Candidates for second-highest court grilled on judgment-writing skills

Judicial Service Commission (JSC) interviews for four Supreme Court of Appeal (SCA) vacancies continue on Tuesday.

The majority of Monday's candidates had a tough day when SCA deputy president Xola Petse told them senior colleagues had criticised their judgment-writing skills. 

In putting these and other hard questions to candidates, Petse said his intentions were not personal, but about the interests of his court: “My involvement here is not about me or you. I’m representing the SCA and I’m duty-bound to put to all candidates the difficulties that colleagues ... had with each one.” 

The SCA is South Africa’s second-highest court of appeal and shoulders the bulk of appeals from lower courts. As an appellate court, its judgments must give guidance to the courts below. Despite its heavy workload, the quality of its judgments is expected to be better than those of the high courts.   

Of the five candidates interviewed on Monday, only Gauteng high court judge Fayeeza Kathree-Setiloane had a relatively easy interview. No stranger to the JSC, having been interviewed four times previously for the Constitutional Court, she was among those recommended for that court last year by the JSC. This seemed to smooth her course with Petse, who said he had, in previous interviews, raised “everything which I thought needed to be explored” with her.

But in Free State High Court judge Johannes Daffue’s interview, Petse said senior SCA judges had reported that he had not been “concise” or “linear” with his reasoning and needlessly quoted familiar legal precedent.

The SCA works in panels, with two, three or five justices deciding a case, but the writing of a judgment is normally assigned ahead of time to a single “scribe”. The other justices give input and comment on drafts.

It has emerged at the JSC over the years that when senior colleagues felt an acting judge had not been equal to the task of scribe, their colleagues had sometimes taken over, with the acting judge's name appearing as co-scribe. Or, more often, the original scribe’s name will stay on the judgment, with it emerging at the JSC that their judgments needed “a lot of work” from colleagues. 

Daffue said he found it hard to respond to comments about his judgment writing without specifics because his experience with colleagues had been that his judgments were in order, with only changes to a paragraph or two. None had been “deleted or rewritten, so to speak”, he said. 

Mpumalanga High Court judge Shane Kgoele took issue with the lack of specificity in comments from colleagues via Petse, saying when they were generalised, it was as though they were “just aimed at breaking a person and not building one”.

This appeared to elicit sympathy from some commissioners, with Mvuzo Notyesi saying he was “troubled” some senior judges suggested her judgment writing was not up to scratch: “Do you know who they are?” Kgoele replied that she did not, but thought it could not be all of them as she had received praise from many. 

But then commissioner Sesi Baloyi SC asked her why all the judgments, save one, that she had submitted to the JSC as examples of her work were co-authored.

“When one doesn’t have any judgments that were written by you, it’s very difficult to evaluate your ability to write judgments ... and I feel disadvantaged completely to make any comment about your judgment,” said Baloyi.

KwaZulu-Natal High Court judge Mokgere Masipa was asked by Petse about three judgments that were originally allocated to her, but ended up being co-authored.

Focusing on one, she said she did not dispute that the senior judge who ended up as her co-scribe had made a substantial input into the judgment. However, she added that she had made substantial input on some judgments, but had not asked that her name be added as a scribe thereto.

Petse said the last time she had acted he had advised her she would benefit from more time doing so at the SCA and that was why she had been invited back. 

The last candidate interviewed on Tuesday, Eastern Cape judge Nozuko Mjali, faced different difficult questions from Petse, including about her leaving two criminal trials part-heard to take up her acting stint at the SCA.

“My sense is that you put your interests above those of the accused,” he said, adding that the constitution gave accused persons the right to a fair trial, which included the right to have their trial “begin and conclude without reasonable delay”.

She replied that acting at the SCA was not about her, but about service to that court and that her acting stint had been agreed between himself, her judge president and the legal representatives of the accused. She said there were other judges who had taken longer acting stints at the SCA who had more commitments than she did.

Petse also tackled her on the fact that in 14 years on the bench she had in her JSC questionnaire only listed one judgment that had been included in the law reports. Mjali had listed four, but three were SCA judgments that had been published on judgment database Saflii, said Petse. All SCA judgments were published as a matter of course thereon, he said. They could not be considered to be reported judgments in the same way.

Mjali said she never marked her judgments reportable and that her priority was to resolve a dispute between litigants.

On Tuesday, a further five candidates will be interviewed for the SCA:

• Eastern Cape deputy judge president Zamani Nhlangulela;
• Northern Cape deputy judge president Mmathebe Phatshoane;
• Gauteng high court judges Namhla Siwendu and David Unterhalter; and
• Eastern Cape judge John Smith. 

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