/ 7 September 2008

Judges in the dock

Judge Frans Kgomo. Photograph: Garth Stead
Judge Frans Kgomo. Photograph: Garth Stead

The Judicial Service Commission will meet on September 17 to finalise a shortlist of candidates to interview for a solitary Constitutional Court seat, to be vacated later this year by retiring Judge Tholakele Madala.

The seat is the first of five to be vacated this year and in 2009 by Nelson Mandela-era judges who spearheaded South Africa’s first Constitutional Court.

It marks an initial step in a process of renewal that will see the largest number of the court’s founding judges leaving together. The group includes Chief Justice Pius Langa and judges Albie Sachs, Kate O’Regan and Yvonne Mokgoro.

According to the JSC a shortlist of candidates to be interviewed between October 13 and 17 in Cape Town will be available towards the end of this month.

The post was re-advertised after the JSC could not garner enough candidates for the interview. The original list, according to Business Day, consisted of magistrate Samuel Mashimbye, Judge Nigel Willis of the Johannesburg High Court, former Wits professor Mervyn Dendy, Judge Shenaz Meer of the Land Claims Court and Pretoria High Court Judge Eberhardt Bertelsmann.

Members of the JSC subsequently added the names of Supreme Court of Appeal judges Edwin Cameron and Christopher Nyaole Jafta and Acting Supreme Court of Appeals judge and judge president of the Northern Cape Division, Frans Kgomo.

The Mail & Guardian this week canvassed opinion in the legal and academic worlds to ascertain what the three judges who were approached by the JSC would bring to the Constitutional Court.

Most commentators said the ability to deliver timeously and write ‘quality” judgements that propel South Africa’s liberal democracy forward were pre-requisites for appointment to the court.

The appointee should have experience in constitutional and other legal matters. He or she need not come from the SCA but should have shone either as a judge, attorney or advocate.

Kgomo, from the North West town of Brits, is considered by some to be the weakest of those added to the list.

Currently serving in an acting capacity on the SCA, he is the judge president of the Northern Cape Division, one of South Africa’s smallest divisions.

Kgomo has taken a similar legal route to that of Langa, working his way from the bottom of the legal system — he first worked as an interpreter and clerk in the former homeland of Bophuthatswana.

The 61-year-old married father of five, whose career began in the 1960s, has also served as a prosecutor and district and regional magistrate.

Kgomo will be remembered for his judgements in two landmark cases dealing with equality. The first of these involved Judge Kathy Satchwell who fought for the right of her same-sex partner to benefit from her pension payout.

Kgomo declared that sections of the enabling legislation were unconstitutional and referred the case to the Constitutional Court for confirmation. The Constitutional Court, in a ruling handed down by Judge Madala, later confirmed his ruling.

Kgomo’s other prominent case, while a judge in the Pretoria High Court, involved another judge, Anna-Marie de Vos, who sought an order declaring that lesbian couples might adopt children.

In 2006 Kgomo was involved in a racial spat with other judges of his division after he recommended to Justice Minister Brigitte Mabandla that a ‘junior judge” act as head of the court while he was on leave. He later laid a complaint with the JSC.

Once seen as a rising star who was certain to rise to the highest court in the land, Christopher Nyaole Jafta’s ascent has, according to legal sources, been slightly tainted by involvement as one of the judges Cape Judge President John Hlophe allegedly attempted to influence in a case involving ANC president Jacob Zuma.

Hlophe allegedly approached Jafta while the latter was an acting Constitutional Court judge.

Hlophe has admitted that the two judges indeed discussed the Zuma case and would not reveal the contents of another ‘confidential” conversation he had had with Jafta.

The majority of those canvassed still believe, however, that he would make an exceptional Constitutional Court judge and that he has delivered some solid judgements in the past.

Jafta served for many years as acting judge president of the Transkei division and also had a spell as an acting judge in the Labour Appeals Court.

A former academic, he previously taught in the Western Cape with Hlophe.

In 1999 Mandela is said to have seriously considered appointing a former Oxford University Vinerian scholar, Edwin Cameron, to the Constitutional Court.

At the last minute, it is said, deputy president Thabo Mbeki intervened and Cameron was not appointed.

The M&G understands that it is Cameron’s fear of again being rejected, primarily on racial grounds, that made this SCA judge reluctant to make himself available for the Constitutional Court on this occasion.

It is believed, however, that the highly respected Pretoria-born jurist, who has openly declared that he is gay and HIV-positive, will make himself available if enough of his peers ask him to.

One prominent lawyer described Cameron as the best lawyer of his generation. Across the race spectrum, he is seen as the judge most suitable to take up Madala’s seat on the Bench.

However, the consensus is that Mbeki is still unlikely to appoint him, as he has been a staunch critic of the president’s stance on HIV/Aids and state provision of antiretrovirals.

Cameron has been a judge since 1999 and has served acting stints on the Constitutional Court, where he wrote judgements which are widely cited in teaching and legal practice.

A lawyer friend of his told the M&G that principle drove him, while highlighting his clarity of thought.