JSC forges ahead despite Hlophe’s brinkmanship, with three judges winning appeal court nod

The uMkhonto Wesizwe (MK) party has tried everything to stop the Judicial Service Commission (JSC) from proceeding with judge interviews without the party’s JSC deployee, John Hlophe, this week: court interdicts, the threat of protests, and now the resignation of Hlophe himself from the body.

Hlophe’s resignation, announced as the JSC was wrapping up its first day of interviews, is less likely to be an admission of defeat than a legal strategy, as MK hinted in its statement on the matter.

“The MK Party maintains that the composition of the JSC without Dr Hlophe’s participation as a representative from the leading opposition party is in violation of Section 178(1)(h) of the Constitution,” it stated.

“The JSC has failed to meet the prescribed minimum threshold of three members from the opposition parties.”

Addressing a press conference on Monday evening, JSC spokesperson Sesi Baloyi said the body had yet to receive formal notification of Hlophe’s resignation from the Speaker of Parliament, as was required.

“As matters stand, we don’t have anything that causes us not to proceed with the interviews,” said Baloyi.

If they were to receive such notification before Tuesday morning’s sitting, Baloyi said a meeting of the JSC would be urgently convened overnight to “consider our position” in terms of the Constitution and the JSC Act.

Judges Matter’s Mbekezeli Benjamin posted on X, however, that in his estimation the resignation of Hlophe would not affect the legal standing of the JSC.

Read more: Impeached judge John Hlophe barred from JSC processes, Western Cape High Court rules 

Three judges win nod to SCA 

After the first day of sittings, the JSC announced that it would nominate Judge Elizabeth Baartman, Judge Piet Koen and Judge Philip Coppin to fill three vacancies on the Supreme Court of Appeal (SCA).

All three judges had previously interviewed for SCA posts and been unsuccessful.

Possibly the most surprising outcome was the nod given to Judge Elizabeth Baartman, a Western Cape High Court judge who has given a consistently mixed performance before the JSC.

When Baartman appeared before the JSC in May, commissioners seemed unconvinced by her ability to explain fairly basic legal concepts, including the separation of powers.

Asked to articulate the distinction between the Department of Justice and the Office of the Chief Justice on that occasion, Baartman responded: “The Department of Justice is the Department of Justice, and the Office of the Chief Justice is just the judiciary on our own.”

During Monday’s sitting, it was raised that the General Council of the Bar (GCB) had flagged concerns about Baartman’s jurisprudence, including one judgment in which she came to a conclusion the GCB labelled “legally untenable”.

‘Are you a white male?’

The interview of Judge Phillip Coppin of the Gauteng High Court got off to an unexpected start when Chief Justice Mandisa Maya asked Coppin: “Are you a white male?”

Prefacing the query with: “It’s a nasty question, but we live in South Africa and this is an issue for us,” Maya pointed out that Coppin had self-identified as mixed-race — but one of the professional bodies weighing in on his candidacy had described him as white.

Asked to clarify if he was indeed a white male, Coppin shot back: “I don’t know which white male would be born in Kliptown, Soweto.”

Reflecting on his biracial origins, Coppin also remarked that he had experienced difficulty securing articles because “I was either not black enough or not white enough.”

In Monday’s interviews, however, the issue of race in general was markedly less of a focus than in previous iterations of the JSC — where it was common for white candidates to be grilled at length on their attempts to grapple with their privilege and the extent to which their appointment could be said to be aiding transformation efforts.

Judge Piet Koen, of the KwaZulu-Natal High Court, was asked directly on Monday by commissioner Tembeka Ngcukaitobi whether he had brought “black people and women” on to cases to act as Koen’s junior counsel when he was an advocate.

Koen’s explanation — that when he left the bar in 2006, it was not usual to involve juniors — appeared to be accepted without much pushback: a far cry from previous JSC sittings, where one could have depended on this issue being discussed at length.

Political judgments highlighted

One thing that has not changed in this latest version of the JSC, however, is the tendency for judgments involving political issues to be pored over at length by commissioners.

Appearing before the commission on Monday was KZN High Court Judge Mahendra Chetty, the only candidate of the six not to have been interviewed previously for the SCA, and who was ultimately unsuccessful.

In April, Chetty presided over the application brought by the ANC to have the MK party’s name and logo declared a breach of trademark and ruled that the ANC had failed to make a sufficiently strong case.

This one judgment consumed a significant amount of Chetty’s interview, with ANC NCOP MP Kenny Mmoiemang kicking things off by questioning whether the judge had given sufficient consideration to the “first to use” principle, which protects unregistered trademarks.

Chetty’s attempt to “respectfully sidestep” the question on the grounds that he had granted leave to appeal his judgment fell on deaf ears, with the issue subsequently taken up by another two commissioners.

What, one wonders, might John Hlophe have had to contribute to this particular discussion?

Judge Koen was also asked to traverse territory already covered in his May interview: namely, his contentious decision to recuse himself from presiding over the corruption case of former president Jacob Zuma in January 2023.

Koen was effectively rebuked for this decision by both former Chief Justice Raymond Zondo and other JSC members at his interview six months ago, and on Monday DA MP Glynnis Breytenbach brought it up once more — asking if the judge regretted his decision, “bearing in mind that recusal has set the matter back three years”.

Koen begged to differ, saying that another judge was appointed to hear the matter shortly after his recusal and that the subsequent delays were not the result of his move. He added that in 18 years as a judge, he had recused himself just once: on the Zuma matter.

Interviews for the land court, labour court and Eastern Cape High Court continue on Tuesday. DM