OPINION: It's going to be a busy year ahead for the judiciary

So much of South African politics, and indeed public life generally, plays out in the courts that it becomes trite to describe a year as an important one for the judiciary.

But it is still worth highlighting some of the major issues that we should keep an eye on in 2025, because of how important the courts and judges are in our constitutional democracy. Who judges are, and how they do their jobs, has far-reaching consequences for us all.

To begin at the top of the court system: the Constitutional Court faces some important challenges, which will need to be addressed to ensure that the country’s highest court functions optimally.

In 2024, outgoing Chief Justice Raymond Zondo raised concerns about an ongoing and significant increase in the court’s workload. Zondo’s initial scheme to deal with the problem, by using retired judges to assist the court in dealing with new applications for leave to appeal, was quickly jettisoned.

There was discussion about a constitutional amendment being introduced to enable such applications to be dealt with more quickly, but one year on, there is little sign of any movement to address this issue.

The appointment of a new Chief Justice, and two changes of Minister of Justice, during this time has no doubt contributed to the delay, but it is imperative that the issue is not allowed to slide.

As Freedom Under Law (FUL) has pointed out, this issue presents an opportunity to consider whether more fundamental reform is needed to the structure and jurisdiction of our appeal courts. It is to be hoped that policy makers will grasp this opportunity, rather than adopting a short-term solution or doing nothing at all to address the problem.

The issue of capacity does not only affect the Constitutional Court. Other courts face significant challenges to their workload, and litigants can potentially wait for years to have their cases heard. This makes it important to pay close attention to the courts’ budget. If courts do not have the capacity and support to deliver justice, public confidence in the judiciary will inevitably suffer – something the judiciary can ill afford.

A related issue, and a source of ongoing frustration for former chief justice Zondo, has been the failure to implement measures to give the judiciary full control of court administration. Proponents of such a development argue that it is essential for the judiciary’s independence, and it will be important to monitor whether any significant progress can be made on this issue in 2025.

The Constitutional Court also faces an urgent need for permanent judges to be appointed to serve on it.

A longstanding vacancy has not been filled since October 2021, and another vacancy will become open during the year when the tenure of one of the court’s leading jurists, Justice Madlanga, comes to an end.

Furthermore, the court has been without a Deputy Chief Justice (DCJ) since the previous incumbent, Mandisa Maya, was appointed as Chief Justice. Concerns have been raised about how long this vacancy has remained open, particularly considering the importance of the responsibilities of the DCJ, and it will be important for the President to ensure this vacancy is filled without further delay. With the court facing the serious challenges we have described, it cannot afford to be without a senior leader for so long.

Discussion of the appointment of judges brings the role of the Judicial Service Commission (JSC) into focus. The JSC is regularly on the receiving end of criticism (including from us) for how it carries out its role in the appointment of judges. Litigation instituted by FUL over the JSC’s failure to fill all open vacancies on the Supreme Court of Appeal in October 2023 remains ongoing, and the failure to fill vacancies on the Constitutional court for so long is likely due, at least in part, to prospective candidates being unwilling to go through a JSC interview process that can be gruelling and unfair.

How the JSC performs in the course of the year will be significant for (it is to be hoped) rebuilding confidence in the commission and encouraging more high-calibre candidates to put themselves forward. The JSC took a positive step in 2022 when it introduced extensive criteria for how it evaluates candidates, but it now needs to make sure they are put into practice effectively (the JSC’s failure to do so in the October 2023 interviews is at the heart of FUL’s litigation against the commission).

Another important process that has regularly been criticised is how complaints against judges are handled. 2024 saw an unwelcome first, as former judges Hlophe and Motata became the first judges in South African history to be removed from office.

Other serious complaints will be dealt with in the course of 2025. A judicial conduct tribunal dealing with a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge is currently underway and has attracted significant public attention. This is the first time a complaint of sexual harassment against a judge has reached this stage, and how it is handled will be extremely important for the credibility and accountability of the judiciary.

Another complaint that deserves close attention is that against Gauteng High Court judge Nana Makhubele, who faces potential sanction for chairing the PRASA board whilst sitting as a judge. A judicial conduct committee has found that she committed gross misconduct, which could lead to her removal from office. The JSC must still decide whether to affirm the finding and if it does, Parliament will then vote on whether to remove her from office.

The process and outcome of these complaints are important. Judges, as we have described, exercise great power, and in order to protect their independence, they are not subject to the same measures of democratic accountability that members of Parliament are.

This can be justified by the unique role that judges play in our constitutional system, but it also heightens the importance of ensuring that when judges do fall short of the standards of conduct required of them, they are properly and effectively held to account – including, in the most serious cases, by their removal from office.

Unfortunately, the process by which complaints are dealt with was often not met this standard. There have been longstanding concerns about the inordinate amount of time taken to resolve complaints, inconsistency over the suspension of accused judges (this has been an issue in the Mbenenge case), and questionable decisions by the JSC on whether misconduct had been committed (both the Hlophe and Motata complaints required court intervention before being resolved).

It is crucial that ongoing complaints are dealt with in a manner that can begin to allay these concerns.

The concerning number of serious complaints which have been dealt with in recent years suggests that the JSC may need to look at ways of ensuring that candidates are more carefully scrutinised to ensure these issues do not arise in the first place.

All this takes against a backdrop of the courts being required to deal with highly consequential and contentious political matters. We can expect the Constitutional Court to deliver judgment on the EFF’s challenge to the National Assembly’s rejection of the panel report into the so-called ‘Phala-Phala’ controversy – which had the potential to lead to the President’s removal from office. Multiple challenges to the NHI Act are expected to come before the courts during the year. Litigation over the controversial designation of former judge Hlophe as a member of the JSC is still to be finalised. And there will no doubt be many more.

There is often justifiable concern about the increased role of the courts in resolving matters and holding the powerful to account. But the nature of our Constitution – and indeed our broken state means that the courts will continue to be final arbiters where politics fails us.

It is therefore crucial that the courts are properly capacitated, and presided over by judges with the technical ability and ethical standing to do the job required. This year promises to test the judiciary and the courts every bit as much as the years before.