An expert in maritime, commercial, labour and company law, Wallis is considered one of the most well-rounded judges at the Supreme Court of Appeal (SCA).
At the SCA he wrote the judgment confirming that the South African government had acted unlawfully when it failed to arrest Sudanese president Omar al-Bashir — who was indicted by the International Criminal Court for crimes against humanity — when he visited the country in 2015.
Bashir had been in the country to attend the African Union summit and while assuring the lower court that he was still in the country, government then allowed him to leave through Waterkloof Airforce Base — which Wallis described as “disgraceful conduct”.
Writing a searing unanimous judgment for a full SCA Bench, Wallis condemned government’s behaviour and ruled that sitting heads of state were not immune from prosecution due to legislation South Africa had enacted after signing the Rome Statute. Wallis noted that this legislation “puts this country in the vanguard of attempts to prevent international crimes” making it “a matter for national pride rather than concern”.
While acting for a term at the Constitutional Court in 2015, Wallis penned the Tlokwe judgment which ordered the Electoral Commission of South Africa to hold new by-elections in seven wards in the Tlokwe Municipality in the North West.
Voter-roll irregularities had been discovered in these wards. In a unanimous judgment, Wallis said it was a legal requirement to register voters in the voting district they reside in and found that this had not been observed by the Electoral Commission. This was the single majority judgment he wrote over two acting stints at the court during 2015 and 2016. In that time Wallis heard 12 cases and also wrote two separate concurring judgments.
Wallis graduated from the University of KwaZulu-Natal (then University of Natal) with an LLB (Cum Laude) in 1972 and obtained a PhD from the same institution in 2010. A practising advocate from 1973-2008, he obtained silk in 1985. Wallis was appointed to the KwaZulu-Natal High Court in January 2009 and to the Supreme Court of Appeal in June 2011. An honorary professor of law at his alma mater, Wallis has written various articles on shipping law.
With four of the five candidates who were vying for a place at the Constitutional Court currently serving at the Supreme Court of Appeal (SCA), interviews centred, in the main, on the race and collegial tensions in the country’s second highest court — rather than matters closer to the Constitution and candidates’ sense of it.
The interview of Judge Malcolm Wallis was no different. He fielded questions about the atmosphere at the court and while conceding that there were “groups or cliques”, said that he had made a point of spreading himself around during tea breaks, being “tactful” when commenting on colleague’s judgments and ensuring an “open door policy” so that he was available to lend his experience and advice if solicited.
Acting SCA president Mandisa Maya later said she was “happy to confirm the manner in which you describe yourself” and commended Wallis for his assistance during 2016 when she had been acting head of the SCA without a deputy: “You are one of the colleagues who did their very, very best to assist me,” she said.
Wallis however, said these divisions “didn’t surprise me and I noticed this the very first time I was there” as an acting judge in 2009. He told the commission that it was an “unfair statement” to claim that only a handful of judges were writing judgments and carrying the majority of the workload at the court. Wallis added that as in any division anywhere in the world, standards and the quality of adjudication and writing judgments were “always going to be uneven”.
He was asked by Advocate Mike Hellens SC, one of two advocates representing the Bar at the Judicial Service Commission, whether there was “any inarticulate premise you would have to set aside in your head” when adjudicating.
Wallis said that “any judge who aspires to be a good judge must constantly ask themselves” whether they have cleared their heads of any preconceptions about people or principles that they may have and ensure that they focus narrowly in the witness, evidence and facts presented in relation to the case.
“If they can’t do that then they are not an impartial judge,” Wallis said.
Noting that the courts were increasingly being called upon to review decisions and actions by the executive, Hellens followed up by asking Wallis how he would approach such cases while being mindful of the doctrine of the separation of powers.
Wallis, who admitted to being “fascinated by the law” later in his interview, told the commission that the “problem” had “concerned” him for “a considerable amount of time” — especially when on sabbatical at universities like Cambridge in England where he had spent a term in 2013 researching the matter.
“It is enormously complex and there are no bright lines,” said Wallis before listing a few requisites which included judges approach the case “as narrowly as possible”, that they stay “within the confines of the case” and not make “broad pronouncements of government, they not be influenced by the the intense public opinion that usually accompanied such matters and ensure that they “don’t make the job of administration impossible”.