Supreme Court of Appeal gets 5 new judges

In April the Judicial Service Commission interviewed nine candidates for five vacancies at the Supreme Court of Appeal. As was the case in previous rounds for these vacancies, the candidates were grilled on divisions within the SCA and their experience of collegiality while acting at the court. The candidates all alluded to certain divisions within the court, some even mentioning a ‘top six’ who held sway in in the functioning of the appeals court. After a long day of interviews the JSC nominated five new candidates to the SCA bench.

Here are the five latest nominees to the Supreme Court of Appeal:

Judge Daniel Dlodlo

Western Cape Judge Daniel Dlodlo was avuncular and breezy during his hour-long interview, as he cracked jokes and talked theology with the born-again Christian Chief Justice. His interview saw him expounding on the value of his judgments which dealt with customary law and extended the metaphors presented to him by commissioners.

Commissioner Dali Mpofu, representing the advocates profession, asked Dlodlo whether the commission should favour youth over “experience and judicial pedigree” when considering the candidates.

Apparently paraphrasing Dale Carnegie, Mpofu asked, “you have a lemon, should we make lemonade”? Dlodlo observed that “a lemon that grows on a tree should not be taken away too early — it tastes better the longer it stays on a tree. I do not blame myself for having stayed so long at the high court — I have matured.”

All of this seemed to win over the JSC and Dlodlo made its five-person short-list for appointment to the SCA.

Judge Caroline Heaton Nicholls

The Judicial Service Commission (JSC) sometimes has two distinct approaches to candidates with impeccable struggle credentials: fawning or devouring the candidate.

The former happened to Gauteng High Court Judge Caroline Heaton Nicholls, and she was successfully recommended for appointment to the Supreme Court of Appeal (SCA). The latter to her husband, the eminent struggle activist and lawyer Gcina Malindi SC, during an unsuccessful 2016 interview for a high court position in Gauteng. [Watch Malindi’s JSC interview here]

Heaton Nicholls and Malindi had met during the Delmas Treason Trial, where he was one of the accused and she, his lawyer. Chief Justice Mogoeng Mogoeng noted that they broke the law, the Immorality Act in particular, to laughter from the commission.

This reaction increased when, before asking questions, Advocate Dali Mpofu SC, representing the advocates’ profession, declared knowing the candidate for a long time and being close family friends, especially with his former partner.

In fact, Mpofu mused, ‘we broke the law at the same time — but not together’. Cue much laughter from the Commission.

Judge Yvonne Mbatha

Her interview was as unremarkable as her record appeared to suggest — a perfectly adequate judge. Mbatha came across as workmanlike in the 13 minutes the interview lasted (she has been previously interviewed and commissioners will have had copies of those transcripts). She told the commission that she had enrolled for a university maritime law course when faced with a particularly difficult maritime matter.

She was recommended for appointment by the Judicial Service Commission (JSC) despite appearing to need more time extending the scope of her work and her judgment writing experience.

Judge Fikile Mokgohloa

SCA President, Mandisa Maya, told the commission of her “struggles” to free Mokgohloa to act at the Appeal Court since her boss in Limpopo, Judge President Ephraim Makgoba, found her so indispensable.

Maya described Mokgohloa as a “sensible, diligent and studious judge”.

While the Advocates for Transformation (AFT) in KwaZulu-Natal — where she had worked at the high court for a period — had supported her appointment, the National Association of Democratic Lawyers (Nadel) had made submissions to the commission that she required more time at the high court to formulate her judgments and improve her writing skills.

Mokgohloa said other law bodies had analysed her judgments and had not “found anything negative about them… I have acted at the SCA and I am ready,” she said.

She was duly nominated to one of the vacancies at the court.

Judge Clive Plasket

The Eastern Cape High Court judge had previously been on the receiving end of the Judicial Service Commission’s (JSC) foulest moods when he last sat in the interviewee hot-seat in 2013 (see profile).

This interview was much smoother, and he was duly recommended for appointment after admitting that he may have erred in his argument regarding transformation in his previous interview when he had combined a legitimate perspective on the role transformative and progressive judgements play in weighing one’s transformation credentials (as opposed to mere box-ticking along race and gender lines) with an apparent inability to admit his own white male privilege.

Plasket said his several acting stints at the SCA and varied expertise in administrative law (on the Bench, in practice and as an academic) would stand him in good stead at the Appeal Court if appointed.

Supreme Court of Appeal President Mandisa Maya noted that Plasket was a “fearless fighter for the disadvantaged” who had “waged a long battle” to ensure social justice in the Eastern Cape — to the point that he was “seen as an anti-government judge”.