JSC walks the line between rigour and respect

Richard Mkhabela — recommended by the Judicial Service Commission (JSC) as a judge of the Gauteng high court on Thursday — worked as a farmworker after he finished primary school. “I needed money to go to high school,” he told the JSC. He got his junior certificate, but he couldn’t afford to go on to matric. So he went to work in the mines, at age 17.

He worked underground loading stone for almost six months “until an unfortunate incident when some of my co-workers lost their lives”.

“Then I asked the security people to show me where the security office was and I asked for a job there because I was scared to go back underground.” He worked in the mines between 1981 and 1993, until he went back to school to complete his matric. He then studied at Wits, got his LLB, went on to join the bar and was recommended for silk — the highest honour for an advocate — in 2020.

At the end of his interview, Gauteng judge president Dunstan Mlambo was asked if he could say something to the candidate. He said Mkhabela’s history reminded him “of a very painful part of my history”. At age seven, Mlambo’s father had refused to work on the farm where his family lived because he’d heard he could go to school. “And because of that the farmer evicted them from the farm. They spent the next two years being homeless,” he said.

“So that’s the chord you touch in me. You come from those roots and you are here today. I want to applaud you for that.”

However, during Mkhabela’s interview, Mlambo questioned him intensively, grilling him about delayed judgments during his time as an acting judge, asking for reasons for the delays and what would change if he was permanently appointed to the bench. Mkhabela said he had kept his practice going while on the bench, which was hard — it would be different if he did not have to juggle the two.

Mkhabela was one of six candidates recommended for appointment by the JSC to the Gauteng high court on Thursday. Its marathon round of interviews — 54 candidates scheduled to be interviewed over eight days — began with a tense atmosphere on Monday after a flurry of litigation by the MK party over its leader in parliament, John Hlophe, not being able to attend as a commissioner due to a court interdict. On Monday he resigned from the commission. But by Thursday, commissioners seemed more at ease and the commission had got into its stride. 

Mkhabela’s interview also illustrates something different about this week’s interviews: in the past, interviews have often been criticised for being either humiliating pile-ons or cringy, sweetheart affairs. There were exceptions, but this week the JSC mostly managed to question candidates rigorously yet still treat them with dignity.

This week the JSC mostly managed to question candidates rigorously yet still treat them with dignity

This was evident in the interview of Fort Hare professor Moses Phooko, who was roundly grilled by several commissioners about the way he had dealt with a dispute he had with the University of Johannesburg and a letter that Mlambo had received from the University of Limpopo about him.

Phooko told the commission his departure from the University of Johannesburg had not been amicable and he had taken to Facebook and X about his experience as a black academic. The university then instituted legal action against him and, while he thought the matter had been settled, he conceded that he had not informed the judge president (JP) when the settlement agreement was then made an order of court — the same court he was acting in as a judge.

He also accepted, after exchanges with commissioners Kameshni Pillay SC and Tembeka Ngcukaitobi SC, that he should have disclosed this in his JSC questionnaire and that his social media posts did “not paint a beautiful picture” for someone seeking appointment as a judge.

Phooko is a non-judge member of the Electoral Court (which comprises judges and non-judges). Supreme Court of Appeal deputy president Dumisani Zondi, who sits on the JSC in that capacity, is chair of the Electoral Court. Zondi was unaware of Phooko’s dispute with the University of Johannesburg and said: “I think the best thing for you to do is keep away from social media. Because, you know, it doesn’t give one an opportunity to think and reflect. You react to something immediately before you think about the consequences of what you are going to say.”

Ultimately, Phooko said he had considered what they had said: “JP, I have taken the advice on board. With those few words ... I withdraw my candidature.”

Phooko was reminded, by Mlambo, that it was Mlambo who had sought him out to act on the Gauteng courts and that his questions were not personal. “I hope you understand that I was duty-bound to the institution of the judiciary and to the court I lead that this engagement happened.” He said he hoped when he got in touch with him “to talk”, Phooko would agree to come.

Chief justice Mandisa Maya thanked him for his “honourable decision” and told him he could come back to the JSC. “Stay away from social media, young man,” she said.

Another candidate who got the nod on Thursday was senior counsel Etienne Labuschagne. Labuschagne’s and Mkhabela’s interviews illustrated a conundrum the JSC has long struggled to traverse: a busy practice signifies a good lawyer and good lawyers make good judges. Yet when a lawyer has a busy practice, they are often too busy to act as judges — they have expenses and obligations to clients, which they cannot simply drop. Or, when busy lawyers do act, they struggle to get their judgments done on time.

Yet the JSC measures readiness for appointment by acting stints — “judicial experience” — and judgment delivery times.

Labuschagne had delivered all his judgments timeously. But his recent acting stints were shorter — it emerged he had not recently done a full term as an acting judge. “I have a very busy practice and the overheads are such that to be away for three months casts a shadow over the next three months, it’s effectively being out of private practice for six months, it’s just too expensive,” he said.

This could have been treated as a disadvantage, but Mlambo suggested to him that what compensated was that his practice was predominantly, if not entirely, a high court practice. That both these silks were recommended in this round suggests the JSC took a less mechanical approach to resolving this difficulty, and it is likely to be welcomed by the legal profession.

Interviews continue on Monday with seven candidates scheduled to be interviewed for judge president of the Western Cape — a vacancy that has arisen due to the impeachment of Hlophe.