The dark world OF JU­DI­CIAL POL­I­TICS

Is­sues of nepo­tism, favouritism and fac­tion­al­ism colour se­lec­tion process of can­di­dates stand­ing for va­cant posts

CityPress - - News - NIREN TOLSI news@city­press.co.za The judges who were ap­pointed this week: Judge Selby Mbe­nenge Ndu­miso Jaji; Mbulelo Jol­wana Philip Loub­ser SC Taswell Pa­pier; Mush­tak Parker; Ad­vo­cate Mark Sher SC; Derek Wille

As the first day of the Ju­di­cial Ser­vice Com­mis­sion’s (JSC’s) in­ter­views of judges crept into the even­ing, Eco­nomic Free­dom Fight­ers leader Julius Malema’s face dark­ened with the en­croach­ing night. De­scrib­ing what he thought was an ex­am­ple of “nepo­tism”, “fac­tion­al­ism” and at­tempts to make ju­di­cial ap­point­ments out­side of the “due process” of the com­mis­sion’s work, he thun­dered: “We are not some vil­lage un­der the tree!”

What Malema was re­fer­ring to was the star­tling rev­e­la­tions dur­ing North­ern Cape Judge Bulelwa Pakati’s in­ter­view for the va­cant deputy judge pres­i­dent po­si­tion in that divi­sion.

The al­le­ga­tions re­lated to the, un­til then, un­re­vealed al­leged hand of for­mer North­ern Cape judge pres­i­dent Frans Kgomo, who re­tired ear­lier this year, in ap­point­ments to that court.

Kgomo, who had sat on the com­mis­sion un­til his re­tire­ment, had writ­ten to the JSC re­gard­ing Pakati’s can­di­da­ture. In that let­ter he went into de­tail about Pakati’s short­com­ings, de­scrib­ing her as some­one who “can be very moody and aloof” and who has been “shown to make ele­men­tary but far-reach­ing mis­takes” in her judg­ments.

Pakati said she was “shocked” by Kgomo’s let­ter since the al­le­ga­tions were un­true. She said she had al­ways con­sid­ered her­self to have a good re­la­tion­ship with her for­mer boss – and that he was her “men­tor”.

In ini­tially try­ing to re­spond to the al­le­ga­tions Pakati broke down, need­ing a few min­utes to gather her­self.

Pakati was up against her North­ern Cape col­league, Judge Vi­o­let Phat­shoane, who had been un­suc­cess­fully in­ter­viewed for the deputy judge pres­i­dent po­si­tion in April.

Then, Kgomo had sim­i­larly writ­ten a let­ter to the com­mis­sion deal­ing with Judge Ce­cile Wil­liams’s can­di­da­ture. City Press un­der­stands that Kgomo’s ap­par­ently crit­i­cal let­ter led to Wil­liams with­draw­ing her ap­pli­ca­tion on the eve of her in­ter­view.

Later, as com­mis­sion­ers Si­fiso Msomi and Malema in­ter­ro­gated Pakati on the pos­si­ble mo­ti­va­tion be­hind Kgomo’s let­ter, she re­vealed the se­vere di­vi­sions within the North­ern Cape High Court — which, she said, ap­peared to be of Kgomo’s mak­ing.

Pakati said she had not ap­plied for the deputy judge pres­i­dent po­si­tion ear­lier this year be­cause Kgomo had in­di­cated he “had hunted” Phat­shoane. “I did not ap­ply in April be­cause I knew that JP [Kgomo] said this is the per­son he wanted, so I knew it was use­less,” said Pakati.

Re­spond­ing to Msomi’s ques­tion about whether there was a per­cep­tion in the North­ern Cape ju­di­ciary that Phat­shoane was “the anointed one”, Pakati said she be­lieved this was the case.

Kgomo had, ac­cord­ing to Pakati, called her in April af­ter Phat­shoane’s un­suc­cess­ful in­ter­view for the judge pres­i­dent and deputy judge pres­i­dent po­si­tions. Pakati told the com­mis­sion that Kgomo told her at the time that “Phat­shoane shouldn’t worry, be­cause even if she goes [out], her po­si­tion will be se­cured [later]”.

Kgomo’s in­ter­ven­tion was not ad­dressed by the com­mis­sion dur­ing Phat­shoane’s in­ter­view.

The con­tro­versy did, how­ever, cast a spot­light on the ap­par­ently seedy back-door ma­noeu­vring in the world of ju­di­cial pol­i­tics.

At times this week, cer­tain can­di­dates ap­peared .

JUDGE PRES­I­DENT FOR THE EASTERN CAPE DIVI­SION OF THE HIGH COURT

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EASTERN CAPE DIVI­SION OF THE HIGH COURT

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FREE STATE DIVI­SION OF THE HIGH COURT

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GAUT­ENG DIVI­SION OF THE HIGH COURT

Colleen Col­lis; Ad­vo­cate Nor­man Davis SC; Malet­satsi Ma­halelo; Ad­vo­cate Nana Makhubele SC; Cas­sim Sardi­walla; Ad­vo­cate David Un­ter­hal­ter SC; Ad­vo­cate Cor­nelius van der Westhuizen SC

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WEST­ERN CAPE DIVI­SION OF THE HIGH COURT

shoo-ins for po­si­tions de­spite not un­der­go­ing a rig­or­ous ex­am­i­na­tion of their ca­pa­bil­i­ties. Their in­di­vid­ual ju­di­cial phi­los­o­phy and how these kept time with the trans­for­ma­tive vi­sion of the Con­sti­tu­tion was al­most com­pletely ig­nored dur­ing in­ter­views. So was any dis­cus­sion around ju­rispru­dence, aside from Com­mis­sioner Msomi ask­ing can­di­dates to pick out their favourite Con­sti­tu­tional Court judg­ment from re­cent years and dis­cuss how these proved prece­dentset­ting.

Eastern Cape Act­ing Judge Pres­i­dent Za­mani Nh­langulela, for ex­am­ple, ap­peared to be lead­ing at­tor­ney Mbulelo Jol­wana with a series of soft ques­tions dur­ing his in­ter­views.

Nh­langulela had not asked the other can­di­dates sim­i­lar ques­tions, which al­lowed Jol­wana to wax lyri­cal on a range of sub­jects, in­clud­ing case flow man­age­ment, which is a favourite sub­ject of Chief Jus­tice Mo­go­eng Mo­go­eng.

While an ap­par­ently adept lawyer, Jol­wana has had only three months act­ing ex­pe­ri­ence in the high court. Most of his le­gal work has cen­tred on con­veyanc­ing and he has al­most no ex­pe­ri­ence in lit­i­gat­ing com­mer­cial law or con­sti­tu­tional law cases, among other ar­eas.

Nev­er­the­less, Jol­wana was suc­cess­fully in­ter­viewed for a po­si­tion at the Mthatha seat of the Eastern Cape High Court. He was asked by Nh­langulela to tell the com­mis­sion about his act­ing stints there, which in­cluded fill­ing in for out-of-town judges on Fri­day af­ter­noons, so that they could leave early to go home.

Jol­wana told the com­mis­sion that he had also car­ried Nh­langulela’s prac­tice while the lat­ter was act­ing in the high court – a po­ten­tial con­flict of in­ter­est which was de­clared in a lead­ing ques­tion, rather than an ad­mis­sion – and de­scribed his in­ter­ven­tion as an al­tru­ism which en­sured peo­ple in Nh­langulela’s law firm re­tained their jobs.

Some of the ques­tions by Nh­langulela, who is usu­ally the deputy judge pres­i­dent at the Mthatha High Court, sug­gested that he him­self was not very good at ad­min­is­tra­tion or keep­ing his judges in check. It also re­flected an ob­vi­ous bias to­wards par­tic­u­lar can­di­dates.

None of these ap­peared to con­cern the other com­mis­sion­ers. But it should have.

If nepo­tism and favouritism taint the se­lec­tion process for judges, it will weaken what, at the mo­ment, is the strong­est of the three arms of gov­ern­ment at a pre­car­i­ous time for South Africa’s democ­racy and its in­sti­tu­tions.

What do you feel about the cur­rent se­lec­tion process? Are you con­cerned by the ac­cu­sa­tions of favouritism and nepo­tism?

SMS us on 35697 us­ing the key­word JUDGE and tell us what you think. In­clude your name and prov­ince. SMSes cost R1.50

PHOTO: CHARNE KEMP

MED­DLING For­mer judge pres­i­dent of the North­ern Cape Frans Kgomo is al­leged to have at­tempted to in­flu­ence the Ju­di­cial Ser­vice Com­mis­sion’s ap­point­ments to the North­ern Cape High Court

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