Free State Deputy Judge President Cagney Musi has worked his way through the magistracy to his current position. He appears to have been groomed by his former boss, Mahube Molemela, who was appointed to the Supreme Court of Appeal (SCA) after the April 2018 round of Judicial Service Commission (JSC) interviews.
During her interview for SCA appointment Molemela was at pains to convince the JSC that she had already set in motion a succession plan (Musi) if appointed to the appellate court. How the JSC reacts to being given an appointment on a platter may either provides fireworks, or peter out into a damp squib of an interview.
Another potential conflagration point could be around the long-running charges of gross misconduct against John Hlophe, Judge President of the Western Cape Division of the High Court.
Musi was part of the judicial conduct tribunal which was set to finally hear the matter in July this year, but was asked by Hlophe to recuse himself because he had allegedly made disparaging remarks against the Judge President at a 2017 social gathering in the presence of other judges in KwaZulu-Natal.
In an affidavit submitted to the tribunal, Hlophe said: “It was reported to me that Honourable Mr Justice Musi uttered words to the effect that it was not surprising that I would act in the manner described in that judgment [from the Supreme Court of Appeal which Hlophe did not mention in his affidavit]…. as this was consistent with my controversial character”. It is believed the judgment Hlophe refers to is a 2017 one where the SCA was critical of Hlophe for assigning himself a high court matter in which his own attorney, Barnabas Xulu, was involved.
Musi said he had initially refused to recuse himself but had a change of heart “in the interests of the judiciary”. The judicial conduct tribunal is yet to sit. But sitting on the JSC is Hlophe’s counsel, Advocate Thabani Masuku SC, which could make for interesting (inter)viewing.
Musi certainly appears qualified to head the division. He has acted as Judge President of the Free State Division of the High Court for several stints from 2015 to 2018.
When availing himself for the Free State Deputy Judge President position in 2017, Musi was nominated by high court colleague Judge Andre Le Grange who studied with him at the University of the Western Cape (UWC) and also worked alongside him in the magistrates’ court.
In his letter of nomination, Le Grange credited Musi for “conceptualising” the Regional Court Co-ordinating System to manage case flow in the Western Cape magistracy. The system was eventually rolled out to magistrate’s courts around the country, according to Le Grange.
This sort of innovation is sure to draw favour from commissioners like Chief Justice Mogoeng Mogoeng who is stickler for smooth case-flow in divisions and the timely handing down of judgments.
Musi has previously acted at the Constitutional Court.
Among his reported judgments, Musi clarified the definition of “rape involving the infliction of grievous bodily harm” as used in the Criminal Law Amendment Act in State v Rabako.
Sitting on the Labour Appeal Court he dismissed an appeal brought by the Mpumalanga health minister relating to the firing of a doctor who had facilitated the provision — at no cost to the state — of anti-retrovirals (ARVs) for rape survivors at a state medical facility.
In dismissing the case and awarding Dr Malcolm Naude ten months’ salary as compensation, Musi agreed “that it was not the government’s place to decide what kind of treatment a doctor should give a patient”.
In Naude v MEC for Health Mpumalanga, which was highly critical of the state’s handling of the matter, Musi noted that the provincial minister’s stance was a “blatant interference by the government in the doctor-patient relationship”.
Sympathetic of Naude’s view that “the government was not in favour of any forms of HIV drug-based therapy, because at the time beetroot, garlic and olive oil took precedent over medication,” Musi also pointed out the contradictions in the government’s official stance on ARV roll-out: “Rape survivors did not have access to ARV’s. Paradoxically, though, if any medical personnel at any health facility under the auspices of the respondent pricked himself or herself with a needle suspected of containing HIV contaminated blood that person would, in terms of the respondent’s policy, have a right to PEP at government expense.”
In Kouga Municipality v The South African Local Government Bargaining Council and Others, Musi outlined why he had set aside, with costs, a review application brought by a bureaucrat from the municipality who asserted that he had been delegated by the municipal manager to institute the legal proceedings.
The ruling, which shed light on the role of municipal managers, found that while they do have the power to sub-delegate, the power was not “unfettered”.
A municipal manager’s power, Musi wrote, “is subject to council approval. If that sub–delegation is not approved by the council it will be improper.”
Musi obtained a Dip Juris, BA and an LLB from UWC and later, a BA Honours and LLM from the University of Cape Town. He worked as a prosecutor from 1986 until 1992, when he was appointed to the magistracy. He was appointed a judge of the Free State High Court in 2005 and has served at a judge of the Labour Court and acted at the Labour Appeal Court. Musi is the chairperson of the Independent Commission for Remuneration of Public Office Bearers.
October 2018 JSC Interview:
October 2018 Interview synopsis:
An apparent shoo-in to head the Free State Division of the High Court after being given the unofficial ‘stamp of approval’ by his predecessor Mahube Molemela, Deputy Judge President Cagney Musi was duly recommended for appointment by the Judicial Service Commission after a fairly easy interview.
The only potential cropper appeared to be the complaint lodged by Western Cape Judge President John Hlophe against Musi regarding disparaging remarks the latter was alleged to have made at an informal gathering of judges in KwaZulu-Natal. Following the complaint Musi — after initially refusing to — recused himself from the disciplinary conduct tribunal set to hear a matter relating to Hlophe in July this year. The tribunal’s work has yet to begin.
Advocate Lindi Nkosi-Thomas, one of four presidential appointments to the commission, asked Musi whether this complaint should cause the JSC to “defer the decision for appointment” until the matter was resolved? Musi told the commission that as far as he was concerned the JSC had not notified him of any complaint against him so he did not consider this an impediment for appointment.
Later, EFF leader and member of parliament, Julius Malema, pushed Musi in whether there was a complaint against him. Musi reiterated that a complaint may have been lodged but the JSC had yet to inform him of the complaint in writing and to ask for his response. Musi added that while, “factually” it may be correct that there was a complaint against him, he had yet to see sight of it.
Asked about the importance of dissenting judgments, Musi said these add positively to the development of the law since these “give you a different perspective from the same factual matrix, a different interpretation of the law…this is good for the development of the law,” said Musi.
Musi told the commission that his considerable experience as acting judge president of the division had seen him already address issues relating to appeals, Legal Aid Board, magistrate court problems and the timeous handing down of judgments.
As an example he said he had leavened the magistrates court roll when dealing with informal mining by foreigners in the Welkom area of the province by dropping certain charges which may have led to long-winded prosecutions. This allowed those informal miners who were in the country illegally to be repatriated more swiftly.
Hlophe Tribunal Meeting – 2 July 2018:
October 2016 JSC Interview:
October 2016 Interview synopsis:
As chairperson of the Independent Commission for Remuneration of Public Office Bearers, Free State High Court judge Cagney Musi makes recommendations on pay increases for members of parliament.
So his presence in the interview chair immediately induced some light-hearted, slightly obsequious, joshing from the politicians on the Judicial Service Commission — with its self-styled wits Narend Singh of the Inkatha Freedom Party and the Economic Freedom Fighters’ Julius Malema leading the way.
The commission’s mood may have also been breezier following the withdrawal of Musi’s colleague on the Free State Bench, Judge Khalipi “Jake” Moloi: their job potentially made easier since Musi was an experienced administrator with 13 years experience in the magistracy and a further 11 at the high court in Bloemfontein.
In a convivial interview that lasted just over thirty minutes, Musi dealt easily with questions about transformation of the judiciary and his own administrative strengths.
Asked about his acting stint in the Constitutional Court, Musi said he found it “quite daunting” and a “total paradigm shift” in terms of the nature of cases and the rigorous work required. He was duly recommended for appointment.