Is there any point in giving someone a promotion if they have less than a year left until their mandatory retirement?

This was the issue that dominated the Judicial Service Commission (JSC) interviews on Tuesday morning, as one of Gauteng’s most senior judges put his hat in the ring for an appointment to the Competition Appeal Court.

“After a career spanning over 50 years in the legal profession, Judge Brian Spilg is now the most senior judge at the Gauteng high court in Johannesburg (ranking just below the Deputy Judge President),” wrote legal watchdog Judges Matter ahead of Spilg’s JSC interview.

With Spilg’s vast experience and track record of groundbreaking judgments — for instance in Vodacom’s “Please Call Me” invention case — one might have thought his ascent to the Competition Appeal Court, which is in desperate need of judges, was a foregone conclusion. But few things are certain in the hands of the JSC — even a JSC that this week is functioning relatively smoothly and courteously.

Mandatory retirement age in the spotlight

There are firm limits on the amount of time one can serve as a judge in South Africa, which has the benefit of preventing judges from dying on the Bench, as sometimes happens in the US. Retired South African judges are also rarely put out to pasture permanently, as there is a constant stream of commissions of inquiries that need chairing.

But the issue of whether it is right to appoint a judge to a higher court who is reaching the end of his or her judicial service recurs frequently at the JSC. In fact, it was a potential sticking point around the candidacy of the current Chief Justice, Raymond Zondo, who will have to retire around August 2024 — less than three years after taking the role.

It is rare to have as extreme a case of this as was presented by Judge Spilg on Tuesday, however. Although Spilg initially suggested he would have to retire on 1 June 2024, judiciary researchers informed Zondo in the course of Spilg’s interview that the real retirement date was 22 March 2024.

Given that President Cyril Ramaphosa often takes his time in making appointments official even after candidates have been nominated through other processes, this would mean that Spilg could plausibly be left with only a few months in which to try to make his mark as a judge in the Competition Appeal Court.

It was clearly a sensitive issue for Spilg, who referred self-deprecatingly to his “shelf-life” and “sell-by date”.

JSC Chair Zondo summed up what appeared to be a prevailing sentiment among commissioners, however, when he asked: “What public purpose would be served by recommending you [to the Competition Appeal Court permanently] when you can continue acting there?”

Spilg’s response: “Fairness of treatment.” 

Hitting back at the idea that “I am now regarded as expendable”, Spilg said that he had previously been unsuccessful in this application before the JSC, and cryptically referred to a reason he had been given for his candidacy failing, without elaborating.

“Right from when I was made a judge, I asked to be considered [for the Competition Appeal Court],” Spilg said.

The judge also suggested that within a short time period he could still make a mark, pointing out that he had done so in a similar span at the Land Claims Court.

Dereliction of judicial duty?

Spilg would have entered his JSC interview expecting some pushback on the retirement issue. His hearing took an unexpected turn, however, when commissioner Kameshni Pillay asked the judge to respond to an objection to his candidacy submitted to the JSC relating to his failure to finalise a recent case.

The matter arrived before Spilg at the Johannesburg High Court in 2020, involving evictions and demolitions by the City of Johannesburg. One of the parties had complained to the JSC that some three years later, they were still awaiting Spilg’s judgment.

What set the cat among the pigeons at the JSC was Spilg’s admission that after an initial hearing, inspections of the site in question and then further arguments before him, the judge had taken no further action on the matter as it was his “understanding” that the parties involved had “resolved” it.

Judge Zondo, normally one of the most gentle JSC questioners, grew visibly agitated in the course of a to-and-fro with Spilg about his handling of the matter, arguing that the only way for a court matter to reach resolution was through a judgment, a settlement or a withdrawal from one of the parties.

In this instance, Spilg confirmed that none of the three had occurred — but said in his own defence that he could not recall the details of the matter, and added that it had happened in a week with “27 urgent matters” on his court roll. 

Zondo was not placated.

“I’m surprised that you handled this matter in the manner in which you handled it, Judge Spilg… In my view, a very junior judge, an acting judge, would know that if parties have argued a matter before him or her, a judgment is required from him or her unless the parties have resolved the matter and have told them that, and preferably have put it in writing [as] a settlement agreement,” Zondo told Spilg.

The Chief Justice added, in reference to concerns expressed by other commissioners over the issue: “Look at all the controversy it has raised!”

Lack of competition law expertise a major issue

Before the day’s interviews began, JSC commissioner and IFP MP Narend Singh expressed concern about the fact that the body had received just two applications for five vacancies on the Competition Appeal Court.

On a number of occasions during the morning’s interviews, commissioners raised the issue of the lack of South African expertise in competition law and the resulting shortage of judges with the requisite skills.

Interviewing the only other candidate for the Competition Appeal Court, Judge Gcinikaya Nuku from the Western Cape High Court, commissioners sought reassurance that he had enough expertise in this area.

JSC member Jenny Cane SC asked Nuku to give the body a sense that “you know about the major debates in competition law”, and received a weak response citing a section of the Competition Act.

Judge Spilg, too, seemed to falter when directly questioned on technical aspects of competition law, receiving a grilling from commissioners Tembeka Ngcukaitobi and Clement Marumoagae on his understanding of certain concepts in the Competition Act. The judge said although he could not recall the relevant clauses offhand, he could simply google the relevant law.

At a media briefing later on Tuesday, JSC commissioner Sesi Baloyi told journalists that Nuku, but not Spilg, would be recommended to Ramaphosa for appointment to the Competition Appeal Court — meaning that four permanent positions on that Bench will remain vacant.

It is not just this court that is affected by a shortage of applications. Arguably more worryingly, the Constitutional Court and the Electoral Court are also suffering the same problem.

Baloyi said that the JSC was concerned about the “thinness of candidates” in general.

“I don’t know if there’s any better way of doing it — other than to implore and appeal to people to avail themselves for these positions,” the advocate said. DM