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Judge R T Sutherland

Capacity: Judge
First appointed as a judge: 2012
Further appointments:
Judge of the Labour Appeal Court (2014)(part time)
Deputy Judge President (Johannesburg) – 2021
Gender: Male
Ethnicity: White
Date of Birth: February 1951
Qualifications: BA, LLB, Higher Dip. (Tax Law), MA (Applied Ethics) (Wits)

Key judgments:

Candidate Bio

Judge Roland Sutherland is the Deputy Judge President of the Gauteng High Court, Johannesburg – the most senior judge permanently based at that court. As such, he effectively runs the busiest court in South Africa, situated in the economic hub of the country.

Sutherland has had a long career in the law: starting off as a court clerk in 1968, he went on to be a district court prosecutor, a state advocate, and eventually joined the Johannesburg Bar as an advocate in private practice in 1977, taking ‘silk’ ( senior counsel status) in 1995.

Although Sutherland’s practice as an advocate was varied, labour law and human rights took up a significant chunk. He was a legal counsellor with the Labour Law Clinic from 1978, and a labour mediator and arbitrator from 1987, rising to be chairman of the Alternative Dispute Resolution Association of SA from 1995.

Sutherland was well-regarded as a leader among his peers at the Bar. He was elected as a member of the Joburg Bar Council from 1990, with a stint as chairman in 1998 –9.

In between, he was honorary secretary and later vice-chairman of the General Council of the Bar, which represents advocate nationwide. With a term running from 1999 to 2007, he was one of the longest-serving leaders of the Bridge Group of Advocates, arguably the most progressive group of advocates at the Joburg Bar at the time.

From 1997 to 2011, Sutherland held several stints as an acting judge of the High Court and the Labour Court before his permanent appointment in 2012. Since then, he has written numerous groundbreaking judgments.

In Amabhungane, Sutherland struck down as unconstitutional invasion of privacy several sections of the RICA Act (Regulation of Interception of Communications Act), which gave the government sweeping powers of mass surveillance over people’s communications.

Similarly, in Right to Know Campaign, Sutherland declared unconstitutional several sections of the apartheid-era National Key Points Act, which shrouded government buildings in secrecy, in violation of the right to access to information.

Sutherland has also served (part time) as a judge of the Labour Appeal Court, grappling with complex questions of labour law – his first love. He wrote the seminal judgment in Edcon v Steenkamp, which was later confirmed on appeal in the Constitutional Court and laid down key principles of how the four remedies for unfair dismissals in section 189(13) of the Labour Relations Act must be read together. In NUMSA v CCMA, Sutherland set out the guiding principles of how industries should be demarcated in terms of industrial relations legislation.

With a masters degree in applied ethics, Sutherland is also a professional ethicist, with a specialist focus on legal professional ethics – the subject of his MA dissertation. He has written extensively on the Ethical Code of Conduct for Legal Practitioners introduced by the Legal Practice Act, and has lectured on the Professional Ethics section of the Bar Pupillage Programme since 1996 to date.

Although he ranked below the middle of the hierarchy of judges at the Joburg High Court, Sutherland’s 2021 candidature for Deputy Judge President and leader of that court enjoyed wide support among the judges. He also enjoys overwhelming support in the legal profession, and is credited with actively improving the efficient functioning of the court.

Sutherland is also a champion of the revitilisation of the historic Joburg High Court precinct in the city centre, which has seen frightening levels of crime and grime. Since 2021, he has engaged with at least 4 mayors of Joburg. This is probably not a reflection of Sutherland’s political charm but more of Game of Throne-esque nature of the highest political office in the city.

April 2021 Interview Synopsis

The Judicial Service Commission (JSC) has been consistently inconsistent when it comes to navigating the often confusing racial and class dynamics of the country and how the Constitution seeks to address these in relation to transformative judicial appointments.

Sometimes it appears to consider transformation quite narrowly, in terms of only skin “pigmentation” and gender; to the disregard of class, lived experience, a transformative judicial record or the sense of how a candidate’s outlook on life and adjudication exists in relation to the values and vision of the Constitution.

At others — usually when a white male candidate is well-liked, respected by some commissioners, and has a history of anti-apartheid struggle (either so grand a reputation that credentials cannot be ignored or one that does not intimidate those with lesser pedigrees on the commission) — the commission demonstrates an appreciation for nuanced and profound readings of the relevant Constitutional imperatives that would, to ordinary observers, appear essential for every interview they conduct.

For Gauteng Judge Ronald Sutherland the latter approach appeared to dominate.

Advocate Dali Mpofu SC noted that the “issue of mere pigmentation” was an important consideration in appointing judges because apartheid inequalities which persist today find their source in racial discrimination. He, however, qualified this with the argument that “transformation went beyond pigmentation” and also lent itself to the “transformation of ideas” and the “need” for a “diversity of ideas” to be represented on the Bench.

Sutherland agreed telling the commission that it was “sometimes dangerous to subordinate your planning to too much blueprinting”. He bemoaned the fact that after almost a quarter century of freedom South Africans still hadn’t coalesced around a “unified mindset” on how to address transformation of society and the judiciary drawn from historical “segmentation”.

He said it was “sometimes best to have a direction of travel in mind” around which you then drew “friends” and fellow travelers to achieve the ultimate goals. Using the continued commodification of women in broader society as an example, he however warned that this journey needed to be fueled by substantive attempts to address the deep-lying and structural issues that held back transformation rather than paying lip-service to change.

Sutherland was also tested about his role in transforming the Bar while working as a well-regarded silk and on the consequences of some of his judgments, including one recently confirmed by the Constitutional Court which rendered illegal the practice of bulk surveillance (without proper warrants to do so) by the South African state’s politically compromised intelligence agencies.

He was also asked by attorney Doris Tshepe about the work he had done in contributing to the ethical conduct of practitioners and the judiciary. In outlining these, which have included being the principal lecturer on ethics at the Johannesburg Bar and rewriting sections of the guidebook to be more gender neutral, Sutherland elicited follow-up questions regarding corruption among judges.

The judiciary appears to be reeling from a series of crises and unsubstantiated allegations these days. These, disturbingly, have been emanating from sources within the political elite, including a former president (Jacob Zuma) and a member of the JSC itself (Economic Freedom Fighters’ Julius Malema).

Naturally, the politicians on the JSC have been using the platform to quiz candidates on this unseemly phenomenon that is being fueled by social media trolling.

ANC member of parliament Thamsanqa Doduvu asked Sutherland several questions regarding “how ethical is the judiciary today” and whether there were some judges who were “corrupt or can be corrupted?”

Sutherland said that it was unfortunate that there were scandals which affected particular individuals on the Bench — the Western Cape High Court has been experiencing a particularly tumultuous time, likewise the Limpopo division — but declined to comment on particular cases since he believed this would be “invidious”.

“I’ve never met a judge who is corrupt or is corruptible,” Sutherland said, adding that the notion of a corrupt judiciary was a “gross exaggeration” and that “on the whole” the “judiciary is trustworthy” and that the public’s concerned needed to be allayed.

Adding that he found it “disappointing” that “unsubstantiated”, social-media driven allegations dominated the public conversation around the judiciary, Sutherland commented that: “The JSC comes in for quite a beating from time to time but it cannot function without facts… Its very unfortunate that those who make these claims don’t provide evidence,” he concluded.”

April 2021 Interview: