/ 24 September 2009

Constitutional Court hearings: Now it’s up to Zuma

The Judicial Service Commission may have dealt Western Cape Judge President John Hlophe a resounding slap in the face this week — but the Africanist perspective he personifies still triumphed in the JSC’s short-listing of replacement judges for the Constitutional Court.

Prominent non-racialists like judges Willie Seriti, Dunstan Mlambo and Azhar Cachalia failed to make the shortlist from which President Jacob Zuma must choose four replacements for the judges who retire in October. Only one white judge — the Eastern Cape High Court’s Johan Froneman — made the JSC’s list.

Senior white advocates who ­testified at the hearings in Kliptown — including Jeremy Gauntlett and former acting judge Geoff Budlender — were given rough treatment by the black representatives on the commission, including Justice Minister Jeff Radebe.

Notable omissions from the shortlist were Dennis Davis, the judge president of the Competition Appeal Court, and North Gauteng High Court Judge Eberhard Bertelsmann, originally seen as strong contenders.

The commission’s desire to appoint black women to the court shone through its friendly questioning of female Supreme Court of Appeal Judge Mandisa Maya and High Court judges Sisi Khampepe and Leona Theron, tipped in last week’s Mail & Guardian as frontrunners. Theron, however, is unlikely to be among the four finalists, as she is is believed to be in the running for the leadership of the KwaZulu-Natal Bench when incumbent Vuka Tshabalala retires next April.

Radebe has made it clear that he wants more female judges president.

Advocate Marumo Moerane, a commission member, signalled the JSC’s soft handling of Khampepe by asking her whether she had not found it difficult to chair the Khampepe Commission into the future of the Scorpions, given the professional rivalry between the unit and the police. Khampepe answered that she had handled the matter well because she had honed her mediation skills in the Truth and Reconciliation Commission.

Labour and Labour Appeal Court Judge President Raymond Zondo, also included as a frontrunner in last week’s M&G, made the JSC shortlist, as, more surprisingly, did North West Judge President Mogoeng wa Mogoeng.

Mogoeng sermonised about challenges in the judiciary, questioning the practicality of implementing African languages in court given South Africa’s resource constraints. Often long-winded, Mogoeng prompted South Gauteng High Court Judge George Maluleke to jokingly mutter: ‘Can someone say amen to that.”

Before the hearings, insiders told the M&G a token white would be short-listed. Significantly, it was an Afrikaner, not a member of the English-speaking legal fraternity.

During his testimony, Radebe referred to Froneman’s ‘revolutionary approach to our Constitution”. Froneman, who was warmly received, responded that he had ‘got the vibe of the Constitution before others”. The M&G understands that Zuma is likely to appoint him, with Maya, Khampepe and another African, Supreme Court of Appeal Judge Chris Jafta.

Jafta was given a relatively easy ride, except from Inkatha Freedom Party’s Koos van der Merwe. Van der Merwe pressed him on whether Hlophe had attempted to influence him on a search-and-seizure warrant involving Zuma.

Jafta proved to be critical to the JSC’s decision to drop its investigation of Hlophe, by conceding that his (Jafta’s) inference that Hlophe might have attempted to influence him was mistaken. However, at this week’s hearings, he agreed that ‘drawing an inference from the totality of facts” at the time, his impression was that Hlophe had attempted to influence him. He said media reports had been inaccurate.

Budlender was hammered by the commission after he said he had been reliably told that he was not appointed under Thabo Mbeki’s administration because he had made some people ‘angry” by taking cases against the government.

Remarking that he had sat on the commission the longest, Moerane said he did not recall the JSC passing Budlender over because of the reasons he had given.

Equally Gauntlett, who sits on the board of former judge Johann Kreigler’s Freedom Under Law (FUL), received some harsh treatment over FUL’s decision to take the JSC’s ruling on Hlophe on review.

He did not, however, take this lying down and responded with wit and, at times, sarcasm.

‘Kreigler means ‘warrior’ … He is not the reincarnation of Mother Theresa,” said Gauntlett, answering Radebe’s question about whether it was not ‘paternalistic” for Kriegler to ‘assume” that Gauntlett, former JSC commissioner Kgomotso Moroka, Dumisa Ntsebeza and ANC NEC member Cyril Ramaphosa should recuse themselves from the FUL decision.

Gauteng High Court Judge Kathy Satchwell received notably rougher treatment than the other female candidates. Despite her warm rapport with Radebe, who is said to have favoured her appointment, she was taxed by attorney Mvuseni Ngubane, who told her that some counsel had complained that she was discourteous. Ngubane also rapped her over the knuckles over for referring to herself as ‘wonderful” in a judgement. Satchwell explained that she was attempting to infuse humour into an awkward situation where she had to cite herself.

A letter by advocate Zahid Omar was also read to Satchwell questioning her lesbian lifestyle.

Advocates for Transformation chairperson Dumisa Ntsebeza asked whether Omar was raising a concern likely to be shared by some South Africans.

She responded that her private life was a private matter.

At this week’s hearings it became increasingly apparent that the JSC was not considering Hlophe as a serious candidate for the Constitutional Court. He was heavily questioned on his past indiscretions, including his famous report on racism in the Western Cape Bar and Bench to former justice minister Brigitte Mabandla, and whether he had apologised to those he had accused of racism, including Gauntlett.

‘We shook hands,” Hlophe said. He also promised to consider apologising to the judges of the Constitutional Court for accusing them of conspiring against him.