Justice Mahube Mamillae. Photo by OJ Koloti/Gallo Images
Justice Mahube Molemela will come one step closer to becoming president of the supreme court of appeal on Monday when she sits for an interview with the Judicial Service Commission.
The week of interviews with candidates for various vacancies on the bench will also be notable for what is not happening. Nobody will be considered for a vacancy at the constitutional court, which arose more than a year ago when justice Sisi Khampepe retired, because a minimum of four worthy nominees could not be found.
It is a case of deja vu. The same happened in October last year, when out of four nominees, the JSC found that one was not suitable for shortlisting.
In terms of section 174(4)(a) of the Constitution, the JSC must submit a list of nominees with three names more than the number of appointments to be made to the president.
Six months earlier, the commission recommended the appointment of Western Cape high court judge Owen Rogers for one of two vacancies at the constitutional court.
The second could not be filled because only five people were interviewed and, in order for the numbers to align with the law, all five needed to make the list sent to President Cyril Ramaphosa.
Advocate David Unterhalter SC was excluded after he conceded, under questioning from commissioners Mvuzo Notyesi and Julius Malema, that he had failed to recuse himself when the constitutional court weighed an application for leave to appeal in a matter involving Eskom.
Recusal was indicated because he denied the same applicants leave to apply to the supreme court of appeal during an earlier acting term there.
It was his third attempt at a seat on the apex court. Two earlier interviews were fraught with questions about representing Ramaphosa at the Marikana commission of inquiry, his record on mentoring black lawyers and his privileged background — he holds degrees from Oxford and Cambridge.
He did not avail himself for the October round or the current one. Neither did Alan Dodson SC. He holds an LLM from Cambridge and has a record of progressive lawyering on land rights.
Dodson was asked by Malema what, as a white male, he would bring to the constitutional court.
Malema suggested that it was presumptuous of Unterhalter to aspire to the apex court and that he might bring it into disrepute.
In October last year, Gauteng high court judge Elias Matojane made a plea to the commission after he was needled by Malema in an interview for a position at the appellate court, notably over his ruling that former president Jacob Zuma return to prison to serve his sentence for contempt of court as his release on medical parole was unlawful.
“I may be in court tomorrow and, if I am to avail myself for this process and get humiliated, what are we saying to the parties who are appearing before us?” Matojane asked.
“That has a decisive impact on the rule of law because you want litigants who appear before you to have confidence that their matters will be ably and properly adjudicated upon. But if, on this platform, it is insinuated that I don’t know what I am doing, why should a losing litigant accept he or she was unsuccessful in that matter?”
A review of 12 years of the work of the JSC published by Freedom Under Law last year found that not a year in that period passed without a controversy, be it over the errant behaviour of commissioners, hostile treatment of candidates, the appointment of judges deemed unsuitable or the exclusion of others deemed suitable. The latter has more than once led to litigation.
In the period, 26 candidates withdrew after they were shortlisted.
“There are multiple reasons why people choose to withdraw from the process but it has been made clear, on and off the record, that the interview process is a major part of the reservations of some candidates,” said Calli Solik, one of the authors of the report.
“The bigger issue is the number of people who refuse to make themselves available at all and that leaves us with the situation which we have at present where we don’t have the minimum number of people to interview for the constitutional court, which I think is a travesty.”
Judicial governance analyst Chris Oxtoby recalled that in 2012 and 2016 there were not enough candidates to fill vacancies at the court. This also happened in the early days of the court in the 1990s.
“I remember very cautiously positing some years ago that perhaps some judges were not so keen to serve under the previous chief justice,” he said in reference to Mogoeng Mogoeng.
“Now that the issue is starting to recur under a new chief justice, I don’t know that that can be an explanation.
“It is very hard to escape the conclusion that the way that the JSC has been conducting interviews, especially for the constitutional court over the last years, doesn’t have something to do with it and is in fact a very large and worrying sign of lack of confidence by members of the judiciary in the appointment process,” said Oxtoby.
In April 2021, there was outrage when Malema harangued judge Dhayanithie Pillay over her friendship with Public Enterprises Minister Pravin Gordhan, before Mogoeng accused the minister of trying to intercede on her behalf years earlier when she was an aspirant for the appellate court.
After the Council for the Advancement of the South African Constitution asked the high court to set aside the nominations that flowed from that round of interviews, the JSC agreed to repeat these in October 2021. But Pillay had by then withdrawn her candidacy.
Oxtoby described interviews in April last year as infamous for a commissioners’ “concerted effort” to ensure Unterhalter was not appointed.
“He did not interview brilliantly. On the other hand, to have someone of that undoubted calibre sidelined while we have a vacancy standing open for going on two years, just seems somewhat absurd. I also think we have seen people appointed to that court with more fundamental question marks hanging over them.”
Unterhalter did not have the full sympathy of the legal fraternity after admitting an unforced error. But a recent highlight from the court was the incisive, instructive sparring between him and Justice Mbuyiseli Madlanga in Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others.
The applicants sought an interim order for the restoration of full electricity supply after a sudden, drastic reduction by Eskom devastated their community. The question before the court was whether they had a claim to electricity supply as a fundamental right.
Madlanga, in the majority judgment, said “yes”. The residents could not be denied a remedy for the infringement of rights on the basis that Eskom had no duty to supply them power when its decision had caused the misery they suffered.
“The lack of contractual privity does not stand in the way of the residents asserting other rights protected by the Bill of Rights, which have been infringed by the decision to reduce electricity supply substantially … What informs the need for their vindication is the fact of their violation.”
Unterhalter disagreed, saying since Eskom bore the residents no duty to supply power — its contract was with the municipality — there was no prima facie right to interim relief.
“The approach adopted in the second judgment allows a court to read into the facts the rights and their contents that it considers worthy of vindication. That is an invocation of divination at the instance of the court,” he wrote in a dissenting judgment.
“It is not the role of the courts to do so, nor is it our law.”
The issue is a live one. In a class action suit filed against Eskom and the government for infringing fundamental rights by implementing load-shedding, counsel for the applicants, advocate Tembeka Ngcukaitobi, relies heavily on Madlanga’s ruling.
Ngcukaitobi is a recent addition to the JSC as one of two commissioners appointed by Ramaphosa, and has brought a line of tough, but fair and relevant, questioning to interviews.
But neither a rotation of commissioners, nor the more disciplined chairing of Chief Justice Raymond Zondo, has prevented interviews from descending into political ambush.
Professor Pierre de Vos from the University of Cape Town said the politicisation of judicial appointments may be rooted in a wider politicising of the legal profession.
“All of the things that happen at the JSC happen in the context of the rise of popular politics within the legal profession.
“In a way, that is reflected in what happens at the JSC and I think it makes it much more difficult for people who think that they are a bit above this petty politics to put their names forward, especially for the constitutional court, because you are going to get a flak.”
It is not yet clear whether draft criteria for judicial appointment published by the JSC in October will apply from Monday when, over five days, it will interview candidates for the high courts in Eastern Cape, Gauteng, Limpopo, Northern Cape, North West and Mpumulanaga, where Judge President Francis Legodi is retiring.
The 10-page document expands significantly on criteria adopted in 2010 which were concerned with three main questions — whether a candidate was appropriately qualified, and a fit and proper person, and how their appointment would reflect the racial and gender composition of the country.