Could the JSC be ushering in a new era of inquisitiveness, modernism and improvisation?
The latest version of the Judicial Service Commission (JSC) may not, quite yet, be the selection committee equivalent of Charlie Parker’s Beboppers, but there was a continued sense of the new when it gathered in Cape Town this week to interview prospective judges for positions on various benches.
A November 1945 configuration comprising the “Yard Bird” – Parker – on saxophone, Dizzy Gillespie and Miles Davis on trumpets, bassist Curley Russell, and Max Roach on drums gave notice of bebop’s arrival in a recording for the Savoy label that laid down an exciting new age of inquisitiveness, modernism and improvisation in jazz music.
Sitting for the first time since its debut in the October round of interviews last year, the 23-person commission – with several new members after the 2014 national elections – certainly isn’t quite that revolutionary: The loquacious, personally nostalgic soliloquies commissioner Mathole Motshekga from the ANC prefaces his questions with were more fingernails on chalkboard than Miles’ fingers on the trumpet. The Economic Freedom Fighters’ Julius Malema’s bouncer approach to lines of questioning – usually smart and on-point, however – could not be mistaken for the melodic formulas upon which the “Bird” built his improvisations.
The inanities of swing, bebop’s populist predecessor, sometimes crept through, as when the ANC’s Dikeledi Magadzi asked the Pretoria High Court’s Thokozile Masipa, the Oscar Pistorius murder trial judge, whether another adjudicator would have come to a judgment different from hers – a guilty of culpable homicide verdict – during the latter’s interview for the position of Limpopo judge president. Does all the free food in the national legislature cause politicians to gain weight?
Yet, in interviewing candidates for the judge presidents of the KwaZulu-Natal and newly formed Limpopo divisions, and vacancies at the Supreme Court of Appeals (SCA) and the Eastern Cape High Court, the commission did enough to suggest it would rigorously push the question of gender transformation within the judiciary and examine pertinent issues, from administrative ability to the substance of judgments, while being mindful of the specific needs of specific courts.
Advocate Lindi Gcabashe, one of two representatives from the advocate’s profession on the commission, pushed candidates on whether a new, more gender-sensitive language was required in the legal profession. Picking up on Johannesburg High Court Judge Nare Kgomo’s use of the words “manpower” and “manning the courts” during his interview for the Limpopo position, she put him, and several others male judges, on the spot about patriarchal language usage in the legal fraternity (in educating students, writing of judgments and everyday use), and how that subconsciously maintained gender biases.
Judges were interrogated on their approach to cases involving gender-based violence, especially in instances in rural areas where patriarchal interpretations of tradition and custom were used as defences by the ANC’s chairperson of the National Council of Provinces, Thandi Modise, and ruling party MP Thoko Didiza, especially.
Male candidates were asked to show if and how they had helped to develop female legal practitioners, and to suggest new ways to expedite their fast-tracking through the system.
Female candidates such as acting SCA judge Nambitha Dambuza (successfully recommended with the Pretoria High Court’s Rammaka Mathopo for the appellate court’s two vacancies) and advocate Namawabo Msizi (unsuccessful in her Eastern Cape tilt) were quizzed on more than just what difficulties they had faced as legal practitioners during their careers – a regular line of questioning of late as recent civil society mobilisation has resulted in increased awareness at the commission.
Some of the challenges, including institutional sexism and briefing patterns, especially by the State Attorney’s office and private companies, being skewed towards pale males have become well ventilated by female candidates at the commission as it attempts to prioritise the constitutional requirement that the judiciary “reflect broadly” the demographics of a country with a female majority.
This round saw that to go a step further, with female candidates asked to respond to questions by commissioners, including Chief Justice Mogoeng Mogoeng, on the measures that could be taken to make the judiciary an area more conducive to “widening the pool” of female candidates suitable for appointment.
Both Dambuza and Msizi highlighted practical solutions, including allowing “flexibility” on the job descriptions of their personal assistants to allow them to pick up school-going children while the judges were sitting in court, and ensuring female judges who were acting in divisions far from their homes were not placed on the weekend’s urgent court roll so as to allow them to head back to their families.
Allison Tilley, of the Judges Matter coalition of civil society organisations pushing for gender transformation on the Bench, told The Con these “healthy, solid proposals from candidates highlighted the structural changes that any judge presidents listening – and concerned about transforming their divisions – could use”.
Gauteng judge president Dunstan Mlambo was methodical in his questioning of Limpopo judge president candidates on the administrative requirements of the new division. These included ways to enhance case flow management processes and the delivery of judgments; how to improve access to the courts, especially for people living in the province’s more remote rural areas; and how to overcome language and ethnic issues that appear, on the surface, as potential obstacles to the smooth running of the division.
It was reported that the commission’s two-and-a-half hour deliberations which followed a gruelling interview of KwaZulu-Natal deputy judge president Achmat Jappie – the sole candidate for the division’s top position – saw initially opposed ANC commissioners being convinced towards a unanimous decision to appoint him. This would suggest that, in this JSC, there is greater room for improvisation away from the straitjackets of political party caucuses and voting for constituency over conscience.
The previous commission, with its eight ANC politicians, including former justice minister Jeff Radebe, appeared to contain a tightly whipped ruling party caucus. With political bruisers like Radebe and Minister of Mineral Resources Ngoako Ramatlhodi providing strict guidance, the previous ANC commissioners toed a narrow political line. Neither Motshekga nor Justice Minister Michael Masutha appear to have the political clout to manage current members, including strong-willed types such as Modise and Didiza, as tightly.
This has allowed for a measure of virtuosity in the ANC commissioner’s performances, which suggested more individualistic and idiosyncratic interpretations of the processes – largely refreshing and usually keeping time with the Constitution’s progressive tempo.
Ramatlhodi, as an example, was certain to interrogate candidates on judgments they had delivered, especially around socioeconomic rights, that found against government and, subsequently, their understanding of the separation of powers doctrine.
That line was barely pursued by ANC politicians during the three days of interviews at a Bantry Bay hotel. But questions about the separation of powers did come up, as when advocate Mike Hellens raised it during KwaZulu-Natal high court judge Trevor Govern’s interview for an SCA position.
Pointing to Govern’s high court dismissal of the National Prosecuting Authority’s charges of running a criminal enterprise against suspended KwaZulu-Natal Hawks chief, Major General Johan Booysen, Hellens asked the judge to explain how it – effectively a cancellation of a decision by an arm of the executive – did not infringe on the separation of powers.
Govern detailed his understanding of the doctrine and the dangers of encroachment before outlining his simple judicial opinion that “on the facts of the matter”, the “evidence before the National Director of Public Prosecutions (NDPP) [the then-acting Nomgcobo Jiba] was insufficient” to construct a winnable case.
Govern was quick to emphasise that his judgment was not about adjudicating Booysen’s guilt or innocence, but rather the merits of Jiba’s charges at that particular point, and based purely on the evidence before the NDPP used to construct the charges.
The separation of powers doctrine was raised again when Pretoria High Court judge Frans Legodi was interviewed for the Limpopo judge president’s position, which eventually went to his colleague, Mampura Makgoba.
A former commissioner at the Arms Procurement Commission chaired by judge Willie Seriti that is investigating government’s multibillion-rand arms deal in the 1990s, Legodi resigned just before it was about to commence hearings.
At the time, as commissioner, advocate Dumisa Ntsebeza SC pointed out there were media suggestions that Legodi had resigned because of the alleged secrecy with which the commission had been operating, the “covert handling of documents”, and the “iron-fist” with which Seriti was alleged to have run the commission.
Ntsebeza, Modise and Hellens were just some of the commissioners who probed Legodi on his actual reasons for leaving. They were mindful of the separation of powers doctrine and that the judge’s decision was announced via the presidency following Legodi’s audience with President Jacob Zuma.
That Legodi’s “personal” reasons remained confidential during a tough succession of questions suggested that the commission was not afraid to get tough in its establishment of the judicial integrity of candidates.
While not quite the emboldened new era that bebop suggested for jazz, the commission’s performance this week, including a phrasing and targeting in its play, was suggestive of new adventures, fresher perspectives and a more rigorous pursuit to the outer edges of its imagination.
KwaZulu-Natal Judge President: Judge Achmat Jappie
Limpopo Judge President: Judge Mampura Makgoba
Supreme Court of Appeal: Judge Nambitha Dambuza and Judge Rammaka Mathopo
Eastern Cape High Court: Advocate Gerald Bloem SC and Advocate Selby Mbenenge SC
Pic Credit: Chief Justice Mogoeng Mogoeng at the Judicial Services Commission, which held interviews for various divisions in Cape Town this week by David Harrison