/ 2 April 2019

Supreme Court of Appeal still facing collegiality problems

Chief Justice Mogoeng Mogoeng said during one interview that he had invited colleagues to come forward on this issue and he had heard some disturbing accounts.
Out of order: Chief justice Mogoeng Mogoeng

With the current batch of retirements at the Supreme Court of Appeal, the appeal court was losing 93 years of judicial experience, KwaZulu-Natal High Court judge Trevor Gorven said on Tuesday.

Gorven is one of nine candidates being interviewed by the Judicial Service Commission (JSC) for five vacancies at the appeal court, which is still seemingly battling with a lack of collegiality amongst its judges.

During interviews in April 2017, Supreme Court of Appeal (SCA) president Mandisa Maya — in an uncharacteristically blunt manner for a judge at the JSC — told the commission that all was not well at the SCA, with allegations by acting and junior judges of mistreatment by seniors and with senior judges feeling that they shouldered too much of the work at the court.

READ MORE: Racial tension, lack of collegiality rife at Supreme Court of Appeal, JSC hears

During Tuesday’s JSC hearings, most of the candidates were asked about their experiences as acting judges and whether they had encountered “unacceptable behaviour” or attitudes from the senior colleagues. Chief Justice Mogoeng Mogoeng said during one interview that he had invited colleagues to come forward on this issue and he had heard some disturbing accounts.

Gauteng high court judge Caroline Nicholls recounted that after her first stint as an acting judge, she swore she would never go back, saying she was made to feel unwanted and unwelcome. Things had changed since Maya was permanently appointed president Nicholls said, adding that the president had sought to tackle the problem transparently and head on.

Nicholls said the kind of “toxic masculinity, mixed with racism” at the SCA was not something that would be eradicated overnight. It would take years, but “you are getting there,” she said to Maya. She said five new appointments could make a big difference in a court with a small number of members like the SCA.

Western Cape high court judge Dan Dlodlo said he had not experienced a lack of collegiality himself but he had heard reports from colleagues. KwaZulu-Natal high court judge Yvonne Mbatha said she felt very welcome, except for a “problem with one presider”. Western Cape judge Owen Rogers said he had been spoken to very rudely by one of the senior members, which “unsettled me for a few days” and that a female colleague had come to him very upset at the way she had been treated. However, he said he did not know that it was a pattern at the appeal court.

Gauteng judge Selewe Mothle said he had been assisted by judges from the province who “made my landing soft,” guiding him through the culture and conventions. The only thing that had been hard to adjust to was the practice of going into conference with the other judges immediately after a hearing.

On Tuesday, Maya also said that there was a “crisis” at the SCA, with only six women judges out of 22 permanent judges. Three women candidates were interviewed: Nicholls, Mbatha and Limpopo deputy judge president Fikile Mokgohloa. The other candidates were Rogers, Mothle, Dlodlo, Gauteng high court judge Pieter Meyer, Eastern Cape high court judge Clive Plasket and KwaZulu-Natal high court judge Trevor Gorven.