Johannesburg Bar Council, Submission on short listed candidates to be interviewed for appointment to the Constitutional Court, as submitted by the GCB to the JSC, May 30 2012

APPLICANT: JUDGE LEBOGANG ORPHAN BOSIELO

1 The candidate's appropriate qualifications

1.1 The candidate has obtained the following degrees:

1.1.1 BJuris (University of Limpopo (formerly University of Turfloop));

1.1.2 LLB (University of Limpopo (formerly University of Turfloop)); and

1.1.3 LLM (University of Johannesburg (formerly Rand Afrikaans University)).

1.2 The candidate is appropriately qualified.

2 Whether the candidate is a fit and proper person

2.1 There is nothing in the application or judgments that would suggest that the candidate is not a fit and proper person.

3 Whether the candidate's appointment would help to reflect the racial and gender composition of South Africa

3.1 The candidate is a black man.

3.2 The Constitutional Court presently comprises 10 members: 3 white men, 2 black women and 5 black men.

3.3 The appointment of another black man will not enhance the race and gender composition of the Court. Clearly, there is a shortage of women of all races.

3.4 This must be considered together with the other possible contributions the candidate would make if appointed.

4 The candidate's knowledge of the law, including constitutional law

4.1 We have considered the judgments listed by the candidate in his application form and further reported judgments by the candidate. From these judgments there is nothing to indicate that the candidate has any particular expertise in the area of constitutional or administrative law to qualify him for appointment to the Constitutional Court.

4.2 The information about the nature of his practice as an attorney is not readily apparent from his CV. We also cannot establish whether there are any significant human rights or constitutional cases in which the candidate was involved in as an attorney.

4.3 The period during which the candidate practised as an advocate is very short - about 1 year. The candidate has not listed any cases where he appeared as counsel. We also could not find any reported cases where the candidate appeared as counsel.

4.4 The candidate has been a judge on the High Court or Supreme Court of Appeal since 2001. During this period we found 13 reported judgments in the South African Law Reports:

4.4.1 Van Rooyen v De Kock NO & Others 2003 (2) SA 317 (T);

4.4.2 Radio Pretoria v Chairman, Independent Communications Authority of South Africa, & Another 2003 (5) SA 451 (T);

4.4.3 Mbambo v Minister of Defence 2005 (2) SA 226 (T);

4.4.4 Fourie NO v Le Roux & Others 2006 (1) SA 279 (T);

4.4.5 Khabisi NO & Another v Aquarella Investment 83 (‘Pty, Ltd & Others 2008 (4) SA 195 (T);

4.4.6 Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA);

4.4.7 Mazibuko & Another v National Director of Public Prosecutions 2009 (6) SA 479 (SCA);

4.4.8 Ntshangase v MEC for Finance, KwaZulu-Natal, & Another 2010(3) SA 201 (SCA);

4.4.9 Theart & Another v Minnaar NO, Sen ekal v Winskor

174 (Pty) Ltd 2010 (3) SA 327 (SCA);

4.4.10 Smyth & Another vMew 2010 (6) SA 537 (SCA);

4.4.11 Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA);

4.4.12 Saayman v Road Accident Fund 2011 (1) SA 106 (SCA); and

4.4.13 Law Society of the Northern Provinces v Vilfoen; Law Society of the Northern Provinces v Dykes 2011 (2) SA 327 (SCA).

5 The candidate's commitment to the values of the Constitution

5.1 There is nothing to indicate that the candidate is not committed to the values of the Constitution.

5.2 The candidate practised between 1982 and 1998 as an attorney. However, there is no specific mention in the CV as to whether the candidate was involved in any human rights cases during that period. Nor is there any indication of the nature of the legal work undertaken by the candidate during that period.

5.3 Although the candidate stated his "intrigue" at the "intricacies of the law" and the concepts of "morality and justice", there is no indication that he made choices that made it possible for him to use the mechanisms of the law to pursue justice. He has, however, explained that during his stint as a judge in Northern Cape he "extinguished the fires" between "two warring camps". Although there is no explanation of this statement, we presume that it refers to conflicts among judges of the division. In the absence of a detailed explanation as to what the causes of the divisions were, and the specific role of the candidate it is not possible to make any meaningful observation regarding this aspect. Nor can it be said to demonstrate any particular commitment to the values of the Constitution.

6 Whether any judgments have been overturned on appeal

6.1 At paragraph 16.4 of the application form, the candidate states he is not aware of any judgments given by him that are successfully appealed against. Yet, in our search, we have found 9 judgments of the candidate that were successfully appealed against. In two of the judgments, the appeal was only partially successful.

6.2 The judgments are the following:

6.2.1 National Director of Public Prosecutions v King [2010]

3 All SA 304 (SCA) (appeal upheld);

6.2.2 Van Oudtshoorn v Investec Bank Ltd [2011] ZASCA

205 (appeal partly upheld);

6.2.3 Walker v Redhouse [2007] 4 All SA 1217 (SCA) (appeal upheld);

6.2.4 S v Green & Another 2006 (1) SACR 603 (SCA) (appeal upheld);

6.2.5 Swartzberg v Law Society of the Northern Provinces

2008 (5) SA 322 (SCA) (appeal upheld);

6.2.6 S v Crossberg [20081 3 All SA 329 (SCA) (appeal upheld);

6.2.7 Tsogo Sun Holdings (Pty) Ltd v Shan & Another [2006] SCA 85 (RSA) (appeal upheld);

6.2.8 De Kock NO & Others v Van Rooyen [2004] ZASCA

136 (appeal upheld); and

6.2.9 Union of Refugee Women & Others v Director, Private Security Industiy Regulatoiy Authority & Others 2007 (4) BCLR 339 (CC) (appeal partly upheld).

6.3 In the King case, the Supreme Court of Appeal directed this criticism against the judgment of the candidate:

"[34] Ii will be recalled that Bosielo J ordered more than King had asked for at the hearing. One of the abandoned orders was an order requiring the NDPP to provide a motivated index of part A of the docket. It would appear that this may not have been an error on the part of the learned judge because on more than one occasion he reverted to the facts concerning part A of the docket. And he concluded his judgment on this aspect, after referring to the size of the indictment and the number of files that the NDPP ‘relies' on, by saying that King could not be expected to wade through tomes and tomes of documents without knowing what they are (at para 40). One can only wade through documents one has access to them. I have, unfortunately, to reiterate that this was not King's complaint.

[35] The court also justified its order with reference to the SARS and foreign evidence issues and said that King had a substantial interest in ‘seeing' them and that he cannot prepare his defence without having had ‘sight' of them. The learned judge in my view misconceived the issue, not only for the preceding reasons but also in the light of what follows."

6.4 In the Van Rooyen case, the candidate found that the appointment of an acting magistrate was unconstitutional and as a result a conviction made by that magistrate was also invalid. This was overturned by the Supreme Court of Appeal which pointed out that the candidate had misunderstood the judgment of the Constitutional Court in the matter of S v Van Rooyen and others (General Gouncil of the Bar intervening) 2002 (5) SA 246 (CC). The Constitutional Court had expressly found that although the appointment of a magistrate can be found invalid, it did not follow that judgments granted would be invalid.

6.5 In the Walker case, the following was stated concerning the approach of the candidate to a judgment before him:

 "The indemnity signed by Redhouse was pleaded as a defence to the action. And it was argued in the court below that the indemnity excluded liability under the pauperian action (as well as tinder alternative claims based on negligence or contractual beach). Yet it did not feature in the judgment of Bosielo J save for a cursory mention. The court concluded that Walker was liable under the pauperian action because Maverick had acted contra naturam, and did not discuss the effect of the indemnity at all. Walker argues on appeal that the court below erred in failing to consider the effect of the indemnity. The appeal thus turns on the meaning and effect of the indemnity, for f it does exclude liability under the pauperian action then there is no need to determine whether such liability was correctly found to have been present."

6.6 In the Crossberg case, the Supreme Court of Appeal reconsidered the record and the evidence without any reference to the judgment of the candidate.

6.7 Another judgment which deserves mention is the Namibian case of S v Teek [2009] NASC 5 (29 April 2009) in which the Supreme Court of Namibia comprising of Brand AJA, Streicher AJA, and Mthiyane AJA, overturned a judgment granted by the candidate sitting as an acting judge of the Namibian High Court. In this case, Judge Teek of the High Court of Namibia had been charged with various offences which pertained abduction of minors and performing sexual acts with them. The candidate discharged him in terms of section 174 of the Criminal Code of Namibia, worded identically to section 174 of the Criminal Procedure Act, 1977 (South Africa). On appeal, the Supreme Court was severely critical of the findings made by the candidate. After a careful consideration of the findings of the candidate the Supreme Court concluded:

"[30] For these reasons I believe that, on the evidence before the trial Court, there is ample room for conviction of the respondent on all the charges against him, save perhaps for the crime of abduction, to which I shall return. Moreover, I cannot avoid the inference that in the circumstances the court a quo's opinion to the contrary was so unreasonable that it could not have properly applied its mind to the matter. As to the charge ( of abduction, there is no direct evidence that the respondent intended to have sexual intercourse with the two girls, which is an essential element of the crime. In fact, as pointed out by the respondent's counsel in argument, there are indications that he may not have intended to do so. On the other hand, as I see it, a discharge of the respondent solely on the charge of abduction alone will have very little, any, effect on the further proceedings. Sitting as a court offirst instance, I would therefore, in the exercise of my discretion, have refused a discharge on the charge of abduction as well. Since the Court a quo had failed to exercise its discretion on this aspect, we must do so in its stead on all the charges, including abduction. I therefore propose to set aside the discharge and acquittal of the respondent on counts 1, 2, 3, 4, 6 and 8, in respect of both the main - and the alternative charges."

6.8 Also noteworthy about the Teek decision is that Judge Bosielo refused leave to appeal by the State, describing the application as "stillborn".

6.9 In sum, these decisions indicate that the candidate has, at times, not been sufficiently attentive to the facts before him, or the existing law.

7 The extent and breadth of the candidate's professional experience

7.1 The candidate practised as an attorney between 1986 and

1998. Between 1998 and 1999 he did his pupillage and practised as an advocate for about one year prior to his appointment as a judge in 2001.

7.2 On I October 2009 he was appointed as a judge of the Supreme Court of Appeal.

8 The candidate's linguistic and communication skills

8.1 The candidate's written judgments in English are well-written.

8.2 We have, however, identified certain errors in the application form completed by the candidate, which suggest that it was not proof-read before submission. These include, but are not limited to the following:

8.2.1 Paragraph 7 of the application form (page 3) refers to "National Forum or Advocates", when it should be "of';

8.2.2 The word "was" (line 2 from the bottom) is in inverted commas, when there is no discernible reason for the use of inverted commas;

8.2.3 Judge Chris Jafta's surname (one of the candidate's references) is incorrectly spelt - the candidate spelt the surname as "Jarta", when the correct spelling is "Jafla".

9 The candidate's ability to produce judgments promptly

9.1 There is nothing to indicate any material delays in the period for delivery of judgments by the candidate.

10 The candidate's fairness and impartiality

10.1 From a review of the candidate's judgments, he appears to be fair in handling of cases.

11 The candidate's independent mindedness

11.1 No adverse comments were received.

11.2 It should be noted that in Minister of Safety and Security v F 2011(3) SA 487 (SCA), the candidate opted to concur in the minority judgment of Maya JA, rather than the majority judgment of Nugent JA. On appeal, the Constitutional Court upheld the view of the minority judgment.

11.3 This demonstrates a degree of independent mindedness.

12 The candidate's ability to conduct court proceedings

12.1 No concerns appear from the available judgments.

12.2 No adverse comments were received.

13 The candidate's administrative ability

13.1 The candidate's experience as a senior partner in a law firm would suggest that he has sound managerial and administrative abilities.

14 The candidate's reputation for integrity and ethical behaviour

14.1 No adverse comments were received.

14.2 It must, however, be noted that on 9 February 2012 the Sowetan carried a story titled "Judge accepts scum apology". The story alleged that the candidate had been involved in a High Court action with a Mr Zaheed Carrim. The action had arisen from a claim for Mr Carrim against the candidate relating to building material purchased by the candidate from Mr Carrim, but no payments had been made. It was reported that Mr Carnm had issued summons against the candidate for payment of R 300 000, 00. The candidate had issued a counter claim for R1 million because he had allegedly been insulted by Mr Carrim (being called "scum") during a telephone discussion relating to whether a summons had been served or not. It was reported that the matter was settled when the candidate agreed to pay R230 000.00 to Mr Carrim while Mr Carrim agreed to issue a written apology for injuring the dignity of the candidate.

15 The candidate's judicial temperament

15.1 No adverse comments were received.

16 The candidate's commitment to human rights, and experience with regard to the values and needs of the community

16.1 We have noted above that despite practising during an era where human rights were routinely violated, the candidate does not claim or appear to have developed any notable human rights practice.

16.2 We have no indication whether the candidate is involved in any community-related activities outside the professional bodies.

17 The candidate's potential

17.1 The candidate would appear to have good potential to develop further as a judge, but it is suggested that this would be enhanced with greater experience as a judge of the Supreme Court of Appeal and further exposure to cases involving the application of the Constitution.

18 The message that the candidate's appointment would send to the community at large

18.1 There is not much to commend the candidate in respect of the two areas of expertise and transformation:

18.1.1 The candidate is a black male. There is a shortage of women at the Constitutional Court at present.

18.1.2 The candidate will not necessarily bring any particular expertise to the Constitutional Court. In fact, as pointed out in this review, his knowledge and exposure to constitutional law is somewhat limited.

ANNEXURE: LIST OF JUDGMENTS CONSIDERED

Reported decisions

Van Rooyen v De Kock NO & Others 2003 (2) SA 317 (T)

Radio Pretoria v chairman, Independent communications Authority of South Africa, & Another 2003 (5) SA 451(T)

( Mbamnbo v Minister of Defence 2005 (2) SA 226 (T)

Fourie NO v Le Roux & Others 2006 (1) SA 279 (T)

Khabisi NO & Another v Aquarella Investment 83 (Ply) Ltd & Others 2008 (4) SA 195 (T)

Judgments Upheld on Appeal

National Director of Public Prosecutions v King [2010] 3 All SA 304 ( (SCA) (appeal tphe1d)

Walker v Redhouse [2007] 4 All SA 1217 (SCA)

S v Crossberg [2008] 3 All SA 329 (SCA)

De Kock NO & Others v Van Rooyen [2004] ZASCA 136

Union of Refugee Women & Others v Director, Private Security Industry Regulatory Authority & Others 2007 (4) BCLR 339 (CC) (appeal partly upheld)

S v Teek [2009] NASC 5

Transcribed from PDF. As such there may be small errors in the text. Please check against the original.

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