Laying down the (commercial) law
Last week’s Constitutional Court candidate interviews raised issues about whether a lack of commercial experience on the bench is a problem for the administration of justice
South Africans will soon know who will be the new guardians of the country’s constitution, when President Cyril Ramaphosa appoints two new justices to the bench of the apex court. The judicial appointments — Ramaphosa’s first as president — are crucial, given the 12-year term Constitutional Court justices serve and the role they play in developing the country’s jurisprudence.
The vacancies on the bench were occasioned by the promotion of judge Raymond Zondo to deputy chief justice in March 2017, and the retirement of judge Bess Nkabinde in 2018.
In interviews conducted by the Judicial Service Commission (JSC) last week, six hopeful candidates — 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 — were grilled on a myriad of issues, including transformation of the bench and the space customary law holds in SA.
A constant line of questioning from SCA judge Azhar Cachalia seemed to touch a sensitive spot. He raised criticism levelled against Constitutional Court judgments on matters of private law, which includes commercial law and law of delict. Given that commercial law is largely seen as a domain in which white male advocates dominate, this hit a nerve.
For years, the Constitutional Court was the apex court only in constitutional matters. But the court’s jurisdiction was extended to include legal issues with the amendment of the constitution and enactment of the Superior Courts Act in 2013.
The voices that will be heard are of the so-called powerful commercial lobbyDali Mpofu
In last week’s interviews for the Constitutional Court bench, Cachalia raised concerns about a lack of skill when it comes to hearing commercial disputes.
Cachalia canvassed the issue with the six candidates who had thrown their names into the hat and subjected themselves to the JSC’s lengthy interviews. But it was in the interview with Kathree-Setiloane — the only one of the six candidates whose name was not put forward for Ramaphosa’s consideration — that the issue truly came to the fore.
In an interview that lasted more than two hours and covered a number of subjects, Kathree-Setiloane spoke about the high court’s decision to revive the commercial court. The intention was to bring back to the courtroom some of the commercial matters taken to arbitration. This would allow matters to be dealt with sooner than if they were placed on the ordinary court roll. She said she had been assured by the judge president that it would not be the case — as it had been historically — that the cases would just go to a select few judges.
But advocate Dali Mpofu, a member of the JSC, took a dim view of Cachalia’s critique, saying no-one would ever raise the issue of a lack of criminal law expertise on the bench, and that the law is, effectively, the law. Mpofu emphasised that there is substantially more expertise on the bench when it comes to commercial law than criminal law. But, he said, while criminals may want to complain, "the voices that will be heard are of the so-called powerful commercial lobby".
Given the importance of judicial precedent, this is not an issue that should be ignored.
Arbitration is a costly avenue for dealing with complex commercial issues, but it allows clients to appoint their own arbiters, to decide on the venue and, crucially, to eliminate the long waiting periods synonymous with matters being placed on the court roll.
There is also no certainty that the judge allocated to a particular matter would have any commercial experience. However, judges would also not be able to gain commercial experience and develop SA’s commercial law if complex cases were not enrolled to the courts.
What it means
A wider scope of cases could make commercial expertise a factor in apex court appointments
A senior member of the bar who specialises in commercial law, speaking to the FM on condition of anonymity, says the courts have to get their house in order if they want to attract big commercial cases. They need, for example, to hear cases sooner. On a more practical level, they need to ensure that courts function optimally: lifts need to be repaired, and the court surrounds need to be secure.
But the senior advocate says it is also not the responsibility of clients to ensure judges gain commercial experience; they are simply trying to get their matters heard expeditiously.
Chris Oxtoby, a senior researcher at the University of Cape Town’s Democratic Governance & Rights Unit, says prior to the broadening of the Constitutional Court’s jurisdiction, it had not been necessary to look for commercial expertise on the bench — the buck, for the most part, had stopped with the SCA. However, he says, commercial experience will now have to be taken into consideration in Constitutional Court appointments — "whether they [the JSC] admit it or not".
With five names to choose from, it will have to be seen whether Ramaphosa will consider the deepening of commercial experience on the bench when he makes his judicial pick.