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Who’s up for the top judicial posts in the ConCourt?

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THE SHORTLIST

Who’s up for the top judicial posts in the ConCourt?

From left: Judge Dhayanithie Pillay / Judge Bashier Vally / Judge Muhabe Betty Molemela / Judge Narandran Jody Kollapen / Judge Fayeeza Kathree-Setiloane (All Photos: Judges Matter or Supplied)

A human rights lawyer, procedural law expert, a former military judge and deputy judge president are among shortlisted candidates who will walk into a judicial hearing room in April to be put to the test for top positions in the country's highest court. Daily Maverick republishes this article today - Monday 12 April - for day one of two days of sceduled interviews.

First published in the Daily Maverick 168 weekly newspaper.

The candidates who stand in line for two vacancies in the Constitutional Court are among the most experienced lawyers in the country. 

The ConCourt has historically been seen as the final step in dealing with Constitutional matters. “As the highest court in the country, judges of the Constitutional Court should have a range and depth of experience in the practice of law, and as a jurist,” says Chairperson of the Pan African Bar Association, Advocate Nasreen Rajab-Budlender. “In our view, a solid track record in the practice and adjudication of Constitutional Law is a prerequisite for the position.

“However, the issues dealt with by the Constitutional Court now traverse every aspect of law from commercial to labour to family law. Therefore, in our view, a judge of this court ought also to have extensive expertise and a proven track record over a wide range of areas of law.”

Among the things that the Judicial Service Commission (JSC) has been known to consider when looking for Constitutional Court candidates, is previous experience in leadership.

 

Among the 10 candidates shortlisted for the roles is Judge Aubrey Ledwaba, who is currently serving as an acting judge at the Supreme Court of Appeal. Lebwaba was appointed as a judge of the high court in Gauteng in 2005 and became Deputy Judge President of that division eight years later. Outside of his formal judicial work, Lebwaba has focused on the training of judges and has been a member of the International Association of Refugee Law Judges. 

In a 2015 speech titled “Reflections on Acting: What is required of Acting Judges” Ledwaba joked that those who wish to join the bench should do “some serious introspection”. 

“Make sure that you’ve paid your bond. And this is serious guys because it says one thing. When you are on the bench, you are not going to sign your cheque as you used to when you were an advocate or an attorney. And the money is not that good there … so you really need to make a serious introspection before you decide you want to be a judge.”

While Ledwaba’s comments received many laughs, they indicate an appreciation of the service aspect of being a judicial officer. He told the group of aspirant judges to “internalise” and “revisit” the oath that they take as legal practitioners. 

Readers who have kept a close eye on the Zuma spy tapes drama that unfolded over several years may recall Ledwaba’s name from the 2015 judgment which found that former NPA head Mokotedi Mpshe acted irrationally by dropping the charges against former president Jacob Zuma. 

“Mr Mpshe ignored the importance of the oath of office which demanded him to act independently and without fear and favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr [Leonard] McCarthy. Mr Zuma should face the charges as outlined in the indictment,” Ledwaba said when delivering the judgment

The full effects of that decision have yet to materialise ahead of Zuma’s appearance in court again in May. 

In 2019, Judge Ledwaba ruled in a case involving President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane. His ruling resulted in the sealing of the CR17 campaign records after Ramaphosa’s legal team argued that the records were obtained illegally.  

 

Durban High Court Judge Dhayanithie Pillay ruled that Zuma should apologise to fellow ANC stalwart Derek Hanekom. In making her ruling, she noted the growing intersection between politics and law.

“Lawfare is a consequence of the failure of dialogue and politics … it is a battle or skirmish in the overall war for dominance and control by one or other faction. The courts will resolve this dispute, but it would take much more to resolve the conflict,” she says in the judgment. 

Pillay ruled that Zuma should apologise to Hanekom and refrain from painting him as an apartheid agent. 

Judge Pillay’s understanding of power and politics goes back to her days as a human rights lawyer who also dealt with administrative law disputes. However, much of her career was related to labour law. She was among the drafters of the Labour Relations Act and clauses in the Constitution that relate to the Public Service Commission and Electoral Commission. 

She previously served as a judge of the labour court for a decade and was a part-time Senior Commissioner at the CCMA. She has lectured in international labour law at Seattle University and other institutions. 

Judge Pillay has previously applied for a position at the Supreme Court of Appeal and at the Constitutional Court but was unsuccessful. In the 2016 interview for the SCA, she was questioned about her lack of experience acting in the higher courts as well as some of the previous judgments which were overturned on appeal. 

“There are different approaches to any set of facts. Sometimes you can say there is a right and a wrong decision but sometimes you must say that there are different approaches,” she told former SCA Judge President Lex Mpati. 

 

Judge David Unterhalter  is what some might consider legal royalty – his father was Jack Unterhalter, a renowned lawyer who represented political prisoners during the apartheid period. While Unterhalter has an impressive legal career in his own right, the question of his privileged position was brought up when he interviewed for judicial office in 2017. Former justice minister Michael Masutha asked whether Unterhalter thought that his father’s reputation was significant in elevating him to the heights he achieved in his career. 

“My father was an extremely influential person in forming my views about law and what it could do. He spent a good deal of his professional life acting for people who were in different ways oppressed under apartheid. That was very much the legal family that I was born into. I don’t know that I’ve always lived up to everything that he did,” Unterhalter told the commission. 

Unterhalter was nominated by South Africa to the World Trade Organisation Appellate committee, which saw him adjudicate on international trade disputes. He also lectured law at Wits University and taught Masutha in criminology. Unterhalter has also lectured in competition and trade law, as well as constitutional and administrative law. 

He has acted on behalf of Ramaphosa, when as deputy president he was called to participate in the Marikana Commission of Inquiry, led by retired Judge Ian Farlam.

Despite a lengthy career as a lawyer he has only been a high court judge for three years, which is significantly shorter than other candidates. 

The Democratic Governance and Rights Unit, which compiles reports on candidates for judicial office, lists a case involving Ajax Cape Town player Tendai Ndoro as one of his notable cases. Ndoro was contracted to Ajax during the 2017 – 2018 season but also registered to two other clubs at the same time. The Premier Soccer League questioned whether Ndoro could play for more than two teams in one season. 

 

Alan Dodson SC is the only candidate who does not currently hold a position on the bench, although he served as a judge of the Land Claims Court for five years (1995 – 2000) before going to the United Nations Housing and Property Claims Commission for seven years. The commission’s work involved resolving property rights disputes in war-ravaged Kosovo.

Dodson has spent the majority of his career in the realm of property and human rights law and previously served as director of litigation at the Legal Resources Centre. His legal practice has also specialised in environmental law, labour law, and administrative and constitutional law. 

In 2019, Dodson represented the Association for Rural Advancement as they took their labour tenant case to the Constitutional Court. The association challenged government’s processes in ensuring that labour tenants were able to secure the appropriate rights, as envisaged in law. Claims by labour tenants who had occupied land before 1995 had to be lodged by 2001 and made their way through a bureaucratic maelstrom in the former land affairs department. The members of the association submitted their land claims applications timeously but the matters were never referred to the Land Claims Court.

“In response, the department admitted that labour tenant applications had not been proactively managed for a number of years. The department’s report of August 2016 later indicated the scale of the problem – nearly 11,000 labour tenant applications remained unsettled. In terms of sheer bureaucratic overload, this was a staggering figure,” Justice Edwin Cameron wrote in the judgment. 

Dodson’s argument led the court to uphold an earlier decision by the Land Claims Court to appoint a special master to assist the Department of Rural Development and Land Reform to clear its land claim backlog. 

 

Judge Bashier Vally started his career as a union negotiator and organiser for the Commercial, Catering and Allied Workers Union in the 1980s before moving into legal practice. Vally still remained in the realm of labour law, servicing as senior trainer for CCMA commissioners in the late 1990s into 2000s and later served as the chairperson of the Essential Services Commission. 

Vally has served as a high court Judge in Gauteng since 2012 and joined the Competition Appeal Court in 2018. Vally was appointed to the competition court after a tough interview in which he clashed with the court’s Judge President Dennis Davis. 

During the interview, Chief Justice Mogoeng Mogoeng asked about Vally’s sense of the state of corruption, particularly as it relates to the role of business. Mogoeng noted that the regulatory framework doesn’t seem to deal with corporate corruption with the harshness that mirrors the public outcry about such matters. 

“The (corrupt) practices are incredibly difficult to prove. And sometimes we just do not have the capacity to unveil them. That’s the impression that I get. So you do have a fair number of people getting away with practices that they should not be getting away with… There’s so much secrecy and confidentiality involved in many of these things that it’s hard to expose them and deal with them firmly,” Vally said in the interview. 

 Despite eventually being appointed, in 2018 he had a tense exchange with Competition Appeal Court Judge President Dennis Davis. Chief Justice Mogoeng Mogoeng had to intervene. Davis said he was curious about Vally’s “concept of collegiality” since he had written a number of dissenting judgments in cases where he disagreed with other colleagues at the court. 

“Are you suggesting, and I’d like you to be upfront Justice (Davis), that I’m not collegial? Then you’ll have to give me examples. The fact that my judgments come out differently, they are there for the public to see, they’re there for the commission to see, they’re there for the tribunal to see. We have differed on points, I’ve argued my points. I don’t know if you’ve had enough conferences, you’re the presiding judge. 

Vally was the judge in the court case brought against the government after Grace Mugabe was accused of assaulting three South African women. The case questioned the extent of diplomatic immunity and Vally found that the decision by the Minister of International Relation to recognise Mugabe’s immunity at the time and allow her to leave South Africa, was inconsistent with the Constitution.  

 

Judge Muhabe Molemela admits that she was once considered a “rose among the thorns” when she started her career as an attorney in the Free State. The former prosecutor and military judge says that at the outset of her career she faced stereotyping. 

“Work was allocated to me but I soon noticed that it was just from one stream. Family law matters, collection matters and so forth,” she said in her interview for the Supreme Court of Appeal in 2018. Briefing patterns for women lawyers and inherent sexism were among the features of her interview and these very questions could once again come up, as the gender balance on the judiciary remains an important issue in the legal fraternity. 

The Pan African Bar Association has noted: “The list contains several very strong applicants with excellent track records as judges and sound knowledge of the Constitution. Appointments to the Constitutional Court should broadly reflect the demographics of South Africa, with particular attention to gender and race.” 

Molemela says there are numerous commitments to ensuring women get a larger share of legal briefs, but told the JSC that this had not happened by 2018. 

The Democratic Governance and Rights Unit at UCT has compiled a report on some of the notable judgments of the candidates up for various positions in April. The organisation listed a judgment that provided clarity on whether interpreters are allowed to read the oath to witnesses, as opposed to a judicial officer, as one of Judge Molemela’s notable judgments. She found, along with other SCA judges, that with oversight this was allowed. The decision resulted in five people convicted of aggravated robbery remaining behind bars. 

 

Judge Rammaka Mathopo is another judge of the Supreme Court of Appeal up for a ConCourt post. Judge Mathopo served as a high Court judge for 9 years before joining the SCA in 2015. While at the high court, he ruled in a case relating to the Zuma spy tapes which has in part paved the way for the former president to have his day in court. 

He ordered then Acting National Director of Public Prosecutions Nomgcobo Jiba to provide the recordings and transcripts of conversations referred to by the former NPA hear Mokatedi Mpshe when he formally withdrew fraud and corruption charges against Zuma in 2009.

He found that the transcripts would aid in determining the rationality of the decision to drop the charges against Zuma, an issue that came before Judge Ledwaba, who is also contending for a ConCourt post. 

In another decision taken while Mathopo was acting as a ConCourt judge, he considered whether the doctrine of common purpose can be applied in a rape case. The doctrine is usually applied in complex commercial crimes. 

Judge Mathopo noted: “It is necessary that the relationship between rape and power must be considered when analysing whether the doctrine applies to the common law crime of rape. To characterise it simply as an act of a man inserting his genitalia into a female’s genitalia without her consent is unsustainable. In instances of group rape, as in this case, the mere presence of a group of men results in power and dominance being exerted over women victims.” The court concluded that the doctrine of common purpose does apply to rape. 

 

Judge Jody Kollapen is a well-known human rights lawyer, having served as the Commissioner at the SA Human Rights Commission from 1996 to 2001 and later spending seven years as the chairperson of the commission. Kollapen had also worked for Lawyers for Human Rights, one of South Africa’s leading pro-bono human rights litigation units. He was involved in the organisation’s political prisoner release programme that helped to negotiate the release of several prisoners held under apartheid. 

In 2019 he interviewed for a position at the ConCourt, Chief Justice Mogoeng noted that Kollapen was “quite visible” in his role as SAHRC chairperson, and appeared to be someone who “couldn’t allow himself to be contained by ties and suits”. 

“The work of the commission at that time, particularly around the work of equality and non-discrimination was important in sending out a message to South Africans that the Constitution was meant to be inclusive…It had to make space for everybody, even recognising the right to be different. That wasn’t easy because we were a society that largely developed separately. We wanted equality for everyone that was like us but if someone was different from us, then we didn’t,” he told the commission at the time.

Kollapen also applied for a ConCourt post in 2017, and in that hearing told the commission that his mother was jailed when she was 20-years old.

“One grew up in an environment that exposed one to the injustices of the time,” he said.

Kollapen has served as a high court judge from 2011 until now and presided in the 2019 application for a permanent stay of prosecution in the Ahmed Timol case. Kollapen, along with two other judges, found that the delay in prosecuting the crime was not unreasonable which opened the case up for hearing. 

More recently, he awarded half of a R15-million estate to the grandmother of a boy with cerebral palsy. The judgment has been hailed as a landmark ruling as it has challenged the conventional legal definition of parenthood. 

 

Judge Fayeeza Kathree-Setiloane has also applied for a ConCourt position in 2019. Her legal career began at the Constitutional Court, serving as a clerk of the court for Justice Yvonne Mokgoro on the first-ever bench of the court.

“It was so amazing to be at the Constitutional Court on the very day that it was opened by president Mandela at the time. It was an experience that I just can’t describe. It was just a beautiful time and to be there for the first cases, to be part of that very historic year of the court was so important for my development as a lawyer,” she said at the outset of the 2019 interview. 

Judge Kathree-Setiloane also spoke of her involvement in “politics of the bar” through the National Association of Democratic Lawyers. 

“Black women and men were just not getting the commercial work. They were getting work from the State Attorney but they were just not getting the big commercial work. I think black women and women generally were the most disadvantaged because they had to make do with family law practices,” she said. 

In an article reflecting on her 2019 interview, civil society organisation Judges Matter noted that despite a pleasant beginning, the interview was characterized by controversy as the Chief Justice later questioned Judge Kathree-Setiloane about her behaviour when she came for an acting sting at the ConCourt.  

Mogoeng said he was “shocked” by reports that she arrived at the court “demanding parking” and access to records before her official appointment letter was signed by the president. 

“It troubled me and it troubled colleagues,” he said. 

Kathree-Setiloane said Mogoeng had been misinformed and explained that she was simply eager to get to work. 

“I went very humbly. I’m sorry, I didn’t demand any parking. I was trying to establish what the situation was. And it’s based on my experience when I’m a labour appeal and Supreme Court of Appeal acting judge…This was really just a query.”

Mogoeng also asked Kathree-Setiloane about allegations made by some clerks at the court that she had shouted and screamed at two female staffers. She denied the allegations saying there had been an “exaggeration” from those who relayed the story and that the matter was dealt with by Justice Raymond Zondo. 

“I demanded an inquiry. I said, Judge Zondo: ‘I’m a young judge, I’m not in the appeal court yet. I’m not in this court yet. This thing will resurrect itself and visit me sometime later. And it’s going to destroy my career. And I cannot allow that to happen … Judge Zondo said ‘Fayeeza these are just misdirected young girls. They are misguided … He said even her mother is going to give her a scold about it. Do not worry about it, it is sorted out,” she said. 

Mogoeng later revealed that one of the women involved in the incident was the daughter of the judge president of another court. At the time, the commission had received several comments from those in the legal fraternity about Kathree-Setiloane’s role in this alleged incident.

In 2015, while at the high court, Kathree-Setiloane ruled in an important matter asserting the independence of the Independent Police Investigative Directorate. She overturned the suspension of former IPID boss Robert McBride after he was suspended by then police minister Nathi Nhleko. Her decision was later upheld by the Constitutional Court.

*WITHDRAWN CANDIDATE

A 10th candidate, the current acting judge president of the Land Claims Court, Judge Yasmin Shehnaz Meer, withdrew her application on 8 April 2021. 

She has headed the court since 2012 and was one of the first judges to be appointed to the Land Claims Court in 1996. 

In a 2015 interview, Meer said that the challenges of working at the Land Claims Court were “significant”.

“Producing evidence is always difficult when you have unsophisticated claimants and they are claiming for land that was dispossessed way back in 1913. Often the people who claim are the descendent of people who were dispossessed, so they might not have easy access to evidence,” she said.  

The court is a permanent circuit court, meaning that its hearings are held in “unconventional venues” around the country. 

Judge Meer also serves as a Judge of the high court in the Western Cape. 

Her judgment in the My Vote Counts case opened the door for information around political party funding to become public when in 2017. She found that sections of the Promotion of Access to Information Act were “inconsistent with the Constitution and invalid insofar as it does not allow for the recordal and disclosure of private funding information.” She gave the government 18 months to amend the legislation. The Constitutional Court later agreed with her judgment. DM168 

The JSC will interview Constitutional Court candidates over two days starting Monday 12 April 2021.  During April, the commission is interviewing for 30 positions in all, ranging from the ConCourt to the high court. See the following article: It’s a big year for the judiciary.  Here’s why you should be paying attention 

Dianne Hawker is a legal journalist and News Editor at Newzroom Afrika. 

* Note: This article was updated on 11 April, 2021, after confirmation was received that Judge Meer had withdrawn as a candidate.

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.

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