The Judicial Service Commission (JSC) on Thursday chose to fill only three of four vacancies on the Gauteng High Court, leaving one vacant despite interviewing eight candidates.
The three who received the nod were magistrate Rochelle Francis-Subbiah and advocates Jan Swanepoel and Stuart Wilson. The JSC’s choices may raise eyebrows in that it did not appoint a single African candidate, an unusual step when three African candidates were interviewed.
The successful candidates were chosen after a long day of interviews in which candidates were subjected to rigorous questioning about their judgments, experience, knowledge of different areas of the law and commitment to transformation.
“Administrative law is the heartland of litigation in Pretoria and Johannesburg,” said commissioner Tembeka Ngcukaitobi SC before he asked Swanepoel questions about the intricacies of administrative law.
Swanepoel ended by saying lawyers and judges could not be experts in every area of the law, but the point was they were able to research and come to a reasoned judgment that way.
In his questionnaire, Swanepoel indicated he had been doing acting stints since 2017, and by the time of the interview would have clocked up what Gauteng judge president Dunstan Mlambo called a “remarkable” 96 weeks of acting altogether.
The judge president said Swanepoel had offered to come forward when the Gauteng court was “in a predicament” and needed acting judges urgently.
Wilson is an expert in constitutional and administrative law, but was scrutinised about his commercial law experience.
Commissioner Kameshni Pillay SC said the Gauteng division was “the busiest commercial division in the country”. With the structural hurdles faced by black women, a lack of commercial experience could be overlooked in their case, she said.
In Wilson’s case, “perhaps you could just help in what we would do with that?”, she asked.
Wilson said he did not have experience in competition law, commercial arbitration or “black letter contract law”. However, his practice was, for a few years, dominated by banking law — from the point of view of debtors, he said — and he considered that commercial law. He had also written some judgments in commercial law.
Wilson is one of the founders of the Socio-Economic Rights Institute, the NGO that has become famous for litigating against unlawful evictions in the Johannesburg inner-city.
Ngcukaitobi said Wilson’s book, Human Rights and the Transformation of Property, suggested Wilson remained optimistic about the transformative potential of the constitution and its viability even as others became despondent about the constitutional project.
Wilson said: “I don’t think we have any choice but to be optimistic. I find optimism in the fact that people very often turn to law and the constitution to describe their aspirations for society. That is itself a cause for optimism.”
Francis-Subbiah was also questioned about her book, Taxation of Legal Costs, the often quoted “bible” on how costs are calculated in litigation.
The book has been cited in at least five judgments, according to Francis-Subbiah’s JSC questionnaire. She is also deputy chairperson of the SA Law Reform Commission committee investigating legal costs in SA.
Francis-Subbiah started her career as legal secretary and became a prosecutor in 1998. She was appointed a magistrate in 2000 and has been doing stints as a judge since 2016.
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