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Fact check — Did the Supreme Court of Appeal violate the Constitution?

Fact check — Did the Supreme Court of Appeal violate the Constitution?
A screenshot of a tweet by IOL news regarding the racial composition of the Supreme Court of Appeal. (Screenshot: X)
Rebecca Davis
By Rebecca Davis
7 Mar 2024
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An opinion piece on the IOL news website at the beginning of March bore the headline, presented as fact: ‘Supreme Court of Appeal violated Section 174 of the Constitution.’

[embed]https://youtu.be/NMcrtyrDZtY?si=ZCRcme65dDI3lg3x[/embed]

 

Is this accurate?

The opinion piece in question was written by Sizwe Dlamini, the head of Independent Newspapers’ investigative unit, the Falcons. 

It is fair to assume that Dlamini may have not written the headline of the article, as often this task falls to subeditors rather than journalists.

But in the article he repeats the claim that the Supreme Court of Appeal may have violated the Constitution – by fielding an all-white bench of judges to hear a recent case.

The case in question involved Independent Media’s holding company, the Sekunjalo group, owned by businessman Iqbal Survé. 

It’s worth noting that Dlamini does not mention in the article that the news website he is writing for is part of the Sekunjalo stable. This disclosure would ordinarily be best practice in terms of media ethics.

This legal saga started when Nedbank became one of a total of reportedly 28 banks to close Sekunjalo’s accounts after the findings of the Mpati Commission of Inquiry report.

That commission looked into wrongdoing at the Public Investment Corporation and found dodgy aspects surrounding the PIC’s investment of R4.3-billion into a Surve-owned tech company whose shares almost immediately lost 90% of their value.

Sekunjalo initially succeeded in winning an Equality Court judgment that Nedbank had to keep its accounts open, but this was overturned by the Supreme Court of Appeal in December 2023, in a scathing judgment which dismissed the idea that Sekunjalo’s accounts were being closed due to racial discrimination. 

Since then, Independent Media has been pushing the claim that this judgment was questionable because the bench of judges who decided the matter was all-white.

A similar opinion piece was tweeted by IOL’s X account in January 2024 alongside a graphic which claimed: “Outcry over SCA’s All-White Bench in Discrimination Case.”

A screenshot of a tweet by IOL news regarding the racial composition of the Supreme Court of Appeal. A screenshot of a tweet by IOL news regarding the racial composition of the Supreme Court of Appeal. (Screenshot: X)



The part of the Constitution which Independent claims may have been violated is Section 174 (2), which reads: 

“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

According to the Supreme Court of Appeal website, there are currently 23 judges on the bench. 

As far as we can establish, six of these are white and 17 are black, constitutionally speaking. Some might argue that just more than a quarter white judges is an overrepresentation based on population figures, but it is clear that a significant majority of Supreme Court judges are black.

The Sekunjalo matter was heard by five judges, which the Supreme Court website says is standard for matters of importance. 

Cases are allocated by the judge president, who in this case is Judge Mahube Molemela, and the composition of panels changes for each case. Allocations are normally made simply on the basis of which judge is available; the question of race would never come into it.

As such, there is simply no basis to Independent Media’s claims that the country’s second-highest court has violated the Constitution. 

This is a very serious allegation, which has the potential to put a major dent in public confidence in the judiciary. It is factually untrue. DM

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