Advocate Dali Mpofu SC (Oupa Nkosi)
Advocates for Transformation (AFT) has chosen Khameshni Pillay SC as its new representative to the Judicial Service Commission, replacing advocate Dali Mpofu SC whose term in that capacity ended under a cloud following his interviews with candidates for the post of chief justice.
In a report released on Friday, a six-person sub-committee of AFT said Pillay would represent the organisation when the commission interviews candidates to fill vacancies at the constitutional court next month.
The sub-committee was established recently with a brief to review the performance of AFT representatives to the JSC since 2017 and to develop a strategic perspective on the transformative role of the commission.
The committee was also tasked to “provide guidelines to the representatives of AFT who are nominated as members of the JSC in relation to the transformative role of members of AFT and the interview questions which may be posed to candidates who make themselves available for judicial office”.
Lastly, it had to put forth a representative to the JSC in time for the April interviews.
The report notes that the JSC should function according to its legal mandate set out in the Constitution and “should not pursue unauthorised goals”, before describing its role as “a central cog in the machinery of the administration of justice”.
Likewise, it added, each member of the collective “is required to ensure that the JSC acts within the law and is not used as a platform for improper purposes”.
There was considerable criticism of the manner in which the JSC conducted the interviews with the four shortlisted candidates for chief justice, before arriving at the recommendation that President Cyril Ramaphosa should appoint supreme court of appeal president Mandisa Maya to the post.
Ramaphosa agreed with those who believed that the commission had exceeded its mandate and last week named Deputy Chief Justice Raymond Zondo as the new head of the judiciary.
Mpofu in particular faced criticism for ambushing Gauteng Judge President Dunstan Mambo with questions about rumours against him of sexual harassment. Crucially, the allegations were not substantiated and Mlambo was not warned that these would be raised. He dismissed them as “gossip” and the line of questioning, partly driven by Economic Freedom Fighters leader Julius Malema, was later expunged from the record.
The sub-committee set a guideline of imperatives for its representatives to the JSC to follow. These include to treat all candidates fairly and with courtesy, “to ensure that each candidate is afforded a fair warning in advance of any adverse information” and to refrain from harassing them.
They should also refrain from conduct which could bring the AFT into disrepute.
The report notes that Mpofu’s conduct was the subject of criticism by some within the body. It quoted one unnamed member of AFT as saying on the subject of his questioning of Mlambo: “What concerned me or some of us is that these questions were asked on behalf of AFT by a long-serving member of the bar.”
“He wanted those allegations to be dealt with by JSC [the] same day without prior warning to JP [Mlambo]. The probable inference to be drawn is that the questions were aimed to insult and embarrass the judge president.”
The sub-committee said it raised the complaint not to pass judgment on it, but simply to make the point that there were complaints from within the ranks of the organisation regarding the interviews to assess the four shortlisted candidates for chief justice.
It also noted that there were concerns that Maya’s interview carried a “sexist flavour”. It does not name Mpofu directly but he was widely criticised for joking that he spent a night with her, before adding, after a dramatic pause, that it was spent studying for a law exam.
The sub-committee raised some concern with regard to the manner in which the mother body handled the criticism of Mpofu.
“On the one hand, there has been a sustained and ad hominem attack against Mpofu SC from outside quarters,” it said. “AFT has not defended Mpofu SC in his role as a member of AFT and its representative at the JSC. AFT has also not sought to clarify where it differs with him if at all.
“In this regard AFT has failed to provide sorely needed leadership to its members and the profession generally.” It said the organisation should have interacted with Mpofu following the February interviews.
“This does not appear to have happened. AFT National acted in an unprincipled manner. It did not confront the issue head-on. This caused considerable reputational damage to AFT, coming as it did on the rancid underperformance of AFT in the GCB [General Council of the Bar].”
The report adds in further self-critical vein that the executive leadership of the AFT needed to engage Mpofu prior to the interviews to ensure that his position aligned with its views.
“It is, in truth, AFT’S failure to show leadership which is at the centre of this review,” it said, adding that the organisation lacked direction and responded in a hurried and ad hoc basis to unfolding events.
AFT’s representation at the JSC is indirect.
It devolves from a resolution of the General Council of the Bar, which allows AFT to nominate one advocate who will serve alongside the GCB nominee to the JSC. The GCB represents the advocates’ profession at the commission.
The sub-committee included Tembeka Ngcukaitobi SC, Joe Nxusani SC, Phumlani Ngobese SC and Kgomotso Nhlapo-Merabe.