Capacity: Judge
First Appointed: April 2021
Gender: Male
Ethnicity: African
Candidate bio:
Advocate Gcina Malindi was admitted to the Bar in 1995 and took silk in 2010. He obtained his BA and LLB degrees from the University of Witwatersrand and has based at the Victoria Mxenge group of advocates. His areas of speciality include Labour, Administrative Constitutional and Competition law. Since 2010, he has acted for 19 weeks at both the Pretoria and Johannesburg seats of the Gauteng High Court.
Malindi has been a political activist since high school and was imprisoned on Robben Island because of his anti-apartheid activities. He famously broke down and wept in court while representing the ANC in the matter involving artist Brett Murray’s depiction of President Jacob Zuma in the controversial artwork, The Spear — an profound indication of the trauma inflicted upon him, and his body, and that of other Black people, by the apartheid state.
April 2021 Interview:
April 2021 Interview Synopsis
During advocate Gcina Malindi’s previous appearance at the Judicial Service Commission (JSC) he faced some brutal questions about his membership of the governing ANC (which he had given up months before his 2016 interview). Then, it was suggested by some members of the JSC that he have a “cooling off period” before making himself available for judicial appointment again.
Early on he was asked by provincial education minister Panyazi Lesufi, representing the premier of Gauteng, about how he was received as an acting judge in Gauteng in the last four-and-a-half-years and whether he was not “seen as a deployee of some sort”? Malindi was also asked by Lesufi whether he was in a position to adjudicate impartially despite his party political leanings.
Malindi said while he “never believed that the cooling off period applied to him” he hoped that his high court acting experience and work as a silk in the interim would have convinced any doubters at the commission that he would make an independent-minded jurist.
ANC MP Kenneth Mmoeimang asked Malindi to detail what changes, as a Delmas triallist from the 1980s, he saw in the current judiciary and what his views on judicial activism were. Malindi responded that whereas previously the executive chose lawyers for appointment to the judiciary one now had a more inclusive and transparent process where the JSC interview and selected judges.
He added that the “judicial activism” was to be celebrated since it filled the “gaps” between the Constitution’s vision and those that existed in ordinary South Africans’ lives.
Professor Engela Schlemmer asked Malindi whether arbitration (in which Malindi had been involved in in several cases) detracted from the development of the country’s jurisprudence. He said that arbitration was, at one point in South Africa’s recent history, seen as an attempt to “avoid black and female judges” who were considered unqualified to adjudicate certain matters — especially in the commercial law field. Malindi said that had changed over time and was now an effective tool in clearing up backlogs in the courts.
On judicial temperament, Malindi said judges were required to be seen as “the most upright” in society and above “petty squabbles”.
April 2016 Interview:
April 2016 Interview synopsis:
Advocate Gcina Malindi’s anti-apartheid credentials and long association with the ANC dominated his entire interview.
It started when it was explored by commissioner Panyaza Lesufi, the Gauteng Education Minister who asked Malindi if this would shade his adjudication of matters.
Malindi assured the commission that his “judicial functioning” would not be “clouded by political affiliation” as he would sincerely abide by the oath of office which insisted on impartiality and acting without fear, favour or prejudice.
But the opposition party politicians on the commission appeared to have the bit between their teeth regarding Malindi’s political background which had also included acting as the “national initiator” — a sort of “national prosecutor” — for the ANC in internal disciplinary matters.
These included involvement, it was revealed during questioning by Advocate Dumisa Ntsebeza SC, the disciplinary hearing that led to former ANC Youth League leader Julius Malema — a Judicial Service Commission member — being kicked out of the party.
The DA’s JSC representative, commissioner Hendrick Schmidt pointed out that Malindi’s questionnaire and application form was “sprawled with ANC” commitments, including his membership, imprisonment, roles filled in various bodies, and working as a trustee of the family trusts of the ANC’s Tokyo Sexwale, amongst others.
Schmidt asked Malindi whether this deep involvement with the ANC would create the impression among the public that he would be biased towards the ANC. Malindi pointed out that he had allowed his membership of the ANC to lapse this year and that he hoped the public would rather see someone who had served his country well, and was now looking for a fresh challenge to continue to do so.
He also reiterated that there were procedures that could be followed by litigants if they suspected bias on his part and that if it was established that there was a “reasonable perception” of bias and a recusal application made, he would do so.
Malema later took to interrogating Malindi with a sledge-hammer, rather than a scalpel. Suggesting that Malindi’s appointment would add to “the narrative that the judiciary is captured” and that he would be a considered a “Sexwale appointment” Malema suggested that Malindi go through a “cooling off period” before applying for a position on the Bench.
“I have laid bare before the JSC who I am and why I am here and it is for the JSC to decide,” maintained Malindi, refusing Malema’s invitation later on, to withdraw his candidacy.
Malema, the leader of the EFF, continued his bludgeoning line of questioning, demanding to know what message Malindi’s appointment would send out to the public.
Malindi retained his dignity in the face of this torrent and stated plainly that he hoped the public would see an individual who had, since the age of 16-years-old, been an adherent to the Bill of Rights and that the appointment was due recognition of someone who was wedded to the ideals of human rights, dignity and other prescripts of the Constitution which were still “paramount to him”.
The barrage by Malema continued for approximately 40 minutes of the two hour interview and, during a quieter moment, while telling another commissioner about the enormity he felt the job of a judge entailed, Malindi quietly broke down and shed a tear.
Something that Chief Justice Mogoeng Mogoeng later picked up on and asked if Malindi’s ability to keep his emotions in check was “an area of challenge” for him. Malindi assured the commission that this happened once in a while but he would have better “control of the court” and his emotions as a judge.
