of the trial they were presiding over.

These startling findings suggest a non-trivial proportion of magistrates are exposed to corrupt conduct, and that these corruption attempts are directed at the process and outcomes of proceedings. The full research report and a complimentary Court User Survey will be launched on 31 January at the UCT Law Faculty and online.

Although no judges were involved in the questionable tender by the Office of the Chief Justice (OCJ) to procure a digital case management and e-filing system, it still represents one of the biggest corruption scandals facing the judiciary. After a May 2022 Sunday Times report showed that three top OCJ officials were irregularly involved in awarding the tender, the contract was frozen pending judicial review of it. The court review is likely to be heard in the first half of this year.

Judicial appointments

At its April sitting, the JSC will, for the first time in 25 years, consider a law professor as a candidate for appointment to the Constitutional Court. This is after Chief Justice Zondo’s decision to allow senior lawyers and law professors to become acting justices on that court.

While the JSC has made important strides to improve its appointment processes, they are still deeply flawed. One of these flaws is the way the JSC deliberates on and ultimately selects candidate judges.

This issue will come under close scrutiny this year due to a case brought by Freedom Under Law to review and set aside the JSC’s October 2023 decision to leave open two vacancies on the SCA, when there were several appointable candidates. The case will probably be heard in the second half of the year, although an early settlement would be most welcome for the benefit of the SCA, which desperately needs judges.

Judicial relations with the other arms of government

At the end of the Judges’ Conference in December 2023, Chief Justice Zondo stated that the leadership of the judiciary would meet on 13 December with President Cyril Ramaphosa over the government’s slow implementation of an independent court administration system for the judiciary. It’s not clear what the outcomes of that meeting were, but the tone of Chief Justice Zondo’s statement suggested a frustration with the government, so the tone of the meeting is unlikely to have been too friendly. It remains to be seen what this means for the changes Chief Justice Zondo wants, with a little over six months left of his term.

Although this does not relate to his role as Chief Justice, nor is the judiciary implicated at all, there are simmering tensions between Chief Justice Zondo and Parliament over his criticism of Parliament’s slow implementation of the State Capture Commission report’s recommendations. It is hoped that these tensions will subside in the new parliamentary term after the elections and after Chief Justice Zondo’s retirement.

The judiciary remains one of the strongest democratic institutions in South Africa. Being an election year, 2024 is likely to test this institutional strength. Not only because of the increased political temperature, but also because of the internal issues within the judiciary, including a significant leadership transition and cases of misconduct against judges. Nevertheless, there’s ample reason to have confidence in our judges.