SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR THE JSC SITTING IN APRIL 2021 VOLUME 1: CONSTITUTIONAL COURT AND SUPREME COURT OF APPEAL 1 INDEX TO VOLUME 1 OF THE REPORT PAGE NUMBER Submission and Methodology 3 Research report COURT CANDIDATE Advocate Alan Dodson SC 12 Judge Fayeeza Kathree- 21 Setiloane Judge Jody Kollapen 31 Deputy Judge President 41 Aubrey Ledwaba Constitutional Court Justice Rammaka Mathopo 50 Judge Shenaaz Meer 58 Justice Mahube Molemela 66 Judge Dhaya Pillay 74 Judge David Unterhalter 83 Judge Bashier Vally 92 Judge Zeenat Carelse 100 Judge Jannie Eksteen 108 Judge Trevor Gorven 116 Judge Wendy Hughes 125 Judge Pete Koen 133 Supreme Court of Appeal Deputy Judge President [See page 41 Aubrey Ledwaba above] Judge Nolwazi Mabindla- 141 Boqwana Judge Elias Matojane 149 Judge Selewe Mothle 156 Judge Owen Rogers 164 Judge Sharise Weiner 173 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 the JSC interviews in September 2009, and for all further JSC interviews from October 2010 onwards. 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. 4. In this submission, we will repeat many of the submission made in our report for the cancelled April 2020 interviews, as well as making some new submissions in relation to specific circumstances arising in respect of the April 2021 and subsequent sittings. 5. Because of the very large number of candidates being interviewed at this sitting of the JSC, it has been necessary to divide this report into two volumes. Volume 1 sets out the records of candidates for the Constitutional Court and Supreme Court of Appeal. Volume 2 covers candidates for the High Court and Labour Court. This submission is also applicable to volume 2, although it is note included in the volume. THE DGRU’S WORK ON JUDICIAL APPOINTMENTS 6. The DGRU’s belief in the importance of the judiciary will be apparent from our vision and mission, as described in the previous section. Over the years, our focus on the judiciary has expanded beyond South Africa. We are recognised as a resource partner of the Southern African Chief Justices’ Forum and are involved with the UNODC’s Global Judicial Integrity 1 The reports are available at http://www.dgru.uct.ac.za/reports-candidates-jsc-hearings and http://www.dgru.uct.ac.za/research-reports-0 3 Network.2 We believe that these interactions have allowed us to develop a broader perspective on the appointment of judges, which we attempt to share with the JSC and other interested stakeholders as best as we can. 7. In South Africa, one of the major and most persistent issues that is raised regarding the appointment of judges concerns the transformation of the judiciary. The constitution requires that the judiciary be transformed. The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered by the JSC when it recommends appointment to the Bench. We submit that the transformation imperative does not relate only to numbers but must also include an examination of issues such as the judicial philosophy and life experience of candidates, to ensure that those who are appointed as judges are committed to the social and economic transformation of South Africa. 8. The Constitution also requires the appointment of judges who are appropriately qualified and fit and proper. We believe that the following criteria are relevant to determining whether a candidate is fit and proper: • A commitment the Constitution’s underlying values of human dignity, freedom and equality; • Independence of mind – the courage and disposition to act independently, free from partisan political influence and private interests; • The disposition to act fairly, impartially and without fear, favour or prejudice; • High standards of ethics and honesty; • A judicial temperament, which includes qualities such as humility, open-mindedness, courtesy, patience, thoroughness, decisiveness and industriousness. 9. To determine whether a candidate is appropriately qualified, we believe this includes a consideration of a candidate’s formal qualifications, experience and potential. Constitutional Court judges must be qualified not only in respect of the general body of law, but they must be equipped to give meaning to constitutional values – indeed, it may well be argued that this applies to all judges. 10. Our research reports consist of summaries of judgements written by candidates who are to be interviewed by the JSC during the meeting in question, as well as other material such as summaries of academic articles or public speeches by the candidates. Further details of the methodology employed in compiling the reports are set out in the next section. We believe that one of the most effective ways of assessing a candidate’s suitability for judicial office is to scrutinise how they have dealt with issues they would come across were they to be appointed as judges. 11. To this end, our reports present a sample of judgements which we have summarised, in order to show why and how they have arrived at a particular decision. As we make clear, we do not try to advocate for the appointment or non-appointment of any individual candidate. We hope that the members of the JSC will be able to use this research to identify issues that might 2 See https://sacjforum.org/ and https://www.unodc.org/ji/ for more information about these organisations. 4 be relevant to the suitability of candidates for judicial office, and to ask questions to establish that suitability. 12. We also comment on aspects of the process by which the interviews are conducted. A fair, as well as transparent, interview process is, we submit, essential for the legitimacy of the appointment and to public confidence in the judiciary. Based on our observations of the JSC interviews over a long period of time, our intention is to offer constructive suggestions which we hope can assist the JSC in performing its crucial constitutional role as well as possible. 13. We will briefly mention some of our observations of what we think are particularly important issues in ensuring a fair interview process. • Questions tracking publicly available criteria. We suggest that the criteria provided in sections 174(1) and (2) of the Constitution are quite broad, and it would be valuable for the JSC to agree and publicise supplementary criteria that would amplify the criteria found in the Constitution.3 These criteria could allow for sufficient flexibility, and could be revisited by the JSC from time to time. We think that undertaking this exercise would be particularly important for two reasons: first, it may assist commissioners in focusing their questions on the specific criteria that are being sought. This may well assist with some of the other issues we identify below. Second, if these criteria are published, potential candidates a clearer sense of what the JSC is looking for, and whether they fulfil those criteria. • Timing of interviews We have frequently observed significant inconsistencies in the length of interviews, with some candidates for the same position being interviewed for very different lengths of time. Of course, sometimes circumstances will dictate that one candidate may need to be interviewed for longer than another. But as a general principle, we think it is advisable out of fairness to the candidates and for the credibility of the process that candidates being interviewed for the same or a similar position should be interviewed for a broadly similar time. Interviews that take place long after they are scheduled to, and run late into the night, are likely to disadvantage both the candidates and the commissioners. • Substantively even questioning of candidates. This issue is closely linked to the question of timing. We have on occasions noted instances where candidates who are from similar professional backgrounds and applying for the same position, are interviewed much more or less rigorously than the 3 This process has been done before. For the supplementary criteria published in 2010, see https://constitutionallyspeaking.co.za/criteria-used-by-jsc-when-considering-judicial-appointments/ 5 other. Again, it is certainly true that the JSC must have flexibility and be able to respond to different issues that may be unique to certain candidates.