/ 11 April 2013

JSC extends Davis’s tenure at Competition Appeals Court

President Jacob Zuma has announced his judiciary appointments.
President Jacob Zuma has announced his judiciary appointments.

Davis was the only candidate interviewed for the position. The commission also announced that it was recommending six candidates to president Jacob Zuma to fill vacancies at the North and South Gauteng High Court.

Four vacancies had initially been advertised in the Gauteng division but according to commission spokesperson, CP Fourie, “more vacancies had come about” since the initial advert and the commission had duly sought to fill them, something it “is entitled to do”.

The successful candidates included four females; attorneys Wendy Hughes, Nomsa Khumalo, Daisy Molefe and Leonie Windell and two males; Brian Mashile and advocate Gregory Wright.

The commission had interviewed nine candidates – five females and four males – for the North and South Gauteng High Court, during a week when controversy over transformation of the judiciary’s gender and race balance, had raged.

This after an internal report by one of the commissioners, advocate Izak Smuts, had gone public. The report questioned whether the commission was biased against the appointment of white males to the bench.

Transformation
Chief Justice Mogoeng Mogoeng had reiterated the commission’s commitment to gender and racial transformation of the judiciary during a press briefing on Tuesday.

He said it would be “dereliction of duty” on the commission’s part if black South Africans appearing in the country’s court still echoed the words of former president Nelson Mandela during the Rivonia trial from 1963-64, where he remarked that he felt like a “black man in a white man’s court”.

Mogoeng said it was “not a constitutional imperative to appoint the best of the best … merit does count, but it is not all about merit”.

Some members of the legal fraternity, who spoke to the Mail & Guardian, felt that the binary of merit versus race was an unfortunate one for the commission and Mogoeng to constantly use as they are not mutually exclusive.

“There are several competent black lawyers and judges in the country and to constantly describe transformation in these terms does them a disservice,” said one legal practitioner.

Another legal practitioner said it was not useful to constantly frame the transformation debate as "pitting talented white men against inexperienced, feckless black people."

The announcement of the North and South Gauteng recommendations followed a week of surprises – especially within the context of the transformation storm in which the commission is currently embroiled.

Recommendations
On Tuesday, it announced that South Gauteng High Court judges Halima Salduker and Nigel Willis had been recommended to fill two positions on the Supreme Court of Appeal bench.

Salduker, who has very few reported judgments, is considered callow. Supreme Court of Appeal judge president Lex Mpati revealed during her interview that he had canvassed the opinions of Salduker’s colleagues when she had acted at the appellate court. He said their responses had been that “you don’t make the contributions expected of you during hearings” and her writing of judgments “needs to be worked on”.

Salduker said she felt she should be allowed to develop as a judge.

The Supreme Court of Appeal, which hears a wide range of matters, is considered one of the most demanding and exacting divisions in the country.

Willis is considered a “maverick” within the legal fraternity, and almost “anti-poor” in his views on housing rights and the socioeconomic jurisprudence developed by the Constitutional Court – which he has been critical of in his judgments.

A progressive legal practitioner at a public interest law firm went so far as to describe him as “a really lovely guy, personally”

, but "I deeply disagree with everything else he has ever said".

So it was a surprise that Plasket, a well-respected jurist with struggle credentials, an academic track record, progressive judgments and a background is administrative law, was overlooked. He did, however, experience a torrid interview.

On Wednesday, the commission sprung another apparent surprise when it announced that it had recommended Judge Aubrey Ledwaba for the deputy judge-president position in the North Gauteng High Court.

Ledwaba had competed against two women, judges Letty Mpho Molopa-Sethose and Cynthia Pretorius for the position, with the latter apparently faring best during the interviews.