There was a moment during the Judicial Service Commission interviews for prospective judges in Cape Town during the first week in October when one could feel the collective eyebrows of the commissioners arch.
The University of KwaZulu-Natal associate law professor, Karthy Govender, was discussing the intricacies of a criminal matter he had adjudicated during his only acting stint on the KwaZulu-Natal Bench when, it emerged, he had subsequently written a judgment that ran to almost 200 pages.
In terms of writing judgments, that sort of tome is usually the preserve of the Constitutional Court — and usually when there is a minority judgment or two accompanying the highest court’s majority decision. The notoriously curt Supreme Court of Appeal’s judgments, as a rule of thumb, run to no more than 30 or 40 pages.
As commissioners, in the main practising lawyers and judges, drew Govender’s attention to the huge workload in provincial high courts and the need for speed, and to be succinct, it became apparent that many did not consider him suitable for the position in the high court in KwaZulu-Natal that he was being interviewed for.
“Here is an intellectual blowhard who doesn’t get the rough-and-tumble nature of the criminal courts. He won’t be able to handle the speed with which justice in the criminal courts needs to be dispensed with,” one could hear them thinking.
Eventually none of the candidates, which included magistrate Sharon Marks and advocates Pieter Bezuidenhout and Glenn Thatcher, were nominated for appointment to the post.
But the transformation pressures the commission must handle could be hampered by what Chris Oxtoby of the University of Cape Town’s Democratic Governance and Rights Unit describes as the “institutional conservatism of the legal fraternity” and the “suspicion” with which lawyers and judges view candidates who have not come up through a traditional legal path, including litigating in courts.
Some of South Africa’s stellar jurists have come from academia. These include the Constitutional Court judges Yvonne Mokgoro and Kate O’Regan, the only two women to serve on that Bench in its first 13 years. The latter, at the age of 37, was the youngest judge to be appointed to that court and wrote important, and sometimes controversial, judgments including Mazibuko vs City of Johannesburg on the right to water; and in her dissent from the majority in the Minister of Home Affairs vs Fourie, in which she held that the court should have provided direct relief for the regulation of same-sex marriages, rather than refer the matter to Parliament.
Govender, a South African Human Rights Commissioner, has extensive experience in arbitration and adjudicating bargaining council matters, so was no novice in adjudication.
“The chief justice [Mogoeng Mogoeng] has stated that transformation imperatives require judges from diverse backgrounds and with diverse perspectives. It’s not just a numbers game,” said Oxtoby.
“It’s clear that some candidates follow very diverse career paths and one would hope that this wouldn’t count against them. Adjudication [of potential judges] is value laden, but it can only be healthy to have people from such varied backgrounds in contention.”
Oxtoby said, although the commission appeared to be dealing rigorously with its constitutional obligation to transform the judiciary so as to more broadly represent the race and gender demographics of the country, there were still some concerns about the processes that potential judges who were being groomed for a place on Bench had to experience.
“Serving as a judge in an acting capacity is a non-negotiable before one can be nominated, but that process itself is very vague. It does depend on the availability of candidates, but there is also no specific, uniform criteria being used by the country’s various judges president when they invite acting judges.
This vagueness means judges president become gatekeepers to the judiciary. There may be candidates out there who have not been invited to act for personal, rather than professional and legal reasons.”
The commission did broaden its scope when nominating candidates with different perspectives and backgrounds for appointment. Willem van der Linde SC, a Johannesburg silk, who admitted to being a member of the Ruiterwag, the youth wing of the Broederbond, which sought to secretly advance Afrikaner economic and political interests during apartheid, was appointed to the high court in Gauteng.
In stark contrast was attorney Lebogang Modiba, who is experienced in gender-rights work and public interest law, who was also appointed. Modiba grew up in a draughty Alexandra home overrun with rats and escaped the winter cold by studying in the local library.
The commission’s lines of questioning appear to have improved tremendously since April last year when a new batch of MPs and members of the National Council of Provinces were inducted following the national elections.
The commission is made up of politicians and members from the practising legal fraternity, the academic sector, lawyers appointed by the president, and sitting judges.
ANC MP Thoko Didiza stood out with her penetrating questions about gender representation in the judiciary, but also in broader society, and about property rights, land ownership and security of tenure.
With the perception among the ruling elite that judges often trespass into the terrain of Cabinet and the national legislature, questions about candidates’ understanding of the separation of powers is now par for the course.
But the framing of these questions often reflected more about the interviewer than the interviewee. Justice Minister Michael Masutha sought to understand how executive-mindedly candidates would act if appointed with his questions that suggestively compared apartheid-era judgments to how judges operate in our democracy. This left, open-ended, the notion that judges may indeed, as during apartheid, be becoming a law unto themselves.
In contrast, Deputy Chief Justice Dikgang Moseneke sought to tease out the intellectualism and legal philosophy of each candidate in relation to their understanding of the separation of powers doctrine with questions like: “Can a judge make the law, and, if so, when?”
Moseneke chaired the sitting for the first three days because Mogoeng was abroad. The tensions between the judiciary and the other two arms of government always provide a strong undercurrent to the commission’s sittings. But these are perhaps not as fractious as in previous years when Cabinet members such as Ngoako Ramatlhodi and Fatima Chohan were vociferously against judges who had ruled against the government on matters relating to socioeconomic rights.
Political and personal considerations are part of the commission’s DNA when it sits. Most pressing for the commission between its sittings, however, is for the development of uniform criteria to invite potential judges for acting stints and to work out how to allow legal academics who may be suited for the country’s superior courts into the pool of prospective judges without getting up the noses of practising lawyers.