Judge and jury

The latest contenders for the ConCourt

For the first time in over a year, the Judicial Service Commission (JSC) will meet this week to interview candidates for judicial appointment, including nine for two vacancies on the Constitutional Court, the country’s highest.

The JSC will spend two weeks interviewing candidates for various courts. Tomorrow and Tuesday will be dedicated to Constitutional Court interviews. Judges of the Constitutional Court are appointed differently from other judges, giving the president more say, although the JSC still plays a crucial role.

With other courts, the JSC recommends the candidates and the president must appoint them.

With Constitutional Court appointments, the JSC must give the president a list, with three more names than the number of vacancies, from which he makes his choice.

This round of Constitutional Court interviews will lead to President Cyril Ramaphosa’s second set of appointments. His first appointments, in September 2019, were Steven Majiedt and Zukisa Tshiqi. In October, three more vacancies will come up when chief justice Mogoeng Mogoeng and judges Sisi Khampepe and Chris Jafta retire.

When those appointments are made — including the all-important chief justice post — seven of the 11 judges of the Constitutional Court will have been appointed by Ramaphosa.

Not too much should be read into this. Although it is sometimes possible to detect patterns where certain judges will tend in certain directions on certain issues, SA does not have a tradition of its judges being easily labelled as aligned to a political party, an administration or even a broad ideological tradition such as “liberal” or “conservative”.

The composition of the JSC has also changed, with Ramaphosa announcing last year that he had replaced the president’s nominees to the JSC from those previously chosen by Jacob Zuma.

Also, for the Constitutional Court interviews only, the deputy president of the Supreme Court of Appeal, Xola Petse, will stand in for its president Mandisa Maya, who has recused herself because of a potential perception of bias with regard to one of the candidates, Gauteng high court judge Fayeeza Kathree-Setiloane, who during her acting stint at the Constitutional Court clashed with Maya’s daughter, her law clerk at the time. The Concourt interviews are scheduled for Monday and Tuesday. There were originally 10 candidates but Western Cape high court judge Shehnaz Meer pulled out last week.

Race and Gender

For the first time in its history, with the retirement of Edwin Cameron and Johan Froneman, the Constitutional Court is without a white judge. The constitution enjoins the JSC to consider the need for the judiciary to “reflect broadly” SA’s population in terms of race and gender. It remains to be seen what shape the debate will take when looking at what, if anything, the constitutional injunction means for white representivity. There are also no Indian judges on the Constitutional Court.

Of the nine judges on the Constitutional Court presently, four are women, making it the most gender-representative in its history. However, if two men are appointed in this round it will reduce the number of women judges, and it will go down even further in October when Khampepe retires.

THE CANDIDATES 1. Alan Dodson

Alan Dodson SC is the only candidate who is not already a judge, although he was a judge of the Land Claims Court from 1995 to 2000. The constitution does not require Constitutional Court judges to have been judges, and some of its most famous judges were appointed from the bar or from academia. Among them were former chief justices Arthur Chaskalson and Pius Langa. However, in recent years, it has been less common for Constitutional Court appointments to be made from outside the judiciary.

Dodson has a long history of taking on human rights cases, extending to the 1980s, and was courtmartialled for refusing to patrol the townships during military service under apartheid. His expertise lies in land law and he sits on the panel that advises the justice minister on amending land.

2. Fayeeza Kathree-Setiloane

In the last round of interviews for the Constitutional Court, Kathree-Setiloane was, in the run-up to the interviews, widely viewed as one of the favourites for recommendation. She is a highly respected judge. But at her interview for appointment to the court in 2019, chief justice Mogoeng Mogoeng grilled her on her clash with her law clerk — which had led to a complaint, Mogoeng said — along with other allegations of rudeness to staff.

She disputed the allegations, with Mogoeng then asking her whether she was accusing him of untruthfulness. Later in the interview, former justice minister Michael Masutha put it to her that she seemed “fairly overbearing”, to which she responded: “Very often when a woman is assertive, she is seen as overbearing ... I am assertive and I will not apologise for this.” She was not recommended. This time around, her questionnaire does not refer at all to these events, implying that it has all been resolved.

Kathree-Setiloane was one of the first cohort of law clerks at the Constitutional Court and, if she were to get the nod, would make history as the court’s first clerk to be appointed a judge.

3. Narandran “Jody” Kollapen

Some years ago a Sunday Times poll ranked the former chair of the SA Human Rights Commission as one of the 100 most trusted South Africans. As a judge he remains a popular figure in the legal community, known for his compassion and for infusing his judgments with constitutional values.

Kollapen was the judge who ordered that the failure of the basic education department to provide textbooks to schoolchildren in Limpopo was a breach of their rights. He also refused to grant a permanent stay of prosecution against the man charged with the 1971 murder of liberation fighter Ahmed Timol.

4. Dhayanithie “Dhaya” Pillay

Of all the candidates, KwaZulu-Natal High Court, Pietermaritzburg, judge Dhaya Pillay has been on the bench the longest. With a history of lawyering and political activism, Pillay is also a scholar and a commissioner of the Electoral Commission. Currently acting on the Constitutional Court, she has recently become an object of attack by Jacob Zuma.

In a statement after the Constitutional Court heard an application that Zuma be held in contempt of court, the former president said that Pillay had insinuated that he was a “wedge driver”. He was referring to her judgment in a defamation case brought by fellow ANC member Derek Hanekom in which Pillay had ordered Zuma to apologise to Hanekom. Pillay, however, had specifically declined to make a finding on the allegations between the two parties of being wedge drivers.

5. Aubrey Ledwaba

Another candidate who has been the target of Zuma’s recent statements on the judiciary, although not overtly named, is Gauteng deputy judge president Aubrey Ledwaba.

In that capacity, Ledwaba was the judge who directed that there should be a public seal on the #CR17 bank records, statements that formed the basis of public protector Busisiwe Mkhwebane’s disclosure that millions of rands had been donated to the campaign that led to Ramaphosa becoming president of the ANC.

Zuma said in a statement in February that there were judges “who have assisted the incumbent president to hide from society what on the face of it seem to be bribes obtained in order to win an internal ANC election”. The same has been said by the EFF, whose president Julius Malema also sits on the JSC.

Ledwaba is praised for his role in the increased efficiency of the Pretoria high court in recent years and is also often part of the panel when high-profile, politically sensitive cases come before that court.

6. Rammaka Mathopo

Currently at the Supreme Court of Appeal, Mathopo is a favourite among lawyers, especially those who work in the Gauteng courts. From early in his career he has been involved in judicial education and mentoring for judges.

While acting at the Constitutional Court, he penned the seminal judgment that extended the doctrine of common purpose to the crime of rape, thereby ridding the common law of one of its longrunning sexist features. As a judge of the Pretoria high court, Mathopo has had his share of controversial cases and it was he who ordered the release of the spy tapes — a decision confirmed by the Supreme Court of Appeal. The order was one of the steps in the epic legal battle over corruption charges that Zuma is still to be prosecuted for.

7. Mahube Molemela

According to the rules of seniority, judge Mahube Molemela is the most senior woman candidate, being a judge of the Supreme Court of Appeal. Molemela has had a stellar rise in the judiciary and is viewed as one to watch. Appointed a judge of the high court in 2008, she was made judge president of the Free State in

2015 and within three years had been appointed a judge of the Supreme Court of Appeal. Molemela has been praised for her independent-mindedness. In one case she delivered a dissenting judgment as an acting judge on the Supreme Court of Appeal. Her dissent was upheld by the Constitutional Court.

8. David Unterhalter

Unterhalter has been a judge since only 2018, but as counsel he has argued before the Constitutional Court in many of its seminal cases over the years. Unterhalter is something of a legendary figure at the bar, considered by many advocates to be one of SA’s best legal minds, with expertise in diverse areas of law including competition law and international trade law. He was nominated by Vincent Maleka SC and Tembeka Ngcukaitobi SC, who described his judgments as “meticulously reasoned and fluently presented”, adding that they had been followed by higher courts of appeal including the Supreme Court of Appeal and the Constitutional Court.

9. Bashier Vally

Nominated by the management committee of the Duma Nokwe Group at the Johannesburg Bar, judge Bashier Vally has a background in labour law, saying in his CV that he was “extensively involved in the formation of Cosatu”. Vally took silk in 2010 but may face questions on comments from the General Council of the Bar, which reported that members had commented that he had been known to avoid dealing with matters on his roll by unnecessarily standing them down or postponing them. In his nomination letter, however, senior counsel Wisani Sibuyi SC said that as a judge Vally had set an example in the way he conducted himself and was “always fair, decent and empathetic”.