The Supreme Court of Appeal (SCA) has a new deputy president in Xola Petse after the Judicial Service Commission (JSC) on Tuesday found that Petse — nominated for the post by President Cyril Ramaphosa — was suitable for appointment.
The JSC further recommended five candidates for appointment to the appeal court, with all the women candidates who were interviewed getting the nod.
The five recommendations, which President Cyril Ramaphosa must rubber-stamp, are: Western Cape high court judge Dan Dlodlo, Gauteng high court judge Caroline Nicholls, KwaZulu-Natal high court judge Yvonne Mbatha, Limpopo high court deputy judge president Fikile Mokgohloa and Eastern Cape high court judge Clive Plasket.
During one of the interviews, SCA President Mandisa Maya said that there was a “crisis” at the SCA, because there were only six women judges out of 22 permanent judges.
Judge Nicholls had a pleasant interview and was very candid about her experiences at the appeal court when she was first appointed there as an acting judge, saying she felt unwanted and unwelcome.
It emerged during the interviews that the appeal court was still struggling with collegiality amongst its judges.
Nicholls said that things had changed since Maya was permanently appointed the court’s president and had sought to address the issue head on and transparently,
She also made commissioners laugh when, in response to a question from Chief Justice Mogoeng Mogoeng. Nicolls recounted how an advocate had insisted on speaking Afrikaans in her court, so she responded in isiZulu: “Kulungile. Sizoqhubeka ngesiZulu. Uyaqondisisa.” At this point, she told the commissioners, the counsel said he would speak English.
Dlodlo seemed to charm the commission, saying that though he had not experienced negativity from the seniors at the SCA, he had heard reports of this from colleagues. He said he was passionate about supporting acting judges. “If we do not grow these people, we are killing the system of the judiciary,” he said.
Commissioner Thabani Masuku SC said he could testify to Dlodlo’s support of him when he had been an acting judge in the Western Cape division.
Mokgohloa also impressed the JSC, deftly dealing with a complaint sent in to the commission that she had “denied justice” to a minor child when she refused to make an order in terms of a settlement agreement. To the apparent approval of some commissioners, she said she was not satisfied with the settlement agreement. “I am of the view that once I order a settlement agreement, it becomes my order and I am accountable for it.”
Mbatha had a very short interview — less than 20 minutes — unlike Plasket, who was questioned at length about administrative law, the laws of eviction and expropriation of land without compensation. Commissioner Dali Mpofu SC asked him whether it was genuinely conceivable under Section 25 of the Constitution, as it stands, to have expropriation without compensation — looking at the section as a lawyer and not philosophically, like in theory it was possible to walk to Cairo. Plasket replied that, if it were, it would be in exceptional circumstances.
On Wednesday, the JSC will be interviewing for two vacancies at the Constitutional Court.