Then there were seven . . .

2009-09-26 15:11

THE ANC did not support Cape Judge President John Hlophe’s ­candidature for the Constitutional Court.

Insider accounts of the dramatic proceedings of the Judicial Service Commission hearings this week ­revealed that Hlophe was not on ­Justice Minister Jeff Radebe’s final list nor on the other three lists from which the final list of judges to be presented to President Jacob Zuma was drawn up.

Radebe told Hlophe’s backers on the commission that it was ­sufficient that the judge had escaped impeachment when he was let off the hook after an inquiry into his efforts to influence Constitutional Court judge Bess Nkabinde and ­acting Constitutional Court judge Chris Jafta.

The minister refused to entertain pleas?– mainly from advocate ­Ngoako Ramatlhodi and MP Cecil Burgess?– to ­include Hlophe on the shortlist, ­telling his party members that the JSC had cleared Hlophe’s name “and that is enough”.

The ANC caucus in the JSC, big enough to force his inclusion on the shortlist, was divided on the matter of Hlophe.
City Press was told. “And the anti-Hlophe faction won.”

Three rounds of voting behind closed doors produced the JSC’s shortlist of seven names.

Four lists of seven names were ­tabled after the JSC’s public interviews of nominees ended in Soweto this week.
Chief Justice Pius Langa’s list contained the names of judges ­Johan Froneman, Raymond Zondo, Mogoeng Mogoeng, Mandisa Maya, Sisi Khampepe, Leona Theron and Chris Jafta.

With one exception, the same names appeared on the list tabled by Radebe. He preferred Kathleen Satchwell to Maya.
Independent Democrats representative Patricia de Lille’s list added the names of judges Denis Davis and Willie Seriti to the pool.

The last names, those of judge Dunstan Mlambo and advocate ­Jeremy Gauntlett, were on the list of Democratic Alliance representative Hendrik Schmidt.

Four judges – Froneman, Khampepe, Theron and Jafta?– appeared on all the lists.

The JSC considered them automatically elected and shortlisted.

The rest were chosen in three rounds of voting.

The first round dealt with the two female candidates, Maya versus Satchwell. Maya prevailed and her name was put on the shortlist.

Two more rounds of voting elected the remaining two names on the shortlist.

During the first round, 10 JSC members voted for Mogoeng, eight for Zondo, six for Seriti and six for Davis. Mlambo and Gauntlett, with five votes each, were eliminated in this round.

During the second round, for which JSC members were given two votes each, Mogoeng won 13 and Zondo 12 votes. Seriti with nine and Davis with eight votes were eliminated.

The final shortlist was the same as the list tabled by Langa, one of the four Constitutional Court judges who retire in November?– suggesting that he has left his imprimatur on the court.

Hlophe’s dream of hanging his hat in the chambers on Constitution Hill died an ignominious death.

There are suggestions that he may lose his prestigious position in the Cape High Court. Members of the ANC say he is to be deployed at the Judicial Education Institute.

Zuma’s spokesperson Vusi Mona said the president will attend to the shortlist when he returns from the United States this week.

THIS IS WHAT THEY HAD OVER THE OTHER CANDIDATES

WHAT were the secrets of the seven judges who got onto the short list for appointment to the Constitutional Court?
 
Johan Froneman: This Eastern Cape judge has a proven judicial track record, no political baggage, and was chosen because the list needed a token white man, said a JSC member. It was loosely agreed beforehand, he explained, that the short list would contain the names of one white, one coloured, two women and four black candidates. Froneman was the only white judge who had the support of all parties. He was regarded as a champion of the poor, issuing judgments against the provincial government related to the payment of grants in the country’s poorest province.

Chris Jafta: He was selected because it was believed “he showed his principles” by revealing that Cape Judge President John Hlophe tried to discuss the Jacob ­Zuma documents-seizure matter with him.

Sisi Khampepe: Not the best candidate “in terms of jurisprudence” but selected because of her wide experience and her ability to apply her mind. Khampepe was relatively unknown until former president Thabo Mbeki appointed her to head the commission of inquiry into the Directorate of Special Operations, the now-defunct Scorpions. It was a hot potato, but her principled defence of the unit’s prosecuting independence earned her kudos.

Mandisa Maya: Some JSC members had “small problems”, but most regarded her as a strong, principled judge. Maya sat as part of the full appeal court bench that overturned Judge Chris Nicholson’s judgment in the case of the National Prosecuting ­Authority against Zuma. Her judgments in rape trials made her one of the strongest defenders of women’s rights on the bench.

Mogoeng Mogoeng: JSC members were entertained by his performance during his interview which, some said, showed his talents as a preacher, not a judge. Critics regarded Mogoeng, North West judge president, as less constitutionally literate than other nominees, but said he was on the short list as a “compromise candidate”. Mogoeng endeared himself to the JSC with suggestions for improving the judiciary, including reviving traditional courts to provide greater access, helping magistrates to learn about writing judgments and not limiting small-claim courts to night sittings.

Leona Theron: Regarded by some members as too young for the job, her track record earned her a place on the list. Theron was called an activist judge who had a track record in ensuring better judgments in rape and other sexual violence trials. Some JSC members said Zuma would not make her a Constitutional Court judge because a ­promotion to the position of judge president of KwaZulu-Natal awaited her.

Raymond Zondo: This judge has ­engaged with the Constitution, but mainly in the context of labour law. He had lectured extensively on labour law and the ­jurisprudence of the Constitutional Court. Zondo’s critics in the JSC believed that he lacked experience in other areas of the law. Also, he was held responsible for endemic logistical and administrative problems at the Labour Court.


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