No frontrunner for appeal court
EASTERN Cape High Court Judge Clive Plasket and South Gauteng High Court Judge Halima Saldulker are widely viewed as most likely to get the nod for appointment to the Supreme Court of Appeal.
The Judicial Service Commission (JSC) is looking to fill two vacancies on the appeal court — a task as important as (and perhaps more difficult than) recommendations for the Constitutional Court. For now, the Supreme Court of Appeal is still the highest appellate court on nonconstitutional matters. Its judges must have legal expertise that is both deep and broad.
Its judgments bind and guide all lower courts — they should not only be right in outcome but their reasoning must be rigorous and clearly understandable. The workload at the Supreme Court of Appeal is also famously intense.
According to one of his nomination letters, Judge Plasket, appointed as a judge in 2003, has already acted for 18 months on the appeal court. And despite being overlooked last year (a decision criticised at the time), he is widely regarded as “clear appeal court material”. A former academic, he is seen as a scholarly judge — widely published and an expert on administrative and constitutional law.
His CV sets out about 69 reported judgments — a remarkable number from a high court judge based in a division that is neither a commercial, nor an administrative hub.
A human rights lawyer since the 1980s, Judge Plasket was also an active member of Lawyers for Human Rights and the National Association of Democratic Lawyers.
Judge Saldulker was appointed as a judge in 2004, having been an advocate at the Johannesburg Bar since 1988. As an advocate, she was also an activist — first in the Black Advocates Forum and later in Advocates for Transformation.
With the JSC preoccupied with making more women appointments, her being the sole black and sole woman candidate for the appeal court will be a definite advantage. If appointed, she would also be the only Indian woman on the appeal court bench. However, this is no guarantee. The JSC has in the past overlooked black women candidates when making appeal court appointments.
Judge Saldulker might face questions on the few reported judgments she has to her name. In nine years on the Johannesburg bench — a court that deals with the cutting edge of the law — a search of the law reports shows less than 10 reported judgments.
The other candidate, South Gauteng High Court Judge Nigel Willis, is the wild card of the three.
He is the longest-serving, having been appointed in 1998. His questionnaire refers to more than 200 judgments handed down — many of them ground-breaking.
Judges cannot go on interpreting the constitution in defiance of economic laws and principles that developed the modern world
However, he has a maverick streak and has, in judgments and in previous JSC interviews, openly disagreed with the way appellate courts have dealt with housing rights and eviction law.
In his 2008 and 2009 interviews for the Constitutional Court, he told the JSC that he disagreed with the Constitutional Court’s seminal judgment in the Grootboom case, a judgment lauded by human rights lawyers around the globe.
In his 2008 interview, facing an apparently steaming George Bizos SC, Judge Willis stuck to his guns, saying the judgment was unenforceable. In the 2009 interview, he told former chief justice Pius Langa that Grootboom was a “disaster”.
Then, in two extraordinary eviction judgments, one in 2010 and one last year, Judge Willis stormed onto the terrain of economic policy — an area most judges fear to tread — and enthused about “economic freedom” as a certain cause of economic prosperity.
For some, his honesty in pinning his colours to the mast was refreshing. After all, judges do have ideological views, they just don’t express them so overtly in judgments. In last year’s judgment, he even overtly praised the government’s national development plan.
All unusual enough for a judge. However, even more unusually, he used the two judgments to defend himself against a scathing rebuke by the Constitutional Court in another earlier eviction case, even suggesting that the highest court had not properly read the case record.
Rebukes by higher courts, even when they are unfair, are usually taken on the chin.
Judge Willis said the appeal courts’ approach to housing rights and evictions was “in defiance” of the “incontestable” law of supply and demand. He also referred to a strongly prevailing view at the JSC in favour of “judicial interventionism”.
It is permissible for a lower judge to disagree with a higher court’s approach, as long as he remains bound by it. But some senior lawyers believed he crossed the line in the 2010 judgment by throwing up his hands — “despondent and despairing” — and declining to decide the case before him because he was “definitely the wrong person” and because the “making of eviction orders is so fraught with difficulty”.
Last year’s judgment was criticised recently by the Mail & Guardian’s anonymous legal columnist, the “Serjeant at the Bar”, who questioned whether it was permissible for a judge to advocate “a normative legal framework that diverges from that of the constitution and the content given it by the Constitutional Court”.
Judge Willis hit back in a letter to the paper, saying if SA was to succeed, its judges could not go on interpreting the constitution “in defiance of economic laws and the constitutional principles that developed the modern world”.