TIPPING THE SCALES
The JSC sat last week to consider candidates to fill vacancies on various senior court benches. All eyes have been on the Constitutional Court — but the lower courts are as critical to the rule of law
The Constitutional Court has announced the schedule for its fourth term in November. But who will preside over the 10 cases listed remains a mystery.
SA’s apex court currently has five vacancies on the bench, following the retirement of chief justice Mogoeng Mogoeng and two others on Monday. There is, at least, a shortlist of five for the vacancies left by Edwin Cameron and John Froneman in 2019 and 2020. But there’s no knowing when President Cyril Ramaphosa will announce their replacements.
After a week of interviews, the Judicial Service Commission (JSC) — the body that is integral to the appointment of almost all superior court judges, and which assesses claims of misconduct against them — has nominated candidates for various top courts.
It began with a rerun of interviews for the two historical Constitutional Court posts — a repeat of its April hearings, which were criticised by the Council for the Advancement of the SA Constitution (Casac). But despite a new round of interviews under a new chair — Mogoeng directed the April deliberations; acting chief justice Raymond Zondo oversaw this round — the JSC settled on the same five candidates: Gauteng high court judges Fayeeza Kathree-Setiloane and Jody Kollapen; Supreme Court of Appeal (SCA) judges Mahube Molemela and Rammaka Mathopo; and Competition Appeal Court acting judge Bashier Vally.
It is now up to Ramaphosa to decide which two will rise to the apex court — ideally before he sees to the appointment of the new chief justice and the two more recent Constitutional Court vacancies.
The JSC has yet to advertise the posts left vacant by the retirement of Chris Jafta and Sisi Khampepe, so those appointments will be a while yet. Three sources close to the process tell the FM they expect the interviews to take place only in six months, though one adds that a special sitting of the commission is not out of the question.
Casac, for one, is pressing for this. The organisation’s research officer, Dan Mafora, believes it’s important that the JSC meets soon, given the vacancies on the bench. “We hope that the JSC advertises those vacancies
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and that it convenes a special sitting before the end of the year to consider candidates,” he says.
Legal watchers expect the JSC to convene shortly in any case to interview the incoming chief justice. Ramaphosa is set to receive a shortlist of three to five names from an advisory panel on October 29, and decide on his preferred candidate. In all likelihood, it means the JSC will meet next month to interview the president’s pick — though neither the commission nor acting presidency spokesperson Tyrone Seale would be drawn on the matter.
For now, the public has until October 15 to lodge complaints about the candidates who’ve made it to the longlist of Ramaphosa’s advisory panel: Zondo, SCA president Mandisa Maya, Gauteng judge president Dunstan Mlambo, Western Cape judge president John Hlophe, public protector Busisiwe Mkhwebane and senior advocate Alan Nelson. (Prof Wallace Mgoqi was on the list but has reportedly declined the nomination.)
Political analyst Judith February is among those incensed by the inclusion of Hlophe and Mkhwebane on the longlist. “It is an insult to our collective intelligence that they think we cannot see this is a ruse to appease political actors,” she says.
Though she’s sure Hlophe and Mkhwebane’s names “will eventually be culled”, she is of the opinion they should never have made it onto the list in the first place.
Black Lawyers Association president Mashudu Kutama, in contrast, has no gripe with either candidate, even though they’re facing impeachment processes.
What it means: As with most aspects of SA society, politics and race have been at the forefront of the JSC’s deliberations
The JSC hearings for vacancies in other superior courts may not stoke the same anxieties or scrutiny as interviews for the Constitutional court, but they are as critical to the rule of law.
For most of last week, the JSC heard from would-be judges for high courts in the Eastern and Western Cape, Gauteng, Limpopo and Mpumalanga, as well as for specialist courts, including the Electoral Court. Now that the JSC has nominated judges for all but three of these positions, it’s really just a matter of Ramaphosa rubber-stamping their selection.
Viewed holistically, the latest round of interviews is a reflection of the issues impeding the administration of justice, challenges facing the legal profession and the difficulties in developing a nuanced judicial philosophy. Concerns raised in the process included the frustrating lag between verbal arguments and the handing down of decisions, persistent racism and sexism in the briefing patterns of private sector litigants, and the prevailing imperative for transformation.
Some interviewees, such as magistrate and high court nominee Antolize Lamminga, painted an alarming picture of the challenges that presiding officers face, including heavy caseloads and the lack of basic amenities at courthouses. But Lamminga withdrew her candidacy for the Mpumalanga bench, complaining that her interview for a Limpopo high court position, during which she was quizzed about a case she oversaw that didn’t go to trial for almost six years, was unfair.
Advocates Marisa Naudé-Odendaal and Thogomelani Tshidada, too, left the JSC unimpressed, and no candidate was selected for the Limpopo high court vacancy.
This is a concern for Mbekezeli Benjamin, a researcher with Judges Matter — which tracks judicial appointments in SA — given the province’s heavy workload.
But Nolitha Jali, secretary-general of the National Association of Democratic Lawyers, sees the decision to forgo appointment as a sign of the JSC’s high standards. “The nonappointment of candidates from Limpopo reflected a commitment of the JSC to appoint fit and proper persons,” she says.
Jali dismisses concerns raised by some legal practitioners — including two judges who spoke to the FM on condition of anonymity — about an apparent waning of enthusiasm among certain promising candidates from various demographics to put themselves through the judicial application process in the wake of the controversial JSC interviews in April.
“We view their concerns as baseless and irrational,” Jali says, asserting that there’s no political influence on the JSC, which counts politicians among its 23 commissioners.
In Benjamin’s view, the inclusion of politicians on the commission allows for a wider perspective. “Politicians sometimes bring nuance to an issue [where] lawyers sometimes have a blind spot,” he says.
But Jali believes current scrutiny of the JSC is a reflection of racist attitudes. And, she says, it’s unfortunate that doubts have been cast on the JSC’s decision-making process.
In an apparent reference to Gauteng high court judge David Unterhalter, who was overlooked for the Constitutional Court, she says:
“It is unfortunate that once a certain white candidate is not appointed, then the JSC is [perceived as] wrong or is put to question. We disagree and view such an attitude as racist. There should be appointment of more black people to the bench.”
Singling out specific candidates, Benjamin believes advocate Keitumetse Mogale, a contender for the Gauteng bench, and attorney Stephen Gough, who was interviewed for the Eastern Cape high court, fared the worst.
Mogale, for example, was floored by Zondo’s question on the Plascon-Evans rule, which is applied in opposed motion matters.
Though she insisted she knew the rule, she couldn’t explain it, and asked Zondo for an example.
“If you are familiar with it you ought not to require any further information. Once I say ‘Plascon-Evans’, you should know what it is,” Zondo replied.
She seemed equally at sea when Law Society of SA vice-president Mvuzo Notyesi asked about parliamentary sovereignty and constitutional supremacy.
“Yoh,” a bewildered Mogale began. “I think constitutional supremacy deals with the constitution. I don’t know. And the parliament is where the rules are made. I’m not sure.”
Zondo sighed before inviting further questions from the commission.
Gough, meanwhile, struggled to explain basic questions about black lawyers he trained in his nearly 40 years of legal practice.
On the other end of the spectrum, Benjamin believes senior advocate Susannah Cowen and Gauteng high court judge Norman Manoim fared excellently. “Both candidates have stellar track records, but it was also clear that they invested a lot in preparation,” he says.
By and large, Benjamin and Jali agree that the calibre of candidates was high.
But it’s not entirely clear what yardstick the JSC uses to assess candidates, regardless of which court they’re interviewing for. And because deliberations are closed, there’s no knowing if these standards are applied uniformly.
“We think the first task towards improvement is for the JSC to publish written criteria by which it selects judges,” says Benjamin. “This would ensure that all commissioners understand and cohere on their task.”
Meanwhile, Mogoeng’s term drew to a close on Monday. Given his absence from the bench since May, it ended not so much with a bang as with a whimper. Ramaphosa hailed the retired jurist for providing “outstanding service and leadership” during a challenging decade, and lauded him for judicial integrity and resilience.
The IFP, too, thanked Mogoeng for his service. “[His] leadership inspired a judiciary that was fearless in holding those in power to account and empathetic to the plight of individuals and groups in our society,” said IFP spokesperson Mkhuleko Hlengwa.
For his part, the former chief justice would appear to be occupying himself with a new venture: he’s travelling the country, offering prophesies about “an unprecedented economic turnaround”, and stating: “The devil knows he will not survive what’s coming.”
But while he seems to have traded the bench for the pulpit, all eyes are on the seat he’s just vacated, and the process to find his replacement.
The presidency’s Seale insists Ramaphosa means to be thorough and inclusive. The president will, he says, “make the appointment once the eminent panel has completed its work and the consultations required by the constitution have taken place”.
The first task towards improvement is for the JSC to publish written criteria by which it selects judges
Mbekezeli Benjamin