ANC concern over 'activist' lawyer's bias towards poor

Attorney's work for the indigent seen as potential problem by some in JSC.

There was a revealing exchange during the Judicial Service Commission's interviews of prospective judges in Cape Town this week.

Noting that candidate Mahendra Chetty had, since 1995, worked as an attorney for the Legal Resources Centre, commissioner Fatima Chohan - who is deputy minister of home affairs - said she would be "slightly discomfited" if a matter between South Africa's "indigent" and the government appeared before a judge with Chetty's "activist background".

The inference was that Chetty - who was eventually recommended for appointment to the bench in the KwaZulu-Natal division and is therefore likely to be appointed - would allow his human rights background to colour his judicial independence.

A common refrain in previous years in questions posed by commissioners aligned to the ANC, including Deputy Correctional Services Minister Ngoako Ramatlhodi, has been concern about the separation of powers.

The questions underline a perception that judges are encroaching on, and usurping, the policymaking role of the executive and that unelected judges are not allowing a government elected by a majority to govern.

This perception has apparently previously influenced the lack of appointments among candidates with human rights backgrounds and records of ruling against the government.

One such candidate was Judge Clive Plasket of the Eastern Cape division, who, in 2012, was snubbed for a position in the Supreme Court of Appeal.

Chetty said that "even though" he had acted for the "downtrodden and poor, I wouldn't like to think this is a disadvantage".

"I am a fair person ... The fact that I have acted my entire life for a group of people doesn't mean I will abdicate my judicial responsibility," he said.

Chohan's questioning over the past few years has represented a hardening sentiment in parliament and the cabinet that there has been too much interference by judges since 1994.

When Chetty suggested there ought to be a "natural tension" between the three arms of government - like a tennis match in which a court ruling sends the ball back to the executive or parliament - Chohan responded: "My experience is that when the Constitutional Court rules, that is the end of the matter."

Chohan's view is vastly different to that of many in the legal sector - especially those who litigate in the public interest - who see the "tennis rallies" between the arms of government as part of the dynamism of democracy and the fleshing out of the rights in the constitution.

Few of the lawyers interviewed by the commission this week were asked about their briefing of black and female juniors, which has previously been a standard line. Almost all were asked, however, about steps that could be taken to widen the pool of female candidates for judicial office.

Judgments written by candidates were duly dissected.

The integrity of potential judicial officers was also interrogated, with Judge John Murphy of the High Court in Pretoria - widely considered one of the best candidates for a position in the Labour Appeal Court - disregarded because of a complaint lodged against him.

The commission recommended high court judges Phillip Coppin, Adolph Landman, Mahube Molemela, Cagney Musi and Roland Sutherland, but suggested to Murphy that he reapply once the complaint had been settled because there were still six vacancies on the bench.

Magistrate Sibusiso Msani, who according to an objection to his candidacy has allegedly dodged maintenance payments for three children, was treated more harshly.

Among other recommendations made by the commission were high court judges Kevin Swain, Boissie Mbha and Dumisani Zondi for posts in the Supreme Court of Appeal.

tolsin@timesmedia.co.za