Interviews held by the JSC in Cape Town this week have thus far produced two recommendations. Judge Achmat Jappie was given the nod for the position of KwaZulu-Natal Judge President, an unsurprising outcome given that he was the only candidate, but one which at points seemed to hang in the balance during his unusually long interview.

Jappie replaces Judge Chiman Patel, who could shortly become the first judge president in South Africa to sue the state for R3 million after being allegedly unlawfully prosecuted for crimen injuria. Supporters claim that bogus charges were brought against Patel in order to drive him out of his position; Jappie now faces the task of restoring order.

For the role of Limpopo Judge President, the JSC has recommended Judge Mampuru Makgoba above a number of prominent rivals, including Pistorius case judge Thokozile Masipa. Masipa is likely to have lost out on the JSC stamp of approval not because of the Pistorius verdict but due to concerns raised in her interview about her lack of familiarity with Limpopo, and the shortage of time available to her to make her mark in the position: Masipa is required to retire in two years.

Also losing out on the JSC’s nod for the position was Judge Joseph Raulinga, who faced a fairly bruising interview. Chief Justice Mogoeng Mogoeng asked Raulinga why he had mentioned Deputy President Cyril Ramaphosa twice in his application.

Raulinga explained that he had been friends with Ramaphosa for 43 years, and had removed him as a referee from his application because he did not want to give the wrong impression. Mogoeng continued to suggest that Raulinga had mentioned Ramaphosa because he hoped to impress the JSC with his “high and mighty” friends. Why did Raulinga need to mention his friends in his introduction, Mogoeng asked.

“It’s an indication that I don’t live in isolation,” Raulinga replied. “I am sociable.”

One commissioner who seemed distinctly unimpressed with this explanation was EFF leader Julius Malema, who returned to the matter again when it was his chance to question the judge.

“Is it in the interests of the judiciary to have judges parading their friends who are political figures?” Malema asked. A day earlier, Malema had won from candidate judge president Francis Legodi the concession that it could be “improper” for a judge to have a close relationship with a politician.

Malema previously clashed with Judge Raulinga in March 2014, when the EFF approached the courts to try to have the IEC’s election deposit waived or lowered. Raulinga dismissed the bid, causing Malema to observe: “We told you that the role of the courts is to reinforce capitalism. This court has just confirmed that”.

When Malema suggested that Raulinga’s friendship with Ramaphosa retrospectively explained his judgment against the EFF, Justice Minister Michael Masutha appealed to Chief Justice Mogoeng as to whether Malema’s line of questioning was fair. Malema hit back, saying that if Mogoeng disallowed his questions, Malema would similarly appeal for all Masutha’s questions to be ruled unfair.

“Mr Malema, you have no right to threaten me,” the Justice Minister replied softly. It was a tense moment.

Raulinga argued in defence of his alleged political bias that he had in several cases ruled against the government, including on the occasion when he ordered that the Khampepe report on the Zimbabwean elections be released to the Mail & Guardian.

In the course of Malema’s questioning, however, Raulinga volunteered the information that he voted for the ANC, drawing further criticism from the Chief Justice. “Isn’t it enough that your vote is secret?” asked Mogoeng, suggesting that it could give rise to the perception that Raulinga was trying to woo certain commissioners. Mogoeng also suggested that the revelation could open Raulinga up to suggestions of bias when next he has to adjudicate a matter between political parties.

Raulinga admitted that it was a mistake for him to have said that he voted ANC, but claimed that Malema had essentially forced him into it – an allegation disputed by Malema.

Later on Tuesday, the JSC proceeded to interview candidates for two available Supreme Court of Appeal (SCA) positions. Judge Masipa was the only woman shortlisted for the Limpopo Judge President role, and the SCA race has a similar gender ratio. The only woman being considered for the country’s second-highest court is Judge Nambitha Dambuza. If she receives the JSC’s recommendation – as she is widely expected to – she would join six other female judges out of the current SCA bench tally of 23.

Dambuza was questioned by NCOP chair Thandi Modise about what conditions were like for single mothers in the judiciary.

“From my personal experience, I wouldn’t say there are formal systems [to assist mothers] in the judiciary,” Dambuza replied. She said that the support she received from her colleagues was invaluable, however, and made it much easier for her than when she was in private practice, where “I did not have support at all”.

Dambuza suggested that flexibility in terms of working and the ability to use resources optimally – such as dispatching her secretary to fetch her children from school rather than getting her to do her typing – was extremely helpful.

Mogoeng pointed out that a shortage of female judges was by no means a South Africa-specific problem, saying that when he attends international conferences he witnesses the same issue.

Fellow SCA candidate Judge Trevor Gorven – one of a handful of white men under consideration this week – was quick to stress how central he believed transformation was to the judicial project. If he was passed over for an SCA position because of the transformation imperative, Gorven said he would greet it with “equanimity”.

Gorven received one of the most respectful hearings at the JSC so far, being repeatedly complimented by commissioners for his “Struggle credentials” – he represented activists from the United Democratic Front – and his commitment to mentoring younger lawyers and judges.

Govern suggested that because pupillages were unpaid, it created an unfair playing field for “impecunious” legal candidates. He proposed that the government create a fund in order to allow financially-disadvantaged individuals to establish themselves at the bar.

Gorven also faced questions on his ruling against acting national director of public prosecutions Nomgcobo Jiba’s decision to prosecute KwaZulu Natal Hawks head Johan Booysen for racketeering.

“On the facts of the matter, even on the version of [Jiba], it wasn’t sufficient to have taken that step to prosecute,” Gorven said, but he stressed that his judgment did not amount to a finding of ‘not guilty’ against Booysen. “The material that [Jiba] had before her then was not sufficient to warrant such a decision. That’s as much as I found.”

It had been expected that Gorven’s successor in the interview hot seat, Judge Rammaka Mathopo, might attract some interesting questions as a result of his ruling that the NPA should hand over the so-called Zuma “spy tapes” to the DA in 2013. But instead Mathopo had a short and relatively easy time of it. Whether that’s a negative or positive sign for him – in terms of his chances of a spot on the SCA bench – remains to be seen at time of writing. DM

Photo: Judge Thokozile Masipa, who is celebrating her 67th birthday, listens to proceedings during during day four of sentencing procedures of South African Paralympic athlete Oscar Pistorius at the High Court in Pretoria, South Africa, 16 October 2014. EPA/ALON SKUY/POOL

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