Too much focus on reconciliation and not enough on transformation, says would-be ConCourt judge

12 April 2021 - 22:49 By Franny Rabkin
Judge Jody Kollapen, who is applying for a post at the country's top court, said that in the transition to democracy, SA had perhaps focused too much on reconciliation and not enough on transformation.
Judge Jody Kollapen, who is applying for a post at the country's top court, said that in the transition to democracy, SA had perhaps focused too much on reconciliation and not enough on transformation.
Image: 123RF/Stockstudio44

In the transition to democracy, SA had perhaps focused too much on reconciliation and not enough on transformation, said Gauteng judge Jody Kollapen on Monday.

He added that reconciliation could not be achieved without transformation — without all South Africans accessing the economy.

Kollapen was one of eight candidates being interviewed for two vacancies on the Constitutional Court over Monday and Tuesday.

On Monday, three candidates were interviewed after Gauteng deputy judge president Aubrey Ledwaba withdrew from the ConCourt race. He will still be interviewed for the Supreme Court of Appeal, however.

Transformation — of SA and of the judiciary — is always central to Judicial Service Commission (JSC) interviews, but in this round it took on different aspects.

In the interview of Alan Dodson SC, he debated with commissioners whether, in addition to race and gender transformation, the constitution also envisaged a “range of perspectives” from its judges, which would be served by the fact that he was not a judge like all the other candidates.

In response to a characteristically blunt question from commissioner Julius Malema asking Dodson why he, having never acted on the highest court, not being a judge, not being black or a woman, should be appointed — “what’s unique about you?” — Dodson replied that he would never claim to be unique.

But he referred to section 174(5) of the constitution, which required that at least four of the judges of the Constitutional Court had to be judges when they were appointed. He said this suggested that the constitution envisaged that not all of its judges had to be appointed from the bench  and that a range of experience was envisaged.

He said his path — as a land claims court judge for five years and as chairperson of the UN's housing and property claims commission (established to resolve property claims after the conflict in Kosovo) — gave him a different perspective that could be of some benefit to the ConCourt.

Dodson also had to answer questions on the fact that his wife, Raylene Keightley, is a judge of the high court — something that we can expect more of as the bench becomes more representative.

He answered that this was something that had to be navigated in a way that did not entrench gender discrimination. He said that in general there should be no problem with cases that came from the Gauteng division but where it was her judgment, he would have to look at recusal.

But the biggest part of his interview was devoted to fielding questions from various commissioners about land reform — an area of the law on which he is an expert. He declined to get too deep into debate with Dali Mpofu SC, saying he might be called to decide some of those very issues if he was appointed.

But in response to a direct question from Malema about whether the constitution allowed for expropriation without compensation, Dodson said his view was that it did. There were a number of factors that needed to be considered and the “net effect” of those factors could mean that the appropriate compensation was nil.

The second candidate, Fayeeza Kathree-Setiloane, as the only woman candidate to be interviewed on Monday, found herself once again defending comments that she was “impolite” by saying that women who are assertive are often called impolite. This does not happen in the case of men.

Kathree-Setiloane was grilled extensively by a number of commissioners about her temperament after comments from some advocates that she was discourteous on the bench.

“When we take our positions as judges, we don’t do it for popularity,” she said.

The most important thing was coming to a right decision; and, from time to time, when counsel were unprepared, “it really disappoints us”. In those circumstances, she would reprimand counsel, she said.

She was also questioned about her attitude to juniors after a clash with her law clerk when she was acting at the Constitutional Court came up as it had done in her last interview. She said that she had learnt that the youth of today perhaps did not have the same work ethic as in her day and needed more patience.

Commissioner Mvuso Notyesi said it seemed that she did not have respect for juniors and was short-tempered. She refuted this and said that she had tremendous respect for the youth and for clerks and that she had a number of mentees.

Despite remarks by Mpofu that she was fair in court and by Judge President Dunstan Mlambo that she had never clashed with her colleagues or staff, the grilling continued.

Kollapen’s interview was very different, though he was asked to justify why — because of his age — he should get appointed when he would only serve for half the 12 years ConCourt judges normally serve. Kollapen was also asked about the number of his judgments that had been overturned on appeal, with him saying that in some cases the appellate court had taken a different approach, which he respected, but still thought his was appropriate.

On Tuesday, Judges Rammaka Mathopo, Mahube Molemela, Dhaya Pillay, David Unterhalter and Bashier Vally will be interviewed. The JSC confirmed that at the end of it, it will be submitting a list of five names to President Cyril Ramaphosa from which he will choose two.

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