JSC recommends Nuku for Competition Appeal Court after baring teeth at Spilg

Tension ran high during interviews for the Judicial Service Commission (JSC) on Tuesday to fill Competition Appeal Court (CAC) vacancies.

Commissioners expressed concern that candidate judge Brian Spilg had seemingly demonstrated, as one commissioner put it, an “abandonment of judicial function” for not handing down judgment in a matter for three years.

The CAC is a key regulatory body in competition matters, hearing appeals from the Competition Tribunal. It is the equivalent of a high court. It has five vacancies but only two candidates were interviewed yesterday: first, Western Cape High Court judge Lister Nuku, then Gauteng high court judge Spilg.

Judge Lister Nuku

Nuku was one of the youngest judges appointed to the bench in 2016, having previously served as a partner at a law firm which represented now suspended Western Cape judge president John Hlophe.

Nuku was grilled about his lack of experience in competition matters. Commissioners, including chief justice Raymond Zondo, noted that if appointed to the CAC, Nuku could be ruling on matters decided by those with more experience. Nuku said that “the whole exercise [at the CAC] is about interpretation of statute”, which judges do every day. He also noted that in his acting stints on the CAC, he had already learnt a lot and was surrounded by those with more experience.

Both the commissioners and Nuku bemoaned briefing patterns in competition law and how black practitioners had struggled and still struggle to obtain experience.  

Adv Tembeka Ngcukaitobi articulated why there was concern about Nuku’s lack of experience, because “if we lose before you [at the CAC], we have no remedy”. The CAC has the final say in competition law disputes, except for matters that could be heard by the Constitutional Court.

Nuku reassured the JSC that despite his lack of experience, he would be of value.

Judge Brian Spilg

One of the most experienced judges of the Gauteng division, Spilg was previously an advocate with commercial law experience before becoming a judge in 2009. He too has acted on the CAC.

After articulating his views on competition law in terms of balancing market freedom, constitutional rights and protecting consumers, Spilg noted that, aside from being a senior judge, he presented academic papers, sat previously on commercial panels, and was asked by the judiciary to give lectures on ethics in Botswana.  

However, things seemed to take a turn when Zondo apologetically noted a complaint lodged against Spilg. Zondo noted that the JSC had no knowledge of the complaint itself. Spilg also conveyed knowledge of its existence but had no knowledge of its content.

He said he had “for two years” asked for further details but got no response from the Office of the Chief Justice until moments before his interview when he was handed a letter. 

The JSC was concerned with two aspects: Spilg’s age and his not handing down a judgment for three years. 

By law, judges cannot serve beyond the age of 75 and Spilg will turn 75 next year. The commissioners noted this would undermine certainty on a bench the JSC had been struggling to fill. As Julius Malema put it, they’d be “back to square one”.

Spilg was also asked about the difference between putting him on permanently as opposed to in an acting capacity, considering that he would be there less than a year. Spilg said he left it up to the JSC to decide as his only wish was to be of service.

Adv Kameshni Pillay noted a complaint about an urgent eviction matter from 2020. Pillay said no judgment had been handed down. Spilg said that the matter, in his mind, had been resolved between the parties. No-one had requested reasons or an order from him that he was aware of.

Zondo expressed dismay at this procedure, noting this is “strange for me”. The chief justice noted: “A matter comes to an end because there is an order or settlement agreement.” A party may also withdraw from the matter. Zondo asked: “Was it not your responsibility to ensure there was a formal ending to the matter?”

Spilg attempted to explain that, to his recollection, there was no longer a dispute between the parties when they appeared before him at a later date. He indicated his office attempted to obtain the file itself, but with no luck.

Many commissioners, including the acting president of the Supreme Court of Appeal, Xola Petse, express dismay at Spilg’s handling of the matter, with Zondo noting it was “not acceptable” for a judge to simply be told a matter is resolved. It must be properly finalised or a judgment or order handed down.

Spilg denied this happened, saying there was no live dispute. This was contradicted, the JSC noted, by the existence of a complaint. Zondo also directed that Spilg’s leader, Gauteng judge president Dunstan Mlambo, also consider what is to be done. 

Spilg said he could have a judgment within two weeks and this should not be a blot on his otherwise upstanding record as a judge.

After deliberations, the JSC recommended Nuku for the position at the Competition Appeal Court.

moosat@businesslive.co.za