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WRAP | SCA candidate Makaula blames secretary for 'wrong judgment', says he is 'not computer literate'

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03 October 20:30

We will resume at 09:00.

Malema tells DA MP Glynnis Breytenbach that "you must come physically". She responds: "I miss you too Julius, don't worry".

03 October 20:29

Molefe's interview wraps and we conclude for the day.

03 October 20:28

Advocate Carol Steinberg SC says she is concerned about the apparent omissions and inaccuracies in Molefe's application for a position at the SCA. She says Molefe's claims that all the judgments referred to in an annexure to her application were reported is "not true". Molefe says she has noted Steinberg's concerns about the quality of her application "and I can't argue with that".

03 October 20:21

Malema also points out that Zondo was appointed when he had only two years left in office and suggests that Molefe's age should not be a barrier against her appointment. It is clear that she is one of his preferred candidates for appointment - despite the issues raised about her judgment drafts by Petse.

- Karyn Maughan

03 October 20:13

Malema contends that it is not a bad thing for judges to provide substantial changes to draft rulings, which is what Petse says Molefe's colleagues say they made to her judgments. She agrees.

03 October 20:09

Pillay asks Molefe how many of her rulings were successfully appealed. She says there was only one and two were unsuccessfully appealed. This is off the over 300 rulings that she says she delivered.

- Karyn Maughan

03 October 20:05

Malema now interjects and asks Molefe how many reported judgments that she has delivered. After an interaction, she confirms that she has six reported judgments.

03 October 20:03

Notyesi puts it to Molefe that the SCA must deliver judgments that "develop the law". As such, he says, it needs a "complete judge". Molefe responds: "I think I'm a complete judge".

03 October 19:56

Molefe says she accepts that staying away from the court weakens the institution and demonstrates a lack of respect. "What you will not admit to is that more than once, more than twice, you stayed away from court", Petse tells Molefe.

She admits that it was an "oversight" that she would not be at court on one of these occasions - but denies that she is disrespectful.

- Karyn Maughan

03 October 19:53

Petse now puts it to Molefe that she had a habit of leaving the SCA without getting proper permission. She says this assertion is "not accurate" and says there were only two occasions on which she had to leave the SCA - one of which she alerted the court about.

On the other occasion, Molefe says, she was in Cape Town to attend to her daughter, who was in hospital and had suffered complications.

- Karyn Maughan

03 October 19:50

COMMENT | Both Maya and Petse have not avoided taking certain SCA candidates on about the apparent "panel beating" required to get judgments into shape. It is concerning that so many of the judges interviewed here seem to have significant difficulties in writing rulings on their own - but it is positive that this is being confronted.

- Karyn Maughan

03 October 19:48

In response to questions from Petse, Molefe says she is open to input from other judges. Petse says he has received input from Molefe's colleagues that substantial work had to done to "panel beat" her seven SCA rulings into shape.

Molefe then points out that Petse himself was the presiding judge in one of these cases - and he points out that he "furnished" her with substantive changes "that you adopted".

- Karyn Maughan

03 October 19:42

Molefe says "training and mentoring are my passion".

03 October 19:41

Molefe has been criticised by the Black Lawyers Association for alleged delays in handing down rulings from May 2022. She says that all but one of these outstanding rulings have been delivered.

- Karyn Maughan

03 October 19:37

Molefe says she has written "more than 300 judgments" during her career.

03 October 19:36

The GCB has claimed that Molefe only has five reported judgments - an allegation she denies. She says she delivered several judgments at the Land Claims Court and says she also contributed to court rulings that were scribed by all the judges on the bench.

03 October 19:34

Molefe worked as a lecturer at the University of the North West from1984 to1985 and spent several years working as an attorney. She worked as an Acting Judge at the Free State and Gauteng High Courts in 2012 and became a permanent judge at the Gauteng High Court in 2013. She has also served as  the Acting Judge President of the Land Claims Court.

While she is 65, she says that her age should not be a reason not to appoint her - and she regards it as an advantage. She can do a lot in the six years she will have on the SCA bench.

- Karyn Maughan

03 October 19:28

Judge Daisy Sekao Molefe is the final SCA candidate to be interviewed today.

03 October 19:21

Meyer's interview concludes.

03 October 19:19

Meyer says he feels like the "law is my master" and that is what he wants to contribute to South Africa.

03 October 19:16

Meyer appears to have the most impressive record of reported judgments of any candidate so far.

- Karyn Maughan

03 October 19:03

Meyer says that, when he was nominated for appointment as a judge, the Johannesburg Bar Association detailed his work in advancing transformation and gender disparities in the legal profession.

03 October 19:00

Meyer confirms that there are judges at the SCA who struggle to write judgments. He says he seeks to ensure that judgments can be "more perfect" and his assistance in this regard is "much appreciated". Meyer says that only cosmetic changes have been made to his rulings.

- Karyn Maughan

03 October 18:57

Acting SCA President Petse says he has read the transcript of Meyer's previous interview (one of four) for a permanent position at the SCA.

He asks Meyer what factors he would want the JSC to consider during its deliberations, given that five of the ten candidates for the five SCA vacancies are white.

Meyer says his record seeks to his ability to review the judgments of other judges. He points out that Judge Clive Plaskett is retiring at the end of the year - and says he has an excellent relationship with his colleagues.

- Karyn Maughan

03 October 18:48

Judge Pieter Meyer will be the next candidate to be interviewed.

03 October 18:48

Makaula's interview has concluded. 

03 October 18:45

Makaula says his understanding is that, should substantial changes be affected in a ruling, he would not have been named as its author.

03 October 18:36

The case at the centre of this questioning is the September 2022 ruling delivered by the SCA, which upended succession plans for the amaMpondo aseQaukeni throne in the Eastern Cape. Makaula's ruling set aside President Cyril Ramaphosa’s 2018 recognition of Zanozuko Tyelovuyo Sigcau — who has since died — as the rightful successor.

Makaula ruled that a determination by the Commission on Traditional Leadership Disputes and Claims in 2010 that Zanozuko was the rightful successor was flawed. This means Ramaphosa’s subsequent recognition of him was also flawed.

- Karyn Maughan

03 October 18:32

Maya says she needs to place it on record that one of Makaula's colleagues complained that he had got the facts wrong in the Sigcau case - and she herself made "substantive suggestions" in regards to the draft. "I am really pained," Makaula responds.

03 October 18:26

Makaula reiterates that "I can write judgments on my own". Petse then points out that his colleagues on the disputed ruling raised serious concerns about the quality of the first draft that he produced. Makaula says the issues raised were "only cosmetic", but concedes that Judge Dambuza inserted two paragraphs into the ruling.

- Karyn Maughan

03 October 18:23

Petse questions Makaula about his trip to the Eastern Cape (which he did not seek permission for), which resulted in him missing an SCA conference about the ruling he is under fire for. Was this not a manifestation of "disrespect", Petse asks. Makaula denies this and stresses he would never be disrespectful towards an "elderly person".

- Karyn Maughan

03 October 18:16

Justice Minister Ronald Lamola now puts it to Makaula that he must take responsibility for what his secretary did. Makaula agrees, and confirms that he is "taking steps" to address his computer illiteracy.

03 October 18:14

Maya says her own secretary called her to tell her that Makaula's secretary had told her that he would not be able to attend a conference meeting over the disputed judgment. He says he had returned to the Eastern Cape - without permission - and admits that he "made a mistake and I regret making the mistake".

- Karyn Maughan

03 October 18:07

Makaula says Judge Dambuza, who was on the same panel as him in the case, had resolved the problem by allowing him to use her secretary.

Makaula says his only challenge at the SCA was his secretary.

03 October 18:05

Maya says her personal experience of Makaula was that it was very difficult to get a judgment out of him in a particular case - where she says another judge actually claimed that he failed to implement suggested edits. He blames his secretary for sending "a wrong judgment".

Maya: "But you do understand that it's your duty to send the correct judgment?" Makaula answers yes, but again blames his secretary for the ruling being delayed. He answers that he is "not computer literate".

- Karyn Maughan

03 October 17:56

Makaula says that, during the time that he was working on the delayed rulings, he was dealing with a number of matters - and the cases involved were complicated.

-Karyn Maughan

03 October 17:53

Makaula says he has delivered six judgments while at the SCA and kept within the three month time limit allocated for the delivery of SCA rulings in all but one matter, which he says was complex.

Maya says the Black Lawyers Association has questioned whether he is ready to serve at the SCA, while the General Council of the Bar has criticised him for taking seven to eight months to deliver judgments.

-Karyn Maughan

03 October 17:50

Judge Mandela Makaula is the next candidate to be interviewed.

Maya declares that she and Makaula have been friends since childhood "not that that affects anything".

She takes Makaula through his career, which began with him serving as a court interpreter. He also worked as a prosecutor. Makaula has been a permanent judge since 2010 and has been acting at the SCA for three terms.

-Karyn Maughan

03 October 17:43

Koen is excused.

03 October 17:41

Koen responds that even the most well written judgment will be suspended by a leave to appeal application - and suggests that legislative reform may be required to give judges the power to order that a ruling where there are no prospects of success on appeal should be enforced.

-Karyn Maughan

03 October 17:33

Advocate Carol Steinberg SC asks Koen about delays in certain cases - "sometimes for up to two decades".

She asks him about the Zuma case and specifically questions whether there is anything that enables judges to proceed with matters, while interlocutory matters proceed.

Koen says he will deal with appeals generally - and won't comment on the Zuma case.

-Karyn Maughan

03 October 17:30

Malema now interjects again and asks Koen whether he briefed black or female advocates while he acted as an advocate.

Koen says that in 2007, when he was practising, it was not a general pratice for counsel to brief juniors to appear with them - and there were only "two or three" female advocates on the Bar.

Koen says he tried to promote transformation through pupillage of young aspirant black advocates.

-Karyn Maughan

03 October 17:21

Malema now interjects and accuses Koen of suggesting that he may be influenced by public opinion. "I don't take it into account at all," he says, adding that he may be criticised for allowing certain adjournments in the Zuma matter - but did not take that into account.

-Karyn Maughan

03 October 17:19

Commissioner Pillay asks Koen whether most judges would adhere to the judicial code of conduct, which requires judges not to bow to political pressure.

He says that he believes so and includes himself in that group. She then suggests that he is wanting "special recognition" for acting impartiality in the drug trial of former State Security Minister Siyabonga Cwele and a case involving the JSC.

He denies this is - and stresses that he was stating that, should his rulings be held against him, "then so be it".

-Karyn Maughan

03 October 17:12

Notyesi then asks Koen about why he included his ruling on the postponement of the Zuma trial.

He says he was trying to demonstrate that his ruling on the postponement involved a number of complex issues that may require some degree of judicial reform.

"It's quite a messy area", he says, adding that "you have to keep a cool head".

-Karyn Maughan

03 October 17:09

In response to a question from Notyesi, Koen says he has never been asked to rule on a matter involving customary law.

Notyesi puts it to him that he had an opportunity to deal with such a case "if you wanted to".

Koen responds that he did not typically deal with the allocation of cases and deals with the cases that come before him.

Notyesi further refers to criticism levelled against the courts - during a debate involving impeachment-facing Judge President John Hlophe - that they did not want to deal with customary law. Koen responds that he would be "keen" to deal with such a case.

-Karyn Maughan

03 October 17:01

Petse points out that there are five white candidates for the SCA vacancies.

-Karyn Maughan

03 October 16:55

Koen says his judgment was centred on determining where the civil liability for the Minister of the Police would end - and whether the Minister of Police could be held liable for the detention of the accused caused by the court not granting them bail.

-Karyn Maughan

03 October 16:53

Petse tells Koen that the Black Lawyers Association has criticised him for allegedly not demonstrating constitutional understanding in relation to his rulings.

Petse then refers to a ruling, given by Koen on behalf of the SCA, that involved accused people being tortured into giving a murder confession - and Koen points out Petse was part of the bench and wrote a ruling that dissented with the majority judgment written by him.

-Karyn Maughan

03 October 16:42

Koen says he is now 63 and has seven years left on the bench. He believes he can grow professionally in an Appeal Court environment.

-Karyn Maughan

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