New-look JSC set for marathon round of interviews

On Saturday, a last-minute court bid to block the upcoming Judicial Service Commission (JSC) interviews failed, clearing the way for a marathon round of interviews to begin tomorrow.

The MK Party went urgently to court on Friday to prevent the interviews after the Western Cape High Court interdicted its parliamentary leader, John Hlophe, from participating in them.

Now an MP, Hlophe was impeached as a judge in March for gross misconduct. The JSC, by a majority vote, refused a request last week by the MK Party to postpone the interviews — triggering the party’s urgent court application.

In dismissing the application by the MK Party, Gauteng High Court judge Stuart Wilson said, “Dr Hlophe’s absence from the October 2024 sitting of the JSC is not merely justified: it is mandated by the [Western Cape] court’s order ... The JSC was accordingly correct to conclude it could lawfully proceed in Dr Hlophe’s absence.”

Though the JSC had to clear this litigation hurdle, its decision to press ahead was supported by an overwhelming majority of its members. Only one commissioner, EFF leader Julius Malema, disagreed, two independent sources said. This unity among the commissioners bodes well for the upcoming interviews.

The JSC is scheduled to interview an eye-watering 54 candidates for 26 vacancies over eight days. Each interview has been given a 50-minute time slot, but the JSC has in the past often exceeded the allocated times, with interviews running late into the night.

In court papers this week, the JSC said filling these vacancies now was “critical”.

The Supreme Court of Appeal (SCA), the second highest court in South Africa, had lost a number of experienced judges to retirement, said JSC secretary Mbali Mondlane. The vacancy in the judge president (JP) post at the labour courts was placing “greater pressure on the other judges”.   

The JP position in the Western Cape High Court has been vacant “for an extended period of time”, while the deputy JP post for the KwaZulu-Natal High Court has been unfilled since June last year.

In Gauteng, the busiest division of the high court, the JSC was looking to fill six vacancies in this round. But there were, in fact, 12 vacancies in the division, said Mondlane. The division was dealing with huge backlogs.

“Many people, especially the poor and underprivileged, depend on a properly functioning court system. The constitutional project itself depends on [a] judiciary that has adequate capacity and functions smoothly,” said Mondlane.

But the process to fill vacancies began badly when the JSC could not secure enough candidates to produce a shortlist for the Constitutional Court, which has had a vacancy open since October 2021. Even when the nomination deadline was extended to allow more candidates to come forward, not a single additional person did so. 

This round will be Mandisa Maya’s first set of JSC interviews as chief justice. Though no stranger to the JSC, having served for years as president of the SCA, Maya will have the difficult job as chair of keeping the interviews on course. While candidates should be rigorously scrutinised, their dignity should be respected and questions must be relevant, according to the JSC’s interview guidelines.

It will also be minister of justice & constitutional development Thembi Simelane’s first time at the JSC. On Thursday, her spokesperson, Tsekiso Machike, confirmed her attendance at the hearings.

Simelane joins the JSC along with another new commissioner, ActionSA MP Athol Trollip, who on October 1 laid a criminal complaint of corruption and forgery against Simelane over monies she allegedly received from VBS Mutual Bank-linked Gundo Wealth Solutions during her time as mayor of Polokwane. She has denied any wrongdoing.

Trollip said it was “a major concern” that the minister would be there “in light of the serious allegations of corruption she is faced with”. Though the constitution allowed the minister to send an “alternate” to the JSC, Trollip said he could not object to her presence “because the law and the constitution make provision for the minister of justice to be a member of the JSC”.

Seven new commissioners designated by parliament will sit in this round — four from the National Council of Provinces (NCOP) and, with Hlophe absent, five from the National Assembly. Of the nine MP commissioners, Glynnis Breytenbach, Malema and Kenneth Mmoiemang have served on the JSC before.

Because of the government of national unity (GNU), the political balance of MP commissioners has shifted. The constitution requires that at least three of the six commissioners from the National Assembly be members of opposition parties.

In the past, the ANC dominated parliament’s delegates to the JSC, but now the largest party in the National Assembly has just five MPs on the JSC, while other parties have four (five with Hlophe). And, despite being in the GNU together, the DA and the ANC have already differed on a JSC matter. While ANC MPs voted in favour of the motion that saw Hlophe designated a commissioner, the DA objected and then litigated to have the choice of Hlophe set aside. The litigation is ongoing, and it remains to be seen how the new diversity among the MPs will play out at the hearings.

The new delegates from the National Assembly are Trollip and ANC MPs Soviet Lekganyane, a former Mpumalanga MEC, and Fasiha Hassan, formerly in the Gauteng legislature and an early leader of the #FeesMustFall movement at Wits University.   

The new NCOP delegates are the ANC’s Refilwe Mtshweni-Tsipane, formerly the premier of Mpumalanga, the ANC’s Mwele Nonkonyana, provincial chair of the Congress of Traditional Leaders of South Africa (Contralesa) in the Eastern Cape, and the DA’s Nicholas Gotsell. Lekganyane and Hassan have LLB degrees, Nonkonyana is an advocate, and Gotsell is an attorney. Mtshweni-Tsipane was previously a commissioner in her capacity as premier.

Interviews for the SCA positions will begin on Monday. Six candidates are scheduled to be interviewed for three vacancies. Five of the six were interviewed for the SCA in the last round of interviews in May but did not get the nod.

The new candidate is KwaZulu-Natal High Court judge Mahendra Chetty, appointed to the bench in 2014 after nearly 20 years as the KwaZulu-Natal director of public interest law firm the Legal Resources Centre. Chetty is a well-respected judge known for his expertise in human rights law, said senior KwaZulu-Natal lawyers.

With just one candidate, judge Edwin Molahlehi, in the running to lead the labour courts, it is likely he will get the nod. On the other hand, there are seven candidates for JP of the Western Cape High Court, an unusually high number for such a post. 

The Western Cape High Court had for 23 years been led by Hlophe — until he was suspended in December 2022. Towards the end of his tenure, the division was reputed to be divided and unhappy. Divisions came to a head in 2020 when Hlophe’s deputy, Patricia Goliath, laid a wide-ranging misconduct complaint against him.

One of the allegations was that he assaulted a colleague, Mushtak Parker, in his chambers, an allegation Hlophe said Parker would deny. The dispute pulled in at least 10 of the other judges in the division, who wrote to Hlophe to say they would refuse to share a bench with Parker if he denied the allegations because he had told them Hlophe had indeed assaulted him. Parker is facing a judicial conduct tribunal in November.

Now Goliath is up for the JP post. As deputy judge president (DJP) for the last eight years, and as acting JP since Hlophe was suspended, Goliath must be considered a front-runner for the position. But it remains to be seen how her stand-off with Hlophe will affect her prospects.

Western Cape lawyers told the Sunday Times it was senior judge André le Grange, now acting DJP, who had worked harder to ensure the division runs efficiently on a day-to-day basis and to heal tensions — particularly to mend fences with the Cape Bar, whose relationship with Hlophe was at times fraught.

Another candidate with a lot of support is SCA justice Nolwazi Mabindla-Boqwana. Highly respected for her judgments in both the SCA and the Competition Appeal Court, Mabindla-Boqwana was considered Constitutional Court material, but has instead made herself available to lead her former division. Having been away since 2021, Mabindla-Boqwana would have the advantage of not being as mired in its factional divisions as the others.   

With the exception of Babalwa Mantame, appointed to the bench in 2013, the other three candidates have been judges of the Western Cape High Court for less than five years, making them less likely to get the nod.

The Western Cape JP interviews are scheduled for Monday October 14.

Over the course of a week and a half, the JSC will also look to fill several DJP posts — in the Land Court and the KwaZulu-Natal and Mpumalanga divisions — as well as vacancies in the Eastern Cape, KwaZulu-Natal, Gauteng, Western Cape and Limpopo divisions of the high court.