Five ConCourt candidates recommended to the President
Six candidates were interviewed for the Constitutional Court on Wednesday 3 April 2019 for two vacancies at the highest court. Of these candidates, five were recommended to the President for appointment. In line with section 174(4) of the Constitution the President will now appoint two Constitutional Court judges from the list of five names sent to him by the JSC.
The interviews themselves had a somewhat precarious start. They were scheduled for Monday, 1 April, but on the day a “possible conflict of interest” emerged and SCA President Maya recused herself from sitting in the interviews. In order for there to be quorum the President of the SCA or an appointed deputy needs to be present at the interviews, so the Constitutional Court interviews were postponed until Wednesday, 3 April. Reasons for the “possible conflict of interest” were not forthcoming, but the details emerged during Judge Kathree-Setiloane’s interview on the Wednesday afternoon. (See her interview below.)
Here is an overview of each of the candidates interviewed for the Constitutional Court:
Judge Annali Basson
A Pan Africanist Congress member during the anti-apartheid struggle, Basson bemoaned the rampant inequality in South Africa, which she linked to the inability to institute effective land reform. She added that inequality was one of the greatest obstructions to justice in South Africa.
Basson pointed to the Baleni judgment to demonstrate “that I am sensitive to the needs of the country… and that there is ongoing inequality in the country”.
Dali Mpofu, representing the advocates’ profession, threw a provocation into the mix by suggesting Section 9 of the Constitution (which deals with the right to equality) “did not belong in the same Constitution” as Section 25, which deals with land reform, as it stands. Basson said she “couldn’t agree more… equality is one of the founding values of the Constitution… and we will never be able to heal the wounds… which are still very raw [unless] we… address substantive inequality in all spheres.”
Judge Patricia Goliath
Chief Justice Mogoeng spoke for large swathes of Goliath’s interview so as to comment on varying matters including his fear that there is a “campaign” and “concerted effort” to “attack” and “discredit me”. He said he therefore only reads academic articles “sparingly” and that academic criticism of commercial law judgments coming out of the Constitutional Court was “about protecting that system of law” which was “untouchable” because it also protected the associated privilege.
Often, after a diatribe from the Chief Justice, Goliath merely sat nonplussed or nodded agreement, with nothing to answer.
When Goliath was asked questions that dealt with her suitability to be appointed to South Africa’s most important court she performed adequately — her responses in no way suggested some divine inspiration.
Judge Jody Kollapen
Gauteng High Court judge Jody Kollapen battled gamely 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.
Kollapen was asked by SCA Judge Azhar Cachalia, who was sitting in for Supreme Court of Appeal president Mandisa Maya, about the “furious debates” in law journals and elsewhere that are 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.
Judge Stevan Majiedt
Majiedt, as was mandatory for all Constitutional Court candidates who have served any time at the SCA, was asked about the fractious state of the appeal court for most of his interview.
He said there were “two sides of the coin” at the SCA when it came to a lack of collegiality there, mentioning a recent “unpleasant episode” with an acting female judge being shouted at by a senior judge as an example of the rude and elitist behaviour at the court which needed to be eradicated. Majiedt said he was “aghast” at what had been said to the female judge and had also been “ashamed to be on the Bench” because of the manner in which a senior judge had spoken to a male acting judge during a trial.
But, on the other side, Majiedt intimated that there was justifiable discontent and frustration among judges who were carrying heavier workloads while others slacked off: “We must all pull our weight, we must all do our work,” he said.
Judge Zukisa Tshiqi
The fractious atmosphere at the Supreme Court of Appeal (SCA) appeared to consume some members of the Judicial Service Commission (JSC) more than candidates’ suitability for appointment to the Constitutional Court. This was especially true of SCA Judge Zukisa Tshiqi’s interview, as well as that of her colleague Stevan Majiedt.
The majority of the questions in Judge Tshiqi’s interview revolved around an apparent “Top Six” senior judges at the court who allegedly behaved in an unbecoming manner, including shouting at colleagues who were acting at the appeal court, and kept all the ‘plum’ cases to be heard by themselves.
She was also asked whether disciplinary procedures for such behaviour were adequate (yes) and why senior judges were not acting in a decisive manner, and how this affected the court’s functioning?
She also told the commission that her acting stint at the Constitutional Court had been “enriching”, having enjoyed sitting with more judges during hearings and the “flurry of emails” which followed.
There was also one candidate who was interviewed who was not nominated for appointment to the ConCourt bench:
Judge Fayeeza Kathree-Setiloane
Simmering underneath the JSC interviews week was the recusal of Mandisa Maya from the Constitutional Court interviews which caused their postponement from Monday, 1 April to Wednesday, 3 April.
It also emerged during Kathree-Setiloane’s interview that Maya’s daughter had served as one of the high court judge’s clerks when she had acted for two terms at the Constitutional Court in 2017.
Mogoeng had raised an incident when some of Kathree-Setiloane’s clerks — including Maya’s daughter — had made complaints about the judge’s behaviour towards them. These included allegations that Kathree-Setiloane had “shouted” and “screamed” at one of them while she was in hospital, causing her blood pressure to rise and a nurse to instruct her to switch off the phone.
This had led to the clerks lodging a complaint which was eventually “resolved” by Deputy Chief Justice Raymond Zondo. Kathree-Setiloane said Zondo had told her the charges were so ridiculous that “even her mother will give her a good scold about it”.
Justice Minister Michael Masutha said Kathree-Setiloane’s “tenor of voice” and “manner of speech, at best” came across as “fairly overbearing”.
Kathree-Setiloane said she was “an assertive person” and that it was “the first time I’ve been called overbearing”.