Can we no longer trust judges in South Africa?
South Africa is a country where trust in public organisations is at an all-time low. But in the middle of an endless wave of wrong-doing allegations against State-Owned Enterprises, hospitals, and numerous local and provincial municipalities, one institution has always seemed safe from the evil tendrils of corruption: our judiciary.
So the arrest on corruption charges of a sitting high court judge in November last year sent shock waves throughout the entire country.
Gauteng High Court Judge Portia Phahlane is charged with allegedly receiving millions to rule in favour of one of the factions involved in the succession battle of the International Pentecost Holiness Church (IPHC).
The dispute has been raging since 2016, when Glayton Modise, one of Church founder Frederick Modise’s sons, passed away.
Two other sons, and a third contender, Michael Sandlana (who maintains he is also Modise’s biological son) are embroiled in a battle for the top job.
It is Sandlana who allegedly made payments to Phahlane – including a R2 million contribution to the house she bought in 2022.
She has since been released on R50 000 bail by the Pretoria Special Commercial Crimes Court. Her son, Kagiso Phahlane, and another co-accused, Vusi Soli Ndala, were released on R10 000 bail each. They’re due to appear again in court on March 26, but until then, Phalane is seemingly free to continue her judicial duties.
Legal analyst Mpumelelo Zikalala says, “This will dent the credibility of judges, and they are under scrutiny as we speak, but it’s important to remember that the judge affected can still perform her duties, hear cases and deliver judgments,” he said. “Anyone dissatisfied with her rulings has the option to appeal to higher courts, such as the Supreme Court of Appeal or the Constitutional Court.”
Mr Xola Nqola, the portfolio committee chairperson of the Committee on Justice and Constitutional Development, wasn’t quite so magnanimous.
“The arrest has the potential to erode South African citizens’ trust in their judiciary,” he said. “The most troubling aspect is the alleged use of money. In a corruption-infested society such as ours, it would be too slippery a road if judges started accepting brown envelopes on matters that are before courts awaiting adjudication.”
However, like Nqola, he also urged caution, asking people not to paint all judges with the same brush. He added that he “trusts South Africa’s strong judicial institutional framework will resolve this transgression and rid itself of any bad elements.”
All of which might have been a little easier to swallow if, barely two months later, acting Johannesburg High Court Judge, Samuel Makamu, hadn’t become the subject of a complaint by businessman and lawyer, Bouwe Wiersma.
According to Wiersma, Makamu accepted his R5 000 bribe to influence a leave to appeal ruling. Wiersma claims he paid the money to expose corruption within the judiciary.
The Citizen newspaper reports that the allegations have now formally been taken up by the Judicial Conduct Committee, which confirmed that a prima facie case exists and that the matter has been handed to SCA judge Halima Saldulker for a formal inquiry.
Although the sums of money involved here are admittedly small in comparison, the two cases indicate what many are worried is becoming a trend. I sincerely that the last bastion of resistance against South Africa’s systemic corruption isn’t starting to crumble.
Because if that were indeed the case, the ramifications for our legal system – and indeed our entire country – are severe.
As the Citizen’s news report states, “Judicial accountability is crucial in a country grappling with corruption across multiple sectors. The investigation into Makamu may not only determine the fate of one acting judge but also reinforce the importance of integrity in the judiciary a pillar of democracy that affects every citizen.”
Another article, this time in JudgesMatter, says, “Judicial institutional independence is not an abstract debate for judges, academics, or NGOs. The erosion of judicial independence and delays in justice affect both the vulnerable and the powerful. The poor struggle to access basic rights, crime goes unpunished, businesses cannot enforce contracts, and economic growth slows.
“When courts fail, the Constitution’s promises becomes hollow.”
And on the DA’s website, we read: “This is not a small matter. Judges hold extraordinary power, and South Africans must be able to believe that those powers are exercised honestly. The idea that a sitting judge could sell justice to the highest bidder is an insult to every citizen who turns to the courts for fairness.”
And this is the very heart of the problem.
When a judge is accused of taking money to tilt a ruling, the ripple effect is as wide as it is worrying.
Businesses – even in a country like ours where desensitisation to corruption is almost common – don’t operate on hope. They rely on the predictability and sanctity of the law.
If a contract can be ignored because someone paid for a specific outcome, the legal foundation for investment disappears.
For an executive weighing up a 10-year project or multi-billion Rand deal, a compromised judiciary is a dealbreaker. It forces local capital to sit on the sidelines and is just another reason for international investors to feel that South Africa is too volatile to be a safe bet.
For decades now, we’ve been battling a narrative of institutional decline. Our courts are supposed to be the final safeguard, the place where, when all else fails, we can feel confident that justice will indeed prevail.
If this final pillar of integrity and moral safety crumbles, what have we got left?
It’s anarchy in waiting.
You cannot expect people to respect the law when they believe the people interpreting it are for sale. The “social contract” only works if the referee is clean.
A strong, independent judiciary is not just the cornerstone of democracy, it is a guarantor of human rights and a foundation for economic stability.
Corruption is already our country’s executioner. We cannot also let it become the judge and jury too.