JSC fail to find new Judge President for Eastern Cape

On Thursday, 6 April 2017, the Judicial Service Commission interviewed four candidates for the position of Judge President of the Eastern Cape Division of the High Court. The candidates were Judge M Makaula, Judge Z M Nhlangulela, Judge J E Smith, and Judge D Van Zyl. The current Judge President of the Eastern Cape, Themba Sangoni, is retiring later this year.

Case flow management and the lackadaisical running of the Mthatha court were of particular concern to the JSC commissioners and the Chief Justice with the candidates being asked what steps they would take to transform their provincial courts if they were nominated to be the next Judge President.

The first candidate to be interviewed was Judge Makaula who said that he felt apartheid divisions are still evident, structurally and socio-economically, in the Eastern Cape — and that this was apparent in the resourcing of courts, access to justice and the lack of transformation of the legal fraternity in the province.

He said that courts in the former bantustans of Transkei and Ciskei had infrastructure problems and “case flow blockages” while those in the urban centres like Grahamstown and Port Elizabeth were better equipped and had better institutional processes, like accommodating witnesses overnight to ensure they appeared in court. “I don’t understand why this is not done in courts like Mthatha,” he said.

Makuala said that with the promulgation of the Superior Courts Act, there was a real danger that the high court in Mthatha “is going to run dry of cases” because litigants would rather file cases in places like Grahamstown. He said litigants were reticent to approach the high court in Mthatha because of issues that slowed the wheels of justice like a motion court roll that was not split and blockages which he attributed to slack stakeholders including the head of the Legal Aid Board, the commissioner of prisons and the director of public prosecutions in the city.

The next candidate, Deputy Judge President Zamani Nhlangulela, whose attempts at “blowing his own whistle” showed him up more as a lightweight administrator who appeared to be struggling to deal with the problems in the Mthatha High Court. He then became shrilly defensive when questioned about what may be going wrong in his courts.

Nhlangulela said the problems at the court — which had been listed in detail by the previous candidate (Makaula) — were not his alone, but a failure by the “system” and otherwise defended himself with answers characterised by generalisations and clichés. This appeared to irritate Chief Justice Mogoeng Mogoeng who asked him to be more specific about the challenges that he faced as head of the Mthatha court and what remedies he had introduced since his elevation to that position six months ago. More obfuscation, rather than elucidation, followed.

Nhlangulela also received a tongue-lashing from Chief Justice Mogoeng when asked about a practise of judges only starting court at 11am. When he responded that he did not know of this — despite it being reported in the media — because he only has “two eyes, not ten” and that “I don’t know, if I am not told.” Mogoeng was not impressed.

When asked about the case flow management system initiated by Chief Justice Mogoeng, the third Judge President candidate, Judge John Smith, said that he had initially been “cynical” of the system, but that he had been convinced of its efficacy after being deployed by Judge President Sangoni to sit on the national Case-flow Management Task Team.

“A judge walking into a court at 9.30 in the morning must walk into a functioning court,” said Smith. He said that making practical, everyday changes to the functioning of the courts, like ensuring the accused are transported to and from prison timeously would assist in the finalisation of cases. Smith also identified the Mthatha courts as having the biggest problems with regard to backlogs and a lack of resources.

He said that gender and race transformation of the judiciary needed to be approached strategically to “ensure that there is a pool of competent lawyers appearing in the high court and doing substantive cases” because black and women judges don’t simply emerge “from the woodwork”.

Although Smith came across as personable and did not deliver any self-inflicted damage to his candidacy, he seemed to lack specific leadership experience within the judiciary, which may have counted against him when the JSC came to deliberations.

The final candidate Judge David Van Zyl has been the Deputy Judge President at the Bhisho seat of the Eastern Cape High Court since 2016, and had acted in that position for three years prior to his permanent appointment.

Asked by Judge President Sangoni whether his appointment, as a white male, would help in transforming the judiciary, Van Zyl agreed that the “Constitution envisages a transformed judiciary… and specifically that it reflects the gender and race demographics of South Africa.”

Van Zyl, whose candidature was supported by law bodies like the Black Lawyers Association, said that transformation also included the “functioning of the courts in line with the Constitution… I can affect a contribution in that regard.”

“Access to justice is very dear to me,” he said, “on that basis I would submit to you that my appointment would enhance the transformation of the courts.”

“The courts require a skilled, very dedicated and hardworking judiciary… I am not scared to work, I think I can set an example and encourage and inspire people,” he said.

Van Zyl appears to have diligently effected turnaround in the efficiency of the Bhisho seat of the Eastern Cape Division of the High Court. He detailed how the introduction of case flow management in Bhisho had effected turn-around which had seen a 79% finalisation rate of criminal matters in 2016.

He said, if appointed, he would introduce the system to the other courts in the province, which where lagging behind. He noted that while the PE and Grahamstown seats had finalisation rates for criminal cases of 64% each, Mthatha was extremely low at 32%.

Van Zyl said the problems at Mthatha lay with partly heard criminal matters which was creating a backlog in the court. This prevented new cases being enrolled and inhibited the swift dispensing of justice. Van Zyl said he would address this problem “robustly” by calling judges in over the recesses to finalise the cases in line with targets that would be set.

Practical steps Van Zyl had taken to effect a turn-around in Bhisho included building morale amongst all staff at the court, including court orderlies, stenographers and court interpreters. He said regular meetings with the different staff, to cajole, praise and relay criticism and complaints from judges so that he could “instil a sense of pride in working together, and in the institution” had “worked wonders”.

It was somewhat surprising to those of us in the room that the JSC failed to make an appointment to this position, leaving the Eastern Cape High Court effectively leaderless when the current Judge President retires. This is particularly concerning in a division which is so in need of strong leadership. No reasons were given for why no appointment was made, and as we have limited knowledge of how the JSC voting process works it is left to us to speculate why no candidate was appointed. We will await the next round of interviews in October 2017 to see if the position is advertised again.

Watch the JSC interviews for Judge President of the Eastern Cape Division of the High Court here:

Watch all of the April 2017 JSC interviews.