JSC confounds at ConCourt interviews

This week’s sitting of the Judicial Service Commission (JSC) in Johannesburg to interview candidates for appointment to, or promotion within, the judiciary provided several moments that confounded expectations, raising questions about the rigour, focus, unacknowledged prejudices and insecurities of its members.

There was Michael Masutha, the justice minister, observing that Constitutional Court candidate Fayeeza Kathree-Setiloane came across “at best” as “fairly overbearing” during her interview. Kathree-Setiloane is a sharp-witted, smart, unapologetically independent-minded judge at the Gauteng High Court and Masutha has never levelled such an accusation against male judges of a similar ilk who have appeared before the JSC.

Kathree-Setiloane responded: “I am an assertive person and it’s the first time I have been called overbearing … Very often when a woman is assertive, she is seen as overbearing … I am assertive and I will not apologise for this.”

The exchange came at the end of a series of revelations concerning Kathree-Setiloane’s alleged mistreatment of her law clerks while acting at the Constitutional Court in 2017. This had apparently led to a letter of complaint against Kathree-Setiloane, written by clerks including the daughter of Supreme Court of Appeal president Mandisa Maya.

Maya’s recusal from the interviews, scheduled for Monday 8 April, resulted in a postponement to Wednesday 10 April to allow for a replacement to be sourced from the appeals court in Bloemfontein.

‘Exaggerated’ allegations

Kathree-Setiloane said the allegations in the letter had been “exaggerations”. She told the commission that she had requested a full inquiry so as to clear her name but that Deputy Chief Justice Raymond Zondo eventually resolved the matter.

“I was not happy that there was no inquiry … I needed a finding to be made,” she said.

Zondo, Kathree-Setiloane added, had apparently told her that so spurious were the clerks’ allegations “even her mother will give her a good scold about it”. The matter eventually led to one clerk reconciling with Kathree-Setiloane and continuing to work with her for the rest of the acting period, while the other was transferred to another judge.

Despite the matter being resolved and her telling the commission that this “was one clerk out of hundreds of people I have worked with who has had a problem with me”, the impression that Kathree-Setiloane was a spiky colleague appeared to linger with the commission. The JSC interviewed six candidates for the two vacancies at the Constitutional Court and hers was the only name not put forward.

The JSC is constitutionally obliged to nominate three judges more than the final number of appointments. It recommended Judges Zukisa Tshiqi, Stevan Majiedt, Jody Kollapen, Patricia Goliath and Annali Basson to President Cyril Ramaphosa.

Tub-thumping tangents

During the Constitutional Court interviews, there was the unedifying spectacle of another Gauteng High Court judge, Kollapen, helplessly attempting to retrieve a semblance of an interview from a series of tub-thumping tangents by Chief Justice Mogoeng Mogoeng.

Mogoeng was in a pulpit-pummelling mood, spending a chunk of Kollapen’s almost two-hour interview raging against various devils, including the potential for “judicial capture” not with money but through an intellectual co-option.

He stridently observed the danger of judges “outsourcing our thinking” and becoming “victims” of unnamed people, institutions and agendas (in the media and the academy… and the shadows, presumably) that apparently stroke the egos of judges to the point where they “do not want to be critical, you want to look like a superstar, when you are not”.

Kollapen tried valiantly to contribute when he could, suggesting that a particular “consciousness” was perhaps missing in some people’s make-up, compromising their independent-mindedness. He pointed out that despite these attempts at intellectual and jurisprudential “capture”, judges were not victims but had agency and they, like every South African, need to take responsibility for their actions – good or bad.

Mogoeng appeared to be in a paranoid mood, saying that his concerns about “judicial capture” may be misunderstood “because sometimes I am [misunderstood], deliberately so”.

This paranoia may have sprung up during the interview with Goliath, the deputy judge president of the Western Cape High Court, putting the chief justice in so sour a mood that the milk in his neighbour’s coffee must have curdled.

Academic criticism

Justice Azhar Cachalia, standing in for Maya, had drawn the attention of all Constitutional Court candidates to academic criticism of the recent commercial law judgments emanating from the country’s highest court. He had asked the candidates if they were aware of the criticisms and, if such a deficiency of expertise in commercial law matters existed at that court, whether their experience on the bench would remedy this.

Judicial Service Commissioner Sifiso Msomi had drawn Goliath’s attention to an article critical of the Constitutional Court deadlocking at 5-5 in the case Jacobs and Others v the State, where the applicants had used a 2017 judgment, Makhubela v the State, to argue for the court to hear its case.

Mogoeng had been absent from court for the Jacobs matter – as he has been for comparatively large swathes of the past two years – and only six permanent judges heard the case. Makhubela v the State had contradicted all the court’s previous jurisprudence regarding whether or not it could interfere in a matter where the lower court had got its facts wrong, or had incorrectly applied a settled legal principle to the facts before it. The judgment was an embarrassment, as the article by academic Pierre de Vos pointed out.

The major issue in the Makhubela judgment was the Court’s interpretation of the common purpose doctrine. In Makhubela the Constitutional Court had referenced its 2003 judgment in Thebus and Another v S for a proposition which Thebus did not support.

Goliath, who had sat on the Jacobs matter, said the deadlock was unfortunate but commonplace in other jurisdictions, like the Supreme Court in the United States. Msomi went on to ask Goliath for a definition, which was “not a textbook one”, of the separation of powers doctrine and give an example of one of her own judgments that grappled with, or reflected, the principle.

After a routine response from Goliath, during which she cited the Constitutional Court’s judgment on e-tolling, which she had not written, Mogoeng chipped in again.

Noting that there was a “trend” and a “campaign to attack me” and a “concerted effort to discredit me” and the “time spent at court”, Mogoeng suggested there was little importance in media or academic articles that analysed the court’s work.

“I read these academic articles sparingly,” he said.

Focus, and lack thereof

While Mogoeng’s diatribes punctuated the interviews for the Constitutional Court positions, he was not alone in irrelevance.

Masutha spent his question time canvassing the judges’ thoughts on the efficacy of the 17th Amendment to the Constitution, which extended the jurisdiction of the highest court and increased its caseload substantially – something perhaps better explored with judges and in Parliament before the Amendment Bill was passed into law in 2012.

There were a few commissioners, such as Msomi, who remained focused in their exploration of judges’ judicial philosophy and an examination of their judgments.

Commissioners Thoko Didiza and Thandi Modise were trenchant, as usual, in their quizzing on gender rights and the effects of the law on marginalised rural communities. Attorney Mvuso Notyesi probed around the underdevelopment of customary law and his counterpart, CP Fourie, was his usual steady, precise self in asking questions about law and ethics.

But overall the commission appeared more interested in enquiring after the fractious state of the appeals court and asking questions better suited to lawyers looking to be appointed to the high court, such as their transformation record at the Bar when bringing in black and female juniors.

This is a disservice. South Africa is a constitutional democracy, its founding document a transformative one that lays clear its intentions in the preamble.

The Constitution

Mindful of the “injustices of the past”, South Africans adopted the Constitution as the supreme law of the Republic in 1996 so as to heal historical divisions and establish a society based on democratic values, social justice and fundamental human rights.

The Constitution aims to lay the foundations of a democratic and open society in which every citizen is equally protected by the law, and there is universal franchise and improved quality of life for all, thus freeing the potential in each of us.

The judiciary is the arm of government most responsible for saying what the Constitution means. If the JSC cannot get judges to do so when they are being interviewed for positions at the Constitutional Court – through an exploration of their humanity and empathy for their fellow South Africans, through a rigorous examination of their jurisprudence and their judicial philosophy, and through a test of their temperament and basic decency – then the country is being done an injustice.

Judicial Service Commission nominations

Supreme Court of Appeal Judges Zukisa Tshiqi and Stevan Majiedt, Gauteng High Court Judges Jody Kollapen and Annali Basson, and Western Cape Deputy Judge President Patricia Goliath were nominated to fill two vacancies at the Constitutional Court. The president decides which two judges will be appointed.

Supreme Court of Appeal Judge Xola Petse was recommended for appointment as deputy president of that division.

High court judges Caroline Heaton Nicholls (Gauteng), Yvonne Mbatha (KwaZulu-Natal), Dan Dlodlo (Western Cape) and Clive Plasket (Eastern Cape) were recommended to fill the five vacancies at the appeals court, together with Limpopo Deputy Judge President Fikile Mokgohloa.

The JSC declined to nominate any candidates for the vacancy at the Eastern Cape High Court and the deputy judge president position in the Northern Cape High Court.

* This article was amended on 5 April 2019 with the following paragraph added for clarity:

The major issue in the Makhubela judgment was the Court’s interpretation of the common purpose doctrine. In Makhubela the Constitutional Court had referenced its 2003 judgment in Thebus and Another v S for a proposition which Thebus did not support.

Niren Tolsi

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