Members of the Judicial Service Commission (JSC) criticised candidates for the Gauteng High Court on Thursday for poorly reasoned judgments, applying incorrect legal tests, and one candidate’s low sentences for a rapist.
With five vacancies in the division, the JSC interviewed eight candidates.
Advocate Thembi Bokako was first in the hot seat. And it was not long before deputy chief justice Mandisa Maya criticised Bokako’s apparent rushed job of filling in JSC forms. Advocate Kamenshni Pillay, meanwhile said that one of Bokako's judgments was “incomprehensible” and “littered with errors”.
Bokako said those were written early in her career and under pressure. But advocate Sesi Baloyi said the same sort of issues arose from a recent “bad judgment”.
Advocate John Holland-Müter was the next candidate. Commissioners noted one judgment where his reasoning left “much to be desired”. However, Holland-Müter has had many years as an advocate and has acted for almost 80 weeks in the Gauteng court.
Attorney Denise Lenyai was praised by the General Council of the Bar (GCB), holding various leadership positions that have encouraged other women into the profession. The commissioners noted that she was interdicted from practising under her practice’s name for eight years, but she explained that she was the victim in those instances and that interdict was lifted.
Fellow attorney Mandlenkosi Motha was next, after sitting on the full bench for the Zimbabwe exemption permit litigation last week. He demonstrated a “commendable” attitude by working and remaining in Soweto, according to judge president Mlambo. Motha also stressed his passion for reflecting more of SA communities’ views in law.
However, Mlambo noted the GCB’s complaint that Motha had in one judgment applied a wrong test. Commissioner Pillay then tested Motha on another legal test, called Plascon-Evans, but was not satisfied with his answer.
Magistrate Bulawayo Prince Manyathi faced grilling too. Commissioners raised a criminal judgment where Manyathi veered from the minimum sentence required for rape of a child, which is life. He gave a lower sentence. “No violence was used,” he said initially, justifying his deviation from the sentencing requirement imposed by legislation. Commissioners asked how “no violence” is possible when rape itself is violence.
Pillay also stressed that Manyathi applied the wrong legal test. Advocate Tembeka Ngcukaitobi said “you are misunderstanding the law”, because the minimum sentence is the first, not last, point of call for sentencing in cases of child rape.
Maya also took issue with Manyathi’s refusal to concede he was wrong. Baloyi said that judges “owe a duty to the public” to explain their reasoning. She said that, for the victim of this assault and the public at large, “you have failed dismally to do that”. Malema, too, minced no words, wanting Manyathi to apologise, saying that the victim “will never receive justice”.
Attorney Mokate Noko was noted for receiving universal acclaim from all legal bodies, which Mlambo noted was “rare”. His judgments were praised by the GCB and the commissioners for being well-written, clear and succinct. “I try my best,” he said.
Advocate Linda Retief, whose practice was largely in medicine, indicated her broad experience and acting stints at the court. Mlambo said that before applying she had asked him for his views, which he appreciated.
Pillay took issue with an aspect of her CV to do with demonstrating her experience in a medical-legal case. In that instance, Retief was asked to settle papers but the papers never came before her and the matter never moved forward. Pillay wondered how Retief could claim that meant she had experience when she didn’t put pen to paper. Retief replied that it demonstrated the attorneys trust in her abilities.
Baloyi, too, took issue with her claiming to be part of transformation by claiming to work with civil society organisations, like the Centre for Applied Legal Studies at Wits. But Retief is merely “on the panel to be briefed”, Baloyi said. Retief said there was no misrepresentation.
Finally, advocate Brad Wanless, who has appeared several times before the JSC, was interviewed. Mlambo praised Wanless for long stints as an acting judge, and always making himself available when Mlambo requested.
Commissioners noted concern from the GCB that Wanless did not have much constitutional law experience. Wanless denied this. The commissioners also tried engaging on customary law, but Wanless admitted to not having much exposure to it and traditional courts.
After long deliberations the JSC said they will advise president Cyril Ramaphosa to appoint Mabaeng Lenyai, Mokate Noko, Mandlenkosi Motha, Linda Retief and John Holland-Müter to fill the five positions in the Gauteng High court.
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