Sunday Times

Judge and jury

The latest contenders for the ConCourt

- Graphic: Nolo Moima

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.


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”.

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