Editorial | Approaching the bench: the four candidates for the vacant Constitutional Court seat

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8 July 2015 – The Judicial Service Commission (“JSC”), on 10 June 2015, announced its shortlist of candidates to be interviewed for the vacancy on the Constitutional Court created by Justice Thembile Skweyiya’s retirement in May last year. The interviews are scheduled for 9 and 10 July 2015 and are long overdue.

All four interviewees are women. This was to be expected, and is welcome. As was noted in a previous post, Chief Justice Mogoeng had said he wanted the appointee to be a woman — since, two decades into our democracy, only two of the eleven justices on the Court are female. The vacancy was then left open for over a year, apparently so that several potential appointees could first be given an acting stint. Three of the candidates — Nonkosi Mhlantla, Leona Theron and Zukisa Tshiqi, all of them judges of the Supreme Court of Appeal (“SCA”) — were given that opportunity. The fourth, Dhaya Pillay of the KZN High Court, was not. We discuss the four candidates in what follows.

Nonkosi Mhlantla was born in Port Elizabeth in 1964 and graduated with a B.Proc from the University of Limpopo. After working as an attorney for twelve years, she was appointed as a judge of the Eastern Cape High Court in 2002. Six years later, she was elevated to the SCA. During 2013, she was an acting judge on the Constitutional Court, for four full terms — the longest of any of the recent acting appointees.

While there, Mhlantla wrote four major judgments. The first was on statutory interpretation and the levying of municipal rates; another was a detailed unanimous judgment on land-use planning law. Better known is Rivonia, the last in a series of Constitutional Court judgments involving intervention by the provincial government in the affairs of school governing bodies. Mhlantla’s judgment carefully applies the Court’s precedents and affirms that the government may lawfully intervene — but, she said, it may do so only in a manner that is procedurally fair, and found against the state on that basis. Mhlantla’s judgment rightly prevailed over a caustic dissent that sought to circumvent the Court’s clear precedents.

Mhlantla’s last judgment for the Court was Kubyana v Standard Bank, where she was handed a poisoned chalice — the legacy of the Court’s confusing and divisive judgment in Sebola, which tries to make sense of the National Credit Act’s notice requirements — and came out well. Her judgment “strike[s] a welcome balance” between the respective obligations of credit providers and consumers and has had important implications for consumer credit.

Mhlantla wrote no dissents in her time at the Court, but did write separately on a minor point in Mukaddam v Pioneer Foods. The sole case in which Mhlantla was not in the majority was the high-profile Mazibuko v Sisulu, in which then leader of the opposition Lindiwe Mazibuko brought a constitutional challenge to the Rules of Parliament, which nowhere allowed her proposed motion of no confidence in President Zuma to be promptly scheduled. The Court’s majority judgment, written by Moseneke DCJ, upheld Mazibuko’s challenge. But Jafta J said in dissent that the Court should not have heard the matter at all. Mhlantla’s concurrence in that judgment, along with Mogoeng CJ and Zondo J, made it seem she might have joined the Court’s conservative bloc — but she later broke decisively from them in the fraught Rivonia case.

Coincidentally, when Mhlantla was on the Constitutional Court it overturned a deeply flawed judgment that she had given in the SCA, iMvula Quality Protection v Loureiro, which confuses core doctrines in the law of delict. While at the SCA Mhlantla also wrote Dube, in which she found that Mogoeng, when he was still a judge in the North West High Court, ought to have recused himself from a case in which his wife appeared for the prosecution — sparking criticism of Mogoeng when he was nominated for the Chief Justiceship. Mhlantla’s application mentions only one other reported judgment, on the conduct of divorce proceedings.

This limited track record at the SCA is offset, in part, by Mhlantla’s productive time at the Constitutional Court. She was thrust into the limelight, and collegial disagreements, in a way that other acting appointees were not. Yet to her credit she seems to have remained both principled and well-liked. She has been nominated by NADEL, of which she was a founding member in 1988.

Leona Theron, whose acting stint at the Constitutional Court just ended, has been interviewed for permanent appointment twice before, winning plaudits and making the shortlist in 2008. One of her nominators, Advocates for Transformation, justly describes her as a “role model”: born in Durban in 1966 in “truly humble beginnings”, she became the first member of her family to matriculate, and financed her BA and LLB degrees from the University of Natal by working part-time as a cashier. She then won a Fulbright Scholarship and obtained an LLM at Georgetown University in Washington, D.C. In 1999, at the age of only 33, Theron was appointed to the KZN High Court, its first black female judge. After two acting stints at the SCA, she was permanently appointed there at the end of 2010. She has been honoured by the Department of Justice for her contributions to the law in South Africa, was a 1995 Commonwealth Foundation Fellow, and is a founding member of the South African Chapter of the International Association of Woman Judges.

Thus far in her two-term acting stint at the Constitutional Court, Theron has consistently voted in the majority, and has written two interrelated unanimous judgments. The first, Mhlongo and Nkosi, confidently developed the law and affirms that an accused cannot be convicted on the basis of a co-accused’s out-of-court statements. The second, Molaudzi, is a thoughtful consideration of when a Court has the power to relax procedural rules to prevent manifest injustice. Both judgments are accomplished, combining careful analysis with constitutional values. This obvious lawyering ability, and her impressive work-rate and tenacity, have won Theron many admirers.

She also gave several judgments of constitutional importance at the High Court and SCA, all of which have been substantially or partially upheld by the Constitutional Court. Unlike Molaudzi, however, some of these were cautious — sometimes overly so — about reaching constitutional questions when procedural rules intervene. Theron’s other judgments at the SCA span many complex areas of law.

Theron has proven to be forthright when she disagrees with her colleagues, as when she dissented in Nkomo to lament the prevalence of rape, differing from the majority who reduced a rapist’s sentence. Her commitment to gender justice is also evident in Gumede, a judgment lauded for finding that a law that imposed a different proprietary regime on some women married under customary law unfairly discriminated on the basis of race and gender.

This commitment is crucial. The Court sorely needs more women, but that alone is not enough. Transformation also requires judges who are sensitive to entrenched gender discrimination and dedicated to dismantling it. CALS and Sonke Gender Justice jointly nominated Theron for her “progressive and gender sensitive” judgments. She is plainly a strong candidate for the position on the Court.

Third is Zukisa Tshiqi, who seems the politically favoured candidate — but probably has “the weakest record”. She was born in 1961 in Ngcobo, Eastern Cape and earned a B.Proc from Wits University in 1989 and an advanced diploma in labour law from Rand Afrikaans University (now the University of Johannesburg) in 2001. She worked as a legal advisor and attorney from 1986 to 2005; for eleven of those years she was a CCMA commissioner. After acting stints at the High Court and Labour Appeal Court, she was permanently appointed to the South Gauteng High Court in 2005 and was soon elevated, in 2009, to the SCA. Tshiqi acted on the Constitutional Court bench from November 2014 to March 2015.

We have already discussed the two judgments she delivered there, noting doubts about the persuasiveness of her reasoning. In Coughlan, in particular, her reasons are hard to follow and logically flawed. Otherwise, she has never written or concurred in a dissent. (In last week’s important Shoprite case, however, which is discussed here, she was the only judge to concur in Madlanga J’s separate judgment.) At the SCA, Tshiqi works mostly on fairly routine criminal appeals. Partly this reflects the fact she is a relatively junior member of the SCA, but it may also be inapt training for the Constitutional Court, which rarely hears fact-bound enquiries into the propriety of a criminal trial.

Tshiqi’s application cites only two reported judgments of which she was the sole author: one is an application of the law of prescription and one confirms that the Criminal Procedure Act means what it says: the police must bring an arrested person before court as soon as reasonably possible. And, as the Mail & Guardian reports, Tshiqi overturned a rape conviction primarily on the basis that the evidence of the complainant, 14 at the time of the trial, was not reliable. The outcome was correct in the circumstances, but the judgment fails to distance itself from the discredited and defunct rule that a sexual complainant’s evidence is inherently unreliable.

During her time at the High Court, Tshiqi upheld a defamation claim by Mosiuoa Lekota against City Press for saying he had spied on other members of the ANC. Tshiqi says her judgment is important because it “emphasised the need for the media to be careful and accurate on the choice of words used in their publications, specifically in sensitive matters”. The SCA, though it ultimately upheld her decision, said her judgment made material errors. Finally, in Complete Construction v Webtrade, Tshiqi held that the Prevention of Illegal Eviction Act does not “protect affluent property owners who deliberately place themselves in unlawful occupation of their own property”.

Tshiqi’s application documents are strikingly spare, coming in at more than 100 pages shorter than any of the other candidates. She has been nominated by a former colleague with whom she co-founded a women-owned attorneys firm, Matolo Dlepu Tshiqi Attorneys, in 1994, and by Judge Ronnie Bosielo, her colleague at the SCA.

And, finally, Dhaya Pillay — the surprise candidate. As soon as Pillay’s candidacy was announced, Chief Justice Mogoeng had to counter perceptions that she was just there to make up the numbers. She has never acted on the Constitutional Court, despite the surfeit of recent acting appointments, or the SCA. And she supported Judge President Chiman Patel — now ousted amid suspicions that he fell out with the KZN political establishment — in the racial spat over his appointment. Pillay, like Patel, is Indian. Given the JSC’s narrow conception of transformation, some influential commissioners may feel that she — like Leona Theron, perhaps — should be rejected in favour of a black African candidate.

But it would be a mistake to overlook Pillay. For clear and compelling historical reasons, the discourse has centred on race. But that can, and has, been taken too far, to the exclusion of other important dimensions of diversity and disadvantage. Fortunately, the shortlist of interviewees recognises that gender is vital too. But if one does focus only on racial demographics, then a coloured or Indian candidate ought arguably to be preferred — since there are currently none on the Court. Finally, as many, including the Department of Justice and Constitutional Development (pdf), have noted, real transformation is about not only the colour of judges’ skins — though racial diversity on the bench is clearly important — but also their values.

And Pillay, who was born in Durban in 1958 and completed her B.Proc at UNISA in 1982, is a woman of great integrity. Early in her career as an attorney, she joined the firm of noted activist lawyer Yunus Mohamed, a founding member of the UDF and the instructing attorney in the Delmas Treason Trial. Pillay became heavily involved in important political cases (an interesting record of which exists here) and effectively led the firm when Mohamed was in detention. She was recognised as a human rights defender by the Durban branch of Amnesty International in 2005.

In the late 1980s, Pillay’s practice had moved towards labour law, in which she later became an expert, acquiring an LLM in the subject from the University of Natal in 1993. Pillay was a drafter of the Labour Relations Act and later became a senior CCMA commissioner. She had also served as an advisor to the drafters of the Constitution.

Does the Constitutional Court need another labour law expert? Almost certainly not. But Pillay’s credentials are impressive. Only Theron has been on the bench longer: Pillay was appointed as a judge of the Labour Court in 2000, and to the KZN High Court ten years later. And Pillay has an academic record none of the other interviewees can match. She has published widely, on both labour law and issues of broader interest; is an extraordinary professor at the University of Pretoria; and has been a visiting academic at prestigious universities like New York and Oxford.

Pillay’s convictions are evident in her robust — if sometimes prolix — judgments. In labour law, she emphasises the inequality of power inherent in many workplaces. In PFG Building Glass v CEPPAWU, she wrestled at length with the relevance of HIV testing to workplace discrimination. And, in Khumalo, she granted an MEC’s application to set aside unlawful employment decisions taken by her own department. Pillay’s judgment was upheld by the Labour Appeal Court and SCA, but was ultimately reversed by the Constitutional Court, which found that the MEC’s egregious delay in bringing the case should not have been overlooked.

Pillay is concerned about injustice outside of employment contexts too. Makwickana is one of her many ringingly pro-poor judgments (see another here). In it, Pillay found that a draconian bylaw that allowed a municipality to raid informal traders’ stores and impound their goods did not pass constitutional muster. Pillay has also rightly called for gender-based violence to be treated with abhorrence. She, like Theron, was jointly nominated by CALS and Sonke Gender Justice — as well as by former Constitutional Court judge Zak Yacoob.

So it is a shame that Pillay seems an unlikely appointee. And what does that say about the appointment process? Despite the year-long wait, the initial closing dates for applications had to be extended, presumably because not enough candidates applied. In terms of section 174(4) of the South African Constitution (pdf), there must be at least four candidates in order to make a valid appointment. For several years, the JSC has struggled to find candidates willing to be on the Constitutional Court — and to face the JSC’s often controversial selection process. The problem is particularly acute now: Mogoeng’s exceptional, year-long recruitment process, far from yielding the surfeit of choice he expected, instead struggled to produce even the bare minimum number of candidates. And remember that the four-person shortlist is meant to be compiled after the interviews — whereas now every interviewee must be shortlisted, without discernment, for an appointment to be possible.

Both our writers, and others, have criticised the JSC’s over-reliance on an acting stint on the Court as a seeming precondition to permanent appointment. Inevitably this means the pool of candidates is restricted, or that permanent appointments must be delayed while the acting stints are undertaken, or both. No other apex court in the world insists its appointees have already served it in an acting capacity; they, like all other job applicants, are assessed based on their performance in their current role.

The underlying point is that the JSC should be determinedly searching out potential appointees from creative sources, not shrinking the pool. Kate O’Regan, for example — often lauded as one of the Court’s most successful appointments, of either sex — was a legal academic. The Deputy Chief Justice is another appointee with limited judicial experience who thrived at the Court. And one of the most exciting nominees of recent years was Cora Hoexter, an extremely distinguished academic who writes on topics central to the Court’s work — though in the end she was overlooked.

So, given the limited number of applicants, the JSC ought to re-examine its recruitment processes. The judges on the Constitutional Court need to be the best that South Africa has to offer, and all potential candidates should feel welcome to apply. Needless to say, Chief Justice Mogoeng’s insistence that the appointee should be female did not have that effect. Not a single male applied. The need for more women on the Court should be a weighty factor when the candidates are considered — but not a way of shutting potential candidates out altogether.

Mogoeng’s comments, and the thought that only those chosen for an acting stint on the Court are eligible for permanent appointment, compounds perceptions that the JSC’s candidates are preordained. Of the four interviewees, the perception is that Pillay is disfavoured, and that Tshiqi’s appointment is likely. We hope that, on this occasion at least, the JSC bucks expectations.