Mogoeng Mogoeng. Picture: SOWETAN/SANDILE NDLOVU
Mogoeng Mogoeng. Picture: SOWETAN/SANDILE NDLOVU

Branding judges as “well or highly respected” and singing their praises when they did nothing to deserve it could be a form  of “capture” of the judiciary, Chief Justice Mogoeng Mogoeng said on Wednesday.

Mogoeng chaired the Judicial Service Commission  on Wednesday during interviews to fill two vacancies on the Constitutional Court bench.

The top court has 11 permanent members on the bench, but the positions left vacant by the promotion of deputy chief justice Raymond Zondo in March 2017, and the retirement of justice Bess Nkabinde in 2018, have not yet been filled.

High court judges Annali Basson, Patricia Goliath, Jody Kollapen and Fayeeza Kathree-Setiloane, and Supreme Court of Appeal  judges Stevan Majiedt and Zukisa Tshiqi were interviewed for the positions, which would be President Cyril Ramaphosa’s first appointments to the bench.

The commissioners posed questions to the candidates on the rampant inequality in SA, transformation of the judiciary, the question of land — in which a constitutional amendment is looming — as well as the space occupied by customary law, concerns about the amount of commercial experience on the bench and what was described as the almost “untouchable” nature of common law in SA. 

It was however in Kollapen’s interview that Mogoeng posed the questions as to whether he thought that judges were “insulated” from capture, or if they were “capturable”.

Kollapen, who has been a full-time judge since 2011 and is a former chair of the SA Human Rights Commission, said he believed judges could be subject to capture, as to think otherwise would suggest that judges would have “superhuman” qualities which make them immune to it.

Mogoeng used an example of a judge being given shares for free, while a second possible way of capture was a “tendency” at some stage to “brand some judges as highly or well respected, progressive, and brand others as conservative”.

He said there was a pattern, to praise judges “even if they did nothing”.

“Almost as if to send a message to the rest of the judges to say this should be your role model, do what he does,” Mogoeng said. 

Basson was quizzed on her stance on transformation and land after she revealed that she was previously a member of the Pan Africanist Congress (PAC) , while Kathree-Setiloane had to explain to Mogoeng why two clerks had raised issue with her while she was acting in the Constitutional Court.

Mogoeng said the allegations by the clerks were, among others, that she had shouted at them and phoned one while she was in hospital.

Kathree-Setiloane disagreed with that version.

Goliath was asked about some of her judgments that were overturned by higher courts.