Issues facing the judiciary in 2021
What are the major issues facing the judiciary in 2021?
Across english-speaking Africa, the legal year starts with judges and lawyers gathering in their fancy robes to hear the Chief Justice address them at an official opening ceremony. In South Africa, there’s no such pomp or ceremony. To mark the start of the year, we at Judges Matter thought we would put together a preview of the major judicial issues we will be watching out for in 2021.
In late January 2021, the Judicial Service Commission (JSC) released two shortlists for judicial appointments in courts around the country. The JSC last sat for interviews in October 2019, and had to cancel both its April 2020 and October 2020 sittings due to the COVID-19 pandemic.
“It is no surprise then that the JSC will be sitting for a mammoth 10 days from 12 April to 23 April 2021, interviewing 88 candidates for nearly 30 vacancies at 12 courts from all nine provinces, as well as the apex courts.”
This meant that vacancies which arose between September 2019 (when the last shortlist was compiled) and 2021 have been left unfilled. It is no surprise then that the JSC will be sitting for a mammoth 10 days from 12 April to 23 April 2021, interviewing 88 candidates for nearly 30 vacancies, at 12 courts from all nine provinces, as well as the apex courts.
Some major vacancies to look out for include those left by the retirement of justices Cameron and Froneman at the Constitutional Court, five vacancies at the Supreme Court of Appeal (SCA), and various leadership positions in the judiciary, including the Deputy Judges President in Free State, Gauteng, Limpopo, Mpumalanga, and the Northern Cape.
Conspicuous by their absence are candidates to fill the recently-vacant post of Judge President of the Competition Appeal Court, and Deputy Judge President of the Labour Court (which has been vacant for four years). With the pandemic bringing up issues like mass retrenchments and anti-competitive conduct in essential goods retail, it is surprising that the JSC did not shortlist candidates for these posts. The same goes for the Electoral Court, which will be significantly busier due to the upcoming Local government elections. Considering the number of vacancies that will need to be filled, and the important vacancies that will arise even after the April 2021 sitting, we are calling for the JSC to hold a special sitting in July 2021.
“Considering the number of vacancies that will need to be filled, and the important vacancies that will arise even after the April 2021 sitting, we are calling for the JSC to hold a special sitting in July 2021”
Judges behaving badly: misconduct complaints
It is remarkable how 2020 both started and ended with major incidents involving judicial misconduct. In January 2020, the judiciary was rocked by a complaint filed by Western Cape Deputy Judge President Patricia Goliath against her boss, Judge President John Hlophe. The complaint was dealt with by the Judicial Conduct Committee of the JSC, which decided to refer the complaint to an inquiry, and a 2-1 majority found that the misconduct complained of was not serious enough to warrant impeachment.
However, an inquiry held by Chief Justice Mogoeng found that there was in fact impeachable misconduct, and referred the matter to the JSC to appoint a Judicial Conduct Tribunal against JP Hlophe. This would be the second Tribunal against him. The first emanates from the 2008 complaint by justices of the Constitutional Court, who accused him of trying to affect improper influence. The first Tribunal sat for hearings in December 2020, after a delay of over a decade. A final decision is pending and expected in the coming weeks.
A further two Tribunals will be appointed in 2021 to decide the fate of Judge Makhubele and Judge Parker
The first will determine whether Judge Nana Makhubele of Gauteng committed gross misconduct by, among other things, allegedly accepting a judicial appointment alongside an appointment as chairperson of a parastatal. The second Tribunal will determine whether Judge Mushtak Parker of the Western Cape also committed gross misconduct, by lying under oath about an assault that Judge Hlophe allegedly inflicted on him, at the High Court premises.
There are several other high-profile complaints that were filed in 2020, and previous years, for which we hope to see some progress on in 2021, although we have previously lamented the slow pace of misconduct proceedings at the JSC.
These include two complaints against Chief Justice Mogoeng for his public utterances, and a complaint against retired SCA Judge Willie Seriti for his role in the Arms Deal Commission of Inquiry. There is also a long-running complaint against Judge Nkola Motata, resolved by the JSC in 2019, that is scheduled for review.
“We do not actually know how many complaints have been filed against judges, how many have been resolved, and how many are still outstanding.”
We do not actually know how many complaints have been filed against judges, how many have been resolved, and how many are still outstanding. The JSC does not disclose this information to the public, despite a legal requirement to do so, and numerous requests. We discuss this further below.
Chief Justice Mogoeng’s retirement and a new Chief Justice for South Africa
Chief Justice Mogoeng will reach the end of his 12-year term on the Constitutional Court and retire towards the end of 2021. While he still commands a prominent public profile and is unlikely to catch up on his knitting, the public debate on his successor has already started in earnest.
Last year, we wrote about the crucial role of the chief justice and the qualities any successor should have. We also discussed the process for appointing the chief justice, including potential candidates, some of whom may be women – a historical first. This year, the debate about a new chief justice is likely to reach fever-pitch, and we will be watching it quite closely, including the process that President Ramaphosa will follow.
A number of Constitutional Court vacancies
Alongside Chief Justice Mogoeng’s retirement, will be the departure of two of his Concort colleagues. This is the ‘Class of 2009’ which was appointed to replace the last of the founding cohort of justices appointed in 1994, who had finished their full fifteen years in that court. Justice Sisi Khampepe and Justice Chris Jafta will complete the departure of that Class of 2009, which also included Justice Johan Froneman. Due to his early retirement, the Froneman vacancy will be filled at the April JSC sitting while the Khampepe and Jafta vacancies will only be filled later in the year, or even early next year. Our view is that the vacancies must be filled as soon as they arise. Better yet, there is no reason why candidates cannot be interviewed and recommended before the justices officially retire. This is another reason why we are calling for a special JSC sitting in July 2021.
The Zondo Commission and its implications for the judiciary
Barring an extension, the Zondo Commission of Inquiry into State Capture has until end March 2021 to wrap up its hearings, with a report due by June 2021. Regardless of what the findings and recommendations are, the likelihood that it will be taken on review by some or other party is almost certain. This has major implications for the judiciary, as judges will have to handle what is undoubtedly the country’s biggest political hot potato. We are already witnessing some of what is to come in the constant attacks on the judiciary by political figures like former President Jacob Zuma and EFF leader (and JSC commissioner) Julius Malema. We will also be watching this issue closely.
Other issues: Elections, COVID-19 backlogs, judicial governance, and accountability
In South Africa, judges are (thankfully!) appointed instead of being elected. But 2021 is a local government election year and those political skirmishes almost inevitably end up in the courts – the Electoral Court in particular. We are concerned about the number of vacancies in that court (3 of 5), and how the JSC has not shortlisted anyone to fill them. This is an oversight that must urgently be attended to, and another reason why the JSC needs to hold a special sitting in July 2021.
The COVID-19 pandemic still looms large and is likely to do so for the next few years. The impact on the functioning of the courts and the judiciary seems to have been profound, with lawyers advising us of serious backlogs that have arisen, and tales of complete dysfunction in some courts. While we are limited in terms of actions we can take, this is an area we hope to shine a spotlight on in 2021.
Closely related to the pandemic, last year we saw both the Chief Justice and the Minister of Justice issuing sometimes conflicting directives on the operations of the courts during the lockdown. This revealed serious flaws in the governance system in the judiciary – particularly who has final say over court operations – which is something we will pay closer attention to in 2021.
The lack of transparency in the judiciary
It is troubling that the JSC does not publicly disclose the misconduct cases currently pending before the Judicial Conduct Committee and the Judicial Conduct Tribunal (there are at least 13, according to our estimates). This makes the judiciary vulnerable to the criticism that is is not taking action against its own bad apples, and is shielding them from accountability, while the judiciary expects others to be accountable under the constitution.
Finally, we are deeply concerned about the lack of transparency in the structures of the judiciary, particularly the JSC. Although required by law to produce an annual report detailing its activities, including judicial appointments and misconduct cases, the JSC has not published such a report and tabled it in Parliament in many years. This is a failure of accountability that we will look at more closely in the coming months and hope that the JSC will move away from.