On Tuesday morning at the Judicial Service Commission (JSC) interviews of prospective judges, Economic Freedom Fighters leader Julius Malema’s piercing eyes caught those of Chief Justice Mogoeng Mogoeng.
“I want to raise a dissatisfaction with what you have done,” Malema said quietly. His voice and manner, usually booming, appeared tempered by grief over the death the previous week of close friend and mentor, Winnie Madikizela-Mandela.
The commission was nearing the end of an hour-long love fest with Free State High Court Judge President Mahube Molemela, who was being interviewed for a position at the Supreme Court of Appeal (SCA).
Various commissioners had been effusive in their appreciation of Molemela’s credentials, ambition and the manner in which she had turned around the Free State Bench. The division appeared more efficient, less fractious and was doing well on transformation with more women and black judges than when she was appointed in October 2014.
One commissioner went so far as to strike a “congratulatory note” and described one of her answers as “brilliant”. Molemela appeared such a shoo-in that Mogoeng had to warn commissioners against sounding biased, or creating the impression that her appointment to the SCA was already decided.
But that was not why Malema was taking exception to the chief justice. When the Inkatha Freedom Party’s Narend Singh later asked Molemela whether she was moving up the judicial ladder by seeking appointment to the appellate court, or whether it was a step down from the position of judge president of a provincial division, Molemela floundered a bit, unsure of her answer.
Mogoeng stepped in and said it was a step down: “She is sacrificing,” he confirmed. That is when Malema said he was “uncomfortable with what you [Mogoeng] have just said … You are being complimentary without saying ‘congratulations’,” he chided.
Roles appeared reversed and the chief justice, the commission’s chairperson, protested an explanation, but Malema had made more than just one point. The most trenchant being that his interventions at the commission have become increasingly sharp, more confidently smart, sometimes bucking general convention and, often, an example of wily cross-examination.
Malema has blossomed into one of the intellectual leaders at the JSC – to the point that his presence and his questions have challenged his colleagues to sharpen their own minds in understanding why they are there and the seriousness of the job the Constitution requires of them in sifting out judges for appointment.
With its 23 members, the JSC is never about just one individual, but individuals do make up the commission.
When Jeff Radebe was minister of justice there was a more discernible sense of an ANC caucus acting as a voting bloc, which exists much less so within the current incarnation.
In its first mid-1990’s version advocate George Bizos SC was revered as the one who imbued the panel with a very special sense of justice – compelling his colleagues to search their consciences deeply when making decisions.
The late chief justice Pius Langa set an understated example for the rest of the commission to follow. In contrast Mogoeng’s tub-thumping, sincere passion for the constitutional values of our republic and the condition of the poorest of the poor – from whether they are able to access justice easily to how rapacious corporate collusion affects their ability to survive – can sometimes be misconstrued, and mistakenly echoed, tonally and substantively, as reductive overzealousness by other commissioners.
So, in a week when the JSC appeared especially flat, candidates’ judgments were rarely examined for their keeping time with the progressive values of the Constitution and commissioners absences, such as the ANC’s Thandi Modise’s non attendance and Malema’s absence on Thursday, adding to the impression that the JSC can sometimes appear broken.
On Thursday the commission recommended former magistrate Khosi Hadebe and attorney Sidwell Mngadi for appointment to the KwaZulu-Natal High Court. Both appeared to have made careers out of acting at the high court for the past few years.
Hadebe exhibited nothing exceptional in the judgments she wrote in that period or in her interview during which she came across as barely adequate.
During his interview Mngadi was finally convinced, after a long exchange, that a perception of bias could be created if he retained his political party membership while sitting on the Bench.
He also argued for another long period that he was currently a “practising attorney” despite not having the very basic requirements, like a fidelity fund certificate. Such slip-ups suggested that neither appointee was going to hand down a ground-breaking judgment any time soon – and that the JSC may have been desperate to tick the transformation boxes of race and gender with little consideration for the important role a judge’s progressive jurisprudence has in the transformation matrix.
The JSC then recommended attorneys Sharon Chesiwe and Pitso Molitsoane and magistrate Mareen Opperman for appointment to the Free State division of the high court.
Chesiwe’s recommendation, in particular, raised eyebrows. Having unsuccessfully interviewed twice before, she appeared to have convinced the JSC that she had learnt from her mistakes. These included reducing the prescribed minimum life sentence for the rapist of a minor to 15 years’ imprisonment despite noting that he had shown “no remorse” for the crime.
Last year she refused to set aside a decision by the Free State Development Corporation to sell a petrol station and property owned by the state to former Free State premier and current ANC secretary-general Ace Magashule’s daughter for a cut-price.
Citing the separation of powers doctrine, Chesiwe found there “were strategic considerations that gave [Magashule’s daughter Thoko Malembe, or her trust an] advantage, despite their considerably less costly bid”. She did not detail the “strategic considerations” in her judgment.
The JSC this week suggested that, apart from a few members, it can appear lacking in rigour and vigour.
SUPREME COURT OF APPEAL
Judge Ashton Schippers
Judge President Mahube Molemela
Judge Tati Moffat Makgoka
COMPETITION APPEAL COURT
Judge Bashier Vally
Judge Margaret Victor
Judge Jerome Mnguni
Ms Sungaree Pather
KWAZULU-NATAL HIGH COURT
Ms Khosi Hadebe
Mr Sidwell Mngadi
FREE STATE HIGH COURT
Ms Sharon Chesiwe
Mr Pitso Molitsoane
Ms Mareen Opperman
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