A veteran lawyer, Donen has been an advocate since 1983 and was conferred silk in 2002. He has had several acting stints on the Bench since the 1990s.
In February 2006, Donen was tasked by former President Thabo Mbkei with chairing the commission of inquiry investigating the Oil for Food Programme in Iraq involving South African politicians, including Tokyo Sexwale and Kgalema Motlanthe.
The programme permitted the limited lifting of sanctions against Iraq and allowed for oil sales in exchange for humanitarian aid, but soon involved kickbacks and surcharges for “food sellers” and members of Saddam Hoosain’s regime.
The commission, from its terms of references onwards, was considered a white-washing exercise.
In 2015 Donen heard a matter in the Western Cape High Court in Cape Town which challenged the constitutionality of Section 10(6) of the Immigration Act. The section required non-South African national spouses to apply for, and wait for the processing of the application of, a visa or permanent resident permit outside the country.
Mindful of dispensing with bureaucracy and the need to dispense swift justice, Donen directed the department of home affairs to issue the spouse a visitors’s visa and to allow her the right to apply for permanent residence within three months of his judgment.
Donen has also published several articles, including “Impunity and Gross Violations in South Africa” and “In Search of Rights to a Fair Trial.” The latter sought to crystallise the right to an expeditious trial, arguing that when an objective ceiling of attrition was reached in court, the accused should be entitled to his or her acquittal.
Donen’s apparent conversion to the anti-apartheid struggle — which featured strongly in his submissions that he was suitably qualified to fulfil the human rights values of the Constitution if appointed as a judge — seemed to trip him up during his Judicial Service Commission interview on Friday.
When asked by National Association of Democratic Lawyers president Vuso Notyezi to describe his role in the late 1970s treason trial of ANC leader Tokyo Sexwale, Donen talked of working as a junior prosecutor to pay off loans after completing his legal degree dealing mainly with criminal matters.
He suggested that, “one day”, he was given the Sexwale case. He told the commission that he “soon realised I was on the wrong side” and, after chatting to Sexwale, decided to leave the country, study human rights law further and then returned to the country to exclusively represent the United Democratic Front.
He described that case as having a “seminal” impact on the rest of his life.
But his responses to questions about his role in the Sexwale treason trial soon degenerated into evasiveness and murkiness. Advocate Dumisa Ntsebeza SC said he was “uncomfortable” with Donen’s answers and asked him when, exactly, did he become aware of the political nature of the trial and that Sexwale, and several others, faced the death sentence. Other commissioners quizzed him on what his role had been during arguments in the matter and what exact assurances he had apparently given Sexwale’s legal team about not calling for the death penalty.
Donen contorted himself with contradictions several times. Ntsebeza said he would argue that Donen was not being “candid” with the commission about what he knew and what he did.
At the end of the painful interview, advocate Mike Hellens SC told Donen that he wanted to clarify that “what is being questioned here” was not that you prosecuted to the full extent off the law during apartheid as a prosecutor, but that, rather, Donen had attempted to “gild the lily of your character so as to ingratiate yourself with us”.
Donen had earlier rejected a suggestion by that he had “leaned on your struggle credentials on fostering yourself” for the position, saying that was not his intention and that it had been made clear to him by former justice minister and anti-apartheid activist Dullah Omar, that “there are no rewards for being in the struggle”.
Transformation at the Cape Bar dominated the early part of Donen’s interview. On skewed briefing patterns, Donen described the Cape Bar as being “riveted to the past”. He said a possible solution would be to ensure Advocates for Transformation having a larger say in the rules regarding briefing of advocates and pupillage to ensure black and female candidates were allowed more opportunities.
Western Cape deputy judge president Jeanette Traverso and Chief Justice Mogoeng Mogoeng both quizzed Donen on whether persuasion, rather than rules, would be more effective.
Donen was adamant: “My view is that 20 years down the line, persuasion hasn’t helped. We are past that point of persuasion,” he said, calling for more defined structural measures to aid transformation.
Justice minister Michael Masutha, who talked of his being “bombarded” by black advocates telling him that they were “threatened with closure” because the lack of briefing was affecting their practises, asked Donen: “Why is that Bar so alienating to Blacks and females?”
Donen responded: “It is a colonial institution and it perpetuates itself and that kind of philosophy… Certain people there know the Constitution very well, but they know it as a book and they don’t know the principle off Ubuntu and what their duties are [with regard to trannsformation].”
He told the commission that since being conferred silk 14 years ago he “almost exclusively” used black and female silks when he was not acting alone.
A submission by a University of Cape Town legal academic who described her job-shadowing him with a fellow pupil, a male, told of Donen being “arrogant”, “chauvinistic” to her, while giving preference to her male colleague. Asked to respond, Donen said, he did not recall the pupil shadowing him and that what she described “completely conflicted with my agenda and completely conflicted with my track record.”