JUDICIAL SERVICE COMMISSION: JSC leaves key judicial leadership posts unfilled, raising succession concerns

The Eastern Cape High Court has operated for almost three years without a permanently appointed Judge President after the incumbent, Selby Mbenenge, went on special leave in late 2023 following a sexual harassment complaint by his court secretary. In April 2026, the Judicial Service Commission (JSC) overturned a tribunal ruling to find Mbenenge guilty of gross misconduct for sexual harassment, clearing the way for potential impeachment proceedings.

One of the two Eastern Cape Deputy Judge Presidents, Zamani Nhlangulela, was appointed acting Judge President, but in the first half of 2025 the remaining Deputy Judge President, David van Zyl, retired, creating a Deputy Judge President vacancy.

After the Deputy Judge President post remained unfilled in the October 2025 JSC interviews, a series of acting appointments unfolded as the Eastern Cape courts, particularly Mthatha, battled with slow case finalisation amid claims of bribery to secure court dates. Three of the four judges interviewed for the post in this round had acted as Deputy Judge President.

“It is an extraordinary situation for a leadership position not to be filled after two attempts over two successive years,” said Mbekezeli Benjamin, a research and advocacy officer at Judges Matter. He suggested appointing one acting Deputy Judge President, rather than continuing a game of musical chairs, to address concerns about long-term lack of leadership stability.

“We would also urge the JSC to prioritise this vacancy and schedule it for the April 2027 sitting, instead of waiting until October 2027,” he said.

The additional twist is the litigation unfolding as Mbenenge has taken on review the JSC’s finding of impeachable gross misconduct against him.

News24 reports that minutes of JSC deliberations made available for the court proceedings show how the commission was persuaded to overturn the Judicial Conduct Tribunal’s findings of a lesser misconduct count. Mbenenge successfully obtained an interdict after the JSC in late July 2026 wrote to President Cyril Ramaphosa asking him to suspend the Eastern Cape Judge President pending parliamentary impeachment proceedings.

A predictable situation

In contrast to the unforeseen leadership challenges facing the Eastern Cape judiciary, the situation at the Labour Court and Labour Appeal Court was entirely predictable. Knowing for years that Judge President Mogomotsi Molahlehi was approaching retirement, the JSC nevertheless opted not to fill the vacant Deputy Judge President position. Consequently, these specialist courts face an abrupt absence of permanent leadership within weeks.

Benjamin has described this situation as “extraordinary”, although, given concerns raised about both candidates in the interviews, it was not surprising that neither was recommended.

“It seems to us to be a dereliction of duty to wait until incumbents have left their positions before scheduling interviews,” he told Daily Maverick, adding that between 2022 and 2027 the Labour Court would have lost more than 100 years of judicial experience. “This once again underscores Judges Matter’s view that the JSC should start playing a more proactive, ‘talent management’ role in relation to the judiciary.”

The JSC’s recommendations for the Labour Appeal Court underscore the court's growing staffing pressures. By recommending judges Benita Whitcher and Connie Prinsloo – who have served on the Labour Court bench since 2015 and 2016, respectively – the JSC has inadvertently created two new vacancies at the Labour Court.

Two existing vacancies in the Johannesburg and Durban labour courts were recommended to be filled with acting judges.

Case backlog

This shuffle underscores how the specialist division, which has operated with an average of 13 judges for the whole of South Africa, remains stuck with too few judges and a stubborn case backlog.

It also sheds light on the JSC’s questioning of Judge Mokgere Masipa over her choice to seek a Supreme Court of Appeal post rather than one in the labour courts. Judge Masipa defended her decision by advocating for well-rounded judicial experience, telling the commission that they “should not see a labour lawyer, but a judge”.

It was one of the more pointed questions in the occasionally acerbic tone that marked this round of JSC interviews. But the questioning did not play to the political gallery, nor did it inflame tempers, as had often happened in recent years.

Perhaps it was the absence of EFF leader Julius Malema, whose commission membership is being challenged in court. The Helen Suzman Foundation on 11 November will argue that Parliament must review his JSC membership following his hate speech and firearm-related convictions; National Assembly Speaker Thoko Didiza has opposed the litigation, saying nothing in law sets out such steps.

That could change with the new Consolidated Criteria, Guidelines and Procedures adopted in this October JSC session, available for public comment until 30 November ahead of finalisation. Crucially, the new rules allow the JSC to “request the relevant designating body or appointing power to remove, replace or discipline the member” in breach of ethical and legal standards. Such designating bodies include Parliament, the Presidency and legal professional bodies.

While the Consolidated Criteria, Guidelines and Procedures will help address the commission’s own conduct pickles, failing to fill the Eastern Cape and Labour Court Deputy Judge President posts leaves unanswered serious questions about judicial stability and succession. DM