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When Courts Rebuke Courts: Lessons from the Concourt’s Criticism of the SCA in Makate II

Click to read the abridged version

Criticism by higher courts of lower court judgments is not new. But seldom is such criticism as sharp as the Constitutional Court’s (“Concourt”) recent censure of the Supreme Court of Appeal (“SCA”) in Vodacom (Pty) Ltd v Makate and Another (CCT 51/24) [2025] ZACC 13 (31 July 2025). 

First, an orientation on the two courts.

CONCOURT AND SCA ON SA COURT LANDSCAPE

The Concourt is the highest court in South Africa. It currently has nine permanent Justices and two Acting Justices. It sits en-banc for the hearing of each case with a quorum of eight. Its jurisdiction, as determined by the Constitution of South Africa, is confined to (1) hearing and deciding constitutional matters and (2) hearing and deciding matters that raise arguable points of law of general public importance and in respect of which the Concourt has granted leave to appeal to it. What constitutes a “constitutional matter” and an “arguable point of law of general public importance” is not always clear. But that is a topic for another paper.

The SCA is the second highest court in South Africa. According to its website it presently has 24 permanent Justices and five Acting Justices. It sits in panels usually of five Justices (sometimes three) for the hearing of each case, each in one of three courtrooms on a given day. The SCA exercises general appellate jurisdiction, except in respect of labour and competition matters which are the domain of the Labour Appeal Court and the Competition Appeal Court, respectively, whose judgments can only be appealed to the Concourt.

BRIEF LITIGATION BACKGROUND TO THE DISPUTE

This case marks the second time the Concourt has ruled on the long-running dispute between Vodacom and Mr Nkosana Makate over reasonable compensation for the “Please Call Me” idea. In its 2016 judgment in Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) (“Makate 1”), the Concourt ordered Vodacom to negotiate compensation in good faith, with any deadlock to be resolved by its CEO. When negotiations broke down, the CEO offered R47 million. Mr Makate challenged this determination, and the matter has since wound through the High Court, the SCA, and now back to the Concourt nearly a decade later.

SUMMARY OF THE CONCOURT’S REBUKE

In a unanimous decision, the Concourt has delivered unusually sharp criticism of the SCA majority judgment. While it refrains from using words like “incompetence” or “dereliction”, its language leaves little doubt about its concern on this. Expressions such as “thinly reasoned,” “astounding,” “inexplicable,” and “confusing reasoning” reflect the depth of its disapproval.

Among the Concourt’s findings are:

  • Misattribution of findings: The SCA is said to have ascribed to the Concourt a finding that the Concourt says it never made in Makate 1.
  • Confusion over legal principles: The SCA is said to have been confused about the facts to which the Plascon-Evans rule applied. The rule guides how factual disputes are resolved in motion proceedings (that is, non-trial proceedings).
  • Misattributed concessions: The SCA is said to have attributed to Vodacom’s counsel a concession that was central to his client’s case—something the Concourt found implausible.
  • Failure to pronounce on key issues: The SCA is said to have summarised submissions but failed to decide the most crucial question—whether the CEO’s compensation determination was equitable or reasonable.
  • Failure to assess evidence: The Concourt pointed out that significant portions of evidence were either disregarded or seemingly overlooked by the SCA majority.
  • Granting relief not sought: The SCA is said to have granted Makate orders he had not requested through cross-appeal.
  • Adopting pleadings wholesale: The SCA is said to have copied directly from Makate’s Notice of Motion, resulting in imprecise relief with huge financial implications.

The detail on each of these findings is discussed below. In short, the Concourt has concluded that “the real appeal was not decided,” amounting to a failure of justice.

Lest the purpose of this paper is misunderstood, and hopefully in order to avoid unintended consequences, I should explain my purpose.

PURPOSE OF THIS PAPER

The purpose in this short paper is neither to agree nor disagree with the Concourt’s assessment of the SCA approach. To do that in a fair and meaningful way would require a reading and digestion of the entire record that was before it. That is beyond the scope of this short paper. Instead, my purpose is to highlight the Concourt’s points of criticism and then point to what I believe are the lessons that emerge from this Concourt judgment.

THE DETAIL OF THE CONCOURT’S FINDINGS

I have limited this paper to eight points of criticism of the SCA majority by the Concourt. They range from alleged failures in the treatment of evidence to confusion in reasoning, to a faulty recollection of Counsel’s submissions, to confusion on the application of the Plascon-Evans rule in motion proceedings, to a failure to decide the core issues on appeal.

The rebuke begins in earnest in paragraph 68 of the judgment. There the Concourt says:

“Unfortunately, I cannot but say that the judgment is thinly reasoned.  At times it is characterised by confusing reasoning.  At other times it is characterised by statements that evince a disregard for or lack of awareness of the facts and issues.”

Then follows what the Concourt says are “examples” of its concerns.

First Rebuke: Misattribution of a Finding the Concourt never made

The first rebuke is expressed as follows:

“The judgment says that Vodacom was not happy with the fact that in its 2016 judgment this Court ‘finally dealt with the matter on the 5% of ‘revenue generated’ basis’. This Court never determined a percentage. Mr Makate pushed for a 15% revenue share. This Court declined to award that. Instead, it held that reasonable compensation had to be arrived at through negotiation between Vodacom and Mr Makate, failing which it had to be determined by the CEO.”

Further, the Concourt says:

“The Supreme Court of Appeal went on to say that ‘when the CEO considered the computation, he instinctively or by design . . . fell back to Vodacom’s original stance of sharing on a 5% profit basis, contrary to the operative order’ (i.e., this Court’s 2016 order). The 5% revenue share was, in fact, agreed by the parties; that is common cause.  It is unsurprising that the CEO applied it. It passes more than strange that the Supreme Court of Appeal referred to the 5% as this Court’s stipulation and, in the same breath, as Vodacom’s ‘original stance’.  But the confusion relates to the source: was the source this Court’s order or Vodacom’s original stance? More strange is that later the Supreme Court of Appeal does recognise that the parties had agreed on the 5% share of revenue.”

If this assessment by the Concourt of the SCA’s approach on the question of the percentage of revenue is correct, then this suggests that the SCA majority may not have understood the issues that were decided by the Concourt in Makate 1. This has troubling implications because such an oversight may undermine confidence in the court.

Some people may say it is one thing for an Acting Judge in the high court to misconstrue a judgment of the higher court as he or she may be set right on appeal; it is quite another for the second highest court to do so on an issue so fundamental. This is because damage may be considerable – and irreversible – if the case in the SCA raises no constitutional issue or arguable point of law of general public importance such that there is no further recourse by the aggrieved party to the Concourt.

Second Rebuke: Confusion on Applicability of the Plascon-Evans rule

The second rebuke involves the application of the Plascon-Evans rule in motion proceedings. This is a subject that has tripped up many a candidate for judicial appointment at the Judicial Service Commission (“JSC”) interviews, although in this instance the question is not so much the “how” as the “when” the rule is to be applied.

The rule derives eponymously from a 1984 judgment of the appellate division of the supreme court (as the SCA was then known). Essentially, it is a tool by which the motion court seeks to resolve material factual disputes when they arise. For non-lawyers, motion court is a court where legal disputes are decided without the aid of oral evidence (opposite of a trial court) and is intended to resolve those legal disputes based on facts that are not in dispute between the litigants and are contained in court papers filed by the litigants. The essence of the rule is that it is like a referee deciding whose version of events counts when players disagree, unless one side’s story is plainly unbelievable.

The application of the rule presupposes that there are factual disputes that are material to the resolution of the legal question in issue. On this question, the Concourt says of the SCA majority’s approach:

“The majority was totally confused as to the issue or issues to which the application of the rule related.  It held that the applicability of the rule did not arise at all in the appeal because the parties were agreed on the issue in respect of which the rule was raised.  That issue, according to the majority, was the percentage on which the revenue share was to be pegged. That was wrong. The Plascon-Evans rule was raised in totally different contexts. That much is clear from the minority’s engagement with the subject. Indeed, it would not have made sense for Vodacom to invoke Plascon-Evans in the context of the agreed percentage at which revenue was to be shared.  As a result of its confusion on the applicability of the Plascon-Evans rule, the majority failed altogether to address and decide important questions to which the applicability of the rule related. That constituted a breach of the duty of proper consideration.” 

This raises a serious concern and may affect negatively public confidence in the rule of law and the courts. At the SCA level – particularly if the issues raised in a given case do not engage the Concourt’s jurisdiction and therefore the SCA is the final arbiter on those issues – failure by the court to appreciate the issues to which the applicability of the Plascon-Evans rule relate can be catastrophic.

Third Rebuke: Mis-attributed Concession

The Concourt points to a mis-attributed concession. It says:

“Yet another instance of confusion is a statement by the Supreme Court of Appeal that Vodacom’s counsel conceded that the CEO’s determination was not reasonable.  One need not have been at the Supreme Court of Appeal to realise that such a concession would have been senseless. In context, that was a key question in the contest at the Supreme Court of Appeal: was the CEO’s determination reasonable? The parties adopted opposite sides on this question, with Vodacom defending the determination and Mr Makate challenging it.”

It is difficult to understand how the SCA would attribute a concession to counsel that is dispositive of his own client’s case, and on an evidential issue that is central to the appeal. However, one should note that it is not uncommon for counsel to make concessions in oral argument where making a concession is the right thing to do. After all, counsel’s duty is to assist the court, not to win a case by any means necessary. But such concessions are generally on legal points not evidentiary issues (unless the evidence is undisputed) because counsel is not a witness.

From the Concourt’s judgment, it appears that the reasonableness of the CEO’s determination was a heavily contested issue that was central to the determination of the appeal before the SCA. It is therefore unclear how experienced counsel would concede the very evidentiary issue that his client was vehemently defending. The question is why the SCA majority attributed such a concession to counsel for Vodacom if he did not make it. This may negatively affect confidence in the rule of law.

Fourth Rebuke: Failure to Pronounce on the issue before it

Continuing on that theme, the Concourt says the SCA simply highlighted the parties’ submissions on the most crucial aspect of the appeal – the Chief Executive’s determination of what is reasonable compensation for Mr Makate – without pronouncing on them. It says:

“[W]hat was crucial to the Supreme Court of Appeal’s determination against Vodacom was the question whether the R47 million awarded by the CEO was inequitable. . .  The Supreme Court of Appeal obviously asked this question because it was key to Vodacom’s appeal. Vodacom was supporting the CEO’s determination in the sum of R47 million. It was thus arguing that the amount was equitable. An answer that said the amount was inequitable meant that Vodacom’s appeal had to fail. That is how crucial the question was. Crucial though the question was to the determination of the appeal, all that the Supreme Court of Appeal did was to set out the parties’ arguments in this regard without pronouncing on them. . .  It was not enough merely to highlight the parties’ submissions. A shortcoming of this nature on so crucial an issue constitutes a breach of the duty of proper consideration.”

The Concourt continues:

“The matters of confusion on the part of the Supreme Court of Appeal are not mundane. They are symptomatic of a Court that did not appreciate the facts and issues it had to determine. That goes to the important question whether the Supreme Court of Appeal considered and decided all issues that were germane to the dispute before it, a matter that is fundamental to the duty of proper consideration.”

This raises a serious concern that goes to public confidence in the rule of law and how it is applied by the courts. Had Vodacom not had recourse to the Concourt, it might have suffered an enormous injustice at the hands of the SCA which, save for a possible reconsideration application, it could not redress as that would have been the final decision.

Fifth Rebuke: Failure to assess evidence

The Concourt also criticises the SCA for what it says is failure to assess evidence or of being unaware of evidence that it ought to have assessed. The substance of the criticism is this:

“[I]n paragraphs 6.1-6.8 of his determination, the CEO dealt with evidence on ‘PCM revenue in the context of Vodacom’s voice revenue’. He dealt with the evidence extensively. As part of this, he referred to calculations of voice revenue in one of Mr Makate’s models and said those calculations or estimates ‘need to be carefully examined’. The Supreme Court of Appeal said that this word of caution or conclusion was expressed ‘without saying why’. The truth is that in the same sentence in which this quote appears, the CEO continued and said that this is so ‘because if [the estimates] are inconsistent with the publicly available financial data, the model would be discredited’. The CEO did not end there. He proceeded to deal with the subject and to explain himself fairly extensively in paragraphs 6.4-6.14.

He concluded that – on Mr Makate’s calculations – PCM revenue made up more than 80% of Vodacom’s total mobile voice revenue, and in five of those years, more than 90%. In paragraph 6.5 the CEO said that Mr Makate’s figures thus suggested that an overwhelming percentage of Vodacom’s voice revenue was generated as a direct result of PCM. This, according to the CEO, ignored many other variables which went into generating revenue for a telecommunication operator, namely: investment into the network; other products and services offered by Vodacom; growth in customer numbers; and growth in spend by existing customers. He concluded that the numbers in the model used by Mr Makate were unrealistic and on this ground alone no reliance could be placed on the model. In paragraphs 6.6-6.14 he proceeded to do an in-depth analysis of Mr Makate’s model, identifying where, in his view, it had gone seriously wrong.

Mr Makate contested Vodacom’s voice revenue figures that the CEO used in the analysis set out above, and a great deal of evidence from the parties was adduced on this aspect. In his explanatory affidavit the CEO substantiated his reasons for rejecting Mr Makate’s models in no fewer than 27 paragraphs.

With all this in mind, it is difficult to comprehend how the Supreme Court of Appeal came to the conclusion that what the CEO had said was unexplained. The Supreme Court of Appeal was either not aware of the CEO’s explanation or disregarded it.  Whatever the position, its conclusion is inexplicable.”

This has troubling implications for public confidence in the rule of law and our courts.

Sixth Rebuke: Disregard for and Lacking Awareness of Evidence

The Concourt says the following on this score:

“I say disregarding when, in fact, it may well not even have been aware of the evidence. The Supreme Court of Appeal said that it could find no objection by Vodacom to Mr Makate’s models on compensation similar to that of a third-party service provider. In similar vein, the Supreme Court of Appeal said that ‘absent any evidence that Mr Makate’s computation is wrong . . . I can find no reason why Mr Makate’s computation should not be accepted as correct’. This is astounding.

First, Mr Makate’s models, which the Supreme Court of Appeal says were not objected to by Vodacom, concerned the hotly contested issue of the computation of compensation. Why would Vodacom have appealed at all if it was not contesting Mr Makate’s models? Unsurprisingly, Vodacom submits that ‘[t]he entire debate in [the Supreme Court of Appeal] turned on the question whether the models presented by Mr Makate or those of the CEO should be preferred’. In what is a clear demonstration that Mr Makate’s models were at issue, the minority engages with this debate at great length in paragraphs 62–202.

Second, with all this in mind, how could the Supreme Court of Appeal say that evidence that Mr Makate’s computation was wrong was absent? In argument before us, Vodacom cites examples of the issues that it addressed countering Mr Makate’s models and, therefore, computation. It does so with reference to the CEO’s determination. These examples were: PCM volumes; incremental revenue; call duration; effective call rate; duration of the contract; and mora interest and the time value of money.

How – in the face of all of this – the Supreme Court of Appeal held that it could find no objection to Mr Makate’s models and that there was no evidence that his computation was wrong escapes me. This is a very fundamental issue because the computation is what the entire litigation was about. This means the Supreme Court of Appeal was unaware of or disregarded evidence on what the entire case was about. If that is not a total failure in the performance of the duty of proper consideration, I do not know what is.”

This has serious implications for sustained confidence in the court and the rule of law.

Seventh Rebuke: Granting Relief not Sought

The Concourt rebukes the SCA for its “apparent readiness . . . to accept whatever Mr Makate said” and going as far as granting him relief he did not seek.  In this regard, the Concourt says:

“I cannot conceive of any basis on which Mr Makate was – as the Supreme Court of Appeal seems to suggest – automatically entitled to whatever he asked for. The Supreme Court of Appeal makes this bald statement without explaining it. It also seems to have given no consideration to the fact that, in granting Mr Makate what he wanted – under paragraph 2(b) of its order – it was granting an order which had not been sought by way of cross-appeal and was thus not properly before it. . .  It may well be that in the end Mr Makate will get what he is asking for. But that is a conclusion which must be reached after a proper consideration of the issues.”

The Concourt then says:

“It is at variance with a fair hearing for a court to decide an issue that has not been pleaded and which the affected party was not called upon to answer…

. . .

By deciding a case that was not before it, the Supreme Court of Appeal deprived Vodacom of the opportunity to make submissions on whatever issue it might have been minded to on the possibility of a substituted order.”

This raises a serious concern with implications for the public’s confidence in the rule of law and the court.

Let us take a step back to reflect on the Concourt’s own conduct in this regard. I do so not as criticism but as a reminder that this is an important adjudicative issue that our courts across the hierarchy spectrum need to address.

In Tasima, Justice Zondo was critical of the majority both for failing to follow precedent (stare decisis) and for granting an order that was not sought. In his concurring judgment, he felt it necessary to express himself as follows:

“In Maphango I pointed out in my minority judgment that the majority judgment was granting the applicant relief that it had not asked for. In Bel Porto, a decision of this Court, Chaskalson CJ, writing for the majority, had made it clear that it was not permissible to grant a party relief that it had not asked for. I highlighted this in my judgment. The majority went ahead and granted the applicants relief that they had not asked for and, in this way, did not follow Bel Porto. Mogoeng CJ and Jafta J concurred in my judgment. . .

In KwaZulu-Natal Joint Liaison Committee the majority decided the matter in favour of the applicant on a basis that was not part of the applicant’s case as set out in its founding affidavit. They did this despite the fact that, during the hearing, Counsel for the applicant had repeatedly disavowed any reliance on the basis relied upon by the majority judgment to grant the applicant relief. Deciding the matter on a basis that fell outside the applicant’s founding affidavit went against the rule of practice that in motion proceedings a party stands or falls by its papers. In my minority judgment I highlighted the fact that there were a number of decisions of this Court that had affirmed this rule of practice. Mogoeng CJ and Jafta J concurred in my judgment.

The majority judgment went against those decisions. On that occasion . . . neither the majority judgment nor the separate judgment advanced any of the grounds recognised in law as justifying not following a precedent. There may be more cases to add here but it is not necessary to do so. Both in Maphango and KwaZulu-Natal Joint Liaison Committee the result would have been different if, in the case of Maphango, Bel Porto had been followed and, in the case of KwaZulu-Natal Joint Liaison Committee, Bel Porto and other decisions of this Court had been followed.”

The point is that the tendency of our courts to grant orders that have not been sought, and to disregard precedent, seems to have plagued even the highest court and needs to be addressed and rooted out. The question is by what means this can be done when the apex court itself is not immune to this temptation which, according to the Concourt, evinces a failure of justice.

Eighth Rebuke: Uncritical Copying of Notice of Motion into Court Order

Before highlighting the Concourt’s criticism of the SCA majority’s copying of Mr Makate’s Notice of Motion into its order, I wish to highlight another growing practice of courts simply adopting large swathes of the heads of argument filed on behalf of one party and present that as the judgment. This is not judging. It is a failure to fulfil a judicial function. The Concourt has criticised this approach – albeit mildly – in, for example, Stuttafords v Salt of the Earth Creations. It said:

“On analysis, it appears that the judgment consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing. The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like ‘it is submitted’, and emotive comments on The Gap and Stuttafords’ contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttafords’ heads of argument, except for references carried over from Salt’s heads of argument. . .

. . .

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own words [because]

‘[t]he true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

The very act of having to summarise in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.’

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation. We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.”

The practice of a court’s wholesale adoption of one party’s heads of argument and presenting that as its own judgment is to be sternly discouraged. The Concourt’s mild criticism of this practice does little to discourage this troubling abdication of judicial responsibility.

This practice appears to have emerged again in this Makate II case. This time, says the Concourt, the SCA “simply copied paragraph 2 of Mr Makate’s High Court notice of motion verbatim, thus incorporating the revenue-sharing range of 5%-7.5% and the two alternative forms of interest.”  The Concourt continues:

“If the Supreme Court of Appeal had properly considered the relief, it would have realised that – although a litigant can claim relief across a range or in the alternative – a court has to fix the relief with precision. As previously mentioned, the range and alternatives resulted in huge monetary differences.”

Concourt’s conclusion

The Concourt’s conclusion is biting and raises serious concerns that may affect confidence in the courts and the rule of law:

“To conclude, the evidentiary matters and legal questions highlighted above and which the Supreme Court of Appeal disregarded or of which it was unaware or on which it was confused were key to the determination of the contest between the disputants. The confusion or disregard or lack of awareness of the evidence and arguments led to the Supreme Court of Appeal not assessing and deciding on central issues and crucial evidence. As indicated above, it cannot do that. To put it bluntly, the real appeal was not decided. That constituted a total failure of justice in breach of the rule of law and the fair hearing right protected in section 34 of the Constitution.”

So, what lessons can we learn from this Concourt judgment?

LESSONS

The criticisms levelled by the Concourt on the SCA majority in Makate II raise serious concerns. As noted, the Concourt has itself been criticized by at least one of its own for not following precedent and granting relief based on an unpleaded case. In my view, some of the lessons that arise from this case include the following.

  1. Judicial fallibility: Judges are human and therefore prone to error. However, mistakes at appellate level can cause immense harm, especially when no further appeal is possible. The human element can also involve judges infusing their judgments with their own world outlook or personal convictions on specific issues. While it is impossible to tell merely from reading a judgment (unless the Judge expressly says so or there are sufficient indicators of this in the judgment), allowing one’s personal convictions to dictate the outcome of a case is a human frailty of which judges must be aware, confront and remove from their adjudication process, not deny.
  2. Accountability: South Africa lacks a mechanism for compensating litigants harmed by judicial errors or judicial abdication, especially at appellate level. This is an area that may require some exploration.
  3. Duty of proper reasoning: Courts must decide the issues before them and explain their reasoning. Wholesale adoption of one party’s submissions or granting relief not sought undermines confidence in judicial independence.
  4. Consistency and precedent: The tendency of courts to depart from precedent or grant unpleaded relief has drawn criticism even within the Concourt itself. Strengthening judicial discipline in this area is vital.
  5. Bias and perception: While allegations of bias are difficult to prove, judgments that appear to uncritically accept one party’s position risk creating perceptions of partiality that can erode trust in the judiciary. Also, judging through or under the influence of personal convictions and preferences on socio-economic, socio-political or moral issues is a betrayal of the oath of office that all Judges take or swear when appointed. By that oath, all Judges swear “that, as a Judge . . . I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.” However objectively noble or popular a Judge’s personal convictions or world outlook or preference of the outcome of a case, his or her duty as a Judge – paying fealty only to the Constitution, including his or her oath of office, and the rule of law – is to render a judgment that is rooted in the undisputed (or proven) facts and application of the current law to those facts. Some may say that judging through the lens of personal conviction or socio-political or moral or socio-economic preferences renders one fit for politics and the NGO “pressure group” space, not the Judiciary.

CONCLUSION

The Concourt’s sharp rebuke of the SCA in Makate II is unprecedented in tone and seriousness. It is also an opportunity to reflect on judicial accountability, transparency, and the importance of careful reasoning in protecting the rule of law. While courts must retain independence, they must also remain alert to how lapses in judgment or process affect litigants, public confidence, and the legitimacy of the judiciary itself.

*** The End***

By |2025-08-28T03:23:53+02:00August 27th, 2025|Analyses and Reviews|Comments Off on When Courts Rebuke Courts: Lessons from the Concourt’s Criticism of the SCA in Makate II
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Justice Mbuyiseli Madlanga: A Short Tribute – By Vuyani Ngalwana SC

Kubomvu Bhungane!

Ulufezile ugqatso lwakho. Kodwa ke akhukho nkanga idubula ingethi.

As the legal fraternity celebrates and reflects on Justice Madlanga’s many contributions to the South African constitutional jurisprudence, I want to address two aspects about Justice Madlanga that I think (and hope) I know. The first is my acquaintance with Justice Madlanga as Counsel. The second is my understanding of what I think is a glimpse into his judicial philosophy as a Judge.

From both, I believe that both Counsel and Judges in active service can learn how to be better at their craft.

My Acquaintance with Justice Madlanga as Counsel

I had only two encounters with Justice Madlanga while he was Counsel. The first, in 2011 and 2012, was when he invited me to assist as his junior in an appeal to the SCA. The question on appeal was whether a criminal charge for sexual assault for which the statute [the 2007 Criminal Law (Sexual Offences and Related Matters) Act] provides no specific criminal sanction or penalty is good in law. The Full Court in the Western Cape had ruled that absent a specific criminal penalty prescribed for a criminal offence, the charge (and therefore the statute) is “fatally flawed”. The SCA set aside the High Court decision. We acted for the Justice Minister.

But my take-away from that encounter with Justice Madlanga as Counsel was not so much the outcome of the appeal, or even the craftsmanship of his delivery of argument. Rather it was his leadership style as we were preparing written argument and preparing for oral argument.

Until then, my experience in working with Senior Counsel had been one of constant anxiety, sometimes consternation, brought about by the indecipherable feedback of my leader to my admittedly less than poignant contribution to the brief. And I used to experience this not only in print but also in spoken word and in physical expression.

Not so with Madlanga SC. For the first time, I encountered a leader who – although obviously exceedingly more learned and experienced than I in the advocacy craft – never took for granted that his approach was the only approach. My written scripts came back from him not marked in red or purple ink passing judgment on my less than elegant prose and reasoning. Rather, they came back with questions: (1) “Vido, in making this submission, have you perhaps considered the judgment in ABC case? If so, how do you think it impacts on this line of argument, if at all?” (2) “Vido, suppose you are right on this point, in what way do you think it advances our case? I may be missing something.” (3) “Vido, should we not rather start with point 4, then 2, then 3 and conclude with 1? Don’t you think it flows better that way? I’d appreciate your thoughts.”

That kind of humility in engagement with a junior helped quell my consternation. It facilitated better thinking and reasoning.

The second encounter I had with Madlanga SC was at the Marikana Commission in 2012/2013 where he was lead Counsel for the evidence leaders comprising, among others, Geoff Budlender and Matthew Chaskalson, I think. Led by Semenya SC and Mathibedi SC, we represented the South African Police Service. From my perspective, you could cut the general animosity towards our team with a blunt knife – from some media coverage to some colleagues representing some of the affected families of those mowed down by the police on that fateful day in August 2012. It was as if society was offended by the fact that the police should even have legal representation.

Not so Madlanga SC who, for the most part, elected to direct matters for Evidence Leaders from the rear and not hog the limelight of proceedings that were constantly in the media spotlight. He treated the police legal team with the utmost respect and courtesy even when, sometimes, we advanced – on firm instruction from our clients – what some may regard as less than plausible explanation for some encounters (disclaimer: this is not a concession of any kind). Such is the humility and professionalism of the man I shall forever remember as Madlanga SC.

 My Acquaintance with Justice Madlanga as a Judge

The second aspect on which I would like to say a word about Justice Madlanga is my understanding of what I think is his judicial philosophy as a Judge. I put it no higher than that this is what I think is his judicial philosophy. I have not yet studied a sufficient number of his judgments to reach a definitive conclusion that this is indeed his judicial philosophy. I hope to do that soon and hope he will agree to write his judicial memoir so that generations of young lawyers and aspirant judges can learn from his experiences. I have burnt my fingers believing I know a person and what drives him or her, only to discover that I have been deluding myself – seeing what I wanted to see. So, until I have studied a selection of Justice Madlanga’s judgments, mine will remain what I think is his judicial philosophy rather than what I know definitively to be his judicial philosophy.

There is one aspect of what appears to be Justice Madlanga’s judicial philosophy that has resonated with me and which I want to highlight. That is his recognition of the role played by a Judge’s inarticulate premise in the exercise of the adjudicative function.

In a piece titled “Judging According to Personal Attributes …” which was published in the very first edition of the SA Judicial Education Journal in 2018, Justice Madlanga advances the thesis that “there is no conflict between the oath that each judge takes on assuming office [on the one hand] and drawing on her or his life experience and personal attributes in the adjudicative process [on the other].” It is a thought-piece that I would encourage every practising lawyer and every judicial officer to read, study and reflect upon.

Why? Well, because in that thought piece, Justice Madlanga doesn’t do what most of us tend to do – that is, pretend that our assessment or judgment on a given set of facts and application of law to those facts is not anchored in our deep psyche of how we see the world – having nothing whatever to do with the law. In many instances we do so very conscious of the fact that we are doing so, which is a breach of the oath that each Judge or acting judge takes on assuming office.

But Justice Madlanga is talking about the unconscious influence of a judge’s experience and personal attributes in the adjudicative process. He says: “Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a superhuman feat”.

But I think there is a perspective that Justice Madlanga’s thesis does not quite consider and which I would urge us to factor into our thinking as we reflect on the role of the inarticulate premise in our adjudicative process. In a country characterised by endemic inequality (and I’m talking about South Africa), and professionals from the “lower classes” (a euphemism for black classes) seeking to mimic or gain the approval of the higher classes (a euphemism for the white class), it is not beyond the realm of possibility that a black judge may indeed jettison her or his biases as informed by the world of poverty and economic deprivation from whence he comes, and embrace a perspective that he believes would elevate his status among his white peers. I have seen this happen at the Bar. It is not impossible that it may be happening on the Bench.

For me, the question is whether the Judicial Service Commission can accurately identify instances where a Judge adjudicates according to her or his view of the world in a way that detracts from the oath of office. Until we can get that right, the idea of what justice and the rule of law demands in South Africa in a given set of circumstances will forever depend on WHO is sitting on the Bench in each case. And that is a tragedy. A Blind Lady Justice will forever remain a mirage in South Africa until we can root out from the adjudicative function political considerations masquerading as fidelity to the very Constitution that is being subverted.

I am eternally grateful to Justice Madlanga for this thought piece. It certainly made me reflect on what exactly the diversity in the composition of our courts means for our democracy. Diversity is not about racial or gender composition. It is about a diversity of views some of which may be regarded as repugnant (even constitutionally repugnant) by some. As we know from History, any view whose time has not yet come can be repugnant until its time comes. This, and other related topics, is a conversation I hope to have with Justice Madlanga unshackled by the chains of judicial incumbency.

The End

***

By |2025-07-31T18:16:14+02:00July 31st, 2025|Analyses and Reviews|Comments Off on Justice Mbuyiseli Madlanga: A Short Tribute – By Vuyani Ngalwana SC
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Vuka Tshabalala On Trial: The South African Jurisprudence Personified – by Vuyo Mthethwa – A Book Review

We as Black African professionals rarely document our experiences in our various professions. The result is that we miss the opportunity to learn from one another’s achievements and mistakes, so that we can replicate successes and minimise mistakes. It is for this reason that I was excited when I learnt of the recently minted book on Judge President Vuka Tshabalala’s odyssey in the legal profession.

Titled Vuka Tshabalala On Trial: The South African Jurisprudence Personified, there was always going to be a lot going for a book on a person of Judge President Vuka Tshabalala’s stature. Called to the Bar in 1969, he owns the distinction of being the first Black African advocate (or Barrister) in the KwaZulu-Natal province. Being a pioneer comes with its challenges, and young Vuka Tshabalala was always to have to confront a few.

From the book we learn that his entry into the advocates profession was almost derailed by apartheid laws or, more to the point, by the slavish adherence to such unjust prescripts by lawyers no less – specifically the Group Areas Act of 1950 and later 1966 – when the Natal Bar, seeking refuge in untenable provisions of that Act, declined his application to do pupillage. Why? Well, because chambers were located in a “Whites Only” municipal area. That a colleague had agreed to mentor him made no difference.

The Group Areas Act prohibited persons classified by law as one race from living and working in an area demarcated by law for the exclusive use of another race. In order to work in a “Whites Only” area, a member of another racial group required a permit and was subjected to a curfew.

These are some of the barriers that confronted Black professionals and businesspeople seeking to enter various markets and participate in the South African economy. We are still bearing the brunt of the vestiges of these discriminatory laws decades after their ostensible repeal. So endemic are these vestiges even today, that Chief Justice Mogoeng Mogoeng was moved to write as follows in a Competition Law case in Competition Commission of SA v Mediclinic Southern Africa (Pty) Ltd and Another 2022 (4) SA 323 (CC):

“The equalisation and enhancement of opportunities to enter the mainstream economic space, to stay there and operate in an environment that permits the previously excluded, as well as small and medium-sized enterprises, to survive, succeed and compete freely or favourably, must always be allowed to enjoy their preordained and necessary pre-eminence. The legitimisation through legal sophistry or some right-sounding, and yet effectively inhibitive, jurisprudential innovations must be vigilantly guarded against and deliberately flushed out of our justice and economic systems.”

Yet, cynically, as our White colleagues were given a head start by law, measures that have been put in place to help Black people catch up in a race for participation in the national economy that was tilted by law in favour of one race from the very beginning have met with spirited attack from the beneficiaries of that favourable tilt. Even remedial measures, such as regulations promulgated pursuant to the Broad-Based Black Economic Empowerment Act, 2003, are currently under attack in the courts by traditionally large white firms of attorneys who seem to want to dictate the pace of transformation.

We learn from the book that the Natal Bar ’s compromise was to offer young Vuka Tshabalala the option of using his chosen mentor’s chambers when the mentor was not there, so as to spare his mentor’s white clients the embarrassment of having a Black African sitting in on their consultations. Compounded by curfew restrictions, this was an unworkable “solution” for young Vuka Tshabalala. So, living up to his name Vuka (an isiZulu and isiXhosa name which means “Wake up!” in English) he would not be deterred by this barrier to entry into the profession of his choice and opted to start his own practice without doing pupillage, and “learn on the job”.

The author says this turned out to be a blessing in disguise. To make a success of an advocates practice without having done pupillage is a remarkable achievement because the odds are stacked against you in every way imaginable. The reader can find out from the book just how young Vuka Tshabalala managed that feat.

The Bar’s compromise “solution” was unworkable for yet another reason. Pupillage (or apprenticeship) is not about access to chambers. It is principally about access to your mentor’s tutelage and forging professional relationships with instructing attorneys and other advocates in the set of chambers and beyond and learning from their experiences and cases. This was particularly important in 1969 because there were no curated formal classes and the standardised pupillage examinations were introduced only in 1980.

Pupillage is also about access to other tools of the trade like the library, the secretariat and other fellow pupils with whom to forge professional relationships. So, being smuggled into chambers after hours and risking a curfew breach when everyone has retired home was hardly a solution.

We also learn from the book that former Chief Justice Pius Langa did his pupillage under the mentorship of young Vuka Tshabalala. We learn that young Vuka consorted in practice in the same set of chambers (Group 7) with other luminaries of the legal profession including Chief Justice Sandile Ngcobo, Chief Justice Pius Langa, Justice Justice Poswa (his name is Justice), Justice Achmat Jappie and Justice Selby Baqwa, and that Justice Lewis Skweyiya (my uncle) who kept chambers on the sixth floor of Salmon Grove Chambers was a regular visitor to Group 7 and a very close friend of young Vuka Tshabalala.

These glimpses into the circles in which young Vuka Tshabalala moved should give one a sense of the richness of the material from which both Black and white legal practitioners can learn. For me, accounts in the book on the difficulties of practising law at the Bar while Black in South Africa – some of which are still confronting us today – and still emerge successful, are important reminders of our lived reality in this country. This is so not just as a reminder of these barriers for its own sake but, more importantly, for what still needs to be done to level the practice fields so that we can ultimately have fair competition that is not defined by race and gender. We begin to lose all perspective the moment we stop learning from past experiences both of others and of ourselves.

The crude irony of being denied an opportunity to lead for lacking “experience” in what is loosely termed “commercial law”, while “the market” stereotypes Black African advocates generally as good enough for anything but “commercial law” seems completely lost on those who often advance this “experience” argument when Black African advocates and judges are due for elevation. For instance, we learn from the book that Judge Tshabalala was almost a casualty of this “experience” argument when 14 of his white judicial colleagues sought to stop his appointment as Deputy Judge President of the Natal Provincial Division of the High Court (as it then was).

To this day, this “experience” argument still serves as a material barrier to the advancement of many Black African advocates in the legal profession, especially women. For example, you will find a question in the application form for the conferment of Silk (or Senior Counsel) status that asks the candidate how many times he or she has appeared in the Constitutional Court or the Supreme Court of Appeal. Generally, a low number of such appearances will all but guarantee that a candidate’s application will be declined. Yet, opportunities for many Black African male and female junior advocates to prove their worth in these two courts are almost non-existent.

As we now learn from this book, this is not a new phenomenon. The question is why this barrier is still allowed to remain firmly in place, or why efforts are not being made by the organised profession to address the barrier by putting pressure on the largest consumer of litigation services – the State – to engage more Black African junior advocates – especially women – in litigation at this level. It is by the publication of books like this that we can keep steadily chipping away at the barrier walls put up by the profession’s doublespeak.

***

Written from the perspective of one of his daughters, Vuyo Mthethwa, the book on Judge President Vuka Tshabalala’s odyssey in the legal profession – while insightfully and poignantly titled On Trial – may in my view be something of a lost opportunity.

I say so because, in my view, the story of one who has been put “On Trial” in one’s professional journey is often more effectively and authentically told by him or she who has travelled that path. Third person narratives of another’s personal experience may tend to denude the experience of its authenticity, leaving the reader wondering what the subject’s own raw feelings and thoughts are on the events narrated on his behalf by another who did not experience them.

I make allowance for the possibility that my criticism in this regard may be a tad unfair – even harsh – because with the passage of time memories do fade. The subject of this book should, by my calculation, be 88 years old this year. Time is often our foe on projects like this. I am informed that work on the book could have commenced as long ago as 2015 but for various reasons this did not happen.

Also, biographies (authorised or not) are a perfectly legitimate way of having one’s story told in the third person by another. But biographies – at least in my experience as a reader – often serve one of two purposes: either to extol only the virtues of the subject, suppressing all vices (as in a hagiography) or to expose the darker side (real, perceived or manufactured) of the subject.

Examples of this form of storytelling are legion: Mark Gevisser’s A Dream Deferred (2007) on President Thabo Mbeki, Adriaaan Basson’s Zuma Exposed (2012) on President Zuma and Professor Richard Calland’s The Zuma Years (2013) also on President Zuma can probably be categorised as biographical works intended as what Americans would colloquially term “Takedowns”. Contrastingly, Reverend Frank Chikane’s Eight Days in September (2012) on President Thabo Mbeki, Benjamin Pogrund’s How Can Man Die Better (1990) on Robert Sobukwe, and Bonga Mfuphi’s Defying the Gallows (2024) on Justice Mandlakayise John Hlophe would probably rank among hagiographies.

Neither of these biographical categories are fit for the telling of a story as important as that of Justice Vuka Tshabalala. Written from the perspective of a daughter – as the author herself tells us in the very first chapter under the rubric “Through the Eyes of a Daughter” – it would be unreasonable (perhaps even naïve) to expect a brutally objective account of a beloved father’s professional journey. The book is written with the admiration, love, pride, appreciation, reverence and respect of a doting daughter. That is admirable and to be expected.

But is the legacy of a towering and pioneering legal giant, who has flattened all racial barriers and confounded racial stereotypes in a profession that has in its DNA precisely those racial stereotypes, to be told only from the perspective of a loving daughter?

While there is room for a book told from a daughter’s perspective – and the author does commendably in telling the story of a legal giant that will have evolved over more than five decades – the story of Vuka Tshabalala’s journey as a Barrister and Judge deserves telling also from various other perspectives, including his own (if feasible). For this reason, a second telling in a second book, and third, and fourth, and more should be considered in my view. British Prime Minister Margaret Thatcher has told her story more than once: first in a book titled The Downing Street Years (1993) and later in another titled The Path to Power (1995).

British Prime Minister Tony Blair, too, has had his story told more than once. A sanitised version of his journey was told in his autobiography titled A Journey (2010). This was followed some six years later by one of my favourite biographers, Tom Bower, in a less gilded account titled Broken Vows (2016).

In my view, the story of Judge President Vuka Tshabalala – in addition to the sterling and admirable work produced by his beloved daughter from a daughter’s perspective – deserves a first-hand account (even with the help of his contemporaries and proteges to jog his memory if needs be) of what he was subjected to by his own colleagues both at the Bar (when in 1969 he was, ultimately and in truth by reason of his race alone, denied the opportunity to do pupillage and keep chambers alongside other advocates) and on the Bench (when in 1997/8 some 14 white judges petitioned the Judicial Service Commission to stop his appointment as deputy Judge President on the ground that he would not enjoy the support and command the respect of other judges – virtually all white – again his race being the under-current).

Told in his own words, I cannot help but imagine that the authenticity of the pain he must have felt, the feeling of humiliation and disappointment he must have endured at the hands of his own colleagues, and lessons for others in those personal experiences will be palpable and deeply felt, and more effectively drive home the message “Never Again”.

As things are, the humiliation that Justice Vuka Tshabalala must have endured at the hands of his peers in 1997/8 was to be felt, again, by another Black African candidate for high judicial office some 13 years later in 2011. This was when Justice Mogoeng Mogoeng was subjected to a most unfortunate interrogation when nominated by then President of the country for the Chief Justice berth, and his nomination strongly opposed by some judges, some NGOs and some lawyers in private practice. Again, seniority and lack of experience featured among other charges – exactly the same arguments that came up in opposition to Judge Vuka Tshabalala’s nomination for the position of Deputy Judge President 13 years earlier. The lesson that the legal profession should have learned in 1998 had not been learnt.

That same lesson had not been learnt also in 1996/7 when – as Marumo Moerane SC reminds us in his testimonial to Judge President Vuka Tshabalala – some white judges of the Supreme Court of Appeal had petitioned the Judicial Service Commission to stop the appointment of Justice Ismail Mahomed (a Black Judge) as the first post-apartheid Chief Justice of South Africa in preference for one of their own in Judge Hennie van Heerden.

And so, history repeated itself and is likely to recur. This is the risk we take by not sharing our experiences in print so that others can better learn from them.

This is where the opportunity may have been lost in the writing of this book. Perhaps it is not lost but deferred. Justice Vuka Tshabalala could have taken us along on his painful journey, in his own words, sharing his own personal experiences complete with the emotional nuances that are resident only in him. He could presumably still do so with the assistance of his contemporaries and proteges if memory should be fuzzy on some aspects of his journey. This research work already done by his daughter for the production of this book could serve as a launch pad. From that first-hand account younger and aspiring judges would learn directly from the source of these painful experiences and perhaps make a socio-professional compact with one another that similar experiences are never to be repeated.

But all is not lost. More books can still be written on the odyssey of this pioneering legal giant – most preferably by his own hand or by a biographer of repute. No one can tell that story better than the man himself. There are numerous – but few – examples of retired Justices telling their own stories in a way that gives the rest of us pause for thought and learning. These include Justice Edwin Cameron’s Justice: A Personal Account (2014); Justice Cecil Margo’s Final Postponement: Reminiscences of a Crowded Life (1998); and Justice Dikgang Moseneke’s two memoirs, My Own Liberator: A Memoir (2016) and All Rise: A Judicial Memoir (2020). Brushes With The Law (1995) by Justice Marius Diemont is another. In my view, Justice Vuka Tshabalala’s story deserves telling in similar fashion, a direct engagement with the reader.

***

To borrow from culinary parlance, the book is tastefully plated over five courses – presented as Part One to Part Five over just under 220 pages.  It is more a tasting menu than a feast – all the more pity given the larger-than-life personality of its subject.

Opening with free verse from a granddaughter, followed by a foreword from a Justice of the Constitutional Court who has worked with Justice Tshabalala, and closing off with an entire chapter of testimonials by proteges (who are still in practice as senior counsel) and judicial colleagues, the work offers a broad swathe of perspectives about its subject.

Conspicuously absent, however, is a word directly from the man himself about the defining moments of his professional journey – apart from a few quotes dotted here and there, including excerpts from some of his judgments that the author considers seminal. Even the part of the book said to be “In His Own Voice” covers all of three pages and comprises short extra curial quotes from the Judge.

In short, the book is a story told by a daughter about her father. Over five short chapters it covers topics on

  • “The Awaken[ing]” of the Judge which covers his entry into the advocates profession and introduces the reader to Vuka the man, the father, the husband, the granddad, the lawyer for the downtrodden and his tribulations while on circuit as a judge
  • the Judge as a “Trailblazer” which introduces the reader to brief testimonials by some of the Judge’s proteges and judicial colleagues and gives brief accounts of his prowess in court as a practising advocate
  • the Judge “On Trial” which covers his nomination for Deputy Judge Presidency of the Natal Provincial Division (as it used to be called) and the petition of 14 white judges against his appointment
  • “Judging the Bench” covering his administration style as Judge President following the resignation of Judge President Howard, and some of his landmark judgments, and
  • “Legal Eagles Speak” which comprises testimonials of colleagues and proteges.

A word on Judge Vuka Tshabalala’s Judge Presidency and the author’s analysis of some of his more notable judgments is necessary. We learn from the book that the white judges who had petitioned the Judicial Service Commission in 1997/8 to stop his elevation to Deputy Judge Presidency subsequently came around to respecting him for his ability to lead. This was inevitable for a man whose leadership style has been described as of “genial disposition”, “congenial”, “friendly by nature”, “approachable”, “cheerful”, “gregarious”, “sociable”, “generally having joie de vivre“, “kind and considerate”, “welcoming”, “affable”, and “a grounded, kind and friendly human being in a world that is otherwise hostile and exclusivist”.

As Judge President he was instrumental in the exponential increase of the number of Black and women Judges in the country. We learn that in just 22 years, the complement of Black judges increased from 1.8% in 1994 to 64% in 2016, and that the women complement rose from 1.2% to 35% over the same period. Judge President Vuka Tshabalala played a major role in that increase. Judge President of the KwaZulu Natal High Court, Thoba Poyo-Dlwati, testifies that she is “a first-hand beneficiary of his empowerment initiatives for women”.

The author identifies three judgments of Judge President Vuka Tshabalala as landmark judgments. One deals with the language of record in the courts, another deals with land occupation and a third deals with intimate partner violence. Her grasp of legal principles involved in each of these made me wonder whether she is not a closet senior advocate. Lest I spoil the reader’s appetite, I think it best not to disclose too much on the analysis.

I was particularly intrigued by the analysis on the court language of record issue. With 11 official languages (now 12 with the inclusion of sign language) all enjoying the same status in terms of the Constitution, the question that arises is why only one of them (English) is preferred as the language of record in our courts. The author helps the reader navigate the reasoning in the judgment without having to read the judgment itself. Of course, a dyed in wool lawyer will want to read the judgment – as I have – and form his or her own view on the outcome and reasoning.

Then there is the Nicholson judgment in Zuma v National Director of Public Prosecutions 2009 (1) BCLR 62 (N), described by the author as “demonstrat[ing] the conundrum between politics and the independence of the judiciary”. Indeed. The author explains the process that culminated in the case being allocated to Judge Chris Nicholson.

This was the case of one Jacob Zuma who sought the setting aside of the NDPP’s decision to prosecute him – for, among other things, fraud, racketeering, corruption and money laundering – because he had not been afforded an opportunity to make representations before the decision to prosecute (as required by the Constitution and the National Prosecuting Authority Act) following the NDPP changing his mind from not prosecuting to prosecuting him. Judge Nicholson obliged, finding that President Zuma was entitled to an opportunity to make representations before the decision to prosecute him was taken after a previous decision was not to prosecute. He also found that President Zuma may have been “prosecuted for what appears to be some ulterior political motive”.

In a judgment reported as NDPP v Zuma 2009 (2) SA 277 (SCA), following an expedited hearing on appeal (just 2 months after the Nicholson judgment) and a swift judgment (just 2 months after argument on appeal) Judge Nicholson’s judgment was stridently criticised (and reversed) by the Supreme Court of Appeal for, among other things, “chang[ing] the rules of the game, t[aking] his eyes off the ball and red-card[ing] not only players but also spectators”. He was also criticised for allegedly bringing his own political preferences or views to bear on his judgment.

The SCA said the motive for prosecution is irrelevant; what matters is whether there is a prima facie case which, if proven in criminal court, would lead to a conviction. This seems to me hard to reconcile with Constitutional Court authority in the Certification judgment which says any executive interference with prosecutorial independence would be subject to constitutional control by the Courts (In Re Certification of the Constitution of the RSA  1996 (4) SA 744 at para [146]). So, in light of this Concourt judgment, it is hard to understand how motive for a prosecution can be said to be irrelevant and immune to judicial review.

The SCA judgment is in my view remarkable for its apolitical facade. The proposition that a judge suddenly loses all political persuasion and conviction just by donning a robe and sitting on the elevated Bench is, in my view, an extraordinary misunderstanding of human nature. One wonders if judges themselves believe it possible. Perhaps the judgment came a decade too early. The Court might have done well to read a paper by Justice Madlanga of the Constitutional Court on Judging According to Personal Attributes.

The author does not express a view on the merits of the Nicholson judgment. Judge Nicholson himself acknowledges (in the testimonials chapter of the book) that his judgment was reversed on appeal. He adds that he is “satisfied that the way I conducted the case was in the interests of justice”. He says a little more, but it is best to leave the detail for the book to unfurl.

Like any biographical work worthy of that characterisation, there are photographs that tell the story of the subject. Surprisingly, a copy of the single most controversial aspect of Judge President Tshabalala’s ascendency up the judicial totem pole is not included among the many photographs – the petition by 14 white Judges of the Natal Provincial Division to the Judicial Service Commission against his appointment as Deputy Judge President.

For those of us who know of the petition only through media reports, this was in my view an opportunity lost to expose in the book for the reader to see the precise reasons advanced by the 14 judges for opposing the elevation of Justice Tshabalala to Deputy Judge Presidency. One should not have to troll the ether for a document of such centrality to the rise of one of South Africa’s foremost jurists. Hopefully in another follow-up book, the petition will be included.

I am pleased by the publication of this book on the career experiences of one of the leading lights in the South African advocates profession and on the Bench. It has given us a glimpse of his professional journey. But a glimpse is in my view a lot less than a pioneering legal giant like this deserves. Hopefully, a fitting tome will follow – soon.

It is also my hope that the publication of this book will be an incentive for other retired Black African Judges to tell their story in a book so that we can learn from their experiences and mistakes and celebrate and replicate their triumphs. As an unsubtle nudge and a wink – without being exhaustive – I have in mind books on Judges like Chief Justice Mogoeng Mogoeng, Chief Justice Sandile Ngcobo, Chief Justice Mnyamezeli Zondo, Justice Chris Jafta, Justice Bess Nkabinde, Justice Sisi Khampempe, Justice Mbuyiseli Madlanga (whose retirement is imminent), Justice Justice Poswa, and many others. It is through the telling, in written word, of their triumphs in the legal profession against all odds that we, as younger Black African lawyers, can unshackle ourselves from the chains of inferiority imposed upon us by the amorphous market that is the South African professional legal landscape.

The End

***

By |2025-06-23T14:37:57+02:00June 21st, 2025|Analyses and Reviews|Comments Off on Vuka Tshabalala On Trial: The South African Jurisprudence Personified – by Vuyo Mthethwa – A Book Review
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Odyssey of Liberation: A Memoir of a Rebel Advocate by Adv MUZI SIKHAKHANE SC – A Review

Odyssey of Liberation: A Memoir of a Rebel Advocate by Muzi Sikhakhane SC is a huge book not only because of its size but also because of the gravity of the subjects it covers. Comprising four parts and covering almost 500 pages – from the author’s foundational Early Years, through Defining Moments at personal and professional level, Trials and Tribulations, and Political Perspectives – the book deserves proper attention and literary treatment. That is why this review is longer than most.

People read books for varied reasons. Some people read a book to confirm their own biases; others to gain new information, knowledge or wisdom on a specific subject; more to meet their New Year’s resolutions. There are also those who read a specific book with a view to gathering ammunition for later use against the author in this “cancel culture” infused era. Then there is the fan base – those who read the same book that others seek to weaponise against its author, as evidence of their loyalty to the author and/or his cause. Muzi Sikhakhane’s Odyssey of Liberation appeals to all these, and more besides.

I have read the book thrice. To be honest, the first reading was that of a fan who sought to confirm his own bias in favour of just about every subject covered in the book. When I read it the second time, my purpose was to clear the fan fog in my eyes and mind so that I could better grapple – hopefully with an open and curious mind – with the observations made about South Africa’s judiciary, the legal profession and NGOs. By the third reading, I had decided to write a critical review of the book, and hope to interview the author in order to understand exactly his state of mind in producing a book of this magnitude.

I have managed to sit down with the author for a chat. We did a deeper dive into several topics that some people may regard as “controversial” in the book. A series of those conversations will be published soon on this website. They are not sweetheart conversations of a fan with his hero. But then, you will be the judge of that.

This book is huge.

South Africans have not really had an open and honest discussion about several aspects of what makes for the true character that is South Africa; the South Africa DNA. For example:

  • Why exactly did the old people who negotiated a “new South Africa” on our behalf prefer a move away from parliamentary democracy that worked perfectly fine for white people before April 1994, and adopt a “constitutional democracy” in which none of the negotiators had any experience?
  • On balance, how is this “constitutional democracy” benefiting the majority of South Africans socio-economically?
  • Is the balance of forces between elected representatives, on the one hand, and an unelected judiciary on the other, a reflection of what a true democracy that works to the advantage of the majority of ordinary South Africans should be?
  • On balance, what role do NGOs (special interest groups) play in South Africa and what is the impact of that role in the advancement of democracy in South Africa?
  • Are state institutions playing the role for which they were established, or are they advancing the interests of the powerful?

These, and more, are subjects that Odyssey of Liberation grapples with. These are issues that should form a staple engagement diet for all South Africans if we are to be truly actively engaged citizens in the crafting of our own future and that of generations to come.

That CODESA (the multi-party Convention for a Democratic South Africa established in December 1991 to embark on a negotiated peaceful end to apartheid) was an opportunity lost is a view I share with the author. With the benefit of hindsight, many thinking South Africans now realise that compromises were made by the leading liberation movement that should not have been made. Chief among these was effectively placing an unelected judiciary higher than elected legislators and an elected Executive on the trias politica hierarchy stakes. This is why, for example, a court could direct a sitting President – at whose pleasure cabinet ministers serve – to explain his decision to reshuffle his cabinet, and provide to the official opposition memoranda of advice that were given to him in that regard [Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v President of the Republic of SA and Others (24396/2017) [2017] ZAGPPHC 148; [2017] 3 All SA 124 (GP); 2017 (4) SA 253 (GP) (9 May 2017].

In a true democracy, characterised by political representatives being elected by the people to make decisions – including the constitution of their cabinet – as they see fit for the benefit of the people, this should not happen. Even where the ostensible reason for reshuffling his cabinet is a ruse and is not done for the benefit of the people, an unelected judge or court of judges should not have the power to instruct a sitting President (elected through the political party that gained the most votes in a democratic election) to explain the exercise of his prerogative political powers conferred on him by the electorate through his political party.

That is my take on one aspect of what is discussed in the book. Other people will no doubt have differing views. These views should all come out in the open and be dissected for all to see. Sikhakhane’s Odyssey of Liberation invites precisely such debates. It is my wish that South Africans will answer the invitation, and thereby countermand those who will seek to silence a view with which they disagree.

There are areas on which the author and I are not in agreement. One of these is the closeness of counsel to his brief. In one chapter, the author relates a story that paints a picture of a relationship with his brief that resembles one between close comrades than one between a lawyer in the referral advocacy profession and his client. This caused me some discomfort as I believe in order to maintain clarity of judgment and independence there should be clear boundaries beyond which counsel should not venture in his engagement with his brief. The author disagrees. While he acknowledges that many of his cases “present ethical dilemmas due to their high stakes and involvement in political battles that extend beyond the ordinary skills of advocates”, he believes he is “fortunate” because his background as a political activist has “equipped him with the necessary experience to contextualise political battles”.

On briefs with political implications, he holds the view that

“Law is nothing but an offspring of politics. No matter how much it tries to sever itself from politics, it is simply impossible. The sooner society is honest about it, the better. The pretence about the rule of law is itself a political gimmick to dress up a political agenda as something more noble than it actually is. That is just the nature of law.”

I think this proposition requires a separate conversation of its own. It is this kind of thinking – a departure from the advocates profession’s idées reçus – that earns this book a badge of authenticity by shaking the mind from the profession’s ostensible anchor ethic. It is the stuff of awards.

***

The Alan Paton Award has historically been conferred for books that present “the illumination of truthfulness, especially those forms of it that are new, delicate, unfashionable and fly in the face of power”.

In recent years, very few South African books of non-fiction would qualify for this Award ahead of Odyssey of Liberation. Yet, one can’t help sensing that it is precisely the qualities for which the Award is customarily conferred that will likely earn this book and its author the obloquy of South Africa’s mainstream or legacy media and urban South Africa, mainly from people who have not even read it, having consumed its supposed content vicariously through the spin of detractors intent on snuffing out delicate and inconvenient truths. Worse still, the book may simply be ignored in mainstream discourse. That would be a tragedy, and an opportunity lost of coming to grips with our own sensibilities as a “nation”.

The sad reality of what has become South Africa’s irony is that we have become a society that punishes (or cancels) people for telling truths that the ruling class would rather were not told, and reward those who tell tall tales about their flirtation with the “capture” of the state which – more on their sanitised version than on the true facts – they successfully rebuffed.

As I write this review, I would not at all be surprised to learn that there are people already plotting a veritable assault on the author’s person and career, aimed not only at silencing him, but also at sending a strong message to others who may harbour ambitions of following in his path and publishing material that seeks to present stuff of the kind that speaks to the Alan Paton Award.

In today’s South Africa, publication of some truths seems fine; but that does not go for all truths. Some truths, it appears, are too inconvenient for the perceived greater good to be laid bare. This crassly Utilitarian theory of ethics that developed in the 18th Century has no place in a 21st Century constitutional democracy.

Utilitarianism posits that conduct is acceptable if it promotes the greater good, and unacceptable if it drifts against greater good. The trouble with the theory is that those who sit in judgment of what the greater good is, are often the same people (or class of people) who suppress truths that are inconvenient for their continued stranglehold on levers of power.

For example, under apartheid a series of laws aimed at keeping races apart, and advantaging one race above others, was justified by the assertion that, because the various races are inherently different and hold materially divergent values, they must be kept apart for the sake of what Hendrik Verwoerd termed “good neighbourliness”. That is what kept the National Party in power for decades in South Africa. That was their truth which brooked no deviance if they were to stay in power. As soon as the theory collapsed, so too the National Party lost political power.

It is by that same depraved theory of Utilitarianism in today’s South Africa that truths that are perceived by the ruling class as potentially disruptive of the “state capture” narrative must be snuffed out. Once the carefully choreographed baroque that is “state capture” is exposed, that should spell the end of the ruling class tight grip on levers of power both in the state and in the economy.

Odyssey of Liberation seeks to expose this Utilitarian character of today’s South Africa. Whether it succeeds in doing so will depend on each reader’s acquaintance with South Africa’s recent history. As a sceptic – since South Africans have in my view never really unshackled themselves from the binary disposition that characterized social engagement in apartheid South Africa – I venture to suggest it will also depend on the reader’s political or factional leanings. For the more rational among us, however, I hope that good old fashioned common sense will be the measure.

One example of an attempted exposé in the book is the story of the formation of the State Capacity Research Project, allegedly funded by the George Soros Open Society Foundation, by a coterie of academics affiliated to leading South African universities, who in May 2017 produced a document titled “Betrayal of the Promise: How South Africa is being stolen”.

It is in this document, crafted with the help of what the author terms “foreign advisors”, that “a mysterious interpretation” was assigned to commonly known terms such as “repurposing” of state institutions and “state capture” with a view to – as Mr Arthur Fraser puts it in his written statement to the State Capture Commission – “promoting, in a concealed manner, social uprising rather than promoting the Constitutional parliamentary process to resolve social problems in democratic South Africa”.  And so it was, that former President Zuma – together with a motley crew of selected fellow travellers in his cabinet and others “associated” with him – was chosen to bear the cross of “state capture” and “repurposing” of state institutions.

Some may argue that the toppling of former President Zuma owes its success, at least in part, to this State Capacity Research Project. He finally fell on his sword in February 2018 and, a month later – with President Ramaphosa now in charge without an electoral mandate – the national prosecuting authority announced its decision to reinstate corruption charges against him that it had previously withdrawn. Of course, this decision may have been fortified by a judgment of the Supreme Court of Appeal – nine years previously – which set aside a high court decision which had absolved President Zuma from criminal prosecution on the ground that his prosecution had been politically motivated. The SCA found that “[a] prosecution is not wrongful merely because it is brought for an improper purpose”. That judgment probably paved the way for the re-prosecution of President Zuma 9 years later, and immediately after President Ramaphosa had – without a popular electoral mandate – taken over and subsequently started pursuing office on a “state capture” campaign ticket.

The author quotes from a written submission made by Mr Arthur Fraser to the State Capture Commission which had been established in January 2018 – 8 months after the State Capacity Research Project had produced its “Betrayal of the Promise: How South Africa is being stolen” document – to investigate allegations of state capture, corruption and fraud in the public sector including organs of state. Mr Fraser is a former Director General of the South African State Security Agency and was the author’s brief (referral advocates do not have clients; they have briefs).

The author laments that, although various allegations were made in relation to Mr Fraser at the Commission, Mr Fraser was never invited by the Commission to give evidence and elaborate on his written statement. The Commission says he never applied. The author takes the view that part of the reason for not inviting Mr Fraser to testify was to keep the contents of his statement hidden from public view. My own view is that a person implicated in the evidence of others should not have to apply for his version to be heard and considered by the Commission.

The author’s overall take on the Zondo Commission is this: “In the end, I am of the opinion that the Zondo Commission was never established to uncover the truth. Instead, it was established to validate a preconceived grand narrative seeking to absolve some and condemn others”.

He is not the first to make this assessment. Whether or not it is an accurate assessment will depend on the reader’s own objective assessment of the goings-on at the Commission over its four years duration. It will also depend on the reader’s engagement with the author’s extensive discussion of events that led him to this conclusion about the State Capture or Zondo Commission, of course with a sprinkle of the reader’s own common sense.

The author also expresses opinions that I can best describe as “unflattering” about South Africa’s judiciary. It is to this that I now turn.

***

Sikhakhane SC is a practising Senior Advocate or Barrister in South Africa (equivalent of a “QC” or “KC” in England and Wales). Not unlike Lord Jonathan Sumption, former Justice of the Supreme Court of England (formerly House of Lords) who was publicly critical of the manner in which the British government handled management of the covid-19 pandemic, Sikhakhane SC has seen fit to speak out on issues of general public interest that many people, especially in the legal profession, only whisper about in safe echo chambers.

Closer home, the author’s speaking out on principle on what he perceives to be the compromising of judicial standards in South Africa is not unlike the courage displayed by Bram Fischer who was hounded out of the advocates profession by the Johannesburg Society of Advocates for speaking his truth and living according to his conscience. He was later reinstated – decades later – and posthumously conferred a Silk status for that same courage.

One of the issues on which the author speaks out is his views on the South African courts’ approach to political cases or cases that have political implications. For example, the author takes the view that many judges in South Africa’s courts “are unconscious victims of popular sentiment and sponsored grand narratives … [and as a result tend to] dispense injustice in the belief that they are being patriotic and associating with the ‘right’ side”.

This is not new criticism directed at South African judges. During apartheid, there was trenchant criticism in white liberal circles of “executive minded” judges for whom the apartheid government could do no wrong in its spirited enforcement of apartheid ‘laws’. Adopting what some among us regard as “legal positivism”, the attitude of those judges was that their role was to interpret and apply apartheid laws and not to question them (see, for example, ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181).

Not unlike white liberals of the apartheid era, the author seeks to expose “legal positivism” and “executive mindedness” of a different kind in today’s South Africa. He identifies an attitude of judges hellbent on never finding against the incumbent President in cases with negative political implications for him. In this regard, the judgment of the Constitutional Court, concerning what has become colloquially known as the President’s “PhalaPhala Farmgate” scandal, should be awaited with interest.

In that case (see the pleadings and written submissions here –> Economic Freedom Fighters v Speaker of the National Assembly and Others) two opposition parties have challenged as irrational, unlawful and unconstitutional parliament’s resolution (by majority) declining to adopt an Independent Panel’s Report (headed by a former Chief Justice) and refer it to the impeachment committee for the possible impeachment of the President following the Panel’s finding that the President may have committed a serious violation of the Constitution (See the Independent Panel’s Report here –> Ramaphosa Impeachment Report – 30 November 2022). This follows the discovery of foreign currency (reportedly far in excess of what is permitted by law) hidden in furniture at the President’s farm residence, a criminal complaint of money laundering against the President by Mr Arthur Fraser at the South African Police Service, and a refusal by the South African National Prosecuting Authority to prosecute the President.

Of course, the disposition of the Constitutional Court towards the President – if any – should be judged by its reasoning for whatever finding it makes rather than by the finding itself. A finding in favour of parliament (and therefore, by extension, in favour of the President) should not by that reason alone constitute evidence of Adv Sikhakhane SC’s view of South African courts’ partiality towards the President. Similarly, a finding in favour of the opposition political parties (and therefore against the President) should not, by that reason alone, be indicative of the courts’ antipathy towards the President. Proof of the court’s [disposition] pudding should be in the [reasoning] eating.

The author also identifies the determination of our judiciary to maintain the “state capture” narrative by ensuring that one Zuma continues to be regarded as the personification of “state capture” and “repurposing” of state institutions. That is why the Constitutional Court (the highest court in South Africa) had to compel President Zuma to appear – again – at the State Capture Commission before a Commissioner (the country’s Deputy Chief Justice at the time) even though Zuma said he harboured a reasonable apprehension that the DCJ could be biased against him for reasons he articulated in his application for the DCJ’s recusal.

The author is critical both of that decision by the Constitutional Court, and of its subsequent custodial sentence of 15 months that it meted out to Zuma – without subjecting him to a criminal trial – for refusing to appear before a commissioner he regarded as biased. Characterising the judgment as “probably the most shameful judgment a post-apartheid court has ever issued”, the author criticizes the court for justifying “its unprecedented decision [in civil contempt proceedings] to order an incarceration of a person without a trial”.

Some readers may agree with this assessment; others may disagree. But this is precisely the sort of debate that South Africans, in an open and democratic society, should have about the application of that concept that the author seems to regard as amorphous or chameleon-like: rule of law. Indeed, the author may in my view have a point in that this rule of law concept seems to take its character and form from the identity of the litigants before courts. It is an issue (even at the level of perception) to which judges must be alerted and be pointed to specific examples; not buried – especially by legal practitioners – for fear of being “cancelled” or targeted for “scandalizing” the judiciary.

The observations in the book about the judiciary will no doubt trigger resentment and harden arteries in some quarters. In other circles, however, the observations will have a ring of truth. They are the author’s opinion deriving from his own experience as a practising Barrister. The question is whether South Africa will prove itself – in reaction to the expression of such opinion – ready for a mature conversation on touchy subjects about institutions that some people consider to be sacrosanct. Should we hold our tongues on matters that concern us, and the professions in which we practise, for fear of wounding the feelings of those who wield power over us?

And what of the book’s literary qualities?

***

Odyssey of Liberation is not a literary masterpiece in the milieu of Ta-Nehisi Coates’ Between the World and Me or Maya Angelou’s book of poems And Still I Rise. But then it was not intended to be. The book probably compares favourably to Steve Biko’s I Write What I Like (although, to be fair, it is more scholarly than the collection of speeches, letters and court testimony that make up Biko’s offering). This is not surprising. Both Coates and Angelou are renowned award-winning authors. Biko was not. Biko’s literary contribution was to tell, in print, truths at a time when telling such truths was, bizarrely, a radical act.

Odyssey of Liberation places Adv Sikhakhane SC in that Biko mould. He teases out truths that you will not read or hear in mainstream media or publications; truths that those who feel exposed by them find inconvenient and therefore want to suppress them and cancel the exponents of such truths.

Those who pick up Odyssey of Liberation and thumb through it expecting demagoguery of the Mein Kampf mould will be bitterly disappointed. The book is a masterclass on the life of a Black professional who does not follow the herd but charts his own path; a crash course on the relationship between Law and Politics; and a lesson on the difference between racism and “playing the race card”, colonialism and coloniality, a lesson on “whiteness” (hint: it is not a reference to white people), a lesson on Blackness (hint: Blackness is a state of mind, not the colour of your skin).

Of enormous value in the book is the insight the reader gains on critical legal-cum-political contestations that we have, until now, only seen through the lens of mainstream or legacy media. The book gives the reader the VIP front-row seats and places the reader right at the centre of these controversies. These include

  • The origins of the complaint by judges of the Constitutional Court against Judge President Hlophe leading ultimately to his impeachment
  • The Sikhakhane Report in relation to the so-called “Rogue Unit”
  • How concepts such as “state capture” and “repurposing” of state institutions came to assume a unique meaning in order to achieve a particular outcome
  • The real reason Zuma did not oppose the State Capture Commission’s application in the Constitutional Court to have him imprisoned, ostensibly for contempt of court
  • Whether there was really a “staged walkout” from the State Capture Commission by Zuma’s legal team
  • Why Arthur Fraser never appeared before the State Capture Commission although he submitted a substantial written statement
  • Why Sikhakhane SC stepped back from “the Zuma cases”
  • What Kemp J Kemp SC’s view of the courts was in relation to “Zuma cases”
  • The abuse faced by Black advocates, including at the hands of advocates with black skin
  • The role of NGOs (special interest bodies)
  • And much more

The book is not without blemish, at least from my perspective. As a literary project, I find it something of a mishmash – fish and fowl at once. It seems the author could not quite decide whether to write a political memoir, a personal memoir, a professional memoir, a political lecture, or a sociological lecture on the vagaries of coloniality. In the final analysis, we end up with a discursive offering that meanders from childhood challenges to a near-death experience at age 20, to a critique of the legal profession and the judiciary, to an entire section (or PART) titled “Political Perspectives” but which contains some chapters the contents of which could, in my view, have been better located under the PART dealing with “Trials and Tribulations”.

I particularly found it curious that there should be a separate PART on “Political Perspectives” since the author is not shy to inject his political perspectives throughout the book – the uncommonly lengthy “Prologue” not excepted – so that these perspectives are scattered all over the book. Why then a stand-alone PART on “Political Perspectives”?

Anyway – sound or not – these are criticisms better directed at the editor and publishers than the author.

Nevertheless, I think this mishmash works to the benefit of the reader who, by it, is treated to more than just a biographical work but also to political consciousness and the inner workings of the legal profession, including judicial proclivities, from a perspective of one who has been (and continues to be) intimately engaged in both.

Another curious feature of the book is the haphazard use of epigrams and other excerpts cited from famous and not-so-famous thinkers at the beginning of some chapters. It appears that by Chapter 5 the author had run out of fitting epigrams until Chapter 11 where he resumes with them, loses them again in Chapter 14, regains them in Chapter 15, loses them again in Chapter 18 until he recalls them in Chapter 23, only to lose them yet again in Chapter 24 until he regains them in chapter 27, and loses them again in the Epilogue, whereas the Prologue kicked off with one.

As an English major who has read many classic works that favour opening chapters with fitting epigrams (George Eliot’s Middlemarch immediately springs to mind) and having tried the exercise myself in my flirtation with authoring a book, I can relate to the difficulty of maintaining epigrammatic introductions to each chapter in a book as long as this. I have found that there are at least two landmines that lie in wait: either you will at some point use an unfitting epigram or you will completely run out of fitting epigrams for each chapter and abandon the whole exercise. Quite why the author persisted after realising that the approach is not sustainable will remain one of life’s engaging mysteries about this book.

So, what now?

***

As I read the book, it strikes me as intended to relate the life experiences of one Black man – in which others of a similar background may find resonance – in an open, frank and un-gilded fashion. Characterised by a level of frankness rarely seen in the advocates profession, the book is a window to a mind unshackled by custom and an assortment of political, ethical and economic idées reçus. By its unadorned diction, it administers “shock therapy” especially to the sensibilities of a judiciary unaccustomed to trenchant criticism since the dark days of apartheid. Will the judiciary “let the dogs out” or pause, reflect and engage open-mindedly? It is my hope that this book will serve as some kind of cathartic moment for the judiciary, rather than invite the girding of the loins which the book does not seem intended to do.

Perhaps when a strong urge emerges to “punish” or “cancel” an advocate for expressing a view dissenting from popular discourse, those feeling the pangs of the urge to punish will do well to pause and reflect on Chief Justice Pius Langa’s words:

“Sometimes the simplest act of dissent can change the course of history… Sometimes the dissenter is the lone voice of reason in the dark. There will be some who privately agree with a dissenter, be it a Galileo, a Saro-Wiwa, a Rosa Parks or a More. The value and courage of dissent comes in standing up and pronouncing the difficult view in public and taking the consequences. It is easy to believe in something, it is much more difficult to speak out.”

And, quoting Bram Fischer,

“When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any ‘offence’ he may commit. On the contrary, it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it, not out of a desire to be immoral, but because to act otherwise would, for him, be immoral.”

Fischer was posthumously honoured by the advocates profession for his principled courage. In the fullness of time, we shall learn whether this honour – in what has become the South African tradition – is reserved for those favoured and pre-approved for the time being by those who wield power over others.

The End

***

By |2025-01-19T08:10:24+02:00January 16th, 2025|Analyses and Reviews|3 Comments
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To Robe or Not in SA Courts: A Colonial Vestige or Necessary Decorum in Today’s South Africa? – Vuyani Ngalwana SC [with additional contributions by Adv IAM Semenya SC & Alno Smit]

On 15 August 2024, the Chief Justice invited comments on his mooted amendment of the norms and standards for the exercise of the judicial functions of all courts to require advocates to don robes in the lower courts – magistrates courts and regional courts. Until now, members of the bar have not been required to robe in the South African magistrate’s courts.

The requirement is scheduled to be gazetted on 28 August 2024 and “will” come into effect on 1 October 2024.

The relatively short notice, coupled with the mandatory language as signified by use of the word “will” (not “may” or “could” or qualified by language demonstrative of a willingness to abandon the idea if the weight of argument should tilt the scales against pushing through with the amendment) seems to suggest that the amendment may be a fait accompli. If so, this would be regrettable and taint the entire process in bad faith engagement with the profession.

There are arguments both in favour and against retention of the robing tradition in South African courts. I believe arguments against retention are far stronger than those in favour. I hope I have demonstrated this in this my formal objection not only to the extension of the tradition to advocates in relation to magistrate’s courts but also more broadly in relation to robing in all South African courts.

I have submitted my objection to the Office of the Chief Justice, and live in hope that it will be carefully considered and that, should it not sway the Chief Justice, written reasons will be provided therefor.

Since submitting my own objection, I have received two more submissions on the robing issue, one by Adv Ishmael Semenya SC and another by Adv Alno Smit.

Read Full Objection here: Objection to robing – 18 August 2024

You may also be interested in these:

Judiciary-Norms-and-Standards

Notice – Robing (original)

Adv Semenya SC’s contribution can be found here Objection to Robing in Courts – IAM Semenya SC

Adv Smit’s contribution can be found here In Defence of Robing – Alno Smit

By |2025-01-15T10:12:34+02:00August 20th, 2024|Analyses and Reviews|Comments Off on To Robe or Not in SA Courts: A Colonial Vestige or Necessary Decorum in Today’s South Africa? – Vuyani Ngalwana SC [with additional contributions by Adv IAM Semenya SC & Alno Smit]
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The Long Term Effects of Skewed Briefing Patterns in South Africa and Some Solutions – Vuyani Ngalwana SC

Recently, Judge Mandlenkosi Motha of the Pretoria High Court caused something of a stir when he directed legal practitioners – all white – who appeared before him in a black economic empowerment case to explain the lack of race diversity in their legal teams.

The outrage is, in my view, misdirected, tone deaf, shortsighted and lacks discernment in many fundamental respects. I discuss these in this paper, citing observations made in the past by the Constitutional Court, the Judge President of the busiest courts in South Africa, and other eminent jurists on the subject of Transformation and its Legitimacy.

I submit that skewed briefing patterns that favour white legal practitioners are a legitimate concern that should be addressed expeditiously and sustainably because of the deleterious effects they have on the development of our jurisprudence and on the legitimacy and competence of the Judiciary in the long run, and the explicitly racist stereotype they reinforce in the legal profession.

I then offer some solutions and invite legal practitioners to engage with this content so that we can arrive at a solution that is sustainable and to the benefit, ultimately, of the country.

Read Full paper here: The Long Term Consequences of Skewed Briefing Patterns in SA & Some Solutions

You may also be interested in these:

Legitimacy, Transformation and Need for Change at the Bar

By |2025-01-15T10:12:34+02:00March 10th, 2024|Analyses and Reviews|Comments Off on The Long Term Effects of Skewed Briefing Patterns in South Africa and Some Solutions – Vuyani Ngalwana SC
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REVIEW REPORT OF THE PROCEEDINGS AND FINDINGS OF THE PIC COMMISSION OF INQUIRY (GOVERNMENT GAZETTE NO. 41979) – by Former Judge Willem Heath

This is a Report by Former Judge Willem Heath on the Proceedings and Findings of the PIC Commission of Inquiry into the affairs of the Public Investment Corporation (PIC).

Some of the findings include

  • that the Commission ignored its Terms of Reference and did not investigate material transactions in relation to which evidence had surfaced and of which the evidence leader was aware
  • that the Commission erroneously interpreted its Terms of Reference and that this is a reviewable irregularity which could result in it being set aside
  • that the Commission showed marked bias and prejudice towards certain companies or persons and favouratism towards others
  • that the conduct of one of the members of the panel of the PIC Commission should be referred for investigation to relevant authorities
  • that the Commission failed to comply with the legal principles and doctrines of the Rule of Law, Natural Justice, Fairness (just Administrative Action) and legality, thus resulting in substantial reputational and financial prejudice to some persons
  • that the affected companies and persons should explore legal advice on whether they have a case for delictual damages against the PIC Commission.

The Report also provides a useful exposition of the purpose of Commissions of Inquiry, what is permissible and what is not. In the process, the Report reminds us all what constitutes evidence and what does not in a Commission of Inquiry setting.

It also provides a timely reminder of what the role of Journalists is in reporting on proceedings of a Commission of Inquiry, and where the obligations (and protections) of journalists begin and end in relation to their reporting on Commissions of Inquiry.

Read Full Report here: REPORT OF THE REVIEW OF THE FINDINGS AND CONDUCT OF THE PIC COMMISSION – ADV W HEATH SC – 6 March 2022

You may also be interested in this:

Report of the PIC Commission

By |2025-01-15T10:12:34+02:00April 9th, 2022|Analyses and Reviews|1 Comment
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Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa – A Lecture by Justice Dunstan Mlambo, Judge President of the Gauteng High Courts, South Africas

In his 1946 essay on Politics and the English Language, George Orwell succeeded in surgically peeling off the veneer of prosaic respectability from what passes for “modern” English to expose the ugly lies ignominiously hidden beneath.

Mourning the perversion of the English language – ostensibly in the name of modernism but, in truth, with a view to obfuscating and deceiving – he observed that the decline of a language must ultimately have political and economic causes.

Perhaps unfairly, Orwell’s essay sprang to mind when I read a take by the Daily Maverick on a lecture by Judge President Mlambo. I knew immediately that I had to get my hands on it and read it myself. A quote in the Daily Maverick piece left me puzzled and wishing to understand more.

So, I set out to find the lecture itself, and sat down to read it. Wow!

Daily Maverick quoted the Judge President as saying:

“There are no longer assertions that the law can be kept isolated from politics; while they are not the same they are necessarily and inherently linked”

In fact, what the Judge President said – quoting former Chief Justice Langa – was this:

“[T]here is no longer place for assertions that the law can be kept isolated from politics.  While they are not the same, they are inherently and necessarily linked”

Read the two quotes again, carefully, especially the first part of each.

A statement that “there are no longer assertions” about a particular worldview is a very different proposition from a statement that says “there is no longer a place for assertions” of that particular worldview. The former is a statement of fact, and whether or not the fact is well-founded is something that can be pursued with the speaker by fact checkers. The latter, however, is the expression of an opinion which is not measured for its plausibility merely by checking facts. One has to go beyond that and probe the reasoning. Facts answer to questions like “what”, “when”, “where” “who”, “how”. Opinions answer to “why”.

Whether or not there are still assertions that law can be kept isolated from politics is to me irrelevant. As a proposition of fact it does nothing to stimulate the necessary national debate and enquiry about whether or not politics plays a role in the determination of cases in the course of Judges applying, in their minds, the law. Of much interest to me, as a lawyer who appears regularly in South African courts, is the proposition that there is no longer a place for assertions that the law can be kept isolated from politics, and that these are inherently and necessarily linked. Now, that piques my interest.

The Daily Maverick piece left me puzzled and wanting to understand more about the lecture because there is a clear dissonance (at least to me) between the first part of the quote and the second. If there are no longer assertions that law can be kept isolated from politics, then to what end must the reader be told in the same sentence that these two are inherently and necessarily linked, except to call readers to arms to demand that assertions that law can be kept isolated from politics remain a distant memory? In other words, why would the speaker tell me that law and politics are inherently and necessarily linked if he wants to discourage me from asserting that law can be kept isolated from politics? It is this disconnect in the Daily Maverick piece that piqued my interest.

Whether the disconnect is deliberate or a function of editorial negligence I do not know. I am just happy I picked up on it and read the lecture myself.

I have always maintained that Judges should emerge from behind their judicial shield and express their worldview on matters of public interest. The bench is not a monastery or convent where Judges have taken a religious vow not to engage in conversations about matters of national interest wherever they find themselves. They are citizens with socio-political interests and preferences before they become Judges. Those interests and preferences do not vanish upon people donning judicial robes or taking the oath to uphold the Constitution.

Judges are also fathers, mothers, sons, daughters, wives, husbands and taxpayers and are also affected by politics as the rest of us. So, to believe that Judges are immune to political influence or consideration – whether by design or by coincidence – when determining some cases, is in my view astonishing naivete.

That is why the lecture of the Judge President on Transformative Constitutionalism, and the role of Judges in it, comes as a welcome relief for me from the suffocating pretence by many members of the public that Judges are above politics. How can they be when they are political beings, appointed by a politician through a political process and in terms of a document that is a product of political detante: the Constitution?

By saying this I do not for a moment suggest that Judges should turn politicians or that they are politicians. Far from it. The point I make is that Judges are creatures of politics and cannot escape politics whether they wish to do so or not. It is not in their hands. It is in the nature of their work and in the subconscious mind of human beings with socio-economic and political experiences, interests and preferences.

As I understand the Judge President, he posits that Judges in post-apartheid South Africa must, of necessity, break from the self-imposed judicial strictures of unyielding notions of un-rehabilitated common law. He points to a number of cases (known to lawyers who practise in these courts) to demonstrate the reluctance of some Judges to unshackle their judicial grounding from common law that has been overtaken by the new constitutional grundnorm or ethos. The notion that the law exists in a gilded world of its own, unsullied by the politics of the day, is not only imagined by those who hold that view; it is also an impediment to Transformative Constitutionalism. That is what I understand the Judge President as saying.

To that end, the Judge President calls in aid cases like Beadica, a Constitutional Court judgment that reminds Judges that they

“must not lose sight of the transformative mandate of our Constitution.  Transformative adjudication requires courts to “search for substantive justice, which is to be inferred from the foundational values of the Constitution . . . that is the injunction of the Constitution – transformation.”

The idea that law and politics should not mix, and that Judges should steer clear of politics, is in my view uninformed. Again, by that thesis one is not saying Judges should turn politicians. But what Judges cannot avoid is make decisions steeped in politics. Whether that is by design or by coincidence only the Judge in question will know. For example, when two factions of a political party battle in court for the leadership of that party, and the court finds in favour of one faction, that decision aides a political project – whether the Judge intended it or not.

I think time has come for us all to disabuse ourselves of the notion that law and politics do not mix. They often do. To suggest otherwise is to deceive ourselves. As Chief Justice Langa himself said those many years ago, and now endorsed by the Judge President, law and politics are inherently and necessarily linked. It is naive to believe that the determination of cases, especially those engaging socio-economic  and political rights, is done shorn of political considerations. As the Judge President himself says:

“Judges should take note that every common law case is an opportunity to develop the common law and to construct social and economic relationships in one way or another consonant with the transformative agenda of the Constitution.  Every common law decision has implications that are political, moral, economic and distributive“

In my view, if South Africa is to reverse (or at the very least ameliorate) the still lingering vestiges of apartheid, we need Judges who will not lose sight of the transformative mandate of the Constitution; Judges who will actively go in search of substantive justice informed by the foundational values of the Constitution: equality, human dignity, advancement of human rights and freedoms for those historically and currently marginalised or targeted for exclusion in all aspects of life in South Africa. That object cannot be fulfilled by a judiciary that is politically inert or, worse still, a judiciary that is still trapped in the politics that was dominant in 1985.

At some stage, the unpalatable but necessary task of an audit of Judges’ political persuasion will have to be embarked upon if Transformative Constitutionalism is to be realised. Until then, all we shall be doing is tinker at the edges with a system of oppression that continues to wreak havoc with the lives of the very category of persons the Constitution professes to protect and advance.

As Justice Madlanga of the Constitutional Court of South Africa has said:

“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”

If that is so, then what South Africa needs are not politically inert Judges but Judges whose politics aligns with the aspirations and healing of ordinary black people who still bear the scars of apartheid and continue to suffer the indignities of that system even under what is supposed to be a constitutional state founded on a constitutional ethos where everyone has the right to equal protection and benefit of the law, but for whom that is merely a promise in a document.

It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:

“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”

Will the same one day be said of contemporary South African Judges who remain silent in the face of the worst excesses of big business and the executive, putting up their judicial shield of “see no evil, speak no evil” as an excuse for not engaging publicly? Time will tell.

But the Judge President’s lecture is not just about politics and law. This just happens to be the theme that has piqued my curiosity and which, in my view, deserves closer scrutiny.

Read Full Lecture here: Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa

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By |2025-01-15T10:12:34+02:00April 3rd, 2022|Analyses and Reviews|Comments Off on Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa – A Lecture by Justice Dunstan Mlambo, Judge President of the Gauteng High Courts, South Africas
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THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 2

This is Part 2 of a paper on the fabled “lifeboat” or “bailout” afforded by the SA Reserve Bank to the Bankorp Group and Absa Bank between 1985 and 1995.

As pointed out in Part 1 of the paper, this bailout has been the subject of three investigations:

  • the Special Investigating Unit (“the SIU”), led by Judge Willem Heath, following a proclamation by President Thabo Mbeki, which concluded that the SA Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.
  • the Davis Panel of Experts, led by Judge Dennis Davis, appointed by Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – which reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.
  • the Public Protector who found likewise and went further to direct that the money be recovered from Absa Bank and other beneficiaries.

In this Part 2, we discuss the findings and recommendations of the three investigations and propose the way forward with reference to Constitutional Court authority.

Read the full Analysis here The Unfinished Story – SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 2

By |2025-01-15T10:14:20+02:00April 30th, 2021|Analyses and Reviews|2 Comments
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THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 1

In 1999 the Special Investigating Unit (“the SIU”), following a proclamation by President Thabo Mbeki, found that the South African Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.

Instead, Judge Willem Heath who led the probe released a 17-page Official Media Statement on his findings.

Soon after, Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – appointed a Panel of Experts, led by Judge Dennis Davis, to undertake the same investigation that Judge Willem Heath’s Special Investigating Unit had just completed. The Panel of Experts reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.

Then came the Public Protector who investigated the same issue, made findings and took remedial action.

While both the SIU and Davis Panel of Experts found that the transaction was, in effect, a fraud, they stopped short of recommending the repayment of the funds thus procured. So, their findings were not challenged in court. The Public Protector, however, ordered the repayment of these funds. What happened to her next leaves some unanswered questions about why the bailout issue seems to be a no-go area.

In this short paper, I explore this question, beginning with the background to this infamous bailout. In that process, I discuss the findings of these probes, offer my own views and suggest the way forward.

Read the full Analysis here The Unfinished Story – The SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 1

By |2025-01-15T10:14:21+02:00April 28th, 2021|Analyses and Reviews|7 Comments
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