David Unterhalter. (WIPO/ Pierre Albouy)
David Unterhalter’s third interview with the Judicial Service Commission (JSC) for consideration for a seat on the constitutional court was perhaps never going to be a walk in the park, given how his earlier outings went.
On Tuesday, he was again left off the list of candidates who will be recommended to President Cyril Ramaphosa for appointment after commissioners Mvuzo Notyesi and Julius Malema faulted him for failing to recuse himself on a constitutional court matter.
The late night decision, after lengthy deliberations, means the president will only be able to fill one of the two vacancies on the apex court. To fill both, all five candidates interviewed would have had to be recommended.
Ramaphosa will decide between Alan Dodson SC, supreme court of appeal judge Mahube Molemela, Western Cape high court judge Owen Rogers and Gauteng high court judge Fayeeza Kathree–Setiloane.
Their interviews were, in the main, conducted with a newfound delicacy that suggested Chief Justice Raymond Zondo had swiftly rid the JSC of a tendency of concerted attack — using any available but not necessarily solid angle — on candidates deemed politically unpalatable.
This time the trouble started with a question from Notyesi and continued with the Economic Freedom Fighters leader patronising one of the country’s most learned counsel to suggest he was prone to minor errors because he lacked sound judgment and the experience to sit on the country’s highest court.
Notyesi asked Unterhalter whether he had failed to recuse himself, after being part of the panel at the supreme court of appeal that refused leave to appeal when the court was petitioned in a matter involving Eskom, when the same case later came before the constitutional court.
The apex court dismissed an application for leave to appeal the supreme court’s decision.
Notyesi had put the question, as a hypothesis, to all four candidates interviewed earlier and all had answered that in such an instance recusal was indicated.
Unterhalter said he believed he would not have been competent to be part of the constitutional court quorum where leave to appeal was denied but that he needed to verify that he had been involved in both instances.
He added that had he erred, he would duly apologise, which would eventually transpire before the night was over.
Notyesi seemed anxious that Unterhalter be given the earliest opportunity to verify whether he was party to both decisions to leave to appeal. Zondo suggested he be given until Wednesday to do so.
But Malema objected, arguing that the answer was critical for the commission’s deliberations on Tuesday evening, because it would help to determine the merit of Unterhalter’s candidacy.
He said he was concerned that Unterhalter, who had extensive experience in an acting capacity at the SCA and was about to commence his second acting term at the apex court, lacked the experience to avoid “minor mistakes” that would undermine respect for the country’s highest court.
It would lead the public to lose respect for the court and the rule of law and anarchy would ensue, Malema added archly.
Unterhalter said he disagreed with Malema’s proposition because human error was part of everyone’s experience. Malema was not satisfied and suggested that in any event, it would be premature for Unterhalter to rise to the constitutional court.
“What message will you be sending to society? You just come for four years and jump to the highest court?”
Unterhalter, who spent 27 years at the bar and counts among the country’s most esteemed council, replied that if that was the commission’s decision, he would respect it. He said his age meant that if he waited much longer it would be too late for him to be named to the constitutional court.
The impasse on Ken Lindeque v Eskom Holdings SOC Ltd v Mogale City Local Municipality was resolved after the commission found copies of the two rulings referenced and afforded Unterhalter half an hour to consult the email trail of the constitutional court to check whether he had assented to the dismissal of leave to appeal.
He apologised and said he would take great care to avoid a repeat of the mistake, but added that when one served on several benches there was a risk you would encounter the same matter at more than one without recollection.
“I did not recognise that I had sat previously and that I should have recused myself.”
By way of explanation, he said the principle involved in the matter was the simple one of whether an interim application was susceptible to appeal. The SCA decision was an attachment at the bottom of the memo Justice Mbuyiseli Madlanga had prepared for his colleagues at the constitutional court and he had overlooked this, he said, but so did all the judges and clerks at the court.
Zondo said he would propose that applicants to the constitutional court prominently listed the judges who had previously dealt with their cases. But Malema accused him of trying to dispose of a matter while the commission was still debating it.
“More than the judge that appears before us, the whole Concourt sat on this matter, the staff that sat on this matter could not pick this up. So I have a very big problem with that question, chief justice. It does not help to improve and enhance the image of the judiciary … The point is the morality of it.”
Unterhalter said he did not think morality had anything to do with the mistake.
Next Khameshni Pillay SC, who represents Advocates for Transformation on the commission through an arrangement with the General Council of the Bar, said she took issue with the fact that Unterhalter could only furnish the commission with a list of seven black female lawyers whom he had enlisted as juniors.
It was troubling, she said, that the women he had chosen to hire were young.
“With that kind of power that you wield you put up seven black women. The bulk of the women were very junior at the time you left the bar,” Pillay said.
“It is a cause for concern that there are no senior black women that you worked with.”
Unterhalter said if the facts were correct the criticism was unfair.
“I can take the point that you made that the black women on the list are all very junior. I am not sure it is a problem though,” he said, adding that he thought it was perhaps more important and empowering to bring junior women to cases of importance.
But the subtext was that if those he worked with were still young it suggested it was only recently that Unterhalter began taking black women as juniors.
Earlier Western Cape high court judge Owen Rogers — the third white male in among the candidates —- led himself into needless difficulty on demographics.
It was hardly a trick question when Notyesi asked whether he believed the constitutional court should aim for geographic representativity.
Rogers could have got away with the quip that if it were so, he might submit that it was time to appoint someone from the Western Cape to the apex court.
But he paused to volunteer that he believed there was at this stage — with five
male judges and three female judges on the bench — no overwhelming obligation on the JSC to prioritise gender parity. The most important consideration should perhaps rather be judicial excellence.
Zondo, who had asked Rogers to avail himself, asked several questions of clarity in a clear attempt to allow him to weigh his words more carefully..
Eventually the justice minister, Ronald Lamola, said he was “still confused” as to why Rogers thought the current round of interviews did not represent an opportunity to ensure greater representivity still at the apex court.
Rogers replied that since the constitutional court was small, he believed that unless two candidates were equally competent in every way, a choice should not hinge on gender but rather on “who could make the biggest contribution to the work the court does”.
“When you only have 11 positions to work with you should not be so tied to representivity,” he said.
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