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Interview with Justice BE Nkabinde
October 2005

Judge Langa:

The position you are going to be interviewed for is as a judge of the Constitutional Court. I will put a few questions to you. My colleagues will also put some questions to you but we appreciate your making yourself available and for being here. Let me just get a few background facts just to get us going. You are presently a judge in which court?

Judge Nkabinde:

Mr Chairperson I am presently acting in the Supreme Court of Appeal. I am appointed a judge of the High Court in Mafikeng.

Judge Langa:

Mafikeng?

Judge Nkabinde:

Yes.

Judge Langa:

When were you appointed?

Judge Nkabinde:

I was called to come and act in that court at the beginning of 1999. I continued to act until the end of that year, October 1999 and at the end of October 1999 I was before this Commission, interviewed for a permanent post in that division and I was accordingly appointed. I continued to dispense justice in that court until now as a permanent member of that court. I have also acted in other courts, in the Labour Courts and I am now in the Supreme Court of Appeal.

Judge Langa:

When did you start acting in the Supreme Court of Appeal?

Judge Nkabinde:

My appointment is with effect from the beginning of June until the end of November this year.

Judge Langa:

Is this the first time you are acting in the Supreme Court of Appeal?

Judge Nkabinde:

Yes, Sir.

Judge Langa:

Other than that, you say you have experience, you have acted in the Labour Court?

Judge Nkabinde:

Yes, I have acted two terms in the Labour Court and for three terms in the Labour Appeal Court before I was invited to act in the Supreme Court of Appeal.

Judge Langa:

What is your background before you were appointed a judge?

Judge Nkabinde:

Chairperson I worked in the Department of Justice as a State Law Advisor in 1984 until 1989 when I decided to join the Bar. In 1989 I started pupilage at the Johannesburg Bar. When I finished I started practising in Mafikeng. I joined the North West Bar Council from say the beginning of 1990. I practised in that division until 1999 when I was called to act as a judge.

Judge Langa:

The Constitutional Court, what can you tell us about your suitability for the Constitutional Court.

Judge Nkabinde:

Thank you Mr Chairperson. Let me say just before that when I took office as a judge in 1999 I took oath and committed myself to be faithful to my country, to uphold and protect the Constitution and to dispense justice to all person alike without fear, favour or prejudice. I have done that since I was appointed, since 1999 to date. I think some of the judgments that I have delivered speak for themselves. Besides that I believe Mr Chairperson that with that experience that I have alluded to I am qualified. I am a fit and proper person to be considered for this position. I must also say apart from the fact that I am South African, a woman, I think Commission is enjoined by the Constitution to ensure that the judiciary reflects the gender and racial composition of the society in which we live and as I say I believe that the majority of the illiterate in the country comprises of women and most probably black women so I would urge this Commission to consider my application favourably because of those qualifications that I have mentioned, my experience in all these courts and my skills. I believe also that my involvement also in institutions like the Rules Board, where one is dealing with matters that to a large extent, enhances the values in the Constitution in the manner of accessing justice. I think we know that one of the issues that we are grappling with in this country relates to access to justice. We have a system which is very complex right now, a bit flawed, expensive, fragmented and I think overly adversarial. So in some of the things that we do at the Rules Board is to try to achieve those objectives for the ordinary people of this country and I think that can also be my contribution in the Constitutional Court with that experience.

Judge Langa:

Are you currently chair of the Rules Board?

Judge Nkabinde:

Yes I am presently chairing the Rules Board.

Judge Langa:

I see that you have served on the committee dealing with racism and sexism. Can you tell us a little about that?

Judge Nkabinde:

Thank you Chairperson. You would remember Chairperson that I was co-opted onto that committee apparently by the Heads of Courts and I think I represented women on that committee after being co-opted. This as you know, the issues relating to racism and sexism in our country continues to be debated. I suppose it is something that we have to learn to accept that it does exist with the kind of history that we have but I suppose that if you are all committed and we start from the basis that we need to respect one another and accord one another the necessary dignity that will set as a starting point. There will always be some differences but I think the sense of tolerance amongst all of us, not only in the judiciary, but I think in the society, we will achieve the objectives that the Constitution refers to in section one that our democracy is founded among other things, on human dignity, equality and non racialism and sexist society. In our objectives on that committee was to try to look at measures and strategies as we were mandated by the High Courts to see how best we can advise the judiciary on how to deal with this issue. Mr Chairperson I wouldn’t have to divulge much because I think that the report of the committee is almost toward finality but I think we have achieved our objectives in that sub committee by looking at measures that can assist of us in the judiciary in working with one another, in harmony, with tolerance and respect and I think the problems will be surmountable.

Judge Langa:

How have you found your work at the Supreme Court of Appeal?

Judge Nkabinde:

Chairperson I am happy I have my President here, Judge Howie. I must actually thank him for having invited me to come to his court. It was a big challenge when he approached me but I accepted the invitation. I must say there is a lot of work in that court. I enjoy working with all of them. The collegiality that one receives in that court is astounding and I enjoy working there despite the heavy load of work that one has to deal with. There is a wealth of experience and knowledge around us especially the acting judges and we enjoy doing our work despite all the other challenges that face us and I must of course say to Judge Howie I am indebted to him for that. I enjoy my work.

Judge Langa:

Thank you Judge Nkabinde.

Mr Mahlangu:

Just a very short question. I have been interested by the fact you mentioned about the access to justice which is a problem in this country and one would be interested or to hear more from you as to what proposals could you perhaps have or some ideas once you are appointed on the Bench to accelerate this access to justice particularly to the most disadvantages people of this country?

Judge Nkabinde:

Thank you Sir. I must say with the experience that I have from the Rules Board now, you probably have also seen that I had an opportunity to be involved in the South Asian Judicial Colloquium where this aspect was the core of the discussion there. You will probably know that the South Asian community almost share the same experiences with us although I think South Africa is more advanced in terms of the way the Constitution deals with matters, what we are grappling with but I think they take courage and comfort in trying to learn from countries such as ourselves. As I said earlier on the issues relating to access to justice include among other things the fact that litigation has become very expensive in our country. A bit slow, somewhat adverse and it is fragmented. Section thirty four of the Constitution talks about access to the courts. I suppose one can read into that and say access to justice in a broader sense and I think when you think about the ideals of the Constitution we all look forward to encouraging our people to see not only the Constitutional Court of course, but all the courts to see the courts as being friendly, as places where they can go to, to get some sort of redress but as things are now the majority of the people in our country being so poor, courts are almost inaccessible, you know, in that context and if you simplify the rules what we are now grappling with I am sure ordinary people will find it easy to approach the court and seek relief. The expenses attendant to litigation do somewhat prevent people from litigating and I think if you are able to look into those issues ….of course we have Legal Aid but it doesn’t really solve the problem. I think if we can simplify the rules, look at the bigger picture of the whole justice system and try to harmonise the rules and the civil rules of procedure we will make a step towards achieving that objective in the Constitution.

Mr Mahlangu:

Thank you Chief Justice and thanks Judge.

Adv Moroka:

Thank you Chair. Judge we did pupilage together many moons ago. I read all the judgments that you annexed to your form and if I may comment and say they made for easy reading, they were interesting and they dealt with issues in a very direct way. I was just wondering why is it you were appointed in 1999 and you only mention one reported judgment.

Judge Nkabinde:

Yes.

Adv Moroka:

But I do see that some of your judgments are marked reportable. Do you know why you have appeared so little, so seldom in law reports?

Judge Nkabinde:

Thank you Madam. Yes, you are correct. I must actually say that when I completed the questionnaire it was just one day before the closing date, I might have omitted to mention the other judgments that were marked reportable that, to my knowledge, have not been reported. You realise in some of the judgments that I also attached like the Amahlubi Tribe judgment that actually deals with a number of constitutional imperatives has not been reported albeit marked reportable. Madam I think you will agree with me that the question on whether ones judgement is reported or not is outside one’s control and authority. As much as you sometimes want your judgments to be reported but it goes up to a certain stage, you simply mark it reportable and somebody else has to cause it to be reported. I learned now that some of my judgments that were marked reportable for instance in the Labour Court were caused to be sent to the Constitutional Court, I suppose by the directive of the Chief Justice but I was told so by the librarian in the Labour Court that all those judgments were asked to be forwarded to the Constitutional Court. That, notwithstanding, I must say that yes, most of my judgments have not been reported for reasons that are beyond my control but I have dispensed justice and I think some of those judgments speak for themselves.

Adv Bizos:

I asked myself the question that Adv Moroka asked you and looked through your judgments. There may well be a very simple explanation that most of them deal particularly with questions of fact which are difficult to decide and you spend a lot of time on it and you set out the facts and contentions on both sides and maybe the editors don’t think that that sort of judgment is for the law reports but I wouldn’t worry unduly about it. But what I do want to ask is this. Our Constitutional Court has been in existence for ten years. A considerable body of jurisprudence has been developed. What I would like to know from you is to what extent have you informed yourself of this jurisprudence and how much of it have you imbibed? Are you going to be a beginner if you are appointed or will you be acquainted with the main judgments and the principles that have been enunciated by the Constitutional Court hitherto?

Judge Nkabinde:

Thank you Mr Bizos. I must say that I do not think that I will be sitting, dispensing justice in those matters really as a beginner. I think, yes, I agree that the law has been developed and I believe that it is imperative for judges, not only in the Constitutional Court I suppose, but all of us to examine the principles of law as they stand now and reshape them in the image of the Constitution. We see progressive judgments particularly in the Constitutional Court. Grootboom, Soobramoney Modderdam and a number of them, which some of them have just slipped my mind but we see that the ideals of the Constitution is achieved in most of those judgments. You look at the most recent judgement, I think, by the Constitutional Court in the case of the Minister of Law and Order where vicarious liability, the way it was dealt with by the Supreme Court of Appeal has been dealt differently by the Constitutional Court in looking at the ideals in this Constitution. So you have the common law principles that you examine and reshape in line with the ideals of the Constitution and I suppose if my application is considered favourably this is basically that which I have to do. Look at those principles that exist in the common law, examine them, look at the Constitution and see how best one can reshape them in line with the constitutional imperatives. Well of course if you down load those values one has to also, in terms of the Constitution, develop not only the common law but customary law in line with those imperatives and yes, Mr Bizos, I think I am alive to the way the court has functioned and the principles that they are looking to, look at those vicarious liabilities, delictual matters, labour matters. For instance the way the Constitutional Court has dealt with the developments of our jurisprudence in labour, yes, I am alive to those.

Adv Bizos:

Thank you Chief Justice, thank you judge.

Mr von Klemperer:

Thank you Chief Justice. Judge Nkabinde could you perhaps clarify for me on your questionnaire, section eight on page three which are “Particulars of community and other organizations in which you are or have been a member for the past ten years” and you list five entities, one of which is the North West Parks Board but the others appear to be commercial enterprises. Dirapeng (Pty) Ltd, Golden Leopard Resorts, Invest North West and the International School. Are these commercial enterprises or are they community organizations? Can you perhaps clarify that?

Judge Nkabinde:

Thank you Sir. I must actually confess that I think I might actually not answered the questions very directly. I think only two, maybe one, the involvement as a governor of the International School could be the community institution. I should not have added those commercial institutions like those companies in which I was involved because they are not really community based so I might have just made a mistake when I rushed to answering that questionnaire. I apologise for that.

Mr von Klemperer:

You don’t have to apologise. I wanted you to clarify it. Have you have an involvement in any community organizations, broad based community organizations and if so could you perhaps tell us about them?

Judge Nkabinde:

Well I wouldn’t really say that I have been involved in community based organizations as such apart from just involvement in church matters where from time to time one would participate. I have not mentioned that in the questionnaire but I have been involved in matters involving the community where I have from time to time been asked to present papers to the community and to help them on legal issues that from time to time crops up. Like you know, the institution of the family advocate that deals with the community very closely from time to time and I have been involved to that extent but I do not have specific community institutions that I can really mention. I go from time to time, when I am asked, to present papers to the community, to a particular community on a particular legal issue.

Adv Nthai:

You know traditional leaders are born. They are not elected. In other words a king is born, a chief is born, we now call them senior traditional leaders and a head man as well is born. Do you think you would have taken a different view in that matter of Amahlubi?

Judge Nkabinde:

Yes. Thank you Adv Nthai. Yes of course I think had to take a different view because the issue there, if you fully remember, does not really relate to the question of succession to the Chieftain chief. It is with the statutory appointment of the Headman for that particular community which happened to have been part of the Amahlubi tribe. That community lived in a trust area which is not a tribal area but unfortunately by way of legislation that community was somewhat or the land in the community was somewhat statutorily made to be subject to Chief Zibi and the headmen were appointed by him from time to time. You will remember the Viviers commission in the then Bophuthatswana government which grappled with these issues because of the continuing problems between the communities in the trust areas and the tribe and I dealt with the issues in the judgment trying to ensure that the community there in the trust area were not necessarily members of the tribe and could not in terms of the Constitution, these subjected to the custom and practices of the Amathlubi tribe. So I dealt with that from that angle and it is not strictly speaking a question of succession to Chieftain Chief as such and I don’t believe in terms of the Constitution now as we look at it you can interpret the authority of the Chief to be meaning that those people must just be subjected to the customs and practices of the Amathlubi’s when you have you have such diverse communities, people from different communities in that very trust area. That is how I dealt with the judgment.

Adv Nthai:

But the issue was also about elections.

Judge Nkabinde:

Yes.

Adv Nthai:

I mean that fellow was elected and you know according to the evidence at the funeral it was announced that this fellow has now been elected. That is what I am dealing with.

Judge Nkabinde:

Yes.

Adv Nthai:

Do you think a headman can be elected in terms of tradition ….

Judge Nkabinde:

Well in terms of tradition of course you don’t have that. I think this is what the tribal authority was insisting upon and saying that the Chief had a prerogative to appoint and yet he had informed the people that there will be elections and after the Viviers commission people were given an opportunity to elect their headmen in those areas and I think, as I said, in light of our constitutional imperative it is proper for those people to elect their leader.

Judge Langa:

You seem to be re-arguing a case here. Are we through with that?

Judge Nthai:

Yes, thank you.

Judge Langa:

Very good.

Adv Seligson:

Thank you Chief Justice. Judge Nkabinde I have asked this question of some of the other candidates today and I would be interested to hear your views. As you are aware, when it comes to constitutional remedies the Constitutional Court can, in matters involving government inaction or action which infringes rights or is alleged to infringe rights under the Bill of Rights, can grant a declaratory order, declaring the rights of the individuals involved or in appropriate cases it can grant a structural or supervisory interdict. Have you got any views on the appropriateness of the Constitutional Court issuing an order like that which requires the government to report back to the court what has been done?

Judge Nkabinde:

Thank you Sir. I think there are a number of such judgments that the Constitutional Court has passed and I think correctly so. What comes to mind now I think, if I am correct is the recent pharmaceutical case, Clicks case which has just been passed by the Constitutional Court. I think also probably the Grootboom which deals with social-economic justice. Modderkuil judgment as well on the right to the squatters on the one hand and on the other hand the right to land owners or property rights. Yes, I think some of those judgments do echo that which you say.

Judge Seligson:

What is your view about the limits or how does one solve that tension between deference to the will of the Legislature and the need to enforce the Bill of Rights?

Judge Nkabinde:

I don’t see that as a problem because I think the starting point I think we should all appreciate is the Constitution is the supreme law of our country and the Constitutional Court is enjoined, not only the Constitutional Court I suppose, the High Courts, the Supreme Court of Appeal and all other courts to respect the supremacy of the Constitution and I think it is the duty of the courts and the Constitution in particular to direct the Legislature where those values in the Constitution have been infringed. I think the Constitutional Court can give a directive and a direction to the government with regard to those instances where the rights, the values in the Constitution, seem not to be protected.

Judge Seligson:

Yes, thank you Judge.

Judge Nkabinde:

Thank you Sir.

Adv Nthai:

Just a last question. You were a state law advisor. What were you doing there? Were you drafting legislation, what were you doing?

Judge Nkabinde:

Thank you Advocate. Yes, when I started working we drafted legislation, advice in different departments and my responsibility entailed drafting legislation, yes.

Adv Masutha:

Judge I am trying to get a sense of what is it that is different that you are bringing in case you are appointed to this position to the Court. I must say that it is quite fascinating to listen to the, I almost said interrogation from Adv Nthai on your judgment earlier on the customary law issue. Do you have …to what extent have you been involved or been exposed to customary law, be it as a practitioner or judge or in any of the other capacities in which you have interacted with the law. I just want you to elaborate more. Is that the only case that comes to mind or are there other cases you have had to apply customary law or interpret it?

Judge Nkabinde:

Adv Masutha I think we do from time to time get applications especially with regard to, you know, burial rights. They do crop up from time to time you know where you find a man who has married two or three women customarily, dies and you have those competing rights of the customary wives and maybe the civilly married wife and the question of burial comes in and time to time you do have those kind of applications coming to court as to who of those women have a right to bury the deceased. Also in terms of where should this deceased be buried if those people live in different locations. Those do crop up from time to time but I must say now with the development in terms of the fact that you don’t really find many people, especially in the community in which I live now, you don’t really find many people marrying two or three wives so we don’t have a lot of those. But we also do not really have a lot of customary issues coming to the High Court for determination. My background as you probably agree, obviously I know customary very clearly. I think with the knowledge of the customary law, the practises and customs, especially of the Tswanas, to some extent I do also know the Zulu traditions, customs and applications because I have studied the Zulu traditional law very closely. I think that will also bring some sort of a contribution to the Constitutional Court because you know the institution of traditional leaders in terms of the Constitution is recognised and obviously the issues relating to customary law. We have to uphold the customary law as long as it is in line with the values enshrined in the Constitution. So that knowledge is important because you will know what you are dealing with when you try to develop that law because it is not static like the common law. It changes from time to time so I think that knowledge, limited as it may be, will be of value to that court when we deal with such issues if they do crop up.

Adv Masutha:

The second and perhaps the last question. Obviously to get a balance I am also equally keen to hear more about your exposure to commercial work focussing on a specific aspect of it and that is linking it to the earlier issue of access to court given the fact that the majority of our people find it quite unaffordable to approach the courts because of the prohibitive legal costs and so on. Is there any intervention that the courts through their judgments can make to make the law more simple and more accessible especially to those that may not afford to hire expensive, you know, legal counsel and so on to assist them in litigation. I am raising this because I think that on the side of government the classical example is the recent National Credit Bill which seeks to try and bring some kind of protective measures for those who may be victims of, unwitting victims of some form of getting a raw deal from the commercial environment because of ignorance and so on. To what extent can the courts play a similar role to come to the avail to those who cannot afford legal costs?

Judge Skweyiya:

Let me say this, Chief Justice, that I would have been surprised if it was otherwise.

Adv Nkabinde:

I am not sure whether I will be able to answer the question in terms of the role of the court but you probably appreciate the fact that to some extent the courts are unstrung by the very rules that are applicable right now. We do now have some legislation. For instance in the Labour Court the way that court operates, ordinary people do have access to that court. There are a certain sort of prescribed forms. They are not really very helpful when they experience in that court because sometimes litigants don’t give detail in the forms but they do help ordinary people to go to the court, be assisted by the Registrar, completing that form and having their matter be brought up to the court. The pre-trial conference matters where the court intervenes from time to time and say let the litigant come, go to the office of the Registrar or sometimes the court asks one of the advocates appearing to assist the litigant and I have seen that happening when we request advocates and attorney in court to assist people who are not legally represented by giving them advice, by helping them to complete those forms and bringing matters to court so that the court can appreciate what the real issues before people are. At the moment you also have the Prevention of Illegal Evictions from Unlawful Occupation of Land (“PIE”) Procedures when in cases of evictions for instance the court does play a very important role there. Sometimes people don’t have resources to approach the court but I think from time to time the court makes sure that people have been warned, given an opportunity to respond and then to state their situation and I think you see from the recent judgments of the Constitutional Court in the Jaftha matter where Justice Mokgoro indicated that the provisions of Section 66 of the Administrative Court Act is invalid and it should be amended so as to include those requirements for consideration but the court should look into before people are being evicted from their properties I think in line with the PIE also the Promotion of Administrative Justice Act (“PAJA”) rules which are I think in the process of being put on the table of the Minister. I think those rules will definitely assist ordinary people to access the courts because they are certain notices and forms that are being prescribed to be followed.

Adv Masutha:

Finally I tried to collapse two questions into one, I think I will have to ask the third question. What can you tell us about your exposure to commercial work? What areas of commercial work have you, I have heard a lot on the labour side but other areas if you could tell us more?

Judge Nkabinde:

Well I think I have dealt with a number of matters. For instance you know matters involving companies, liquidations and you know, like for instance in motion court work you get a variety of commercial matters that you deal with you know from almost every week you deal with a lot of commercial matters in motion court. In the High Court where I am appointed you would understand it is a very small division of course. One cannot compare that with the kind of exposure that one would get in a busy High Court like Johannesburg where you have a vast number of commercial issues coming in front of the court but I think that through the Motion Court that one handles from time to time you get exposed to commercial matters.

Adv Masutha:

Thank you Chief Justice

Mrs Camerer:

Judge Nkabinde you seem to have had an extraordinary busy year. Since May you have been acting on the Supreme Court of Appeal and then I see that you took over the chairmanship of the Rules Board and also … which you indicated when you first responded to questions, you have more or less completed your work. There will be a report at last or some rules because there has been a lot of aggro about the delay going on. So you seem to have a huge capacity for work and you seem to get things done, judging by what you said there. Also you were co-opted to the Heads of Courts sub committee on racism and sexism within the Judiciary so you have been part of that as well. Perhaps you would like to say, … I mean there is no doubt you have got this enormous capacity for work but could you just indicate how is it you manage to get the Rules Board sorted in such a short time because I think you know the professions have been really waiting for something to happen and secondly do you have, just briefly, one or two ideas on how sexism and racism in the judiciary can be combated? Whatever you would like to say.

Judge Nkabinde:

Thank you mam. Let me start with the second question. I hope I remember the first one as I go along. Racism and sexism you know with the bigotry that we have from the past also appreciating the fact that we come from diverse backgrounds. We have been brought up differently. We look at things from different perspectives. Personally I think the starting point is to appreciate that we are different but we have to respect one another. I think respect is important because respect attracts respect. Disrespect attracts disrespect. I think if the starting point is to respect one another and to respect one another’s perspective, I think we will make a step towards that tolerance that we expect from all of us in the profession. My attitude is that we see things differently but of course if somebody says or does something to me that I don’t take kind to the first thing that one should consider doing is to approach your colleague or any individual and say I don’t really take kind to this kind of thing because sometimes we misunderstand people. You know we look at things in a manner that seem to say you are being insulted when that person did not really mean it so I think at a certain point you go to the person and say I don’t take kind to this and more often than not if you of course if you respect the person, because approach is important. Approach is very important. People do apologise immediately and I think that is what we, all of us have to learn to do. Communicating. Having a frank discussion, open discussion about how we feel about the way we are being approached and I think also in the judiciary with the issues that we are grappling up with in racism and sexism, if you sit together, close the doors and talk about this issue in an open manner, I think, yes we should be able to solve the differences amongst ourselves. In our committee we have made certain suggestions which I think I cannot divulge now. I don’t have permission from the Chief Justice to do that but I think the problems are surmountable. I think if we sit together as colleagues, look each other in the eyes and talk about these issues we will be able to resolve our problems. On the first issue mam, let me just remind myself what the question was.

Mrs Camerer:

I asked you about the Rules Board

Judge Nkabinde:

Yes, the Rules Board. It has not been easy. Actually when the Madam Minister approached me I was not sure whether I was going or coming and she actually almost invariably didn’t request me but told me that I should chair the Rules Board. I said to her I will give you a ring the following day. Most unfortunately the first thing in the morning Mr Labuschagne phoned me and said I am faxing you an appointment letter. I think he is here he can give credit to that. I was almost dumbfounded but I said well OK I will accept the fax and that is how I accepted the appointment. Of course not that one is running from challenge and responsibility. The point is you agree with me that the Labour Courts are very busy. One sits with a lot of work there and I was also preparing myself to finish my judgments in that court to prepare myself to face the challenge from the Supreme Court of Appeal. I had all these things in mind. We were busy at that point in time when the Minister phoned me deliberating on the racism and sexism issues. We were about to finalise or actually to prepare the report. I was not sure whether I was going to do justice to the Rules Board because I also had knowledge about the problems that I had been facing at the Rules Board because of my involvement in the co-ordinating committee in the Justice system. You might have seen that and I was not sure whether I would be up to doing that but because the Minister actually instructed me I accepted and well so far madam I think, I suppose with the grace of G-d I have managed to do that which I could do. I have been at the Supreme Court of Appeal now. As I said I enjoy my work. It is challenging and I try my best to grapple with all these things and to find time also to attend to matters of the Rules Board.

Judge Langa:

And also to read decisions of the Constitutional Court at the same time.

Judge Nkabinde:

And also to read the decisions of the Constitutional Court Chief Justice and the Supreme Court of Appeal of course as well.

Minister Mabandla:

It is just a comment following your answers to the questions relating to the Rules Board and to say that I really take this opportunity to thank you. I actually think that I actually was down on my knees and pleaded with you and I had had your profile and I knew that you would acquit yourself as well as you have done and thank you very much.

Judge Nkabinde:

Thank you mam

Judge Langa:

The Minister was down on her knees ordering you to do it.

Judge Ngoepe:

I hope you won’t mind but I just thought that I should contextualise some of the questions. In my view some of the answers that you gave because in my view you have been very very modest particularly you were asked … you were asked to comment about issues relating to customary law and the like and I thought perhaps I should mention something which will make people like Kgoŝi Mokoena quite happy to see a person like you there. You are a princess in your own right. You are born in royalty and you lived obviously in that tribe and being the daughter of a Chief or Chieftainess you know what is going on there and you understand the issues involved there.

Judge Nkabinde:

I do Sir.

Minister Hendricks:

Thank you Chief Justice. Judge Nkabinde you have got a lot of support for this position. I don’t know if you are aware of that? The National Forum of Advocates, the General Council of the Bar speaks highly of your capabilities, your experience. Of course the Judge President of the Labour Court nominated you. Even Judge Hendricks nominated you. Definitely highly respected by your own colleagues and you seem to have quite a lot of energy to do all the things that you are doing in terms of your form. That is just a comment from me. In paragraph eight of your questionnaire you state directorships that you still hold in some companies. Are these remunerated positions or what is the situation here?

Judge Nkabinde:

Thank you mam. No I mentioned that, earlier on I answered the question by the commissioner, I think it is Mr von Klemperer but as I indicated basically I used to be a director in those legal entities. I have ceased to be immediately after my appointment so since 1999 I ceased to be a director in those legal entities.

Minister Hendricks:

I guess you have responded to the part that says you have been a member of in the past ten years. That is why they are in this form.

Judge Nkabinde:

Yes.

Minister Hendricks:

I was asking myself why didn’t you mention it but I understand the question forces you to actually mention them. Chief Justice that is all that I wanted to raise. Thank you.

Judge Langa:

Judge Nkabinde thank you very much.

Judge Skweyiya:

Thank you Chief Justice.
The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.