A candidate for the Constitutional Court told the Judicial Service Commission on Tuesday that she should not be discriminated against on the basis of her financial status when she was asked about being under debt review.
People who are declared insolvent – one of the two possible consequences of debt review – may be considered not fit and proper to be judges. “The risk is there,” said commissioner Tembeka Ngcukaitobi SC.
Dr Madumetja Malepe responded that the risk was “going down” because the loans that had led to her being placed under debt review were now very low.
The JSC was interviewing for two vacancies on South Africa’s apex court, with six candidates to be interviewed in total over Tuesday and Wednesday. According to the constitution, the commission must give President Cyril Ramaphosa three more names than the number of vacancies it wants to fill – this time, five in total.
If Malepe does not get the nod, it would mean that all of the other candidates would need to get a majority of votes if the president is to make two appointments. If two candidates do not secure a majority of votes (the JSC will deliberate and vote on Tuesday), then the commission may only be able to recommend for one of the vacant posts; and the second would remain vacant, to be filled at a later stage.
Malepe is an academic and former director of legal and quasi-legal training at the Brigitte Mabandla Justice College.
The other candidates interviewed on Tuesday were Supreme Court of Appeal (SCA) justices Nambitha Dambuza-Mayosi and Glenn Goosen, Western Cape High Court and Labour Appeal Court judge Kate Savage and senior counsel Alan Dodson. SCA justice Ashton Schippers will be interviewed on Wednesday.
The debt review issue was not the only one that Malepe struggled with. Another was that she had no written judgments that she was able to put before the JSC for commissioners to assess whether she would be “up to the task”, as president of the SCA, Mahube Molemela, said. She responded that her writing as an academic exposed her writing skills.
She was also grilled about the fact that she had listed judgments in the section of her JSC questionnaire that asked her to name “reported” cases in which she had appeared. However, in comments from the General Council of the Bar (GCB), the GCB’s reviewers said they were unable to locate the judgments.
She responded that the judgments had been marked “reportable”. But Ngcukaitobi said that, in that case, they would have been reported on the Saflii website and were not. She also was not able to find those she marked “reportable” and bring them to the JSC.
The other candidates interviewed on Monday – Dambuza-Mayosi, Dodson, Goosen and Savage – had a much easier time of it. Dambuza-Mayosi, one of the most senior justices of the SCA, only faced some tough questions on delayed judgments.
She told the commission that her judgments were sometimes delayed but this was not because she was not working: “One thing I can guarantee you commissioner is that there is no time that I am not working on a judgment. No time. No night, no day.”
She said that all the judges of the SCA worked extremely hard. If someone were to come there on a Saturday, “there’s everybody there”. But it was still a struggle, she said. When she started at the SCA, she would manage to get judgments out in the same term, she said. But by 2023, this had become increasingly harder, she told the commission.
Later, chief justice Mandisa Maya added that challenges with the delivery of judgments happened throughout the judiciary – from the apex court through to the high courts. “And one of the key reasons is that there has been an explosion of litigation in the recent while. And unfortunately the number of judges remains the same as it was 15 years ago.”
Judges did not delay judgment deliberately. They “work all the time, we don’t sleep. I’m exhausted, sitting here. But there’s just too much work,” Maya said.
During Dodson’s interview, he said there were insufficient resources at the Constitutional Court.
“I think the Constitutional Court was unfairly allocated a massive expansion of their jurisdiction. They were given a general jurisdiction on non-constitutional issues, with absolutely no increase, it seems to me, in the resources that were made available to them for the additional surge of work that has most certainly come,” he said.
JSC procedings continue on Wednesday with Schippers to be interviewed for the Constitutional Court and interviews for one vacancy at the Supreme Court of Appeal.
