Candidates questioned by JSC on readiness for appellate court and transformation

Mpumalanga high court judge Maleshane Kgoele received a grilling during her Judicial Service Commission (JSC) interview on Monday for a position to the Supreme Court of Appeal.

Acting president of the Supreme Court of Appeal, Xola Petse, suggested to Kgoele she might benefit from more acting stints on the Supreme Court of Appeal before permanent appointment to the appeal court, after revealing that senior judges had said they made extensive changes to her draft judgments before they were ready.

Kgoele was the first of 11 candidates to interview for five vacancies on the second highest court in SA. She had a lengthy interview at the JSC that ran to over two hours, as she was grilled about whether she was ready for the appellate court. 

The questions put to candidates by the head of the relevant court are supposed to be significant ones, as they often reflect the specific needs of the court and the factors preoccupying its leadership in seeking to fill its vacancies.   

Petse said feedback from “the presiders” — the senior justices in the Supreme Court of Appeal — “all of them, without exception” was that final versions of her judgments were “materially different” to the drafts that she had produced and that “much had to be done to your judgments to get them to a point where they could be delivered”.

However, Kgoele said that the assistance she got from senior colleagues was about the judgment writing style at the SCA, but that as far as her capturing of the facts of cases and the application of the law to the facts, the presiders had agreed with her drafts.

But Petse said he had been told that drafts had been returned to her with tracked changes and that these were “matters of substance” and not “stylistic” corrections. Kgoele disagreed, saying she wished she had known about these adverse comments beforehand, as she could have brought the tracked changes to show commissioners that these were just “corrections here and there”. When Petse asked if she would not benefit from further acting stints at the appeal court before permanent appointment, her answer was an emphatic “no”.

When Petse asked if she would not benefit from further acting stints at the appeal court before permanent appointment, her answer was an emphatic ‘no’.

Petse’s questions to Eastern Cape High Court judge Glenn Goosen focused on a different preoccupation: that, of the five posts the JSC was now seeking to fill at the JSC, four had been vacated by black judges, and only one by a white male judge. And yet three of the candidates for these posts were white male judges and two were white female judges, said the acting president of the SCA. What would Goosen like the commission to consider to “tip the scales” in his favour,” asked Petse.

The SCA has three white male judges, Goosen said. Responding to Petse’s questions, he said he accepted that there was a constitutional imperative for a transformed judiciary and that because of this there could be limited space for white men. What he thought could tip the scale for him was his broad experience in law — he had spoken earlier of judgments he had written in diverse areas of law from shipping law to local government — and his commitment to transformation.

Goosen said that a careful look at his CV showed that he had worked at strengthening the judiciary through training, mentoring and “creating opportunities for people to be of their best in the institution”.

KwaZulu-Natal high court judge Piet Koen answered a similar question from Petse in his interview, which followed Goosen’s.

He said the transformation imperative was “always a difficult question” and was something the commission had to address. He said there were 11 women judges out of 21; and out of the ten men judges, three were white. He said he did not understand the constitutional imperative that the judiciary should broadly reflect SA’s population in terms of race to introduce an “employment equity analysis, at all costs”.

Koen said he could not get around the reality that he was a white male and would not try to do so. But he tried to give expression to sentiment behind the transformation imperative in the constitution by making his skills and ability available to all his colleagues on the bench and before that as a member of the KZN bar for 18 years, he said.

“I can only offer that openness, that ability to assist,” he said.

Interviews for the Supreme Court of Appeal are scheduled to continue tomorrow.