In 2024 the judiciary will be under scrutiny with three judicial conduct tribunals looking into potentially impeachable conduct expected to get under way.
And, a day some thought would never come: the National Assembly’s programme committee decided in November that a special sitting will be convened in January for MPs to attend in person to vote on the impeachment of Western Cape judge president John Hlophe and retired Gauteng judge Nkola Motata.
The removal of a judge requires the votes of two-thirds of the National Assembly. The Sunday Times’s political correspondent in parliament, Andisiwe Makinana, wrote in November that this meant 267 MPs: “With the ANC (230 MPs) and DA (84) in support of the call at the committee level, the judges are unlikely to escape the chop.”
For those following the snail-paced process that unfolded prior to the matter arriving at parliament’s door, the justice portfolio committee dealt with its part with dizzying speed: once satisfied there was no legal impediment to it processing the findings, the committee met in October. The committee members decided it was not for them to relook at the “merits” — the decisions that gross misconduct had been committed by the two judges had already been made, so that part was done and dusted. They then asked for submissions on “extenuating circumstances”. The committee met again in November, considered these submissions and recommended impeachment.
Hlophe’s lawyers have hinted that legal action may yet be taken. If it is, this would be in line with the long history of the gross misconduct complaints against the two judges — which were delayed for more than a decade by seemingly endless litigation. But so far, no new litigation has been launched.
The order, if granted, would be a far-reaching change to the way the JSC has conducted its internal processes up to now
Even if litigation comes, Hlophe faces a second Judicial Conduct Tribunal (JCT) hearing and has been recommended for suspension on the basis of a second and separate complaint, made in 2020 by his deputy, Patricia Goliath. The JSC announced in December that it has accepted the finding of the Judicial Conduct Committee on the “complaint of assault and use of abusive language” by Goliath.
In 2020, Goliath laid a complaint listing several alleged transgressions by Hlophe, including that he had assaulted his colleague judge Mushtak Parker in Parker’s chambers and that he undermined her in her role as his deputy. When she tried to address her concerns with him, he reacted aggressively, calling her a “piece of shit” and “rubbish”, she said.
Hlophe said Parker would deny the assault, and denied swearing at Goliath. When she produced a secret recording of their interaction, he then said her recording was undermining him. No date has been announced for that hearing.
The tribunals in respect of judges Nana Makhubele and Nomonde Mngqibisa-Thusi have already begun. Makhubele’s is expected to finish before April, with its chair, retired judge president Achmat Jappie, saying that the panel was determined to get its report to the JSC before its April meeting.
Makhubele faces possible impeachment on a complaint from civil society coalition #UniteBehind that, after she was appointed a judge from January 1 2018, she continued to serve as chair on the interim board of the Passenger Rail Agency of South Africa (Prasa), a double role that was improper, the organisation said. It also alleged that during that time, she pushed through, contrary to legal advice from her own legal affairs division, which she sidelined, the settlement of claims for about R59m with a set of companies in the Siyaya group owned by Makhensa Mabunda. Mabunda was politically connected to Prasa’s former (and allegedly corrupt) CEO Lucky Montana.
The only thing outstanding at her tribunal is her own testimony. It was supposed to begin in November, but she sought a postponement because of an ongoing wrangle with the state attorney over the payment of her legal costs. In a letter to the tribunal at its last sitting in November, she said her legal team was owed “in excess of R3m”, an amount far more than her annual salary.
Mngqibisa-Thusi’s tribunal is in its early days. It had its first sitting in December and was postponed because of a delay to do with the gathering of expert evidence. The complaint against Mngqibisa-Thusi relates to a series of long-delayed judgments. In a first for a JCT hearing, her defence is that the delays were partially attributed to her answering a spiritual calling. One of the expert witnesses she intends to bring before the tribunal is an expert on “African spirituality”.
How judges are selected will also come under the spotlight with court challenge by Freedom Under Law (FUL) to the JSC’s decision in October 2023 to leave two posts vacant on the Supreme Court of Appeal, after it interviewed 10 candidates for four vacant posts. FUL has urgently applied to court for an order that the JSC reconvene and reconsider its decision, but it has also — in part B of its case, which it has not asked the court to consider urgently — asked for an order that the JSC be directed to develop and publish “assessment criteria”.
These would be criteria against which every commissioner would assess every candidate they interview for appointment, in writing, and which they would submit when they cast their secret ballots. The order, if granted, would be a far-reaching change to the way the JSC has conducted its internal processes up to now. The JSC has yet to file its answering papers in court.
Though President Cyril Ramaphosa was in 2023 cleared of breaches of the executive ethics code and exchange control regulations by the public protector and the Reserve Bank respectively, both these decisions have been challenged in court. The African Transformation Movement has gone to court over the public protector’s report, asking for the high court to declare its findings inconsistent with the constitution and invalid, and to set them aside.
The DA wants a similar order from the Pretoria high court in relation to the Bank’s decision to clear Ramaphosa, and also wants the court to substitute the Bank’s decision with its own and to declare that Ramaphosa breached exchange control regulations. By launching its application, the DA paved the way for the Bank to put its report before the court, thereby making it a public document. The DA will have an opportunity to supplement its grounds for its legal challenge in January.
The new year should also bring the long-awaited judgment in the DA’s challenge to the ANC’s cadre deployment policy, which was argued before the Pretoria high court in January 2023. The case came after the disclosure of ANC deployment committee minutes during the state capture commission in 2021. The DA argued that the policy was unconstitutional, and its effect was that the ANC, and not the state, controlled who was appointed to critical state institutions.
The ANC argued that the DA was abusing the court to fight political battles and that it was entitled to say, like anyone else, who it thought should get jobs in government. It was up to the state to exercise an independent evaluation. Judgment has been outstanding for almost a year.
A case which may have significant implications for both poverty alleviation and the national budget is also expected to go to court next year. The Institute for Economic Justice and #PayTheGrants challenged the latest iteration of the regulations that govern the R350 social relief of distress (SRD) grant, saying the government has put “a range of bureaucratic obstacles and criteria” in the regulations that mean several million eligible applicants are excluded. They want these struck down as unconstitutional.
They also want the government to “devise and implement a plan to redress the retrogression in the value of the SRD grant and income threshold and progressively increase the value of the SRD grant”, which would effectively result in the R350 amount being increased, to be inflation-related, and the threshold for eligibility changed — it is currently set at R624.
The removal of a judge requires the votes of two-thirds of the National Assembly
If the organisations get the orders they seek, it would be a good thing for poverty alleviation — everyone agrees that the grant has significantly reduced the number of people living below the food poverty line. But it is likely to be resisted by the National Treasury with claims that it is already cash-strapped.
An appeal is likely against the judgment of the Pretoria high court that electricity Kgosientsho Ramokgopa should “take all reasonable steps” — by no later than January 31 — to ensure that public hospitals, clinics, schools and police stations are not affected by load-shedding.
In a unanimous judgment of three judges, judge Norman Davis said this order was “just and equitable”, once the court had determined that load-shedding breached several constitutional rights.
The order was the final outcome of three separate court cases on load-shedding that were argued before the Pretoria high court in 2023 by a range of opposition parties, trade unions, NGOs and individuals. They sought various orders but did not get most of them.
The one that was ultimately given was not even an order that was initially sought by any of the applicants. The group of applicants in one of the cases — called the UDM applicants — had originally wanted the minister of public enterprises to take the lead in shielding schools, hospitals and police stations from load-shedding, and the order was sought on an interim basis.
However, in a complicated turn of events, the interim order, which had been granted by the court in May, lapsed. Yet the court granted a similar order, as a final one, against the minister of electricity. The government had already sought to appeal the May order before it lapsed and is likely to seek to appeal this one too.
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