During his October 2017 Judicial Service Commission interview for the Eastern Cape deputy judge president position, Chief Justice Mogoeng Mogoeng was quick to remark on Judge Selby Mbenenge’s ambitions: “I must admit that when I saw your name [on the short-list for the Eastern Cape Judge President Bhisho seat] I said ‘How, what level of ambition is this?’” said Mogoeng.
“Its important that you deal with that,” continued Mogoeng, summing up what appeared to be the prevalent concern amongst the JSC’s members. Mbenenge had assumed his position on the Eastern Cape Bench a mere three-and-a-half months prior to his October interview and his swift availing himself for a leadership position was causing consternation among commissioners. In the legal fraternity – and the judiciary especially – deference to seniority remains entrenched.
This is a topic that will again require addressing during his interview to head the division. For, despite a stellar career as an academic at Walter Sisulu University (formerly University of Transkei), state law advisor and, especially, as an advocate from 1993-2015, Mbenenge is considered still in the potty-training phase of his career as a judge.
At that time, Mbenenge said his making himself available had less to do with his personal ambitions but, rather, that “the people have spoken and I have responded”.
One of the slickest lawyers in the country, he has acted in several high profile cases, including representing Constitutional Court Justices Bess Nkabinde and Chris Jafta in the matter involving Western Cape Judge President John Hlophe and the rest of the Constitutional Court Bench.
He was also the chairperson of the National Prosecuting authority disciplinary hearing against then senior prosecutor Glynnis Breytenbach. Mbenenge noted that there was not “an iota of evidence that the employee tried to get a confession [from Imperial Crown Trading’s director] by conspiring to do so”. He added there “is no evidence that the employee was not always in control. She was independent and objective. She cannot be found guilty.” He ruled that it was “hard to see how” Breytenbach had contravened any NPA policies and codes of conduct and found that the NPA had “violated” her right to privacy in relation to her handing over a work laptop.
In 2016, Mbenenge grappled with a case involving the administration of justice which reflected on how slowly the courts can serve people — especially if one is poor, black and does not speak English as a first language.
In S V Feni, the accused, was convicted of housebreaking with intent to steal and theft in the district magistrates’ court. The proceedings were conducted and recorded in isiXhosa but the record took more than two-and-a-half years to be sent to the registrar of the high court for automatic review — when this should have been done within a week.
Noting that there was a shortage of translators which led to the proceedings being conducted in Xhosa, Mbenenge wrote (with Judge Glenn Goosen concurring): “I am mindful of the efforts that have been made by the government to promote the use of indigenous languages in courts, with a view to giving expression to Section 35(3)(k) of the Constitution. It does not appear that those efforts have been successful, principally due to the challenges associated therewith. …”
“It is quite plain that the government is still engaged in coordinating the process of elevating indigenous languages for use in courts. The process has not reached the stage where it could be said indigenous languages should be used in courts, even when the exigencies of a matter did not demand such use. The explanation for the delay given by the magistrate is far from convincing. Nothing is said, for instance, that an interpreter who could have interpreted from isiXhosa to English, and vice versa, was not available during the proceedings under review. The way in which the proceedings were conducted has resulted in an inexplicable, inordinate delay, rendering justice a mockery.”
In another of his judgments, Uncedo Taxi Association v Mtwa, he sought to re-establish the court’s “honour” following the respondent’s non-adherence to a court order: “Consequent upon the respondent’s disregard of the said court order, this court should impose a penalty in order to vindicate its honour,” Mebenenge ruled.
Mbenenge has acted as deputy judge president of the Mthatha seat of the Eastern Cape High Court in 2017.
October 2017 Interview:
October 2017 – Interview synopsis
With his salt-and-pepper hair and illustrious history as a senior counsel, Judge Selby Mbenenge carries a weighty gravitas with every word he uses.
He is also not afraid to use those words to make clear that he has had a stellar career, has appeared regularly in the Constitutional Court, already has nine reported judgments in his short judicial career, and that he has made “remarkable contributions to the jurisprudence of the country”.
Mbenenge made clear that in his deeply knowledgable opinion, he deserves to be the top judge in the Eastern Cape.
Previously, Mbenenge had interviewed for the position of deputy judge president in the Eastern Cape High Court three months after being appointed to the Bench. At the time, the Judicial Service Commission had raised concerns about his lack of seniority and untrammelled ambition.
Mbenenge grabbed the bull by horns on that matter in his opening presentation — which lasted about an hour — about his suitability for the judge president position. Recalling the 2015 interview, Mbenenege said he had reflected on the commission’s decision not to appoint him and had even declined nomination for this position for the April round of interviews.
He then reminded the commission that he had made “remarkable” contributions to SA’s jurisprudence as a lawyer for “thirty-three solid years”, the past two as a judge. Mbenenge then pointed to the nine reported judgments he has written during his two years on the Eastern Cape Bench.
He reeled off instances where judges with as much experience as him had been appointed to head high court divisions in South Africa and others where judges who had not had experience acting as a judge president had been appointed permanently. “We have precedents in this country,” said Mbenenge.
“We are hierarchical” on seniority, Mbenenge said, adding that “we could look at it in another way”: rather than viewing the head of a division as the top judge, one should view the judge president as “the chief servant”.
Such platitudinal references to humility and the odd biblical references intended to charm (the chief justice especially?) interspersed Mbenenge’s otherwise forthrightness about his abilities to lead and inspire judges in his division.
He said he set and expected high standards from all judges and dsescrived himself as a “visionary”, an “extrovert” and very demanding on an administrative level.
Mbenenge said he was keen on a “user-friendly motion-court system” to ensure that it was accessible, speedy and cheap for litigants. He said the net for acting appointments needed to be cast wider to include academics and magistrates who should be monitored and developed more closely to ensure gender transformation on the Eastern Cape Bench. He also reiterated that judges observing advocates appearing before them also gave good clues as to who would be competent acting judges to be groomed for appointment.
When asked about the speedy delivery of judgments, Mbenenge said he was intent on ensuring judges with delayed judgments worked through the recesses to address the backlogs because “recess is not a vacation, recess is time to work on outstanding matters”.
Mbenenge said traditional courts “were not something I would shoot down” since they allowed greater access to the justice system, but that these courts should be subjected to “Constitutional testing” to ensure they met the norms and standards.
The Commission appeared to be increasingly keen on Mbenenge but interviewed him for almost three hours.