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SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR APPOINTMENT TO THE SUPREME COURT OF APPEAL, HIGH COURT AND LAND CLAIMS COURT APRIL 2015 INDEX TO THE REPORT PAGE NUMBER Submission and Methodology 3 Research report COURT CANDIDATE Supreme Court of Appeal Judge Nambitha Dambuza 8 Judge Nathan Erasmus 19 Judge Trevor Gorven 31 Judge Rammaka Mathopo 41 Judge Pieter Meyer 52 Judge Dimpheletse Moshidi 62 Judge David Van Zyl 73 Eastern Cape High Court Advocate Gerald Bloem SC 83 (Bhisho and Grahamstown) Advocate Richard Brooks SC 91 Mr Thembekile Malusi 98 Mr Lusapo Maseti 104 Advocate Selby Mbenenge SC 109 Advocate Namawabo Msizi 114 KwaZulu Natal High Court Deputy Judge President Achmat Jappie 119 (Judge President) Land Claims Court (Judge Judge Keoagile Matojane 128 President) Acting Judge President Yasmin Meer 137 Limpopo High Court (Judge Judge Nare Kgomo 145 President) Judge Frans Legodi 152 Judge Khami Makhafola 160 Judge Mampuru Makgoba 166 Judge Thokozile Masipa 173 1 Judge Legodi Phatudi 180 Judge Joseph Raulinga 188 2 INTRODUCTION 1. The Democratic Governance and Rights Unit (DGRU) is an applied research unit based in the Department of Public Law at the University of Cape Town. DGRU’s vision is of a socially just Africa, where equality and constitutional democracy are upheld by progressive and accountable legal systems, enforced by independent and transformative judiciaries, anchored by a strong rule of law. The mission of the DGRU is to advance social justice and constitutional democracy in Africa by conducting applied and comparative research; supporting the development of an independent, accountable and progressive judiciary; promoting gender equality and diversity in the judiciary and in the legal profession; providing free access to law; and enabling scholarship, advocacy and online access to legal information. The DGRU has established itself as one of South Africa’s leading research centres in the area of judicial governance. 2. The DGRU recognises judicial governance as a special focus because of its central role in adjudicating and mediating uncertainties in constitutional governance. The DGRU has an interest in ensuring that the judicial branch of government is strengthened, is independent, and has integrity. The DGRU’s focus on judicial governance has led to it making available to the Judicial Service Commission (JSC) research reports on candidates for judicial appointment, and to DGRU researchers attending, observing and commenting on the interviews of candidates for judicial appointment.1 Such reports have been complied for JSC interviews in September 2009, October 2010, April and October 2011, April, June and October 2012, February, April and October 2013, and April and October 2014. 3. The intention of these reports is to assist the JSC by providing an impartial insight into the judicial records of the short-listed candidates. The reports are also intended to provide civil society and other interested stakeholders with an objective basis on which to assess candidates’ suitability for appointment to the bench. In this submission, we intend to explain the methodology of the report, and make brief submissions on some issues we feel should be considered by the JSC in exercising its constitutional mandate. METHODOLOGY OF THIS REPORT 4. The report set outs summaries of the nominee’s judgments, as far as possible in their own words. We do not advocate for or against the appointment, and do not provide analysis or criticism of the judgments summarised. Our intention in doing so has always been to attempt to move beyond the often partisan and personalised debates surrounding the suitability of candidates for judicial appointment. Instead, we hope to further a deeper analysis of the criteria in terms of which judicial appointments are made, and enable stakeholders to assess how a candidate’s judicial track record matches up to those criteria. The report does not seek to advocate, explicitly or implicitly, for the appointment of any candidate. 5. We have searched for judgments on the Jutastat, LexisNexis and SAFLII legal databases. We have attempted to focus, as far as possible, on judgments most relevant to the courts to which 1 The reports are available at http://www.dgru.uct.ac.za/research/researchreports/ 3 candidates are applying. Regarding candidates for the KwaZulu-Natal and Limpopo Judge Presidency, we have attempted to focus on decisions that might bear in some way on leadership and administrative qualities, where such judgements are available. Therefore, in respect of some of these candidates, there may not be as wider range of cases presented as in the case of other candidates. 6. It is important to remember that this report provides a sample (we hope a fair one) of each candidate’s judicial track record - not a comprehensive summary of all their judgments. 7. In selecting judgments to include, we have continued to be guided by factors that have informed our previous reports. These include looking for evidence of the importance and ground-breaking nature of judgments; of independent-mindedness; of a depth of research and analysis; of the candidate’s capacity for hard work; and of the development of a candidate’s judicial philosophy. 8. We present the summarised judgements in thematic groups. Our aim in doing so is to try and make the report more accessible, and also to highlight more directly the candidates’ track records on issues which we believe are relevant to their suitability for appointment. 9. We have developed these thematic areas based on our observations of the JSC’s interviews, and on our own assessment of issues that are relevant in appointing judges to the court in question. We recognise that this process of categorisation remains a work in progress, and that it does not necessarily cover all the themes that may be relevant. There will also often be an overlap between different themes. The categories have in large part been informed by the judgements given by the candidates for these interviews, and may be varied in future reports. 10. The themes under which judgements are grouped are the following: 10.1. Private law; 10.2. Commercial law; 10.3. Civil and political rights; 10.4. Socio-economic rights; 10.5. Administrative Justice; 10.6. Constitutional interpretation (regarding structural provisions of the Constitution); 10.7. Environmental Law; 10.8. Labour Law; 10.9. Civil Procedure; 10.10. Criminal justice; 10.11. Childrens’ rights; 10.12. Customary law; and 10.13. Administration of Justice, within which we deal with issues such as the exercising of appellate functions and dealing with professional misconduct by members of the legal profession. 11. We list all of the categories we have identified – not all of which will necessarily be applicable to all the candidates in a particular session of interviews. 4 12. We hope that together, these themes will bring out a pattern that might be called a philosophy or theory of adjudication. We believe that analysing and engaging with a candidate’s “judicial philosophy” ought to be a central feature of the interview process. SUBMISSIONS REGARDING THE INTERVIEW PROCESS 13. In our submission for the October 2014 interviews, we offered some thoughts about what we believe to be some of the most significant general issues relating to the judicial appointments process. We do not intend to repeat these points here, but those points continue to inform our views on what, we submit, are questions of key importance for the JSC in carrying out its constitutional mandate. 14. In this submission, we confine ourselves to two points of a more procedural (but nonetheless, very important) nature: the time available for interested organisations to make submissions to the JSC; and the shortlisting process followed ahead of the April 2015 interviews. Timeframe for submissions 15. We raised this issue in our submission for the April 2014 interviews. We noted that there was effectively 3 weeks or less available for interested organisations to conduct research on shortlisted candidates’ judicial track records (as well as any other pertinent aspects of their background),disseminate that research to other interested stakeholders, and draft comments on their views on candidates’ suitability for appointment, based on that research. 16. We noted further that many organisations prepare carefully considered submissions within the time available, but submitted that the time available to prepare submissions is too short. We urged the JSC to take any steps necessary to its timeframes to allow for a longer time period between the announcement of the shortlist and the interviews taking place. 17. We submitted that such an increase a time would facilitate greater public participation in the judicial appointments process, especially by “grass roots” community organisations, whose clients are often regular users of the courts. We submitted further that it would also be to the benefit of the JSC, by facilitating the preparation of detailed and carefully considered submissions to place before the commission. 18. The relatively small number of candidates interviewed in the JSC’s October 2014 sitting meant that this issue was not as pressing on that occasion. For the current sitting, however, the amended shortlist of candidates was released on 11 March. The JSC secretariat requested that comments be received by no later than 27 March, a period of just over two weeks. The initial shortlist was released on 5 March. This means that a period of just over three weeks were available to conduct research into the initial sixteen candidates, and just over two weeks to conducted research into the additional seven candidates added to the shortlist. (Of course, as research on the initial sixteen would be very difficult to complete within a week, the last two weeks would involve research into significantly more candidates that the seven subsequently added to the shortlist). 5 19. We respectfully submit that this gives insufficient time to conduct adequate, in depth research into the judicial backgrounds of the candidates.

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