SCANDAL: Judicial Service Commission member and EFF leader Julius Malema grilled Karthy Govender over a University of KwaZulu-Natal incident. Picture: TREVOR SAMSON
SCANDAL: Judicial Service Commission member and EFF leader Julius Malema grilled Karthy Govender over a University of KwaZulu-Natal incident. Picture: TREVOR SAMSON

INTERVIEWS to fill vacancies on the bench got under way in Cape Town on Monday with the Judicial Service Commission leaving open a position in the KwaZulu-Natal High Court, after three candidates — two senior counsel and a professor of constitutional law — failed to garner a majority of votes.

Speaking to the media afterwards, JSC spokesman Dumisa Ntsebeza SC said one of the concerns for the commission was the lack of gender representivity on the KwaZulu-Natal High Court.

There were also concerns about candidates’ lack of experience in criminal law cases during their acting stints.

Although it was an all-male shortlist, it was originally viewed as a strong one. But all three candidates — University of KwaZulu-Natal Professor Karthy Govender, and silks Ian Topping and Fazal Moola — also faced tough questions about their professional lives.

JSC commissioner and EFF leader Julius Malema closely questioned Govender about his role in the 2008 scandal at the University of KwaZulu-Natal’s law faculty after its dean, Michael Cowling, had misrepresented his qualifications. Cowling reportedly retired early without fully explaining how he had claimed to have LLM (Cantab) and M Phil (Cantab) degrees from the University of Cambridge, qualifications that Cambridge said he did not have.

Malema asked whether Govender had defended Cowling, calling him a "fraudster".

Govender said he had not defended Cowling, but at a public meeting had called for him to be allowed an opportunity to give his side of the story.

Questions were also raised whether Govender had enough acting experience on the bench, after his questionnaire disclosed he had only acted for brief stints in 2011 and 2015. Govender said he had been invited to act this year, but his responsibilities at the university had prevented him from doing so. "These are difficult times," he said, in apparent reference to the Fees Must Fall protests.

Moola was praised by commissioners for his experience, having been at the bar for 34 years, 17 as senior counsel. His broad-ranging practice was also praised.

But he was closely questioned about his temperament, following some negative comments from professional organisations about his interpersonal skills. He said it was true that he could be "feisty" as a lawyer in an adversarial legal system but that a judge’s role was different. He was "very aware" that public confidence in the judiciary was crucial, he said.

He was then called on to explain an incident in which a junior counsel had accused him of assaulting him with a golf club. Moola said he had "never assaulted anyone", but that he had picked up a golf club during an altercation with the junior, after the junior had broken a granite counter top in the advocates group’s building. The junior had a history of drug abuse and mental illness. He had gotten aggressive and was "clearly on drugs" at the time, he said.

Topping, an advocate since 1992, was grilled by Malema after saying he knew very little about marriage under customary law. Earlier, Topping had said a big influence on his life had been his formative years — spent on his parents’ farm, growing up with the children of the farm workers.

That was where he acquired his "working knowledge" of isiZulu, Topping said.

But Malema asked how he could claim to have grown up with people whose ceremonies he had never attended, saying this was "arrogance, bordering on racism".

Topping said he had left the farm at the age of 12 so perhaps "growing up" were the wrong words, but he maintained these were his childhood friends.

The JSC will interview four candidates for the Constitutional Court on Tuesday.

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