‘You are no judge’, Malema tells ConCourt judge candidate

Member of the Judicial Service Commission (JSC) Julius Malema accused one of the Constitutional Court judge candidates, Dhaya Pillay, of being “nothing but a political activist”.

Malema said: “Judge, I am going to argue in a closed session that you are nothing but a political activist. You are no judge, and you deserve no high office. If anything, you are also factional and belong to Pravin’s [Gordhan] faction and you are pursuing factional battles using the bench.”

Malema rebuked Pillay for quoting an ANC morogoro consultative conference in one of her judgments.

He said Pillay knew it would be inappropriate to quote an ANC conference document in her judgment, so she “deliberately omitted the ANC, so that people wouldn’t know that a judge of a neutral court quotes a political party gathering documents in her own judgment, yet we must still perceive you to be a neutral and objective judge who is not biased”.

Pillay, who is vying for a position on the country’s highest court, faced a grilling from the JSC on whether she had relationships with Minister of Public Enterprises Pravin Gordhan and the ANC’s Derek Hanekom.

Pillay said she is friend of Gordhan, and has known him for many years, but is not a friend of Hanekom.

Asked by Malema if her relationship with Gordhan enhances the image of the judiciary, Pillay said: “Unfortunately, it’s not a relationship I can dissociate myself with for the simple reason that he has been my friend for a long time.

“The fact that he has been in government has never interfered with my adjudicative work, and he and I recognise boundaries. Politicians recognise boundaries with the judiciary.”

Malema then hit back, saying Pillay was friend of Gordhan, who he claimed had allegedly ‘captured the judiciary’. He pushed her again on whether being the friend of a politician boosts the judiciary’s image.

Pillay said her association with Gordhan never impacted on her work for the past 21 years and it will not do so going forward. She said she had ruled against the Treasury and SARS before, and it had never been a problem.

“Friendship doesn’t mean I am having breakfast, lunch and supper with Mr Gordhan,” she said.

Malema asked Pillay about having lunch with former president Jacob Zuma before she dealt with cases involving him. Responding, Pillay said that if she did not mention she had lunch with Zuma, very few people would know about it.

She also said she knew the former president from when he was in exile.

Earlier on, one of the commissioners read three letters, which objected to Pillay being appointed to the highest court.

One of the objectors complained about Pillay’s judgments against Zuma.

Dealt

However, Pillay said there was no conflict of interest in all the cases she dealt with involving the former president.

One of the cases she dealt with was a ruling which favoured Hanekom in a defamation case brought against Zuma.

She also made headlines after issuing a warrant of arrest for the former president after he failed to appear in court.

At the time, the judge was not satisfied with the “sick note” Zuma’s lawyers produced as evidence of his alleged ill-health.

On Tuesday, she said that, when she dealt with Zuma’s criminal prosecution matter, she was told it would be a postponement, but the former president was not in attendance.

Fails

“A normal thing a judge does when a litigant fails to appear in court is to issue a warrant. The judge has the discretion to stay the warrant and that is exactly what I did. I stayed the warrant.

“There is no conflict of interest in those matters and the current matter serving before the Constitutional Court.”

Pillay is currently acting in the Constitutional Court.

She joined the apex court from her KwaZulu-Natal High Court position, where she has served since 2009.

She has also served for an acting term in the Supreme Court of Appeal and was a judge in the Labour Court.

She joined the Free State Centre for Human Rights as Extraordinary Professor in December 2020.