Judge Sulet Potterill told the JSC the battle to bring women into the highest echelons of the judiciary will be won.
Aspirant appellate court judge Sulet Potterill’s answer to a question about continued male dominance at the highest level of the judiciary was as calm and clear as the rest of her replies to the Judicial Service Commission: it will end.
“I am very confident that we will get them off their thrones,” the senior Gauteng high court judge said on Tuesday.
Potterill was asked for her view on the subject by commissioner Kumeshni Pillay, who raised the fact that there was not a single female head of senior court in the country and called it the “the elephant in the room” in the conversation on judicial appointments. There are 15 such positions, she stressed, and not a single female incumbent, if one did not count Deputy Chief Justice Mandisa Maya’s role.
“It is glaring that there is, except for Judge Maya, just nobody,” said Pillay, who represents Advocates for Transformation on the commission.
“That raises the question as to what are the obstacles for women to advancement in the judiciary? Why is it that we aren’t seeing women fill these crucial positions?
“We need to grapple with the elephant in the room and the reality is there is just a lack of political will. And then the question is how do we grapple with that elephant in the room, it is just men clinging to power and perpetuating?”
Potterill agreed with the premise, but added that part of the problem was that once women were appointed to the bench, they tended to focus all their energy on the job at hand and neglected to put themselves forward for leadership positions.
“You are right. It is glaring that there is, except for Judge Maya, just nobody,” she said.
“I think women have a natural ability to organise — I’m not saying men don’t — so we’ve already got that. I think we are so trying to prove ourselves as judges that we are not even thinking of leadership roles.” She then suggested that the tide was slowly turning, on the evidence of recent meetings of the South African Chapter of the International Association of Women’s Judges.
There are now enough women who have the experience to fill leadership roles, if this was not the case a decade ago, Potterill added. She insisted that “we can fix this” but argued that training could be useful, prompting Pillay to object that this could be read as patronising.
Potterill again agreed but said her point was a pragmatic one.
“I hear what you are saying but if they are not getting briefed, so they are not getting practical experience, at least the training is a substitute, at least it gives them a foot in the door … but training is not going to help per se if it does not lead to a result.”
On briefing patterns, she said: “I think it is getting better, I just wish it would be perfect, and it is not.”
The JSC is interviewing 11 candidates for five vacancies at the supreme court of appeal (SCA). Only three are women, and Judges Matter have raised the same concern as Pillay, noting in the run-up to the ongoing interviews that in coming days the JSC will be seeking to fill five leadership positions on the bench but that there are female candidates for only three, including fellow Gauteng high court judge Sharise Weiner. Like Potterill, she on Tuesday dealt firmly with questions around male dominance.
“There are six women deputy heads of court [DCJ Maya, and Deputy Judges President Goliath, Mbhele, Mphahlele, Phatshoane, and Semenya).This means that the Heads of Court, a powerful statutory body chaired by the chief justice responsible for crafting judicial policy, is now comprised exclusively of men,” Judges Matter said.
“The JSC will be under some pressure to rectify this situation as over 40 percent (113) of SA’s 254 judges are women.”
In 2019, Potterill granted an interim interdict to suspend the public protector’s directive that President Cyril Ramphosa discipline then public enterprises minister Pravin Gordhan pending the latter’s challenge to her adverse report into allegations of a so-called rogue unit at the South African Revenue Service.
In her ruling, Potterill said it would be remiss of the court not to comment on the remedial orders given by now suspended public protector Busisiwe Mkhwebane.
“This court had to study the report and remedial orders in order to ascertain whether in fact there is irreparable harm to Gordhan. Much of the orders are vague, contradictory and/or nonsensical,” she said.
Her judgment unleashed a storm of criticism, much of it on social media and some of it instigated by Mkhwebane herself. It has recently emerged in the section 194 impeachment inquiry she is facing that Mkhwebane had paid consultants with taxpayers’ money to plant stories attacking Potterill.
The judgment informed an objection to her candidacy for the SCA by one Mr Max Masuku to the effect that she did not understand the law, which Potterill said she thought was unfounded. It also informed questions by commissioners Mvuzo Notyesi and Julius Malema, though neither openly referenced the ruling.
Notyesi suggested that she used harsh, disparaging language in her rulings and had been taken to task by the constitutional court for such, which Potterill said was not the case.
She acknowledged that her use of the word nonsensical had been discussed among peers in a training session and said though in her vocabulary, and in case law, it signified devoid of sense, she readily accepted that judges must be measured in their language.
Economic Freedom Fighters leader Malema put it to Potterill that she was “the most favourite” of Gauteng Judge President Dunstan Mlambo to sit with him on high profile cases, and that in the process more senior judges were overlooked. Potterill evenly replied that this was wrong, ending that line of inquiry.
“I sat in one full bench with the JP. So I don’t think that is correct.”
Potterill in 2017 granted an order that Fireblade Aviation be allowed to operate a private VIP terminal at OR Tambo after then home affairs minister Malusi Gigabi sought to revoke permission he had, she held, plainly granted according to documents before the court. Potterill denied him leave to appeal and exceptionally also ordered that her decision not be suspended should he petition the SCA directly for leave to appeal.
The SCA denied Gigaba leave to appeal and the court saga eventually damaged his credibility to the point where his exit from cabinet became inevitable.
On Monday, Pietermaritzburg high court Judge Piet Koen had argued for reform of section 18 of the Superior Courts Act which stipulates that, barring exceptional circumstances, a decision that is subject to an appeal or an application for leave to appeal, is suspended.
He made the comments after being grilled as to why he had included, in three judgments submitted in support of his candidacy for the SCA, a postponement he granted former president Jacob Zuma in the arms deal case in May to allow Maya to decide a reconsideration application he had filed. In that ruling, Koen said though Zuma had no prospect of success with the application, it was filed in terms of section 17(2)(f) of the Act, which triggered section 18 and left him no discretion.
He argued that rules on appeal had become a minefield and argued that judges be allowed to use their discretion as to whether an application for leave to appeal should in fact suspend an order they had granted.
In reply to criticism from Notyesi for attaching the ruling to his application, he said that for the sake of respect for the law, the public should be able to understand how courts arrived at their rulings, adding that his decision on Zuma’s application for a postponement was carefully weighed.
The application had been described by the state as part of Zuma and his legal team’s tireless Stalingrad strategy.
Potterill was asked by commissioner Gratitude Magwanishe whether she would sympathise with the view that the law is the weapon of those who command the means of production.
“Rich people can litigate and they can afford the best counsel, but they cannot manipulate the law,” she replied, to which he asked again whether she would agree with the contention.
She said the wealthy were clearly advantaged, as evidenced by their fight to the highest courts.
After deliberations, neither Potterill nor Koen were recommended for appointment. The JSC recommended Weiner and judges Daisy Molefe, Pieter Meyer, Glen Goosen and Keoagile Matojane.
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