SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR APPOINTMENT TO THE CONSTITUTIONAL COURT, THE HIGH COURT AND THE LAND CLAIMS COURT APRIL 2020 1 INDEX TO THE REPORT PAGE NUMBER Submission and Methodology 4 Research report COURT CANDIDATE Constitutional Court Justice Nambitha Dambuza - 11 Mayosi Advocate Alan Dodson SC 21 Judge Jody Kollapen 31 Judge Majeke Mabesele 41 Justice Rammaka Mathopo 49 Justice Mahube Molemela 58 Judge Dhaya Pillay 67 Judge Bashier Vally 77 Gauteng High Court (For secondment to the Land Mr Pume Canca 85 Claims Court) Judge Zeenat Carelse 92 Mr Thomas Ncube 97 KwaZulu-Natal High Court (For secondment to the Land Claims Court) Judge Cassim Sardiwalla 102 Mr Bruce Bedderson 109 Mr Poobalan Govindasamy 113 KwaZulu – Natal High Court Ms Sharon Marks 118 Ms Lokwalo Mogwera 123 Advocate Ian Topping SC 127 Judge Shane Kgoele 133 Mpumalanga High Court (Deputy Judge President) Judge Sheila Mphahlele 138 Advocate Hein Brauckmann 145 Mpumalanga High Court Mr Bruce Langa 151 2 Advocate Thandoluhle 154 Mankge Advocate Ntombizanele 159 Ndlokovane Mr Takalani Ratshibvumo 164 Advocate Henk Roelofse 170 Ms Lindiwe Vukeya 174 North West High Court Advocate Nic Laubscher 178 3 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 set out the methodology of our reports, and make some observations on the JSC’s interview process, based on the October 2019 interviews. We will also offer some thoughts on the criteria that may be applied in evaluating the candidates for the Constitutional Court in particular. We begin by repeating the overview of our work on judicial appointments, as presented in our October 2019 report. THE DGRU’S WORK ON JUDICIAL APPOINTMENTS 5. 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 Network.2 We believe that these interactions have allowed us to develop a broader 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 2 See https://sacjforum.org/ and https://www.unodc.org/ji/ for more information about these organisations. 4 perspective on the appointment of judges, which we attempt to share with the JSC and other interested stakeholders as best as we can. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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 be relevant to the suitability of candidates for judicial office, and to ask questions to establish that suitability. 5 11. 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. 12. 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 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. But the effect should be that all candidates are subject to rigorous but fair scrutiny, in order to ensure that suitable appointments are made to the judiciary.