Constitutional Court candidate Judge Robert Nugent hit a nerve within the Judicial Service Commission (JSC) yesterday, saying he had previously withdrawn his candidacy because he did not trust the body following its handling of the complaint against Judge John Hlophe.
Judge Nugent was being interviewed for a vacancy at the court along with three other judges – Ronnie Bosielo, Mandisa Maya and Ray Zondo – and was already at a disadvantage being the only white male.
The JSC has had difficulty attracting candidates for Concourt, with only four people coming forward after the position was advertised for a second time.
Four candidates is the bare minimum the JSC can interview because the constitution requires that at least four names be sent to President Jacob Zuma for consideration for a single vacancy.
And in a spirited exchange with commissioners yesterday, Judge Nugent suggested that the reason people were reluctant to come forward was in part to do with the JSC itself.
Of the four, Judge Nugent has the most experience on the Bench and is due to retire.
In his opening remarks he referred to his application two years ago, and said he knew that some commissioners were concerned about his reasons for withdrawing in 2009.
At the time the JSC had just finalised the complaint against Western Cape Judge President Hlophe – a decision that later went to court.
Judge Nugent said the decision by the Supreme Court of Appeal, that the JSC had “abdicated” its responsibility, mirrored the concerns he had.
“To come before this body one must be able to trust it to do its duty as best it can, difficult as it may be.
“And I did not trust at that time that the body would do its duty. I gave that as the reason for withdrawing because it was the reason.”
A series of questions followed in which Judge Nugent was asked to further clarify.
“The judgment of the SCA said (the JSC) had abdicated its function. It did not say the JSC was untrustworthy,” Advocate Ishmael Semenya interjected.
Judge Nugent said he did “not see a distinction”.
“A body must never abdicate its duty,” he said.
Commissioner Krish Govender asked what “perception” would be created by “a senior judge bringing down an institution by using a word like ‘distrust’”.
Judge Nugent was unapologetic, saying the JSC should do some introspection.
“When you first advertised the position there were only two people on the shortlist… In most countries people would be vying for that position.
“You have to ask yourself why is that. Why are people not willing to put themselves forward?”
Questions to other candidates dealt largely with judicial independence, the separation of powers and the need for judgments to be short and understandable.
They were asked their opinions on the Hugh Glenister case, in which Concourt ruled against the government instructing Parliament to amend legislation which created the Hawks, and the recent judgment against the Limpopo Education Department where the Pretoria High Court ruled that text books be delivered to pupils in the province.
The recurring question was: “How far it too far?”
“We don’t appoint judges to be for or against government. We appoint them to uphold the law,” commissioner Ngoako Ramatlhodi remarked.
And it appeared that even on the JSC there were opposing views on the question, with Govender saying: “Judges should not be apologetic even if they get it wrong. Because that’s the only way we’re going to build a better country and… judiciary.”
Before the interviews judges Zondo and Maya were widely regarded as the top contenders, but after a two-hour interview Judge Bosielo emerged as a strong contender.
Asked about the Justice Department’s planned assessment of decisions of Concourt and the Supreme Court of Appeal, where he currently sits, Judge Bosielo said he was not concerned that the government was encroaching on the domain of the courts.