AFTER a year-long moratorium on appointments to the Western Cape High Court, the Judicial Service Commission (JSC) will next Wednesday be looking to fill four vacancies on the Cape bench.
In the past, interviews for the Western Cape High Court have tended to be dramatic and controversial, with shock non-appointments and highly charged interviews. This time round, anticipation is even higher and Wednesday’s interviews will be watched with bated breath by lawyers.
Despite the many vacancies, the overall quality of candidates is so high that it is bound to be a tight race. In particular, two candidates, Owen Rogers SC and Jeremy Gauntlett SC — regarded as two of SA’s finest legal minds — might be pitted against each other for a single spot.
JSC records show that — since at least 2000 — the commission has never appointed more than one white man in any single round of interviews.
With the high number of vacant spots, this round of interviews might see a break in this pattern. But if it continues it could mean the JSC ends up recommending either Mr Gauntlett, Mr Rogers or attorney Stephen Koen.
The JSC is probably still smarting from a resounding defeat at the Supreme Court of Appeal, which recently held that the JSC’s last round of Cape interviews was irrational. Despite a number of highly regarded candidates, the JSC recommended only one candidate and left two posts vacant — prompting the first ever court case against the JSC on its appointment function.
Mr Rogers, Mr Koen and attorney Judith Cloete — also being interviewed on Wednesday — were some of those overlooked in that fatal round. Mr Rogers lost by one vote. The JSC’s not appointing him shocked and enraged some in the legal fraternity.
Mr Rogers is an expert in tax, competition law and general commercial law. He is famous for being counsel in the case that overturned the Erasmus commission, set up to probe alleged irregularities in the City of Cape Town.
Lately, he led the legal team representing the Democratic Alliance (DA) to victory in the Constitutional Court in the DA’s bid to set aside the decision to appoint Menzi Simelane as national director of public prosecutions.
Mr Gauntlett has a long and unlucky history with the JSC. He was also overlooked for appointment to the Western Cape High Court in 2010 and has been interviewed twice for the Constitutional Court but was not appointed. The JSC’s overlooking him, especially when he lost out in 2010, also provoked fury in some quarters.
The number of reported cases Mr Gauntlett has appeared in runs to 270 — many of them groundbreaking constitutional cases.
Mr Gauntlett is also famous for his human rights work in Zimbabwe and Namibia and was an appeal court judge in Lesotho for 13 years.
However, he is equally famous in legal circles for his acerbic and sarcastic ripostes to his opponents in court — leading to questions about his "judicial temperament" the last time he was interviewed.
But even lawyers who had in 2010 objected strongly to his combative approach nonetheless said he deserved to be appointed. This time, he might face questions from commissioners about his application coming in more than three weeks after the closing date.
However, Mr Gauntlett and Mr Rogers are by no means the only highly regarded candidates. Also to be interviewed is Ashton Schippers SC — the first black silk from the Cape bar to make himself available for judicial appointment. He is a public law expert and has been involved in a number of landmark cases in the Constitutional Court such as the Grootboom case, which developed the law on socio-economic rights.
In his nomination letter, Advocates For Transformation Western Cape chairman Thabani Masuku describes Mr Schippers as the "only silk at the Cape Bar I am aware of who gives priority to working with black junior counsel and has in his practice made it a professional habit to bring black juniors into his work".
At the last round of interviews, the Cape Town silks were subjected to intense scrutiny over their mentoring of black juniors, or lack thereof, an experience that left some squirming in their seats. And it is understood that the Western Cape branch of Advocates for Transformation has written to the JSC asking it to look into whether candidates have exaggerated their contributions to transformation.
Another respected candidate is litigation attorney Mokgoatji Dolamo. Originally practising in Mpumalanga, Mr Dolamo has been acting as a Western Cape judge for most of this year and for a term last year.
Cape Town lawyers were positive about him, saying that, as an acting judge, he was knowledgeable, diligent and well prepared.
However, he might face questions about a judgment, which when he filled out his questionnaire, had been outstanding since January last year.
There are also three women candidates: Ms Cloete, senior magistrate Nonkosi Saba and attorney Babalwa Mantame, formerly a Cape Town state attorney. The JSC has in recent years been preoccupied with driving up the number of women judges, with the national average still low at 28%. Eight of the 28 judges on Cape Town’s high court are women — also 28% — but only one is African.
In her last interview, the biggest obstacle for Ms Cloete seemed to be the relatively few acting stints she had done at that point. She has now been acting since October 2010.
Ms Mantame, who as state attorney specialised in labour law litigation, has been an acting judge since last April and Ms Saba since last January.
Post a comment