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Fact check — Did the Supreme Court of Appeal violate the Constitution?

Fact check — Did the Supreme Court of Appeal violate the Constitution?
The Supreme Court of Appeal of South Africa in Bloemfontein. (Photo: Wikimedia)

An opinion piece on the IOL news website at the beginning of March bore the headline, presented as fact: ‘Supreme Court of Appeal violated Section 174 of the Constitution.’


Is this accurate?

The opinion piece in question was written by Sizwe Dlamini, the head of Independent Newspapers’ investigative unit, the Falcons. 

It is fair to assume that Dlamini may have not written the headline of the article, as often this task falls to subeditors rather than journalists.

But in the article he repeats the claim that the Supreme Court of Appeal may have violated the Constitution – by fielding an all-white bench of judges to hear a recent case.

The case in question involved Independent Media’s holding company, the Sekunjalo group, owned by businessman Iqbal Survé. 

It’s worth noting that Dlamini does not mention in the article that the news website he is writing for is part of the Sekunjalo stable. This disclosure would ordinarily be best practice in terms of media ethics.

This legal saga started when Nedbank became one of a total of reportedly 28 banks to close Sekunjalo’s accounts after the findings of the Mpati Commission of Inquiry report.

That commission looked into wrongdoing at the Public Investment Corporation and found dodgy aspects surrounding the PIC’s investment of R4.3-billion into a Surve-owned tech company whose shares almost immediately lost 90% of their value.

Sekunjalo initially succeeded in winning an Equality Court judgment that Nedbank had to keep its accounts open, but this was overturned by the Supreme Court of Appeal in December 2023, in a scathing judgment which dismissed the idea that Sekunjalo’s accounts were being closed due to racial discrimination. 

Since then, Independent Media has been pushing the claim that this judgment was questionable because the bench of judges who decided the matter was all-white.

A similar opinion piece was tweeted by IOL’s X account in January 2024 alongside a graphic which claimed: “Outcry over SCA’s All-White Bench in Discrimination Case.”

A screenshot of a tweet by IOL news regarding the racial composition of the Supreme Court of Appeal.

A screenshot of a tweet by IOL news regarding the racial composition of the Supreme Court of Appeal. (Screenshot: X)

The part of the Constitution which Independent claims may have been violated is Section 174 (2), which reads: 

“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

According to the Supreme Court of Appeal website, there are currently 23 judges on the bench. 

As far as we can establish, six of these are white and 17 are black, constitutionally speaking. Some might argue that just more than a quarter white judges is an overrepresentation based on population figures, but it is clear that a significant majority of Supreme Court judges are black.

The Sekunjalo matter was heard by five judges, which the Supreme Court website says is standard for matters of importance. 

Cases are allocated by the judge president, who in this case is Judge Mahube Molemela, and the composition of panels changes for each case. Allocations are normally made simply on the basis of which judge is available; the question of race would never come into it.

As such, there is simply no basis to Independent Media’s claims that the country’s second-highest court has violated the Constitution. 

This is a very serious allegation, which has the potential to put a major dent in public confidence in the judiciary. It is factually untrue. DM


Comments - Please in order to comment.

  • Colin Braude says:

    Why, when applying an apartheid lens, do the Surve’s and Davis’ judge by raw population figures.

    If the bench is to be “representative” should it not be on more suitable criteria, like the pool of legal graduates, school matriculants, senior counsel or some other “fit for purpose” measure? Had the ANC not sweethearted SADTU and applied ‘liberation through education’/’learn don’t burn’, the pool of educated/”fit for purpose” blacks would be more “representative”.

  • Kid Charlemagne says:

    Desperation is a dangerous dilemma. # Iqbal Surve

  • Ben Harper says:

    Have you seen the latest despicable piece from their writer Edmund Phiri who compares Karyn Maughan to a Nazi propogandist? To quote the opening lines: “Karyn Maughan, a News24 ‘journalist’, shares several striking similarities with Leni Riefenstahl, whose contributions to cinema were inextricably linked with the propaganda machinery of Nazi Germany under Joseph Goebbels.”

    They have sunk to the lowest form of excrement

    • JM McGill says:

      In the disclaiming postscript “The views expressed do not necessarily reflect the views of IOL or Independent Media” below his scandalous article, the word “necessarily” does a lot of heavy lifting..

  • Tim Price says:

    Are these sorry excuses for journalists, sorry, propagandists, not again under the sway of the press Ombud? If so, those affected should be laying complaints.

  • drew barrimore says:

    It was a sad day when the previously disadvantaged Iqbal Surve got other people’s money to buy the stable of newspapers which once set the benchmark for excellence (Cape Times, The Star, The Argus etc) and very quickly turned them into the unreadable trash they are now, all under the guise of ‘transformation’. The Independent Group is now China’s leading propaganda arm. The permanently IQ-disadvantaged Surve continues to tread this line. Oh and he was, next to God, closest to Mandela apparently.

  • Geoff Coles says:

    Close down the Independent…. orange overalls for Surve

  • Paul Hjul says:

    While it is clear that the Sekunjalo group is wilfully demonstrating contumen towards the courts and that the accusation being advanced here is vexatious, I am concerned at a situation in which benches composed at the SCA and full bench HC matters are not seen to be diverse benches. A risk of certain matters or classes of matters funnelling to certain judges is problematic – the security cases of the 80s issue for example.

    Moreover it will be problematic if certain judges are seen to take issue when the legal teams appearing before them are “all white” if full benches are composed that are similarly “all white”.

    I think two things need to be reiterated from the bench: 1) the composition and makeup of any bench and legal team must be determined in the ordinary course without consideration of race etc…, (2) it is legitimate to take a step back and assess whether the absence of diversity (gender, race etc…) in those participating in a judicial matter impairs on the proper administration of justice.

    Sizwe Dlamini’s peice is intellectually dishonest because it doesn’t critically delve on point 2 and it represents a form of point 1

  • Rae Earl says:

    What has happened to Surve’s claim he’s suing the government for R75 billion? This after plundering R4.3 billion from the government pension fund to finance his businesses. The man is a disgrace in every sense of the word and plays the race card at every opportunity when his highly questionable business methods are investigated. The banks are not stupid and probably every one of them has now closed his accounts.

  • Sydney Kaye says:

    I didn’t know about this, amd I don’t need to know this. Why do you bother with what IOL says and give credibility to their so called reporters. The Falcons indeed. Is this the same “investigative unit” that dug up the 10 baby story.

  • Rona van Niekerk says:

    Surely Section 174 refers to the appointment of judges to the Bench of the SCA, and not to the assigning of judges to hear individual cases?

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