Chief Justice Raymond Zondo. (Photo by Veli Nhlapo/Sowetan/Gallo Images via Getty Images)
The Judicial Service Commission has recommitted to its selection criteria agreed in 2010 and agreed to treat all candidates for appointment to the bench with respect and dignity, Chief Justice Raymond Zondo said on Tuesday.
“We confirm that they continue to apply and there was also complete acceptance, without exception by anybody, that we appreciate it when practitioners and judges make themselves available [and] that at all times we intend treating all candidates with respect, courtesy and due regard to their human dignity,” he said.
Zondo added that it was a given that at times “difficult” questions would be put to candidates, but “we simply seek to establish what we need to establish to advise the president”.
The remarks came at the beginning of four days of interviews with candidates, starting with those for two vacancies at the constitutional court.
There has been such unhappiness at the improper questioning of candidates that a round of interviews with aspirant constitutional court judges in April last year were repeated in October after the Council for the Advancement of the South African Constitution turned to the high court to have the process set aside.
Matters grew worse still in February when Zondo and three other candidates for chief justice were interviewed.
On Tuesday, one of the observers who had raised concern about the tone of questioning said not elaborating on 12-year-old criteria was “a cop-out”, but had the merit of referring to written guidelines. Nor was it the end of the matter. Nothing could be done without a sitting chief justice, and Zondo might be open to returning to the subject at a later stage, the observer noted.
Others with insight into the meeting at which the JSC mulled its mandate on Monday read it as a show of strength from the new chief justice, as he insisted that the established rules would be respected henceforth.
Two of the candidates overlooked in April and October, David Unterhalter and Alan Dodson — graduates of Oxford and Cambridge, respectively — were being interviewed again on Tuesday.
Both command great respect in the legal community and both were questioned somewhat bluntly — at their earlier appearances before the commission — about their demographic suitability for the apex court given that they are white males.
Zondo was questioned about this in his interview with the JSC in February for the chief justice job, and replied that it was constitutionally appropriate that there were white judges too at the court. The last was justice Johan Froneman, who retired in 2020.
“When this body considers the interviews with candidates for the Con Court in April, this body will have an opportunity to decide whether it places before the president for his decision some white candidates to enable him to appoint one or both, or fill one or both vacancies with white judges,” said Zondo at the time.
“But that is a constitutional imperative that this body is enjoined to consider each time it considers these matters and I have no doubt it will consider it and make its judgment call.”
Western Cape high court judge Owen Williams is the third white male candidate of five candidates in total in this week’s round of interviews, and Zondo disclosed that he had prevailed on him to make himself available.
Economic Freedom Fighters leader Julius Malema asked Dodson how he believed his appointment would advance transformation.
Dodson replied that he had always accepted and adopted the transformational ethos of the Constitution and that he believed this would be reflected in his judgments.
Malema then put the point more finely, saying: “I specifically ask about issues of race and gender. Which of these two are we achieving through your appointment?”
Dodson replied: “In terms of a numerical answer, of course there is nothing I can do about the fact that I am white and male … I am an African.”
That was the end of the matter, and the tone of the morning’s proceedings differed like night from day to recent rounds.
The second candidate to be interviewed, Gauteng high court judge Fayeeza Kathree-Setiloane, said she believed it was a constitutional imperative to appoint competent female judges to the court, and that her appointment would help to achieve gender parity at a time when there are five male and three female judges at the apex court.
She confessed, to a question from Inkatha Freedom Party MP Narend Singh, that she had not read Bwanya vs Master of the High Court, Cape Town and Others. The seminal 2019 ruling, penned by constitutional court justice Mbuyiseli Madlanga, held that the Maintenance of Surviving Spouses Act was unconstitutional in that it excluded permanent heterosexual life partners from claiming maintenance from the estates of their deceased partners and directed parliament to amend the law.
Kathree-Setiloane said although she had not had time to study the judgment, she believed in the equal rights of long-term, live-in partners and that these should be protected in law, provided the longevity of the relationship could be proven.
She also argued courts should see it as their role to deliver rulings that give effect to socioeconomic rights, particularly given the resource constraints the government faced in honouring these, and that customary law should not be neglected but used to enrich common law.
Kathree-Setiloane has twice before been interviewed for a seat on the constitutional court but her candidacy has been clouded by a complaint of unfair treatment filed by a former clerk, the daughter of Supreme Court of Appeal president Mandisa Maya.
She described herself as stung by the complaint, which she termed a mixture of lies, exaggeration and trivia.
On Tuesday, she said her earlier appearances before the JSC had helped her to benefit from the wisdom in the room to become a more patient, temperate judge.
The latest presidential nominee to the JSC and its new spokeswoman, Sesi Baloyi SC, noted that Dodson in his interviews last year seemed to suggest that he had availed himself for appointment to the constitutional court, from the bar, because he deemed that with his experience a high court appointment would be “a demotion”.
Dodson denied this, and said his choice was largely a function of the fact that he would soon turn 62 and had to think how he would ideally spend the remaining years of his career.
“I have 13 years of working life left and one looks at that time and one thinks how can I best enjoy that time.”
If he were not recommended for appointment, he would continue his work at the bar and would readily continue to act on the high court, Dodson said. His acting stints on the bench add up to more than five years. To Baloyi’s description of the high court as the coal face of the judiciary, he said he believed he could make as great a contribution from the bar as from the high court bench.
Dodson is known as a lawyer who has often acted pro bono for litigants facing infringement of fundamental rights.
He long served as a judge of the land claims court where he delivered ground-breaking rulings that continue to be applied by the supreme court and the constitutional court. He said on Tuesday he believed that only one judgment, in which he had been an assessor, had been overturned. Dodson chaired the UN Housing and Property Claims Commission in Kosovo and is respected internationally as an expert on land restitution.
Predictably, he was questioned about the ANC’s failed attempt to steer an amendment to section 25 of the constitution through parliament to explicitly allow expropriation without compensation.
Dodson stressed that with section 25 as it stands, zero compensation was an option.
“The short answer is it is possible, lawfully, to have expropriation without compensation under section 25 and there are two ways in which that can happen.”
The first, obvious instance was if the owner had enjoyed subsidisation that equaled the market value of the land. But, he added, at times a figure of zero could also be arrived at by applying the limitations clause in section 26 of the constitution.
When asked whether he would be an “activist judge”, Dodson replied: “The short answer is we have an activist constitution. You don’t need to be an activist judge.”
When he was asked by the speaker of parliament, Nosiviwe Mapisa-Nqakula, to speak to a blanket criticism of his court judgments submitted by National Association of Democratic Lawyers, Dodson said he had found it unfair that the organisation failed to provide further detail, leaving him unable to comment or counter its objection.
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