Gyanda’s nomination acceptance for the April 2016 round of interviews for the position he unsuccessfully contested in October last year would suggest that he has a strong masochist streak: then, he suffered the sort of brutal public flogging by Judicial Service Commission member Julius Malema last seen during the Dark Ages. Which is where some of his cringe-worthy responses about race and transformation during that interview belonged.
Then, Malema, the Economic Freedom Fighters commander-in-chief, had raised the “Indian Question” in the province, and the perception that “Indians are dominating life in every sphere” including business and the legal sector – to the detriment of Black Africans. Malema asked Gyanda whether transformation imperatives demanded of the commission to appoint a “Black African” rather than an “Indian”?
Gyanda responded that that “if Indians are progressing, should they be penalised for working harder and longer?” This led to a heated exchange between Gyanda and Malema that explored the touchy issue of ethnicity, race and interpretations of “Africaness” – to the extent that the judge appeared to suffer an interview meltdown.
Other than Judge President Achmat Jappie, Gyanda is the longest serving member of the KZN Bench and had previously acted as judge president. He graduated from the then-University of Durban Westville in 1979 where he assisted in setting up the university’s legal aid clinic. Having practised as an advocate, he attained silk in 1999. As a lawyer he had represented students during the school boycotts of the 1980s and other anti-apartheid activists, including the “Queenstown Six”.
As a judge he has presided over several high profile cases, including the Lotter murder trial where siblings Nicolette and Hardus Lotter were found guilty of murdering their parents in 2008. Both siblings had argued to have been under the influence of Nicolette’s lover at the time, Matthew Naidoo, who they had claimed had presented himself as the “third son of God”.
With Gyanda’s interview for the same position in October last year descending into a fiery debate about race relations in KwaZulu-Natal between the candidate and Economic Freedom Fighters leader Julius Malema, more fireworks were expected. But Wednesday’s interview was more damp squid than a Big Bang.
Despite a mischievous smile and glint in the eye — and a bouncer’s hardened stare as Gyanda took his seat — Malema did not ask Gyanda any questions.
Commissioner Dumisa Ntsebeza did raise the race issue towards the end of the interview, however, when commenting on submissions made by Advocates for Transformation (AFT) to the commission about the racial configuration of the leadership of that division.
Noting that Judge President Achmat Jappie was a “coloured” and that Gyanda was of Indian descent, the AFT had raised the issue of whether the appointment of a Black African would make the leadership in the division more representative of the province’s population.
“I don’t think it matters what race a person is. We are some 21 years into our democracy and I don’t know why race should play a role in the appointment,” said Jappie, seemingly oblivious to the growing disquiet, nationally, about the failed racial reconciliation project articulated in national conversation and through movements like #FeesMustFall – and the constitutional imperatives that guides the Judicial Service Commission towards appointing judges that “broadly” reflect the demographics of the country.
Asked by Chief Justice Mogoeng Mogoeng what obstacles he had identified that prevented the smooth running of the division, Gyanda said KZN was “hamstrung” by resource issues: there were not enough judges, or enough courtrooms and chambers for more judges, in Pietermaritzburg, especially. He painted a bleak picture of a division where court “recording devices are continuously breaking down”, there was a “lack of ushers” and that the toilets didn’t work. The last answer, over which Gyanda went into the minute detail of toilet stalls not closing and door latches being nicked, elicited a giggle from the audience.
KZN Premier quizzed Gyanda on what challenges he saw in transforming the Bench and the judge suggested that attracting black female lawyers to act on the Bench was a particular difficulty, “since they are getting into very lucrative jobs… that is why they are not coming” to the Bench. He later answered a similar question by ANC MP Thoko Didiza regarding gender transformation by relating how, when he was acting as Judge President in the division, he had attempted to get specific female lawyers from a particular firm to act, but that his calls had gone unanswered.
Asked by Professor Nomthandazo Ntlama whether, if appointed, he would consider approaching legal academics to act on the Bench to broaden the pool, Gyanda said if academics had practise experience in the courts, “we could use people like that” not those unaccustomed to court procedure and the cut and thrust of trials.