JSC names five new judges for Gauteng high court, country's busiest

The Judicial Service Commission (JSC) on Thursday announced five new judges for the Gauteng division of the high court — South Africa’s busiest court.

After interviewing eight candidates, the JSC said it had advised the appointment of attorneys Mabaeng Lenyai, Mandlenkosi Motha, Mokate Noko and Pretoria advocates Linda Retief and John Holland-Muter SC.

During interviews, Gauteng judge president Dunstan Mlambo said the Gauteng division had lost many of its most experienced judges to the appellate courts and was looking for candidates that could “hit the ground running”. 

After the day’s interviews, the JSC choices were unsurprising: the successful candidates had relatively smooth interviews; and even where tough questions were posed by commissioners were able to answer them to the commissioners’ satisfaction. The unsuccessful candidates were grilled about the quality of their judgments and their knowledge of the law. 

During Lenyai’s interview, Mlambo referred to positive comments from the General Council of the Bar, which said that appointing her “would send a message to the public that the JSC values the appointment of candidates who are able to produce a large number of well-reasoned and well-written judgments across a broad spectrum of legal fields, and who have knowledge and experience beyond the borders of South Africa.” 

Lenyai is the first woman president of the Law Society of South Africa, and therefore sits on the Brics legal forum council and the council of the International Bar Association.  

She said that when she was given a “special motion” case — a large and complex case — she had only two days to prepare. “The matter was huge. It had constitutional aspects, administrative law, contractual law, it had everything in it ... I thought it was beyond me.”  

But she said the deputy judge president “came to my rescue” and told her how to prepare for the case. He told her the case was given to her because the leaders of the court believed she was up to it. “And I did my best,” she said. Unlike in other interviews, the judgment was not dissected by commissioners, suggesting that they agreed. 

Noko got similar treatment, with commissioner Tembeka Ngcukaitobi SC saying about his judgments: “They are strong, they are fluent, they are logical. It’s — I don’t want to say it’s unusual — but, thank you.”  

He asked Noko whether, if he got the nod, since he had as an attorney practised in the field of land law, he would be willing to make himself available for secondment to the land claims court where “there’s a real problem of capacity”. Noko said, if he was appointed, he would be willing once he had put in some time at the high court. 

Retief, a specialist in the niche area of fertility law, also had a fairly smooth interview. A member of the Pretoria Bar since 2007, she has been recommended for silk but has yet to get her letters patent from the president.

She had had less acting time on the bench, but Mlambo said that after she was nominated, she had approached him. “You wanted to know whether, as JP, having seen your work, I feel you should accept the nomination. And the rest is history, you’re sitting here,” he said.   

Asked by Kameshni Pillay SC about how many black juniors she had brought onto matters — often a question that trips up white silk candidates — she said out of six juniors she had worked with, four were black women, one was a black man and one was a white woman.  

Motha impressed commissioners with his passion for his community and for the infusion of African legal concepts into the common law. He built his law firm in Soweto and never left there, even as his practice got successful, and also lectured to students at Vista University. He was also part of the establishment of the Soweto small claims court, on whose board he still sits.  

In his interview, he said he wished there was a high court in Soweto, which has a population of more than 2-million people — more than the Northern Cape he said. He confronted deputy justice minister John Jeffery about the state of the magistrate’s court in Soweto. “It’s horrible ... it’s a crying shame,” he said.  

“And it’s not that funds are not there. Just a stone’s throw away in Booysens, a state-of-the-art court was built. Why couldn’t they build that court in Soweto? To serve our people? I really don’t understand it. What’s wrong with us?” 

Though one of Motha's judgments was criticised, he accepted the criticism but added that it was his first judgment as an acting judge and he had improved since. He did not even include it in the pack of judgments that he had submitted to the JSC as examples of his work, he said. 

Holland-Muter had a short interview because he had appeared before the JSC several times before and has been in the Gauteng division since. Asked about his experience when he began acting, he recounted that it was difficult to write judgments in English, it not being his first language. He was sitting with a senior judge, Hans Fabricius, who was “very proficient” in English, Afrikaans and German.

“I approached him many times for assistance with the language,” he said. Acting judges must feel free to approach senior judges to improve their quality, he said. 

However, he was closely questioned by commissioner Pillay about a judgment that he had given in urgent court that contained typos and spelling mistakes and displayed a “very tenuous grasp and understanding of the very basic law of review”.

She said that he had not set out each of the requirements for the granting of an interim interdict. Holland-Mutter accepted the criticism about the structure of his judgment. 

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