Johannesburg High Court Judge Jody Kollapen has shot down the notion that a “judicial dictatorship” is emerging in South Africa.
Kollapen appeared before the Judicial Service Commission (JSC) on Monday to interview for one of two available spots on the Constitutional Court (ConCourt) bench. Asked for his thoughts on the idea that a “judicial dictatorship” was taking hold of the country – a sentiment harboured by former president Jacob Zuma and those within his ranks in recent months and years – Kollapen said he did not believe this to be the case.
“And if that is the perception, it’s unfortunate because judges don’t decide matters based on their own individual idiosyncrasies. We take an oath of office,” he said.
He did say, however, that it was important to debate the topic when and as it arose.
Kollapen is one of seven candidates up for appointment to the country’s apex court this month.
He was among the five candidates recommended for appointment following the JSC’s April interviews but those proceedings have since been scrapped on the back of pressure from various civil society groups which criticised some of the lines of questioning adopted. The interviews are now being redone, with nearly all of the candidates who were previously interviewed – save for KwaZulu-Natal High Court Judge Dhaya Pillay – back in the hot seat again.
Kollapen was the third candidate to face the gauntlet on Monday. During his interview, he was also asked about his time as an acting ConCourt justice, with Kollapen responding that he enjoyed it.
He said it would have been “totally unimaginable” for him when he started out as a young practitioner, during apartheid.
“At a personal level, you’d dress up in the morning to go to court and you’d look in the mirror and reflect and think you are enormously privileged to be able to serve your country,” he said.
Of his judicial philosophy, he said: “As a starting point, for me, the law must be an instrument that achieves and advances justice.”
“I’m quite mindful that the law can quite easily be used as a basis to maintain imbalances in society, as a manner to shield people from scrutiny and the law can be a tool of power in the hands of some,” he added.
Judges Rammaka Mathopo and Fayeeza Kathree-Setiloane – both of whom were recommended in April – were also re-interviewed on Monday.
Speaking about a ruling he penned while acting on the ConCourt bench previously, which now makes the common purpose doctrine applicable to rape, Mathopo said: “I looked at it and I said this can not be right. Rape is a power offence, it’s not only the person who penetrates who is guilty. Actually, there are people around the rapist who are violating the poor woman. And I said they can not be allowed to go scot free.”
Further asked how he would respond to someone who criticised the judgment, he said: “That person would not be living in South Africa. That person would certainly not have seen or experienced what our women are experiencing and that person’s comment would be an affront to the women in our country.”
Mathopo’s work mentoring female judges was lauded during his interview.
“There is a stereotype among the legal fraternity who believe lawmaking belongs to men and that stereotype needs to be put away,” he said, “We can not sit here and say women are inferior. They are not. They help us and they capacitate the bench.”
Kathree-Setiloane, meanwhile, was asked by Justice Minister Ronald Lamola about a case she presided over involving same-sex marriage and what could be done to tackle the problem of violence inflicted on members of the LGBTQI+ community.
She replied that on a broader level, there had to be education around the rights of these communities.
“That’s the only way there’s going to be full acceptance,” she said, adding that she believed government could do more in this regard and working with civil society and the courts, the issue could be eliminated.