KwaZulu-Natal judge Philip Nkosi has been recommended by the Judicial Service Commission (JSC) to take up the role as deputy judge president in the province.
Though not a given, it could mean that he will be the next judge president if and when judge president Thoba Poyo-Dlwati moves on to a higher court. It was a two-horse race between judge Nkosi and judge Nkosinathi Chili, with a third contender, judge Jacqueline Henriques, seemingly pulling out.
Her name was on the shortlist and interview schedule, but she was not interviewed by the JSC on Wednesday.
While the JSC’s deliberations are private, concerns were expressed during Chili’s interview about the fact that he is presiding over Jacob Zuma’s arms-deal related corruption trial and this could tie him up for years, distracting him from his administrative duties as the second-in-command.
Furthermore, some of the commissioners were less than impressed with his answers as to how he would deal with cases of sexual harassment in the courts.
Chief justice Mandisa Maya tried to come to his rescue by saying a new policy on sexual harassment was being circulated to judges and, because of this, perhaps he would not be in a position to say now how he would handle such complaints.
I am very concerned about your consistency. It damages the administration of justice. You tell a litigant x and then you say y.
— Adv Tembeka Ngcukaitobi to judge Nkosinathi Chili
Initially he said he would defer to the judge president, but when pushed, he then said he would conduct his own “mini investigation”.
“I would then suggest that the person is suspended pending the finalisation of the investigation.”
Maya asked what legal instrument he would use to do this.
Earlier chief justice Maya, in a reference to the Zuma trial, referred to one of two part-heard matters judge Chili was presiding over.
“If one of those proceeds, it will take a significant amount of time. Will you be able to handle your administration while you are running a long trial?’ Chili answered in the affirmative. He said former judge president Achmat Jappie had presided over the long running trial of the Shembe succession.
“It's doable,” he said.
Commissioner Adv Tembeka Ngcukaitobi took issue with the fact that in the Zuma trial, Chili, in refusing Zuma’s (second) application for the removal of lead prosecutor Billy Downer, had initially said he would not give written reasons but had then changed his mind, and provided them.
“I am very concerned about your consistency. It damages the administration of justice. You tell a litigant x and then you say y.”
Chili said he did not think it appropriate to comment on the matter because his reasons were part of (Zuma’s) pending appeal against his ruling.
Commissioner Nicholas Gotsell questioned why it had taken him five months to write a “simple ruling” in Zuma’s application to remove Downer.
Chili said he was doing circuit duties, and because it was a criminal matter, he had to be present in court to hand down the ruling, as opposed to giving it to another judge to hand it down in motion court.
He identified RAF matters clogging up the courts and delays in criminal appeals as two of the major challenges facing the division. He had been tasked with dealing with both and believed solutions were in the offing.
It was important for the old recording machines to be phased out and for the division to embrace the case-lines technology. He said previous “divisions” among judges had been resolved since the appointment of judge Poyo-Dlwati.
Judge Nkosi, in his interview, attempted to downplay the divisions saying he “did not get involved”.
A major sticking point with Nkosi’s interview was a complaint that he had been rude to an advocate who appeared before him and had not provided a written order in the matter.
But Nkosi denied he had treated the advocate badly and said he actually “worships the ground that she walks on”.
He said he was completely unaware of the complaint that it had taken months for the order to be typed. “The first time I heard about it was in this correspondence to the JSC,” he said.
Both candidates were asked about the shocking statistics from the regional court which, Poyo-Dwati said, showed that magistrates were sitting for only one-and-a-half hours per month.
They said the reasons needed to be probed and the magistrates should be held to account. The JSC was to interview eight candidates for six vacancies in the division on Wednesday afternoon. But it only interviewed six.
Two, Pretorius Msiwa and Nomfundo Sipunzi, were not interviewed.
