Advocate Alan Dodson, 61, would not be drawn into justifying how his appointment as a Constitutional Court judge would relate to transformation. 

Questions around the fact that he is a white male applying to fill one of two vacancies in  the highest court in the land, featured prominently during his interview for the post in Johannesburg on Tuesday. 

“I am an African,” Dodson told EFF leader Julius Malema during the sitting of the Judicial Service Commission (JSC) on Tuesday, the first official sitting chaired by new chief justice Raymond Zondo. 

Dodson is one of five candidates who have been shortlisted to fill two vacancies in the Constitutional Court. 

Gauteng High Court judge Fayeeza Kathree-Setiloane, Supreme Court of Appeal (SCA) judge Mahube Molemela, SCA judge Owen Rogers and Gauteng High Court judge David Unterhalter are the other candidates. 

Section 174(4)(a) of the constitution requires the JSC to submit three more names than required to President Cyril Ramaphosa to fill a vacancy in the ConCourt.

The JSC has recently been under pressure to implement changes to the appointment process, particularly the need for written criteria as guidelines for judicial appointments.

During the chief justice interviews in February, JSC spokespersons Dali Mpofu and Doris Tshepe committed to holding a special workshop before the next sitting to draw up these criteria. This was implemented on Monday. 

Zondo said Monday’s discussion was “very fruitful and constructive”.

“Part of the discussion was the selection criteria decided by this commission in 2010. We seek to simply try to establish what we need to establish to perform our functions in terms of advising the president who to appoint.

“This doesn’t mean candidates won’t be asked difficult questions. They will be asked. The spirit of the discussion was very good and I thought it was important the country should hear that.”

For Dodson, a seasoned advocate who spent five years as a judge at the Land Claims Court (1995-2000), served as chairperson of the UN Housing and Property Claims Commission and is currently chairperson of the Independent Regulatory Board for Auditors Disciplinary Committee, the questions were certainly not run-of-the-mill. 

Much like during his initial interview in October last year, which the JSC was forced to redo this month after the Council for the Advancement of the SA Constitution (Casac) challenged its lawfulness and constitutionality, there were questions around Dodson’s white privilege. 

He highlighted that his experience in the land claims court was focused on addressing the pain inflicted on rural and urban poor communities by forced removals.

"Before I even got into legal practice I was very much involved in the legal aid clinic at university. I have focused on trying to make the law an instrument that isn’t just there to regulate society but is also there to come to the assistance, where appropriate, of particularly rural communities but also urban poor communities. That was manifested by the human rights work I did as an attorney.”

Dodson was questioned about whether he thought the constitution stood in the way of radical land reform, to which he answered it was the opposite.

“Section 25 specifically addresses the problem of insecure tenure brought about by apartheid, and calls upon the state to address that and pass legislation to address that. Legislation has passed in relation to former homelands. There was the Communal Land Rights Act. Unfortunately that act was very poorly conceived and wasn't correctly passed through parliament. It tended to favour traditional leaders at the expense of rural communities and was the subject of an application in which I was involved, on behalf of communities, to have the law set aside."

Dodson’s experience was somewhat overshadowed by questions around demographics. 

Malema, one of the commissioners who questioned candidates, asked: “If we appoint you to the ConCourt, which of those two [gender and race] are we achieving through your appointment?”

Dodson replied: “I come from a background from my earliest times as a lawyer of fighting racial discrimination, gender discrimination and abomination. The work I do in the ConCourt, were I appointed, would reflect that and would contribute to addressing racial and gender discrimination where they continue to exist.

“In terms of the numerical answer, I don’t think transformation is only about numbers. Of course it has nothing to do with the fact that I am white and male. I explained my position at the previous interview. I don’t want to cover that ground again.”

He emphasised his appointment would not be a negative factor, citing there are no white members serving on the commission.

“I don’t think my appointment at this time, given the constitution of the court, would operate as a negative consideration against me. If anything, I would suggest it would operate as a positive one.”

Unfounded statements were levelled against Dodson, for which the commission could not provide proof. 

National assembly speaker Nosiviwe Mapisa-Nqakula said certain groups had criticised his judgments and philosophy, saying  they were “not according with the values and principals of our constitution”.

She said it was a bold statement but no examples had been provided to the JSC. 

Taken aback, Dodson said the statement was a mystery and labelled it “unfair” to have such claims put forward without substantiation.

Questioned about his lack of experience in commercial matters, as listed on his references of judgments, Dodson said he had dealt extensively with commercial matters.

He said during his 20 years of service with the Independent Regulatory Board for Auditors Disciplinary Committee he had been tasked with “complex” commercial and auditing matters.

“That has given me very substantial exposure to commercial law.”

The interviews continue.

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