By Lehlohonolo Lehana.
There were unusual scenes at the Judicial Service Commission on Tuesday when one of Gauteng’s most experienced judges was accused of failing to carry out his judicial duties.
Commissioners expressed concern that candidate judge Brian Spilg had seemingly demonstrated, as one commissioner put it, an “abandonment of judicial function” for not handing down judgment in a matter for three years.
The Competition Appeal Court (CAC) is a key regulatory body in competition matters, hearing appeals from the Competition Tribunal. It is the equivalent of a high court. It has five vacancies but only two candidates were interviewed yesterday: first, Western Cape High Court judge Lister Nuku, then Gauteng high court judge Spilg.
Nuku was one of the youngest judges appointed to the bench in 2016, having previously served as a partner at a law firm which represented now suspended Western Cape judge president John Hlophe.
Nuku was grilled about his lack of experience in competition matters. Commissioners, including chief justice Raymond Zondo, noted that if appointed to the CAC, Nuku could be ruling on matters decided by those with more experience. Nuku said that “the whole exercise [at the CAC] is about interpretation of statute”, which judges do every day. He also noted that in his acting stints on the CAC, he had already learnt a lot and was surrounded by those with more experience.
Both the commissioners and Nuku bemoaned briefing patterns in competition law and how black practitioners had struggled and still struggle to obtain experience.
Adv Tembeka Ngcukaitobi articulated why there was concern about Nuku’s lack of experience, because “if we lose before you [at the CAC], we have no remedy”. The CAC has the final say in competition law disputes, except for matters that could be heard by the Constitutional Court.
Nuku reassured the JSC that despite his lack of experience, he would be of value.
On Tuesday, before the day’s interviews began, JSC commissioner and IFP MP Narend Singh expressed concern about the fact that the body had received just two applications for five vacancies on the Competition Appeal Court.
On a number of occasions during the morning’s interviews, commissioners raised the issue of the lack of South African expertise in competition law and the resulting shortage of judges with the requisite skills.
Interviewing the only other candidate for the Competition Appeal Court, Judge Nuku, commissioners sought reassurance that he had enough expertise in this area.
JSC member Jenny Cane SC asked Nuku to give the body a sense that “you know about the major debates in competition law”, and received a weak response citing a section of the Competition Act.
While acting on the Western Cape Bench, Nuku set aside the University of Cape Town’s (UCT) suspension of #RhodesMustFall activist and the guy who flung the first bit of poo in a protest that eventually led to the Cecil John Rhodes statue being removed from campus, Chumani Mxwele.
It is not just this court that is affected by a shortage of applications. Arguably more worryingly, the Constitutional Court and the Electoral Court are also suffering the same problem.
On Monday, the Commission said it would recommend Justice Mahube Molemela for the position of President of the Supreme Court of Appeal.
The commission interviewed Molemela, the only candidate for the post, on Monday.
It said it would formally advise President Cyril Ramaphosa to appoint Justice Molemela for the post at the Supreme Court of Appeal.
Ramaphosa nominated her in February and asked the JSC to advise on her suitability to hold the position.
Molemela, an SCA judge, would replace Deputy Chief Justice Mandisa Maya if appointed.
Justice Maya was appointed as Deputy Chief Justice of South Africa replacing the former Deputy Chief Justice and current Chief Justice Zondo effectively from September 1, 2022.
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Video Courtesy of JRSA.