Judge Jody Kollapen

Meet newly sworn-in Constitutional Court Judge Narandran ‘Jody’ Kollapen.

Judges Matter website: https://www.judgesmatter.co.za/judge-jody-kollapen/ Photos and information credits: Oupa Nkosi, Mbekezeli Benjamin.

Influenced by his mother, who was arrested twice for participating in anti-apartheid marches in South Africa in the 1950s, and his uncle, who was a ‘kind of paralegal’, Narandran ‘Jody’ Kollapen knew, while still a young boy, that he wanted to pursue a legal career.

A man who is and has always been passionate about civil rights, his legal journey has seen him grow from an attorney to a judge in South Africa’s Constitutional Court, an appointment made public by President Cyril Ramaphosa on Christmas Eve 2021. The highest court in the country, the ConCourt is presided over by Deputy Chief Justice Raymond Zondo, among others.

The early years

Jody was born to a seamstress mother and a waiter father on 19 May 1957 at a nursing home in Lady Selbourne. Of Indian origin, he and his family lived in Marabastad until they were forced to relocate to Laudium in the 1960s as a result of the notorious Group Areas Act. He returned to Marabastad to practice as an attorney after graduating from Wits University with a B.Proc and LLB.

Civil society service

Over the years, Kollapen’s unflagging commitment to civil rights saw him coordinating the ‘Release Political Prisoners’ programme for Lawyers for Human Rights (LHR); joining the South African Human Rights Commission (SAHRC) first as a commissioner and going on to become its head; occupying the position of national director of Lawyers for Human rights (LHR); being part of the selection panel that chose the commissioners for the Truth and Reconciliation Commission (TRC); and working with the Legal Resources Centre, the Centre for the Study of Violence and Reconciliation, IDASA (Institute for Democratic Alternatives in South Africa, later to become known as the Institute for Democracy in South Africa), and the London-based Article 19 (an international human rights organisation that works to defend and promote freedom of expression and freedom of information worldwide).

High profile cases

During the course of his lengthy career, he’s worked on a number of high-profile cases, including the Delmas Treason Trial, the trial of the Sharpeville Six and the case involving South Africa’s Medical Council’s failure to investigate the circumstances surrounding the death of Steve Biko in police custody in 1977.

High court judge

In 2011, Kollapen was appointed to the position of Judge of the High Court of South Africa, Gauteng Division. Some of his most eminent judgments, according to Judges Matter (an independent transparency project that monitors the appointment of judges, their discipline for misconduct and the governance system of the judiciary in South Africa) included ‘Hennie and Others v Minister of Correctional Services and Others‘ where he granted an urgent interdict allowing prisoners to use laptops in their cells to study.

As Justice Kollapen, he presided in the Limpopo textbooks case, reprimanding the National Education Department and its Limpopo counterpart for its failure to deliver textbooks to schools in the province, and handing down a structural order outlining deadlines for textbook deliveries.

Other interesting cases, continues Judges Matter, were one in which he ordered a father to return a horse to his teenage daughter after he’d taken it away from her as a punishment, and another in which he instructed ‘warring factions of the International Pentecost Holiness Church to work together.’

Further, as reported by Daily Maverick, Kollapen was on the panel of High Court judges that unanimously ‘dismissed with costs ANC secretary-general Ace Magashule’s application to have his suspension declared illegal’.

And finally… a ConCourt judge

Prior to his ConCourt appointment at the end of last year, Kollapen was ‘unsuccessfully interviewed’ in 2017 and then again in 2019, despite serving two terms as an acting judge of the very same court.

Says Judges Matter on its website: “Kollapen appears a ‘big picture judge’ who is emboldened by the transformative vision of the Constitution and the potential for the law to create a more equitable society. In Helen Suzman Foundation v Judicial Service Commission (JSC), the applicants had sought to make public the private deliberations of the JSC in deciding which candidates to nominate to the president for appointment. The Helen Suzman Foundation argued that these could be disclosed under rule 53(1)(b) of the Uniform Rules of Court as part of the record of its proceedings. Kollapen, with fellow acting judge Dumisani Zondi concurring, wrote a separate dissenting judgment, saying: “Openness is also double-sided. It is imperative that what is constitutionally necessary is seen and heard. However, in order to ventilate what must be seen and heard and to preserve certain core constitutional values, there also has to be an environment in which open and uncensored debate flourishes.”

Kollapen is ‘mindful of the separation of powers doctrine’, as well, notes Judges Matter, citing Eskom’s urgent high court application in 2020 for permission to increase its tariffs, pending a review of the National Energy Regulator of South Africa (NERSA). “Kollapen found that separation of powers considerations militated ‘strongly against the Court responding to such an invitation to set a tariff’, and that the court was in any event ‘also not equipped to make the kind of determinations’ required of it. The balance of convenience thus did not favour the granting of the interdict and the application was dismissed.”

Being mindful of human dignity and court costs

When interviewed by the JSC last year, says Judges Matter, “Kollapen was clear about the transformative role the judiciary should play in South Africa and… mindful of the inaccessibility of the courts for the poor.”

“Judges should remain human and uphold human dignity. A judge needs to be mindful of the enormous amount of resources it takes to get to court,” Kollapen said.

Personal

Judge Kollapen and his wife Rani have three daughters, one of whom – attorney Kiyashni Kollapen – posted this on LinkedIn, following his ConCourt appointment: “

“Dad, I would like to congratulate you on your appointment to the Constitutional Court. Many years of dedication and passion devoted to human rights and public interest work have paid off and I don’t know anyone more deserving of this than you. I have never seen someone so passionate about what they do… I don’t think many people understand it first-hand like your family does, but I honestly don’t know how you do it, juggling being the most supportive and loving father, husband, grandfather, brother, uncle etc. whilst still giving your all to your work and also contributing tirelessly to the social reconstruction of our society. All that I know is that we are very blessed to have a father and role model like you… A hearty congratulations to Justice Mathopo on his appointment as well.”