Budlender defends remark

2009-09-20 17:20

Johannesburg - Lawyer and acting Western Cape High Court Judge Geoff Budlender found himself embroiled in questions from the JSC on whether he had been sidelined previously as a judge because of cases he had handled previously.

Speaking during his interview in Soweto on Sunday for a post on the Constitutional Court, he told the Judicial Service Commission he had been turned down in three previous applications to be appointed as a judge in the Western Cape High Court.

He had been told by people he did not want to name that it could be because of his work on an application to the Constitutional Court to force the government to dispense an HIV/Aids drug containing nevirapine.

He conceded it could be "because I am not good enough" and that he was not bitter about his non-appointment, but wanted to be frank with the commission and say what he had been told.

He was told the "HIV case made some people very angry" in the previous administration.

"Those days are past and I believe there is now a different attitude."

However, some of the commissioners took issue with this, and the focus shifted from his 30 years of practice which include being an attorney, an advocate, working for a non-governmental organisation, in private practice and a position in the department of land affairs.

After his first failed application for judge it was suggested that it was because he had not been a judge before.


But later, someone told him: "There was a feeling by some people that I had gone too far in some of the challenges I had made. I'm not complaining about it. I thought about whether I should make this statement, but I thought I should be frank."

Advocate Marumo Moerane defended the JSC, saying the suggestion that the 25 people who had interviewed him previously were taking instructions from the previous administration, was "totally not correct".

"There was never a time when your appointment was not recommended because you had offended certain people in the [former president Thabo] Mbeki administration because of your role in the nevirapine case."

Budlender replied: "What I was careful to say is that some people were angry with me about what I had done, that this person is going to challenge government."

One after the other, the commissioners questioned Budlender on this statement, with Budlender eventually saying this was just what he had been told, and was pleased to hear it was not the case.

"I'm sure that I've upset and trodden on toes and I can see that I have trodden on many toes and I am very sorry that I have trodden on toes."


He denied a suggestion that taking this seriously could mean he was open to gossip saying: "I'm not a gossip, I come before this commission for a very important job."

The commissioners also heard of his history as an anti-apartheid activist while a student and the time one of his houses in Cape Town was petrol bombed.

Replying to a question from advocate Dumisa Ntsebeza, who said the Cape Bar only had about seven black advocates, he spoke about the need for transformation in the judiciary, the problems young black lawyers had in getting the first brief that would give them exposure, and how something needed to be done to address this.

He said appointing him as a judge would not upset the balance because the court was already a black-led court with black judges.


Earlier, Judge Eberhardt Bertlesmann was interviewed for one of the four posts of judge.

He was questioned on some of his judgments, on his allegiance to South Africa given his Namibian birth and German parentage. He acknowledged that he had previously been treated for an addiction.

"It is not a secret. There is life after such an experience."

When asked about transformation in the judiciary, he said as a white male he could never be a transformation candidate, but believed the Constitutional Court should be composed of individuals who collectively provided the judicial guidance the country needed.

He said the JSC should decide whether the appointment of a white male was justified.