…as retired judge challenges ruling that his benefits must wait for 128 judgements
By Moorosi Tsiane
RETIRED High Court Judge Tšeliso Monapathi has taken his pension dispute to the Court of Appeal, challenging a Constitutional Court ruling that he must complete 128 reserved judgments and 11 part-heard cases before receiving his full retirement benefits.
Justice Monapathi has appealed against the Constitutional Court’s 31 March 2026 judgement, which found that he remained constitutionally obliged to complete the outstanding judicial work he left behind when he reached the mandatory retirement age of 75 in August 2024.
At the heart of the latest legal battle is whether Chief Justice Sakoane Sakoane was entitled to withhold the processing of Justice Monapathi’s terminal benefits until he had completed the backlog of unfinished cases accumulated during his tenure on the High Court bench.
In his appeal papers, Justice Monapathi argues that the Constitutional Court misdirected itself by finding that the Chief Justice had the power to withhold his terminal benefits despite him 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.
He further contends that the Constitutional Court erred in finding that withholding his benefits did not amount to interference with his judicial independence.
“The learned Judges erred and misdirected themselves by finding that withholding of the Appellant’s terminal benefits does not constitute a direct interference with his independence as a judge.”
Justice Monapathi also challenges the court’s finding that payment of his terminal benefits could be linked to the completion of his outstanding judicial duties.
“The Court erred and misdirected itself by holding that payment of terminal benefits is in any manner contingent on fulfilment of judicial work despite holding that a judge may have the right to resign under section 152 of the Constitution.
“In effect, terminal benefits are due on resignation or retirement and the question of continuing judicial work would bear no effect on terminal benefits.”
The appeal is the latest chapter in a long-running dispute between Justice Monapathi and Justice Sakoane over the former’s unfinished judgments.
Justice Monapathi approached the Constitutional Court last year after the Chief Justice refused to process his retirement benefits until he had completed the outstanding cases.
He argued that the decision was unlawful and unconstitutional and amounted to forced labour, insisting that he had retired by operation of law after reaching the age of 75 and was therefore entitled to receive his benefits.
The matter was heard by a three-member Constitutional Court bench comprising Justice Mankhabimba Mkandwire of Malawi, Justice Sylvester Mainga of Namibia and Justice David Mangota of Zimbabwe.
Justice Monapathi was represented by Advocate Mocheta Makara, while Advocate Rudie Cronje represented the Chief Justice.
Adv Makara argued that Section 151 of the Constitution entitled a retired judge to his benefits. He also argued that if Justice Monapathi had neglected his duties while still serving as a judge, the appropriate route would have been disciplinary proceedings.
Adv Makara further submitted that Justice Monapathi was willing to complete his outstanding judgments, but argued that he could not be expected to continue working without remuneration.
However, the State strongly opposed the application, with Adv Cronje arguing that judicial independence could not be divorced from judicial accountability.
He submitted that Justice Monapathi remained responsible for completing the cases assigned to him and warned that allowing judges to leave behind unfinished work while accessing their full retirement benefits would create a dangerous precedent.
The Constitutional Court ultimately sided largely with the Chief Justice.
The court found that Justice Monapathi was under a constitutional obligation to complete the cases he had started and that the Chief Justice’s directive requiring him to do so before accessing his pension benefits was lawful.
It also took a dim view of the extraordinary backlog of judgments, some of which had allegedly remained outstanding for decades, describing the delay in delivering judgments as a serious failure of constitutional duty.
However, the court ordered that Justice Monapathi should receive the benefits of a Puisne Judge for the period during which he would be finalising the outstanding cases.
“In the event that applicant complies with section 121 (2), he should be given the benefits of a Puisne Judge for the period he will be finalising the pending cases. The rest of the prayers are dismissed,” the court concluded.
The matter will be heard on 12 October.
