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Judge Jody Kollapen

Candidate Bio: 

The former head of the South African Human Rights Commission, Kollapen was appointed to the North Gauteng High Court in 2011.

In that time, he has adjudicated interesting cases, including ordering a father to return to his teenage daughter a horse that he had removed from a stable as punishment and telling warring factions of the International Pentecost Holiness Church to work together.

In 2012 Kollapen reprimanded the National Education Department and its Limpopo counterpart for its failure to deliver textbooks to schools in the province. He handed down a structural order outlining deadlines for textbook deliveries.

In Hennie and Others v Minister of Correctional Services and Others, Kollapen granted an urgent interdict allowing prisoners to use laptops in their cells for study purposes. He found that while “security considerations will always remain an important feature of how a correctional facility is managed,” a refusal to allow inmates access to computers in their cells, “has the real risk of compromising their ability to study and infringes on their right to further education”.

Last year Kollapen wrote the majority judgment for a full high court Bench in AfriForum & Another v Chairperson of the Council of the University of Pretoria and Others. The court was asked to set aside a decision by the University of Pretoria to replace Afrikaans with English as the main medium of instruction.  Kollapen found that while the Constitution provides for people to be educated in the language of their choice, this could not negate considerations of race and equity. He noted that the university had been “responsive” to the constitutional rights of Afrikaans students seeking to learn in Afrikaans.

“Being responsive can hardly equate to having to positively respond to the request made. What it requires is … to consider the request and determine whether [it] is reasonably practicable… [T]his exercise, as required, was undertaken with a high level of engagement, thoroughness and transparency and the ultimate conclusion that it would not be reasonably practicable was reached after a proper consideration of all the necessary and relevant factors in a context-sensitive understanding within which the claim was located.”

Kollapen has never previously acted at the Constitutional Court. He holds a B.Proc and LLB from the University of Witwatersrand and has a long history of human rights activism. While practising as an attorney, Kollapen coordinated the Release Political Prisoners programme at Lawyers for Human Rights (LHR). He also worked on important anti-apartheid cases, including the Delmas Treason Trial.

Kollapen has served on the board of several public interest litigation organisations, including the Legal Resources Centre, the Centre for the Study of Violence and Reconciliation and the Institute for Democracy in South Africa.

When interviewed by the Judicial Service Commission for the high court position he occupies, Kollapen had assured the commission that his activism would not affect his judgments.

He, however, was clear about the transformative role the judiciary should play in South Africa and was mindful of the inaccessibility of the courts for the poor:
“Judges should remain human and uphold human dignity. A judge needs to be mindful of the enormous amount of resources it takes to get to court,” Kollapen said.

 

 

Interview synopsis: 

The former head of the South African Human Rights Commission (SAHRC) started his interview responding to biographical questions which revealed an early attuning to the humanist solidarity that he has demonstrated throughout his adult life.

Kollapen talked about the early influences of his mother — still around at 91years-old and an attendee of the 1956 Women’s March — who was arrested twice, once at the age of twenty, for her involvement in the passive resistance movement gathering momentum against apartheid.

He also described the influence of an uncle who, despite not studying law, served as a “kind of paralegal” in his Marabastad community and caused him to pursue his legal studies.

The uncle, Kollapen told the Judicial Service Commission, imparted to his younger self the notion that the law, “despite the horror of society could make a difference… that the law can form the basis for the social reconstruction of our society.”

Kollapen assured commissioners that while he did not have as much judicial experience as the other candidates, his background at the SAHRC and the Law Reform Commission would add to the richness and diversity of background and experience at the Constitutional Court. He described going into the field to investigate issues ranging from socio-economic challenges people experienced to discrimination based on their sexuality, and said it was “sobering”.

It helped him “develop an understanding that the Constitution is not just about legal norms, but also values and ethics,” Kollapen said.

Kollapen was asked by commissioner Mike Hellens SC to talk through how he would approach a case where he had to review a decision or action by the executive or parliament while being mindful of the separation of powers doctrine.

He responded by noting that “the separation of powers is not an absolute separation” because the courts are called upon to make a judgment on the actions of the other arms of government. Kollapen added that the Constitutional Court had delivered precedent-setting judgments like National Treasury and Others v Opposition to Urban Tolling Alliance and Others which helped set out how far courts could reach in these cases. Kollapen added that he was aware that, if the executive made a decision based on a series of choices, the role of a judge was not to review and say “which is the best choice” but to assess the rationality behind the executive reaching its final decision.

When quizzed on the role of the judiciary in the enforcement of socio-economic rights, Kollapen recognised that a “vote without food, may well be meaningless” before noting that the “standards of reasonableness” had been developed to test government’s delivery on these rights.

Kollapen also said he was “encouraged” by the development of the “concept of meaningful engagement” by the Constitutional Court which “consolidates the notion of participatory democracy” and ensured democracy was not diminished to the mere act of voting at the polls every five years.