The legal fraternity is not a unified community and rarely is there across-the-board support for a candidate seeking to be a judge. Yet the candidate left off the shortlist for appointment to the Constitutional Court — Gauteng High Court judge Fayeeza Kathree-Setiloane — was considered one of the favourites by a number of lawyers the Mail & Guardian spoke to.
With just six candidates interviewed on Wednesday, and a shortlist of five that had to go to the president, the real job of the Judicial Service Commission (JSC) this week was to decide who to take off the list rather than who to include.
The JSC did not explain why Kathree-Setiloane was left off the list but she had a bumpier interview than the rest of the candidates when Chief Justice Mogoeng Mogoeng raised “two complaints”, saying the JSC needed to ascertain whether she would work well with colleagues.
He said the first came from the Constitutional Court’s manager, who, he reported, had been flustered when Kathree-Setiloane had arrived at the court, before she had officially been appointed an acting judge, and “occupied chambers, and demanded records and … they said you demanded a parking bay”.
“I was disappointed because my attitude was, whether you are a gardener or a clerk, you never report for duty until you are appointed,” said Mogoeng.
But Kathree-Setiloane said this was not what happened. She said she went to the court on the advice of a colleague who had previously acted there. She was anxious because she had been told that she was appointed to act, but had not received court records, normally given ahead of time. She had approached the court manager “very humbly”, just “trying to establish what the situation was”.
“I never ever went there and demanded a parking [bay], I never demanded a chamber”.
The other complaint related to accusations of mistreatment made by her former researchers, called clerks, in a memorandum submitted to two justices on the court’s clerk liaison committee. Mogoeng did not give all the details of the accusations, but he named the clerk in question and revealed that it was Supreme Court of Appeal president Mandisa Maya’s daughter.
This was why on Monday, the day the interviews were due to start the interviews had to be postponed until Wednesday because of a potential conflict of interest on Maya’s part.
Kathree-Setiloane said the memorandum was mostly untrue or greatly exaggerated. “I was so hurt,” she said.
She added that her second clerk, who was initially thought to be part of the memo, had distanced herself from it and had said as much to the commission in a letter of supportthat “a lot of it was lies, and mostly untrue and an absolute exaggeration; and petty and trivial”.
She and the other clerk worked well together until she left, she said. She also denied that she had accused any judge of an agenda to stop her from being appointed to the Constitutional Court.
Kathree-Setiloane said she had been assured by Deputy Chief Justice Raymond Zondo that the matter with the clerks had been resolved and was surprised that it was raised at the JSC.
Maya told the M&G it would be “inappropriate to comment — at this stage”. Later in the interview, Justice Minister Michael Masutha told Kathree-Setiloane that she came across as “overbearing”. She replied: “I am not overbearing. I am an assertive person, and I will not apologise for it”.