The Deputy Judge President of the Eastern Cape High Court sitting in Bhisho since 2016, Judge David Van Zyl had acted in that position for three years prior to his permanent appointment. He had previously acted for two years at the Supreme Court of Appeal and at the Labour and Labour Appeal Courts.
He was interviewed for the judge president vacancy in April 2017 but was, curiously, unsuccessful — perhaps his race and concerns about transformation of the Eastern Cape division had acted against him. Of the 27 judges in the Eastern Cape, 15 are white males.
Quietly spoken and in stark contrast to his competitor, Judge Selby Mbenenge, Van Zyl is much more the introvert. A hardworking administrator, however, he has effected turn-arounds in the efficiency of the Bhisho high court. He detailed how the introduction of case flow management at the Bhisho seat of the Eastern Cape Division of the High Court had seen a 79% finalisation rate of criminal matters in 2016.
In a 2004 judgment, Steenkamp NO v Provincial Tender Board, Eastern Cape, Van Zyl dealt with one of the earlier cases involving the shady social grants dispensers, Cash Paymaster Services (CPS). CPS been successful in its application to have the awarding of social grant payment tenders to various companies, including one called Balraz, set aside because of alleged irregularities.
Two companies were subsequently awarded the tenders, but Balraz did not tender as it was in liquidation. The plaintiff, Balraz’s liquidator, lodged a claim for damages.
Van Zyl concluded that the plaintiff has not established the delictual requirement of wrongfulness. The claim was dismissed with costs. The decision was upheld by the Supreme Court of Appeal and the Constitutional Court.
He has dealt with the murky world of tenders and kickbacks in several court cases, including EsorFranki Pipelines (Pty) Ltd and Another v Mopani District Municipality and Others (2014) which was heard in the Supreme Court of Appeal (SCA).
In that case two unsuccessful bidders had asked that district municipality’s awarding of a tender to build reservoirs and a pipeline to a joint venture be reviewed and set aside. An agreement was reached that the tender be re-adjudicated. The joint venture again won the tender and the disgruntled companies EsorFranki and Cycad Pipelines took the matter to court again.
At the SCA, Van Zyl, with a full Bench concurring found that the first decision by the high court, that the warding of the tender was unlawful, “was undermined by the order that the joint venture continue the work”.
Noting the concerns of “pragmatism and practicality” that may have concerned the lower court, Van Zyl was however critical of the major players. He found “the parties to that contract had acted dishonestly and unscrupulously and the joint venture was not qualified to execute the contract.”
He was as scathing of the municipality, finding the “manner in which” it has “conducted itself in the litigation also calls for censure. Instead of complying with its duty to act in the public interest and to allow the serious allegations of fraud and dishonesty in the tender process to be ventilated and decided in legal proceedings, it chose to identify itself with the interests of the tenderers who stood accused of improper conduct.”
Van Zyl, who admits to being a bit of a “softie” is a tax law specialist. He has previously worked as a state prosecutor and a senior lecturer at the former University of Transkei (now Walter Sisulu University) in the 80s. He practised as an advocate from 1988-97 before acting stints on the Bench led to permanent appointment in 1997.
Van Zyl holds a BA, LLB and LLM from the University of Stellenbosch and a post-graduate diploma in tax law form the University of South Africa.
October 2017 Interview:
October 2017 interview synopsis:
With biblical references being thrown around like lassoes looking for approval during Judge Selby Mbenenge’s interviews for the Eastern Cape High Court Judge President position, it was surprising that no commissioner uttered anything about “the meek inheriting the earth” during Deputy Judge President David Van Zyl’s interview.
Where Mbenenge is a self-confessed “extrovert” the quietly spoken, almost sonorous Van Zyl is “practical”. Where Van Zyl is studiously frumpy and steady, Mbenenge has a glint of flash and slickness about him. They both admitted a long-standing friendship and respect for the other during their interviews.
Each played to their own strengths. Van Zyl expanded on his experience in the leadership and administrative roles he has filled in the Eastern Cape, including when he had acting as judge president. He highlighted the “practical” turn-arounds he had implemented in the Bhisho seat of the Eastern Cape High Court to ensure speedy delivery of judgments and access to justice.
Van Zyl said the Eastern Cape division had “been treading water for too long” regarding improving functionality and access to justice and he stressed the changes required to ensure “open doors” for litigants seeking justice.
Several commissioners pushed Van Zyl on whether his appointment would fit with the Constitutional imperative that the judiciary broadly reflect the race and gender demographics of the country.
He told the commission that the Constitution, looking back into history, had looked to address the situation in 1994 where the judiciary was almost exclusively white and male — which was required.
Van Zyl then noted that the Constitution was also “forward-looking” and “what it envisages is the establishment of a non-racist, non-sexist, equal society founded on human rights”. In this instance, Van Zyl continued, his vision for a more effective and accessible Bench, as well as the “diversity” he brought from his life experience as a white male, would be in keeping with the Constitution’s vision.
Supreme Court of Appeal President Mandisa Maya noted, with concern, that only nine of the 28 judges in the Eastern Cape were women and that of those, only three were black.
Agreeing, Van Zyl observed that a “majority” of women were acting in the division and coming before the Judicial Service Commission to be interviewed — only to fail at this hurdle. Noting that many of the candidates were being drawn from the magistracy, Van Zyl said more attention needed to be paid to “identifying shortcomings” of each acting judge and addressing these through focused mentorship and skills improvement.
“For me it makes no sense to bring in a magistrate and to put them in the criminal court… that judge needs to be capacitated and put into the civil courts [to gain experience in adjudicating those cases] and given mentorship,” Van Zyl said.
Van Zyl said he supported drawing in more academics to act in the high courts. He said the legal profession had to take some responsibility for its transformation and, consequently, that of the judiciary, by addressing skewed briefing patterns which favoured white males. He said this would ensure black women, especially, were exposed to a variety of law that would set them in good stead for judicial appointment later in their careers.
Towards the end of his interview Van Zyl was given a torrid time by Chief Justice Mogoeng Mogoeng regarding his appraisal of the problems in the other seats of the Eastern Cape Division — areas outside his ambit as deputy judge president and questions he had not asked Mbenenge.
Despite Mogoeng stating that he was not “badgering” Van Zyl, the candidate did appear flustered by a barrage of questions and interruptions to answers by the chief justice. Mogoeng pushed Van Zyl on problems in the magistracy and the shortage of judges in the the division.
He also criticised van Zyl for not “proffering practical solutions” to problems in other courts.
“If you don’t even know the diagnosis, what injection would you give… I thought as a leader you would have worked out some plan, however it may be,” Mogoeng thundered.
April 2017 interview:
April 2017 – Interview Synopsis
Asked by Eastern Cape Judge President Themba Sangoni whether his appointment, as a white male, would help in transforming the judiciary, Deputy Judge President David Van Zyl agreed that the “Constitution envisages a transformed judiciary… and specifically that it reflects the gender and race demographics of South Africa.”
Van Zyl, whose candidature is supported by law bodies like the Black Lawyers Association, said that transformation also included the “functioning of the courts in line with the Constitution… I can effect a contribution in that regard.”
“Access to justice is very dear to me,” he said, “on that basis I would submit to you that my appointment would enhance the transformation of the courts.”
“The courts require a skilled, very dedicated and hardworking judiciary… I am not scared to work, I think I can set an example and encourage and inspire people,” he said.
“I am supported by black practitioners and they trust me to enhance transformation,” he said.
Van Zyl appears to have diligently effected turnaround in the efficiency of the Bhisho seat of the Eastern Cape Division of the High Court. He detailed how the introduction of case flow management in Bhisho had effected turn-around which had seen a 79% finalisation rate of criminal matters in 2016.
He said, if appointed, he would introduce the system to the other courts in the province, which where lagging behind. He noted that while the PE and Grahamstown seats had finalisation rates for criminal cases of 64% each, Mthatha was extremely low at 32%.
Van Zyl said the problems at Mthatha lay with partly heard criminal matters which was creating a backlog in the court. This prevented new cases being enrolled and inhibited the swift dispensing of justice. Van Zyl said he would address this problem “robustly” by calling judges in over the recesses to finalise the cases in line with targets that would be set.
Pinpointing the large number of matters being postponed at the circuit courts, Van Zyl said he would meet with judicial officers, police and the Legal Aid Board to ensure a smoother running of these courts since postponements were a “waste of the court’s time and resources and the justice department’s money”.
Practical steps Van Zyl had taken to effect a turn-around in Bhisho included building morale amongst all staff at the court, including court orderlies, stenographers and court interpreters. He said regular meetings with the different staff, to cajole, praise and relay criticism and complaints from judges so that he could “instill a sense of pride in working together, and in the institution” had “worked wonders”.