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Two incidents this week served as a reminder of how dysfunctional the interviews of Judicial Commission (JSC) candidates have become in the recent past.
The first was when Justice Piet Koen, interviewing for one of five vacancies on the Supreme Court of Appeal (SCA), recalled his appearance before the JSC in April 2021.
The JSC interviews for the Constitutional Court in April 2021 marked the JSC’s high water mark for defections, with the session having to be repeated in its entirety after a successful court challenge. These interviews they were so bruising that at least one candidate — Justice Daya Pillai — has never appeared before the JSC since then. Few would blame her.
These interviews were conducted by then Chief Justice Mogoeng Mogoeng, who was personally responsible for some of the most questionable behaviour. When KwaZulu-Natal High Court judge Piet Koen came into his view, Mogoeng gave him a now infamous tongue-lashing based on Mogoeng’s claim that Koen had been rude to him in a meeting five years ago.
Amid the ensuing uproar from the KwaZulu-Natal legal fraternity on Koen’s behalf, it was then reported that Mogoeng had confused Koen with a different judge.
But for Koen, the damage was done. He told the JSC this week that he was so devastated after the interview that he considered leaving the judiciary altogether. Anyone who Googled him could easily access the footage of Mogoeng’s tirade against him, Cohen said.
This will stay with me for the rest of my life, thought the judge.
Given experiences like Cohen’s, it was no wonder that a day later during the ongoing interview session, Judge Elias Matoyane would more or less beg the JSC not to ruin his reputation.
“I could be in court tomorrow and if I have to take advantage of this process and be humiliated, what do we say to the parties who appear before us?” Matojane asked.
“If this platform implies that I don’t know what I’m doing, why should the litigants assume that she or he was unsuccessful on an issue — when that litigant knows that I don’t know the law?”
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Little cause for concern
Fortunately, Matojane and his 10 fellow SCA candidates didn’t have much to worry about this time around.
As Chief Justice Raymond Zondo is on leave, the ongoing JSC interviews are being conducted by Deputy Chief Justice Mandisa Maya. Maya’s calming presence may have had a positive effect on the commissioners, but this week’s SCA interviews were perhaps the most functional set of grills we’ve seen from the JSC in years.
Another important factor is the crucial absence of former commissioner Dali Mpofu, whose term on the JSC has expired. It would be unfair to put all the blame for the recent abuses of the JSC on Mpofu. But together with his EFF comrade Julius Malema and with the help of other commissioners such as Griffiths Madonsela, Mpofu in recent years appeared to be leading something of a JSC hit squad that saw proceedings become increasingly politicized and candidates increasingly humiliated.
Both Mpofu and Madonsela are gone. Fresh blood in the form of alternate commissioners like Barrister Kameshni Pillay and Professor Clement Marumoagae almost tangibly boosted the body’s energy, with both Pillay and Marumoagae making notable substantive contributions.
The issue of racial and gender transformation was treated as important during the interviews – an unusual proportion of applicants were white and the shortage of women in the judiciary is a growing concern – but did not dominate the proceedings in the way it had in the past.
Candidates were also asked to define their judicial philosophy; questioned about the view that law “is the weapon of those who own the economy to consolidate their power in society”; and criticize their adherence, or lack thereof, to legal precedent in their decisions.
Candidates also faced some tough questions about their personal abilities in areas such as writing judgments. Indeed, one worrying aspect of these SCA interviews was the number of candidates with long judicial experience who were accused of problems with writing judgments — based on testimony from colleagues or from the JSC’s judicial leaders.
Justices Anna Kgoele, Mandela Makaula, Daisy Molefe and Sulet Potterill were accused of writing judgments that required a degree of “beating” by colleagues or seniors to whip them into shape.
Justice Bashier Valli, meanwhile, has resorted to admitting that he “made many factual errors in many judgments” he wrote.
Awkward exchange
Perhaps the most awkward exchange on the subject took place between Justice Mandela Makaula and Deputy Chief Justice Maya, who opened Makaula’s interview by revealing that the two were old friends.
Maya asked Makaula, “Do you believe you are at a stage where you can write a good judgment without needing to be held by the hand?”
Makaula answered in the affirmative.
“It was not my experience [of you]Maya answered.
One wonders if the friendship survived the interview.
Two applicants were also charged with absconding from work without permission. Justice Daisy Molefe had to apologize for the fact that she was, in the words of presiding judge Xola Petse, “constantly during the term … not in court and nobody knew where you were” – although she disputed the frequency, with which Petse claims this happened.
And Judge Makaula was once again exposed by his old friend Maya for the “shocking and unprecedented” act of walking away on a working day when he was responsible for writing a judgement.
“I made a mistake,” admitted Makaula, who went on to admit in the course of his interview that he was “not computer literate.”
These revelations about experienced judges are worrying, but one distinguishing feature is that they were aired by the JSC in a far more respectful tone than commissioners have taken towards candidates in the past.
Also almost completely gone is the old JSC trick of trying to force judicial candidates to give opinions on politically sensitive matters – which Malema, in particular, has specialized in in the past.
There was one such moment in those SCA interviews that felt like déjà vu: when Malema asked Justice Matojane for his opinion on the merits of sending an elderly man to prison.
This was a clear reference to former president Jacob Zuma, with Matojane ruling in 2021 that Zuma’s release from prison on medical grounds was illegal.
However, Matozhan was having none of it.
“The short answer is that you want to get me in trouble by giving an opinion on a hypothetical set of facts,” he told Malema, adding: “And secondly, I know where you’re going with this matter – the matter is before the Supreme Court of Appeal. I’m out of it.
The five candidates the JSC ultimately recommended to President Cyril Ramaphosa for appointment to the Supreme Court of Appeal this week were Justices Glenn Goosen, Daisy Molefe, Peter Meier, Charise Weiner and Elias Matojane. DM
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