…but orders him to clear judicial backlog within eight months
Moorosi Tsiane
RETIRED High Court Judge Tšeliso Monapathi has scored a major victory in his long-running pension battle after the Court of Appeal ruled that Chief Justice Sakoane Sakoane had no legal authority to withhold his retirement benefits over outstanding judgments he left behind.
In a resounding ruling delivered on Friday, the apex court ordered the Specified Officers Defined Contribution Pension Fund to release Justice Monapathi’s pension benefits, overturning an earlier Constitutional Court decision that had found him constitutionally obliged to complete judicial work outstanding at the time of his retirement.
The dispute centred on whether Justice Sakoane could withhold Justice Monapathi’s terminal benefits until he had cleared a backlog of 128 reserved judgments and 11 part-heard cases accumulated during his tenure on the High Court bench.
Justice Monapathi reached the mandatory retirement age in August 2024, leaving behind the 139 outstanding matters.
He subsequently approached the Constitutional Court, where his case was heard by a panel comprising Justices Mankhabimba Mkandawire of Malawi, Sylvester Mainga of Namibia and David Mangota of Zimbabwe.
In a judgment delivered on 31 March 2026, the Constitutional Court ruled that Justice Monapathi remained constitutionally obliged to complete the outstanding judicial work despite having reached retirement age.
Dissatisfied with the decision, he escalated the matter to the Court of Appeal, seeking to overturn the ruling and challenge the withholding of his retirement benefits.
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, Mabatšoeneng Hlaele and Tekane Maqakachane.
Through his lawyer, Advocate (Adv) Mocheta Makara, Justice Monapathi argued that Justice Sakoane had no legal authority to withhold his client’s retirement benefits as a quick-fix solution to the judiciary’s backlog crisis.
He maintained that the Chief Justice could not make payment of terminal benefits conditional on the completion of outstanding judgments.
Adv Makara accused Chief Justice Sakoane of conflating two distinct issues: a retired judge’s constitutional obligation to complete outstanding judicial work and his entitlement to receive retirement benefits.
He argued that the Chief Justice was effectively using the pension dispute to address the backlog through what he described as a misinterpretation of the law.
However, Adv Rudie Cronje, representing Chief Justice Sakoane, opposed the appeal, arguing that judicial officers were not public servants and could not be controlled or governed by the Public Service Act in the manner suggested by Justice Monapathi’s legal team.
Relying on Section 121 of the Constitution, Adv Cronje submitted that judicial officers did not fall under the control of the Public Service Commission in the manner proposed by the appellant.
He argued that Justice Monapathi was constitutionally obliged to complete the judicial work on his desk before leaving office, regardless of whether he had formally attained retirement age.
Adv Cronje further contended that the Constitution did not provide for additional remuneration to judges who completed work left unfinished during their tenure.
But the majority of the Court of Appeal sided with Justice Monapathi, setting aside the Constitutional Court order and directing that his pension benefits be released.
Delivering the judgment, Justice Mosito announced that the court had produced two judgments: a majority ruling and a dissenting opinion by Justice Maqakachane.
In the majority judgment, supported by Justices van der Westhuizen, Mathaba and Hlaele, the court ordered the Specified Officers Defined Contribution Pension Fund to release Justice Monapathi’s pension benefits in accordance with the Specified Officers Defined Contribution Pension Fund Act of 2011.
However, the court made it clear that the pension victory did not absolve the retired judge of his outstanding judicial responsibilities.
It directed Justice Monapathi to submit a comprehensive timetable to the Registrar within five days, identifying all reserved judgments and part-heard proceedings commenced before his retirement, together with proposed completion dates.
The timetable must provide for the outstanding work to be completed within a period not exceeding eight months.
The Registrar, under the direction of the Chief Justice, was ordered to review the identified matters, notify affected parties and make lawful arrangements for the reassignment, rehearing or other disposal of cases that Justice Monapathi could not complete.
The court further directed that periodic progress reports be submitted on matters lawfully remaining with him.
In another important aspect of the ruling, the court stipulated that Justice Monapathi would not be entitled to additional remuneration for performing the outstanding judicial duties under Section 121(2) of the Constitution.
He would also have to waive any claim to a dedicated official vehicle or exclusive use of a judge’s chambers.
Nevertheless, the Registrar was directed to make appropriate administrative arrangements to ensure that Justice Monapathi had suitable working space, access to relevant court records, the services of a judge’s clerk and reasonable secretarial assistance to enable him to discharge his outstanding obligations.
The court made no order as to costs.
Justice Maqakachane, however, disagreed with the majority and delivered a dissenting judgment proposing a different approach to the retired judge’s constitutional status.
He argued that Section 121(2) of the Constitution was not self-executing and that a judge who attained the prescribed retirement age could only continue performing judicial duties in specified proceedings if formally retained in office by His Majesty acting on the advice of the Judicial Service Commission (JSC).
He noted that no such instrument had been issued in Justice Monapathi’s case.
Consequently, he proposed that the court declare that Justice Monapathi had vacated the office of Puisne Judge on 4 August 2024 by operation of Section 121(1) of the Constitution.
He further proposed that Justice Monapathi be declared to have no continuing judicial office and, therefore, no authority to deliver judgments or take any other judicial steps in the outstanding reserved and part-heard matters identified in Chief Justice Sakoane’s correspondence of 26 July 2024.
On the pension dispute, however, Justice Maqakachane agreed with the majority that the Chief Justice’s decision to withhold the retirement benefits was unlawful and should be set aside.
He proposed that the respondents be directed to process and pay the benefits in accordance with the Specified Officers Defined Contribution Pension Fund Act of 2011.
His proposed order also required the Registrar, acting under the Chief Justice’s direction, to ensure that the outstanding matters were reassigned to serving judges within 30 days, with affected parties notified and the cases given priority on the court roll.
He further stated that this would be without prejudice to any appointment that could lawfully be made under Section 120(5) of the Constitution.
However, the majority judgment prevailed, meaning Justice Monapathi’s pension benefits must be released while arrangements are made for the outstanding judicial work to be dealt with in accordance with the court’s directions.