CHRIS OXTOBY & JUDITH FEBRUARY | 2026: What lies ahead for the judiciary and the rule of law

If the past few years are any indication, 2026 will be another highly consequential and challenging year for the judiciary and the rule of law.

Significant concern regarding the accountability and conduct of members of the judiciary has been simmering for a while.

The prevailing narrative about the judiciary was that it was a rare example of a democratic institution that worked effectively, and, particularly in the context of state capture, ensured accountability and protection of the law while other institutions capitulated to political pressure.

In this context, allegations of judicial capture could usually be dismissed as pushback against the judiciary ‘holding the line’ against corruption and maladministration. This was especially so under the Zuma presidency, when senior politicians (Gwede Mantashe for instance) felt empowered to launch opportunistic attacks on the judiciary to serve their own narrow or the party’s narrow interests.

However, several recent events provide grounds for concern about the conduct of some judges and the effect that the unethical conduct of a few may serve to undermine the judiciary as a whole.

How these examples of misconduct are dealt with is important as part of the ongoing and complex work of strengthening the judiciary and in so doing, the rule of law. All around the world, the rule of law is under threat and so South Africa cannot afford to be complacent about ensuring that the rule of law and the institutions underpinning it are protected.

Our context of deepening inequality, an increasing alienation, specifically by young people, from democracy itself as well as a decade of state capture, make the task of defending the Constitution and the rule of law even more urgent.

The stakes are very high. A recent Afrobarometer survey reported “deep frustration” with South Africa’s democratic system. Most strikingly, 49% of respondents expressed support for military rule, a 21% increase since the previous survey round in 2022.

What it does demonstrate quite clearly is that we must be concerned about how our democratic institutions are functioning and the legitimacy they hold in the eyes of citizens.

Recent research findings by the World Justice Project (WJP) suggest that these sentiments are consistent with a global pattern. The WJP finds an accelerating global decline in the rule of law, as authoritarianism rises in civil society space shrinks. Law is at the centre of South Africa’s constitutional democracy.

Our system grants our courts widespread powers to mediate disputes and to overturn decisions by democratically elected branches of government. It cannot help public confidence in the justice system when judges are accused of corruption and sexual harassment or found guilty of misconduct.

Most recently, the Judicial Service Commission (JSC) has upheld the findings of judicial conduct tribunals in relation to complaints against two judges – Gauteng High Court judge Nana Makhubele and Western Cape High Court judge Mushtak Parker – finding that both judges committed gross misconduct. Both complaints are now before Parliament, which must vote on whether to remove them from office (i.e. to impeach them).

With former judges John Hlophe and Nkola Motata having been removed from office in 2024 (after processes which were so delayed that further harm was caused to public confidence in the judiciary), the impeachment of a further two judges raise troubling questions about judicial ethics and conduct.

Added to this is the arrest, late last year, of Gauteng High Court judge Portia Phahlane on charges of corruption. Phahlane’s criminal trial is yet to begin, but it is difficult to imagine how she could continue to hold judicial office in the wake of such serious allegations. An allegation of bribery against another High Court judge is also currently under investigation.

Of course it does not follow that a cloud of suspicion hangs over all judges, or that court decisions we may disagree with can be explained by corruption, as some may find expedient to do. But judicial integrity matters. It would not take many serious allegations against judges for the integrity of the entire system to be seriously jeopardised.

One way of preserving public trust in the judiciary is to ensure that the system of dealing with complaints against judges is credible. Unfortunately, the JSC’s performance in this regard has been the subject of regular criticism. How the JSC deals with complaints of misconduct against judges will be a crucial issue to watch in the year ahead.

An early litmus test has come with the findings of the judicial conduct tribunal tasked to investigate a complaint against sexual harassment against Eastern Cape judge president Selby Mbenenge.

The tribunal proceedings understandably attracted great public interest, and the outcome took on further significance following the recent and much-celebrated release of a new anti-sexual harassment policy for the judiciary. The Mbenenge tribunal outcome provided an important test of how allegations of sexual harassment against a senior member of the judiciary would be handled.

The tribunal found that Mbenenge had committed misconduct, but that it did not rise to the level of gross misconduct which could have led to his impeachment. This finding must now be confirmed by the JSC.

The decision has already prompted criticism, while other responses seem to treat this outcome, misleadingly, as a vindication of Mbenenge. Social media videos celebrated Mbenenge’s ‘innocence’ alongside images of the judge himself in celebratory dance. If the dance was in response to the tribunal’s findings, then the Judge President should have known better.

The tribunal’s finding means that he has still been found guilty of misconduct for violating the Code of Judicial Conduct. What is in the public domain regarding his Whatsapp exchanges with his registrar is both tawdry and undermines his position as Judge-President and at the very least must be seen as unbecoming of a judge.

Mbenenge will likely be sanctioned, even though that sanction would not lead to his removal from office. The JSC will still have to grapple with the damage that Mbenenge’s conduct has done to public confidence in the judiciary.

As the Bangalore Principles of Judicial Conduct states: “public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society.”

So, the process of holding judges accountable needs to function promptly, efficiently, and credibly. Citizens need to be reassured that the integrity of our judges is unimpeachable, and that any who step out of line with be held to account.

Ethical challenges also require scrutiny of the process of appointing judges, and whether more can be done to ensure the best possible judges are appointed. Again, the JSC’s performance in this area has often been criticised and will be another key issue to monitor in the year ahead.

We have previously highlighted concerns about instances of candidates appearing before the JSC showing serious ethical shortcomings. The JSC will have to remain vigilant to ensure that such candidates do not find their way onto the bench.

Reform and strengthening of the JSC’s shortlisting procedures would go some way to improving public confidence in the judiciary.

The process the JSC employs to select candidates has serious flaws as was as demonstrated by the JSC’s failure to appoint from several competent candidates for a vacancy on the Supreme Court of Appeal in 2023, which is the subject of ongoing litigation by Freedom Under Law.

The JSC’s ability to take the bull by the horns to ensure the right candidates are appointed, and that allegations of misconduct are dealt with credibly and promptly, will be one of its most important challenges in 2026.

The Chief Justice will come under intense scrutiny for trajectory of the JSC. As the chair of the commission, she will need to show the necessary leadership to ensure that the JSC addresses these challenges and thereby restores public confidence in judicial appointments and accountability.

The legal profession is the feeder to the judiciary and is crucial for the rule of law in own right.

There has been increasing concern over how complaints against errant practitioners are dealt with, and observers will be anxiously awaiting signs of improvement from the beleaguered Legal Practice Counsel (LPC).

Two further issues are deserving of attention. The first is what measures will be taken to address serious challenges experienced by the Constitutional Court in dealing with its workload.

This is illustrated by public concern over the lengthy delay in delivering judgment in the so-called ‘Phala-Phala’ case, but this is symptomatic of a general problem which was highlighted by former Chief Justice Raymond Zondo in early 2024. As yet, no concrete measures have been implemented to address this crisis.

Second, it remains to be seen how last year’s much-heralded announcement that the governance structure of the judiciary was to be reformed to ensure full judicial independence will be implemented in practice.

2026 will be a litmus test for the judiciary and also for the Chief Justice who leads it. When Chief Justice Maya took the reins, she became the first woman to do so.

Much was made of this. It is indeed historic. But, in the end Maya will be judged for the way in which has dealt with the so-called ‘wicked issues’ and whether she has led the JSC and the judiciary with rigour and principle, not shying away from the many challenges to the rule of law. These include the proper functioning of the JSC and the public perception of the judiciary.