By Lehlohonolo Lehana.
The Judicial Services Commission (JSC) has been interviewing candidates for appointment to the Supreme Court of Appeal (SCA) on Monday.
The interviews on 20 and 21 May are crucial to the future of the South African judiciary for the next decade.
Ten candidates are shortlisted for three vacancies on the SCA Bench. The SCA interview round is essentially a rerun of the October 2023 interview session. Then, the JSC interviewed 10 candidates but bizarrely failed to recommend candidates for two vacancies on the appellate court.
All 10 candidates are experienced, senior judges of the high court. They capture the full diversity of South Africa, on regional, racial and gender metrics. The JSC will have a tough job selecting the final three from the list.
Gauteng High Court Judge Namhla Siwendu, who currently sits in the High Court in Johannesburg, took the hot seat and was asked by SCA president, Mahube Molemela, about the need to appoint experienced jurists.
Molemela’s question came against the backdrop of the SCA having recently lost justices with cumulative hundreds of years’ worth of experience and Siwendu having been a judge for seven years.
She said, though, that law was dynamic and it’s not unheard of to appoint judges with just a few years’ experience and “build a complement of skills”.
“In most instances, the skill set that’s left has stayed there 20 years and therefore the opportunity to refresh got stymied and limited. And I’m not going to dispute, absolutely, experience is important, experience is critical. But the renewal and fresh thought and fresh thinking is sometimes necessary to keep the law dynamic and responsive to social needs.”
KwaZulu-Natal (KZN) High Court Judge Piet Koen has told the Judicial Service Commission (JSC) how he agonised over whether to recuse himself from former president Jacob Zuma’s corruption case.
The commission interviewed Koen for a position at the Supreme Court of Appeal (SCA) on Monday.
He faced a grilling over the decision he took to step down from the case, as Judge Piet Koen recused himself early last year after an announcement from Zuma’s legal team that they were bringing another application for State Advocate Billy Downer’s removal from the matter.
The court had heard how the application would be based on the fact that Zuma had launched a private prosecution against Downer, in which he claimed that his medical information had been unlawfully leaked to the press.
Koen took the decision against the backdrop of his having already found there was no merit in the claims in question when he dismissed Zuma’s special plea.
In his interview on Monday, though, commissioners Carol Steinberg and Thembeka Ngcukaitobi expressed concerns about it and even Chief Justice Raymond Zondo weighed in on the discussion.
Steinberg said she was “disturbed” that Koen recused himself when none of the litigants in the trial called for him to recuse himself.
“I was rather disturbed when you recused yourself in the criminal trial of former president Jacob Zuma … Neither party called for your recusal,” said Steinberg.
You put it [recusal] on the agenda and recused yourself. I am concerned because our Constitutional Court said the duty of the judge is to sit and hear interlocutors and exercise their discretion [when it comes to recusal].
This is a case of huge national importance, and the judiciary has become an object of criticism for over 19 years on this case [due to the delays].
“When you recused yourself, you set back the timelines quite significantly. I want to hear your justification for why you took that unusual step.”
Koen stood by his decision, though.
“I can assure you, I agonised over this issue for quite some time before I came to the conclusion which I did. Ultimately, it is a question also, I suppose, of conscience in a way. I placed myself in the position of that particular accused.”
“I raised my continued participation in the trial, and the lawyers of Zuma said they also want to raise the issue [recusal].
“The process [the trial] began on the basis that there was a challenge to the title of prosecutor on whether Downer had the right to prosecute the trial.
“I dealt with other grounds in the plea for whether Downer had the proper title to prosecute, and I ruled that the argument by Zuma was insufficient and had no merit or substance.
“Afterwards, there was an application brought before me regarding the private prosecution of Downer and contravention of the National Prosecuting Authority Act.
“I had to decide if that application was well-founded, when I had previously found that the contravention [of title of prosecutor] was without substance.
“I could not sit there, deciding the issue of whether Downer should remain as prosecutor where a criminal private prosecution was on the cards, when I previously found that there was no substance to that complaint [lack of title to prosecute].
“The judicial process should be beyond reproach.”
Koen, aged 64, has been a judge for 17 years since his appointment as a presiding officer of the KwaZulu-Natal Division of the High Court in November 2006.
Ultimately, the JSC resolved to add the names of Judge Raylene Keightley of the Gauteng High Court and Judge John Smith of the Eastern Cape High Court to the list of SCA nominees.
Keightley, who has a background spanning academia, civil society and work as a State advocate, gave arguably the most impressive interview of the day — with sharp, comprehensive answers throughout.
Smith will become one of the few permanent coloured judges in the highest courts: a fact which may be salient to mention because numerous commentators on social media appear to be labouring under the misapprehension that all three nominated candidates are white.
On his fifth appearance before the Judicial Service Commission, Judge David Unterhalter finally succeeded in winning the JSC’s recommendation to a higher court — joining Judge Keightley and Judge Smith on the list for the SCA.