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Judge R T Sutherland

Capacity: Judge
Further appointments: N/A
First appointed as a judge: 30-01-2012
Key judgments: (1) NCHABELENG V UNIVERSITY OF VENDA AND OTHERS (2003) 24 ILJ 585 (LC) ; (2) LENTSANE & OTHERS V HSRC (2002) 23 ILJ 1433 (LC)
Gender: Male
Ethnicity: White

Candidate Bio and 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: