/ 21 June 2009

Race for Concourt judges

The race to replace four Constitutional Court judges gained momentum this week after the Judicial Service Commission (JSC) called for nominations. Chief Justice Pius Langa, who will retire in October along with fellow judges Yvonne Mokgoro, Kate O’Regan and Albie Sachs, penned the much-anticipated advertisement in his capacity as JSC chairperson.

Interviews of applicants will take place on September 5 and the appointment process will be especially scrutinised in the light of recent turmoil in the judiciary due, in part, to the pending JSC complaint against Western Cape Judge President John Hlophe by 13 acting and permanent judges of the Constitutional Court and his counter-complaint against the 13.

The saga has exposed cracks in the judiciary and fuelled fears of possible interference from the executive arm of government in the selection of the replacements for four Nelson Mandela-era judges.

The University of Cape Town’s Democratic Governance and Rights Unit is working on a study headed by Professor Richard Calland to assist in the determination of possible candidates. The work in progress, which the Mail & Guardian has been privy to, analyses judges’ track records since 2005 and highlights 23 likely nominees.

Based on the UCT analysis and on opinion in well-informed legal circles, here are the five ”favourites”.

Azhar Cachalia (53)
In the UCT analysis Azhar Cachalia comes out head and shoulders above the rest. The brother of Gauteng safety and security minister Firoz Cachalia, he was a founding member of the United Democratic Front and has been with the Supreme Court of Appeal (SCA) since 2006. He sat on the SCA bench that overturned Judge Chris Nicholson’s judgment in the Jacob Zuma corruption case.

Dennis Davis (58)
”With [Judge] Edwin [Cameron] out of the equation there is none better than Dennis Davis,” says a prominent Johannesburg advocate who has handled many Constitutional Court cases. Davis is the only white judge president — he heads the Competition Appeals Court — and is a legal scholar well published in most areas of the law.

Respected for his adjudication skills, Davis also serves on the Western Cape Bench. An outspoken defender of the rule of law and the judiciary, he is the host of a SABC television show dealing with legal issues.

Mandisa Maya (45)
With two female judges retiring, Judge Mandisa Maya is favoured for elevation. She has served on the SC) since 2005 and on the labour court, and was an acting appeal court judge in Namibia. She formed part of the Harmse Bench that overturned Judge Chris Nicholson’s judgment in the Jacob Zuma case.

Belinda van Heerden (55)
Belinda van Heerden has served on the SCA for the past nine years. Legal professionals say her solid legal background, with qualifications from Stellenbosch and Oxford, makes her an automatic nominee. She was initially a legal academic before being appointed to the Western Cape Bench in 2000.

Leona Theron (42)
Judge Leona Theron was previously nominated for deputy judge president of KwaZulu-Natal and at the end of last year she was interviewed by the JSC for the Constitutional Court. She has served on the SCA where she produced a celebrated dissenting judgment in the Nkomo rape case, arguing for an increased sentence.

With Justice Minister Jeff Radebe indicating a desire to have more women in leadership positions in the judiciary and KwaZulu-Natal Judge President Vuka Tshabalala set to retire next March, Theron could have to choose which court she wants to serve on.

Will they, won’t they?
The Health Department does not believe an anonymous email calling on public health professionals to strike on Monday will lead to any action. But the South African Medical Association (Sama) says its members support the email’s call for mass action.

Circulated this week, the email urges a ”complete withdrawal of all services … commencing on June 22 and concluding when all demands in the memorandum have been satisfactorily addressed. The demands include the occupation-specific dispensation (OSD) payment agreements concerning doctors that have still not been implemented.

”It is not likely that doctors will strike on Monday. They know they can’t just go on strike; they take their jobs and their oath very seriously,” said health department spokesperson Fidel Radebe. He said the OSD negotiations have been proceeding smoothly.

”There is no animosity, processes have not deadlocked or collapsed, and there have been no delays, so we are not convinced there is any reason why doctors would suddenly strike,” he said.

But Dr Bandile Radebe of Sama said there have been many delays in OSD negotiations and members are unhappy. The email does not originate from Sama, he said, but the association’s members are prepared to be part of the mass strike action.

The government was due to table a new offer last week, but doctors say this did not happen. Sama member Dr Shalendra Sham, a senior surgical registrar at King Edward Hospital in Durban, said health employees feel the government does not take them seriously. ”We do not think government is going to offer us anything close to what we have asked for, which is why there have been these continued delays. We don’t think they will be serious about sorting this out, unless we force their hand by going on a mass strike.”

He said health professionals believe the government is dragging the process out until after the Confederations Cup because it is not confident about its offer and is trying to avoid any disputes that would lead to bad publicity. — Nosimilo Ndlovu