JSC interviews: Ngcukaitobi grills judge on Jacob Zuma and Bonginkosi Khanyile judgments

The Judicial Service Commission (JSC) interviews entered their third day on Wednesday and saw the first candidate having to clarify his judgments on cases involving former president Jacob Zuma and Bonginkosi Khanyile.

Judge Nkosinathi Chili interviewed for Deputy Judge President of the KwaZulu-Natal Division of the High Court.

He was asked to explain his process of dealing with a potential sexual harassment case and the two high-profile judgments.

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“I will call the person who is alleged to have sexually harassed you. I will inquire and conduct a mini-investigation. If I see fit, then I’m going to suggest that the person be suspended pending the finalisation of the investigation,” Judge Chili told the commission.

When asked about which legal instrument he would exercise, Judge Chili responded: “I don’t know”.

“Do you accept that sexual harassment is a misconduct which is reportable to the JSC?” asked the JSC’s Mvuso Notyesi.

“Yes,” responded Judge Chili.

“If that is what you would do, then why don’t you simply say so, so we get off this matter?”

Khanyile case

Then a UKZN student, Khanyile was arrested in September of that year on charges including public violence, illegal gathering and obstructing traffic for his involvement in the Fees Must Fall protests.

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He was refused bail by the Durban Magistrate’s Court and later, the Pietermaritzburg High Court, where Judge Chili presided over the matter. The Supreme Court of Appeal also rejected his bid for freedom.

The matter went all the way to the Constitutional Court, where Khanyile was represented by Advocate Tembeka Ngcukaitobi.

The apex court granted him bail of R250 in March 2017 after he had spent almost six months in prison.

Judgment ‘significant’

In his application for the job, Judge Chili listed the case as one of his significant judgments – an inclusion Advocate Ngcukaitobi sought clarity on.

“Why did you put it up as one of your important judgments? What is the principle of law that it developed which didn’t exist before? There was no principle as far as I remember. I argued that case,” asked Advocate Ngcukaitobi.

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“It didn’t develop any point of law, I accept that. But I put it up as one of the matters that were taken up on appeal unsuccessfully,” responded Judge Chili.

“When you ask me about the point of law in that matter, it was a bail appeal that served before me. The high court can set aside a decision of the magistrate if the magistrate is wrong. I was not able to find that the magistrate was wrong, that’s the reason why I refused that appeal.

“But going back to your question, I put it up simply because I was called to put up matters that were unsuccessfully appealed.”

“But that answer is not true, you mention this case twice as one of the most significant judgments,” said Chief Justice Mandisa Maya.

“This is a mistake,” said Judge Chili.

“That’s fine, we all make mistakes,” responded Advocate Ngcukaitobi.

Zuma judgment

In August, Judge Chili dismissed Zuma’s application to have Downer removed from his corruption case over alleged bias. The former president accused Downer of leaking his medical records to journalist Karyn Maughan.

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At the time, Judge Chili did not provide reasons for his decision and said he would share them in his final judgment at the end of the trial.

He then decided to postpone the matter to the following month, after agreeing to provide reasons for his decision.

His decision was questioned during his interview on Wednesday.

“I was not understanding your ruling recently in S vs Zuma, where you first decided that you were not going to give written reasons for a decision not to recuse Mr Downer, and then you changed your ruling and postponed the case to give reasons,” said Advocate Ngcukaitobi.

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“I understand that the substance of the reasons may be a subject of appeal, but I’m very concerned about your consistency as a judge, where today you wake up and say one thing and tomorrow you change it. In my view, you are damaging the perception of justice. What is your response to that?”

“I have to tread carefully because the matter is sub-judice. I had my reasons, which I don’t think will be appropriate for me to say now,” responded Judge Chili.