The high-stakes race to fill the position of chief justice grew in intensity and drama on Thursday during the interview of the Gauteng judge president Dunstan Mlambo, who faced a barrage of questions and needed a last-minute ruling to thwart efforts to derail his candidacy.
Friday's interview of deputy chief justice Raymond Zondo is expected to be the crescendo with the pattern of questioning likely to get even more dramatic and tense.
Mlambo had to fend off allegations of sexual misconduct he described as based on “insidious, poisonous” rumour. He said the purpose of the rumour was to poison his candidature for the position of chief justice. The judge president, who kept his cool during of the interview, faced off against some of his strongest critics at the Judicial Service Commission (JSC).
Adv Dali Mpofu, who was later joined by EFF leader Julius Malema, was the first to raise allegations of sexual misconduct based on a rumour.
Even National Assembly speaker Nosiviwe Mapisa-Nqakula joined the bandwagon asking when Mlambo became aware of the rumour and whether there had been any discussion between himself and the now-retired chief justice Mogoeng Mogoeng regarding the matter.
Judge Xola Petse later ruled that the sexual harassment allegations be expunged from the proceedings.
Petse said there was nothing before the JSC on the alleged sexual misconduct.
“Questions and responses to the allegations of sexual misconduct should be expunged from the record,” Petse said.
Malema, a supporter of public protector Busisiwe Mkhwebane — at least for now — is one of the strongest critics of judges who have ruled against her, saying they conspire with politicians to “deal” with anyone who opposes the current political establishment.
The most crushing judgments against Mkhwebane have come from the North Gauteng high court, led by Mlambo.
Another one of the contentious questions was posed by JSC commissioner Thandazani Madonsela on whether Mlambo was influenced politically.
Madonsela said there was an “undercurrent” suggesting that Mlambo appeared to make judgments favourable to President Cyril Ramaphosa and not so favourable to former president Jacob Zuma and his administration.
Mlambo said his judgments were informed by facts presented to him in court or during proceedings.
“Facts are facts. I don't have a soft spot for Ramaphosa and I have nothing against Zuma or Ramaphosa for that matter,” he said.
Madonsela also asked Mlambo if he had participated in the fight against apartheid to which Mlambo responded: “No.”
In a follow up, Madonsela asked how Mlambo could be the “vanguard of a constitution that you never fought for?”
There was a marked of difference in the pattern of questioning Mlambo’s faced in his interview compared to the two candidates who came before him — justice Mbuyiseli Madlanga and Supreme Court of Appeal president justice Mandisa Maya. Maya faced noticeably softer questions, with the focus often on her gender rather than her candidacy. One of the questions was if she said SA was ready for a female judge, which she described as “annoying to women”.
Mlambo's interview also gave glimpses of what is likely to happen on Friday when Zondo takes the stand.
Zondo, as the chair of the commission of inquiry into state capture, instituted legal proceedings that culminated in former president Jacob Zuma being jailed for failing to appear before the commission.
Meanwhile, public protector Busisiwe Mkhwebane objected to Mlambo's potential appointment as chief justice based on his refusal to meet her while she was engaged in litigation in his court.
In a letter to the JSC, she wrote: “The nub of the objection is that whatever views Mlambo JP may hold against the incumbent in that office, he had a duty to listen to the concerns raised by an important institution of democracy.
“Failure to do so reveals a lack of the requisite leadership skills and judgment necessary for the important office of chief justice..."
Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said the JSC had set up a subcommittee to deal with objections against candidates interviewed for all judicial appointments. However, he said the procedure was not clear with respect to chief justice interviews.
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