These are the candidates for two Constitutional Court positions
The JSC removed Kathree-Setiloane, who is a judge at the high court in Johannesburg and was retired Constitutional Court justice Yvonne Mokgoro’s first clerk
The Judicial Service Commission (JSC) released the shortlist of candidates for President Cyril Ramaphosa to appoint the next two Constitutional Court justices, on Wednesday evening.
The JSC had to remove only one candidate from the six interviewed, given the constitutional requirements for how many names should be submitted to Ramaphosa for consideration.
They will be his first appointments to the bench since he took office in February 2018.
The top court has 11 permanent members on the bench, but the positions were left vacant following the promotion of deputy chief justice Raymond Zondo in March 2017, and the retirement of justice Bess Nkabinde in 2018.
The candidates were high court judges Annali Basson, Patricia Goliath, Jody Kollapen and Fayeeza Kathree-Setiloane, and Supreme Court of Appeal (SCA) judges Stevan Majiedt and Zukisa Tshiqi.
The JSC removed Kathree-Setiloane, who is a judge at the high court in Johannesburg and was retired Constitutional Court justice Yvonne Mokgoro's first clerk, from the list, while keeping Basson, Kollapen, Majiedt, Goliath and Tshiqi for Ramaphosa’s consideration.
Kathree-Setiloane’s interview ended in a heated fashion after she was quizzed by Chief Justice Mogoeng Mogoeng on issues between her and her clerks, one of which was SCA president Mandisa Maya’s daughter, when she was an acting judge in the Constitutional Court.
Justice minister Michael Masutha told Kathree-Setiloane that she came across as “overbearing” due to the way she spoke, which Kathree-Setiloane denied.
“I am an assertive person and I will not apologise for it,” she said.
These are the candidates:
• Annali Basson, 59, is a judge at the North Gauteng High Court, a former labour court judge and a longtime academic at the University of SA. She recently wrote the landmark Xolobeni judgment, which found that a mining licence could not be granted if the department did not obtain the full and informed consent from an affected community.
She disclosed during her interview that she was a member of the Pan Africanist Congress before she was a judge.
Asked by commissioner Sifiso Msomi as to what she believed the challenges were facing constitutionalism and transformation in the country, Basson said the land issue was the most challenging issue SA had to deal with.
She said she had no reservations about being an “activist” judge. Basson said her academic background, including becoming a full professor after working herself up through the ranks, helped her in dealing with complex cases.
• Jody Kollapen, 61, who for the second time has thrown his name into the hat for a position at the apex court, has a history as a human rights activist.
Kollapen is a former head of the SA Human Rights Commission and has acted for two terms at the Constitutional Court. He has been a full-time judge in the North Gauteng High Court since 2011.
Kollapen’s interview started off with a discussion with Mogoeng about whether judges could be “captured”.
“To suggest judges are not capturable, would suggest that judges have superhuman types of qualities that [make them] immune. "It's how one lives and acts with integrity that is important. I don’t think you need a rule book to tell you about integrity. It must be part of your moral DNA - of your moral compass,” Kollapen said.
He was asked whether his age should be taken into consideration, given that a Constitutional Court justice serves a nonrenewable term of 12 years or until the age of 70, whichever came first.
He said it would be unfair if it would be a determining factor on its own.
• Stevan Majiedt, 58, This was the second time Majiedt appeared in front of the JSC after he did not make the cut for the apex court in 2017.
According to Judges Matters, a coalition that monitors the judiciary and the judicial appointment process, Majiedt graduated with an LLB from the University of the Western Cape in 1983. He served as an advocate at the Cape Bar from 1984-1996 and as the chief provincial state law adviser to the Northern Cape government from 1997 to 2000. He was appointed to the Northern Cape High Court in 2000, and then the SCA in 2010.
Majiedt made it clear on Thursday that it was time for him to move on from the SCA. In line with comments made at a former interview, Majiedt was very clear about identifying as black and not coloured. The distinction was raised following a spat years ago with former Northern Cape judge president Frans Kgomo. Kgomo had appointed a more junior black judge to act as judge president, ahead of Majiedt and one of his colleagues. The issue, which led to counter-complaints at the JSC, was resolved more than a decade ago.
"I don’t want to be appointed to the Constitutional Court simply because I was a coloured. That would denigrate me. If you want to classify then call me black,” Majiedt said.
He said if he was recommended to the apex court merely because he was seen as coloured, he did not want the job.
Asked about the briefing patterns for big commercial law cases, Majiedt said white counsel were being overwhelmingly briefed because clients did not believe black counsel were good enough, a perception he criticised.
Commissioner Mvuzo Notyesi, addressing Mogoeng, said “that is the mindset needed for the Constitutional Court.”
In terms of prominent judgments, Majiedt was famously part of the SCA bench that increased the sentence of murderer and former paralympian Oscar Pistorius.
• Patricia Goliath, 54, the deputy judge president in the Western Cape appointed in 2016, has acted in the Constitutional Court for a year in that period to now.
During that time, Goliath penned one of the judgments in the so-called Jacobs case, concerning the leave to appeal of various perpetrators found guilty of murder. The Constitutional Court was split on the ruling, leading to a North West High Court judgment being upheld.
Asked about this in her interview, Goliath said the split decision was “regrettable, but nothing new’. She a referred to the USA’s Supreme Court’s split decisions in this regard.
Goliath was told that the General Council of the Bar (GCB) submitted that she needed more experience outside of her vast criminal law experience. Goliath was asked about the judgment she penned for the full bench in the Western Cape High Court, which dismissed an application by opposition parties to have the court declare that votes in a motion of no confidence into the president could be done by secret ballot.
The Constitutional Court later ruled that it was allowed as the decision would follow the discretion of the speaker of National Assembly. She was asked whether she accepted that her approach was wrong in that case, and she explained that she “looked for the word secret ballot [in the rules]”.
“It was not there.”
Goliath said she believed her experience in the legal profession, which included 14 years in private practice, put her in good standing for the post.
• Zukisa Tshiqi, 58, was appointed to the SCA in 2009. During this time she spent two terms acting in the Constitutional Court.
Tshiqi told the commissioners that she was the sixth-most senior judge at the SCA, and the experience over the past decade had been “enriching”. She said she believed she was an “all rounder”.
Commissioner Sifiso Msomi asked her about the GCB submission that raised concern about the “relatively small number of judgments’’ written by her. Msomi said the GCB’s analysis found that she was a member of the court for 216 cases, concurred in 175 cases wrote 41 judgments. Out of those 41, 34 were written in the SCA.
She said she did not know whether judgments she had written in the High Court were factored in, as she had written a significant number there.
Tshiqi has a BProc from Wits University (1989) and a postgraduate diploma in labour law from the University of Johannesburg (2001).
Correction: April 5 2019
A previous version of this article incorrectly identified Fayeeza Kathree-Setiloane as Zukisa Tshiqi's first clerk. Kathree-Setiloane was Yvonne Mokgoro's first clerk.