By Nomfundo Manyathi

The Black Lawyers Association (BLA) has voiced concern about the shortlisting of candidates for three available positions at the North and South Gauteng High Court. Only two candidates were shortlisted by the Judicial Service Commission (JSC) for the available positions, namely Johannesburg attorney Tanya Brenner and Pretoria advocate David Fourie.

In a press release, BLA President Busani Mabunda said: ‘The shortlisting insofar as it relates to the North and South Gauteng High Court is worrisome in that it is patently not reflective of the demographics of South Africa. The net effect of possible appointments, given that background, is that it may render the constitutional powers enjoined to the Judicial Service Commission superfluous due to its failure to have regard to section 174(2) [of the Constitution].’

Further, he asked: ‘Could it be that there were no candidates to whom section 174(2) would apply to when applications were made or could it be that according to the selection committee the said candidates, if available, were not meeting the criteria? Wherever the answer lies, any apparent or overt decision which may have the effect of not realising or undermining the objectives as set out in the Constitution should be avoided at all costs.’

Mr Mabunda said that s 174(1) specified who may qualify for appointment to judicial office, namely any appropriately qualified South African citizen who is fit and proper; while s 174(2) states: ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’

Mr Mabunda added that although s 174(2) was clear and unambiguous, there was a need for the section to be interpreted by the Constitutional Court to assist the JSC when discharging its mandate. The provisions, he said, were crafted in the manner they were to redress the discriminatory nature of previous appointments. ‘It was accordingly provided for as a measure of redress against the imbalances which were skewed towards the minority, in particular white males. It should accordingly be freed from ambiguity when it comes to interpretation,’ he said.

JSC spokesperson, CP Fourie, told De Rebus that the JSC had noted the BLA’s statement and its suggestion that the provisions of s 174 be interpreted by the Constitutional Court. This suggestion was welcomed by the JSC, he said, adding that the JSC encouraged the BLA to pursue this as it would assist the commission in fulfilling its mandate. Mr Fourie highlighted the fact that the JSC had always endeavoured to apply the requirements of s 174 in pursuing its constitutional mandate.

On the question of why only two candidates were shortlisted for the North and South Gauteng High Court positions, Mr Fourie told De Rebus that the JSC was of the view that Ms Brenner and Mr Fourie were the only candidates that qualified for consideration to fill the vacancies. He said that the third vacancy would be re-advertised.

Shortlisted candidates

Ms Brenner, 50, has been practising as an attorney for 23 years. She opened a sole proprietor conveyancing firm in 2004. She has previously sat intermittently as a commissioner of the small claims court in Hillbrow and has also acted as a judge of the South Gauteng High Court on several occasions, as well as at the Mafikeng High Court earlier this year.

Mr Fourie, 59, became an advocate in 1982 and took silk in 1998. He was a commissioner of the small claims court for a period of approximately three to four years. Mr Fourie has also acted as a judge of the North Gauteng High Court a number of times since 2000.

In addition to the vacancies at the North and South Gauteng High Court, six attorneys and 14 others will be interviewed to fill 14 available vacancies at the various superior courts in the country.

Attorneys Pumzile Majeke and Buyiswa Majiki have been shortlisted, in addition to four others, for two available vacancies at the Eastern Cape High Court.

Mr Majeke, 62, was admitted as an attorney in 1982. He currently practises in East London and specialises in conveyancing, personal injury claims, mediation and High Court litigation.

Mr Majeke has acted as a judge of the Eastern Cape High Court intermittently over a number of years. He was President of the Cape Law Society from 2008 to 2010 and vice-president of the National Association of Democratic Lawyers from 1990 to 2004.

Butterworth attorney Ms Majiki, 42, has been a practising attorney for 17 years. She was admitted as an attorney in 1995 and has acted as a judge of the Eastern Cape High Court a number of times. She is a former President of the South African Women Lawyers’ Association and is currently a member of the Electoral Court. She is also a commissioner of the small claims court.

Four attorneys are on the shortlist of eight for four vacancies at the Western Cape High Court, namely Judith Cloete, Mokgoatji Dolamo, Stephen Koen and Babalwa Mantane.

Ms Cloete, 49, was admitted in 1988 and is currently serving her seventh term as an acting judge at the same court, where she has acted continuously since October 2010.

Mr Dolamo, 57, was admitted as an attorney in 1990. He is involved in general litigation. He was a commissioner of the small claims court from 2001 to 2003 and has acted as a judge of the North Gauteng High Court and the Western Cape High Court.

Mr Koen, 52, was admitted as an attorney in January 1987 and has worked at his current law firm since August that year. He is a commissioner of the small claims court and has been an acting judge of the Western Cape High Court several times between 2007 and August 2012.

Ms Mantame, 38, was admitted as an attorney in 2000. She has acted as a judge of the same court for several terms from April 2011 to September 2012.

No candidates were shortlisted for the position of Deputy Judge President of the North Gauteng High Court. This vacancy will be created after Judge Willem van der Merwe retires at the end of the year. The JSC has deferred a decision on this vacancy to its sitting in April next year.

The interviews of those shortlisted as set out above will take place in Cape Town from the 15th to the 19th of this month.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (Oct) DR 7.