FILLING THE BENCH
Ramaphosa gets his shortlist for Constitutional Court judge vacancies
There have been two judicial vacancies at the Constitutional Court since 2017. They will soon be filled if at least two nominations for the positions get presidential approval. In their interviews to be put forward as nominees to the Bench, candidates extolled their achievements and responded to criticism.
President Cyril Ramaphosa has a tough decision to make: Choose two candidates from a list of five qualified nominees to fill two vacancies on the Bench of the Constitutional Court.
On Wednesday 3 April 2019, judges Annali Christelle Basson, Patricia Goliath, Narandran Jody Kollapen, Stevan Arnold Majiedt and Zukisa Laura Lumka Tshiqi made it through the interview process and were nominated as candidates for the vacancies. Judge Fayeeza Kathree-Setiloane did not make the final nominee list, submitted in alphabetical order rather than in order of preference.
The Constitutional Court, considered the apex court of the country, is meant to have 11 sitting judges, but there have been only nine permanent appointments since Deputy Chief Justice Raymond Zondo’s promotion in March 2017 and Justice Bess Nkabinde’s retirement later that year.
The current Bench is predominantly male, with only three female judges. Of the nine sitting judges, five are black, two are coloured and two are white. Given its history and current composition, questions around transformation at the courts dominated most interviews. Other key points asked of candidates were around judicial approach to the law, areas of expertise and their practical experience.
Constitutional Court justices are permitted to serve up to 12 years on the Bench or until they reach the age of 70. While the Constitution does not permit discrimination on the basis of age, the length of the appointment was raised with the older candidates, in particular Judge Kollapen, who is almost 62 years old and, if appointed, would not be permitted to serve for the full period.
Who are the candidates that Ramaphosa has to choose from?
Judge Annali Christelle Basson
Basson’s experience as a judge began in 2007 when she was appointed at the Labour Court. In 2016, she was appointed to the position she currently holds as a judge of the North Gauteng High Court. At 59 years old, she is the only candidate with a background in academia, having previously worked at the University of South Africa.
One of her most noteworthy judgments was a 2016 high court case around the legality of mining rights in Xolobeni, Eastern Cape. Her decision that the community’s consent was required before mining rights were granted was a prominent discussion point in Basson’s interview.
For Basson, the Xolobeni case is the best illustration of her approach to the law and said she had “no hesitation” in stating her position as a judicial activist, as opposed to being conservative.
“I believe, in that judgment, I have demonstrated that I am sensitive to the needs of our country,” said Basson in her interview. “I am sensitive to the plight of our fellow citizens and the fact that there is still a lot of exploitation of minority groups and marginalised groups in this country.”
Basson also spoke at length about her empowerment efforts in the workplace, and more broadly in society. She also noted that she spent most of her life trying to “make access to justice a reality”.
When asked about the greatest obstacle to justice in South Africa, she responded:
“Inequality that still exists within our society.”
Judge Patricia Goliath
Goliath, 54, is the only candidate to have spent a full year acting on the Constitutional Court. She is currently Deputy Judge President of the Western Cape High Court.
In her April 2016 interview for the high court position, Goliath raised the issue of reserved judgments, which were not being handed down in a timely manner. This is a problem which still persists and was raised in her interview. However, Goliath was unable to comment as she has not been at the court for more than a year.
The main point emphasised by Goliath in her interview was her 15 years of experience as an attorney, 14 of which were at her own firm. She also has a strong background in criminal law, having presided over several high-profile cases – including that of Anene Booysen, a teenager in Bredasdorp who was raped and murdered.
Goliath said she had learnt from experience in cases where her judgments had been overturned and accepted the errors she made. This referenced a case around voting by secret ballot in a motion of no confidence against then president Jacob Zuma.
Judge Narandran Jody Kollapen
As a former head of the South African Human Rights Commission, Kollapen has a strong background in human rights law. The oldest candidate, at 62 years old, he has been a judge at the Gauteng Division of the High Court since 2011.
Kollapen has the least amount of experience, having been a full-time judge for less than eight years. He, however, argued his varied experience would be a benefit. Having worked in private practice, for human rights lawyers, a state organisation and now as a judge, Kollapen believes it has granted him wider exposure and different skills.
“I got a sense of the power of law to change society and transform the lives of people and my own ability to use my legal and other skills to that end,” said Kollapen in his interview.
He also noted that even without experience in a sector of law, it is possible to do research and prepare oneself. Kollapen said that he is not arrogant about his knowledge base and is “open to learning”.
One of Kollapen’s noteworthy cases was a 2016 majority judgment he wrote for the high court in an AfriForum case around the use of Afrikaans as the main language at the University of Pretoria.
Kollapen previously interviewed for a vacancy at the Constitutional Court in 2017. He was unsuccessful, with the spot being filled by Justice Leona Theron that year.
Judge Stevan Arnold Majiedt
Of the candidates, Majiedt, 58, has the longest legal career and the most experience as a judge. He practised as an advocate for 13 years before being appointed as a judge in May 2000. After serving as a high court judge for 10 years, Majiedt joined the Supreme Court of Appeal in 2010.
However, the length of his career meant that Majiedt acted at the Constitutional Court in 2014, several years before any of the other candidates. When asked if this five-year gap was a disadvantage, Majiedt responded that he had remained updated on issues at the court and believed that he “can make a contribution there”.
While acting at the court in 2014, Majiedt penned a unanimous judgment involving both domestic and international law. The landmark judgment found the South African Police Service was obliged to investigate crimes against humanity and torture allegedly committed in Zimbabwe by state officials.
After the issue of racial divisions at the Supreme Court of Appeals was raised by acting Supreme Court of Appeals president Mandisa Maya during 2017 interviews, it became a discussion point for all interviews conducted thereafter. Majiedt, who interviewed for a Constitutional Court vacancy in 2017, discussed tensions he had experienced.
This topic was once again raised and occupied a large portion in his 2019 interview, where he responded that “the problems are still there, but have improved a lot”.
Majiedt was also asked to revisit a dispute he had with Northern Cape High Court Judge President Frans Kgomo. Both parties had lodged complaints with the Judicial Service Commission citing “inappropriate and unconstitutional conduct”. The matter was settled independently by the two and has since been resolved.
“I regret that it’s still an issue and that it will always be a blot against my record, but I make no excuses for it,” said Majiedt. Although he emphasised that he did not regret standing up for his rights, but merely the way in which he handled the situation.
Judge Zukisa Laura Lumka Tshiqi
Tshiqi, 58, has about 14 years of experience as a judge, starting at the high court in 2005 before going to the Supreme Court of Appeal in 2009. She also acted in the Constitutional Court in 2015.
In the final and shortest interview of the day, Tshiqi described herself as “an all-rounder” who had dealt with matters from different fields of law over the course of her career.
As part of the comments submitted on her application, the General Council of the Bar of South Africa noted that Tshiqi had been involved in 216 cases and concurred in 85% of cases and written in 18% of judgments. The comment further noted that this showed a relatively small number of judgments and did not indicate expertise in any particular area of law.
Tshiqi responded by saying that she did not believe that was accurate. She was unable to answer specific questions with regard to her judicial philosophy, cases where she helped develop the law and ways in which to help improve the court system.
Judge Fayeeza Kathree-Setiloane
Kathree-Setiloane was the first person appointed to the judiciary from the Constitutional Court’s law research programme and, if appointed, would be the first Constitutional Court clerk to become a Justice at the court. She has been serving as a Judge at the Gauteng Division of the High Court since 2010.
In the most controversial interview of the day, Judge Kathree-Setiloane was given the opportunity to respond to various complaints raised against her.
During the course of the interview, Kathree-Setiloane was asked about a case involving MultiChoice in which she had been a scribe. Kathree-Setiloane had previously represented MultiChoice and failed to disclose the possible conflict of interest at the time. However, in her response, she said that MultiChoice had been her client nine years before the case and she felt it would not influence her judgment.
After the rest of the Commission had asked their questions, Chief Justice Mogoeng Mogoeng raised concerns about Kathree-Setiloane’s ability to work with others. He noted that there had been two separate instances where her conduct in the court had been brought to his attention.
“How you treat anybody points to your mindset on the rights people are entitled to enjoy,” said Mogoeng. “Everyone deserves respect and courtesy, it is within those parameters that these issues need to be discussed.”
The first instance occurred before Kathree-Setiloane had been officially appointed to act on the Constitutional Court. Mogoeng said that he was alerted that she had come to court, occupied chambers, demanded records and demanded a parking bay.
The other instance involved complaints that Kathree-Setiloane had come to court and had been “demanding” various things, again before she was officially appointed.
Mogoeng expressed his disappointment at this behaviour and said others in the court were “shocked” and “frustrated”.
In her response, Kathree-Setiloane said there had been miscommunication to her about the start date and that she had gone to see the court manager to clarify. She believes that she was in no way demanding and that the allegations put forth were untrue.
Separate allegations were also made against Kathree-Setiloane while she was acting at the Constitutional Court. During this time clerks alleged that she had “screamed or shouted at them” to the point where they had considered resigning. Another clerk, who had been feeling unwell, said that Kathree-Setiloane has refused the clerk the opportunity to seek medical treatment.
Kathree-Setiloane was also asked about why these complaints could not be resolved and had to instead be taken to the Deputy Chief Justice Raymond Zondo.
As each allegation was laid out, Kathree-Setiloane maintained that they were all false and that she had never received any complaints in her time as a judge.
She hypothesised that the reason complaints had escalated was that one of the clerks involved was the daughter of Supreme Court of Appeal President Mandisa Maya. It was most likely due to this that Judge Maya was unable to conduct the interviews and this was the source of her “possible conflict”. (The interviews had to be postponed on Monday after Judge Maya recused herself due to a possible conflict of interest.)
Despite her assertions that all conflicts had been resolved, with both judges and clerks at the Constitutional Court, Kathree-Setiloane was not selected as one of the nominations for the vacant positions.
It is now up to Ramaphosa to decide, although the exact date for this decision has not been set. DM