Without Dali Mpofu, JSC manages mercifully orderly SCA judge candidate interviews

5 Oct 2022

Perhaps it is the fact that Dali Mpofu is no longer a commissioner. Perhaps it’s down to the calming influence of Judge Mandisa Maya as chair. Whatever the reason, the Judicial Service Commission (JSC) interviews this week to shortlist new Supreme Court of Appeal judges have proceeded in a miraculously smooth and dignified manner.

Two incidents this week served as a reminder of just how dysfunctional Judicial Service Commission (JSC) interviews of judge candidates had become in the recent past.

The first was when Judge Piet Koen, interviewing for one of five Supreme Court of Appeal (SCA) vacancies, recalled his appearance before the JSC in April 2021.

The April 2021 JSC interviews for the Constitutional Court marked the high watermark of JSC defectiveness, with the session having to be entirely rerun following a successful court challenge. Those interviews were so bruising that at least one candidate — Judge Dhaya Pillay — has never appeared before the JSC since. Few would blame her.

Those interviews were chaired by then Chief Justice Mogoeng Mogoeng, who was personally responsible for some of the most questionable behaviour. When KwaZulu-Natal High Court Judge Piet Koen entered his sights, Mogoeng gave him a now notorious tongue-lashing on the basis of Mogoeng’s claim that Koen had been rude to him in a meeting five years earlier.

Amid a subsequent uproar from the KwaZulu-Natal legal fraternity on Koen’s behalf, it was then reported that Mogoeng had mistaken Koen for a different judge.

But for Koen, the damage was done. This week, he told the JSC that such was his devastation following the interview, he considered leaving the judiciary altogether. Anyone googling him could easily access the footage of Mogoeng’s tirade against him, Koen said.

“That’s going to remain with me for the rest of my life,” the judge reflected.

Given experiences like Koen’s, it was little wonder that a day later during the current interview session, Judge Elias Matojane would more or less plead with the JSC not to ruin his reputation.

“I may be in court tomorrow and if I am to avail myself to this process and get humiliated, what are we saying to the parties who are appearing before us?” Matojane asked.

“If in this platform it is insinuated that I don’t know what I am doing, why should litigants accept that she or he was unsuccessful in a matter — when that litigant knows that I don’t know the law?"

Visit Daily Maverick's home page for more news, analysis and investigations

Little cause to worry

Fortunately, Matojane and his 10 fellow SCA candidates had little cause to worry this time around.

With Chief Justice Raymond Zondo on leave, the current JSC interviews are being chaired by Deputy Chief Justice Mandisa Maya. It may be Maya’s calming presence having a positive impact on commissioners, but the SCA interviews this week were arguably the most functional set of grillings we have seen from the JSC in years.

Another important factor is the crucial absence of former commissioner Dali Mpofu, whose stint on the JSC has expired. It would be unfair to lay all responsibility for the JSC’s recent malfeasance on Mpofu. But together with his EFF comrade Julius Malema, and with the assistance of other commissioners like Griffiths Madonsela, Mpofu had in recent years seemed to helm a sort of JSC hit squad, which saw proceedings become ever more politicised and candidates ever more humiliated.

Both Mpofu and Madonsela are now gone. Fresh blood in the form of replacement commissioners like advocate Kameshni Pillay and Professor Clement Marumoagae has almost tangibly upped the energy of the body, with both Pillay and Marumoagae supplying notably substantive contributions.

The issue of racial and gender transformation was treated as significant during the interviews — an unusual proportion of the candidates were white, and the dearth of female judicial leadership is an increasing concern — but did not dominate proceedings in the manner it has in the past.

Candidates were also asked to define their judicial philosophy; quizzed on the view that the law “is the weapon of those who own the economy to consolidate their power in society”; and grilled on their adherence or lack thereof to legal precedent in their judgments.

The candidates also faced some tough questions about their personal abilities in areas like judgment writing. Indeed, one concerning aspect of these SCA interviews was the number of candidates with years of judicial experience accused of having problems with writing judgments — based on testimonials from colleagues or from the judicial leaders on the JSC.

Judges Anna Kgoele, Mandela Makaula, Daisy Molefe and Sulet Potterill were all charged with writing judgments which required some degree of “panel-beating” by colleagues or seniors to get them into shape.

Judge Bashier Vally, meanwhile, resorted to acknowledging that he had “made many errors of fact in many judgments” he had written.

An awkward exchange

Possibly the most awkward exchange on this topic took place between Judge Mandela Makaula and Deputy Chief Justice Maya, who had opened Makaula’s interview by disclosing that the two were old friends.

Maya asked Makaula: “Do you believe that you are at a stage where you can write a good judgment without the need to have your hand held?”

Makaula answered in the affirmative.

“That was not my experience [of you],” Maya responded.

One wonders if the friendship survived the interview.

Two candidates were also accused of absconding from work without permission. Judge Daisy Molefe had to apologise for the fact that she was, in Judge President Xola Petse’s words, “consistently during the term … not at court and no one knew your whereabouts” — even though she disputed the frequency with which Petse claimed this happened.

And Judge Makaula was once again exposed by his old pal Maya for a “shocking and unprecedented” action in being AWOL on a work day when he was responsible for writing a judgment.

“I made a mistake,” confessed Makaula, who further admitted in the course of his interview that he was “not computer-literate”.

These revelations about experienced judges are concerning, but one distinct silver lining is that they were aired by the JSC in a vastly more respectful tone than commissioners have adopted towards candidates in the past.

Almost entirely gone, too, was the old JSC trick of trying to force judge candidates to give opinions on politically sensitive matters — in which Malema, in particular, has specialised in the past.

There was one such moment in these SCA interviews which felt like déjà vu: when Malema asked Judge Matojane his views on the benefit of sending an elderly person to jail.

This was a clear reference to former president Jacob Zuma, with Matojane having ruled in 2021 that Zuma’s release from prison on medical parole was unlawful.

Matojane, however, was having none of it.

“The short answer is that you want to get me into trouble by giving an opinion on a hypothetical set of facts,” he told Malema, adding: “And, secondly, I know where you are going with that question — that matter is pending before the Supreme Court of Appeal. I am out of it.”

The five candidates the JSC ended up recommending to President Cyril Ramaphosa for appointment to the Supreme Court of Appeal this week were judges Glenn Goosen, Daisy Molefe, Pieter Meyer, Sharise Weiner and Elias Matojane. DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa

Little cause to worry

An awkward exchange