The issue of judicial governance was a touchy subject at Tuesday’s Judicial Service Commission’s interview of judge candidate Daniel Thulare, a Chief Magistrate in Cape Town.
Thulare came under scrutiny for comments that he made earlier in 2019 during the annual general meeting of the Judicial Officers Association of South Africa (JOASA). At the July 2019 meeting, Thulare, who at the time was president of the association, made statements referring to “an over-concentration of power in the hands of the Chief Justice”.
Speaking for the association, Thulare had stressed the need for a “symposium” and a reconfiguration of the judicial system, which excludes chief magistrates and regional court presidents from meetings of heads of courts convened by the Chief Justice, Mogoeng Mogoeng.
“There is no reason advanced as to why the current decision-making governance structure of the judiciary excludes the magistracy,” Thulare said at the AGM.
But his criticism that “heads of courts meet at the pleasure and invitation of the Chief Justice,” and his referral to the office of the Chief Justice as a “judicial kingdom” raised the ire of Mogoeng, evident from the exchange between the two at Tuesday’s interview.
But a bitter ending did not make for a bad beginning, and Thulare’s interview started out on a good footing.
In fact, it was Mogoeng, in his leading questions, who introduced Thulare and his wealth of experience in the magistracy, his leadership role as the Chief Magistrate in Cape Town since 2016 and his impressive migration from the magistracy into accepting the responsibility of an acting judge in the High Court.
“One recognises the responsibility and the privilege of having to serve one’s country as a judge — one does one’s best,” Thulare said in response.
However, it was Minister of Justice and Correctional Services Ronald Lamola, who addressed the elephant in the room when he asked:
“Do you think this commission should have an adverse view on you based on your view expressed as the President of JOASA?”
“It will be a sad day for RSA, Minister, if a message is sent by the commission assigned by the Republic to appoint judges to hold that expressing a view is career-limiting on an officer,” Thulare responded.
Then Thamsanqa Simon China Dodovu, member of the National Council of Provinces (NCOP) commented:
“From your articulations I pick up that… you challenge the current configuration of where the judicial authority is located… So my question is, what is the real problem with the current dispensation — what are the negatives about it?”
“The office of the Chief Justice is a national department as we speak. We are aware of the ideals, but we are talking to the law as it stands. The Chief Justice cannot and is not a head of a national department — he is the head of the judiciary of the Republic. He is the head of the Chapter 8 framework. He cannot be the head of a Chapter 10 institution where the office of the Chief Justice is concerned. So yes, there is a need for reconfiguration.
“We acknowledge that we are not holding the monopoly of wisdom on what the state of the judicial structure should be. We are saying that South Africa needs to start earnestly discussing this,” Thulare said.
While questions were briefly redirected and Thulare was asked for his input on the challenges and contributions to the modernisation and digitisation of the administration in courts, it was not long before attention returned to judicial governance.
The President of the Supreme Court of Appeal, Mandisa Muriel Lindelwa Maya, provided him the opportunity to confirm that this was, in fact, “his argument on the state of affairs”.
“It is correct that JOASA has raised concerns,” Thulare answered.
The interview drew to a dramatic close, with the Chief Justice announcing, “it’s my turn”.
“So I ask you again, is it true and is it correct that the judge presidents and the president of the SCA, judges and heads of court at that level, when they meet, they meet at the behest and the pleasure of the Chief Justice?”
Thulare responded, first by indicating his sadness that his interview for judgeship had been used to iron out the issues between the views of an organisation and the judiciary and then reiterating the need for a more inclusive, singular judiciary.
“Chief Justice, I think the greatest difficulty and omission is that participation of the magistracy in the governance structures of the judiciary.”
“I was concerned about your statements on the judiciary, the judicial kingdom and the over-concentration of power. I think these are unfortunate and I think they are not correct,” Mogoeng said.
“The unfortunate part I would agree with… I will close by saying I think there is a need for the leadership of the judiciary to engage with JOASA on all of these issues.”
In wrapping up the interview, Mogoeng appreciated Thulare’s clarity and boldness.
“I really like your boldness, keep it up, my only plea would be: check your facts before you speak publicly,” he said.
Following deliberations, Thulare was not nominated for a position at the Western Cape High Court. DM