Capacity: Justice of Constitutional Court
Further appointments: N/A
First appointed as a judge: 10-05-2011
Key judgments: (1) SA NATIONAL DEFENCE UNION V MINISTER OF DEFENCE & OTHERS (2012) 33 ILJ 1061 (GNP); 2012 (4) SA 382 (GNP) ; (2) RAHUBE V RAHUBE AND OTHERS 2018 (1) SA 638 (GP) ; (3) AFRIFORUM AND ANOTHER V CHAIRPERSON OF THE COUNCIL OF THE UNIVERSITY OF PRETORIA AND OTHERS [2017] 1 ALL SA 832 (GP)
Gender: Male
Ethnicity: Indian
Candidate Bio:
The humanist solidarity which has driven North Gauteng High Court judge Jody Kollapen — a former head of the South African Human Rights Commission — can be found in his early familial influences: His mother, an attendee of the 1956 Women’s March, who was twice arrested for her involvement in the passive resistance movement of the 1950s. An uncle who, despite not studying law, served as a “kind of paralegal” in his Marabastad community and caused him to pursue his legal studies.
The uncle, Kollapen told the Judicial Service Commission (JSC) during his unsuccessful 2017 interview for a position on the Constitutional Court Bench, taught him that the law, “despite the horror of society, could make a difference… that the law can form the basis for the social reconstruction of our society.”
Kollapen appears a “big picture judge” who is emboldened by the transformative vision of the Constitution and the potential for the law to create a more equitable society. If the JSC, and Chief Justice Mogoeng Mogoeng, are keen to ensure the Constitutional Court retains a diversity of legal approaches and intellectualisms, Kollapen would be an interesting foil for the likes of Deputy Chief Justice Raymond Zondo and Justice Chris Jafta who are considered legal formalists — especially since the retirements of justices Edwin Cameron and Johan Froneman.
Trouble is, Chief Justice Mogoeng Mogoeng sometimes gets a bee in his bonnet about judges who are considered “progressive” and “big picture” adjudicators who get good media and academic coverage for their judgments and intellectual ability to read the Constitution as a transformative document.
Kollapen has twice unsuccessfully interviewed for the Constitutional Court. During the 2019 interview Mogoeng dominated the allotted time by ranting and raging against judges who he accused of writing judgments to please commentators rather than staying true to the law. Astonishing, scattergun allegations by the chief justice which didn’t allow a bewildered Kollapen to actually find questions to respond to.
Kollapen served two acting terms at the Constitutional Court in 2017.
During that time, he adjudicated, and wrote a minority dissenting judgment, in a matter involving the body which will be interviewing him, the JSC. In Helen Suzman Foundation v Judicial Service Commission the applicants had sought to make public the private deliberations of the JSC in deciding which candidates to nominate to the president for appointment. The Helen Suzman Foundation argued that these could be disclosed under rule 53(1)(b) of the Uniform Rules of Court as part of the record of its proceedings.
The High Court held that they could not. On appeal, the Supreme Court of Appeal held that while they were not necessarily excluded from the record, in the circumstances of this case they should not be included in the record.
The majority of the Constitutional Court found there were no reasons to exclude deliberations, as a class of information, from the rule 53 record. Further, the court found that the JSC’s concerns about confidentiality were overstated, and did not entitle it to refuse to disclose the recordings of the deliberations. The appeal was upheld, and the JSC was ordered to deliver the full record of the proceedings.
Jafta dissented, holding that the word ‘record’ in rule 53 did not incorporate the JSCs deliberations.
Kollapen, with fellow acting judge Dumisani Zondi concurring, wrote a separate dissenting judgment. Kollapen observed that “in the wide sense” the case “may have relevance for the judiciary — its independence, integrity, efficacy and, in particular, the calibre of those who constitute it.”
“Openness is also double-sided. It is imperative that what is constitutionally necessary is seen and heard. However, in order to ventilate what must be seen and heard and to preserve certain core constitutional values, there also has to be an environment in which open and uncensored debate flourishes. In some instances, confidentiality is necessary to ensure such an environment exists, so that what must be shown and said is brought into the light, to factor into constitutionally necessary debates.”
Kollapen found that the JSC’s deliberations were relevant to the decision under review, and should therefore be included in the record unless there was a legal justification for their exclusion. He further found that maintaining the confidentiality of JSC deliberations was constitutionally sustainable, however, and necessary, to protect “multiple constitutional values”, the integrity and independence of the judiciary, and to protect the interests of candidates, JSC members, and the institutions themselves.
In SS v VVS, a matter disputing additional maintenance payments for a minor child before the Constitutional Court, it emerged during hearings that the applicant was in substantial arrears with his basic maintenance obligations.
Kollapen, for a majority, held that this non-payment could not pass without consequence — despite it not being the main thrust of the hearings — as it would “undermine judicial integrity”.
The matter was postponed and the applicant ordered to pay respondent’s costs as well as maintenance payments. When the matter was eventually heard, the applicant conceded that he had still not settled his maintenance arrears.
Kollapen found that if the applicant was allowed to proceed the interests of justice would be undermined, the potency of judicial authority undermined and “it will send a chilling message to litigants that orders of court may well be ignored with no consequence”. The application for leave to appeal was dismissed. Applicant was ordered to pay respondent’s costs on a scale of attorney and client.
A judge of the North Gauteng High Court since 2011, Kollapen has adjudicated interesting cases, including ordering a father to return to his teenage daughter a horse that he had removed from a stable as punishment and telling warring factions of the International Pentecost Holiness Church to work together.
In the infamous Limpopo text-book saga of 2012, Kollapen reprimanded the National Education Department and its provincial counterpart for its failure to deliver textbooks to schools in the province. He handed down a structural order outlining deadlines for textbook deliveries.
But he has also been mindful of the separation of powers doctrine. In 2020 Eskom filed an urgent high court application asking that the courts allow the electricity provider to increase various standard electrical tariffs, pending a review of the National Energy Regulator of South Africa’s (Nersa, the first respondent in the matter) decision in respect of an application for electricity tariff increases.
Eskom argued that the difference in the increase applied for and that granted would result in a shortfall in its revenue of R102 billion over the three financial years in question. The only issue in this stage of the application related to how Nersa had dealt with an annual government equity injection of R23 billion per year in calculating its annual allowable revenue.
Kollapen considered the requirements for the granting of an interdict. On whether Eskom had shown irreparable harm, Kollapen found that even if the applicant’s version, that it would face dire consequences if interim relief were not granted, were accepted, it was “not clear what the political response to that situation may be.”
His judgment observed that the financial health and survival of the applicant was ultimately: “a matter that falls squarely within the remit of the political sphere of government, influenced by the prevailing economic realities as well as the legitimate demands of the developmental state. It cannot be that a tariff determination for effectively a single year should be elevated to determining the survival or the demise of a significant state-owned entity and nor is it desirable to leave that determination to a Court.”
He held further that considering the “myriad of considerations that must ultimately be brought to bear on the operations and the future of Eskom”, it there was well-grounded apprehension of irreparable harm if the interim relief were not granted.
On the issue of the balance of convenience, Kollapen noted that if the relief sought was granted, an effective electricity increase of close to 17% in the coming financial year, as opposed to the 8.1% the respondent had approved, would result.
Kollapen found that separation of powers considerations militated “strongly against the Court responding to such an invitation to set a tariff”, and that the court was in any event “also not equipped to make the kind of determinations” required of it. The balance of convenience thus did not favour the granting of the interdict and the application was dismissed.
In Hennie and Others v Minister of Correctional Services and Others, Kollapen granted an urgent interdict allowing prisoners to use laptops in their cells for study purposes. He found that while “security considerations will always remain an important feature of how a correctional facility is managed,” a refusal to allow inmates access to computers in their cells, “has the real risk of compromising their ability to study and infringes on their right to further education”.
In 2016, Kollapen wrote the majority judgment for a full high court Bench in AfriForum & Another v Chairperson of the Council of the University of Pretoria and Others. The court was asked to set aside a decision by the University of Pretoria to replace Afrikaans with English as the main medium of instruction. Kollapen found that while the Constitution provides for people to be educated in the language of their choice, this could not negate considerations of race and equity. He noted that the university had been “responsive” to the constitutional rights of Afrikaans students seeking to learn in Afrikaans.
“Being responsive can hardly equate to having to positively respond to the request made. What it requires is … to consider the request and determine whether [it] is reasonably practicable… [T]his exercise, as required, was undertaken with a high level of engagement, thoroughness, and transparency and the ultimate conclusion that it would not be reasonably practicable was reached after proper consideration of all the necessary and relevant factors in a context-sensitive understanding within which the claim was located.”
Kollapen holds a B.Proc and LLB from the University of Witwatersrand and has a long history of human rights activism. While practicing as an attorney, Kollapen coordinated the Release Political Prisoners programme at Lawyers for Human Rights (LHR). He also worked on important anti-apartheid cases, including the Delmas Treason Trial.
Kollapen has served on the board of several public interest litigation organisations, including the Legal Resources Centre, the Centre for the Study of Violence and Reconciliation and the Institute for Democracy in South Africa.
When interviewed by the JSC for the high court position he currently occupies, Kollapen had assured the commission that his activism would not affect his judgments.
He, however, was clear about the transformative role the judiciary should play in South Africa and was mindful of the inaccessibility of the courts for the poor:
“Judges should remain human and uphold human dignity. A judge needs to be mindful of the enormous amount of resources it takes to get to court,” Kollapen said.
October 2021 JSC Interview:
Interview of Judge N Kollapen by the JSC, October 2021, for a position on the Constitutional Court.
Judge Kollapen’s application was successful. He was nominated for appointment to the Constitutional Court.
April 2021 JSC Interview:
April 2021 JSC Interview Synopsis
Gauteng High Court Judge Jody Kollapen’s imminent retirement age, the ratio of judgments overturned compared to those upheld on appeal, the incomplete work of the Truth and Reconciliation Commission (TRC) and his views on dissenting judgments were some of the areas traversed during his interview.
Part of the selection panel which selected TRC commissioners, Kollapen said the legislation which set up the TRC was “contentious” and that while the process had allowed the first part of its mandate — to advance reconciliation — to be pursued, less attention had been paid to the second part, which was to transform society. While bemoaning this, Kollapen said it was an oversight he sought to address through his life’s work: “I am aware that since 28 April 1994 the lives of most people has not changed, that has affected how I have worked over the years.”
Commissioner Cyril Xaba, an ANC member of parliament, remarked that acting at the Constitutional Court appeared the sole preserve of sitting judges — thus precluding legal academics which the apex court has previously found spaces for — and asked Kollapen what this meant for the Constitutional imperative for diversity on the Bench.
Kollapen responded that acting at the court was important since it introduced candidates to the “environment of the court” and the “discipline required”. He said he didn’t think academics should be excluded, but that it was “important to give a person a taste of what the job requires”.
Supreme Court of Appeal (SCA) deputy president Xola Petse asked Kollapen to comment on the General Council of the Bar’s review of his cases which found that of the 13 matters appealed, seven of his decisions had been upheld and six had been overturned. The rate of one-in-two judgments being overturned prompted Petse to ask Kollapen whether this did not reflect adversely on him.
Kollapen admitted that “no-one likes being overturned” but said the appeals system allowed for “checks and balances” and that one had to learn from the process by taking note of what was said about the overturned judgments with the “necessary level of seriousness”.
When pressed on the unflattering ratio later in his interview Kollapen highlighted the various judgments which had not been appealed but had been cited glowingly in the superior courts which reflected more kindly on his decision-making skills.
When asked by commissioner Mavuso Notyesi (representing the attorneys’ profession) about the allegations of “judicial populism” levelled at judges who reflect “public narratives” of the time, Kollapen responded that “one hopes and expects judges will deal with matters on the facts before them and not on external factors”.
When asked about his being six years away from retirement age — to the disembodied giggling of Chief Justice Mogoeng Mogoeng who was chairing the sitting remotely — Kollapen said he still considered himself to be a “value for money” appointment if he was chosen to fill a vacancy at the apex court.
On dissenting judgments, Kollapen said not permitting dissenting judgments could have a “quite chilling” effect on judicial intellectualism and independence. He had earlier said that he appreciated the collegiality when he had acted at the Constitutional Court and the sense that the justices there had always sought to find each other through a process of persuading, or an openness to being persuaded, on judgments.
The JSC nominated Kollapen for consideration for appointment to the Constitutional Court.
April 2019 Interview:
April 2019 Interview Synopsis:
Gauteng high court judge Jody Kollapen flailed around helplessly during his interview for a position at the Constitutional Court. Not because he couldn’t answer questions posed to him, but, rather, because there were so few questions and so many diatribes — especially from Chief Justice Mogoeng Mogoeng — that he had to somehow respond to. He did this with an elegance and good humour that would have eluded many and exasperated most.
Mogoeng was in the kind of strident mood which suggested some paranoia and a concerning anti-intellectualism. Raging against the potential for “judicial capture” — not with money, but through an intellectual co-option — he talked of the danger of judges “outsourcing our thinking” and becoming “victims” of unnamed people, institutions and agendas that apparently write fawningly about some judges to the point where they “do not want to be critical, you want to look like a superstar, when you are not”.
Kollapen valiantly tried to make contributions whenever he could, suggesting that a particular “consciousness” was perhaps missing in some people’s make-up, compromising their independent-mindedness. He also pointed out that despite these attempts at intellectual and jurisprudential “capture” judges were not victims, but had agency and they, like every South African, needed to take responsibility for their actions — good or bad.
Mogoeng did not let up, accusing some of South Africa’s judges of falling for the “praise” they received from the media and academics because they “want to be liked”. He also criticised analysts for “praising some judges even if they have done nothing, if a judge is terribly wrong he is still celebrated in some quarters… can this be an avenue for capture?” he asked Kollapen.
A valiant Kollapen said he agreed that “it was seductively simple to fall into temptation to be a judge who is well respected… but we must apply our mind with integrity and rigour”.
Mogoeng appeared to be in a paranoid mood, stating his concerns about “judicial capture” may be misunderstood, “because sometimes I am [misunderstood], deliberately so”.
Of concern to the public may be that Mogoeng is revealing more about himself — and a sense that he may be anti-intellectual and self-consumed — in commission interviews with these tirades, than he is revealing about candidates who should be tested rigorously.
Kollapen was asked by SCA Judge Azhar Cachalia, who was sitting in for appellate court president Mandisa Maya, about the “quite furious debates” in law journals and elsewhere critical of the recent commercial law judgments emanating from the Constitutional Court — and whether his experience and background would assist in remedying this if appointed.
Kollapen said while he should have paid more attention to the law journals recently, he had the required diligence, industry and integrity to get up to speed when adjudicating such matters.
He was asked about his minority judgment in the Constitutional Court’s Helen Suzman judgment, which disagreed with a majority finding that the record of the JSC’s private deliberations when deciding on candidates to be appointed to the Bench could be made public. Kollapen said he had been wary of publicly exposing unfortunate or sensitive perspectives on candidates which would then become a matter of public record.
April 2017 JSC Interview:
April 2017 Interview synopsis:
The former head of the South African Human Rights Commission (SAHRC) started his interview responding to biographical questions which revealed an early attuning to the humanist solidarity that he has demonstrated throughout his adult life.
Kollapen talked about the early influences of his mother — still around at 91years-old and an attendee of the 1956 Women’s March — who was arrested twice, once at the age of twenty, for her involvement in the passive resistance movement gathering momentum against apartheid.
He also described the influence of an uncle who, despite not studying law, served as a “kind of paralegal” in his Marabastad community and caused him to pursue his legal studies.
The uncle, Kollapen told the Judicial Service Commission, imparted to his younger self the notion that the law, “despite the horror of society could make a difference… that the law can form the basis for the social reconstruction of our society.”
Kollapen 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.
When quizzed on the role of the judiciary in the enforcement of socio-economic rights, Kollapen recognised that a “vote without food, may well be meaningless” before noting that the “standards of reasonableness” had been developed to test government’s delivery on these rights.
Kollapen also said he was “encouraged” by the development of the “concept of meaningful engagement” by the Constitutional Court which “consolidates the notion of participatory democracy” and ensured democracy was not diminished to the mere act of voting at the polls every five years.
