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Appeal court frontrunner and female judge accused of being ‘abrasive’ at Judicial Service Commission

Appeal court frontrunner and female judge accused of being ‘abrasive’ at Judicial Service Commission
Rebecca Davis
By Rebecca Davis
17 Apr 2023
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Judge Mahube Molemela is President Cyril Ramaphosa’s preferred candidate to be the next head of the Supreme Court of Appeal, and her appointment looks secure after a largely respectful hearing at the Judicial Service Commission on Monday. But Judge Molemela was still faced with an age-old accusation towards successful women.

Judge Mahube Molemela’s barnstorming judicial career looks set to culminate in her appointment as the next head of the Supreme Court of Appeal (SCA).

Molemela, currently on the Bench at the SCA, appeared before the Judicial Service Commission (JSC) on Monday in what was largely a box-ticking exercise following President Cyril Ramaphosa’s February announcement that he intended to appoint her to lead South Africa’s second-highest court.

Molemela replaces Judge Mandisa Maya at the top of the SCA, with Maya having left the court in September 2022 to take up the role of Deputy Chief Justice. Molemela has served as a justice of the SCA since 2018, following a stint as the Free State Judge President.

Molemela’s impressive credentials speak for themselves. Chairing the JSC session on Monday, Chief Justice Raymond Zondo pointed out that she has acted in every appellate court in the country.

On hearing that only three of her judgments have been overturned in a judicial career of 15 years, Zondo commented: “That’s a very good record.” 

Other commissioners seemed similarly impressed — with the exception of Molemela’s current acting boss, Judge Xola Petse.

Judge Xola Petse slings tired accusation


Some thought Petse was a shoo-in to replace Maya in a permanent capacity at the SCA, since he served as Maya’s deputy and has been acting in the top post for the last six months. The National Association of Democratic Lawyers (Nadel) went public with their endorsement of Petse in the role — and suggested Molemela should serve as Petse’s deputy.

But Petse may have cooked his own goose through his abysmal chairing of the JSC interviews for Chief Justice in February 2022, where he allowed proceedings to spiral into something close to chaos — doing nothing to prevent the ambushing of Judge Dunstan Mlambo with anonymous sexual harassment rumours, or the sexualising of Judge Maya by commissioner Dali Mpofu, or the insulting of Judge Zondo by commissioner Julius Malema.

What Petse presided over was widely regarded as the nadir of the increasingly dysfunctional JSC in recent years, and certainly did not provide a ringing endorsement of his judicial leadership. It is difficult not to suspect that Ramaphosa might have been influenced by those events when he chose to overlook Petse in favour of Molemela as his pick for SCA head.

Although Molemela had earlier told the JSC that Petse had explicitly given his support for her candidacy, there was little sign of that camaraderie on display when Petse got the chance to question Molemela.

First pointing out that Molemela was only the eighth most senior SCA judge, and that her appointment would mean she “leapfrogged” seven colleagues who had been longer on the Bench, Petse questioned whether Molemela would truly “command the respect” of her colleagues.

“Respectfully, Acting President, I want to point out that when you were appointed, you were appointed ahead of colleagues who were senior to you,” Molemela responded, noting that this was common practice across the South African judiciary.

Petse followed up with an age-old accusation levelled at prominent women: What was Molemela’s response to “those amongst us who think that sometimes when you articulate your views, you tend to be abrasive?”

“No one has ever raised that with me,” Molemela replied.

It is worth noting that questioning judicial candidates on their interpersonal skills happens fairly frequently at the JSC, and is not necessarily irrelevant — since a high premium appears to be placed on individuals who have the ability to maintain collegial relationships with peers on the Bench.

In Molemela’s case, however, the charge seemed absurd given that the judge is well known for her warm, personable character.

Indeed, assessing Molemela’s previous performance at the JSC, judicial watchdog Judges Matter recently wrote that her “mix of likeability, determination and substance has usually proved successful”.

In a subsequent veiled rebuke to Petse, JSC commissioner Kameshni Pillay reassured Molemela: “You are not the first outspoken woman in the professional space, and definitely not in the legal space, to be accused of being abrasive. And I’m sure you won’t be the last, either.”

JSC continues improved performance


This aside, the JSC on Monday mercifully showed indications of continuing down its path in recent months of improved performance. As previously observed, the removal of Dali Mpofu as commissioner appears to have done wonders. Replacement commissioners like Pillay, Professor Clement Marumoagae and advocates Carol Steinberg and Tembeka Ngcukaitobi, continue to raise the body’s game with thoughtful and substantive questioning.

Molemela mostly held her ground solidly, though some will have perceived a certain degree of fence-sitting — ironic, given the accusations of abrasiveness — when it came to being probed on matters relating to her personal jurisprudential philosophy.

Possibly the most interesting views she advanced during her 3.5-hour interview were with regard to the responsibilities of judges to the South African public. How much judges should say publicly outside their own courtrooms is the subject of ongoing debate, with former Chief Justice Mogoeng Mogoeng on a number of occasions felt to have overstepped the mark.

Since then, it has been usual for candidates in front of the JSC to take a conservative position on the matter, and urge judges to err on the side of caution in deciding what — if anything — to say in public.

Molemela’s views are quite different. In order to raise declining public confidence in the judiciary, she believes judges should visit schools, give radio interviews and participate in panel discussions — to help address the perception of judges as disengaged from their wider society.

Of course, there should be some guidelines on appropriate practice here, she added, saying: “If it would be structured, there’s no fear of crossing the line… Where we hold the view that we would be straying too far, we simply don’t answer that specific question.” 

Molemela aims to continue optimum performance of SCA


The judge told the JSC that the appeal court was already meeting its performance targets, and her job as president would be to fine-tune an already “well-oiled machine”.

Among the practical issues Molemela has earmarked for priority in addressing, however, are the shortage of resources ranging from law journals to legal researchers at the SCA, and the fact that internet connectivity is so poor that it has hampered the adoption of the digital CaseLines system. DM

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