A bridge too far
Magistrate Conjwa was unwise in putting her name forward for consideration at the JSC in October. She had been castigated by the commission in a previous interview for having had a judgment outstanding for 14 months. She came back to the JSC for a second bite at the cherry, but unbelievably enough with another judgment outstanding, this time for 2 years. This was only the first of many errors on her part.
The list of her other failures exposed in the interview is long – for example, she left 16 part heard matters behind in the court where she was sitting as a criminal court magistrate, when she went to act as a judge. She thus left those accused and their lawyers waiting on her return. The rule of thumb is that a magistrate should have no more than 4 such part heards before they may go and sit as an acting judge, as those matters must then wait for the acting judge to come back to the magistrate’s court. And justice delayed, as we know, is justice denied. This issue was also raised in relation to another woman magistrate candidate who had 8 part heard matters waiting back at her court.
As the slow train smash of an interview unfolded, we learned Magistrate Conjwa also appears to have lost judgments, which is really quite hard to do. Justices Maya and Hlophe had some difficulty in understanding her explanation of how this happened, despite questioning her at length on the circumstances. They set out the process for handing down judgments, which involves a number of parties, and copies of decisions. Magistrate Conjwa appears to have simply not kept any record of her own decisions, and the court file got lost.
Magistrate Conjwa was not the only candidate to be viewed by the JSC with some incredulity. How did these candidates come to be interviewed? For section 174 (2) absolutists, the answer is simple. We need transformation of the bench, and this candidate is a black woman, and will therefore contribute to transformation. She should thus be interviewed.
The JSC commissioners were clearly pushing back against that reasoning. A number of the women on the Commission questioned why candidate Conjwa had put herself forward. Advocate Norman asked why, although the country does need more women judges, she had not lived up to the expectations of her. In a previous interview of a woman candidate who did not get appointed, commissioner Modise asked if women should be appointed “at all costs”. The answer from the candidate was no, and clearly the right answer in Modise’s view.
So if the criteria for appointment are not what these candidates think they are, how is the JSC to ensure they get better candidates who do fit the criteria? There are the formal mechanisms, such as the JSC sifting committee, which has clearly failed to winnow out hopeless candidates for several sittings. The committee is revising their rules to try and improve the situation.
There is the ongoing, several years old, discussion of how to ensure a uniform policy on appointing acting judges is adopted, one which will give equal opportunities to aspirant candidates, while weeding out the no hopers at an early stage. Some mechanism for oversight of such acting judges is clearly needed, given acting Judge Conjwa’s recent frolic. At very least, acting judges shouldn’t be allowed to lose their judgments.
But for candidates themselves there must be the insight to determine that simply ticking the 174(2) criteria of being a candidate who is transformative in terms of race and gender is insufficient. And the Commissioners will need to articulate the criteria they are applying more clearly, if they are not wanting to sit in impotent frustration as patently unappointable candidates are put forward.
Watch the video of Ms Conjwa’s JSC interview: