The judge who has been presiding over the State's often-delayed corruption case against Jacob Zuma has missed out on an appointment to the Supreme Court of Appeal (SCA), while the judge who invalidated the former president's medical parole was given the nod. 

Gauteng High Court Judge Keoagile Elias Matojane was the subject of threats and vitriolic social media attacks after he ruled that Arthur Fraser's decision to grant medical parole to Zuma was unlawful, and ordered that the former president return to prison. 

And it was clear from EFF leader Julius Malema's questioning of Matojane that he was trying to use that ruling, which is currently the subject of an appeal by Zuma and the Department of Correctional Services, as a basis for excluding him from the Judicial Service Commission's (JSC) list of recommended SCA appointments.

"I’m worried… what kind of society will we become, in line with corrective measures, to imprison elderly people, we are not going to benefit anything from them," Malema said, after insisting that he was not referring to any specific case.

"But, Mr Malema, are you not raising that in a wrong forum? You are a public representative; you are elected to Parliament to go and make laws. This is an issue, which in my view, you should raise in Parliament," Matojane said.

Questions about JSC criteria

Malema: "You also make laws."

Matojane: "No, judges don't make laws." 

Malema: "There's case laws you make. Judges who are scared to make case laws are cowards." 

Matojane then told Malema: "Let's see what the Constitution says," referring to the fact that South Africa places the power to create laws firmly in the hands of Parliament and not the courts.

However, Matojane was included on the JSC's list of recommended SCA judges.

There are still significant questions about what criteria the JSC is using in its appointment of judges. 

KwaZulu-Natal High Court Judge Piet Koen, who has presided over the Zuma trial since May last year, was regarded as one of the strongest candidates to apply for one of five vacancies.

But he was snubbed by the commission for a second time – after previously being slammed by then-chief justice Mogoeng Mogoeng for his allegedly "extremely rude" conduct during a 2016 meeting.

During his interview on Monday, Koen told the JSC that he was "gutted" by Mogoeng's criticism during the JSC interviews for SCA candidates in April 2021, and believed that it was "unjustified".

At the time, Mogoeng slammed Koen’s behaviour during that meeting, which was held to discuss cost-cutting measures. The former chief justice also questioned how Koen had been appointed as a judge in the first place. 

Koen provided the JSC with a recording of the meeting, as well as a transcript of its contents, which he said demonstrated that he had not raised his voice or acted in a rude way towards Mogoeng.

He did, however, reveal that the "hiccup" that occurred at the meeting "made me consider all kinds of options, possibly leaving the judiciary altogether and employing my skills to the extent that I have them elsewhere".

"As I say, it happened. I was gutted by what was said. If litigants or people in the legal profession google my name, they come up with that interview and the lashing I received. That is going to be a historical fact that's going to remain with me for the rest of my life. But we must move on," Koen said.

His exclusion from the SCA shortlist does mean the Zuma prosecution will not be interrupted by him leaving his High Court post, and a replacement trial judge needing to be appointed.

Another notable exclusion from the JSC shortlist was that of Gauteng High Court Judge Sulet Potterill, who was the target of baseless attacks from Public Protector Busisiwe Mkhwebane – after she ruled in favour of Minister Pravin Gordhan in his application to interdict Mkhwebane's remedial action in her later discredited SARS "rogue unit" report. 

Recent correspondence placed before the Section 194 inquiry into Mkhwebane's fitness to hold office has revealed that the Public Protector approved an article that attacked Potterill as "unethical and incompetent".

A 31 July email from Mkhwebane revealed that she described this article, in which "fugitive from justice" Paul Ngobeni described Potterill's ruling in favour of Gordhan as "fake law untethered to the record", as "perfect… though the language used is very complex for her (Potterill) to understand".

"Should have used simple language so she can get the message," she added. 

Potterill was not asked about these apparent attacks on her and, for reasons that are unclear, she did not make the SCA cut. 

After two days of interviews, judges Glenn Goosen, Pieter Meyer, Daisy Molefe, Sharise Weiner and Matojane made the cut.

Eleven candidates were competing for five spots on the SCA – five of whom are white.

Three of these white candidates were chosen. 

Goosen, who served as the national director of investigations for the Truth and Reconciliation Commission (TRC), managed to convince the JSC that he was ready to be appointed permanently to the court.

He added that he didn't believe his appointment to the SCA would result in an "over-representation of white men" - as the National Association of Democratic Lawyers suggested. 

Both Deputy Chief Justice Mandisa Maya and Gauteng Judge President Dunstan Mlambo praised the Eastern Cape-based Goosen for the assistance he had provided to them in relation to their courts conducting virtual hearings. Maya thanked him for this during his interview.

Committed to transformation

The JSC also decided to advise President Cyril Ramaphosa to appoint 65-year-old Molefe.

Molefe said her age should not be a reason to not appoint her, as she regarded it as an advantage and believed she could do a lot in the six years she would have left to serve on the SCA Bench.

While the General Council of the Bar has claimed that Molefe only has five reported judgments, she defended herself, saying she had written several judgments at the Land Claims Court. 

Judge Weiner appeared to be an obvious choice for the JSC.

When she started her interview, Maya said from Weiner's previous interview, it was established that she was "experienced, hard working," and was also committed to transformation. 

Weiner said in the past few years, the SCA had lost 11 judges, either through retirement or elevation, adding that she believed her "knowledge and experience" could benefit the Appeal Court.