Op-eds

2025: a pivotal year for South Africa's judiciary amid scandals and reform efforts

19 Feb 2025

In many ways, 2025 is a watershed year for the judiciary. Several of the reforms initiated in previous years are meant to start bearing fruit. At the same time, there are major reforms that have yet to get going, without which the judiciary’s independence and effectiveness hangs in the balance.

The year 2025 started off dramatically. For two weeks in January, the South African public was fixated on the graphic, harrowing testimony and cross-examination of Ms Andiswa Mengo, a judges’ secretary who has filed a judicial misconduct complaint against Eastern Cape Division of the High Court Judge President Selby Mbenenge, accusing him of sexual harassment.

Judges behaving badly

It is the first time in South African history that a judicial conduct tribunal is investigating sexual harassment allegations against a judge. For many, it was unbelievable to hear such allegations against a senior judge. While the tribunal is only partly through its work, there are already calls for reforms into how complaints of this nature are investigated, including how complainants are cross-examined.

At her interview for chief justice in 2022, now Chief Justice Mandisa Maya undertook to develop a comprehensive policy to deal with sexual harassment in the judiciary. A draft version of this was released by retired Chief Justice Raymond Zondo shortly before his departure.

Organisations like Judges Matter have already pointed out flaws in this policy, calling for its revision. This revision process is already underway, led by Chief Justice Maya. While it will not apply to the Mbenenge tribunal when it resumes in May, the policy will be important for future cases, and the pressure for its implementation will be overwhelming.

In the meantime, yet another judge faces impeachment. In January, the Judicial Conduct Tribunal found Gauteng Division of the High Court Judge Nana Makhubele guilty of gross misconduct for simultaneously holding the position of a judge and chairperson of a state rail agency Prasa, which is unlawful.

Additionally, the tribunal found her involvement at Prasa, including settling legal claims in favour of a company accused of State Capture-related corruption, was incompatible with judicial office.

The Makhubele tribunal report now goes to the Judicial Service Commission (JSC, sitting without Members of Parliament) to decide her fate. If the JSC confirms the guilty finding, it may recommend her impeachment and removal from office.

Later in February, Western Cape Division of the High Court Judge Mushtak Parker is also facing a judicial conduct tribunal. The Cape Bar Council accuses him (and his former law firm partners) of failing to account for millions of rand in client money deposited into their trust accounts.

Accused of lying under oath

Alongside this, the tribunal will also investigate a complaint filed by 10 fellow Western Cape judges who accuse Parker of lying under oath regarding an incident where former Judge President John Hlophe allegedly assaulted him. The tribunal was meant to get under way in 2021 but was delayed by the judge’s illness.

The JSC is under pressure to finalise the matter, one way or another. The judge has been on suspension with full pay of nearly R2-million a year since 2020.

Gauteng Division of the High Court Judge Tshifhiwa Maumela — famously known for presiding over the Senzo Meyiwa murder trial — is also on suspension while his Judicial Conduct Tribunal is paused due to illness. He is accused of taking too long to deliver his judgments, in breach of the Norms of Standards for judges.

While it may raise eyebrows that so many judges are undergoing disciplinary proceedings, it is no cause for alarm. For a long time, the disciplinary system had not been working as it should, and was paralysed by litigation (especially involving impeached judges Hlophe and Motata).

Now that litigation has been resolved, the system is kicking into gear and working as it should. We expect there to be fewer cases going to tribunals in future.

Nevertheless, there are structural issues hobbling the system to hold judges accountable. They need the collective attention of the Chief Justice, the minister of justice and Parliament.

First, the current process is too convoluted, and the legislation governing judicial misconduct (the JSC Act) needs amending to streamline the process and make it efficient.

Second, the entire system needs to be properly resourced to bring in retired judges to speedily adjudicate complaints, and a team of dedicated administrative staff (currently, two secretaries and an intern run the whole process).

Third, the process needs to be transparent. It is an anomaly that judges preside over cases in open court daily, yet misconduct complaints against them are only opened by special permission. The legislation should be amended to ensure that open justice is the default. The JSC should also regularly report to Parliament on the progress of complaints, as required by law.

These three simple steps would go a long way toward fortifying the system that upholds judicial ethics and integrity.

Resourcing the judiciary

On the sidelines of the State of the Nation Address, Chief Justice Mandisa Maya convened an extraordinary meeting between the ministers of finance and justice to plead the case for additional resources for the judiciary.

There is a nationwide shortage of judges across all courts, with a crisis at the Gauteng Division of the High Court, where the earliest trial dates are only available in 2030! There is therefore an urgent need to properly resource the judiciary in line with our growing population and the complexity of the economy.

As an interim measure, the National Treasury needs to immediately allocate funds for the appointment of acting judges to deal with the backlogs. This should be until more funding is found for the appointment of additional judges. The crisis of a shortage of judges is denying hundreds of thousands of people justice and is harming the economy and the rule of law.

Governing the judiciary

Closely linked to resources is the question of who has the final say over the governance of the judiciary. The 2023 judges conference called for judges themselves to have a greater say in the judiciary’s budgets, administrative support systems, and operations of court buildings. They also want magistrates’ courts to be fully aligned with the superior courts, in what is called the “single judiciary”.

Since shortly after the 2024 elections, both Parliament’s Justice Committee and the minister of justice have publicly supported this move, but not much progress has been made since. It therefore falls on Chief Justice Maya and the judiciary’s leadership collective to drive this initiative in 2025.

Fixing the Constitutional Court

In a 2022 research paper, UCT Law researchers Nurina Ally and Leo Boonzaier note a decade-long (2010 to 2021) decline in the Constitutional Court’s performance. Appeals are taking longer to be processed, judgments are taking longer to be delivered, and the court’s administrative systems are in disarray.

In addition, there has been criticism of the court’s inconsistent jurisprudence in key areas of private law, commercial law, and competition law.

Various factors are attributed to the decline, but the fact that since 2016 the court has operated without a full complement of permanent justices must be chief among them.

President Cyril Ramaphosa needs to urgently nominate a new Deputy Chief Justice to fill the position vacated by Judge Maya. Chief Justice Maya needs to take proactive steps to invite the brightest judges, with the potential to contribute significantly to the court’s jurisprudence, to apply for permanent appointment. This will also require her to lead the JSC on this laser-focused mission to fill the two remaining vacancies, including one that will arise when the current Acting Deputy Chief Justice Mbuyiseli Madlanga retires in July.

Fixing the JSC

Speaking of the JSC, the 2024 elections ushered in a fresh crop of MPs who seem to be serious about their jobs in the constitutional body — if the October 2024 interviews are anything to go by.

However, a new crisis is the JSC’s failure to attract sufficient, quality candidates to appoint as judges. The JSC has twice abandoned interviews for the Constitutional Court, and several high court vacancies were left unfilled in October 2024.

This might be due to the legal profession’s lack of confidence that the JSC takes its job seriously and will treat aspirant judges with fairness and dignity. The October 2024 session was therefore a welcome improvement, marked by rigorous questioning and respectful engagement. We hope this will be built upon.

The JSC needs to adopt a written code of conduct to set high ethical standards for its current and future members, with the option of recall for members who fail to adhere to it. The current case regarding Dr John Hlophe’s membership of the JSC will no doubt provide useful guidance on the quality of JSC members required, but the reforms to the JSC need to already be in motion.

And now, the good news

It's not all gloom and doom, and there’s some good news in store.

In April, the South African judiciary will host the biennial conference of the International Association of Women Judges in Cape Town — its first time on African soil.

In July, the Constitutional Court will celebrate its 30th anniversary with a conference and art exhibition.

Later in the year, and alongside South Africa’s hosting of the G20 Summit, Chief Justice Maya will host the J20 — a summit of heads of supreme courts and constitutional courts of G20 members to discuss issues of global concern, including the judiciary’s response to the climate crisis and the impact of artificial intelligence.

The year 2025 presents a mixed bag of prospects for the South African judiciary. It will require dedicated leadership from Chief Justice Maya working alongside the judiciary’s leadership collective, but also with the support of the president, the minister and Parliament.

Six months into the job, she seems to be making positive moves. We await to see if this will yield the necessary outcomes to ensure a strong, independent, and resilient judiciary. DM

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary in South Africa. For more: www.judgesmatter.co.za / @WhyJudgesMatter on Twitter.

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