South Africa

JSC INTERVIEWS ANALYSIS

JSC plumbs new depths in Chief Justice interview derailed by anonymous rumours

Gauteng Judge President Dunstan Mlambo at his interview in Sandton on 3 February for the position of Chief Justice. (Photo: Felix Dlangamandla / Daily Maverick)

The quality of the JSC interviews for Chief Justice appears to be sinking to new lows every day. But Gauteng Judge President Dunstan Mlambo kept his cool despite what seemed to be a concerted campaign to derail his candidacy.

‘Thugs on the bench are being exposed now and waffling! It’ll be a travesty to recommend a thug for appointment as Chief Justice.”

This was the message tweeted by EFF deputy leader Floyd Shivambu while party comrades Julius Malema and Dali Mpofu SC — in their capacity as members of the Judicial Service Commission (JSC) — were grilling Gauteng Judge President Dunstan Mlambo in his interview to become South Africa’s next Chief Justice.

The tweet strongly supports what became evident early on in Mlambo’s interview: that Malema and Mpofu, with aid from a number of other JSC commissioners, had entered the day’s proceedings intent on damaging the judge’s bid for the Chief Justice position.

Shivambu posted the tweet while caught up in a separate legal universe. He was appearing in the Cape Town Magistrates’ Court, charged with the assault of a press photographer outside Parliament in March 2018. Shivambu is being represented by advocate Laurance Hodes, who is white — a point worth mentioning because on each consecutive day of JSC hearings thus far, Malema has issued scathing critiques of entities ranging from the government to Standard Bank for their failure to hire black legal representation.

Of course, the EFF’s ideological opportunism should surprise nobody by now. But it was still startling to see the ease with which Mpofu transformed from the man responsible for sexualising the sole female Chief Justice candidate on Wednesday, to a feminist justice crusader on Thursday.

He wasn’t the only one. The same commission which had given Judge Mandisa Maya an interview exposing some deeply troubling ideas about gender spent hours of Mlambo’s allotted interview time interrogating him about anonymous sexual harassment rumours introduced in a clearly calculated fashion by Mpofu and Malema.

Sexual harassment allegations are serious (at least, when it’s politically useful for them to be serious. The Freedom Fighters have historically shown far less alacrity over credible accusations of, say, gang rape within their own leadership ranks). The EFF duo spilled those allegations on to the JSC floor in the manner of a pair of arsonists pouring paraffin over a barn. They sparked the fire, and then sat back as it burned.   

When the flames were reaching their greatest intensity, Mpofu took the microphone again just to clarify that he, personally, did not believe Mlambo could possibly be guilty of sexual harassment — but he considered it his duty to allow Mlambo to tackle these rumours head-on.

Softball and sexist JSC interview does no favours to Chief Justice candidate Mandisa Maya

What happens when a man being interviewed for the head of the South African judiciary is suddenly accused live on national TV of being a sex pest? Chaos, obviously, which is the EFF’s optimum state of affairs. The judge in question can deny it, of course, but that counts for exactly nothing in a world where powerful men always deny such charges, and where women making these claims are finally, slowly, sometimes starting to be believed — as long as it’s politically useful, of course.

These allegations are nameless, faceless and numberless. They are, at that particular moment, smack-bang in the middle of interview proceedings, impossible to either corroborate or refute. There is not an affidavit, or an email, or a WhatsApp, or a single scrap of corroborating evidence produced to prove they exist.

The public was offered the opportunity to submit any objection they liked to the four shortlisted JSC candidates, and hundreds did. None, to our knowledge, mentioned sexual harassment claims against Mlambo.

What does that prove? Nothing. There are countless reasons why a woman in that situation might not want to put her claims into the open — not least because a senior member of the judiciary is potentially a scary enemy. All of it amounts to an unknowable vortex, a whirlpool of dark matter.  

What are the handful of JSC commissioners who are still trying to fulfil the actual duties of the commission — as opposed to using the platform merely to score public political points, or ventilate grievances against judges who have previously ruled against them — supposed to do with that information? How should the media responsibly handle those allegations? How should the public react, or the president, whose job it is ultimately to choose a Chief Justice whose reputation has to be regarded as unimpeachable?

Nobody knows. Least of all the JSC’s acting chair, Xola Petse, who allowed the commission to spiral ever further into chaos while Mlambo repeated his version steadfastly: “It’s an insidious, poisonous rumour with no truth in it.” 

Matters reached their most surreal nadir when commissioner Jenny Cane SC, who represents the Bar, proceeded to read out some of what she described as a “stream” of WhatsApps from judges and senior advocates out in the increasingly distant Real World expressing outrage about the kangaroo court in which Mlambo found himself. The idea that in normal circumstances a commissioner would be permitted to narrate group chats to the JSC as if quoting from the Constitution is ludicrous, but we were deep in the woods of Topsy-Turvy Land by now.

In response to Cane, Malema pointed out to the commission — fairly reasonably, by the hallucinogenic standards of the moment — that he too had received a bunch of WhatsApps, but presumably conveying the exact opposite responses to those of Cane’s fancy friends, and he suggested that he should read his messages aloud too. The JSC had officially devolved into a group of teenagers having brunch at Tasha’s.

The afternoon tea-break mercifully put the brakes on this fiasco, and by the time the JSC reconvened someone seemed to have reminded Chair Petse that he was supposed to be in charge of this shitshow. No more questions or answers about the sexual harassment rumours, Petse ruled, and their mention would be expunged from the official record of proceedings.

If Petse could have accompanied this pronouncement with the use of one of those memory-sizzling devices whipped out by the Men In Black crew to erase human recall of extraterrestrial encounters, this ruling might have meant something. As it was, the allegations will simply hang in the ether — though Daily Maverick, and doubtless other media outlets, will try to dig up the truth — and inevitably will become the primary association with Mlambo’s interview.

This is manifestly unjust, because if there was one point of calm in the eye of the storm, it was Mlambo himself — who somehow maintained a rock-steady, unflustered composure throughout it all. If the whole circus proved anything, it is that the Judge President would be a Chief Justice who is likely to hold his nerve in the face of intense pressure: a takeaway message that his would-be saboteurs forgot to factor in.

The source of the antipathy towards Mlambo in certain quarters — largely those aligned with the EFF and the RET faction — is that he is accused of being a “Thuma Mina” judge who reliably favours Ramaphosa’s administration in his courts. This was a charge repeatedly put to him, by Malema and Mpofu tag-teaming with commissioners Thandazani Madonsela SC and Mvuzo Notyesi.

Mlambo termed this generalisation “unfortunate and unfair”, citing two cases in which his court had ruled in favour of the Zuma administration, and one in which the court had thrown out an application by Minister Pravin Gordhan. He defended the charge that he had applied inconsistent jurisprudence when dealing with matters involving Public Protector Thuli Madonsela as compared with her successor, Busisiwe Mkhwebane, patiently spelling out the factual and legal differences between the cases.

He batted off the incomprehensible accusation by commissioner Madonsela that the judge could not be “at the vanguard of a Constitution you didn’t fight for” — in other words, that Mlambo’s Struggle credentials were in some way insufficient for a potential Chief Justice.

To summarise: Mlambo had to spend a lot of time disposing of balls of shit being lobbed at him in the hope that something eventually would stick.

It didn’t. And on the occasions where Mlambo was permitted to sketch his picture of what a judiciary under his leadership would look like, he was downright magnificent: detailed, pragmatic, and authoritative. Mlambo is already known as an administrative wizard whose overhaul of the Gauteng court system, and in particular the increasing digitisation of cases, is regarded as impressive by even his detractors. The prospect of this documented success at reform being extended nationally under a Mlambo judiciary is undeniably appealing.

Perhaps most refreshingly, however, Mlambo took a particularly firm stance on two vexed issues: consequence management for underperforming judges, and the unacceptability of attacks on the judiciary. His robustness on these topics made both his predecessors in the hot seat — Judge Mbuyiseli Madlanga and Judge Mandisa Maya — look weak and irresolute in comparison.

On the topic of Lindiwe Sisulu’s judiciary-targeted insults, Mlambo was definitive: “That’s not criticism. It goes far deeper than criticism. It’s offensive.”

Even allowing for the shambolic unravelling of his interview, many will feel that Mlambo has emerged as the most impressive Chief Justice candidate of the three assessed so far by some distance. Judge Raymond Zondo, taking the final interview slot on Friday morning, has big shoes to fill. DM

 

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All Comments 17

  • All impressive but Mlambo has the edge. The guy is rock solid. Malema Mpofu the chair and the one reading whatzapp app looked like a clown show.

    • agreed. Malema and Mpofu waffled and clearly are incapable of asking clear and concise questions always falling into a political statement rather than the critical role they had to play.
      surely this country has better people to engage on an issue so important?

  • Well written, Mlambo is so heads and shoulders in class above many of the low life’s he’s had to deal with.
    Shivambu currently in court for assault yet has the audacity to falsely accuse someone else of being a thug, thanks for pointing that out but exactly what one would expect from Shivambu.
    Lets see who ends up with a criminal record.

  • Another day of interviews for the next Chief Justice. And once again being lead by the the two M’s, Malema and Mpofu. Why they don’t change the name of the JSC to the Malema & Mpofu comedy show, I have no idea. The fact that the selection of the next Chief Justice is possibly the most important since the birth of a new democracy, simply seems to be a secondary thought. Political masquerading far more important!

  • There is always a question of conflict of interest thrown at Judges. How on earth are the two M’s allowed to sit on this panel when they are obviously the 2 most conflicted people in the room??(They are consistently being made fools of in court and are obviously more interested in getting a pliant judge appointed rather than someone who will apply the law) I can see Zondo ripping the pants off these two when he is interviewed. Its hardly the Judges fault that Mpofu keeps losing when he is trying to defend the indefensible. The two M’s should be removed and this can proceed in an orderly fashion.

  • Great article thank you. If he is as good as you say he is then just maybe there is some hope left for the judiciary in South Africa.

    • Can’t agree with you more. They are an embarrassment to SA citizens and the judiciary. Imagine what the international legal fraternity must be thinking, listening to their schoolboy talk. Zondo’s interview yesterday was even worse. Malema should have been thrown out of the proceedings. He behaved as though he was on a pre school playground.

  • One wonders if Malema and Mpofu would have raised the pretty well proven allegations of misconduct against Hlophe, their chosen candidate for Chief Justice, had Hlophe made it through to the interviews.

  • Who chooses the participants in the Chief Justice interviews?! This a seriously serious matter. So, who let in the self-serving clowns of Malema and Mpofu!

  • Shocking that this packet of m&m’s are allowed to turn such a critically important procedure into a “shit show” as the article rightly states!

  • Mlambo is indeed a very worthy candidate and deserves the appointment, but he will not be successful. The damage has been done and I believe the two Ms have achieved their object. The very
    mention of some possible sexual misconduct, however unlikely, by Mlambo is enough to kill any prospect he had of achieving the top job. Their attack on Zondo in relation to his “meetings” with Zuma will,I believe, not help him,and may well put him out of the race!! The JSC has a lot to answer for allowing Malema and Mpofu to do so much damage.

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