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Hard punches and soft-peddling by JSC in Con Court interviews

Niren Tolsi

As interviews in the selection of a new Constitutional Court judge came to an end, Ray Zondo appeared to hold an advantage over his three rivals.

Judge Robert Nugent (Paul Botes, M&G)

Judge Ray Zondo appeared to have the easiest of the lines of questioning during the Judicial Service Commission (JSC) interviews for the vacant post at the Constitutional Court at the Southern Sun hotel at Johannesburg’s OR Tambo airport on Saturday.

Zondo’s was the shortest of the four interviews, lasting about 40 minutes, and it appeared a pleasant enough exercise - in stark comparison to the relentless grilling experienced by Supreme Court of Appeal (SCA) judge Robert Nugent who was questioned over remarks, that he’d withdrawn his candidacy for a Constitutional Court posting in 2009 because he did not trust the JSC to fulfil its constitutional obligations.

This while SCA judge Ronnie Bosielo had performed strongly in a convivial exercise of minds and Judge Mandisa Maya appeared nervous and the JSC cagey around her—perhaps with the growing calls for a woman judge to be appointed at the back of their minds.  

Nugent experienced a relentless grilling from justice minister Jeff Radebe and advocate Ishmael Semenya especially. KwaZulu-Natal state attorney Krish Govender joined in as well, but the SCA judge stood firmly by his statements. While making a point to acknowledge that race and gender were especially important considerations for the commission in this round of interviews, he challenged the commissioners to regard him on his track record, rather than on what he considered a matter now closed.

In 2009, retired judge Johann Kriegler had suggested to the media that Nugent had withdrawn his candidacy for the post because he did not trust the commission to fulfil its constitutional mandate in that round of interviews.

In a brave and forthright statement made to the JSC, Nugent, who is regarded as one of the country’s foremost legal minds with vast experience in several branches of law and is renowned for writing lucid, accessible judgments very quickly, admitted that at that time, he “did not trust” the JSC to fulfil its constitutional mandate.

The statement came at a time when the JSC had decided not to pursue the complaint lodged against Western Cape judge president John Hlophe, made by the full bench of the Constitutional Court, that he had approached and sought to influence members of that bench in a matter before it that involving corruption charges against President Jacob Zuma.

Hlophe had laid a counter-complaint with the JSC that the press release announcing the Constitutional Court justices’ decision had impinged on his right to dignity.

Nugent said his view had been reinforced by a unanimous judgment of a full sitting of the SCA when it found for civil society organization Freedom Under Law in its application to overturn the JSC decision not to investigate the matter fully.

The SCA, Nugent told the JSC, had found that the body had “abdicated its constitutional responsibility” in the matter and it justified his statements made at a “painful time” in the JSC’s history, but which he stood by, nevertheless, and now considered a matter of history.

He also told the JSC that his long history “of service to law and to the country” and over 250 judgments spoke for themselves with regard to his suitability for the job.

Financial obligations
Zondo, who is currently acting at the Constitutional Court, had it much easier and was not questioned at any depth on the matter of travel and subsistence claims amounting to almost R1.3-million that he received over a period between 2002 and 2007 while he both headed the labour court and was posted as a judge of the North and South Gauteng High Court.

The matter had been raised by the Johannesburg Council of the Bar, and in his response submitted to the JSC, Zondo stated: “I had requested the then Minister of Justice, Dr Penuel Maduna, to make the Durban Labour Court / Labour Appeal Court my headquarters and he had done so. By reason of that I was entitled to subsistence and travelling allowance for the periods I spent away from Durban in connection with my work and for short periods spent in Durban as long as my accommodation commitments in Johannesburg remained during the time spent in Durban. That was in terms of the regulations.”

“Throughout my term of office as judge president my accommodation commitments [i.e. financial obligations] in Johannesburg continued. Accordingly, I was entitled to subsistence and travelling allowance and the allegation made in the [MoneyWeb article submitted by the JCB] article falls to be rejected.”

Complaints that Zondo had been an ineffective administrator during his stint as judge president of the Labour Appeals Court, and that he had an inordinately long turn-around time in writing judgments, were dealt with in a perfunctory manner. This because they had been raised at previous JSC interviews that Zondo had had with the commissioners—which commissioners had transcripts of, Radebe pointed out.

One legal practitioner found it “outrageous” that the JSC had not followed up on one of Zondo’s reasons for taking so long to write judgments in the labour appeal court—which the judge claimed was because he had taken on the writing of several other judgments that members of his bench were too “inexperienced” to write—and enquire further into the state of the labour court at that point.

Zondo, who was described by chief justice Mogoeng Mogoeng as having an “unrivalled” reputation in labour law, also stressed his immense workload at the time as another reason for his poor turnaround on judgments.

Earlier in the day, acting Con Court judge Mandisa Maya—the only woman among the four candidates—was questioned about her judicial independence and whether she could maintain it at the Con Court where, it was suggested by North and South Gauteng high court judge president Bernard Ngoepe that, “some sort of judicial cult had developed”.

Maya was lauded for her independence when she wrote a dissenting judgment in Minister of Safety and Security v F before the SCA in 2011 where she found that the national department was vicariously responsible for an off-duty policeman raping a young woman.

The Constitutional Court later overturned the SCA’s majority ruling and delivered a judgment in line with Maya’s dissenting one.

She responded that SCA judge president Lex Mpati could vouch for her independent-mindedness, which he did attest to later in the interview. “If I take a certain view, nothing can shake me from that,” said Maya.

The first candidate interviewed, SCA judge Ronnie Bosielo had stressed the importance of access to justice, the gender transformation of the judiciary which he found “stagnant”, and the need to transform traditional courts and indigenous law so that these were “consonant with the constitution.”

The JSC deliberations and voting appeared to take less than ten minutes at the end of the interviews, suggesting that all four names will be sent to Zuma for him to decide on who to appoint to the highest court in the land.


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