Judge Lister Nuku. Picture: Michael Walker
Age, experience and capability to be a judge of the Competition Appeal Court of South Africa were at the centre of interviews of two candidates, Judges Brian Spilg and Lister Nuku by the Judicial Service Commission panel in Johannesburg on Tuesday.
The JSC's interviews to fill vacancies in the superior courts have been scheduled from this week until April 21.
Judge Nuku, who was Western Cape Judge President John Hlope’s attorney in his ongoing legal battles with the judges of the Constitutional Court, was the first to be interviewed.
He indicated that he had acted in the Competition Appeal Court since January 2022, and said that he had found that a knowledge of economics was essential for a judge of the Competition Appeal Court, as the legal framework of the Competition Act required a fair understanding of how the economy worked.
He explained that he didn’t subscribe to the dominant schools of thought, as South Africa was in a unique situation and had to balance competition with social policy.
When asked about comments from law bodies that he lacked appellate experience, also noting that the Supreme Court of Appeal had criticised his appeal judgment, Nuku said, "That I lack appellate experience is without foundation". He said that the SCA's criticism was of a judgment early in his career.
He was also asked by Advocate Tembeka Ngcukaitobi SC to assure the JSC that he was a "safe pair of hands" on competition law. Nuku said that based on his experience as a practitioner and judge, he was ready but if the JSC decided he should wait, he would accept it.
Judge Brian Spilg's age, currently 74, and his imminent retirement next year was brought into question of whether it was fair to appoint a judge to the Competition Appeal Court if he could only serve for less than a year before retiring.
Spilg said that he viewed fairness differently and that if there were five candidates who applied for the five vacancies at the court, he would not have applied. However, Spilg and Nuku were the only two candidates who had applied for a spot in the five vacancies at the court.
JSC commissioner Julius Malema questioned what his appointment would do to the fiscus given he may receive a larger retirement package after serving less than a year at the court, Spilg clarified that there was no extra remuneration that came with the job.
"There is no extra remuneration, only extra work," he said.
Spilg also said that while he had acted at the Competition Appeal Court for two years, he only sat in on one matter.
"I may not have sat in a Competition Appeal Court but I think the experience I've had commercially and in these fields as well as presented papers on access to medicine on international platforms, I think I can contribute through experience and the application of principles of market forces with the prism of the constitution and the advancement of our people," Spilg said.
A complaint laid against Spilg two years ago was also brought to the fore, although details of the complaint were not revealed during the interview.
Spilg said that he had been trying to get to the bottom of the matter for two years without luck, and had no knowledge of what the complaint was about.
He told the JSC that 10 minutes before his interview today, he was shown a letter which the complaint may have been about but he still did not recall it.
"I am concerned that I have tried for two years to establish what this complaint is about but minutes before my interview, I am shown this letter.
"My peers do respect me, they do respect my integrity, they do respect my ethics. If something slipped through the cracks, it slipped through the cracks," he said.
The JSC has begun to deliberate over these two interviews.
kailene.pillay@inl.co.za
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