Judicial independence features at judges’ interviews

2012-04-17 15:30

Perceived attacks on the independence of the judiciary featured prominently in the interviews of five judges for two open positions in the Supreme Court of Appeal.

The Judicial Service Commission (JSC) kicked off a week of judicial interviews in Cape Town today.

Questions about the separation of powers first cropped up during the interview of Judge Xola Petse of the Eastern Cape High Court.

Petse, who has a prominent history as a human rights lawyer and has also served as an acting judge of the SCA, said that “what the judiciary has done – which has been perceived as encroaching on the other arms of state – is what has been envisioned by the Constitution itself”.

Petse said it was the Constitution that required courts to declare unconstitutional acts and conduct invalid.

He said the judiciary “was the weakest of the arms of state” in terms of enforcing its own judgments or decisions and could only challenge that which the Constitution allowed.

Petse also welcomed criticism of the judiciary, but said that such criticism must be “informed and responsible”.

“Those who seek to criticise the courts should play the ball and not the man,” he said, adding that academics had been criticising judges since “time immemorial”.

Judge Brian Southwood, of the Gauteng High Court, who has significant experience in intellectual property law, also had to answer questions about the strongest and weakest arms of government.

Southwood said he was “very uncomfortable with the idea that judges run the country”.

He said that if government was unhappy with judgments there was a system in place by which they could appeal to higher courts.

“If government is not always happy with decisions, well maybe the government is acting wrongly in the cases that are going against them,” he said.

It was also clear that the issue of published academic work has remained a thorny issue for the JSC.

Judge Clive Plasket, of the Eastern Cape High Court, was praised by several committee members for his “impressive CV” which included being published in several legal journals and books.

Committee member Fatima Chohan quizzed Plasket about how “appropriate” it was for judges to deal with issues that might come before them, to which he replied that he would recuse himself if he had taken a particularly hard line on a legal issue.

Chohan said a “rigorous debate” was needed on this because it was important for the administration of justice that judges should be able to sit in cases and not recuse themselves.

Also interviewed was Eastern Cape High Court Judge Ronnie Pillay, who served on the Truth and Reconciliation Commission’s amnesty committee and Free State Judge Shamin Ebrahim.

Ebrahim is the only female candidate.

All of the candidates have spent time as acting judges of the SCA.

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