SCA divisions a theme in ConCourt candidates JSC interviews
After Judge Mandisa Maya’s JSC interview for President of the Supreme Court of Appeal (SCA) laid bare the racial and seniority divisions within the court, the interviews of Constitutional Court candidates – four of which are SCA judges – seemed to follow a similar theme of trying to examine and expose problems within the SCA.
The majority of the questions put to Judge Stevan Majiedt revolved around the racial divisions at the appellate court, to which he said; “There is a long way to go. In that court, there are attitudes of superiority and inferiority.” Majiedt further observed, “unfortunately we do have groups in that court… it’s not only about race, it’s also about people’s attitudes about your not belonging there.”
Majiedt later described the atmosphere at the appellate court by adding that in their more patronising moods, “some colleague pats you on the head like a ‘good little blackie’ (sic) and says you have written a good judgment”.
Another candidate Judge Boissie Mbha confirmed that, “white judges sit at one end of the table [in the SCA tearoom], black judges on the other… I would sit anywhere.”
When candidate Judge Leona Theron was asked about her experiences at the SCA she retold an experience during her early days when she had followed up on a question that a senior judge had asked counsel with one of her own. The senior judge instructed the lawyer to ignore her question and merely answer his; “It made me feel very small, it made me feel as if I had done something stupid or silly,” she said.
Theron later broke down while talking of feeling inadequate because of some of her experiences at the SCA; “We tend not to address issues like that head-on,” she said.
While she said that, “the atmosphere has generally changed” at the appellate court, Theron did emphasise that, “I have been a victim of racism, I have been a victim of sexism,” during her time as a judge.
Old Apartheid scars were also revealed when Judge Theron was asked about her proficiency in an indigenous language. Theron, who grew up in KwaZulu-Natal, described why she had not developed a fluency in isiZulu, despite having a Zulu grandmother from Umlazi, a Durban township which, during apartheid, was reserved for black people.
Theron told the commission that her grandmother had, “looked across the road and saw [the coloured township of] Wentworth and the better houses that people were getting from that [apartheid] government and somehow managed to get herself reclassified as ‘coloured.’” The reclassification meant a house for the family but came with consequences. Her grandmother, fearful of being outed as a Zulu living in a coloured area, banned the language from being spoken by her grandchildren because; “she told us that if we are discovered to be Zulu, we would lose the house.”
Judge Malcom Wallis who is an expert in maritime, commercial, labour and company law, and is considered one of the most well-rounded judges at the Supreme Court of Appeal (SCA), also fielded questions about the atmosphere at the court. While conceding that there were “groups or cliques,” he 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 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.”
Judge Jody Kollapen who is a former head of the South African Human Rights Commission (SAHRC), 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.
Following the interviews Judge N J Kollapen, Judge S A Majiedt, Judge L V Theron and Judge M J D Wallis were nominated by the JSC. Their names have been put forward to President Zuma who will make the final appointment in accordance with section 174(4) of the Constitution.
Watch the videos of the April 2017 JSC interviews for the Constitutional Court: