A list of five judges will be sent to President Cyril Ramaphosa for the Constitutional Court. (Photo by Alaister Russell/Sowetan/Gallo Images/Getty Images)
The Judicial Services Commission (JSC) on Wednesday decided to recommend judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela and Bashier Vally for appointment to the Constitutional Court.
The list will be sent to President Cyril Ramaphosa, who now has to select two of the five candidates to fill two vacancies at the apex court.
The inclusion of Mathopo, a supreme court of appeal judge who has been acting at the Constitutional Court for some 18 months, was widely expected.
Mathopo penned the landmark 2019 Tshabalala judgment that rid South African law of the rule that the doctrine of common purpose did not apply to rape, and which allows the courts to apportion liability to all who conspired to commit the crime.
It was seen as a leap forward in the fight against gender-based violence.
He also has a long history of mentoring young jurists and in his interview on Tuesday spoke movingly on the qualities women bring to the bench and the often frustrating process of transforming the legal profession.
Both Kathree-Setiloane and Kollapen have sought appointment to the Constitutional Court before. In 2019, Kathree-Setiloane, from the Gauteng division, was considered a favourite for nomination but fell out after she was grilled over a dispute with her law clerk, who was the daughter of supreme court of appeal president Mandisa Maya, while acting at the apex court.
Kollapen, a former head of the Human Rights Commission, in that year made it onto the list sent to the president but was not appointed.
Molamela has been at the SCA for three years and was questioned on Tuesday as to why, throughout her career, she has sought rapid promotion rather than remaining in any division for a length of time. She was judge president of the Free State division of the high court for three years before her appointment to the appeal court.
Vally, also from the Gauteng division, has a deep background in labour law but is the judge who in 2017 ordered then president Jacob Zuma to provide the record and reasoning for his decision to fire Pravin Gordhan as finance minister.
In the judgment, Vally held that while the president’s power to appoint ministers was wide-ranging it was not as unfettered as the royal prerogative of times past.
He was questioned about a perception at the bar that he unnecessarily postpones matters but countered that lawyers did not all come to court prepared.
Judge Dhayanithie Pillay did not make the list after a fractious interview in which she was badgered by Economic Freedom Fighters leader Julius Malema about her friendship with Pravin Gordhan, the current minister of public enterprises.
Pillay ably dealt with Malema’s charge that she used the bench to fight factional, political battles.
But Chief Justice Mogoeng Mogoeng returned to the point with an anecdote of how he was asked by Gordhan, years ago, how Pillay had fared in an interview at the JSC.
Mogoeng said he was stunned that a minister would ask him about the career path of a judge. Pillay replied that it could have been no more than a conversational remark on Gordhan’s part as they had both always respected the boundaries their respective professions required.
David Unterhalter and Alan Dobson, both senior counsel, also interviewed for appointment to the bench of the highest court but did not make the list.
Unterhalter is considered one of the country’s finest legal minds. He faced repeated questions about whether, given his privileged education and circumstances, he should stand aside to allow someone from a previously disadvantaged background a chance at nomination to the apex court.