The Judicial Service Commission (JSC) recommended Cape advocate Melanie Holderness and magistrates Mas-udah Pangarker and Nontuthuzelo Ralarala as judges for the Western Cape on Tuesday.
The JSC left one post vacant after interviewing seven candidates.
During the interviews, a number of the candidates were unable to answer legal questions about administrative law, mostly put to the candidates by commissioner Nico Boshoff, who was standing in for Western Cape premier Alan Winde.
Boshoff prefaced his questions by saying that the Western Cape High Court dealt with a lot of administrative law issues, given its proximity to parliament.
Holderness, an advocate at the Cape Bar for over 20 years, was one of the few able to correctly answer Boshoff’s questions. She had done acting stints on the Cape bench since 2016 and three of her judgments had been reported in the law reports, she told the commission.
Holderness was questioned by commissioners on what she had done to bring black juniors into her cases and she replied that she, a junior herself, had “had no juniors, full stop”. She did not have the kind of practice that allowed her to bring juniors into matters, whatever their race or gender. During an exchange with Tembeka Ngcukaitobi SC however, he pointed to various warm commendations she had received from black attorneys and colleagues at the bar.
The other white candidate, Phillipa Van Zyl, also from the Cape Bar, had a more gruelling time of it, after the Western Cape branch of Advocates for Transformation suggested the JSC should probe her contribution to the profession on this score.
Van Zyl initially said though she was not a part of organisations, she was “approachable” and available to colleagues to assist. But she was pressed by commissioner Fasiha Hassan for specifics, with Ngcukaitobi saying she was speaking in “nebulous terms”. Van Zyl then responded that she had twice shared her fees in big cases with black juniors, and had been part of advocacy training for pupils at the bar.
At one point commissioner Kathleen Matolo-Dlepu said: “I don’t think the candidate understands what transformation is all about. It’s quite sad.” Van Zyl said she did not agree. Van Zyl did not get the nod, though she was able to answer law questions.
Pangarkar got Boshoff’s law question right (and another later one — this time from Hassan — wrong). But she appeared to impress commissioners by the fact that she had held former judge president John Hlophe’s attorney, Barnabas Xulu, in contempt of court. This, while Hlophe was still incumbent as judge president.
She told the commission that when she was considering the matter, she did not have “an apprehension” that her judgment would hamper her judicial prospects. She was aware Xulu was the JP’s attorney, but “I divorced myself from any outside noise”, she said.
After she delivered the judgment, she was told “this was a very brave thing to do, being an acting judge at the time in this division”. But she said she was invited back to act, she said.
Ralarala, a prosecutor since 1997 and a magistrate since 2005, had a short interview, with only the chief justice, acting judge president and Boshoff asking her questions. She told the JSC she had acted for 65 weeks in the Western Cape High Court with of three judgments reported in the law reports.
Another candidate cape advocate Penelope Magona-Dano struggled with law questions and was also criticised by commissioners for her judgment writing skills. Commissioner Sesi Baloyi SC said that the judgments she had submitted to the JSC were “a matter of serious concern for me” because, even if the order was right, they “don’t convey clearly your reasoning [and] your thought process”.
Magona-Dano did not get the nod, but it emerged in her interaction with acting judge president Patricia Goliath that Goliath had identified her as someone “with potential” and that Magona-Dano had wanted to participate in the advanced aspirant women judges training programme but had not been able to afford to. Previously, advocates that participated in the programme had been financially supported, but this had stopped due to budget constraints.
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