Gcina Malindi
Gcina Malindi

THE Judicial Service Commission (JSC) has recommended for appointment all three of the women who applied for positions on the Gauteng High Court bench, but overlooked senior counsel Gcina Malindi and Takalani Madima, which may raise eyebrows.

The Gauteng courts are the country’s busiest and biggest divisions and had lagged behind in gender representivity. They have been steadily turning the corner, with more and more quality women candidates coming forward.
However, Malindi, a respected leader of the bar, and Madima were the first black silks to avail themselves for appointment in years.

After nearly two hours of deliberating behind closed doors, the JSC announced that it has recommended attorneys Leicester Adams, Mpostoli Twala, Namhla Siwendu, Labour Court Judge Edwin Molahlehi and senior counsel Denise Fisher and Ingrid Opperman for appointment.

The choice of Molahlehi, a respected judge and veteran labour lawyer, was unsurprising. But none of the male senior counsel were appointed despite four coming forward. The fact that the black silks among them did not get the nod is likely to be a hot topic as judges president routinely implore senior advocates to come forward, in particular black silks.

While the JSC does not give reasons for its decisions, Malindi was extensively questioned on his history of political activism and his long-standing membership of the ANC. Though Malindi told the commission that his ANC membership had lapsed in February and that he would judge according to the oath, commissioner and EFF leader Julius Malema suggested this was too short and that his appointment could give rise to a perception that he was a deployee. Malindi was part of the ANC’s prosecutorial team in Malema’s disciplinary tribunal, which led to Malema’s expulsion in 2012.

Madima was grilled about two judgments that were long delayed when he was an acting judge — one for a year and another for nine months. His comment that it was harder as an acting judge because he had to keep half his mind on his practice was looked on dimly by the commission.

All the female candidates were recommended for appointment.

Siwendu, a director at Cliffe Decker Hofmeyr, began her legal career in 1992 as a fellow at the Centre of Applied Legal Studies. In 2012, her firm Siwendu and Partners merged with Cliffe Decker, where she became a partner. In her interview on Wednesday, Siwendu said that having women on the bench could make a difference to its jurisprudence, referring to the case of Volks v Robinson where the two female justices of the Constitutional Court, Kate O’Regan and Yvonne Mokgoro, took a contextual approach to the case, while the male majority decided it on the basis of contractual principles.

Fisher, praised during her interview for her mentoring of junior advocates over the years, spoke of how in her early days at the bar she did not get the calibre of work that male advocates got, but that things were improving on that score. On race, she said there was some way to go. It was “lamentable” that at this point in history, it was still necessary to adopt rules such as the three counsel rule — a rule recently adopted by the Johannesburg bar that there be three or more advocates in a team and at least one should be black.
Fisher said one of the biggest hurdles to a career at the bar was poverty, adding that she knew of pupils who had slept in their pupil-master’s rooms, washing out their shirt overnight, in order to make it to court the next day, because they could not afford the taxi fare.

In her questionnaire, Opperman spoke of her early days at the bar defending people accused of public violence and intimidation and of conducting inquests on behalf of families whose children had died in police custody. However, during her interview she was questioned by commissioner Dumisa Ntsebeza SC on whether as a junior she had brought black seniors on board. She replied that she had been in The Maisels Group as a junior and there were few black seniors in the group at the time. When she moved to Thulamela Group, she was already a senior counsel, she said.

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