The present incarnation of the Judicial Service Commission (JSC) moves the goalposts so often that candidates for appointment to the bench sometimes appear to find themselves with a football on a golf fairway.
During the rerun of interviews last week for positions at the Constitutional Court, senior counsel Dali Mpofu questioned the candidature of two white men – advocate Alan Dodson SC and Gauteng high court judge David Unterhalter – and suggested their appointment would hinder transformation. This was despite the court, for the first time in its history, not having any white men on its bench. Consequently, the constitutional requirement that the court “broadly” reflects the demographics of South Africa did not exclude either of them.
On paper, the candidates’ careers as public interest lawyers (and experience in other fields of law that could bolster capacity at the Constitutional Court); their jurisprudence in the high court, land claims court and Supreme Court of Appeal; and adjudicative work at international bodies like the World Trade Organization and United Nations suggested they were “fit and proper”.
Their legal backgrounds and judicial philosophies have kept time with a progressive Constitution.
When it was raised with Dodson that he was not a judge, he pointed out the Constitution only prescribes that at least four of the apex court’s members be sitting judges when they are appointed. He implored the commission not to “shut” the door that the country’s founding document had left “open” for people like him.
Constitutional Court justices who were not judges when appointed include founding members Yvonne Mokgoro, Kate O’Regan, Albie Sachs and its first judge president (now chief justice), Arthur Chaskalson. Admittedly, there was a dearth of progressive-minded sitting judges in 1996 when the court was certified.
Neither Dodson nor Unterhalter had acted at the Constitutional Court, which appeared to count against them during their interviews. This, however, did not stop the commission from nominating Gauteng high court judge Bashier Vally, who has not acted at either of the appellate courts and whose interview was, arguably, the worst of the seven candidates.
The Constitution seeks to make concessions for legal academics and non-judges to be appointed to the court, which has the final say on interpreting the country’s supreme document. Its drafters realised the need for diversity in that exegesis – in professional legal background, but also with regard to class, race, gender and experience.
This fits the broader national project that South Africa embarked on in 1994: one of inclusivity in diversity. It was a rainbow nationalist project that, as the scholar Mahmood Mamdani observes in Neither Settler Nor Native, sought to bring apartheid’s violent perpetrators and its victims into the same political community by reconfiguring both as survivors.
South Africans “attempted to decolonise”, Mamdani observes, “by thinking anew their political relation to each other: not as others or rivals but as equals in law”.
The project suggests an inclusive generosity of spirit – not without myriad problems and evident contemporary failings – also inherent in the Constitution. Mamdani, in recognising the “incomplete success” of that decolonisation project, nevertheless considers it “remarkable” at the time for its vision of a new society, especially in terms of the bloodshed it averted.
It is a demand for diversity the Constitution also makes in the configuration of the JSC itself, with commissioners drawn from lawyers, judges, politicians and academics.
The commission’s approach to both Unterhalter and Dodson appeared contrary to this broad project.
Perhaps this is the JSC, as a microcosm of South African society, representing our fractious, racialised present. But these contradictions and inconsistencies also exist because of the absence of a set of clearly defined criteria for judicial appointments to guide interviews and ensure their relevance and rigour. Criteria are essential for the commission to reach decisions that are good for the courts, deepen the public’s trust in the judiciary and ensure the fulfilment of our constitutional vision for an equal society.
For years there have been calls for general criteria that are reinforced with context-specific ones sensitive to the needs of a particular division. The JSC would then be required to approach these criteria with a deep knowledge of candidates’ legal careers and their jurisprudence in all spheres of law, including socioeconomic rights, administrative law, commercial law and so on.
Currently, the only criteria made public are situated in the Constitution, dealing with candidates being “fit and proper” and considerate of race and gender transformation. Sometimes, transformation has been approached in the mechanical sense of a numbers game.
Abuse of process
The point about criteria is one that the Council for the Advancement of the South African Constitution (Casac) made when it sought to stop the process for two appointments to the Constitutional Court after the JSC’s sitting in April. Casac argued the commission had consumed itself with “irrelevant and nonsensical” questions, after which it furnished the Presidency with a shortlist of five names. It said some commissioners, like EFF leader Julius Malema, appeared to “at worst, [have] used the interviews for naked political score settling”.
Casac’s litigation led to a court order that the April interviews be rerun. This followed a settlement between the JSC and Casac that was reached because both were mindful of the increasing number of vacancies at the court and the need to avert its potential paralysis. If President Cyril Ramaphosa does not appoint two candidates by the end of October, there will be five vacancies, including that of chief justice, on a bench of 11 – a precarious and untenable position.
With the exception of KwaZulu-Natal judge Dhaya Pillay, who withdrew her candidature after bearing the brunt of various unseemly attacks by Malema and Chief Justice Mogoeng Mogoeng, the other five candidates availed themselves for return interviews.
On 4 October, after 90 minutes of deliberations, the commission announced exactly the same shortlist as in April for nomination to Ramaphosa, with Dodson and Unterhalter both absent. Vally and fellow Gauteng high court judges Fayeeza Kathree-Setiloane and Jody Kollapen joined Supreme Court judges Rammaka Mathopo and Mahube Molemela on the list.
The Constitution requires that, for appointments to the apex court, the JSC recommends three more candidates than the number of vacancies. The JSC interpreted this to mean five names. It could have nominated more, but it didn’t.
The inclusion of Vally raised questions about the JSC’s rationale in nominating him. He appeared poorly prepared and defensive. In the section where candidates fill in the 10 most important judgments they have delivered, Vally had only four. The advocates’ profession had complained about his ill-temper in court, that he unnecessarily postponed matters in order not to grapple with their substance, and delayed delivering judgments. When commissioner Mvuzo Notyesi raised this with him, Vally said he could respond only if presented with specific incidents. Dodson and Unterhalter did not draw such criticisms.
Criticism of the court
During all the interviews, commissioners raised concerns about the functioning of the Constitutional Court, especially the ever-lengthening delays in issuing judgments. Malema was almost frothing at the mouth at the time it took to hand down judgment in an urgent application regarding Jacob Zuma and his attempts to stay out of jail for contempt of court. Malema argued that the court had been lethargic despite the country “burning” during the violent July insurrection.
Academics, lawyers and judges have been critical of some judgments emanating from the Constitutional Court, especially related to commercial law cases. Rather than acknowledging these and seeking to rectify them by creating specific criteria during past rounds of interviews for the court, Mogoeng used the process to rail against criticisms and, apparently, did little else.
Obviously concerned about the Constitutional Court’s reserved judgments, the JSC would have been looking for candidates with a demonstrable appetite for hard work and fastidiousness, an air of collegiality, the ability to hit the ground running upon appointment, a requisite background in the spheres of law with which the court appeared to be struggling, and who demonstrated an ability to deal expeditiously with these matters while also being able to support their colleagues.
In this regard, Dodson, who interviewed very well, and Unterhalter, who also performed well and has been a litigating fixture at the court for its 27 years of existence, appeared better candidates for nomination than Vally. Certainly, all the other candidates nominated would easily fit many, if not all, these criteria.
Perhaps the commissioners believed Vally when he claimed to be better than his application suggested and blamed his personal assistant for its sloppy submission. Perhaps they did not believe Unterhalter when he claimed an error of judgment in accepting nomination to the arch-Zionist South African Jewish Board of Deputies during lockdown.
Setting the bar
What was clear from the transcript of the April deliberations is that, in the case of Unterhalter, the JSC was concerned about sending a “message” to Black judges that white lawyers could spend large parts of their career at the bar and then feel entitled, once appointed to the bench, to apply for a position at the Constitutional Court within three years.
During those deliberations, Gauteng Judge President Dunstan Mlambo asked whether the commission was establishing as “firm principle” that academics would not be appointed to the apex court unless they had acted at high court level, what minimum number of years on the bench would qualify a judge for appointment to the court, and whether only sitting judges could be appointed?
According to the transcript, the JSC appeared to align itself with a view expressed by Malema that no firm principles were being established, but that the approach to ignore the candidacy of Unterhalter and Dodson was a matter of “motivation”.
Said Malema: “It is within any [JSC] member’s right to say: ‘You know what? Three years, for me it does not work for me. If you have been there for five years or 12 years or whatever, you get a tick from me.’ But if a motivation that says three years is not enough and I agree with it, it does not mean it is a principle. Tomorrow I might be persuaded differently on a person who has actually never sat on the bench, not even three years. There could be a strong motivation.”
This approach allows for inconsistency in appointment by the JSC rather than a clarity of its purpose. It also opens the door for nefarious political considerations to permeate appointments, including the potential for the dumbing down and debasing of the judiciary by people on the commission who have made unsubstantiated attacks on the integrity of judges either personally or through their organisations.
The JSC has, in the past, demonstrated a spiteful reticence to appoint white men with impeccable struggle and legal credentials to the bench. Finding esteemed silk Geoff Budlender not suitable for appointment is certainly an example that stands out.
As one former JSC member said after a rancorous 2013 interview of Eastern Cape high court judge Clive Plasket, who did not gain nomination for appointment to the Supreme Court: “It’s not that the commission doesn’t appoint white males, but that it appoints compliant, weak white judges rather than strong independent-minded ones.”
There is a flip side to the argument of “messaging” that Unterhalter’s nomination would send. He has a record of mentoring some of the country’s top Black advocates, including Vincent Maleka SC, Tembeka Ngcukaitobi SC and Lwandile Sisilana, all of whom nominated him for these interviews.
Regardless of their race, these are some of the country’s best lawyers, and the next generation of judges. None can be considered a stooge and all have recognised the value Unterhalter would add to the Constitutional Court with all its current problems. So whose feelings are the JSC purporting to protect?
A few years ago, the great human rights lawyer George Bizos, who sat on the JSC as a presidential appointment of both Nelson Mandela and Thabo Mbeki, said it was essential for commissioners to vote with their conscience, not for their constituencies.
Can these commissioners claim to have done so with the list they sent to the president?