IT REMAINS to be seen whether the Judicial Service Commission will recommend all four candidates that it interviewed on Saturday for a single vacancy on the bench of the Constitutional Court, because all four showed that they were suitable for appointment.
The commission took a chance by interviewing only four candidates, because all four had to get a majority yes vote from commissioners before the president could choose a name from those submitted to him.
The constitution states that the commission must prepare three names more than the number of appointments to be made.
If one of the candidates was not chosen, the commission would not be able to submit the list to the president and the commission would have to advertise the post for the third time.
If all four names were submitted, the president had to choose from a strong list, consisting of Supreme Court of Appeal (SCA) j udges Lebotsang Bosielo, Mandisa Maya and Robert Nugent, and North Gauteng High Court Judge Raymond Zondo, who appeared on Saturday before the commission chaired by Chief Justice Mogoeng Mogoeng.
Judges Zondo and Maya had served as acting judges at the Constitutional Court.
Commissioner Judge Bernard Ngoepe said that although gender representivity was important, it would not make sense if the three male candidates deferred to the female candidate.
"If all of you defer, we would not be able to put names to the president. This could be a charade. It cannot be so that three of you are best men accompanying the bride. When we send four names to the president, we must offer a meaningful choice to the president," Judge Ngoepe said.
Judge Bosielo, who has been at the appeal court for three-and-a-half years, told the commission that he was an advocate for the independence of the legal profession.
However, he said, there were questions about the fees charged by the B ar and this had a direct effect on access to justice.
Judge Bosielo also said he was an advocate of judicial independence and agreed with commissioner Izak Smuts that no decisions of the court could be subject to revision.
He also said he would not dispute a suggestion by the Black Lawyers Association that he should sit a few more years at the appeal court and should have acted at the Constitutional Court before being appointed. "I have not acted at the Constitutional Court. It would give me added advantage to act at the Constitutional Court, but I cannot apply to act there," the judge said.
Judge Bosielo also said the separation of powers was entrenched in the constitution to ensure that none of the arms of government strayed into the domain of others.
When asked whether his appointment would enhance gender representation at the Constitutional Court, where there were only two female judges, Judge Bosielo said that it would not.
Judge Maya said if appointed, she would bring diversity to the court which was the least gender representative court in the country.
"I would benefit the court in that instance. The SCA is in a better position," the judge said.
She said her duty was to uphold the constitution and the law.
Judge Nugent, who has written more than 250 judgments in his role as judge in the South Gauteng High Court from 1993 to 2001 and at the appeal court since 2002, said he took a lot of trouble to explain complex legal issues in a simple manner.
Judge Nugent also said some members of the commission were concerned about his decision not to avail himself for interviews for the position in 2009.
He had told former Constitutional Court judge Johann Kriegler that he was "not prepared to submit his candidacy to the deliberations of people he does not trust".
He had made these remarks after the commission decided not to hold a formal hearing on the dispute between Judge President John Hlophe and judges of the Constitutional Court.
Civil society group Freedom Under Law challenged the decision and the appeal court set aside the decision to clear Judge Hlophe of gross misconduct, saying that the decision was unlawful.
Judge Nugent said that he presented himself to the commission this time because he thought the matter had ended after the appeal court made its ruling.
Judge Nugent said he knew there were a lot of factors against him as he did not fit the gender and race profile. He said his track record was in the judgments he had written.
Judge Zondo was praised by Chief Justice Mogoeng for writing one of the most complex judgments in the matter of Sishen Iron Ore's mining rights.
Judge Zondo had to explain again why he delayed handing down judgments while he was judge president of the Labour Court and the Labour Appeal Court.
mabuzae@bdfm.co.za
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