Mahube Molemela told the Judicial Service Commission that she was ready to retire as president of the supreme court of appeal, should she be appointed, rather than seek promotion to the constitutional court. Photo: Supplied
Justice Mahube Molemela on Monday told the Judicial Service Commission that she was ready to retire as president of the supreme court of appeal, should she be appointed, rather than seek promotion to the constitutional court.
Molemela was nominated to the position by President Cyril Ramaphosa in February and, after interviewing her on Monday, the JSC said it would advise him to proceed with her appointment.
In the interview, she was reminded by Justice Basheer Wagley, the judge president of the labour court and labour appeals court, that she had previously been shortlisted for appointment to the apex court.
“I need to know about your commitment to this position,” he asked.
Molemela replied: “I, here and now, want to assure the nation that if I am appointed to that position, I will retire from that position.”
She became judge president of the Free State in 2015, only the second woman to head a division, and is now one step away from becoming the second woman to head the appellate court, after deputy chief justice Mandisa Maya.
“I am very confident. I’ve had time to think about everything since the nomination,” Molemela continued, adding that she was touched by the support her nomination had received from colleagues and understood the need for continuity and stability at the SCA.
“I have noticed how a lot of people believe in me and I will not let those people down. And if I am appointed to the position, I will stay in the position and will not make myself available to the constitutional court.”
Molemela’s was the first in a full week of interviews with candidates for vacancies in the judiciary. The JSC will however not interview candidates for a vacancy at the constitutional court, which arose some 18 months ago when justice Sisi Khampepe retired, because it was only able to shortlist three. In terms of section 174(4)(a) of the Constitution, the JSC must submit a list of nominees with three names more than the number of appointments to be made to the president.
The lack of candidates has been ascribed by commentators as being in part due to the abuse of the interview process for political purposes and commissioners’ tendency to harangue judges over past rulings that went against their party.
Molemela is an uncontentious candidate and her interview was civil throughout.
At the start, Chief Justice Raymond Zondo announced that the JSC had, in a meeting on Monday morning, formally adopted new draft criteria for judicial appointment that would replace those that have been in place since 2010.
The 10-page document expands significantly on criteria adopted in 2010 which were concerned with three main questions — whether a candidate was appropriately qualified, and a fit and proper person, and how their appointment would reflect the racial and gender composition of the country.
Molemela was bluntly asked what she thought of the present state of the JSC. She replied by welcoming the adoption of the new criteria.
“I think that was circulated in October last year, if I am not mistaken, and I read it and felt reassured and so I have nothing to complain about regarding this commission.
“To the extent that there were concerns that were raised in the past about how it was conducting itself, its most recent performance is encouraging. I remember that after the first round of interviews where the chief justice presided as the chairperson, there was positive feedback about how commissioners conducted themselves under his leadership.”
Molemela courteously disagreed with several propositions put to her by commissioners.
Among this was a suggestion by advocate Sesi Baloyi who asked whether she would agree that since the constitutional court had become the court of final instance for all matters, there may no longer be a need for the legal mechanism, in section 17(2)(f) of the Superior Courts Act, which allowed applicants denied leave to appeal by the appellate court to ask the president of the court to reconsider the decision.
Molemela agreed that the provision has been overused of late. She noted that the court was receiving an average of three requests a week, but said not all were without merit and she had been party to such decisions, upon reconsideration, to hear an appeal. In one instance a sentence was reduced.
“There are instances where the application was referred for oral argument and there are instances where it has been successful,” she said.
“So, I don’t have a short answer. There are instances where that section 17(2)(f) application has benefitted an accused person.”
Molemela also demurred when it was put to her by advocate Carol Steinberg that the SCA had lost acumen in certain areas of law in recent years.
“There is a perception that the SCA’s strength in a couple of areas has diminished in recent years, one of them being commercial law, where increasingly one sees parties choosing private arbitration because of a perceived weakness in all our courts on commercial and in the SCA, in particular, on constitutional jurisprudence,” Steinberg said.
“It is the choice of the parties; they are not doing this because there is a lack of expertise at the SCA. We can’t help it,” Molemela replied.
She added that If natural attrition meant that the court had lost experts in some areas, frequent training was the remedy, and that those who had retired had availed themselves in this regard.
“Judges undergo training very frequently. There is training that is provided by the South African Judicial Education Institute,” she said, noting that this applied to the judges of the appellate court too.
Molemela said the areas of law included maritime law, taxation law and intellectual property law.
“I participated and we will continue to participate.”