Four women judges grilled over vacant ConCourt position

2015-07-09 17:48


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Johannesburg - It was the job interview of their lives for four women vying for one vacancy at the highest court in the land - the Constitutional Court - as they were quizzed by the Judicial Services Commission (JSC) at hotel near the OR Tambo International Airport on Thursday.

One by one they left the holding room and faced the U-shape of JSC commissioners' desks. Sitting in the hot seat, their handbags, placed neatly next to them, they fielded questions on their suitability for a bench that has heard cases that have caused enormous shifts in society.

Justices Nonkosi Zoliswa Mhlantla, Dhayanithie Pillay, Leona Valerie Theron and Zukisa Laura Lumka Tshiqi were questioned on what they thought of land restitution judgments and why they tended towards financial redress rather than restitution; the separation of powers between the judiciary and executive; what they thought of court orders being disobeyed and how to get more black women into the judiciary.

Nobody asked the 'where will you be in five years' question. Mhlantla and Tshiki were put on the spot over whether President Jacob Zuma - who makes the final choice - should choose Pillay or Theron, given there were no coloured or Indian female judges at that court.

'Be fair-minded'

Mhlantla, who has acted at the Constitutional Court before, said the voluminous amount of work judges had to manage - thousands of pages of documents - was an eye-opener for her.

Her understanding of her job was to ''consider everything and be fair-minded''; to deliver judgments properly, efficiently and diligently and be impartial.

''You must go into court open-minded.''

The interviews were not sweetheart ones, with Mhlantla taken to task over why she had not struck an attorney off the roll because of offences he had committed.

She responded that she considered such things on their merits and in that case had decided he should be suspended and spend a few years at a law firm and then satisfy the court he was fit to return to court again. She hoped that person could be rehabilitated, instead of ending his career.

Not passive

She defended criticism by the General Council of the Bar that as a Supreme Court of Appeal judge, she did not do much questioning, by saying she was not passive, and that it was good to listen. However, she would try to address that concern.

Chief Justice Mogoeng Mogoeng said: "'It's not a sign of ignorance to not not ask questions when there is nothing to ask.''

On the land restitution question, she said through court processes, preferably claimants should have their land restored, but it was not always possible. A last resort would be monetary compensation.

''It would be preferable that one is restored to the land one seeks. But that is not always available,'' she said.

The JSC was interviewing the short-listed candidates after Justice Thembile Skweyiya retired.

It also planned to interview Justice Mandisa Muriel Lindelwa Maya for the vacant position of Supreme Court of Appeal deputy president following her nomination by Zuma.

Mhlantla said that in disputes involving the executive, the court had to look at process taken and decide whether there was rationality.

In appointing Menzi Simelane as National Director of Public Prosecutions, the Constitutional Court found against the president based on an examination of the processes. 

Substituting an executive decision was not necessarily encroaching on the executive's power, she added. 

''If there were flaws in the process, the court will have the power to interfere.''

She wanted to see more young women brought into the judiciary, even though, as Commissioner Dumisa Ntsebeza said, 76% of work going through the State Attorney's office went to the historically disadvantaged.

Part of the answer was to get the private sector involved. When she was an attorney, she found mostly white lawyers were appointed to cases and clients rejected her saying, ''we don't know you''.

All-consuming job

KwaZulu-Natal Judge Dhayanithie Pillay took the issue of women in the judiciary further by saying it was easier for women who did not have parenting responsibilities, because judicial work was an all-consuming job.

''Regrettably women are primarily responsible for family responsibilities,'' she said and with a lack of support in raising children and managing households, it was a ''vicious cycle''.

Women were also stereotyped as being emotional and caring and men as capable of making the hard decisions in the world of law.

She suggested a change in briefing patterns - briefing more women as a starting point.

She believed ''to a point'' that background, like educational opportunities and life experiences, was important to a judge, but ultimately it was evidence and argument, and what the law said that guided a decision.

''To go outside of that would impugn the integrity of litigation itself,'' she said.

She defended an observation that she could be abrupt in court by explaining that with only five hours' court time available daily, she did not want to waste time.

On the land issue, she believed claimants should initiate court processes to enable the court to decide what to do.

'Who speaks for the poor and vulnerable'

She was told by a commissioner that in the 21 years of the Constitutional Court, there had never been an Indian female in that court and asked what she thought of that.

''Speaking personally, I hope I get appointed because of what I can deliver and not because of any other criteria. The candidate best able to deliver on the core competence and requirements of the court should be the one appointed,'' she said.

She also had to answer to an observation that she was seen to rule in favour of the powerless.

''Who speaks for the poor and vulnerable?" she asked, indicating her work could be seen in her judgments. She believed the ''crude'' win-lose effects of litigation were being addressed in Constitutional Court judgments.

She said she was not infallible and grateful to the appellate courts sitting above her.

''I think overall, I don't think I've done too badly.''

Theron's interview went smoothly, with her advocating for much earlier learning of African languages and noting African indigenous law was already being incorporated into legal studies.

Again, race was raised when she was asked about being appointed because she was coloured to meet South Africa's transformation.

She said it was a difficult but important question, but "where does it end?".

Asked about what she would do if there was criticism that a judgment was ''dangerously wrong'', she said the litigant should appeal.

Tshiqi's interview, the last in the line-up, was a little fraught.

She said she had loved acting at the Constitutional Court, but had to field criticism that she seemed hesitant to write judgments at the SCA; appeared reluctant to write minority judgments and did not have much non-criminal experience. 

She said this conclusion was based on her judgments not being readily available, adding she had instructed that they be uplifted.

On the transformation issue, she suggested the office of the State Attorney be used to ensure more black candidates were given chances.

'You must put an end to it'

Asked what she thought of having no Indian or coloured female judges at the court, she replied: ''All of us are black females. You are given a bag that has four black females because that is the word the law of this country uses. You choose what you consider as a commission to be the best candidate and that is your call.''

But then it went slightly awry when Commissioner Mike Hellens SC wanted to know why her former firm of attorneys had been paying for her cellphone since 2005.

She started explaining it was an arrangement they had, but Mogoeng interrupted her, saying she must not even justify it.

''That payment is wrong - you must put an end to it. Reflect on it, it's a wrong payment, you must put an end to it.''

She said she had declared it, but now sees it was wrong.

Thereafter, the commission went into a closed session.

Read more on:    jsc  |  constitutional court  |  johannesburg  |  judiciary

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