Judge diffuses potentially tense moment at JSC interview

A potentially tense moment at the Judicial Service Commission (JSC) quickly fizzled out on Tuesday when Pretoria high court judge Sulet Potterill — once trolled on social media for her 2019 judgment that found against suspended public protector Busisiwe Mkhwebane — told EFF leader Julius Malema she had only once been on a full bench with Gauteng judge president Dunstan Mlambo.

Potterill was one of 11 candidates interviewed over the course of Monday and Tuesday for five vacancies at the Supreme Court of Appeal, the second-highest court in the country.  

Malema, a JSC commissioner, asked her about “this thing that you are the most preferred person when it comes to high-profile cases there in Pretoria. And where the JP [judge president] sits in those cases where it’s a full bench, you are likely to be part of that full bench.”

Malema did not expand on what he was specifically referring to by “this thing”.

During the dramatic February interviews for chief justice, former JSC commissioners Griffiths Madonsela and Dali Mpofu had during Mlambo’s interview spoken of rumours that Mlambo allocated specific judges to specific cases.

This was later referred to by Mpofu as a rumoured “judicial hit squad” and was denied by Mlambo. However, the names mentioned by Mpofu in February did not include Potterill.

On Tuesday, Potterill said she had only once been appointed to the same full bench as the judge president. She also explained how cases were allocated in the Pretoria high court, saying there was a roster decided two to three weeks in advance every term.

With urgent cases, which the high-profile cases tended to be, parties would write to the deputy judge president (DJP) asking for a full court and to be heard urgently, and the court would try to accommodate them, she said.

The DJP would then often “be sitting, praying, hoping a judge becomes available. We don’t have extra judges.”

There was no preferential system, Potterill said.

Many of the SCA interviews so far have focused on candidates’ readiness for appointment to the appellate court, with acting president Xola Petse giving candidates feedback on their draft judgments from more senior colleagues at the court.

Petse told Potterill that the feedback on her drafts was that they were “not entirely satisfactory” and that she needed “much assistance”.

Potterill said she had received substantive comments on some of her judgments, but on the two reportable judgments there were very few comments. But she “took the comments to heart” and they enriched her judgment.

Similarly, on Monday night Gauteng high court judge Daisy Molefe was told by Petse that senior colleagues had told him that her judgments had to be “knocked into good shape”. When she said she did not know which judgment he was referring to, he said “all of them”.

But Molefe said she had recently scribed a judgment in which Petse had been presider and there was no panel-beating on that one. Petse replied that there was another where he had given her substantial comments.

Eastern Cape high court judge John Smith was asked about errors he had made in a judgment which Petse said would not have been made if Smith had been following the appeal court’s style guide. He said mistakes could creep in, but he was generally a meticulous judge.

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