The rule of law and confidence in the judiciary are fundamental pillars of investor confidence, so the arrest last week of North Gauteng high court judge Portia Phahlane on corruption charges sent legitimate shockwaves through the body politic.
Investors need to know that the contracts they enter into have legal standing and that there are trustworthy judicial processes to deal with commercial disputes should they arise. This is crucial for the security of their investments.
A judiciary with independence and integrity has been one of South Africa’s strengths as an emerging market investment destination despite the low rate of economic growth, high levels of corruption and crime and the collapse of local government.
And the public generally needs to have faith that they can rely on the courts for the fair resolution of conflict. This is a cornerstone of a democratic country in which rights enshrined in the constitution are protected.
For all of this there must be confidence that judicial decisions will be made without fear, favour or prejudice. This confidence has been badly shaken by the allegations that Phahlane — now placed on special leave — accepted a bribe of about R2m to pass judgment in favour of one party to a dispute over the leadership of the International Pentecostal Holiness Church.
Fortunately, this alleged transgression by a judge in the conduct of his/her duties — the first in democratic South Africa’s history — is not endemic. There is no reason to doubt that most judges have integrity. There have of course been headline cases of misconduct, such as those leading to the impeachment of Western Cape judge president John Hlophe, the removal of retired judge Nkola Motata after a drunk driving conviction and the sexual harassment allegations against Eastern Cape high court judge Selby Mbenenge.
However, as a whole the judicial system faces serious challenges.
The public’s confidence in the judiciary is on the wane. This was noted with concern by chief justice Mandisa Maya in a speech last week to mark the release of the 2023/24 and 2024/25 annual reports of the judiciary. She said there had been a “tremendous increase” in the number of complaints against judges over the last three years, the total being 350.
In 2022/23 there were 93 complaints against judges, 125 in 2023/24 and 132 in 2024/25. The complaints related to delays in the handing down of judgments, disgruntlement about adverse judgments delivered against the complainants and alleged misconduct and incompetence.
Also contributing to the decline in public confidence in the judiciary is the time it takes the judicial conduct committee (JCC), a committee of the Judicial Service Commission, to deal with complaints. The processing of complaints against judges needs to be expedited to ensure proper accountability.
The JCC is plagued by capacity constraints, which has meant that it can take several years for a complaint to be dealt with. One of the reasons for this is that already overburdened sitting judges deliberate on the complaints.
“Justice delayed is justice denied” rings true for many whose trial dates extend many years into the future, a problem acutely felt in the Johannesburg high court, which handles most of the country’s civil cases. There has been some improvement in this after former Gauteng judge president and present deputy chief justice Dunstan Mlambo introduced mediation as an alternative mechanism for dispute resolution.
Equally distressing for litigants are the reserved judgments, which can take very long to hand down, defying the three-month target.
There cannot be such delays in the judicial proceedings against Phahlane. A swift judgment is vital for restoring public and investor trust in the judiciary.
However alarming, Phahlane’s arrest is not altogether negative. As Maya pointed out in a statement, “The rule of law is not weakened when an individual is held to account — it is strengthened. The unprecedented arrest of a judge demonstrates that the country’s law enforcement apparatus and mechanisms of accountability are in motion.”
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