Six Concourt candidates - all you need to know

2019-03-31 08:19
Constitutional Court. (Lerato Sejake, News24)

Constitutional Court. (Lerato Sejake, News24)

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On Monday, six candidates will be interviewed by the Judicial Services Commission for two vacancies in the Constitutional Court. Other interviews are also taking place for vacancies in other courts across the country, but the focus will be on the justices who will take up seats in Braamfontein, where the highest court in the land sits. 

There are two vacancies left open by retired Deputy Judge President Dikgang Moseneke and retired Justice Bess Nkabinde.

There are eleven positions in total. Judges in the Constitutional Court serve a twelve year non-renewable term. 

Following this week’s interviews, the JSC must send a shortlist of five names to the President, who makes the ultimate decision on who to appoint. This means one of the six candidates will fall out of the running. If the JSC finds that there are not five suitable candidates to make up a shortlist, the process will start from scratch. 

Here are the candidates who will be interviewed this week.

Judge Annali Basson 

A fifth Dan Taekwondo expert, 59-year-old Basson is a High Court judge in Pretoria with an admirable academic background.

She graduated cum laude from the University of Pretoria in 1984 with an LLB and then obtained an LLD from Unisa.

She was a lecturer at Unisa for fifteen years as a Professor of mercantile law.

Simultaneously, she was admitted to the Pretoria Bar and practiced as an advocate. From 2007 until 2016 Basson served as a Labour Court judge. 

When Basson was interviewed in 2015 for her position at the Pretoria bench, Deputy Chief Justice Dikgang Moseneke lauded her "simply remarkable" academic performance. She has published numerous articles and books on labour, gender and human rights including The Employment of Domestic Workers: A Practical Guide to the Law.

During her career she has also been actively involved in training women, CCMA commissioners, human resource managers, trade union officials and shop stewards.

As a student during the 1980s, Basson was an advocate for human rights, as she explained during her interview. “When I had to choose a topic for my doctorate in the '80s, I chose to deal with second generation human rights, for example the right to strike. We hadn’t even recognised first generation human rights like, for example, the right to vote… This emphasises that I have been committed to human rights, even in the early '80s.”

Her most notable judgment was a game changer landmark ruling in a David vs Goliath mining case.

In the so-called "Xolobani" matter, involving a community from the Wild Coast, she ruled that a right to a mine could not be granted without full and informed consent from community members. This changed the rules in terms of government granting mining rights and gave considerably more power to local inhabitants. 

While Basson has a strong academic record, her colleagues suggest that a lack of Supreme Court of Appeal and Constitutional Court experience may count against her. 

Judge Patricia Goliath

As Deputy Judge President in the Western Cape, Judge Patricia Goliath may seem like an obvious frontrunner for the position. However, interviews with several of her peers suggest quite the opposite.

Interestingly, those who wish to be in the running for the next Judge President position when John Hlophe leaves office are quietly hoping she gets appointed to the Concourt so that their potential candidacy as DJP becomes more secure. 

Goliath replaced Jeanette Traverso as deputy JP in 2016, raising some eyebrows in the Cape.

She has a background as an attorney, working at her own law firm between 1990 and 2005. Originally from Athlone, she obtained an LLB from the University of the Western Cape and an LLM and a Labour Law certificate from UCT. Goliath was appointed to the bench in 2006. She has also spent a year acting at the Constitutional Court.

Over the past few years she has found herself in the media spotlight several times, presiding over high profile criminal cases. The most well-known of these was the Anene Booysen matter involving the rape and murder of a Bredasdorp teenager.

She also convicted artist Zwelethu Mthethwa of beating to death sex-worker Nokuphila Kumalo. In these cases she has demonstrated, in her own words, that “violence against women will not be tolerated”.

One blight on her career is a 2014 dressing down from the SCA in Bloemfontein, which described a judgment she wrote with colleague Judith Cloete as "disturbing". The SCA upheld an application for a review of their decision in a divorce matter. 

Goliath has been outspoken about poor transformation at the Cape Bar and the lack of female counsel.

In the documentary Courting Justice, featuring female judges, she spoke about this. “Once I wear that robe, everything changes. Once you are robed and they are robed, we are equals in the full sense of the word and I’m no longer a wife, or a mother or a woman but now I’m a judge and I’m hundred percent equal to my male counterparts. As a judge and as a black woman judge, I am bringing a different perspective and I think it’s important because diversity is important. That’s what our constitution is about, it respects diversity.” 

Judge Jody Kollapen 

Kollapen is perhaps the best known of the candidates, the result of his media profile during his time as head of the Human Rights Commission. He also has an established record as a human rights activist having coordinated the Release Political Prisoners programme and spent time at the Legal Resources Centre working on anti-apartheid cases such as the Delmas treason trial and the Sharpeville Six.

He’s also served on the boards of the CSVR and IDASA. His activism is rooted in his family heritage, his mother having attended the 1956 Women’s March to the Union Buildings. 

Kollapen’s career on the bench has been fairly short and this could count against him. However as one senior counsel pointed out, this shouldn’t disqualify him. "Arthur Chaskalson was appointed from the Bar to Chief Justice. There’s a growing tradition in this country of only appointing judges who have gone through the ranks. I don’t doubt experience matters but it shouldn’t disqualify him."

Another peer also expressed concern about his lack of commercial experience even though "his heart is in the right place", and noted that he has dissented on some judgments and has had rulings overturned in the SCA.

Kollapen was appointed to the High Court in Johannesburg in 2011 and has served two acting terms on the ConCourt during which he wrote a majority judgment in the case involving AfriForum and the issue of Afrikaans as the main medium of instruction at the University of Pretoria.

He unsuccessfully interviewed for a vacancy on the CC in 2017. 

Just last week Kollapen handed down a celebrated decision in the Land Claims Court, finding that the government has violated the rights of hundreds of District Six claimants who have lodged claims and are awaiting restitution. 

On its website, civil society coalition Judges Matter says: “If the JSC, and Chief Justice Mogoeng Mogoeng, are keen to ensure the Constitutional Court retains a diversity of legal approaches and intellectualisms, Kollapen would be an interesting foil for the likes of Deputy Chief Justice Raymond Zondo and Justice Chris Jafta who are considered legal formalists — especially with the imminent retirements of justices Edwin Cameron and Johan Froneman.”

Judge Stevan Majiedt 

In contrast to Kollapen, Majiedt is arguably the most qualified of the six candidates. He has been a Supreme Court of Appeal judge since 2010 and has acted for a term at the Constitutional Court, during which he wrote several judgments including an important unanimous decision involving incidents of violence perpetrated against MDC activists allegedly committed in Zimbabwe by State officials. 

The public may recognise him as being part of the SCA panel of judges who heard the appeal involving Oscar Pistorius. In that matter the SCA overturned the High Court’s culpable homicide verdict against the Paralympic superstar. 

The 59-year-old comes from the Kimberley court having been appointed to the Northern Cape High Court in 2000. He has an LLB from the University of the Western Cape, was an advocate at the Cape Bar from 1984 and served as the Chief Provincial State Law Adviser to the Northern Cape Government. 

Majiedt is viewed with respect by his colleagues and is described as "a bit terse, but always a gentleman, a solid judge with well-reasoned judgments".

Despite this high regard, he has also been seen as a divisive character.

This was exemplified by the 2006 blow up between himself and Northern Cape Judge President Frans Kgomo.

Majiedt allegedly sent Kgomo a text message accusing him of being a "sly, devious, conniving person, but also a coward", motivated by "sheer racism and malice towards him". The matter was resolved and the two supposedly became the "best of friends".

However this issue was raised at Majiedt’s unsuccessful interview for the Constitutional Court in 2017.

At the time he told the JSC that he had learnt how to control his temper. "As a judge, I understand that one should control one's temper – I have learnt to be temperate as possible," he said.

"I will never allow myself to be trampled on, because people perceive me as not black enough. So I would have done the same thing, but I would have done it differently. I used a wrong method and I learnt a lot from it. As a trial judge, when people are ready to provoke you... sometimes, even the lawyers that appear before you," he said. 

The fact that he may be the first coloured man appointed to the CC was also an area of consternation for him as he explained that he considers himself black, not coloured.

"There is also the question of race representation. I don’t want to be misquoted, so often people tell me, 'There are no coloureds in the High Court'. I am not coloured, I am a black person," he said in 2017.

Judge Fayeeza Kathree-Setiloane

Kathree-Setiloane is probably more au fait with the inside of the Constitutional Court precinct than any other candidate and her potential appointment to the bench in Braamfontein would bring her full circle.

She was one of the inaugural researchers at the inception of the court in 1995 and went on to clerk for Justice Yvonne Mokgoro. She also acted for a term in 2017. 

She did her law degree at the University of Natal and then went to Georgetown University in the US, graduating with an LLM in 1993.

She earned her stripes at the Legal Resource Centre’s Constitutional Litigation Unit, learning under counsel such as Wim Trengove SC.

Kathree-Setiloane was admitted to the Johannesburg Bar in 1997 and worked as a lecturer at the University of the Western Cape and the University of Maryland Law School. She did a stint at Sandton law firm Werksmans before going to the bench.

Over the years, Kathree-Setiloane has acted at the Supreme Court of Appeal, the Labour Appeal Court and the Competition Appeal Court. She is currently a board member of the CSVR and the Institute of Directors Southern Africa.

Two of the most high profile judgments she has handed down over the past few years have had political implications.

Earlier this year, in the South Gauteng High Court, she found that ANC North West chairperson Supra Muhamapelo and his provincial executive committee should be reinstated after it was dissolved by the ANC’s NEC. Kathree-Setiloane said that the dissolution of the PEC was a drastic and draconian measure which ought to have been resorted to as the last resort and the decision violated the party’s constitution. 

In 2015, she found that former IPID head Robert McBride’s removal from office by the Minister of Police was unlawful and invalid. The decision was confirmed by the Constitutional Court which held that her decision was "well-reasoned and fully supported by the facts of the case". 

Kathree-Setiloane has been outspoken on both gender transformation and sexual abuse. In her 2010 interview before the JSC, she urged the commission to break with convention by appointing young judges to transform the race and gender make-up of the bench.

"You are going to find younger, better-looking, more creative judges…It is going to be great for the bar in terms of the decisions coming from the bar. We come in so young because we do it in the interest of transformation and of the people of the country," she said. 

As an aside - some information that has no bearing whatsoever on her candidacy – Kathree-Setiloane’s holiday home in Parys was once featured in the House and Leisure magazine. In the article she revealed that her signature dish is grilled prawns with a hint of chilli and ginger and she indulges in cheesecake from Moemas on 7th Avenue, Parkhurst.

Judge Zukisa Tshiqi

Tshiqi’s roots are in rural Eastern Cape, having been born in Qingana in 1961. However she now serves on the bench in Bloemfontein, where she’s been a Supreme Court of Appeal judge since 2009.

She has also spent two terms acting at the Constitutional Court. Prior to that she was a High Court judge in Johannesburg and acted at the Labour Appeal Court. 

She worked as an attorney before being appointed to the bench in 2005. She was a managing partner at her own firm, Tshiqi-Zebediela Inc.

She has worked as the Litigation Officer at the Black Lawyers Association, as the Legal Co-Ordinator at the SA Council of Churches and did her articles at Neluheni Attorneys after graduation from Wits. 

Tshiqi was nominated for the Constitutional Court vacancy by the BLA. Tshiqi has also spent time teaching at the South African Judicial Institute, sharing knowledge on judgement writing skills. 

Speaking at the South African Chapter of the International Association of Women Judges (SAC-IAWJ) conference in Polokwane in 2017, Tshiqi said that "human dignity goes to the heart of human identity and that human dignity is the cornerstone of other human rights, as it can be violated through humiliation, deprivation or dehumanisation".  

While she is considered very experienced, a "solid judge with a good legal background", she might not be viewed as a "shining light" in the legal fraternity.

She did write two unanimous judgments while acting at the Concourt – one on the provision of electricity to Alexandra township and another on whether foster child grants should be deducted from Road Accident Fund payouts.

At the SCA her most interesting ruling has been on a case which involved the use of undercover agents to crack a criminal gang targeting truck drivers on the N3 highway. 

While some have expressed concern that she hasn’t written landmark decisions, she is considered the safe option. 

What to look out for 

South Africa is not at the point as in the United States where appointments to the highest court in the land are heavily politicised in terms of progressives or conservatives. However, it is important to consider the "balance" of the court. 

In an ideal world, only merit would matter. But the JSC and, in turn, the President, will be alive to the sensitivities around demographics.

The court should reflect the population of the country and the commission members may find themselves playing a balancing act. The vacancies being filled have been left by Moseneke and Nkabinde, a black man and black woman.

As it stands, there are only three female judges on the court, so it is unlikely both Majiedt and Kollapen would get the nod. Rather, expect one male and one female to be appointed. 

Credit to Judges Matter – for full bios on candidates go to http://www.judgesmatter.co.za/

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