Examining the JSC’s controversial April 2021 interviews – week 1
Pandemic impact on judicial interviews
Due to the COVID-19 pandemic, the Judicial Service Commission (JSC) did not conduct any judges’ interviews in 2020. The April 2020 interview session coincided with South Africa going into a nationwide lockdown and these interviews were deferred to October 2020. When October 2020 came rolling in, the JSC still could not sit because of the pandemic. This meant that for the April 2021 session the JSC had to sit for two weeks from 12 to 23 April, interviewing 75 candidates to fill a total of 39 judicial vacancies across the country.
The JSC sitting was in a hybrid form, with Chief Justice Mogoeng Mogoeng chairing virtually. Commissioners Jennifer Cane, Etienne Barnard, Narend Singh, Glynnis Breytenbach, and Justices Mandisa Maya and Monica Leeuw also attended the sitting virtually, while 14 other commissioners were in the room in Johannesburg.
The first week of the April 2021 JSC sitting
The first week of the JSC’s April 2021 sitting rightfully attracted tremendous attention, debate, and controversy. The interviews included those of the highest and second highest courts in the land – the Constitutional Court (Con-Court) and the Supreme Court of Appeal (SCA).
The first week of the JSC’s April 2021 sitting rightfully attracted tremendous attention, debate, and controversy. The interviews included those of the highest and second highest courts in the land – the Constitutional Court (Con-Court) and the Supreme Court of Appeal (SCA). The way the JSC conducted interviews also contributed to the attention, debate, and controversy of the first week of interviews.
Thirty candidates were scheduled to be interviewed during that first week, including interviews for the Con-Court (two vacancies), the SCA (five vacancies), Free State High Court (Deputy Judge President), Limpopo High Court (Deputy Judge President), Eastern Cape High Court, Mthatha (one vacancy), and the Northern Cape High Court (Deputy Judge President and two judge vacancies). Gauteng Deputy Judge President Aubrey Ledwaba was shortlisted for both the Con-Court and the SCA, but made a brief appearance on the first day to place on record that he is withdrawing from the Con-Court interview process. The only candidate for the High Court in Mthatha, Adv Nceba Dukada SC, withdrew within minutes of his interview starting.
The JSC’s abrasive and abusive interview style
Over the last few years, we have observed that JSC interviews have increasingly become quite gruesome and personal.
The JSC saw nine candidates interviewing for two vacancies on the Con-Court. It is this set of interviews that raised eyebrows from different corners of society. This was no surprise at all as, on the first day, Commissioner Julius Malema shot a statement that: “[y]ou are nothing but a political activist. You are no judge, and you deserve no high office. If anything, you are also factional and belong to Pravin’s faction and you are pursuing factional battles using the bench”, to one of the candidates, KwaZulu-Natal Judge Dhaya Pillay.
Over the last few years, we have observed that JSC interviews have increasingly become quite gruesome and personal. However, this was the first time that a commissioner put what many say was such an abusive statement, telling the candidate that he would actively argue against the candidate during deliberations. Of course, the JSC must exercise its powers by ventilating with candidates all adverse public comment and any concerns commissioners may have. However, there are always limits to how that power is exercised. Where it is likely to lead to abuse of a candidate and tarnishing of their reputation as a judge, then the JSC might fall foul of section 165 (4) of the Constitution. Section 165(4) of the Constitution provides that “[o]rgans of state, through legislative and other measures, must assist and protect the courts and to ensure the independence, impartiality, dignity, accessibility and effectiveness of he courts” (i.e., the judiciary).
Acting experience and the absence of a clearly articulated criteria
Various other concerns came to the fore during the interview of Advocate Alan Dodson SC, who sought to be appointed to the bench straight from the bar. Section 174(1) of the Constitution requires that “any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer”. Technical legal experience, although not explicitly stated, is often considered one of the key requirements under section 174. While the JSC acknowledged that Dodson had extensive experience in the legal field, during his interview Dodson was asked whether he had sufficient experience for appointment to the Con-Court, considering that he was not currently sitting as a judge and had never acted at the apex court. The same issue was asked of Gauteng Judge David Unterhalter, who similarly had not acted in the Con-Court and had been a permanent High Court judge since 2018.
This issue raises three important questions, which can only be answered by the JSC:
- Is it a requirement that one must have acted in the specific court they have been shortlisted and are being interviewed for?
- Must one be a sitting judge to be appointed to either the SCA or the Con-Court? (Section 174(5) requires that only four of the 11 members of the Con-Court must have been judges at the times that they were appointed – eight of the current nine permanent Con-Court justices meet this criterion).
- What factors does the JSC consider when shortlisting candidates to be interviewed, considering that the JSC was fully aware that Dodson is not a sitting judge and both he and Unterhalter had never acted in the apex court, but were still shortlisted?
The answers to these important questions by the JSC will benefit all those who have intentions of becoming judges but also sitting judges who have aspirations of promotion to the SCA or to the Con-Court. Should the JSC ever provide answers to these questions, it would be necessary that they be published in regulations or other freely available document dealing with the JSC’s processes in respect of the appointment of judges.
The Top Six haunts the Supreme Court of Appeal
The overarching picture that came out during the interviews seems to be that since her appointed in 2017, SCA President Mandisa Maya has been actively fostering a collegial environment at the court and that many of those judges considered part of the ‘Top Six’ have left through natural attrition.
The rest of the other interviews were dominated by the now increasingly stale issue of the ‘Top Six’ – an elusive group of senior judges of the SCA who have unleashed a reign of terror on other judges at that court, including bullying, humiliation, and harassment. The issue was first in the April 2019 JSC interviews but it remains unresolved, all these years later. Justice Mahube Molemela and Justice Rammaka Mathopo, the two SCA judges seeking promotion to the Con-Court, were both asked for their views on the ‘Top Six’. Chief Justice Mogoeng invited both judges to name members of the ‘Top Six’ – an invitation they politely declined. The same issue was also canvassed with the candidates interviewed for five posts at the SCA, especially those who have previously acted at that court. Gauteng Judge Zeenat Carelse, who had been acting at the SCA in the few months prior to the interviews, indicated that she found the environment had changed dramatically from when she first acted at the court in 2015. This sentiment was echoed by fellow Gauteng Judge Wendy Hughes and also Eastern Cape Judge Johannes Eksteen, who described the environment as ‘less tense’. Both Western Cape Judges Owen Rogers and Nolwazi Mabindla-Boqwana said they had not experienced any prejudice in their period, even though they had heard about the ‘Top Six’ issue. The overarching picture that came out during the interviews seems to be that since her appointed in 2017, SCA President Mandisa Maya has been actively fostering a collegial environment at the court and that many of those judges considered part of the ‘Top Six’ have left through natural attrition. Indeed, Mathopo said “we are in charge now, and are doing things differently”.
A second bite of the litigation cherry for Commissioners
A striking feature of the first few days of the JSC interviews was how often commissioners sought to re-litigate issues candidates had ruled on in court. One of these incidents occurred during the interview of Gauteng Judge Aubrey Ledwaba, who was questioned by Commissioner Malema on his ruling that certain documents in the “CR17 case” involving President Ramaphosa should not be disclosed publicly (i.e., ‘sealed’) before the hearing of the case. Malema also interrogated Gauteng Judge Keoagile Elias Matojane on his ruling against Malema and his Economic Freedom Fighters in a defamation suit brought by former Finance Minister Trevor Manuel.
Age ain’t nothing but a number?
“[t]he idea that you are all washed up at 70 is an old idea, as 70 is the new 50.” – Judge Ronald Sutherland
A curious issue that came at multiple interviews in the first few days concerned age. Gauteng Judge Jody Kollapen was asked whether it would be “value for money” if he was appointed to the Con-Court so close to the mandatory retirement age of 70 (at 63, Kollapen would only serve seven years of a possible 12 year term on the apex court). The same question was asked of Gauteng Judges Sharise Weiner (67) and Billy Mothle (65), who were both vying for a post in the SCA. Judge Roland Sutherland (70-years-of-age) – the only candidate for Gauteng Deputy Judge President – probably gave the best answer to the age question when he said “[t]he idea that you are all washed up at 70 is an old idea, as 70 is the new 50. I would like to invite any of the JSC commissioners to join me on my 3.5-hour, 100 km mountain bike ride and we’ll see who gets the orange first”. Another age question came in a different form, when Commissioner Malema accused Con-Court candidate Judge Fayeeza Kathree-Setiloane of “undermining young people” when she fumbled a concern raised by the JSC about her relations with a law clerk at the Con-Court and she answered and said “young people nowadays have a different work ethic” from that of her generation.
A shot in the arm for women in leadership
By the end of the first week of the JSC interviews, the vigorous energy exuded by the JSC at the commencement of the interviews slowly died down. There were a number of judicial leadership positions up for interview in the first week, and most of which the JSC recommended be filled by women. The Free State, Limpopo, Mpumalanga, and the Northern Cape will all join the Western Cape in having a woman as deputy judge president. The addition of these women now means that eight of the 19 leadership positions in the SA judiciary will be filled by women (up from a dismal four).
No institution has the right to exercise its powers in an abusive manner
The JSC needs to answer some serious questions in respect of the procedures it follows when seeking to appoint judges and put policies and procedures in place to ensure that there is fairness in the treatment of all those who appear before it.
It cannot be denied that the JSC needs to be vigorous and ask searching questions when conducting interviews. The crucial importance of the judiciary means that the public needs to be confident that the JSC will appoint only those judicial officers who have the courage to discharge their constitutional duty to dispense justice without fear, favour, or prejudice. However, no institution has the right to exercise its powers in an abusive manner. The JSC needs to answer some serious questions in respect of the procedures it follows when seeking to appoint judges and put policies and procedures in place to ensure that there is fairness in the treatment of all those who appear before it. Better yet, the JSC needs to have a strict criteria that it adheres to when conducting judicial interviews – derogating from these criteria would only be allowed in exceptional circumstances that are made transparent not only to the JSC Commissioners but to the public at large.
After the first week of interviews, the JSC recommended the following candidates for appointment:
Constitutional Court (two vacancies)
Supreme Court of Appeal (five vacancies)
Free State High Court (Deputy Judge President)
Limpopo High Court (Deputy Judge President)
Eastern Cape High Court, Mthatha (one vacancy)
Northern Cape High Court (Deputy Judge President and two judge vacancies)