The dark world of judicial politics

2017-10-08 05:47
Former judge president of the Northern Cape Frans Kgomo is alleged to have attempted to influence the Judicial Service Commission’s appointments to the Northern Cape High Court. Picture: Charne Kemp

Former judge president of the Northern Cape Frans Kgomo is alleged to have attempted to influence the Judicial Service Commission’s appointments to the Northern Cape High Court. Picture: Charne Kemp

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As the first day of the Judicial Service Commission’s (JSC’s) interviews of judges crept into the evening, Economic Freedom Fighters leader Julius Malema’s face darkened with the encroaching night.

Describing what he thought was an example of “nepotism”, “factionalism” and attempts to make judicial appointments outside of the “due process” of the commission’s work, he thundered: “We are not some village under the tree!”

What Malema was referring to was the startling revelations during Northern Cape Judge Bulelwa Pakati’s interview for the vacant deputy judge president position in that division.

The allegations related to the, until then, unrevealed alleged hand of former Northern Cape judge president Frans Kgomo, who retired earlier this year, in appointments to that court.

Kgomo, who had sat on the commission until his retirement, had written to the JSC regarding Pakati’s candidature.

In that letter he went into detail about Pakati’s shortcomings, describing her as someone who “can be very moody and aloof” and who has been “shown to make elementary but far-reaching mistakes” in her judgments.

Pakati said she was “shocked” by Kgomo’s letter since the allegations were untrue.

She said she had always considered herself to have a good relationship with her former boss – and that he was her “mentor”.

In initially trying to respond to the allegations Pakati broke down, needing a few minutes to gather herself.

NEW JUDGES

Pakati was up against her Northern Cape colleague, Judge Violet Phatshoane, who had been unsuccessfully interviewed for the deputy judge president position in April.

Then, Kgomo had similarly written a letter to the commission dealing with Judge Cecile Williams’s candidature.

City Press understands that Kgomo’s apparently critical letter led to Williams withdrawing her application on the eve of her interview.

Later, as commissioners Sifiso Msomi and Malema interrogated Pakati on the possible motivation behind Kgomo’s letter, she revealed the severe divisions within the Northern Cape High Court — which, she said, appeared to be of Kgomo’s making.

Pakati said she had not applied for the deputy judge president position earlier this year because Kgomo had indicated he “had hunted” Phatshoane.

“I did not apply in April because I knew that JP [Kgomo] said this is the person he wanted, so I knew it was useless,” said Pakati.

Responding to Msomi’s question about whether there was a perception in the Northern Cape judiciary that Phatshoane was “the anointed one”, Pakati said she believed this was the case.

Kgomo had, according to Pakati, called her in April after Phatshoane’s unsuccessful interview for the judge president and deputy judge president positions.

Pakati told the commission that Kgomo told her at the time that “Phatshoane shouldn’t worry, because even if she goes [out], her position will be secured [later]”.

Kgomo’s intervention was not addressed by the commission during Phatshoane’s interview.

In the spotlight

The controversy did, however, cast a spotlight on the apparently seedy back-door manoeuvring in the world of judicial politics.

At times this week, certain candidates appeared shoo-ins for positions despite not undergoing a rigorous examination of their capabilities.

Their individual judicial philosophy and how these kept time with the transformative vision of the Constitution was almost completely ignored during interviews.

So was any discussion around jurisprudence, aside from Commissioner Msomi asking candidates to pick out their favourite Constitutional Court judgment from recent years and discuss how these proved precedent-setting.

Eastern Cape Acting Judge President Zamani Nhlangulela, for example, appeared to be leading attorney Mbulelo Jolwana with a series of soft questions during his interviews.

Nhlangulela had not asked the other candidates similar questions, which allowed Jolwana to wax lyrical on a range of subjects, including case flow management, which is a favourite subject of Chief Justice Mogoeng Mogoeng.

While an apparently adept lawyer, Jolwana has had only three months acting experience in the high court.

Most of his legal work has centred on conveyancing and he has almost no experience in litigating commercial law or constitutional law cases, among other areas.

Nevertheless, Jolwana was successfully interviewed for a position at the Mthatha seat of the Eastern Cape High Court.

He was asked by Nhlangulela to tell the commission about his acting stints there, which included filling in for out-of-town judges on Friday afternoons, so that they could leave early to go home.

Jolwana told the commission that he had also carried Nhlangulela’s practice while the latter was acting in the high court – a potential conflict of interest which was declared in a leading question, rather than an admission – and described his intervention as an altruism which ensured people in Nhlangulela’s law firm retained their jobs.

Some of the questions by Nhlangulela, who is usually the deputy judge president at the Mthatha High Court, suggested that he himself was not very good at administration or keeping his judges in check.

It also reflected an obvious bias towards particular candidates.

None of these appeared to concern the other commissioners. But it should have.

If nepotism and favouritism taint the selection process for judges, it will weaken what, at the moment, is the strongest of the three arms of government at a precarious time for South Africa’s democracy and its institutions.

The judges who were appointed this week:

JUDGE PRESIDENT FOR THE EASTERN CAPE DIVISION OF THE HIGH COURT

Judge Selby Mbenenge

EASTERN CAPE DIVISION OF THE HIGH COURT

Ndumiso Jaji; Mbulelo Jolwana

FREE STATE DIVISION OF THE HIGH COURT

Philip Loubser SC

GAUTENG DIVISION OF THE HIGH COURT

Colleen Collis; Advocate Norman Davis SC; Maletsatsi Mahalelo; Advocate Nana Makhubele SC; Cassim Sardiwalla; Advocate David Unterhalter SC; Advocate Cornelius van der Westhuizen SC

WESTERN CAPE DIVISION OF THE HIGH COURT

Taswell Papier; Mushtak Parker; Advocate Mark Sher SC; Derek Wille

TALK TO US

What do you feel about the current selection process? Are you concerned by the accusations of favouritism and nepotism?

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Read more on:    jsc  |  eff  |  julius malema  |  politics

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