With just four candidates applying for a vacancy at the Constitutional Court after two rounds of advertising, there is speculation among legal circles that the Judicial Service Commission would merely rubberstamp the appointment of judge Ray Zondo, or distance itself from the intrigues within the court and its relationship with the executive.
The commission will interview the constitutionally required bare minimum of four candidates for the vacancy at the Southern Sun hotel at Johannesburg’s OR Tambo Airport on June 9.
Having finally scraped together four candidates, the commission is compelled by the Constitution to nominate a minimum of four people to President Jacob Zuma for consideration. Judges Ronnie Bosielo, Mandisa Maya, Robert Nugent and Zondo are likely to have their names forwarded to Zuma, unless one or more is found by the commission to be particularly unsuitable.
This is a scenario that the Democratic Governance and Rights Unit based at the University of Cape Town’s (UCT’s) law school found “problematic”.
In its report to the commission, the unit, which monitors the commission’s work closely, submitted that the “JSC’s role will effectively be limited to determining whether any of the nominees are so unsuitable that they cannot be recommended to the president for appointment”.
This, the unit maintained, placed both the commission and the candidates in “a very uncomfortable position” and raised concerns “that, by interviewing only the bare minimum of candidates necessary, the JSC will be limiting its constitutional role unduly, to the point of extinguishing it”.
There are several other nettles that the commission will have to grasp during the interviews. Of paramount importance will be the constitutional imperative that the judiciary “reflect broadly” the racial and gender composition of South Africa.
Justice department statistics as of May this year suggest gender transformation of the judiciary is woeful: only 67 of the country’s 237 judges are women – despite women making up more than half of South Africa’s population.
Of the 11 current justices at the Constitutional Court, only three are women: Sisi Khampepe, Bess Nkabinde and Maya, who is acting in that position.
Civil society organisations such as the Sonke Gender Justice Network and UCT’s Gender, Health and Justice Research Unit have been lobbying for the appointment of Maya, even writing to Zuma in support of her nomination.
Maya is a highly regarded jurist who, legal sources feel, is strong on issues of gender-based violence, gender equality and possesses a progressive outlook on socioeconomic rights. She has also been unafraid to demonstrate her independent mindedness. In the matter of Minister of Safety and Security vs F before the Supreme Court of Appeal in 2011, Maya wrote a minority dissenting judgment that found that the police minister was vicariously liable for an off-duty policeman raping a woman.
On appeal to the Constitutional Court, the appeal court’s majority judgment was reversed with the higher court’s majority findings in line with Maya’s earlier judgment.
The commission may also have to deal with several other controversies surrounding the candidates. It was revealed in Parliament in 2007 that Zondo had, between 2002 and 2006, been paid R1275493 in transport and living allowances over and above his salary, which at that time stood at R704475.
Zondo had been appointed to the Labour Court in 1997 and allowed by then-justice minister Dullah Omar to retain Durban as his headquarters, where he had a home and the Labour Court has a satellite branch.
In terms of the Judges’ Remuneration and Conditions of Employment Act, Zondo was entitled to a R600 stipend (raised to R660 in 2005) for every 24 hours he spent away from his headquarters as a Labour Court judge. He, however, received a permanent appointment to the North Gauteng High Court in May 1999, was appointed acting head of the Labour Court in August 1999 and permanently appointed to the position in April 2000.
This meant his headquarters moved to Gauteng where he would not have qualified for a stipend. Yet he was paid a stipend for, on average, 313 days a year over that five-year period. It is unclear whether the matter was further investigated following the revelation in Parliament.
With Chief Justice Mogoeng apparently feeling increasingly isolated at the Constitutional Court, it is understood that, in his search for allies, he approves of Zondo’s appointment.
Both appear to share a similarly conservative outlook that would appear oppositional to the requirement of Constitutional Court judges to produce progressive new jurisprudence in line with the transformative imperatives of the country.
In the matter of Maphango and Others vs Aengus Lifestyle Properties (Pty) Ltd before the Constitutional Court last year, the applicants, residents of an apartment block in Johannesburg, had sought to stave off eviction by a private landlord who had bought and upgraded the block before attempting to increase the rent by between 100% and 150%.
The majority judgment, written by Justice Edwin Cameron through an expansive reading of the Rental Housing Act together with the Constitutional provisions that underline the rights to housing and against arbitrary eviction, empowered rental housing tribunals – set up through post-1994 legislation to determine whether the landlord had been engaged in “unfair practices” in attempting exorbitant rental increases.
The minority dissenting judgment, written by Zondo, with concurrence from Mogoeng and Chris Jafta, upheld the rights of the landlord to cancel the leases, increase rentals exorbitantly and evict tenants if they were unable to pay the hiked rates.
Constitutional law expert Pierre de Vos, in his blog, Constitutionally Speaking, noted that the minority judgment “displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants … The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.”
Bosielo has himself been involved in a sensitive and controversial judgment. In 2005, while acting in the high court of Namibia, he acquitted Namibian Supreme Court judge Pio Teek on seven charges, including kidnapping, abduction, plying two under-age girls (aged nine and 10) with liquor with the intention of stupefying them for sexual purposes and sexual abuse. Bosielo, who found that the evidence given by the two girls was contradictory, threw out the case, awarded costs against the state and refused it the opportunity to appeal.
On appeal directly to the Namibian Supreme Court, three South African judges found that Bosielo had “failed to apply his mind” and that there was “ample room for a Teek conviction on all the charges against him, save perhaps for the crime of abduction”.
They had also found that contradictory evidence that followed one of the girls, “Q”, recanting her original statement to police originated “under circumstances where she was clearly under pressure by her parents not to incriminate the respondent.
“In fact, it appears that “Q’s” father was related to the respondent and that he informed the legal practitioner for the defence that he did not want his daughter to give evidence against the respondent. According to the testimony of “Q’s” mother, the father was so determined to stop the state from calling “Q” as a witness that he consulted a legal practitioner for that purpose.”
The judges, after analysis of the 21 contradictions that Bosielo raised in his original judgment, found that “a significant number of them amount to no contradiction at all and that they owe their inclusion into the catalogue to misinterpretations or wrong evaluations of the evidence”.
The matter was sent back to Bosielo, who acquitted Teek for a second time in 2010.
Nugent is a well-respected and experienced jurist lauded for his progressive jurisprudence and academic writing. But being a pale male may work against him in this round of interviews, according to legal sources.