Chief Justice Mogoeng Mogoeng

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

Analyses and Reviews

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

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.

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.
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.
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.
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.
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 AnchoredinLaw|2025-08-28T03:23:53+02:00August 27th, 2025|Analyses and Reviews|Comments Off

Vuka Tshabalala On Trial: The South African Jurisprudence Personified – by Vuyo Mthethwa – A Book Review
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Vuka Tshabalala On Trial: The South African Jurisprudence Personified – by Vuyo Mthethwa – A Book Review

Analyses and Reviews

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

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By AnchoredinLaw|2025-06-23T14:37:57+02:00June 21st, 2025|Analyses and Reviews|Comments Off