Ngoepe warns of ‘judicial cult’

2012-06-09 18:22

Concerns about labelling judges “conservative” or “progressive” based on how they decide cases against government were yesterday raised at interviews for a new Constitutional Court judge.

Four candidates were interviewed by the Judicial Service Commission (JSC) at OR Tambo International Airport for a position that opened on the bench when former chief justice Sandile Ngcobo retired last year.

Acting Constitutional Court Judge Ray Zondo and three ­Supreme Court of Appeal (SCA) Judges – Ronnie Bosielo, Mandisa Maya and Robert Nugent – were interviewed, although interviews were running significantly longer than the scheduled hour.

During Maya’s interview, Gauteng Judge President Bernard Ngoepe said judges in the Constitutional Court were being described as “conservative or progressive” and that there was “a tendency to look at certain judges as if they are right all the time”.

The senior judge, who is set to retire at the end of the year, said a “judicial cult” was being built around certain judges.

Ngoepe said that when these “judges were in the minority, the minority judgment is being ­glorified and the majority judgment (see details of correction below) crucified”.

Maya replied that SCA Judge President Lex Mpati would testify to the fact that she took a firm stand when it came to her position on judgments. The only female candidate, she said she had come under “tremendous pressure to make herself available for the post at the Constitutional Court. Maya has strong support among gender lobby groups. There are only two female judges currently sitting in the court.

Maya told the court that her perspective as a woman who “has a strong rural and township ­background” would benefit the court, because she understood the problems facing ordinary people.

Maya fielded questions about judicial independence and separation of powers, saying that “the Constitution itself enjoins us to employ some degree of judicial activism”.

“I’m not aware of any judgment where courts have encroached on the terrain of the other arms of government,” she said.

Her inclusion in the interviews may throw a spanner into the works for Zondo. He is currently acting in the Constitutional Court and there is a perception in legal circles that he is the ­preferred candidate.

Zondo was nominated by the Black Lawyers Association and has three master’s degrees in law.

In another dramatic moment yesterday, Nugent told the JSC it should ask itself why it had ­struggled to attract candidates for the Constitutional Court.

“You have to ask yourself, why is that? Why are people not ­willing to come forward?”

Nugent said that other top courts in the world attracted thousands of applicants.

The comments came after ­Nugent was questioned by commissioners over comments he had made about the JSC’s handling of Western Cape Judge President John Hlophe’s case.

Nugent was at the time a nominee for the Constitutional Court but withdrew because he felt the JSC had abdicated its constitutional duties when it decided not to discipline Hlophe.

“I’m not obliged to answer questions,” said Nugent, adding it was the right of the committee to decide not to place his name on a shortlist.

If the JSC finds that even one of the candidates is unsuitable for the job, the commission will have to call for more submissions.

The Constitution requires the JSC to submit a list of four candidates for President Jacob Zuma to pick from. Deadlines for submissions were extended twice.

» The quote, "(when these) judges were in the minority, the minority judgment is being glorified and the majority judgment crucified" initially incorrectly read: "(when these) judges were in the minority, the minority judgment is being glorified and the majority government crucified".

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