A post on the Limpopo high court has been left vacant after the JSC announced on Wednesday it would not recommend any of the candidates it interviewed.
The JSC’s decision was unsurprising after all three candidates interviewed were grilled by the commission on the quality of the judgments they had written as acting judges and which they had submitted to the JSC as examples of their work.
One of the candidates decided to deviate from the minimum sentence for the rape of a six-year-old child because the doctor’s report had indicated the injuries could have meant the penetration was gentle or only partial. Another candidate was criticised for her lack of reasoning and logic, while a third candidate caused a convicted person to serve three extra years in prison.
During Adv Mususumeli Madavha’s interview, commissioner Sesi Baloyi SC referred to one of her judgments, saying her “reasoning, logic and thought process ... seem to be jumbled up and all over the place”, she said.
In another judgment the wrong party had been hauled to court. When they brought a special plea saying as much, which, if successful, should have put an end to the case entirely, Madhava had ordered that the correct party, who was the MEC for health, be joined. Madahva said she did not want to shut the doors to a poor litigant for a technicality.
Following up, Supreme Court of Appeal acting president judge Xola Petse asked: “Do you accept that the MEC for health was not before you. He was not given an opportunity to present his or her case. And now he’s faced with this fait accompli. That he is a party to these proceedings?” Madavha accepted that it was so.
Her reasoning, logic and thought process ... seems to be jumbled up and all over the place.
— Sesi Baloyi SC reviewing Mususumeli Madavha’s judgments
Baloyi suggested that Madavha may benefit from further training, but Madhava insisted she was ready for appointment, saying she had got more experience since these judgments were written.
At the end of her interview, deputy chief justice Mandisa Maya said that, while she did not know what the commission would decide, commissioner Baloyi had advised her to get more training and experience. “I just want to implore you to take that advice. It is sound advice. Please take it to heart.”
In attorney Podu Mdhluli’s interview, she spoke of the challenge communities had with the courts not understanding their customary law. Commissioner Tembeka Ngcukaitobi SC asked: “You are sitting as a judge and a case comes where there is a contested rule of custom, just tell us what steps you are going to follow to resolve the contestation and give us maybe three leading cases.”
Mdhluli replied that she would first employ common law as a point of departure. However, the constitution recognises customary law as a distinct system of law with equal status to the common law. Ngcukaitobi’s response to Mdhluli was: “No, thank you.”
However, the most eye-popping moment of her interview came when it emerged that, on appeal, Mdhluli had, sitting as an appeal court judge, increased someone’s sentence for assault from three to five years — even though the judgment did not say that the state had appealed against the sentence. An appeal court may only increase a sentence if the state has appealed, said Petse.
Ngcukaitobi then pointed out that Mdhluli had sat in that appeal with the most senior judge in the Limpopo division. The judgment is co-signed by its acting judge president, Matsaro Semenya.
This meant that the appellant had spent an extra three years behind bars as a result of an order the court was not competent to make — signed off by the court’s most senior judge.
The third candidate, magistrate Sharon Mthimkulu, responded to the same question from Ngcukaitobi on customary law, she said: “I do not have an answer for you.”
However, it was judgment on a rape sentence that drew the most intense questioning from the commission, after commissioner Kameshni Pillay SC asked about her judicial philosophy because in her judgment she had decided that, in the case of rape of a six-year-old child, it was a “substantial and compelling circumstance” allowing the court to deviate from the prescribed minimum sentence because the doctor’s report had indicated that the injuries could have meant that the penetration was gentle or only partial.
Mthimkulu first said she had written an earlier draft with a different conclusion on this aspect but been “swayed” by her more senior colleague who sat with her in the appeal. But this was met with a dim reaction from commissioners, who then questioned her independence. “Are you suggesting that you allowed your senior colleague to dictate their view?” asked deputy chief justice Mandisa Maya. Mthimkulu said no, she had been persuaded by her colleague.
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