'I am not arrogant,' Competition Appeal Court Bench candidate tells Julius Malema in JSC interview

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Julius Malema conducting JSC interviews.
Julius Malema conducting JSC interviews.
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  • Competition Appeal Court Bench candidate, Judge Denise Fisher, was grilled at the Judicial Service Commission over a judgment she had written, which was reversed by the Constitutional Court.
  • Commissioner Julius Malema told the candidate that he did not want to leave with the impression that she was "arrogant".
  • But Fisher denied she was arrogant and said she accepted that her judgment had been overturned, but could still be proud of the reasoning she took.

One of two candidates for the Competition Appeal Court Bench told Judicial Service Commission (JSC) commissioner Julius Malema, during her interview for a vacancy on the Bench, that she was not an arrogant person.

Judge Denise Fisher was responding to a question from Malema about a judgment she had written on competition law (Competition Commission vs Beefcor), which was overturned by the Constitutional Court.

"You cannot be proud of a wrong judgment that gets overruled by the Constitutional Court because then you are suggesting that the judgment of the Constitutional Court is not worth the paper [it's] written on," Malema put to her.

He continued:

[Because], as a judge of the lower court, when being corrected by a higher court like the Constitutional Court, you should be able to say well, I accept and I have learnt from that and move forward because I leave here with an understanding that you can be proud of being wrong as a judge because that is the impression I am getting.

She responded: "I accept that the Constitutional Court was right. Obviously, I do, and I accept that my judgment has been overturned. But the manner in which I reasoned, it dealt with the two options that can be adopted in the interpretation," Fisher said during her virtual interview on Monday.

Malema questioned whether the Constitutional Court's overturning of Fisher's judgment meant that her judgment was wrong.

Fisher responded: "It can mean that, although you have examined the various principles in the case...you opted for an interpretation that was not in accordance with the interpretation that the Constitutional Court opted for. So, I suppose in simple language, it means the Constitutional Court was saying yes, the Competition Court opted for the wrong interpretation. It doesn't mean that that interpretation wasn't necessarily a viable interpretation".

READ | JSC concludes ConCourt interviews, will now deliberate on which candidates to recommend to Ramaphosa

But Malema was not satisfied with that response and probed further, saying that when a matter is appealed to a higher court, it means that the judge can either be right or wrong. He said he did not want to leave with the impression that Fisher was "arrogant" when a higher court corrects her.

"I am not an arrogant person. What I am expressing is not arrogance on the basis that I am saying, well the Constitutional Court was wrong and I was right."

She said: 

What I am saying is that I am proud of the judgment because of the reasoning in it and because the reasoning was not thrown out by the Constitutional Court. The Constitutional Court accepted that there were two viable interpretations in the same way that I did, but they said that the competition appeal Bench had opted for the interpretation that they did not approve.

"So, in simple terms, they said yes, you're wrong, but you can be wrong and still be proud of your reasoning in your judgment," she explained.

Fisher brought up the example of a dissenting judgment, stating that you can still be proud of it even though it is not the judgment of the court.

But Malema quickly interjected, stating: "You were not dissenting. You were overturned. To say you are proud of it and compare it to [a] dissenting [judgment] borders on arrogance. Would I be wrong to take that direction?"

"I think I dealt well with those two options. The fact that I chose the wrong one doesn't mean that I didn't work through the matter in a sensible, reasoned fashion," Fisher said.

The interview, which lasted more than an hour, was followed by the interview of the second candidate, Judge Norman Manoim, whose interview took less than 30 minutes.

According to Judges Matter, Manoim – a High Court judge – spent more than 20 years as the deputy and later as the chairperson of the Competition Tribunal.

Advocate Tembeka Ngcukaitobi, SC, described him as "South Africa's leading expert in competition law".

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