CHRIS OXTOBY & JUDITH FEBRUARY | Is there a crisis of ethics in the South African judiciary?

A recently published article highlighting that Free State judge Mpina Mathebula has been on special leave while criminal proceedings against him are underway has raised more than a few eyebrows.

News reports indicate that the judge has not been suspended and there has yet to be a formal complaint of misconduct lodged against him with the Judicial Service Commission (JSC).

This is the latest in an alarming line of serious allegations against judges.

A few days earlier, it was reported that a complaint had been lodged against Western Cape High Court judge Daniel Thulare for allegedly living in a government house he was not entitled to occupy, and continuing to occupy the property after the lease had lapsed.

And 2026 began with the finding by a judicial conduct tribunal that Eastern Cape judge president Selby Mbenenge was guilty of misconduct, but not gross misconduct, which could lead to his removal from office, over allegations of sexual harassment.

Furthermore, Parliament is considering the fate of two further judges, Nana Makhubele and Mushtak Parker, who have both been found to have committed gross misconduct. Parliament will in due course vote on whether these two judges should be removed from office (or “impeached”).

For a considerable period, South Africans could take pride that no judge had been removed from office. But following the removal from office of former judges Hlophe and Motata in 2024, we could be facing a scenario where as many as four judges have been impeached.

And the situation could get even worse. In addition to the criminal charges against Judge Mathebula, Gauteng High Court Judge Portia Phahlane was arrested last year on corruption charges.

Curiously, whilst no complaint of misconduct yet appears to have been lodged against Judge Mathebula, the JSC has announced that the acting judge president of the Gauteng High Court has lodged a complaint against Judge Phahlane.

Two fundamental questions arise from these events.

Is there a crisis of judicial ethics, and is the current system of dealing with complaints against judges adequate to address it?

The number of serious allegations against multiple judges make it hard to avoid talking of a crisis. This is not a statement to be made lightly.

But allegations of serious wrongdoing have the potential not just to undermine the position of the individual judges, but of the whole judicial institution and ultimately, the Constitution and the rule of law, which judges play such a central role in upholding.

It is therefore not an exaggeration to describe multiple allegations of serious misconduct against judges as a form of crisis. To address it, it is crucial that allegations are dealt with efficiently, credibly, and transparently.

Unfortunately, the JSC’s track record in this regard has not inspired confidence. In 2022, Freedom Under Law (FUL) published a report evaluating the JSC’s activities over the preceding decade.

The report identified several areas of weakness with the judicial accountability process, which remain relevant to the current moment.

The report is critical of the JSC’s decision-making in dealing with many complaints, and there are grounds for concern that the decision of the Mbenenge tribunal may be a continuation of this trend.

Without going into a detailed analysis of the decision, it is noteworthy that there have been powerful criticisms of the decision for applying the incorrect approach to evaluating the credibility of the complainant, and for the framework it applied in determining the allegation of sexual harassment being inconsistent with the Constitution.

The JSC will no doubt give serious consideration to these issues when it decides whether to endorse the tribunal’s finding.

The Mbenenge tribunal process also highlights a second issue raised in the FUL report, namely the role played by the complainant .

The report argues that complainants should be given a more prominent role, but the practice of judicial conduct tribunals in this regard has been inconsistent.

The Mbenenge tribunal exhibited a troubling feature of this phenomenon by prohibiting the complainant’s legal representative from cross-examining the judge president, despite the complainant herself being subjected to “lengthy, fierce cross-examination”, and despite the tribunal allowing the complainant’s representative to effectively cross-examine other witnesses.

Whilst it is true that the judge president was cross-examined by the evidence leader, the tribunal’s approach nevertheless invites concerns about the consistency and fairness of its proceedings.

Not only does this aspect illustrate a further instance of potentially questionable decision-making, it also shows the lack of clarity about the exact role the complainant is permitted to play in such proceedings.

The JSC needs to act to clarify and standardise the position. Failure to do so undermines the process of holding judges accountable.

A third issue with the accountability process, which was identified in the Freedom Under Law Report and continues to bedevil the process, is the approach to suspending judges while allegations against them are dealt with.

The report argues for a default position that judges be suspended pending the resolution of complaints relating to potentially impeachable misconduct.

This does not seem to be the case in respect of either Judges Mathebula or Phahlane, both of whom are reported to be on special leave. The difficulties of this approach were demonstrated in Judge President Mbenenge’s case.

The judge president had also been placed on special leave and indicated that he would return to work immediately after the tribunal handed down its decision, despite the JSC still having to consider whether to adopt the tribunal’s finding.

The JSC then had to issue a statement on the “status” of the judge president, indicating that he would remain on special leave until the JSC had made its decision. These incidents illustrate why the recommendation of a default suspension policy ought to be implemented.

These suggestions illustrate various ways in which the process of dealing with complaints against judges could be improved.

There are other steps that can be taken beyond relying on the outcome of the complaints process. The leadership of the judiciary, headed by the Chief Justice, should take proactive steps to engage with their colleagues to remind them of their professional and ethical responsibilities.

Ongoing professional education courses are regularly provided by the South African Judicial Education Institute (SAJEI), and an intervention highlighting judge’s ethical duties would seem to be pertinent and timely.

Attention should also be given to how questions of ethics and conduct are dealt with in the process of appointing judges.

This is not to say that all the allegations that are currently in the news could necessarily have been anticipated when the judges in question were appointed.

But it is striking that the JSC appears to have little to no independent capacity to vet the candidates who appear before it. Instead, the commission relies on public comments or objections by

professional bodies or other interested parties to highlight concerns about candidates’ suitability. It is questionable whether this approach is sufficient.

What is clear is that the judiciary cannot sit back and wait for matters to unfold. The stakes are too high, and the harm to the credibility of the judiciary caused by multiple allegations of judicial misconduct too great, for an approach of “business as usual” to be taken.