Questionnaire for aspiring judges has gaps
THE Judicial Service Commission (JSC) will consider candidates to fill a key post this week: deputy judge president of the North Gauteng High Court, one of the busiest courts in SA.
But it is difficult to tell before the interviews whether any of the three candidates — Judges Aubrey Ledwaba, Lettie Molopa-Sethosa and Cynthia Pretorius — are up to the task. The standard JSC questionnaire filled in by the candidates does not address the administrative, management and leadership qualities required. The Pretoria court has a crippling caseload and deals with some of the most complex legal issues, being the seat of SA’s commercial and administrative hub.
It has a number of circuit courts travelling to far-flung rural areas in what was formerly the Transvaal and it has to serve a population with a diverse mix of languages. Many of the court’s practitioners want their cases heard in Afrikaans, while many of the judges do not speak Afrikaans — a sensitive issue.
The North Gauteng High Court deals with appeals from all the magistrates courts in the “northern provinces” and from the high court in Johannesburg. All of this is managed by the judge president and his deputy.
In Pretoria, this means keeping track of between 60 and 80 cases every day, says one senior lawyer. And that does not include assigning appeals.
When former deputy judge president Willem van der Merwe was interviewed for the post in 2010, he told the JSC that between 1987 and 2010 the civil case workload in the Gauteng division had risen by about 400%, while the number of judges had not increased. It is no wonder he starts work at 6am.
The deputy judge president must ensure that all the judges are busy, but not overloaded. He must be there to advise and troubleshoot. It is a leadership post, which is why traditionally judge president and deputy posts went to the longest-serving judges in the division.
In recent years, seniority has not been the only factor considered, but it is still important that a deputy judge president commands the respect of his peers. One thing that is covered by the questionnaire is the candidate’s date of appointment. There are, according to JSC statistics, at least 10 judges who have been on the Pretoria bench longer than Judge Ledwaba, who was appointed in 2005. Judges Molopa-Sethosa and Pretorius were appointed in 2006.
This does not necessarily mean the candidates do not command the respect of their colleagues. It means the public simply does not know, one way or another. Nor is there a way of gauging a candidate’s administrative and management skill.
The only question that may give a clue is where candidates are asked about outstanding judgments. After all, if they are struggling to manage their own caseload as ordinary judges, they might struggle even more to manage a whole division.
On this score, only Judge Pretorius has no outstanding judgments. In her questionnaire, Judge Molopa-Sethosa refers to two as outstanding, commenting she is “not sure when exactly (they were) reserved (both) files are at my home presently; but both were reserved in 2012 before June”.
Judge Ledwaba’s questionnaire also refers to two outstanding judgments, but says they will have been handed down by the time of the interview.
But this is an oblique way to ascertain a candidate’s overall efficiency. Perhaps a better way would be to ask whether in the past two years a candidate has reserved a judgment for more than a month, and if so, why. For example, Judge Ledwaba’s questionnaire discloses a case in which he took almost a year to deliver reasons for his order. But had he not regarded the case as “significant”, he would have been perfectly within his rights to say nothing about it.
It is true many of the shortcomings of the JSC’s questionnaires are made up for during the interview by the call for comments and by the presence of a candidate’s judge president. But perhaps it is time the JSC revisited the questionnaires, especially when candidates are up for leadership positions.