SUPERIOR COURTS ACT: MK TO TABLE BILL LIMITING SECTION 47 GATEKEEPING

SUPERIOR COURTS ACT: MK TO TABLE BILL LIMITING SECTION 47 GATEKEEPING

• 28 August 2026
• Justice & Constitutional Development
• SA Legal Academy

uMkhonto weSizwe (MK) Party MP Mzwanele Manyi has announced his intention to table a Superior Courts Amendment Bill in Parliament with the aim of limiting the application of the 2013 principal statute’s section 47 to ‘civil proceedings related to judicial activities’. The recently gazetted procedurally required pre-tabling executive summary of the legislation envisaged also calls for input by 27 September 2026 on what is now proposed.

According to the summary, section 47’s purpose is to avoid judges – in executing their judicial functions – being ‘inhibited by fear of being dragged to Court unnecessarily over their judgements’. As a gatekeeping mechanism, section 47 requires prior consent from the head of a superior court for civil proceedings to be instituted against any judge serving in that court.

In Manyi’s view, the Act should be amended to provide that ‘judicial activity’ is understood to expressly exclude participation in:

• a commission of inquiry
• an independent panel
• a parliamentary process
• a disciplinary tribunal
• an internal workplace labour process
• ‘a process considering compliance with a code of ethics or other norms or standards associated with a profession’, and
• arbitration, mediation, administrative investigation or ‘any other institution or process the purpose of which is not the execution of judicial authority’.

Manyi asserts that, ‘save for a few, such activities are extra-judicial in nature’ and should not ‘attract the procedural protections contemplated’.

While participation in a disciplinary tribunal, workplace labour process, compliance process, arbitration, mediation or administrative investigation ‘may perhaps be viewed as a judicial function in that these activities result in decisions that require the exercise of judicial authority’, in Manyi’s view they ‘are not exclusively headed by judges’ – hence his proposal to insert provisions in the Act expressly excluding them.

The reasoning behind this proposal is that ‘no provision similar to section 47 exists for the other professionals who may head these activities’. As a result, should section 47 protection be applied to judges in that context it would constitute ‘unfair treatment to such other professionals’. This is noting sub-section 9(1) of the Constitution, which provides that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’.

• explanatory summary
• Superior Courts Act, updated (SAFLII)

Published by SA Legal Academy Policy Watch

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