JSC: A tale of two interviews

2012-04-21 18:41

Deputy Judge President Phineas Mojapelo cut a lonely figure in front of the Judicial Service Commission (JSC) when he said this week it was his duty to speak out for what he believed in, even though he was a judge.

Sitting with his back painfully straight and his hands folded on the white tablecloth in front of him, the slight jurist looked straight ahead and weathered a withering set of questions from Justice Minister Jeff Radebe.

Radebe said he wanted to “understand” exactly what Mojapelo meant in a newspaper article he wrote last year.

In the article, Mojapelo said the appointment of former chief justice Sandile Ngcobo had been “robbed” of an important element of legitimacy because of a lack of public participation.

“I remained worried that it should never in my country take place that (the appointment of the chief justice) is (legally) challenged,” Mojapelo explained at the JSC hearings this week.

“The only way of doing so is to spell out the procedures as I see them, so that the advisers to the president and other people, including JSC members, could read it, either agree with it or differ with it. But my contribution to my country – to what I think would be important – would have been heard,” Mojapelo explained.

This interaction stood in stark contrast to the interview of Judge President Dunstan Mlambo, of the labour courts, in which Radebe asked questions that seemed to highlight Mlambo’s achievements.

The two candidates are both highly regarded jurists and are in the running for the post of judge president of the north and south Gauteng high courts.

But their very different interviews seemed to capture a problem that plagues the JSC and which cropped up in several interviews this week. Judge Frans Legodi was also interviewed for the position, although for only half an hour.

“There’s a very real sense that there is a sect in the JSC that has a brief to appoint certain people,” said a Johannesburg advocate.

“Appearing before the JSC is a bit like appearing in the Colosseum. You don’t know if the thumb’s going to be up or down.”

Commission member Izak Smuts (SC) asked candidates several times if they knew why the JSC had managed to identify only five suitable candidates for six vacancies on the bench of the Gauteng high court.

“You are aware that on a number of occasions this commission has failed to appoint excellent candidates and, on the last occasion, left a vacancy when I think there were about four (senior counsel) available for appointment.

“Do you think that approach by the commission may serve to discourage suitable candidates from applying for appointment?” Smuts asked.

Most candidates declined to speculate about it, but Radebe’s different lines of questioning will fuel speculation that there is a political brief in appointments undertaken by the JSC.

Although Radebe has the right to ask whatever questions he wants, and the composition of the JSC – in which the ANC has a majority – is mandated by the Constitution, it will have to find ways of dealing with negative perceptions about its operation.

The interviews this week did not include those of a potential Constitutional Court judge because there weren’t enough interested candidates.

The Constitution requires that a list of four candidates be placed before the president, but the JSC has twice been forced to extend this deadline.

Last month, City Press reported there was a perception within legal circles that the appointment of Judge Ray Zondo, already acting at the court, was inevitable.

The JSC also decided on another contentious issue this week when it announced that Western Cape Judge President John Hlophe would have his case referred to the JSC’s judicial conduct committee.

This comes after the Constitutional Court last month ruled that it could not hear the matter because many of its own judges were involved in the case.

This will likely cause further fallout for the JSC, because that committee consists of Chief Justice Mogoeng Mogoeng, Deputy Chief Justice Dikgang Moseneke and four other judges.

Mogoeng was involved in mediating the Hlophe dispute and Moseneke was a direct complainant.

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