- A Gauteng High Court candidate was grilled for mixing up legal concepts.
- Advocate Ntombizanele Elizabeth Ndlokovane has been acting judge since 2016.
- Eight people are competing for four vacancies in the Gauteng High Court.
A Gauteng High Court judge candidate, who started acting since 2016, was asked why, in 2022, she was still mixing up legal concepts.
“How do you in 2022, having been acting for so long, end up in a situation where you mix up legal concepts in this way?” member of the Judicial Service Commission (JSC) advocate Sesi Baloyi asked advocate Ntombizanele Elizabeth Ndlokovane on Thursday.
Baloyi mentioned two judgments she was concerned about, which Ndlokovane had penned this year.
One of the judgments was an interlocutory application which Ndlokovane dismissed, but when she dealt with costs, she said the parties were “partly successful”.
“You say each of them is partly successful, and in the next paragraph, you dismiss the application. It is something I don’t understand.
“My concern about is this is a 2022 judgment, and for someone who has been acting since 2016 for as many weeks as you have done, I am very concerned that you would do that,” Baloyi told the candidate.
She then moved to another judgment, in which the acting judge found a store owner was vicariously liable after a person was shot dead in his store by an employee.
Baloyi said this was clearly a delictual case, but in her order, Ndlokovane mentioned “murder committed”.
“How did we get there in a delictual claim? I am particularly concerned because this is in 2022, and you have been acting for all these years, and we end up in these orders. Can you just explain and why in light of this, the commission should still recommend you.”
Ndlokovane said the first case Baloyi mentioned came twice before her, adding she “agreed with them that there was a patent order in the appeal”.
In the second case, Ndlokovane tried to explain the facts of the matter, but Baloyi interjected, saying she was worried about the time, and she was not asking about the facts.
“You were dealing with vicarious liability; someone was shot in the store, and they are suing the store owner because the shooting was done, or the death was caused by an employee of the store. The facts are that simply, in your order, you speak of a liable because murder has been committed.
“You have mixed up completely unrelated concepts of the law and areas of the law. The one is delict [and] the other one is criminal. How do you, in 2022, having been acting for so long, how do you end up in a situation where you mix up legal concepts in this way?
“The significance of the question is, how can we trust you that when you are on the bench, you have sufficient experience over the years, and you are good to go, you don’t need any further training and development and exposure, that is the thrust of my question,” Baloyi said.
Ndlokovane responded: “It is clear from the judgment the employer is vicariously liable for the actions of the employee, and you can really see from that order, and I will not take it further than that, and I hope it sits well with you.”
When she started her interview, Ndlokovane appeared relaxed and confident.
She told the JSC when she acted in the Gauteng High Court, she hit the ground running and compromised social commitments to stay up to speed with the workload in that court.
Ndlokovane is among eight people vying for a permanent position in the Gauteng High Court. There are four vacancies.
Among the courts she acted in include forums in Limpopo, the Northern Cape, and Mpumalanga.
Judge President Dustan Mlambo then invited her to act in the Gauteng High Court.
Ndlokovane described the workload in Gauteng as “unique”.
She added when she was given an opportunity to listen to aces, she came prepared.
“It [her acting stint] was a steep learning curve, but it is worth it.”.
Ndlokovane said the judgments she had produced were legally sound, but there was room for improvement.
A JSC member, advocate Kameshni Pillay SC, asked how many black female juniors she had worked with.
Ndlokovane mentioned 12, who, she said, assisted her in various cases which included construction, unlawful arrests, and family matters.
But her confidence quickly dropped when she was questioned about some of her 2022 judgments.