Editor Volume 33, number 1 • April 2020 Franny Rabkin [email protected] Editorial committee Frank Snyckers SC (chair) advocateIphephabhuku labameli basemajajini baseNingizimu Afrika Mushahida Adhikari Mark Euijen SC Dzhenala ya dzangano la vhaadivokati vha Afrika Tshipembe Marilena Maddison Die Suid-Afrikaanse Balietydskrif • The South African Bar Journal Sandhya Mahabeer SC Kgatisobaka ya boadfokata ya Africa-Borwa Jean Meiring Jenali ya magwetha ya vaavanyisi van Afrika-Dzonga Lwandile Sisilana Craig Watt-Pringle SC (ex officio – GCB chair) BAR REPRESENTATIVES FROM THE EDITOR Cape: Dirk Coetsee Free State: Jacyn Mitchley eing a journalist can be a thankless business – everything is our fault (or Grahamstown: Thomas Miller Bthe fault of “The Media” as though we are all one thing); we get everything Johannesburg: Kutlwano Motla wrong, we are captured, we are Stratcom. KwaZulu-Natal: Carol Sibiya, Sarah Worse, sometimes we write stories about things that are horrible, or Pudifin-Jones and Nooreen Nursoo Namibia: Esi Chase sensitive. Sometimes we criticise people we generally admire. Northern Cape: Albert Eillert But while some people will hold it against you (seemingly forever in some North West: John Stander cases), not everyone. Polokwane: Nathi Gaisa The first time I encountered Willem van der Linde was at his first interview Port Elizabeth: Morné Olivier Pretoria: John Holland-Müter before the Judicial Service Commission. When I was canvassing anonymous views Mthatha: Vusi Msiwa beforehand on the candidates, he was spoken of – by almost everyone I asked – in the highest possible terms. His skills were lauded. His contribution and commitment to EDITORIAL INFORMATION transformation was praised by his black colleagues. Juniors looked up to him. Advocate is the journal of the General Council of the Bar (GCB). At the time I had never seen him on his feet in court and it was only later when I saw Except in the case of official press him argue for the GCB in the Mansingh case, about the conferral of silk, that I realised why releases or statements, published his advocacy skills were spoken of so highly. His address was excellent. as such, the views expressed by But that first JSC interview was a bit of a disaster. He got tied up about his membership individual contributors of articles and items in Advocate do not purport as a young man of the Ruiterwag – the youth wing of the Broederbond – and went to be the views of the editorial here and there, answering questions about it. When he did not get the nod, many of his committee of Advocate, or the official colleagues were outraged. views of the GCB, but remain the When I wrote about it, I said this was an instance where I could not fault the JSC’s views of the individual contributors. decision not to appoint him. This made some people angry. This applies also to the views expressed by the editor in her But he wasn’t angry. He was so gracious about it. After my column came out ahead contributions. of his second JSC interview, we literally bumped into each other with our breakfast trays. He made a point of greeting me politely and warmly, respectfully even; it felt genuine as Correspondence and enquiries relating to contents, contributions well. I was moved – in a way that perhaps only other journalists will understand. and advertising: I have read the tributes to him in this edition from those who knew him far better than The Editor, Advocate, me, and I am not surprised of their admiration. He is particularly special to us at Advocate, PO Box 786878, because he chaired our editorial committee for many years. SANDTON 2146 Van der Linde was, perhaps, one of those people who was not as good at the job 082 927 5536 Fax: +27 (011) 784 0182 interview as he was at the job itself. And appearing before the JSC is one of the most [email protected] gruelling job interviews ever. [email protected] As it happens, in this edition, the JSC is in the spotlight with a very thought-provoking Street address: Sandown Village, contribution from Supreme Court of Appeal Judge Azhar Cachalia criticising how the JSC 2nd Floor, Duma Nokwe West has gone about balancing the constitutional requirements for judicial appointments. 86 Maude Street, I don’t agree with Judge Cachalia on some of the views he has expressed, but I think SANDTON 2146 it is crucial that we debate this issue. And I hope we can do so on these pages going Subscriptions forward in the way that Judge Cachalia suggests – with more light than heat. It is such a Annual subscriptions R360 (VAT incl.) vexed topic that, for many years, people have avoided expressing their views publicly Advocate, PO Box 786878, – preferring to gossip and moan in corridors – for fear of being labelled or attacked. For SANDTON 2146 Judge Cachalia to do so now is the kind of moral courage we expect from our best judges. Tel: +27 (011) 784 0175 Fax: +27 (011) 784 0182 GCB chairman Craig Watt-Pringle SC has in his chairman’s contribution looked at E-mail: [email protected] the JSC from a different angle: why the advocates profession should contribute towards building the judiciary; and one of the ways it has contributed so far – through the GCB’s Website: http://www.sabar.co.za extensively researched comments on the candidates for judicial appointment. I have Design by HOND CC reported on the JSC for years and the GCB submission is the one document I desperately Printed by Hansa Print try to get my hands on ahead of interviews – to really know what’s what with the candidates. It is very important work and seems to assist the commission. ISSN 1683-2566 I have also, in my column, ranted about the JSC’s other role – judicial discipline (short © General Council of the Bar of South Africa version: not happy). A The editor contributes to Advocate as an autonomous author. The views she expresses are entirely her own, and do not purport to represent any view or position of Advocate or of the GCB. advocate in this issue: 3 Chair’s contribution The Bar’s contribution to the work of the JSC 7 GCB & National News 7 GCB Media Statement 8 GCB Media Statement 14 Bar News 14 Port Elizabeth Bar 15 Cape Bar 16 Johannesburg Bar 17 Free State Bar 18 KwaZulu-Natal Bar 24 Pretoria Bar 26 Forum: Denuding the Bench of skills: The Judicial Service Commission and the selection of judges by Judge Azhar Cachalia 29 Forum: Social justice and economic inclusion: whereto South Africa by Judge Dennis Davis 34 Forum: Meeting Arthur Chaskalson by Patric Mtshaulana SC 36 Forum: There was an Irishman and a Dutchman… by Judge Owen Rogers 38 Forum: Weighing evidence by M.A. Muller PhD 40 Forum: On probability and shortcuts by Willem de Bruyn 42 Tribute: Remembering Judge Willem van der Linde by André Gautschi SC 45 Reflections on litigation Part 2 by Jeremy Johnson 46 Law Matters by Franny Rabkin Mr Tin 48 Fly on the Wall chair’s contribution THE BAR’S CONTRIBUTION TO THE WORK OF THE JSC Craig Watt-Pringle SC, chair, General Council of the Bar of South Africa lsewhere in this edition of Advocate is an extract from an The increasing skills deficit in the apex courts, Justice Eaddress by Supreme Court of Appeal Judge Azhar Cachalia Cachalia says, is due in part to the JSC’s misinterpretation of to a Helen Suzman Foundation roundtable on the independence the requirement in section 174(2) of the Constitution of the and accountability of the judiciary, held in Cape Town on 4 Republic of South Africa, 1996,1 that the judiciary is to reflect December 2019, on the performance of the Judicial Service broadly the racial and gender composition of South Africa. Commission in relation to the selection of judges. His address The manner in which the JSC has interpreted and applied this was honest, forthright, insightful and troubling. requirement has on occasion led to worthy candidates falling The thrust of Justice Cachalia’s talk is mentioned early on: out of consideration, on the basis of unofficial race and gender “the JSC has, particularly over the last decade, quotas. Another important factor is the over-politicisation of the overemphasised race or other factors and paid less attention selection process in which the specialised skills of the candidates to skill and competence in the appointment process. This appear to play a minor role. approach does not accord with the proper interpretation of I was provoked, in the benign sense of the word, by the relevant provisions of the Constitution. The result is that Justice Cachalia’s address, to write on the topic of the GCB’s the judiciary has been denuded of skills. This has caused contribution to the important work performed by the JSC, before concern in the legal profession and the broader public. It is having to face the following reasonable question: If there is therefore important that the appointment of judges is once reason to be concerned about the JSC’s selection process and its again placed back on a proper constitutional footing.” outcomes, what is the GCB doing about it? As advocates we ought to have more than a passing interest The skills deficit is a common refrain echoed in the corridors in the quality and efficiency of the bench. Advocates may think of advocates’ chambers and elsewhere. The superior courts that they “sell” their time and legal expertise. If so, I would beg and particularly the Supreme Court of Appeal (SCA) and the to differ.