Ten judges questioned regarding SCA seat up for grabs

The Judicial Service Commission (JSC) has interviewed candidates for the Supreme Court of Appeal (SCA) including high court judges who have landmark and high-profile cases under their belts.

The JSC resolved to recommend judges David Unterhalter, Raylene Keightley and John Smith from the Eastern Cape bench for appointment.

Chief justice Raymond Zondo and SCA president Mahube Molemela questioned 10 candidates to fill the three vacancies in the upper court.

Of importance to the panel were experience, the understanding of separation of powers and the rule of law, the ability to work independently due to the SCA’s lack of researchers and collegiality, which were essential for collaborative judgments.

Keightley, of the Gauteng division of the High Court, sparked the interest of justice minister Ronald Lamola for her landmark case that found that the spanking of a child as discipline was a crime.  The case was upheld by Constitutional Court chief justice Mogoeng Mogoeng in 2019, which overturned chastisement of children into common assault.

The judge started her career as a lecturer at the University of Cape Town and Wits University, specialising in career development of law students, family law, succession, public international law and African customary law.

Lamola asked the judge how she recommends parents discipline their children since she changed the common law.

“We didn’t go as far as to say how parents should discipline their children, but the effect it has if parents continue to choose corporal punishment to enforce discipline on their children … I don’t think it had the effect of immediately stopping the parents from meting out corporal punishment. If they do it, they can’t go to court and say it is OK because they were disciplining their children.”

The interviews began earlier with judge Elizabeth Baartman of the Western Cape High Court. Her high-profile cases include the urgent application by Primedia and other media houses for uninterrupted television feed during the 2015 state of the nation address (Sona), when there was allegedly a signal-jamming device in parliament.

She also had a stint as an acting judge at the SCA from May 2015 to April 2016 and returned to the court in December 2023.

“In the first year that I was at the SCA, the matters I dealt with were very broad … I was [once] called in very late in the day for a matter that was allocated to me, which was a 62-volume matter involving German law in contract. I was busy with criminal law at the time, and I had to finalise that matter before I got into the matter of German law.”

Baartman was one of the few candidates who had experience in maritime law due to presiding in a coastal jurisdiction.

The second candidate, Johannesburg high court and labour appeal court judge Phillip Coppin, has 15 years’ experience as a High Court judge.

Coppin was the first judge to preside over the “Please Call Me” matter, where he dismissed Nkosana Makate’s bid to be paid by Vodacom, ruling that Makate’s application was too late.

Coppin said he was not sure what he would have ruled had Makate’s legal team remained the same when arguing before the Constitutional Court.

“The team changed almost completely. There were two senior people before me. After they went from my court to the higher court, the teams changed completely and the whole case took a new direction. It may be possible that if what was argued at that court was argued before me, my decision would have been something else,” he said.

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