It is rare for a judge to be so blunt outside a courtroom. But acting Supreme Court of Appeal (SCA) president Mandisa Maya did not mince her words when she told the Judicial Service Commission (JSC) that there were judges at her court who were not pulling their weight.
With a candour rarely seen in the public part of the JSC process, Maya said: “If we don’t speak frankly about the challenges in the court, then they won’t be solved.”
The first few days of JSC interviews this week were expected to be all about the Constitutional Court — the JSC was, after all, interviewing Justice Raymond Zondo for the position of deputy chief justice, as well as five candidates vying for a single position at the highest court in the land.
Instead, the interviews were dominated by the SCA, as tensions between judges there were laid bare.
Maya startled the commission when she said that, in her many years at the appeal court, it was only in February this year — after a “cathartic” diversity seminar — that black and white justices sat next to each other in the judges’ tearoom. Her account was confirmed by Constitutional Court candidates.
Tensions seem to be about writing judgments and the caseload. Some judges have apparently complained that the brunt of the court’s workload fell on the shoulders of a small minority of senior judges. Others said that when assigned to be judgment scribes their colleagues did not deal with their drafts in a collegial manner.
Constitutional Court candidate Leona Theron described her experience as an acting judge in 2006. She had been assigned to write a judgment on a difficult area of law that she had not had much experience in.
“Three judges came back with comments; one judge didn’t. I circulated my judgment on a Thursday. On Monday morning I had a dissenting judgment from the other judge …And, in addition to that, two of the colleagues who had made input on my judgment had signed the other judgment … without coming back to me and saying: ‘We have reconsidered and we don’t agree with you.’ Coming as a junior judge, my first feeling was one of inadequacy.”
But later, during an interview with Justice Malcolm Wallis, Maya said there “are colleagues at the Supreme Court of Appeal who do not produce judgments of the quality that is expected — that puts pressure on others who have to work on those judgments”.
Wallis, who had up to that point been more diplomatic, agreed: “You get judgments sometimes that you look at and just shake your head, and just start again.”
The extent of the unhappiness and the level of the tensions at the appeal court appeared to take the JSC by surprise — particularly the chief justice, who repeatedly asked why nothing had been done up to this point.
In some ways, the surprise was warranted. In previous interviews for the appeal court, candidates who had acted there praised the collegiality at the SCA — including those interviewed this week for the ConCourt.
In Theron’s 2010 interview before being appointed to the SCA Bench, she said, in response to a question from then appeal court president Lex Mpati: “I have enjoyed the work at the SCA, president.” Mpati then asked: “Well, you’ve enjoyed the work. I’m asking you whether you enjoyed working with colleagues.” Theron answered: “Yes. I enjoyed working with colleagues. I have no difficulty with any of the colleagues.”
Justice Stevan Majiedt in 2010: “I thoroughly enjoyed it, somewhat surprisingly to myself. I thought I wouldn’t like an appellate court where you only deal with records but I did enjoy it so much that, when asked by senior colleagues to do so, I made myself available.”
Justice Boissie Mbha said in 2014: “I found the intellectual depth very exciting. The approach is very … it’s highly scholarly. I found it very stimulating and very exciting.” Wallis was not specifically asked whether he had enjoyed his acting stint in his appeal court interview.
These comments made by the three are similar to those uttered by most candidates over the years. Perhaps diplomatic answers are to be expected in what is in effect a job interview. But one can see why the JSC was taken by surprise.
But in another respect, the revelations are a long time coming. Unlike the Constitutional Court, the appeal court has struggled under the burden of its history.
An apartheid institution, it did not have the moral legitimacy of the new Constitutional Court. And the transition to democracy meant that what was once the appellate division — the highest court of appeal — had to move over for the Constitutional Court, and became its poor relation.
At first, the appeal court was the highest court in “nonconstitutional matters”. But in a constitutional democracy, the line between a constitutional and a nonconstitutional matter has proved elusive.
Lawyers used to joke that nonconstitutional matters were those the Constitutional Court didn’t feel like taking on. It was only a matter of time before the Constitution was amended so that the Constitutional Court became the highest appeal court in all matters.
As it struggled to find its identity in the democratic era, the appeal court clung to its traditions. The rules of seniority remained strictly enforced and counsel — treated more gently in the Constitutional Court — were grilled with old-school rigour.
Add to this the way the JSC has made appointments to the appeal court over the years and tension was inevitable.
Long-term JSC watchers will say that many times, when Mpati indicated the preferences of the appeal court’s senior justices, the JSC would unaccountably act contrary to their views.
Examples are the interviews of justices Willie Seriti in 2010 and Ronnie Pillay in 2012. The 2013 interviews, in which Justice Nigel Willis was chosen over Eastern Cape Judge Clive Plasket, is another.
Resolving this tension is made more complex by the elephants in the room: transformation, racism and sexism. The conflict about writing judgments and caseloads has seemingly intersected uncomfortably with racial divisions.
Majiedt related that, at the diversity workshop, he had said that “we must work hard to show those who think we don’t belong there that we do”. This despite it being “patronising” when a colleague “pats you on the head like a good little blackie, saying you have written a good judgment”.
This implied that it was black judges who were made to feel they did not belong there by white judges.
Speaking to the Mail & Guardian, Maya said she did not discount the possibility of racism and sexism in the court but it was not that clear-cut — the senior judges were not all white and the junior judges were not all black. “The real problem is superiority complexes and disrespect.”
Underdog Kollapen gets nod
On Tuesday, the Judicial Service Commission said it had recommended Supreme Court of Appeal justices Leona Theron, Stevan Majiedt and Malcolm Wallis, and Jody Kollapen, a high court judge in Pretoria, for the Constitutional Court. President Jacob Zuma will appoint one of them.
The commission interviewed five candidates and its job was to cull one. Initially, Kollapen was thought to be on the back foot as the only high court judge — and the only candidate not to have acted at the Constitutional Court.
But the former chairperson of the South African Human Rights Commission had a good interview, demonstrating a strong know-ledge of constitutional jurisprudence and a long-held commitment to constitutional values.
He recounted an exchange he had while at the human rights commission. The man said: “Mr Kollapen, you are very passionate about human rights, but that is because it works for you. When it works for me, I will be as passionate about it as you are.”
Kollapen said: “That was a sobering comment, but not an unfair observation.”
Appeal court Justice Boissie Mbha — who was culled by the JSC — had a difficult interview. He was grilled at length about whether judges should speak in public, first categorically saying no and then having to backpedal when he was scrutinised further. He also apparently failed to impress commissioner Julius Malema with his answer on the difference between the government and the state, saying: “If you talk about state you talk of government, the country, the people, for that matter. But when you talk of government, you are talking of governance; the two are different.”