Five candidates up for Constitutional Court position

March 1st, 2013

By Nomfundo Manyathi

The Judicial Service Commission (JSC) was to interview the five candidates it had shortlisted for a sole vacancy on the Bench of the Constitutional Court on 22 February, shortly after this issue of De Rebus went to print. The position arose after Justice Zak Yacoob retired at the end of January 2013.

The candidates to be interviewed by the JSC were –

  • North Gauteng High Court Judge Selby Baqwa;
  • Supreme Court of Appeal Judge Ronnie Bosielo;
  • South Gauteng High Court Judge Brian Spilg;
  • advocate Jeremy Gauntlett; and
  • advocate Mbuyiseli Madlanga.

Prior to their interviews, the candidates provided De Rebus with some information about themselves.

Judge Baqwa

Judge Baqwa (61) was admitted as an attorney in 1976 and as an advocate in 1988; he subsequently took silk in 1997. Judge Baqwa was formerly a human rights and public interest activist lawyer and was appointed as the first Public Protector in 1995, a position he held until 2002. In his curriculum vitae, he notes that he developed the Office of the Public Protector from a ‘city-based institution’ with eight employees, to a national organisation operating in all the provinces, with more than 200 employees. He was also a founding member of the National Association of Democratic Lawyers.

Judge Baqwa has a number of qualifications, including a BIur from the University of Fort Hare, an LLB from the University of Pretoria and a Master in Business Administration from De Montfort University in the United Kingdom.

Judge Baqwa told De Rebus that he was honoured to be on the JSC’s shortlist. He preferred not to respond to other questions prior to the interviews.

Judge Bosielo

Judge Bosielo (55) holds a BIur and an LLB from the University of Limpopo, as well as an LLM from the University of Johannesburg.

Judge Bosielo became a judge at the North Gauteng High Court in 2001. In 2007 he was deployed to the Northern Cape High Court in Kimberley as acting Judge President until 2008. He then moved to the Supreme Court of Appeal, initially as an acting judge and later became a permanent judge.

He told De Rebus: ‘I feel profoundly humbled that there are thought leaders in this country who are of the view that, given my track record, I have the potential to add some value to the Constitutional Court in its gallant efforts of developing a new jurisprudence aligned to our new constitutional values of equality, dignity and fundamental rights for all.’

He added that as a black person, he grew up confronted by the ‘iniquities and injustices spawned by the odious apartheid system’ including ‘a plethora of … racist and discriminatory legislation’ that ‘sought to deny every black person his right to dignity’. This was the reason he decided to pursue a career in law, as he saw law as a ‘potent weapon in the arsenal that the oppressed masses could use to destroy the edifice of apartheid’, he said.

In respect of the Constitutional Court, Judge Bosielo said: ‘I have observed the Constitutional Court with keen interest as a lawyer. I thought that that court was conceived as a court that would be pro-poor and help to translate the pious promises in our very liberal and aspirational Constitution into reality. However, I have become despondent to see this important court being turned into a court for the elites and well heeled. With the passage of time this court has become prohibitively expensive for ordinary people to access, thus nullifying the ideal of making justice accessible to all the people. I would prefer to see this court seen as a symbol of hope for justice for all the people.’

He concluded by saying that his life is driven by ‘an unquenchable quest for justice for all’ and he would be happy to see this country and society transformed into an egalitarian and prosperous one where everyone ‘will have equal opportunity to realise their full potential and where the intrinsic worth of every citizen will not be determined by the colour of his … skin.’

Judge Spilg

Judge Spilg (63) holds a BCom, an LLB, an HDip (tax) and an HDip (company law) from the University of the Witwatersrand. He joined the South Gauteng High Court in June 2009 initially in an acting capacity and shortly thereafter as a permanent judge.

Judge Spilg told De Rebus that he was ‘deeply honoured’ to be nominated as a judge of the Constitutional Court. He said that his passion for the law stemmed from the pursuit of justice and the securing of rights. ‘Coming from a minority group [in which] a generation previously had suffered degradation and genocide purely because of race, it is perhaps natural that I gravitated to law as the means of seeking to protect individuals and communities and as a means for seeking to achieve socio-economic upliftment,’ he said.

Judge Spilg said that he did not aim to do things differently to every other judge on the Constitutional Court Bench if he was appointed to the position: ‘On the contrary, I believe in a process of constructive engagement and sharing ideas and experiences; and then only after fully understanding the inner workings of a system or process. On an individual level and outside court hours, I would like to go to schools and centres, including prisons, and, if possible, [make use of] radio to reach smaller communities to discuss values, self-worth, aspirations, rights, responsibilities, mutual respect and consideration, including respect for institutions … within our constitutional framework, at a more conversational level.’

Advocate Gauntlett

Mr Gauntlett (62) holds a BA and an LLB, both cum laude, from the University of Stellenbosch and a Bachelor of Civil Law from the University of Oxford. He was a judge of appeal in Lesotho from 1997 to 2010 and was also a commissioner at the South African Law Reform Commission from 1996 to 2006. He has been an arbitrator and an appeal arbitrator since 1992, as well as an arbitrator at the International Commercial Court since 2008.

In addition, Mr Gauntlett has acted as a magistrate and as a judge at the Western Cape High Court.

Mr Gauntlett was elected for three successive terms as chairperson of the General Council of the Bar from 1999 to 2002. He was admitted as an advocate in South Africa in 1974 and was appointed senior counsel in 1989. He is also admitted to practise in Botswana, Lesotho, Namibia, Zimbabwe, England and Wales.

Mr Gauntlett received 11 nominations for the Constitutional Court vacancy, some of which were signed by multiple nominees. The other candidates were each nominated by one or two people. Some of those who nominated Mr Gauntlett were Archbishop Njongo Ndungane; Western Cape Premier, Helen Zille; former anti-apartheid activist, Mamphela Ramphele, now a businesswoman and academic; former chairperson of the Johannesburg Bar Council and now member of the English Bar, Sydney Kentridge; and President of the Inkatha Freedom Party, Mangosuthu Buthelezi.

Mr Gauntlett told De Rebus that he was honoured to have been nominated and he appreciated the many nominations he had received. He said that he had pursued a career in law as his mother had been a bookkeeper at an attorneys’ firm and he admired those she worked for and what they did. His love for the law started there, he said.

Mr Gauntlett added that he did not believe in a ‘passion’ for law as law required a ‘dispassionate commitment’. In respect of possible appointment to the Constitutional Court, he said: ‘No member of a court should, in my view, aim to do things differently. It is a team, not a place for personal indulgence,’ adding that should he be appointed, he would ‘only hope to do my best’.

Advocate Madlanga

The fifth candidate, Mr Madlanga (50), holds a BIur from the University of Transkei, an LLB from Rhodes University and an LLM (cum laude) from the University of Notre Dame in the United States.

Mr Madlanga started his career as an interpreter at the Mount Frere Magistrate’s Court. He was a judge of the High Court from 1996 to 2001 before resigning to practise as senior counsel. During his time as a judge, he also acted in the Supreme Court of Appeal and the Constitutional Court, as well as in the capacity of Judge President of the Transkei Division of the High Court. From 2009 to 2012 he was deputy chairperson of the Competition Tribunal.

Mr Madlanga told De Rebus that being shortlisted was ‘humbling, exciting and unnerving’.

He said that in high school he had wanted to be a teacher or a truck driver, but his father had persuaded him to pursue a career in law.

‘It was my late father who triggered in me an interest in law. In my last year of high school he mentioned the possibility that, if I studied law, I might end up becoming a judge. The idea appealed to me and I registered for a law degree the following year, and I was hooked,’ he said.

Mr Madlanga was appointed as a member of the JSC in February 2010, a position he held until resigning when he accepted the current nomination for the Constitutional Court. At the time of going to print, Mr Madlanga was chief evidence leader of the Commission of Inquiry into the Marikana tragedy.

Mr Madlanga said that if he was appointed as a Constitutional Court judge, he would strive for justice, ‘with the Constitution being my true north’, as he believed that all judges should strive for this.

No female nominees

JSC spokesperson CP Fourie told De Rebus that the commission had not received any nominations for female candidates for the Constitutional Court vacancy. He reiterated the JSC’s call to stakeholders to ensure that they nominate suitably qualified women for vacancies.

Mr Fourie said that the JSC was not responsible for approaching women candidates to apply for vacancies. He said that the JSC’s role was to canvass nominations, interview the candidates and make recommendations, adding that it was the collective responsibility of stakeholders to nominate more women.

Latest judicial appointments

On 7 February President Jacob Zuma appointed 12 new judges to various divisions of the High Court.

The appointees were recommended by the JSC in October last year and took office on 15 February 2013. They are –

  • Judge Achmat Jappie as Deputy Judge President of the KwaZulu-Natal High Co­urts, Pietermaritzburg and Durban;
  • advocate Murray Lowe, as judge at the Eastern Cape High Court, Port Elizabeth;
  • attorney Buyiswa Majiki, as judge of the Eastern Cape High Court, Mthatha and Port Elizabeth. She will be based in Mthatha;
  • advocate David Fourie as a judge of the North and South Gauteng High Courts, Pretoria and Johannesburg;
  • attorneys Judith Cloete, Mokgoatji Dolamo, Babalwa Mantame and advocates Owen Rogers and Ashton Schippers as judges of the Western Cape High Court, Cape Town;
  • Judge Basheer Waglay as Judge President of the Labour Courts; and
  • Judge Dimpheletse Moshidi and Judge Willem Wepener as judges of the Electoral Court.
  • See 2012 (Dec) DR 9 and 2012 Oct DR 7.

Nomfundo Manyathi-Jele,

This article was first published in De Rebus in 2013 (March) DR 6.