Issues of race, ethnicity and transformation dominated the Judicial Service Commission's first day of interviews for judicial positions.
At the Westin Grand Hotel in Cape Town on Tuesday, the importance of Zulu ethnicity being a prerequisite to holding one of the top two positions in the KwaZulu-Natal division was raised during the interviews of judges Achmat Jappie and Mjabuliseni Madondo for the vacant deputy judge president position in that division. Meanwhile, in a gruelling two-hour interview, attorney Tanya Brenner was interrogated at length on her briefing of black counsel and what professional contributions she had personally made to transformation of the legal fraternity.
The other candidate vying for one of the three vacant positions on the North and South Gauteng High Court bench, advocate David Fourie, was also questioned about his former membership of the "two secret organisations", the Afrikaner Broederbond (which he resigned from in 1993), and its youth wing, the Ruiterwag.
Brenner was especially grilled by advocate Dumisane Ntsebeza, and then by fellow commissioner KwaZulu-Natal state attorney Krish Govender on her statement that she appeared not to know enough black counsel to brief at her private practice – and the suggestion that this was a pervasive problem in the legal fraternity &dnash; and that "if I had more interaction with black counsel, it would be easier" to achieve.
Brenner earlier said more should be done in Gauteng to bring advocates and attorneys together in the name of transformation. She also pointed to the fact that the landmark Constitutional Court ruling in the Irene Grootboom matter, was one instance where transformative judgments by courts has appeared to have little effect on the lives of those directly affected.
Brenner's statement that Grootboom had died in her shack, without proper housing, had appeared to rouse some sections of the commission, who then appeared intent on establishing Brenner's transformative credentials and her personal attempts at transformation within the legal fraternity &dnash; a sector of society often criticised for its briefing patterns that appears to still favour white counsel, leading to a lack of experience all the way up the legal chain to the judiciary.
'Briefing black people is taking a risk'
Responding to Ntsebeza's suggestion that there appeared to be an impression among litigants and lawyers that "briefing black people is taking a risk", Brenner said: "With respect, I wouldn't brief any person that I didn't know ... It doesn't have a colour sensitivity."
Ntsebeza at one point mused on how, 18 years after the end of apartheid, Brenner had been unable to acquaint herself with black counsel during her time as an attorney with the high profile Feinsteins law firm in Johannesburg, later in private practice or while serving as an acting judge in that division over the past eight years.
Brenner was also quizzed on a perceived lack of judgment when she admitted she had kept doing private attorney work while acting as a judge – which goes against section 11 of the Supreme Courts Act. The section requires an acting judge in such a position to get special permission from the justice minister.
Some of the commissioners appeared to have been convinced by Fourie's reconstruction as a committed South African despite at one time belonging to the Broederbond – the secret whites-only society that wielded considerable political and economic influence during apartheid.
Ntsebeza noted the "values of our Constitution are the antithesis of what these organisations stood for" and asked Fourie whether his attitude "had changed since you were a member of these organisations?" To which Fourie responded in the affirmative.
Said Fourie: "I made a terrible mistake in my past, and I am haunted until this day. I am sorry,"
Recalling his time as a commissioner at the Truth and Reconciliation Commission, Ntsebeza, noted for that commission, it was imperative there was "an acknowledgment that should precede reconciliation", and that he was "impressed by [Fourie's] honesty and all the responses you have given".
Fourie was also asked about how he would help assist young black judges if appointed and also on his record as convener of the transformation committee of the Pretoria Bar.
Madondo does 'not take tea'
The fireworks had really been let off earlier on Tuesday morning when KwaZulu-Natal judge president Chiman Patel interrogated Madondo on his record, noting that he rarely made the morning tea sessions that judges participated in to bounce opinion off each other and get a grasp on what was happening in the division.
Madondo stated that he "did not take tea" and did not think this meeting was obligatory. North and South Gauteng judge president Bernard Ngoepe noted the tea party ritual was accepted custom in most divisions.
Madondo was also quizzed about not notifying his superiors when he had been out of court. Patel had noted that during his last stint before going on long leave, Madondo had been out of court for 11 of the 20 working days in June, which the judge president described as "a very long period".
Said Patel: "You did not report to the senior judge and say: 'Look, I'm free, I'm not in court, can you allocate me work?'."
Madondo responded that he was not sitting around "having nothing to do" and that he was working, nevertheless.
Commissioner Ouma Borotho then asked Madondo, whether Patel raised both these issues with him previously, to which Madondo had responded in the negative – which she intimated reflected badly on Patel's leadership.
Madondo had in an interview for the judge president position last year – which he had contested with Patel – caused controversy when he had stated that the judge president of the KwaZulu-Natal division should be an ethnic Zulu, as that part of the population was in the majority in the province and that the judge president would have to interact in his official duties with political leadership of the same ethnic group.
This time around he suggested that these "social dynamics" made it a requirement that at least one of the judicial leaders in the province should be someone sensitive to that ethnicity and their historical and contemporary experiences.
The other contender for that position, Achmat Jappie, is the longest serving judge in that division and has the support of the majority of his colleagues on that bench, as well as the Advocates for Transformation in the province, the General Council of the Bar and the University of KwaZulu-Natal's law school. During his interview Jappie noted wryly that he was classified "other coloured" during apartheid; "whatever that means". He noted there were social issues that required attention in KwaZulu-Natal but was not convinced that his racial classification impacted the work that needed to be done as deputy judge president.
The commission also interviewed acting Labour Court judge president Basheer Waglay – the sole candidate for that position. He appeared to have a convivial interview.