THE Judicial Service Commission (JSC) has announced its short list of candidates to be interviewed for appointments as judges, with four candidates vying for one appointment to the Constitutional Court.
Candidates for the highest court are Supreme Court of Appeal justices Ronnie Bosielo, Stevan Majiedt and Malcolm Wallis and Gauteng High Court Judge Jody Kollapen. This list may come under fire as the candidates are all male.
Former human rights commissioner and now Pretoria High Court judge Jody Kollapen was grilled by the Judicial Service Commission in Cape Town earlier in April.
It asked Kollapen whether his attitude towards human rights activism would not affect his judgments if he was appointed as a judge.
Commissioners also took him to task over a R90000 lawsuit he awarded two British tourists who were mistakenly arrested for being in possession of a stolen car. They also questioned him about a judgment he granted against the Home Affairs Department.
And the National Forum of Advocates opposed his nomination, citing his lack of experience.
Kollapen replied: “I am able to discern the nature of the job required of me. I have 14 months as an acting judge and I have been a practising attorney for 11 to 12 years. I’ve had to deal with trademarks, the National Credit Act, a whole range of issues.”
He said the judiciary had a role to play in the country’s transformation and alluded to the inaccessibility of the courts to the poor.
“Judges should remain human and uphold human dignity. A judge needs to be mindful of the enormous amount of resources it takes to get to court,” Kollapen said.
Kollapen was appointed to the high court in 2011 after heading up the South African Human Rights Commission. Of the candidates, only Kollapen has not acted on the bench of the highest court.
Having acted is not a requirement, but it is widely viewed as an advantage. Kollapen is known for taking a human-rights bent in judgments, even when they are not directly implicated.
In March the JSC had to re-advertise to fill the Constitutional Court post after failing to get enough nominations — part of a pattern that has developed where posts are either re-advertised or where there are just enough candidates to fulfill the requirements under the Constitution, which requires that there be three more candidates than the number of appointments to be made.
This time around the JSC has enough candidates, but only just. The commission also decided to fill only one vacancy, despite there being two vacancies in the Constitutional Court.
After a lot of criticism, the last appointment made to the Constitutional Court — Justice Nonkosi Mhlantla — was made from an all-female short list after a good deal of hard work by Chief Justice Mogoeng Mogoeng in inviting women judges to act at the highest court.
Bosielo has been interviewed for appointment to the Constitutional Court a few times before and in 2013 was one of the four recommended to the president, but he lost out to Justice Mbuyiseni Madlanga. He is the most senior of the candidates, having been appointed to the Supreme Court of Appeal in 2009.
Majiedt, appointed to the Supreme Court of Appeal in 2010, is most famous for being one of the panel of appeal court justices that found Oscar Pistorius guilty of murder, overturning the high court’s culpable homicide verdict.
While acting on the Constitutional Court, he penned the ground-breaking judgment that found that the South African police had a duty under international law to investigate allegations of torture by Zimbabwean police and emphatically rejected the argument that a good reason to refuse to investigate was the potential harm to SA-Zimbabwe political relations.
Wallis was appointed to the Supreme Court of Appeal in 2011, after two years on the High Court in Durban bench. At the Supreme Court of Appeal, he penned the judgment that confirmed that the government had acted unlawfully when it failed to detain Sudanese president Omar al-Bashir — wanted by the International Criminal Court for crimes against humanity — when he visited SA last year.
When he was acting on the Constitutional Court, Wallis wrote the unanimous judgment on the Tlokwe by-election, saying that the Electoral Commission had failed to live up to the high standards the Constitution imposed.