OPINION: The judiciary in 2024 – Wins, losses and seismic challenges

2024 has been a challenging and at times concerning year for the South African judiciary. This article reflects on the key events which have impacted on the judicial branch of government and looks forward to how these issues may further play out as we enter 2025.

THE NEW CHIEF JUSTICE: A HISTORIC MOMENT

This year saw the appointment of Justice Mandisa Maya as the new Chief Justice, marking the first time that a woman has held the highest position in the judiciary.

The magnitude of this event should not be downplayed. When South Africa went to the polls in its first democratic election in 1994, there was only one woman judge in the entire country. Justice Maya’s appointment is the latest step in a concerted effort to transform the demographic composition of the judiciary.

Whilst there is doubtless room for further progress, this milestone appointment is one that should be celebrated.

But as historic as the appointment was, the scale of the challenges facing the leadership of the judiciary is significant, and many of them have been dramatically highlighted during the course of this year. Maya herself acknowledged this during her interview by the Judicial Service Commission (JSC), reminding the outgoing chief justice, Raymond Zondo, of a conversation between the two senior judges where Maya recounted telling Zondo that the job had “nothing attractive” about it, and was “too hard”.

Maya also remarked wryly that the JSC was interviewing a different candidate to the one they had interviewed previously, one who had found it a “sobering experience” to have become fully versed with the challenges of the role.

One should not read too much into these remarks. Maya has not reached the position she has by being scared of a challenge, as she brings extensive experience to the role, having previously headed the Supreme Court of Appeal, and served as Deputy Chief Justice before ascending to the top job.

But her comments are noteworthy for what they illustrate about the extent of the challenges facing the judiciary. Several of these challenges, as we will see below, have come into sharp focus during 2024.

THE SPECTRE OF HLOPHE

No sooner had Justice Maya’s tenure as chief justice begun, than she faced her first major challenge.

It would not have come as a great surprise to those who have followed the judiciary over the last year and a half that the challenge was presented by former Western Cape judge President, and now member of the Umkhonto weSizwe (MK) Party, John Hlophe.

The year began with a more sombre piece of history being made, when Hlophe and former Gauteng High Court Judge Nkola Motata became the first judges in South African history to be removed from office (or ‘impeached’, in popular language, though this is not the terminology used in the Constitution).  

This was an unprecedented development, and a welcome conclusion to two cases which had become poster children for the inefficiencies and inadequacies in the process of holding judges accountable for serious misconduct.

But as if this unprecedented event was not seismic enough, Hlophe then joined the MK Party, and shortly thereafter was designated as one of Parliament’s members of the JSC. This naturally set off alarm bells.

The prospect of an individual who had been found to have committed gross misconduct and removed from judicial office, sitting on a body that determines the suitability of others for judicial office, is alarming, to say the least.

As is so often the case in South African political life, it fell to the courts to step in. Several organisations, including Freedom Under Law, brought legal challenges to the National Assembly’s decision to designate Hlophe as a member of the JSC. An interdict was granted, barring Hlophe from attending the JSC’s October 2024 sitting.

After an attempt to interdict the sitting failed, Hlophe resigned from the JSC. Whilst the judiciary and the JSC have so far held firm against this potential subversion of both institutions, similar challenges can be expected in the future. It is crucial that the independence and integrity of the judiciary continue to be protected.

HOLDING JUDGES TO ACCOUNT: A TORTUROUS PROCESS

As the Hlophe and Motata sagas illustrate, the process of dealing with complaints against judges has been a matter of longstanding concern.

Several high-profile complaints were dealt during 2024, with varying degrees of speed. The Judicial Conduct Tribunal dealing with the complaint against Judge Nana Makhubele (who is accused of breaching the separation of powers by chairing the PRASA board after having been appointed as a judge) concluded its hearings, after numerous delays, with the decision still pending at the time of writing.

Judge Nomonde Mngqibisa-Thusi, who faced complaints relating to significant delays in delivering judgments, was cleared of gross misconduct, instead being found to have committed misconduct falling short of the standard required for impeachment.

The tribunals dealing with complaints against Judges Mushtak Parker and Tshifhiwa Maumela (the latter had famously presided over the Senzo Meyiwa murder trial before being suspended) have been stymied by both judges suffering from ill health.

A matter to keep an eye on in the coming year is the progress of the conduct tribunal hearing a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge, and the recommendation (which, at the time of writing, is still to be endorsed by the JSC) that a tribunal hear a complaint by former judge president Hlophe against retired Chief Justice Mogoeng Mogoeng.         

As these cases suggest, there has been a profusion of complaints against judges in recent years. It is crucial for the accountability of the judiciary that judges who commit misconduct face consequences for their actions, and there are undoubtedly a worrying number of instances where judges’ behaviour has fallen short of the required standard.

But there must also be a concern that in some instances, the complaints process is being weaponised as a means of intimidating or retaliating against judges. This presents potential risks where the complaints system is struggling to cope with the volume of complaints received, resulting in instances where complaints are “getting through” when they should not.

An example of this appears to be the JSC’s rejection of a recommendation that a complaint against Gauteng Judge President Dunstan Mlambo be referred to a tribunal.  

In short, the system of dealing with complaints against judges needs to be reformed in order to ensure improve the decision-making process, and to ensure that those decisions are made more expeditiously. This is an issue which should be near the top of the new Chief Justice’s in-tray.

APPOINTMENTS: SOME STEPS FORWARD, SOME STEPS BACK

As well drawing critical scrutiny for its handling of complaints against judges, the JSC is also frequently criticised for how it handles the other main component of its constitutional mandate, namely the selection of judges.

In late 2022, the JSC took the important step of announcing supplementary criteria to guide their selection decisions, a move welcomed by civil society organisations which had long advocated for this to be done. Initial optimism about the impact on the JSC’s public interview process was dashed during the October 2023 interviews, when the JSC left two vacancies open for positions on the Supreme Court of Appeal, overlooking several excellent candidates.

Freedom Under Law challenged this decision, and following a partial settlement of the case, the JSC filled the remaining vacancies in May 2024. The second part of the case remains to be finalised, and has the potential to set important standards for how the JSC selects the candidates it recommends for appointment.

This is not the first time that the JSC has been forced to concede that its process has fallen short of the required legal standards, when faced with a legal challenge.

When one also considers how the JSC has been criticised for unfair treatment of candidates during public interviews, it is not far-fetched to suppose that prospective judges are not willing to subject themselves to the selection process. This is a particular concern in relation to the Constitutional Court, which has not had a full complement of permanent judges since 2016, and currently has a vacancy which has been open since October 2024.

Chief Justice Raymond Zondo introduced an initiative to invite academics and practitioners to serve as acting judges on the court, in the hope of broadening the pool of candidates. However, the JSC was unable to recommend enough candidates to fill the vacancy in April 2024 and has subsequently been unable to shortlist enough candidates to conduct further interviews for the position.

This is a serious problem and, with further vacancies set to become open in 2025, it is imperative that the issue is resolved as soon as possible. Ensuring a functioning appointment process that has the trust of the judiciary, and the legal profession must therefore be a priority in 2025.        

THE FUNCTIONING OF THE COURTS: MAJOR CHALLENGES REMAIN

The courts are operating under difficult circumstances. The caseload that judges are required to deal with is immense and is having a serious impact on the judiciary’s ability to deliver justice timeously.

This has been illustrated by the long delays litigants face in obtaining trial dates in the Gauteng High Court, with litigants in some cases having to wait until 2029 for their cases to be heard.

The country’s highest court has not been spared, either. It took the Constitutional Court until April to hand down its first judgment of 2024, prompting concerns about the functioning of the court. The court’s workload challenges have been attributed in large part to a marked increase in new applications for leave to appeal since the court’s jurisdiction was expanded beyond that of a specialist constitutional court.

Chief Justice Zondo announced a scheme to utilise the services of retired judges to assist the court in dealing with these new applications, but this was abandoned after several concerns were raised about the scheme.

A further source of ongoing frustration for the outgoing Chief Justice has been the lack of movement in giving the judiciary greater control over court administration. This is widely felt to be a crucial requirement for judicial independence, but progress has been painfully slow.

These issues are complex and multi-faceted, and the judiciary will not be able to resolve them on its own. Nevertheless, it is crucial that there is real progress towards addressing these issues in 2025, as the current situation does not appear to be sustainable.

IN MEMORIAM

The year saw the passing of two of the Constitutional Court’s original judges, Justices Yvonne Mokgoro and Laurie Ackerman.

Their legacies remind us of a time when the Constitutional Court was seen as an international leader for its groundbreaking jurisprudence.

It is saddening that we are faced with a situation where the court has gone from having that legacy to not being able to fill vacancies for year upon year. One can only hope that 2025 will see this situation begin to change, although if the catalyst for change is indeed that judges need to have their confidence in the JSC restored, the situation may yet take some time to change.

Similarly, the scope of reform and change that will be required to improve the systems of judicial accountability and judicial governance will also defy any “quick-fix” solutions.

However, if the judiciary’s year in 2024 has shown us anything, it is that it is imperative that serious steps are taken to address these challenges.

The judiciary’s much-heralded role as a bastion against state capture and a guarantor of fundamental rights cannot be taken for granted and will be increasingly difficult to sustain if the challenges discussed in this article continue to manifest themselves in the year ahead.   

Judith February and Chris Oxtoby are with Freedom Under Law.