In April 2014, the Judicial Service Commission (JSC) met in Cape Town to interview candidates for appointment as judges. As he has done for most of the JSC’s sessions since 2009, Chris Oxtoby was there to observe what happened.
It was Oscar Pistorius season – as the trial resumed following a postponement, so the JSC began interviewing candidates for appointment to various positions in the superior courts. These were some important vacancies, too – three on the Supreme Court of Appeal (the second-highest court in the country after the Constitutional Court), a whole 11 (though only six candidates were interviewed) on the Labour Appeal Court, and leadership positions to head the Free State High Court and the Electoral Court.
The public attention given to the Pistorius trial highlighted the importance of this process. Who judges are, their skills, technical competence, their ability to conduct courtroom proceedings and many other factors are vital for the effective functioning of the justice system, and for interpreting and shaping the laws that guide how South Africans live their lives.
Perhaps because of the all-consuming Pistorius saga, these interviews have attracted little attention. There was limited media coverage in the week leading up to the interviews.
The JSC ritual is a fairly new one for the South African legal community. Before the Constitutional era, judges were formally appointed by the president, acting in Cabinet – in practice, this was said to mean that appointments were effectively made by the minister of justice, in consultation with the senior judge of the court to which the judge was to be appointed.
This process is similar to the one long followed in most commonwealth jurisdictions, some of which still follow it today. But it was seen as an inadequate process that gave too much discretion to the executive, lacked transparency and tended to encourage the appointment of judges who did not do as much as they could have to oppose the excesses of the apartheid regime.
So the Constitution introduced the JSC, a body of 23 people, a mix of politicians, judges and lawyers, chaired by the Chief Justice. It was meant to make sure that the process of appointing judges was more open, more transparent, and involved a wider range of stakeholders than the old system. And, to a large extent, it does. But it is unrealistic to expect this to equate to an appointment process that is completely insulated from politics – either big-picture national politics or the politics of the legal profession.
The Constitution gives the courts a lot of power, all the more so the higher up the hierarchy you go. In particular, courts are given the power to declare laws passed by the government, and action taken by the government, to be unconstitutional. So it would be naive to think that the process of appointing judges would take place in a vacuum, free from controversy. And in recent years the JSC has attracted plenty of controversy, but the story is a complex and nuanced one.
In this piece, I hope to give some insight into what it looks like to watch a session of the JSC as a member of the public, observing the interviews. It is only part of the story, as much happens behind the scenes that we don’t get to see. It is also necessarily subjective, as I select and discuss things that I find interesting. The thoughts I share are also my immediate reactions while observing the interviews, and do not necessarily reflect the position of my employer.
Monday April 7
After a drive along Cape Town’s Atlantic seaboard – and then back some of the way again after missing the venue on my first pass – I finally reach a swanky hotel with stunning sea views of the cold Atlantic Ocean.
The JSC seldom slums it, and some observers were suggesting that it was pushing the boat out even further for these interviews, the last for the current JSC. After the May elections, the composition of the JSC is likely to change as many of its political representatives are redeployed.
The setting may be beautiful, but it feels tucked away and almost hidden – it doesn’t exactly feel open and accessible to the people. And for such an apparently glamorous venue, the room chosen for the interviews resembled an enormous ballroom, and what it may have offered for a wedding it lacked in acoustics. Frequently journalists and other observers would cast frustrated looks at one another as they failed to catch indistinct questions and answers. Apparently mundane issues like this can also have a real impact on the dynamic of the interviews, as I will describe shortly.
The first issue that comes to mind for me after I arrive, though, is not the location or the questions being asked, but: Where are all the commissioners? I may have arrived late, but throughout the week there are a lot of absentees among the commissioners. It’s not unusual for one of two to be unavailable, but this time there are more than usual, and some of the absentees are usually active participants in the process.
Advocate Ishmael Semenya, one of the four presidential appointees and usually a vocal participant in the interviews, is absent all week, possibly because of his work as counsel for the SAPS at the Marikana Commission.
There has also been no replacement for Advocate Vas Soni, previously another of the president’s appointees but now heading the Special Investigating Unit (SIU). Commissioner Nic Koornhof is also absent, though I hear he has tendered apologies. On day one, former justice minister, now Minister in the Presidency, Jeff Radebe, is absent, with Ngoako Ramatlhodi, now minister of mineral resources, standing in for him – reducing the numbers further as Ramatlhodi was before the national elections normally a member of the commission anyway as a National Assembly representative .
There are moments when I start pondering whether the JSC even has the constitutionally required quorum of commissioners present, especially when Lex Mpati, the president of the Supreme Court of Appeal (SCA), is absent on the last day because of the interviews for the Labour Appeal Court.
In April 2011, Mpati’s absence and the absence of his deputy led to interviews for the Western Cape High Court being set aside by the courts. We’re told that an invitation has been extended to the deputy president of the SCA, Judge KK Mthiyane, and so the JSC is in compliance with the judgement, although without knowing the reasons for the absence it’s difficult to assess whether this argument would stand up were it to be challenged.
It raises questions in my mind about the size and composition of the JSC. Last year the DA’s Dene Smuts introduced a private members’ bill in Parliament, proposing inter alia that the size of the JSC be reduced. In our submission, the Democratic Governance and Rights Unit hedged on whether or not this was a good idea – a smaller commission might be more efficient, but this could come at the expense of a broad range of representation of different interests and backgrounds. But after seeing so many absentees, coupled with the familiar silence of many commissioners during the interviews, the thought crossed my mind that we might be better off reducing the size of the JSC to make it a more streamlined outfit.
The first interviews are for the position of judge president of the Free State High Court. Judge president is an important position – they are the head of the court, and provide leadership, determine which judges hear which cases (something that was to become an issue shortly), and under the new Superior Courts Act, have responsibility over the magistrates’ courts in the province in question.
There are three candidates – judges Connie Mocumie, Jacob Moloi and Mojalefa Rampai. It quickly emerges that there is some intriguing back politics. There had been an acting judge president in the province for about a year. For three court terms, this was Judge Rampai.
Then, from the beginning of 2014, Judge Nathan Erasmus is brought in to act. It’s unusual for an ‘out of town’ appointment to be made like this, and, to add a little bit more spice, Erasmus will sit as a member of the commission interviewing candidates for the position of judge president today, and tomorrow will be interviewed as one of the candidates for the Supreme Court of Appeal .
But first, a disclosure. Judge Mocumie is the president of the South African chapter of the International Association of Women Judges, and I’ve met her through this role. She’s engaging and personable, and on an individual level I’d be more than happy for her to be appointed. She has a fairly easy run of the interview. She talks about the need for better gender representivity, citing the small number of women in leadership positions, and pointing out that several senior female judges will be retiring in their near future, without having had the opportunity to serve in leadership positions. As seniority is an issue that is sure to come up in considerations of judicial leadership, it’s a pertinent point.
Judge Mocumie’s own relative juniority is duly raised (she has been a judge for six years, and is more junior than Rampai in terms of years on the bench, though more senior than Moloi), as is a lack of reported judgements. But she doesn’t seem to be ruffled and the commission doesn’t seem to be giving off hostile vibes.
She speaks about how she’s benefitted from serving as an acting judge at the Supreme Court of Appeal (SCA). Commissioner CP Fourie notes the curious situation of the acting appointment, and asks if she has any explanation for why an outsider (Erasmus) has been brought in. It’s a tricky one, she says, the decision is the prerogative of the outgoing judge president, and she doesn’t know why he did so.
Perhaps wisely, she is able to distance herself, noting that she was at the SCA at the time and hasn’t heard any “gossip”. There is the issue that she herself hasn’t acted as judge president. In light of the importance that the JSC places on acting experience, getting these chances in the first place is crucial to an interviewee’s prospects. It becomes a key pressure point for the question of gender transformation, and here it is only male judges who have had the opportunity.
Chief Justice Mogoeng Mogoeng comes in towards the end of the interview, appearing to chide his colleagues for not asking questions they should, and proceeds to ask a series of questions about court administration. How would Mocumie lead so that the court “does well”? How is the performance of the court? What is the position regarding the backlog of cases? Fair enough questions, and she seems to cope fine.
Next up is Judge Moloi. I have a recollection that he chaired the inquiry that led to the dismissal of Bheki Cele as SAPS commissioner. Nobody mentions it. The acoustics start becoming a problem during this interview. Moloi speaks quite indistinctly, as do some of the commissioners. It’s hard to hear the details of some of the exchanges.
A falling-out with the chair of Advocates for Transformation (AFT) in the Free State, while the advocate was acting as a judge, is the juiciest moment of the interview. The nub of the dispute seems to be whether Moloi refused to allow the acting judge to ask questions during a hearing before Moloi had completed his questioning. The exchange made him sound hierarchical, and questions are asked about whether he has the appropriate temperament for a judicial leader. But it’s not clear how much it hurts him. He disputes the accuracy of the account of the event that is before the JSC. Any difficulties with AFT are problematic because its national chair, Advocate Dumisa Ntsebeza, is a member of the commission. While appropriately disclosing the connection, he doesn’t fail to probe such questions. Advocate Mike Hellens, an advocate by profession, reassures Moloi he won’t take the complaint into account when deliberating.
Moloi is asked an interesting question by Free State Premier Ace Magashule – how would he feel if “someone junior” is preferred to him, and wouldn’t that cause instability and demoralise people? In terms of years on the bench, Moloi (it has been established in a previous interview) is actually the most junior of the candidates, though he is older than Mocumie or Rampai.
He sensibly dead bats the question, saying he will support whatever choice the JSC makes. But the question does get observers thinking that the premier may not be sold on Mocumie. Moloi, too, is unable to shed light on the acting Judge President situation, and describes the court as one where there is “collegiality at all times”, and, to his knowledge, no problems between the judges.
Later in the interview, some clues start to emerge when a comment is made that Rampai, while acting as judge president, allocated another judge to draw up the “roll” whereby judges are allocated to particular cases. Moloi indicates that he expected this roll would be compiled by Rampai, as it is part of the core business of being a judge president. He became aware that this was not the case only when a circular was distributed.
And lo, the real drama comes in Rampai’s interview. He starts confidently, and at least is more audible than Moloi. He’s been a judge for 13 years, and has acted as judge president, so experience is very much on his side. But soon the dirty laundry began to come out. The Chief Justice asks whether Erasmus coming in to act as judge president was problematic for Rampai, who acknowledges that he and Erasmus are friends from before the appointment, but admits he found the move “difficult to understand” why such a “drastic” decision was taken without consulting him, and why an outsider had been brought in. He explains that it was unremarkable for him to assign the preparation of the roll to another judge as he was contemplating going on long leave, and so it made sense for the next most senior judge to assist with the roll to ensure things ran smoothly in his absence.
At this stage, things seem to be running quite smoothly. The premier asks him the same question he asked Moloi; women are the “buzzword”, the premier says, which makes me wonder what reaction there would be if the same language was used to talk about racial transformation – it is hard to imagine that the need for the bench to be more representative of the racial composition of the country would be described as a mere buzzword.
How would Rampai feel if someone more junior were appointed ahead of him? Rampai says he has prepared notes on this point, which he would like to come back to at the end, but when it transpires that these extend to six pages, Mogoeng invites him simply to answer the question of how he would feel if a younger woman were appointed. Rampai says that he respects women, and if a woman who “has what it takes” to lead him were appointed, he would have no problem.
There are signs of trouble ahead when he is asked about his temperament. Commissioner Jonas Sibanyoni comments that Rampai is vocal – Rampai replies that being vocal is better than a judge who whispers. Judge President Frans Kgomo then relays Moloi’s surprise that another judge was compiling the roll. Rampai says that is perhaps because he is a “novice on the bench” – it’s a simple matter, and he doesn’t understand why a “serious-thinking person” would object. It seems an unnecessarily belligerent response, and Kgomo isn’t done yet. When Rampai wrote to Radebe, then-minister of justice to complain about Erasmus’ appointment as acting judge president over him, and copied the Chief Justice, did he also copy the outgoing Judge President Hendrick Musi? No, says Rampai, he assumed the minister would provide Musi with a copy. Kgomo then asks about Musi’s retirement party. Rampai responds and says that he didn’t go because he and Musi don’t like each other. When asked if this shows leadership quality, Rampai says it’s up to the interviewers to determine, but asks why he should have attended a party for someone who doesn’t like him.
The interview is rapidly transcending into the surreal, and the poor acoustics add to the tense mood. Kgomo later asks about a case in which he and Rampai had sat together, and Rampai had apparently written a judgement that differed from what had been agreed among the panel, without telling the other judges. Is that leadership quality, Kgomo asks – he plainly doesn’t think it is. Rampai struggles to hear the end of the question, and Kgomo has to repeat himself. To ensure he can be heard, it feels like he is shouting – “is – that – leadership – quality?” Rampai can now hear him. He expresses surprise at the question, and doesn’t see how it relates to the Free State High Court. He’s not afraid to differ with colleagues, and if that means he isn’t a good leader, so be it. He wrote the judgment to show why he’d changed his mind with the other judges. Rampai describes using the incident to create the impression that he is not a good leader as “lamentable”. Kgomo suggests that it would have been courteous for Rampai to let his colleagues know that he had changed his view of the case. Rampai responds that the best approach was not to tell them by phone, but to write a judgement showing his thinking.
The exchanges might seem to reflect a lot of trivial judicial politics, but Rampai’s belligerence doesn’t seem the right approach to take with the JSC – especially when interviewing for a leadership position, one of the main criteria for which must surely be an ability to get on with your colleagues. By the end of the interview, Rampai is giving the impression of a man who could start an argument in an empty room. Nonetheless, he maintains that he enjoys the overwhelming support of his colleagues, and, in a final further twist, reads out a letter of support that turns out to be a text message from former judge president Musi, sent to Rampai in November the previous year.
In the end, the JSC doesn’t choose any of them. It’s an unsatisfying outcome. The Moloi and Rampai interviews haven’t been entirely savoury. And overlooking Mocumie seems to evidence a glass ceiling for women as far as judicial leadership positions are concerned. The JSC is okay with appointing them at entry level to high courts, as evidenced in October 2013 when a majority of women were appointed to various high courts. But the higher up the judicial ladder you go, the more unusual it is for women to be appointed.
Of course, the issue is nuanced and complex, and it is not just about the JSC, as it is quick to remind everyone whenever the spotlight is cast on gender transformation. The JSC regularly complains that not enough women are nominated or put themselves forward for appointment. But this one is, surely, entirely on the JSC. Nothing came up in the interview which seemed to disqualify the female candidate, but she was unable to get a majority of the votes.
Tuesday April 8
Today’s interviews are for the three vacancies in the Supreme Court of Appeal. These can be contentious – often it feels that the intensity levels rise the higher up the judicial hierarchy one goes. The same time last year, the overlooking of Judge Clive Plasket, and the corresponding appointment of Judge Nigel Willis, provoked widespread criticism, both of the appointment and non-appointment, and of the fairness of the interviews of the two candidates.
This time it goes fairly smoothly. Judge Erasmus is first up, removing his hat as acting Free State judge president from the previous day, and now facing up to the commission as a candidate. If there is to be drama, it seems most likely to come here.
Judge Erasmus headed the Erasmus commission to probe possible maladministration, corruption and fraud in the City of Cape Town and the George municipality. The Western Cape High Court found that the establishment of the commission was unconstitutional and invalid. To add extra spice, the judgement was written by Judge Kevin Swain, seconded from the KwaZulu-Natal High Court to hear the case, and who is also a candidate for the SCA.
Before that issue is raised, Erasmus faces questions from Mpati about whether he has got researchers to draft judgements for him, and about reports that Erasmus made a statement that he was sure to be appointed because of his friendship with the Chief Justice. He denies the latter and explains the former as being simply about the format in which research was given to him. The Erasmus Commission case then comes up, briefly. Erasmus looks annoyed that it’s been raised, and points out that the JSC dismissed a subsequent complaint against him. The law on judges heading commissions wasn’t clear at the time, he says.
And the issue is left there. The interview passes fairly uneventfully. Erasmus says he understands the call for there to be transformation at the SCA to mean both transformation of demographics, in terms of race and gender, and transformation in terms of jurisprudence, i.e. that there is a need for judges to adjudicate in terms of the values in the Constitution.
Commissioner Fatima Chohan puts it to him that some judges see themselves as champions of rights, which “juxtaposes” (does she mean contradicts?) with impartiality. Chohan is usually at the forefront of questioning on the issue of the separation of powers, and it is a theme she will return to frequently in the course of the week. Such questions are often puzzling to those viewing the interviews from a different perspective. How can it be said that an enthusiasm for human rights makes someone biased? By that logic, having an interest or enthusiasm for anything makes one biased in another direction. Why are so-called rights activists then singled out? Commissioner Ramatlhodi, another who presses this issue, asks about the doctrine of separation of powers, highlighting the issue of limitations on judicial review. Fine. But what about the reasons we might want to have judicial review in the first place? It was not a principle that was adopted in a vacuum.
And now, if you’ll forgive me, this is my cue to digress to talk about one of my pet themes – the separation of powers and how it is dealt with in the JSC interviews.
The principle of the separation of powers, put very simply, refers to the idea that each of the three branches of government – executive, legislature and judiciary – exercises distinct functions, and that each needs to be respected and given space to fulfil those roles.
Concerns have often been expressed, both in South Africa and in other jurisdictions, about the courts intruding into the domain of the executive, in particular. The courts, this argument goes, have intruded into the arena of policy-making, which should properly be the function of the executive. One of the key rationales for the principle goes to issues of institutional competence – i.e. the idea that the particular structure and expertise of an institution makes it better placed to decide certain issues than others.
This is clearly an important issue and one where it is entirely justified to ask questions of candidates to understand their philosophy of adjudication and understanding of the constitution which they would bring to their role of judges, if they were to be appointed.
But watching the JSC in recent years raises concerns about how the issue is framed by certain commissioners when asking about it. Is enough regard being given to the constitutional context, and the demand the Constitution makes on the court to declare invalid any law or other form of government conduct that is found to infringe the Constitution? Or is it simply being used to weed out candidates seen as likely to be too independent, likely to find against government – even though the circumstances of a case might demand such an outcome? The concern with this is that, rather than having a bench that is too activist, we end up with one that is too deferential – “too” deferential bearing in mind the constitutional requirement that legislation and government conduct be tested against the Constitution, and declared invalid if inconsistent with it.
The increasing prominence of the separation of powers issue has also had the effect of fixating on an issue that, while important, is by no means the only one that interviewers should be scrutinising. There was the extraordinary instance of a candidate in a previous interview being told that he “seemed to find against government a lot”, and being asked to cite examples of cases where he’d found in government’s favour. The candidate was indeed able to do so, but without any analysis of the reasoning behind the decisions, bean counting like this is empty and possibly dangerously misleading. Does it indicate a dangerously activist judge, or a judge deciding cases involving recalcitrant and misbehaving government departments?
As I often do when watching this part of the interviews, I feel a sense of disquiet. What would have happened to such luminaries of our judicial past as Arthur Chaskalson, Pius Langa or Albie Sachs if they were to be interviewed by the JSC now?
There is, indeed, a bizarre and contradictory tightrope that candidates often have to walk. On the one hand, they are expected to show their commitment to transformation, to have briefed previously disadvantaged colleagues, to have taken demonstrable and proactive steps to negate the barriers to professional opportunity that hamstrung so many in the past, and in many instances continue to do so. But the moment this commitment manifests itself in any way that might be perceived as hostile to government, it seems to set up a presumption against appointment in the eyes of some. It must be acknowledged that this presumption is a rebuttable one. The JSC does still appoint candidates where the “human rights background” issue has been in play. But it has overlooked others.
In these interviews, Ramatlhodi sometimes asks candidates to expound on their judicial philosophy, especially regarding the doctrine of separation of powers. It’s a nice question in the abstract, but it would also be nice if some other aspects were highlighted as well. Framed this way, it seems to collapse a judicial philosophy into a mere statement on a candidate’s understanding of the separation of powers – and, indeed, that is how many answer it.
Commissioner Chohan introduces higher authorities in some of her questions, citing the work of Montesquieu, a French philosopher regarded as the father of the theory of the separation of powers. Chohan suggests that there is research to be done on Montesquieu and the applicability of his theories to contemporary South Africa. That is probably a good idea, as quite a lot of thought will need to be given to updating it to the modern South African context. A cursory Wikipedia search during the interviews reveals that he died in 1755, before the French Revolution, never mind the development of justiciable Bills of Rights.
Back to the interviews. Judges Boissie Mbha and Pieter Meyer come and go unmolested. Then it is Judge Brian Spilg’s turn. He was shortlisted for the Constitutional Court vacancy in 2013, although that was not the indicator of judicial exclusivity one might expect. Four names had to be sent to the president from which to make the selection, and Judge Spilg was one of five candidates. Another was Advocate Jeremy Gauntlett, whom the JSC has repeatedly declined to recommend for appointment. Judge Spilg is also the only candidate not to have served as an acting judge on the SCA. Usually such acting experience is a basic precondition for appointment, so his candidature feels optimistic.
Spilg is quickly asked about a decision by the SCA that was highly critical of his handling of a trial. He expresses regret that the SCA considered that he created a perception of bias in how he handled the trial, and indicates that it caused him to make changes to how he handles cases. He was just trying to achieve justice, he says.
Commissioner Hellens seems particularly unimpressed with remarks made by Judge Spilg during the hearing of the case in question, where the judge expressed concern that the National Prosecuting Authority might have come to a decision about the prosecution of an individual involved in the case before Judge Spilg had given his decision in the civil case. Judges are very powerful, Hellens says, and must exercise their powers with due humility. Does Spilg regard himself as suitably humble? Hellens asks. Spilg seems troubled and says he’s concerned by the questioning. He’s never had a sense of self-importance, he just tries to serve justice.
Some time is then spent on outstanding judgments. This is a real tripwire for candidates. It’s one of the big bugbears of the JSC, and candidates with long delays in giving judgements can be scuppered no matter how much else might seem to be in their favour.
Judge Spilg says he has an Excel spreadsheet listing the delayed judgements, which sounds ominous. It emerges one of the judgements has been outstanding for more than two years. Spilg explains that the case was a long and complex one, and that he wants to take time to ensure that the victim’s resilience (it appears to be a rape case, where the victim was made into a “sex slave”) is properly recorded. No matter how good the reasons might be, the JSC doesn’t like many delays, or very long delays. It seems to be choosing three from six candidates now, observers remark to each other, and I draw a picture of a car crash in my notepad as an artistic expression of what I feel the interview has turned into. But the JSC has surprised before, and I never get predictions for SCA positions right anyway.
Judge Swain’s interview then comes and goes quite uneventfully. He’s asked about comments that, as a white male, his appointment wouldn’t help the transformation of the bench. He comments that four white male judges retired the previous year, and one was appointed – so “perhaps” there is “room for one more”.
This kind of question about transformation can seem very tough for white candidates to deal with, as in most instances their own appointment won’t further the transformational objectives of section 174(2) of the Constitution (which requires those making appointments to take into account the need for the judiciary to be broadly reflective of the racial and gender demographics of the country), so it’s difficult to know exactly what they could say. But the atmosphere this time around somehow seems more congenial, less confrontational than is often the case. Chohan asks him about the limits of rationality review and the separation of powers, and he seems to emerge unscathed.
But after all the earlier fun and games, the interviews are running late. It’s never a good idea to come between the JSC and its lunch. The interviews start speeding up. We’ve long commented on this problem, which has manifested itself ever since I started watching the JSC. I recall commenting that candidates can be affected in different ways. A long interview can either probe a candidate so thoroughly that cracks in their suitability appear, or it can give them the opportunity to shine and assuage any doubts. Although a short interview can allow a candidate to escape quickly unscathed, it can also deny them the opportunity to demonstrate their potential. The interview of Judge Christiaan van der Merwe falls into the last category. He’s presumably travelled down to Cape Town from Bloemfontein to be interviewed, having acted on the SCA and being based in the Free State High Court. He is in and out in 10 minutes. Mogoeng asks him some basic introductory questions. Mpati asks him a handful of conversational questions, including asking him when a Free State judge was last appointed to the SCA. Judge Dumisani Zondi’s interview, which follows, clocks in only slightly longer at 15 minutes (though, unlike Judge Van der Merwe, Judge Zondi is ultimately appointed).
Interviews like these cannot be what the drafters of the Constitution had in mind when they created the JSC. It’s difficult not to come over all cynical and conspiracy theorist when you see it happen. It gives the impression that the real decisions are made outside the publically observed process, the interviews simply giving a veneer of open-mindedness and fair contestation.
I don’t know whether that is the case, but it looks bad. I don’t know much about Judge Van der Merwe and I don’t have a strong view as to whether or not he would have been a good appointment to the court, or a better appointment than those who were recommended. But he surely deserved the courtesy of an interview that actually tried to get to grips with his suitability for the position. If not, why bother shortlisting and interviewing him at all? The interview was unfair to him, and I’d love to know what he is thinking as he makes his way out of the wedding hall.
In the end, Judges Mbha, Swain and Zondi are recommended for appointment. Before the interviews, a journalist asked whom I’d appoint. Based on the judgements I’d seen, and also factoring in transformation considerations, I’d said I’d go for Mbha, Swain and Zondi. It’s the first time I’ve correctly predicted the JSC’s SCA appointments. And even without that prediction, they feel like good appointments, despite the imperfections in some aspects of the process.
A largely uneventful interview of Judge Jeremiah Shongwe ends the day, and he is subsequently recommended as the new head of the Electoral Court.
Wednesday April 9
Today the JSC is conducting interviews for the KwaZulu-Natal High Court. Whereas the previous interviews have all been judges already serving on the bench, effectively applying for some form of promotion, today’s are seeking to be appointed as permanent judges for the first time. There are three vacancies, and nine interviewees – although a fourth vacancy will ultimately be filled, as Judge Swain’s appointment to the SCA frees up an additional slot.
A wide range of questions is asked. Chohan starts with extensive separation of powers questions, including what courts should take into account about the roles of different branches of government.
There are questions about the place of customary law and the sources of it. Mogoeng is enthusiastic about the customary law issue and asks Advocate Pieter Bezuidenhout, the first interviewee, what can be done “to make lawyers more aware of the treasures of customary law” (it should be taught more at universities, apparently).
Unlike in previous rounds, the JSC doesn’t seem to be interested in briefing patterns. It’s been common for candidates to be asked to demonstrate what they’ve done personally to contribute to the transformation process. For example, advocates have been regularly asked about briefing patterns – who gets and gives work, how often have white male advocates appeared with black or female juniors? For those who are able to say that they have done so regularly, it has seemed to smooth their path to ultimate appointment. For those who can’t, it has appeared to be a major barrier.
This time, for whatever reason, the question is not asked. It’s hard to say why. It’s not that the JSC doesn’t think that the transformation issue is important anymore. Maybe the commissioners are just getting bored of asking the same questions.
The second interviewee, Mahendra Chetty, is an attorney with the Legal Resources Centre (LRC). Word from a journalist with local knowledge is that he could have problems with the premier’s representative on the JSC because of the LRC’s role in fighting eviction cases against the provincial government. But he’s asked the same question as other candidates, about the challenges of dealing with land invasions, in general terms.
More remarkable is Chohan’s questioning, which brings out some of the underlying concerns around separation of powers rather overtly. She starts by commending Chetty for the work he has done, but says that as a commissioner of the JSC, she is “discomforted” by a judge from an activist background sitting in a case between an indigent person and the state. She wants Chetty to assure her that he would have sufficient judicial temperament to ensure that any party appearing before him would not hold those concerns. And, in fairness, he seems able to do so.
Chohan then goes on, citing Montesquieu, to ask about the inherent limitations of a court of law. Chetty quotes former chief justice Sandile Ngcobo’s famous comment that judgements by the court constitute only a part of a “constitutional dialogue”. Chohan responds that “it seems in the constitutional dispensation, when the Constitutional Court speaks, that is the end of the matter”.
Well (to return to my pet peeve of separation of powers for a moment), it has to be the end of the matter somewhere, and it is our constitutional design that the last word is given to the courts. We could have gone other ways. We could have retained the system of parliamentary sovereignty we had before democracy. We could have adopted a system such as in Canada, where, if certain majorities are met, Parliament can override a court decision. But we didn’t. We gave the last word to the courts.
Nkosinathi Chilli, the third interviewee, is also asked about customary law, as well as whether he is satisfied with the pace of its development by the courts. Not entirely, he says, and argues that there’s a need for judges who know and understand different cultures and communities. He gives the example that looking an authority figure in the eyes may be a sign of respect or disrespect in different cultures. If you don’t have that insight as a judge, it can lead to an injustice when you come to assess the credibility and demeanour of a witness.
He’s also asked about his view on traditional courts. He deftly says that he doesn’t “want to say there are problems, but there would be challenges”, because those presiding are not trained as presiding officers. This means that, while the courts “have to be established” (Minister Radebe later corrects him, pointing out that the courts are there already), they would have to be monitored, perhaps by magistrates.
Mogoeng is engaged by the question of traditional courts, and puts it to Chilli that there used to be training in governance, including how to run traditional courts properly. Why, Mogoeng asks, could this not be done to ensure that the courts operate in terms of the Constitution? It could, concedes Chilli. So the problem is with the training, says Mogoeng, not with the system itself.
I wonder whether those who have campaigned forcefully against the recent Traditional Courts Bill would agree. There are immediate and obvious questions about who would do the training, who would determine the syllabus, and how traditional leaders would feel about receiving such training. But those are all bigger questions for another day and someone with more knowledge of the issues than I have.
The interview of Sharon Marks, the first of two female candidates, passes without incident, apart from her forgetting about the Promotion of Equality and Prevention of Unfair Discrimination Act. It’s a strange, almost gotcha question from Advocate McCaps Motimele, which doesn’t have any follow-up once she’s been reminded about it.
Then things get really lively when Magistrate Sibusiso Msani arrives to be interviewed. When researching the candidates’ track records, some of his judgements jumped out because of some problematic gender language in a few of the decisions attached to his application.
In one, a rape case in which the accused was ultimately acquitted, he found that “[t]he explanation by the appellant that the complainant was insane or under the influence of liquor is quite probable”, and said that the complainant “seems to be somewhat of a gold-digger on a proper assessment of all the evidence”. It’s not the kind of measured language you usually expect to see in a judgement. But this isn’t to be what proves the candidate’s downfall.
At the outset of the interview, Mogoeng says there is something that needs to be cleared upfront. There is an objection to Msani’s candidacy, relating to a maintenance dispute.
Mogoeng summarises his understanding of the complaint as being that, in an ongoing maintenance case, paternity tests revealed a 99.9% chance that Msani was the father of (it turns out to be three) children, but that he did not accept the results, and preferred to have further tests done by another doctor.
There seem to be suspicions or allegations that Msani used his position as an acting judge to delay the proceedings. Mogoeng invites Msani to explain what is going on. Msani says the complaint is incorrect in many respects, and does not state the correct facts.
There’s a palpable sense that he is winding up to give a long explanation, and Mogoeng seems to sense it, too, as he pounces to ask a series of focused questions. Was there a maintenance case against Msani? Yes. Was a paternity test conducted? Yes. Was there a 99% probability of fatherhood, which was not acceptable to Msani? Yes. Did Msani say he wanted fresh tests? Yes. And as a result the case had to be postponed? Partly because of that, says Msani, and for other reasons. Other information was being subpoenaed about the mother, and there seems to be some question of an illicitly obtained disability grant. Msani again looks like he might go into some detail on the point, and Radebe intervenes to tell him to address the main question, not the whole story. There is some discussion of the timing of the second paternity test. He doesn’t seem to have gone for the second test yet.
These kinds of interviews are fascinating, I suppose in part on some kind of Schadenfreude, reality-TV level, but on a more serious level they are interesting for what they reveal about what the JSC looks for in our judges.
Mogoeng puts it to Msani that the JSC needs to get a sense of whether he is a responsible person. Commissioner Mabe, who hardly ever asks questions, pipes up to tell Msani that she is worried about how he is handling the issue, by trying to be technical. She suggests that the JSC should stop interviewing him and that he should go back and resolve the matter. Msani says that the perception of him is based on an incomplete and inaccurate record. He later says that he has a right to defend himself “to my satisfaction”, and that while he did sleep with the woman in question, “I was not the only one”.
Another car crash diagram seems appropriate at this point. It’s hard to see how he would possibly be appointed, and I can’t help feeling that Commissioner Mabe was right and that the blood sport should be put to an end. Radebe, who has been quiet for most of the week but is now well and truly awake, has told Msani that “science is not voodoo or magic”, and offers him some “unsolicited advice” – if the first test came back at 99.9%, there is “no hope in hell” there will be different results. Msani suggests that experts can come to different conclusions. I’m no scientist, but that seems optimistic in this case.
After Msani has declined further exhortations to withdraw, the interview comes to a merciful end. The subsequent interviews feel like something of an anticlimax. The interview of Magistrate Thomas Ncube passes without much incident.
The interview of Magistrate Sibusiso Nzimande raises the temperature ever so slightly. He is asked by Mogoeng why so many magistrates who reach leadership positions seem to seldom hear cases. His explanations of the difficulty of obtaining facilities and a lack of deputies do not seem to impress the JSC.
He also catches some of the aftershock of the Msani interview, as Msani is a magistrate in the court Nzimande heads, and he’s asked whether Msani took leave to attend the maintenance hearings.
Nzimande isn’t able to answer on the spot. Chohan puts it to him that questioning a 99.9% certain paternity test raises serious concerns about competence. Nzimande understandably finds it difficult to comment, but is urged to follow up and ensure that the “necessary action” is taken. He is also criticised for his handling of a case involving matrimonial property, which Hellens describes as “inexcusable legal writing” for its “total confusion of concepts”.
Next up is Advocate Peter Olsen, who has been a senior counsel for 20 years. These types of interviews are often tricky for candidates who are usually highly qualified in terms of their experience and technical skills. But the JSC also looks for “softer” qualities, and probes factors like the candidate’s demonstrated commitment to transformation, and although the way in which this is done may often be criticised, candidates often come up short.
Olsen starts sure-footedly enough. His prospective judge president, Chiman Patel, praises his assistance when they trained pupil advocates together, and describes Olsen as someone who has always gone out of his way to assist. Olsen speaks of the difficulty in improving the LLB degree, remarking that it can’t be made so long that it becomes inaccessible for financial reasons.
Mogoeng then asks about gender transformation, noting that only two of the nine candidates being interviewed are female.
Mogoeng is, as usual, defensive on this point, commenting that the problem lies elsewhere – not with the JSC – and asks Olsen what can be done to “create a large enough pool” of women candidates for appointment. Olsen says that the number of women at the bar has increased considerably, but most are junior and many end up leaving. An increasing number of women work on cases as attorneys, but don’t become partners. He doesn’t know why, but suggests it may be necessary to look at cultural attitudes towards the role of women in households. It seems to observers to be a sensible and thoughtful answer, but Chohan takes issue. She comments that JSC looks both at experience and the values a candidate puts in, and that for the office of a judge, values can be more important (a statement that could set off many a heated debate on its own). Chohan says she was “not very impressed” with his answer on cultural attitudes towards women in the home. She wants him to speak about his personal values, and his work as a leader in the profession to enhance transformation.
Olsen declines to take personal credit for work he’s done at the bar and in academia where he’s worked as part of a team. Regarding familial relationships, he says very little has changed in the family regarding respect for women, across all cultures. He has a daughter at the bar and is aware of the challenges she faces. He finds it problematic that there is a perception that the only women who progress in the legal profession are those who are not married. In his professional life, he has worked to put together structures and give people opportunities. If those don’t work, he doesn’t know what to do next.
It seems hard to fault these answers, but Chohan wants him to continue, asking him to talk more about the structures he refers to. She simply wants to know more about him, and wants to know what value system he would bring to the bench. Olsen talks about structures he’s been involved with at the University of KwaZulu-Natal. He describes his own family background, and it is a humble one – he comes from a poor background, and was the first person on either side of the family to matriculate or attend university. But he was brought up well, and learnt to respect others, which he says still informs his attitude to cases as a lawyer.
It’s a deeply personal moment, and it’s striking that no other candidate has had to go into such depths of their personal background. Chohan then turns to her impartiality theme. The words she uses are again striking – it is “disturbing” that candidates want to be judges while espousing “fervent human rights activist tendencies”. Olsen handles it well, though, saying that a lawyer has a relatively easy task of being on one side whose cause they adopt and advance. As a judge you have to avoid that, and be aware that you bring your own values to the bench. He imagines it takes some experience to get that right, and not to overcompensate.
These questions must be difficult for a candidate to handle, because on the one hand you can’t come across like a raging judicial activist or you clearly will fall foul of many commissioners, both among the politicians and the lawyers. But come across as too deferential, and unwilling to hold other branches of government to account, and other commissioners will be waiting to pounce on your apparent lack of strength and independent-mindedness. Olsen seems to me to have navigated the terrain pretty well. I’ve dwelt on his interview longer than others because, while it was rare in these interviews, it was reminiscent of many before in other sessions of the JSC, and it offers some interesting insights into how candidates whose track records might appear to make them obvious contenders for appointment frequently have to jump through additional hoops to get there.
The last candidate is Ms Thoba Poyo-Dlwati. It’s after 4pm, and the JSC can sniff deliberations at the end of what has been a long day. She’s still interviewed for a good half hour, though. She’s asked about the challenges women in the legal system face, and says that it’s a male world – women have to prove themselves “more than a hundred times”. In the country and the continent, males are regarded as authoritative. It’s a forthright answer, and prompts Mogoeng to comment that gender discrimination is not just an African problem but a global one, citing the small number of women in the British judiciary.
She’s written a judgement finding that the transfer of prisoners from one facility to another was within the prerogative of the department of correctional services, so the questioning around the separation of powers is not pursued for long.
At the end of the day, the appointments seem okay. Despite some of us observers wondering whether Chetty and Olsen would not be palatable, they both get in, as do Chilli and Poyo-Dlwati. Does this negate the separation of powers witch-hunt theory, I ask myself. It is heartening to say that the theory is not completely proven, but it remains disconcerting to hear how some important figures in government frame the issue. Maybe this is indeed just a tension inevitable in a constitutional democracy that vests its courts with powers of judicial review.
Thursday April 10
Today is the last day, and I’m watching interviews for the Labour Appeal Court. There are more vacancies than candidates, so a straightforward day is anticipated, except for the candidacy of Judge John Murphy. Judge Murphy is the subject of a complaint to the JSC by Advocate William Mokhari as a result of a much publicised disagreement between the two when Murphy heard an application for leave to appeal in a case relating to former head of police crime intelligence Richard Mdluli.
Normally, judges with complaints pending against them before the JSC have tended to withdraw their candidacy until the complaints are resolved, but Murphy is going ahead. The JSC takes an hour to debate, behind closed doors, how it will deal with the issue.
The interviews start and take the expected relaxed path. Judges Phillip Coppin, Adolph Landman and Mahube Molemela are all out after unremarkable 20-minute interviews. All of the candidates seem very well qualified on paper. Then it’s Murphy’s turn.
Judge President Kgomo seems to speak for many of the commissioners when he says he isn’t comfortable interrogating Murphy on the complaint, as it may still come before the JSC. He suggests the issue should be resolved and his candidacy deferred to the JSC’s October sitting. Murphy says he’s there because he believes he can make a contribution to labour law, and colleagues have urged him to put himself forward. If the decision of the JSC is to defer, he abides. Mogoeng wants to make clear that the scrutiny Murphy is receiving is different to Msani, as Murphy is the subject of a complaint that is sub judice before a constituent body of the JSC (one of its disciplinary subcommittees).
It is pointed out to Murphy that he disclosed the complaint on his questionnaire as a relevant issue that the commission should be aware of. Murphy presents the issue as one of allocation – if they decide not to appoint, he stays at the North Gauteng High Court; if they decide to appoint despite the complaint, he can be seconded to the Labour Appeal Court. The assumption is that, even if upheld, the complaint is unlikely to lead to impeachment. That’s probably true, but one can understand the JSC’s reluctance to be seen to be second-guessing the outcome of the complaint. Hellens remarks that the JSC has to consider a number of factors, including the merits of the complaint, but it can’t do that while the complaint remains unresolved.
And that’s pretty much it as far as the drama is concerned. Mogoeng asks Judge Cagney Musi about what can be done for more women to be available for posts in superior courts. Musi rightly points to the importance of the role of judge presidents in determining who gets appointed as acting judges, and pertinently talks about the need for women to be given the opportunity to act in leadership positions.
Traditionally, he points out, the position has gone to the most senior judges, which usually precludes women from getting an opportunity. Judge Roland Sutherland, in response to a similar question, remarks on the need to examine the entire career trajectory of female lawyers, and suggests that a proper sociological study might be a good idea to provide the discourse with something more than anecdotes to rely on. It’s a good suggestion. But most of the sting has gone out of proceedings by now.
The process is almost over, and for some of the politicians on the JSC, perhaps for the last time. There is a photo call after one of the lunch breaks. There are homes and jobs and constituencies to return to. At the end of the day, the appointments for the Labour Appeal Court are announced. Judge Murphy hasn’t made it, the rest have. It’s an understandable decision.
Overall, compared with some of the past interviews that have been beset by controversy and acrimony, things were civil this time around. Although some candidates experienced tough interviews, these mostly were not characterised by the unfairness that has been seen in the past. The JSC had to deal with some awkward topics, such as the Msani maintenance issue and the Murphy complaint. It generally did so, I think, appropriately and respectfully. Of course, some important issues, and aspects of concern, still exist, and have been highlighted in this piece. The JSC is a complex institution, more so than much of the public discussion about it suggests. That makes it an intriguing institution to observe, and no doubt it will be the subject of more controversy and contestation in the future.
Main Photograph: Chief Justice Mogoeng Mogoeng on the other side of the Judicial Service Commission, which he currently chairs, during his own interview for the judiciary’s top post – by David Harrison