When a candidate is interviewed by the Judicial Services Commission (JSC) – either for a promotion or for first time appointment on the bench – he or she must expect to field difficult questions from commissioners. But when do the questioners overstep the line by asking unfair questions not in keeping with the spirit of the process or of the Constitution?
In 2005 Judge Anna-marie de Vos was interviewed for the position of Deputy Judge President of what is now the North Gauteng High Court and was then asked by advocate Silas Nkanunu about her sexual orientation. Referring to the written questionnaire handed in by the judge, Nkanunu wanted to know whether De Vos was not concerned about the perception of other judges of the fact that De Vos had a woman “partner” and not a husband.
This was obviouly an outrageously homophobic question and should not have been allowed by the chairperson. (I would have said this, even if Anna-marie was not my sister.) Section 9 of our Constitution guarantees the right to equality for everyone, including on the basis of one’s sexual orientation and the question clearly was based on the presupposition that there was something strange or wrong with being a lesbian – something the Constitutional Court has explicitly rejected.
When it comes to questions about judicial transformation the issues might be less clear cut.
On Sunday Advocate Dumisa Ntsebeza – perhaps still smarting from his rough treatment at the hands of the SCA when he appeared for Judge President John Hlophe before that court – asked Judge Frans Malan who had applied for one of three postitions on the SCA why he had not “withdrawn” from the race as having a white man at the SCA would not contribute to transformation. There were only four shorlisted candidates for the three posts, three of the candidates being white.
This seems to me to have been an unfair question not comporting with the spirit of the Constitution as it might have created the impression that Ntsebeza believes transformation was only and exclusively about the appointment of black judges – regardless of their values, ideological commitments, experience and judicial temperament – especially given the fact that three of the four candidates for the three vacant positions were white.
As a believer in redress, I would be the first to say that when suitably qualified black candidates are available they should be given preference in appointment to the bench. But this was not the case here and Ntsebeza seems to have overstepped the mark.
Advocate Hennie de Vos conceded during questioning that he served as chairperson of the Waterkloof branch of the far-right CP from 1982 to 1987, a time when he said “the supposition still was that South Africa must be divided in areas where black, white and coloured are totally independent of each other”.
He denied the party believed that black people were inferior to whites, and said he left the National Party for the breakaway CP in what was a “dispute between Afrikaners as a small group trying to talk politics among each other” about the merits of the National Party’s tri-cameral Parliament.
The CP took the view that “mathematically” it would be impossible to give whites, coloured and Indians representation, but exclude the black majority, he said. De Vos said he had not been involved in politics for the past 22 years and has for years taken in black law graduates as trainees because he believed it was the best way of transforming the judiciary. Many of the graduates were talented and taken silk, he said.
But advocate Dumisa Ntsebeza, one of President Jacob Zuma’s new appointees to the JSC, said he had failed to explain his conversion from right-winger to a promoter of racial parity on the bench. “You are not on trial, but in a sense people here would like to know people they are putting on the bench have the values of the Constitution at heart. I would be a happier person if you are ready to say: ‘I’m a person who was part of a bad past.’ I do not get that sense from you.’”
The CP opposed the negotiating process, refused to be part of it and boycotted the first democratic election. It might well be that Adv De Vos has had a change of heart and now supports the new order, but it seems perfectly legitimate for JSC members to ask him about his past to try and establish how he really feels about the new order.
In my opinion, it would not be legitimate to tell such a candidate that because of his past he was automatically disqualified from appointment to the bench. People do change – although the sincerity of such changes of heart might often legitimately come under suspsicion. JSC members have a duty to probe such a candidate to try and establish whether a candidate had genuinely changed or had merely had a Damascus experience in order to get ahead in the world.
Advocate Ntsebeza’s seems to me to have been legitimate in expressing disquiet at the lack of contrition on the part of Adv De Vos about his apartheid past. Although the questioning might have been uncomfortable, I for one would not want to see someone appointed to the High Court bench who is not fully committed to the new democratic order and may not have come to terms with their own dark past.
Some would say – and reading the letters pages of Afrikaans newspapers there seems to be quite a few such people – that the kind of questioning unleashed on Adv De Vos requires whites to grovel and apologise for being white and that this represents an unfair attack. I see it differently. The Constitution guarantees equality for all and also requires us to respect the inherent human dignity of all – even people we do not like or agree with. But if one wants to be appointed as a judge, one must surely have demonstrated through one’s words and one’s actions that one has rejected a dark past that one might once have been part of.
Otherwise one has no place on the High Court bench. It is not about grovelling but about taking responsibility – something a good judge has to do if he or she wants to become a wise dispenser of justice.
Just like Judge Malan, Judge de Vos might have to be the judge in a trial where their objectivity can be questioned. What if a homosexual person accuses someone of a crime, or what if a homosexual person is accused of a crime? Can we as the public be assured that a straight person would enjoy justice, just like we should be assured that a black person would enjoy justice in a judgement by Judge Malan?
Therefore, the situation of Judge Malan and Judge de Vos are similar in this instance. One cannot be somehow absolved from tough questions concerning matters that may put their objectivity in question while the other cannot.
I did not follow the questions posed to the candidates, but surely these tough questions are the kind of questions that judges would face in their jobs? Surely, part of the purpose of the questions is to see how judges would react under the kind of pressure their job on the JSC would bring?
Garg that is one of the most monumentally stupid posts I have ever seen.
On your logic, no person could ever be appointed as a judge – how could gay people be assured justice from straight judges? Black from white, white from black, coloured from black, male from female? You assume that heterosexuality is the norm and those who deviate from it must justify their neutrality.
A person’s sexual orientation has NO relevance whatsoever to their ability to serve as a judge.
Prof,
I agree with your comments but I disagree on the issue of Malan. By their very nature, interviews are designed to see how the candidate will respond. All Malan J needed to do was to give a smart answer, like Griesel is reported to have done. End of story.
The impression that you say might be created by Ntsebeza’s questioning in this regard would, in my view, only be created in the minds of those that are opposed to transformation and believe that race, conveniently, should never be a consideration when issues of transformation are encountered.
Pierre
Sorry if I missed you responding to this, just wanted to make sure you saw this article from the Justice for Hlope alliance regarding your criticism of them:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=136856&sn=Detail
Well, if its ok to appoint ex apartheid homeland leaders to the HRC, then we can appoint ex Conservative party members to the bench, no?
It will be quite funny to see Pierre at an AWB braai. How long would he last before they ‘donder’ him, or string him up.
I personally have read reams of his writing, and if he can be accused of racial thinking, it is this – that he often does not hold black South Africans to the same standard that he holds whites when he judges their behaviour.
To Pierre black South Africans can’t really be racist in the same way whites can etc. He suffers from the classic white lefty disease.
Which is also why he can write reams about white racism, but for years ignore the killings of black foreigners in South Africa.
Perhaps he is a white supremacist then. But of an entirely different kind.
Kameraad, I read you as saying that the Professor may be taken as holding white South Africans to more taxing standards than he does their black counterparts. And further, you seem to me to say that this could conceivably be construed as racism.
If I have the right of your views, I would respectfully address some questions to you. For starters, can you offer examples of instances on which the Professor held white South Africans to more demanding standards than black South Africans?
Secondly, should you be able to tender such examples, do you think that there are contexts in which such discrimination would not be unfair?
And finally, do you think that people who discriminate on bases which are not unfair can properly be called racists?
A bit of constitutional interpretation here…
Prof, I don’t quite agree that that Constitution grants ‘equality’ to everyone.
What is granted is ‘equality before the law’, and the right to notbe unfairly discriminated against, including the various grounds mentioned.
So, discrimination, per se, is not prohibited, but only ‘unfair’ discrimination. And there isthen to be some contemplation of what constitutes ‘unfairness’.
Mike
I’ll say:
Discrimination: BBEEE
Unfair discrimination: Consciously rejecting BBEEE
Anfêr disk rim and nation: Julius Malema’s take on EEBBE
Mike
I’ll say:
Discrimination: BBEEE
Unfair discrimination: Consciously rejecting BBEEE
Anfeir diskrim and nashin: Julius Malema’s take on EEBBE
Prof De Vos – Regarding the link supplied by z // Jul 21, 2009 at 11:00 am – would you, if you were nominated and shorlisted for judicial vacancy have appreciated any questions based on the contents of the declaration by the justice for Hlophe Allianance?
heres another interview with Ntsebeza and an atheist at the JSC
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=nw20090721130454758C486614
But I am starting to find Ntsebeza extremely biased here. The attitude of the interviews and so obsessed with color is sickening
Chris Mcdaniel // Jul 21, 2009 at 2:34 pm
Interesting banter:
http://www.thetimes.co.za/News/Article.aspx?id=1037494
Z, it would be a waste of time to respond to the Justice for Hlophe Alliance attack on me. Maybe just for fun I will, however, correct a few minor factual errors in their missive.
(1) South Africa does not have a “State President” – the Constitution establishes the position of “President”. “State President” was a term used by the apartheid constitution.
(2) It is factually incorrect, first to say the President need not consult the JSC or the leaders of opposition parties before appointing a chief justice, and secondly that I claimed as much. (See section 174(3).
(3) My dictionary claims there is no such term as a “waupt sense of humour” although it does say that an airhead is “slang for a person who is stupid or incapable of serious thought”!
(4) It is factually incorrect to claim that civil society or political parties can nominate a President. A President is nominated by an individual who is a member of the National Assembly at the first sitting of the National Assembly after an election has taken place. (See section 86, read with Schedule 3 to the Constitution.)
Hi Leigh, yes – to answer your question – there are quite a few examples I could site. And I have done this before so I don’t want to bore people with the details again.
You can read some of that here
http://mhambi.com/2008/07/john-qwelane-homophobia-southafrica/
On another occasion when a survey published in the Sunday Times claimed that black South Africans experience other black South Africans as the most racist, Pierre would have none of it.
As far as I know Pierre has never once written on this blog a post about the miscarriages of justice that have been committed because of incompetent judges (altough it has been discussed in the comments).
Why do you think is that?
He is not alone. Some commentators both white and black, have claimed the ongoing killing of (black) foreigners is because of – no not racism, not even xenophobia, no. It is self hate they say.
It’s pretty common for many on the left to simply deny black agency and responsibility. How ironic.
But my point today is that Pierre is not a white supremacist that Hlophe’s cheerleaders aver he is. If anything he is so over eager to ignore the faults of black South Africans. Which is tragic because look how he is being vilified now.
That Hlophe’s people actually aver that he is shows how ridiculous our public discourse has become.
Anonymouse, if I were ever to appear before the JSC I would have no problem with answering any question relating to my past actions or utterances. Questions based on fact must surely be expected. Questions based on groundless personal attacks by a body with its own nefarious agenda, I would consider unfair. But in the unlikely event of me ever appearing before the JSC I would prepare myself for such questions nevertheless and would answer them as best I can. An ideal answer to such questions – in my opinion – would attempt not to legitimise such personal attacks by being overtly defensive, but would rather focus on the positive.
Pierre, but you would never consider standing would you? I mean how will that help transformation? You are all for transformation not so?
Duke:
Any of your prejudices may influence your ability to be a judge. Like the prof noted above: If you want to be a judge, you would have to be willing to be scrutinised for the position. This includes awkward questions about your past political affiliations and your sexual preferences.
On fundamental stupidity: you were constructing a straw man argument. At no point did I make a judgement on Judge de Vos’s or Judge Malan’s ability to hold office. If you don’t want the shoe to fit, perhaps you should glance a quick eye over Section 174 of the Constitution. This section (Appointment of Judicial Officers) describes the kind of prejudices a judge may be expected to have. Also take a look at Section 178, which deals with the appointment of the JSC.
From Section 174, you will note racial and gender composition are criteria for the appointment of Judicial officers. Being a homosexual is largely an issue of gender and not of sex. Sex is determined by what hangs between your legs, gender is determined by what kind of gender role you portray.
I believe the choice of wording in this part of the Constitution is no accident. Either way, it justifies awkward questions about both political affiliations (such as the skeletons in Judge Malan’s closet) and gender (such as the particular preferences of Judge de Vos, which may be skeletons dancing in the closet or not).
Do you expect a lesbian person to be entirely objective in a case involving a victimised lesbian person? I certainly don’t, but then I don’t go around calling people monumentally stupid either. I did not suggest a causal relationship between a person’s gender and their ability to be a judge and I am truly sorry if you misunderstood my post in that way. Next time I shall use smaller words.
I merely suggested that prying questions regarding race or gender are not improper in this case and are actually supported by Constitutional requirements for Judicial officers.
From Section 178, you will note that the Judicial officers should be appointed to represent the legal profession as a whole (some advocates, some lawyers and some judges). Remember that whoever gets appointed has to represent their respective professions as a whole. I disagree with this assertion (as you will note from my other posts on this blog) because to me the only criterion is merit. Yet, in order to meet this requirement, you would expect the nomination of a homosexual person to be met with a bit of controversy, unless of course most of the profession happens to be homosexual.
Judges are required to (ideally) act free from favour (such as the favour towards your own gender or racial group) or prejudice (such as the prejudice you may hold towards a certain gender or racial group). I hope you understand better now although I do realise this is a long post and there aren’t any pictures.
Oh, and heterosexuality is the norm by sheer number. This is not an assumption, it’s a fact. Look it up.
Kameraad Mhabani writes
“It’s pretty common for many on the left to simply deny black agency and responsibility. How ironic.”
I could agree more, Khameraad.
Except in one respect: Racial pandering, and its patronising racism (“the bigotry of low expectations”), is not a phenomenon of the “left” at all. It reflects rather an abandonment of Marxism by American post-modernist intellectuals in the 1980′s. Political correctness and the terrified avoidance of “offence” displaced the rigours of historical materialism.
Dumisa the Marxist’s directorships / shareholdings:
Chairman: Barloworld
Non-Executive Director: Mnyama Holdings Ltd
Shareholder: Mnyama Holdings Ltd
Director & Shareholder: Off-Shore Fishing Co (Pty) Ltd
@ Michael Osborne 21/7/09 at 8:24 :
Very interesting observation. Are there any links/ footnotes/references you can provide for further reading? ….Before tackling those briefs, or coffee at the common room……
I’m sure there’s going to be a lot of conversation about the overt racism at the JSC in common rooms all over the country today. Don’t want to miss it. I’m off….
Prof, they also asked Haseena Mayat ( she wears a prosthetic arm) whether her disability would prevent her from performing her job adequately. WTF! I like how she answered it though “I dont think [it] is relevant to my intellectual capacity.
We have a long way to go as a country if our JSC can ask such ridiculous questions.
Prejudice Anonymous // Jul 22, 2009 at 8:53 am
Lol yeh I read about that one, much respect to her…but in all honesty the interview questions seem to be completely random and it seems to have no bearing of what is expected of a judge…..On top of that deVos must apologies right there and then for being a racist? with no evidence and the fact is he has black friends. and how one must now be affiliated to AFT. These is such an ego trip.
I believe the probe into Hlophe is being stopped now…..funny how the new appointments to the JSC are public backers of Hlophe.
Vuyo // Jul 21, 2009 at 3:33 pm
Your right very interesting banter….whats your views Vuyo?
From the report in the Mercury, the only factor that looks like biased interviewing seems to be the duration of the interviews. Judge de Vos was ‘grilled’ for more than an hour, while Judge Shongwe had a ‘seemingly painless’ half an hour interview. One would think that if half an hour is enough for one judge, it should be enough for another too?
It does appear that Judge Shongwe has been favoured during the interviews. Furthermore, Judge de Vos’s personal life was legally found wholesome enough for her and her partner to adopt children. If she is still with the same partner and all is ponies and rainbows with them and the children, I don’t think that more than an hour of ‘grilling’ is necessary.
Besides, there has been a complaint that there are no women candidates. Assuming that Judge Shongwe is a man, this means that Judge de Vos should be the automatic choice for a position at the JSC as per the Constitutional requirements of ‘fair discrimination’ to achieve gender and racial representation.
I don’t see how a question on sexual orientation can be nearly relevant. Past political affiliation is indeed interesting but that needn’t mean one cannot subscribe to the Constitution. Let’s take a quick look at Moseneke DCJ, who was a mamber of the PAC student’s organisation and probably a PAC member. The PAC’s agenda was considerably anti- white/indian/coloured, which is why they broke off from the ANC in circe 1958. Are we to say he’s racist now, a bad judge or doesn’t subscribe to the Constitution? No, it seems he is quite good at what he does.
O’Regan J was asked if she would favour people fighting for land rights in her judgements (as that was an area of academic interest) she said she would try to remain as objective as possible. The Cosntitution tends to favour those who are marginalised so her job’s been made slightly easier. It was also pointed out that she had young children, one of the commissioners pointed out. If appointed, would she be able to make adequate arrangements for their care while she was at work?
One could have asked, if they didn’t, Cameron J whether being a homosexual HIV positive man would have a great bearing on his judgements. I doubt it has. has the fact that he had a keen interest in labour Law (employees) meant that he tend’s to favour them? I doubt it, esp with the LC able to handle that.
And, of course, Jugde De Vos… Here’s an extract: ‘While Shongwe slid through a seemingly painless 30-minute interview, the commissioners grilled De Vos for more than an hour on everything from her sexual orientation to a spat with Judge President Bernard Ngoepe. Referring to the written questionnaire handed in by the judge, Nkanunu wanted to know whether De Vos wasn’t concerned about the perception of other judges about the fact that she had a woman “partner” and not a husband.’
‘De Vos replied bluntly that she assumed all South African judges were committed to the provisions of the constitution that protected and ensured equality. She therefore couldn’t see how her lifestyle would be a problem.’
‘De Vos was also questioned about her commitment to remaining in Pretoria, given that she commuted to Knysna every weekend where she and Du Toit own a farm. She said many judges commuted to their chosen places of work and she did not see it as a problem.’
I fail to see how ANY of this was relevant. Yet if Prof’s reasoning is to be accepted, the fact that his sister answered the quetions well then makes the questions rational… You will also note that it would have aided transformation more if we had appointed a lesbian woman as DJP of the TPD. I would imagine that they haven’t had an easy ride either.
See: http://www.capetimes.co.za/index.php?fSectionId=271&fArticleId=2952832
In a number of cases, overt racism is being labelled as transformation and that is beyond disappointing. If I were to be appointed because they need more black bums on the bench and NOT because I’m good at what I do then i would be a bit irritated. Race may play a part in the decision-making but it should not be a factor expressed in interviews. Why can’t they interview, have scores and then deliberate on the best candidates and where scores are close then a “transformative” agenda could be pursued if the top candidate was not the “champion of transformation” (black).
See also an article on sexism in the judiciary (or JSC):
http://www.speakout.org.za/legal/laws/laws_sexism_2005oct23rd.html
Garg
As much as its none of our business, I believe that Judge De Vos is now in a civil partnership and I’d presume that’s going well. Such questions merely serve to shoe the prejudices on the part of people like Nkununu (sp.). Another bias is the stance toward her sexual orientation, where she chose to live, and not being gived the chance to be ADJP as had been afforded to Shongwe. The odds were stacked against De Vos before she walked in there.
I guess Sachs J has not been doing a good job because he has one arm… These people should really stop showing their stupidity. Maybe its a good thing, stupid questions show that they’re grasping at straws and you’re a good candidate.
What’s next?
JSC: Did you live in a white suburb during apartheid?
Interviewee (A): Yes
JSC: So, you were in support of Apatheid?
A: No
JSC: Then why did you not live in a non-white area?
I’d let you older people decide the answer.
Nkululeko, as regards your last post: very cool.
Chris Mcdaniel // Jul 22, 2009 at 9:14 am
I personally believe the whole thing is ludicrous. A real indictment on some members of the JSC. One thing is certain, we are in for a very rocky ride.
Some more interesting questions below:
http://www.thetimes.co.za/News/Article.aspx?id=1037743
Prof de Vos – Pierre De Vos // Jul 21, 2009 at 6:02 pm
Thanks for the very ‘serious’ response in the face of such a ridiculous article by JfHA. However, come to think of it, if one is to appear before the JSC one must ‘prepare’ oneself for the likely possibility (remember, there are some Hlophe su[pporters on the JSC as well) that such questions about anything one has said (or what has been said about one) in the past, however laughable and irrelevant it may be. Seems like we are moving in the same direction as the Senate interviews in the US, no?
One does not need a crystal ball nor prophetic powers to discern that Hlophe will be let off the hook by the new JSC and then be rewarded with the prize of being Chief Justice of the very Constitutional Court he sought to corrupt.
As someone pointed this out, in some countries these actions would point to a Banana Republic.
Vuyo
I have to agree with you
Questions to the candidate should respect both his dignity and his privacy and any questions put to the candidate should proceed from an understanding of the role that is played by a judge esp towards to Constitutional Courts.
as nkululeko // Jul 22, 2009 at 9:25 am has pointed out in summary of questions asked at each candidate
“Nkanunu wanted to know whether De Vos wasn’t concerned about the perception of other judges about the fact that she had a woman “partner” and not a husband.’ ”
This is an invation of dignity and privacy, It would not surprise me if she felt rather dirty after that interview.
They should just as well of asked her if she uses a dildo at all.
Maybe fellow bloggers on here should look at and discuss the type of questions that need to be asked in interviews like this.
I’m really enjoying Dumi’s questions and I think he is a great addition to the interview panel. I think his concern at white men claiming to be pro-transformation, yet having no adequate explanation as to why they didn’t join pro-transformation organisations is absolutely appropriate.
Personally I’d also reject any white man who said that his being white and male was not an issue. And I’d give double points to anyone who acknowledged the handicap being white and male presented, and that he hoped to show real dedication to the challenge of actively achieving transformative results, even though it would weaken his own dominance.
Now wouldn’t THAT be a welcome change of mindset?
Mpho, I agree wholeheartedly that it would be refreshing to hear a few white males owning up to having been supporters and, or beneficiaries, of apartheid. (It is always amusing to find out how few whites living today ever voted NP.)
And it would be equally refreshing for a few black males to confess that their melanin-enriched epidermis does not automatically them make heroes of the struggle. And that their extra melanin does not immunise them from sexism, homophobia, racism, even greed, and all of the other evils that are the common heritage of humanity..
Nkululeko:
Yes, I agree that it is none of our business. It is also none of a fellow judge’s business. I was giving the JSC the benefit of the doubt, but then all potential JSC judges should undergo the same grade of grilling. There seems to be a special kind of grilling for lesbians and another special kind of grilling for each flavour of racist from the apartheid era.
Tony in Virginia:
If one looks at what Hlophe allegedly said to his fellow judges, namely that they should think of their futures like he has, then Hlophe is set to become chief justice. Shaik got out of jail free. Hlophe hasn’t been keelhauled for his alleged unethical conduct. Interesting how it all points back to Zuma. But hey, we voted for him.
I hope you’re joking Mpho. In another thread you made sense, here it seems as if you’re pulling our legs.
In case you are serious. Anyone who shows a true committment to transformation, and not one that is cosmetic, should be welcomed. if one feels that AFT of the BLA are doing the same thing as the various law societies, bars of the GCB and the LSSA then let them not join more than they want. Are we to say judges don’t have the freedom of association which we must have?
Candidates must be able to show that they’ll be good judges, understand the law and have compassion. The must live by and for the Constitution and know how to impove the impression of justice, the service delivery of the courts and guard the independence of the judiciary (and fight for the magistracy).
If you are white and do all of that then GREAT, you can be a judge. If you’re in any catagory that’ll further the “transformation” agenda, as set by the govt, them ever BETTER.
“Garg Unzola // Jul 21, 2009 at 8:10 pm
Any of your prejudices may influence your ability to be a judge.”
True. But that does not seem to have been the aim with the interview question. The question was if she wasn’t concerned about the perception of other judges about the fact that she had a woman “partner” and not a husband.
The question doesn’t seem to test prejudice, but rather likelihood to submit to peer pressure. Maybe even emotional maturity? Regardless. It seems a pretty stupid thing to ask in an interview for such a high position, not to mention completely irrelevant as far as I am concerned.
Never mind the racism, my question is how anyone can think that they could possibly win a matter against an advocate that comes from Advocates 21 when there group members are the judges themselves, I unfortunatly did not know that until I was goven a hiding 6 love, by Judge Lamont, to a Junior Council Advocate, who is part of the Group 21 Advacates.
My advise look at the list of advocates who are part of this group, then look to Judges who are advertised on there site, http://www.advocatesgroup21.co.za
If your opposing Advocate and the Judge are there, believe me you have no chance. Racism is not the only way you can get screwed in court.