/ 5 October 2021

JSC interviews for ConCourt, round two: better process, same outcome

Concourt Judges Blog Post 870x490
None of the four candidates for a vacancy at the apex court were in favour of merging it with the supreme court of appeal

Six months and a legal challenge later, the Judicial Service Commission (JSC) has nominated the same five candidates for appointment to the Constitutional Court as it did in April, after being compelled to repeat the interview process.

Judges Jody Kollapen, Rammaka Mathopo, Mahube Molemela, Fayeeza Kathree-Setiloane and Bashier Vally’s names will be forwarded to President Cyril Ramaphosa to select two to fill vacancies at the apex court.

For the second time, Alan Dodson SC, an expert in land law, and David Unterhalter SC, considered one of the country’s finest legal minds, were overlooked.

Both faced grilling on their privileged backgrounds and their ambition to be appointed to the apex court with little background on the bench. Dodson served as a judge of the land claims court for five years, while Unterhalter has been a high court judge since 2018.

He has acted at the supreme court of appeal (SCA) but much was made of the fact that he has never done so at the Constitutional Court. 

The rerun of the interviews was forced by a court application by the Council for the Advancement of the South African Constitution (Casac) after April’s questioning of candidates descended into politicking, with Economic Freedom Fighters leader Julius Malema using his seat on the commission to corner candidates on past rulings that were adverse, or simply irritating, to his party.

It did not help that outgoing Chief Justice Mogoeng Mogoeng not only tolerated Malema’s attack on KwaZulu-Natal high court Judge Dhayanithi Pillay, in part predicated upon her association with Pravin Gordhan, but launched into an anecdote that implied the minister, years ago, canvassed him to ensure her promotion.

Pillay did not get the nod in April, and did not avail herself for nomination this time. Gordhan has denied impropriety.

Casac sought an order declaring the process unlawful, arguing that what transpired in the earlier interviews undermined the independence of the judiciary as guaranteed in section 178 of the constitution. 

It also demanded, and secured, a record of the JSC’s deliberations in April. With appointments overdue, the JSC grudgingly settled and agreed to start from scratch.

This time around, Acting Chief Justice Raymond Zondo ensured questioning remained brisk and within bounds, though perhaps not consistent.

“It was a vast improvement in April, with Zondo presiding over the process,” Casac’s executive secretary Lawson Naidoo said.

“He made sure questions were kept short and to the point and each candidate was given appropriate time to respond. One can find cause to be critical but overall it signified that the JSC had taken concerns on board.”

Judges Matter researcher Mbekezeli Benjamin said the JSC deserved credit.

“The tone was dignified and respectful, and the JSC commissioners seemed to focus on the most important issues relating to each candidate’s suitability… It’s a marked improvement from the disastrous April session,” he said.

Benjamin said it was no surprise that the outcome was the same, and noted that deliberations went late into the evening on Monday, suggesting that “the fairness and the rigour of the re-run interviews probably brought up fresh considerations”.

However, Naidoo said a drawback of the settlement with the commission was that the court has not pronounced on Casac’s further demand for a clearly enunciated set of criteria on the selection process.

“Some of what was asked yesterday showed that commissioners are making it up as they go along. And some criteria appear to apply to some candidates and not to others,” he said.

Naidoo noted that Dodson was repeatedly asked why he believed he was fit to serve at the Constitutional Court when he had never been a judge. He pointed out that Justice Mbuyiseli Madlanga, considered by many in the legal fraternity a favourite to succeed Mogoeng as chief justice, went straight from the bar to the Constitutional Court.

Similarly, much was made of the fact that Unterhalter had never acted on the Constitutional Court. 

Zondo eventually pointed out that there was a precedent for this too, in that former Constitutional Court Justice Johann van der Westhuizen never acted there before his appointment. In fact, the same holds for Justice Sisi Khampepe and former justices Sandile Ncgobo, Zak Yacoob, Bess Nkabinde and Johan Froneman.

Naidoo said it was incomprehensible that the fact would serve as an obstacle to Unterhalter, but not to Vally, who has not acted at the apex court either, but was nominated.

Vally was not questioned about this, but Zondo queried the high number of reported judgments he claimed, prompting the candidate to say he could not remember whether these were reported or “reportable”.

Unterhalter has penned judgments that have been followed by the SCA and the Constitutional Court.