JSC recommends Ronald Hendricks, Denzil Potgieter and Vuyokazi Noncembu for high court positions
On the second day of the Judicial Service Commission interviews for vacancies in the judiciary, the commission said it would recommend the appointment of Ronald Hendricks as Judge President in the North West High Court, and Denzil Potgieter and Vuyokazi Noncembu for the two vacancies in the high court in Gqeberha.
On Wednesday, the Judicial Service Commission (JSC) said it would advise President Cyril Ramaphosa to appoint Judge Ronald Hendricks to the position of Judge President in the North West Division of the High Court.
The commission also said it would recommend Vuyokazi Noncembu and Denzil Potgieter for vacancies in the Eastern Cape High Court in Gqeberha.
Before the announcement, Hendricks was the only candidate to be interviewed for the position on Wednesday morning. Hendricks was grilled by the commission on the absence of a sexual harassment policy in the North West Division of the High Court.
Hendricks admitted that a sexual harassment policy was important and needed to be put in place.
“It’s a criminal complaint at the end of the day. If a complaint is sent to me, I will deal with it. There is no room for sexual harassment in the workplace,” Hendricks told the commissioners.
As to whether there had been any sexual harassment complaints, Hendricks said there had been none. Commissioner Doris Tshepe suggested that one of the reasons there had not been any sexual harassment complaints could be because there is no policy for reporting such complaints. Commissioner Kameshni Pillay said it was “alarming” to hear there was no sexual harassment policy in place.
“But if the complaint were about you, who would that be reported to?” asked commissioner Ettienne Barnard. “At the moment, it would be reported to the Judge President or any other judge,” said Hendricks.
Commissioner Thamsanqa Dodovu asked Hendricks whether an objection to his nomination was the same one raised in 2019, when he was being interviewed for his current position as the Deputy Judge President in the North West High Court.
The objections weren’t the same, said Hendricks.
“In 2019, it had to do with a meeting held by the Judge President in my absence, with [the defendant’s] former principal about his conduct. That was the gist of the complaint.
“Now, he complains that there’s a matter that was on an unopposed roll and because there was notice of intention to oppose, I postponed the matter to allow the other side the opportunity to file an answering affidavit. He complains that I was deliberately postponing the matter when it was trial-ready,” explained Hendricks.
When asked by Barnard to persuade the commission that “in future, under your leadership, the North West justice [system] will shine”, Hendricks pointed to a letter that the General Council of the Bar wrote that praised him for his leadership skills.
“My colleagues wrote about [my leadership skills]. I have their support… As a division, we will grow and deliver justice to all our people,” said Hendricks.
In 2005, Hendricks presided over a case where he had to ascertain whether an accused could be convicted of murder when the body of the deceased had not been found. No direct evidence was led and the State relied on circumstantial evidence.
Henricks convicted the accused of murder, finding there was no evidence to suggest that the victim was still alive. Commenting on this case on Wednesday, Hendricks said that he was proud of his work as “it gave me the feeling that I contributed to our jurisprudence”.
EASTERN CAPE VACANCIES
When Professor Rosaan Kruger was interviewed for one of the two vacancies in the Eastern Cape High Court in Gqeberha, commissioners repeatedly asked her about the limited experience she had as an acting judge.
Kruger told commissioners she had acted as a judge for 25 weeks and had practised as an attorney from July 2001 to September 2001.
Selby Mbenenge, Judge President of the Eastern Cape High Court, asked Kruger to comment on the concerns raised about her lack of practical experience. Kruger emphasised that her research and analytical skills would enable her to make a good judge.
“With my relevant experience in legal research, [my appointment] will bring a person to the Bench who hasn’t walked the traditional route. It is not my understanding that a judge’s position is that of an ultimate position, it’s about someone who dispassionately looks at the law,” said Kruger.
“The issue on my side is that you meet the basic criteria for appointment, but you definitely lack the necessary experience of practising as an attorney and as a judge,” said commissioner Nosiviwe Mapisa-Nqakula.
Kruger replied: “I take it you regard my 25 weeks as insufficient. To the best of my knowledge, I have performed the duties of a judge in accordance with the law. My understanding is it’s a whole host of things, not just the experience as a judge.”
Kruger, a Rhodes University law professor, told the commission that if she were appointed she would join the ranks of academics-turned-judges such as the retired Constitutional Court justices Kate O’Regan and Yvonne Mokgoro.
During Vuyokazi Noncembu’s interview, concerns were raised about whether she was a member of a political party while she was a judicial officer.
Noncembu clarified that in 1991, a year after she had completed matric, she joined a political party.
“I was actively involved in the political party. The following year [my membership] ended. At the time the membership was renewable annually. To me, without renewing it, it meant it was terminated,” explained Noncembu.
Noncembu started her legal career in 1999 as a prosecutor in eQonce and has since acted as a judge in the North West, Gauteng, and the Eastern Cape divisions of the high court.
Noncembu is currently the North West Regional Court President.
Commissioner Archibold Nyambi asked Noncembu about an objection against her nomination, which alleged that she was biased.
Noncembu said that the person who laid the objection was part of a case where he and 12 others were the accused in a criminal matter.
“When I arrived in the North West, the matter had long been there on the roll. My main concern with the matter had been it was long-standing on our roll. At times, accused persons would not all be in court, some would change attorneys, sometimes the fault was on the part of the State.
“As Regional Court President I decided to case-manage the matter until it was trial-ready. Then I would allocate a magistrate to deal with the trial. There is no merit to any allegations that I’m biased,” said Noncembu.
When Sandiswa Mfenyana was asked whether she considers herself an activist, she said: “From a legal point of view, as a professional, I do regard myself as an activist. I have a vested interest in the development of younger lawyers. That’s as far as I have been active in that sphere. As a judge, I don’t regard myself as a judge that subscribes to judicial activism.”
Over the past 23 years, Mfenyana has been a legal aid lawyer, a researcher, a compliance officer and a legal investigator at the National Intelligence Agency.
Commissioner Sesi Baloyi asked Mfenyana what lessons she had learnt during unopposed motions.
Mfenyana replied: “The lesson is that parties are at the court to assist the court. I have a duty to listen and hear them out. I need to engage the parties to some extent, with the view to understanding what bottlenecks there may be.”
Commissioner Thamsanqa Dodovu asked Mfenyana what challenges she faced as a woman in the profession. Mfenyana said the biggest challenge was “the assumption that women are generally incapable and that they come second to men”.
Mfenyana has served as an acting judge during numerous terms in the Eastern Cape High Court Division and the Gauteng High Court Division.
Mbulelo Nqumse has been a magistrate for 22 years. Chief Justice Raymond Zondo was curious as to why Nqumse hadn’t moved to another position. Nqumse said it was because there weren’t many positions he could have been promoted to and because he enjoyed the work he was doing.
For several terms, he has been an acting judge in the Eastern Cape High Court Division and the Gauteng High Court Division.
Mbenenge asked how Nqumse found his acting stint in Gauteng. Nqumse said when he was there it was the peak of Covid-19, therefore “the workload was reduced tremendously at that time. Now the work has picked up.
“In my last week at the North Gauteng High Court I was doing opposed motions of about 11 matters. Between February and now, I have delivered close to 10 judgments. It definitely did help hone my skills.”
Mbenenge asked Nqumse whether he would complain if he was appointed and had to preside over six opposed applications.
“When one is in the Eastern Cape, one is in a better position in terms of time compared to what I experienced in the North Gauteng High Court. Six applications is a ride on the cloud,” said Nqumse.
Denzil Potgieter has been practising law for 40 years. In 1996, he was appointed as a Truth and Reconciliation Commission (TRC) commissioner, where he sat on the Amnesty Committee.
Commissioner Kenneth Mmoiemang asked how Potgieter could assist in holding accountable those who didn’t get amnesty from the TRC.
“That’s a sore point for those of us who have done that work. But we have invested a lot of effort and resources in that exercise. We were meticulous to make sure that when we closed the commission that whatever we had in our possession would facilitate dealing with those cases. I had offered our assistance, to clarify anything, in order to help with that process going forward,” said Potgieter.
Potgieter said his judicial philosophy is about not approaching matters with a preconceived stance.
“I approach every matter with an open mind; I’m aware that you’ve got to be meticulously impartial. I need to determine the facts and the law and strive to dispense justice in the matter.”
Potgieter has been an acting judge in the Western Cape High Court, the Eastern Cape High Court and the labour courts intermittently since 2011.
He is also well known as the founding member of the Cape branches of the National Association of Democratic Lawyers (Nadel) and Advocates for Transformation.
Vinesh Naidu, who has 22 years’ experience as a legal practitioner, told the commission he is committed to serving Gqeberha.
“I have dedicated my life to my hometown… I have had lucrative opportunities elsewhere. It would be my greatest privilege and honour to be appointed,” said Naidu.
Premier Oscar Mabuyane asked Naidu what the biggest challenges courts in the Eastern Cape faced.
Naidu said there was a “great disparity” between previously disadvantaged members of the legal fraternity and those who weren’t previously disadvantaged. The biggest challenge is insufficient representation, said Naidu. The lack of representation was often seen in how municipalities rarely briefed attorneys who weren’t white.
“I endeavour to pursue social justice and equality for the rest of my life. These are qualities that I will bring to the Bench. It would be my greatest honour to serve my city and province.”
Naidu presided over the murder trial of Luthando Siyoni, who was accused of being the killer hired by Christopher Panayiotou, the husband of murdered teacher Jayde Panayiotou. Siyoni was charged with murder and conspiracy to commit murder.
Naidu found Siyoni guilty of murder.
In an objection submitted to the JSC, legal journalist Tony Beamish took issue with Naidu’s decision not to allow public broadcasting of the Siyoni trial and criticised Naidu for misreading the law on open justice, which requires that broadcasting be denied only in exceptional circumstances.
Naidu told the commission that the issue was that Beamish had refused to file an application for permission to film, despite being advised to do so. DM