Moorosi Tsiane
CHIEF Justice Sakoane Sakoane has been accused of shifting the burden of a longstanding judicial backlog crisis onto retired judge Tšeliso Monapathi by withholding his terminal benefits until he completes outstanding judgments.
Justice Monapathi’s lawyer, Advocate (Adv) Mocheta Makara, told the Court of Appeal this week that his client’s retirement benefits should not be held hostage to unfinished judicial work, arguing that the Chief Justice has no legal authority to withhold the dues as a quick fix for the backlog crisis.
Justice Monapathi is appealing against a Constitutional Court judgment delivered on 31 March 2026, which found that he remained constitutionally obliged to complete outstanding judicial work left unfinished when he retired on 4 August 2024 after reaching the retirement age of 75. He left 128 cases pending judgement and 11 part-heard.
The appeal was heard by a five-member panel comprising Court of Appeal president Justice Kananelo Mosito and Justices Johann van der Westhuizen, Realeboha Mathaba, Mabatsoeneng Hlaele and Tekane Maqakachane.
The Constitutional Court had been constituted by a three-member bench comprising Justice Mankhabimba Mkandwire of Malawi, Justice Sylvester Mainga of Namibia and Justice David Mangota of Zimbabwe.
At the heart of the dispute is whether Justice Sakoane was entitled to withhold the processing of Justice Monapathi’s terminal benefits until he completed the outstanding cases accumulated during his tenure on the High Court bench.
In his appeal, Justice Monapathi argues that the Constitutional Court misdirected itself by finding that the Chief Justice had the power to withhold his terminal benefits despite his having reached the mandatory retirement age.
“The Learned Judges erred and misdirected themselves by holding that Chief Justice has power to withhold the Appellant’s terminal benefits despite reaching his mandatory age of retirement,” Justice Monapathi argues.
Addressing the Court of Appeal on Monday, Adv Makara maintained that Justice Sakoane had no authority to deny his client retirement benefits on the grounds that he still had judgments to complete.
He accused the Chief Justice of conflating two separate issues — the obligation to complete outstanding judicial work and the right to receive terminal benefits — in an attempt to resolve the backlog crisis through what he described as a misinterpretation of the law.
“They seem to be resolving the crisis by misinterpreting the law. Let the appellant complete the judgments but that is a different issue from his retirement benefits. He must get his terminal benefits because his stand is that he is ready and willing to continue and finish the outstanding work.
“It is a problem that started back in 1995 and here we are they are trying to seek a quick solution,” Adv Makara said.
He argued that a retired judge could not simply be expected to continue performing judicial duties without a contractual arrangement and remuneration.
Adv Makara also disputed the reported scale of the backlog attributed to his client, saying an audit conducted before the first High Court hearing had established that the number of outstanding judgments was significantly lower than the approximately 120 initially cited.
According to him, some cases had already been completed, with judgments awaiting Justice Monapathi’s signature, while others were part-heard.
The audit, he said, established that about 60 judgments remained outstanding and could be delivered within a reasonable period.
“We were looking at the period of at least nine months for the remaining work to be completed,” he said.
Adv Makara further argued that the Chief Justice could not unilaterally withhold his client’s terminal benefits, maintaining that the Public Service Commission would have to concur if the decision was based on alleged misconduct.
“Chief Justice cannot continue to withhold his terminal benefits unless the Public Service Commission has concurred that the said judge was found in misconduct. The Chief Justice has no power to withhold his terminal benefits,” he argued.
He proposed that Justice Monapathi be given a stipulated period to complete the outstanding judgments, warning that failure to meet the deadline should result in contempt of court proceedings.
“If he doesn’t finish up the work in stipulated timelines he must be found in contempt of court,” Adv Makara said.
However, Adv Rudie Cronje, representing Justice Sakoane, opposed the appeal, arguing that judicial officers were not public servants and therefore could not be governed by the Public Service Act in the manner suggested by Justice Monapathi’s legal team.
Adv Cronje relied on Section 121 of the Constitution, arguing that judicial officers did not fall under the control of the Public Service Commission in the manner proposed by the appellant.
He submitted that Justice Monapathi was constitutionally obliged to complete the work on his desk before vacating office, regardless of whether he had formally reached retirement age.
Adv Cronje further argued that the Constitution did not provide for additional remuneration for a judge to complete work left unfinished during his tenure.
“The Constitution does not provide that there must be remuneration for one to finish up the work left. He cannot be expecting to get paid for the work he was hired to do and failed to complete. He was hired to listen to cases and deliver judgments and as a judge before he retires he had an obligation to complete the matters before him, not to expect to be paid to do that,” he argued.
He said a key concern was whether Justice Monapathi would still be able to complete the outstanding judgments if his appeal succeeded.
“The problematic part of this case is to have certainty on the case where appeal succeeds will he be able to finish off the work before him,” Adv Cronje said.
The Court of Appeal is expected to deliver its judgment on 13 November 2026.