Top court nominations begin to address judicial gender injustice
“None of them make me go, ‘eek’,” was the way one lawyer described the five candidates’ judicial philosophies.
This is perhaps unfair comment: the situation is hardly dire. For even if the least impressive candidate were to be appointed to the Constitutional Court, insiders say that, if the weighting of the court’s tendency towards the progressive or the conservative were to be tipped by the choice, that much is not obvious judging by the nominations.
At worst, the candidates are a safe bet. At best, the pool, albeit tiny, contains some strong constitutionalists.
On July 9 and 10, the Judicial Service Commission (JSC) will interview the five: four candidates vying to fill a vacancy at the Constitutional Court arose in May 2014 with the departure of Justice Thembile Skweyiya, and another for the position of deputy judge president of the Supreme Court of Appeal (SCA).
In a departure from the norm, and in a move that will endear the JSC to some of its harshest critics – gender activists – all the candidates are women.
In terms of the Constitution, four names must be submitted by the JSC to President Jacob Zuma, and he must choose one for appointment.
This is despite comments by Chief Justice Mogoeng Mogoeng, at a farewell function for Skweyiya in 2014, when he said the JSC wanted to be “spoilt for choice” at this round of interviews.
As one lawyer observed: eight candidates would have fulfilled Mogoeng’s longing to be “spoilt for choice”, but the bare minimum of four candidates is the opposite.
And so, despite the fact that the candidates in this round are women, the JSC will not escape
the transformation question: the small pool of candidates brings into focus issues regarding barriers faced by women in the legal profession.
Judge Dhaya Pillay
Judge Dhaya Pillay is seen by observers as something of a wildcard nominee. She is the only candidate who has not previously acted at the SCA or the Constitutional Court, but is a favourite among observers who view her judgments as particularly independent-minded and progressive.
Her supporters in the fraternity say her lack of experience in an acting capacity is symptomatic of a broader problem associated with career advancement for women. Her interview could be seen as a litmus test for the JSC for how it treats judges who might be staunch constitutionalists, but who have not had the opportunity to act.
She was nominated for a position in the Constitutional Court by the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand, Sonke Gender Justice and former Constitutional Court Judge Zak Yacoob.
Currently a high court judge in Pietermaritzburg, Pillay has more than 15 years’ experience as a judge in the high court and the Labour Court.
She was instrumental in drafting key pieces of labour law, as well as clauses of the Constitution related to the Public Service Commission and the Electoral Commission.
“Judge Pillay has demonstrated a commitment to human rights, transformative democracy and upholding the law,” according to Cals and Sonke, who submitted a joint motivation for her nomination.
One of her seminal judgments, Standard Bank vs the Commission for Conciliation, Mediation and Arbitration, is seen by legal observers as indicative of her commitment to the rights of workers and, specifically, the physically disabled.
Pillay found in favour of an employee who was dismissed from Standard Bank after a car accident rendered her incapacitated.
She wrote: “Dignity, for employees with disabilities, is about being independent socially and, most of all, economically, about managing their normal day-to-day activities with minimum hardship for themselves and others and about contributing to and participating in society. It is about self-respect and self-worth.”
Pillay has no outstanding reserved judgments. These emerged as a pet peeve of Mogoeng in previous rounds of interviews, so this could count in her favour.
She has not acted in the Consti–tutional Court, but Cals and Sonke have asked the JSC not to allow this to count against her.
The organisations say this fact is part of a broader problem: the opportunity to act at that court “is dependent upon the limited opportunities that arise for appointments as acting judge (for women)”.
She is also seen favourably by gender rights activists, thanks, in part, to another seminal judgment in which she dissented from the majority, who had reduced the sentence of a rape offender.
Pillay wrote that she would not have reduced the sentence to that degree. The Women’s Legal Centre has also supported Pillay’s nomination, noting that she “has also recognised the inextricable link between gender-based violence and gender equality”.
In an op-ed published in City Press, Pillay wrote: “The women’s movement for social change must target the elimination of poverty. Anything less will subvert the movement away from achieving our constitutional goals of equality, dignity and freedom.”
Judge Leona Theron
Acting Constitutional Court Justice Leona Theron also received the support of the Women’s Legal Centre, who raised her “keen appreciation for the impact of violence against women” in its submission to the JSC for her nomination.
Theron was appointed to the high court in KwaZulu-Natal, where she sat for 10 years before being appointed to act at the Supreme Court of Appeal in 2006. She was permanently appointed to that Bench in 2010.
Gender activists point to a key judgment on rape written by Theron, State vs Nkomo. Here, the majority of the court had reduced the life sentence of a man who had raped his victim five times, because the lower court had failed to take into account his personal circumstances.
Theron, in a dissenting judgment, wrote: “If life imprisonment is not appropriate in a rape as brutal as this, then when would it be appropriate? I am of the view that this is precisely the kind of matter the legislature had in mind for the imposition of the minimum sentence of life imprisonment.”
She was also nominated by Cals and Sonke, who, in their submission to the JSC, said it was “clear that workers’ rights are of keen concern to her”. Theron spent time working at the International Labour Organisation in Washington, DC.
Theron was also nominated by the International Association of Women Judges, who said the Constitutional Court would benefit from her “acute consciousness of the constitutional dynamics and imperatives of the South African judiciary”.
And she received a nod from Advocates for Transformation, who told the JSC in their motivation that she “came from humble beginnings” – her first job was as a part-time cashier at OK Bazaars – and is now one of the longest-serving female judges in the country.
Theron lists as one of her significant judgments a “ground-breaking” decision concerning customary marriages.
She held that all monogamous customary marriages must be in community of property, that men would no longer automatically be in charge of all property because they were not automatically the head of the household.
But the more traditional, rigid parts of the legal fraternity have privately taken issue with an allegation that she had canvassed for a candidate in the 2010 round of interviews and this could make her seem careerist, something that is frowned upon by the old guard.
Judge Zukisa Tshiqi
Appointed as a judge of the SCA in 2009, Judge Zukisa Tshiqi received a nomination from the law firm Molefe-Dlepu Attorneys, an all-female company she cofounded.
She also received support from SCA Judge Lebostang Bosielo, who said her “diligence, dedication and commitment to her work is second to none”.
Tshiqi, who comes from the Eastern Cape, acted at the Constitutional Court from November 2014 to May 2015.
As one of her more significant judgments, Tshiqi lists City Power vs Grinpal Energy Management Systems. The unanimous judgment by the Constitutional Court held that municipalities are subject to the Labour Relations Act. In this case, workers hired by a subcontractor were left in limbo when the subcontractor was let go by the municipality. The court ruled that the municipality, as primary employer, was responsible for the workers.
Tshiqi held that, even though City Power was technically a private company, it was established for the purposes of serving the public.
As such, City Power was bound by the Labour Relations Act, which always prevails over other legislation unless there are exceptional circumstances.
At the SCA, she wrote two judgments overturning the sentencing of a 14-year-old boy convicted for indecent assault and rape.
In the latter instance, the complainant was deemed to be mentally disabled and did not take the oath because the court believed she could not fully understand the difference between truth and untruth.
Tshiqi held that the complainant’s evidence alone did not amount to proof that the rape occurred.
While acting at the high court in Johannesburg, Tshiqi worked with young women in a mentorship programme, often letting them shadow her at court.
She also has experience as a lecturer in labour law and acted as a judge of the Labour Appeal Court. And Tshiqi has no outstanding reserved judgments.
Judge Nonkosi Mhlantla
Judge Nonkosi Mhlantla is the most senior of the four Constitutional Court candidates and was appointed as a judge of the high court in 2002.
She was nominated for a position in the Constitutional Court in this round of interviews by the National Association of Democratic Lawyers, of which she is a founding member.
Mhlantla was appointed as a judge of the SCA in 2008, where she is still employed, and acted in the Constitutional Court from January to December 2013. She comes from Port Elizabeth and was previously a judge of the high court in that city.
Mhlantla previously ruled in favour of the Gauteng head of department at the department of education, in a case in which a grade?1 pupil was refused entry to Rivonia Primary School by the school’s governing body. Mhlantla said the Schools Act gave the department “ultimate control” over admission decisions.
Mhlantla has also been involved in training judicial officers.
Observers describe Mhlantla as a safe choice on the constitutional interpretation front, having penned a majority judgment in a case heard in the Constitutional Court on the validity of municipal rates that residents refused to pay.
She is known for her propensity towards bluntness when admonishing high court judges during her time at the SCA. In one instance, she said of a judge, who had seemingly inserted himself into proceedings in a civil case, that this was “unbecoming of a judicial officer”. In another instance, she called a ruling by two judges “disturbing”.
Judge Mandisa Maya
Judge Mandisa Maya would appear to be a good candidate for nomination to the Constitutional Court, having been previously proposed for that court. But in this round of interviews, she is the only candidate being interviewed for the position of deputy president of the SCA. She was nominated by President Jacob Zuma.
Maya received an endorsement from the Johannesburg Bar Council when she was interviewed for a position at the Constitutional Court in 2012. At the time, the Bar said: “The candidate’s judgments span a range of legal issues, many of which have been complex and many of which involve the impact of the Constitution.”
Maya was appointed as a judge of the high court in Mthatha in 2000, and as a judge of the SCA in 2006.
In this round of interviews, Maya was not nominated by gender activists, but one of her better-known judgments involved a decision to hold the state liable where a police officer had raped a young girl.
On appeal, Maya dissented from the majority, who found that the state was not liable. It was a judgment the JSC of 2012 appeared to approve of.
She also wrote a majority judgment that defended Rastafarian correctional services employees who were dismissed for refusing to cut their dreadlocks.
“A policy is not justified if it restricts a practice of religious belief – and, by necessary extension, a cultural belief – that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense,” she wrote.