Judge Mahube Molemela’s interview for President of the Supreme Court of Appeal
Interviewing for the position of president of the Supreme Court of Appeal (SCA), Judge Mahube Molemela had to convince the Judicial Service Commission (JSC) that she had fresh ideas to maintain and improve upon the standards of a bench which she described as the judicial “lodestar” in the country.
It was a careful balancing act for Molemela – the eighth most senior judge at the SCA – who needed to highlight a new vision without suggesting that the previous leadership has handed over a skorokoro to navigate the potholed roads of law-fare in South Africa.
A tough ask. Especially when one factors in that your current (acting) boss, Justice Xola Petse, is sitting on the body which determines your promotion, and that he sometimes gives off the impression of being an absent-minded, but irascible, uncle who believes you’ve nicked his favourite pair of slippers.
Or that there is a growing perception within the legal fraternity that the retirement of some heavyweight judges in that division over the past few years has eroded institutional memory and intellectual capacity — especially in relation to commercial law matters.
The President of the SCA is the third most-senior role in the judiciary in South Africa. The incumbent is responsible for the running SA’s busiest appellate court, which provides guidance of the law to all the High Court divisions.
Molemela outlined her seven-point “priority” plan for the SCA. Most appeared important measures to ensure high adjudication standards at the court. Others, like the “implementation of strategic leadership” to maintain and improve morale and collegiality at the court seemed like a cut-and-paste of some self-help leadership manual.
A “serious problem” which would be prioritised, Molemela told the commission, was to furnish the SCA with more researchers and ensure the courts libraries were updated. Molemela made the disturbing statement that there were only six researchers for a court with 24 judges and that the SCA’s library had “not been updated since 2019” — the last time it saw new Law Reports.
She added that she would also focus on modernising the SCA, “responding to feedback from court users” to make the SCA more litigant-friendly (like providing rooms for consulting, which is otherwise done outdoors and not optimum in inclement weather) and the “optimisation of acting appointments”. The last point suggested that Molemela had an idea of which judges she hoped to invite and groom for appointment to the SCA.
Another priority area for Molemela was the allocation of cases and related scribing duties. There has been long-running discontent among some judges at the SCA where they sit as part of a 5-judge bench, that scribing duties have been unfairly allocated. Molemela said that rather than continuing with the practise of the most senior judge on a bench hearing the case (the presiding officer) allocating scribing duties to one of their colleagues, she may consider taking over that responsibility herself. This, so as to sooth egos, spread the work around and ensure harmony on the appellate court.
Molemela said that another priority for her would be to place matters of pressing concern in the SCA onto the agenda of heads of court meetings. Obvious enough. But Molemela said that she was, as a member of the South African Chapter of the International Association of Women’s Judges, working on a sexual harassment policy since this did not currently exist in the judiciary.
Appointed as a judge of the Free State High Court in 2007, Molemela became president of that division in 2015 and was then appointed to the SCA three years later. A meteoric rise within the judiciary which, when considered alongside her being previously recommended for appointment to the Constitutional Court by the JSC, has raised concerns among some commissioners about her “ambition”, especially when set against the context of her relative lack of seniority.
Fifty-eight-year-old Molemela assured the commission that, if appointed, she would retire as president of the Supreme Court of Appeal. It was put to her that the positions of Chief Justice and Deputy-Chief Justice were filled after the JSC interviewed candidates which the president recommended to the body. ANC MP Bulelani Magwanishe then asked Molemela what she would do if the commander-in-chief came calling? Molemela said she would remind him of the pledge she made during this April 2023 interview.
Molemela has previously enjoyed breezy interviews at the JSC and this was no different. There was one moment of contention when Petse raised with her concerns that she was sometimes “abrasive” in communicating with colleagues.
Molemela said none of her colleagues had previously raised this with her and could only suggest that it may have happened at an emotionally-charged meeting where presiding and scribing duties were being discussed.
“Sometimes when we are being brutally honest we might be accused of being abrasive,” she said. She added that several of her colleagues had visited her chambers after that meeting — if this is the one Petse had referred to — and congratulated her on raising the issues.
Advocate Kameshni Pillay SC (representing the advocates profession) later observed: “You are not the first outspoken woman in a professional space, and definitely not in the legal space, to be accused of being abrasive and I’m sure you won’t be the last.”
Molemela was commended for her independent-mindedness and steadfastness in writing dissenting judgments (which in some instances have been upheld by the Constitutional Court)
If there were shortcomings in Molemela’s interview, then these revolved around her reticence to reflect, and expand, upon her judicial philosophy.
Of equal disappointment was her responses to Advocate Carol Steinberg SC’s question about whether she felt there was a tension between doctrine of precedent and Section 39(2) of the Constitution which demands the development of transformative common law jurisprudence. Molemela’s response, that she had no difficulty in implementing Section 39(2) and believed there was no tension, appeared superficial and suggested a reticence to grapple with questions that required intellectual reflection.
Similarly, when Advocate Tembeka Ngcukaitobi SC pressed Molemela on the role of the Constitution in enforcing contracts. Her responses were vague before she pivoted to precedents which suggested that she did not believe the Constitution was too abstract when applied to contractual law matters. Sadly, her responses felt like another missed opportunity to reveal the inner workings of her judicial mind.
Molemela secured the JSC’s nod and the body will advise the president to appoint her.
Read more about Judge Mahubele Molemela:
Watch her full April 2023 JSC Interview: