JSC says Unterhalter was excluded by majority vote

David Unterhalter SC was excluded from nomination for appointment to the constitutional court by majority vote, the Judicial Service Commission (JSC) said on Wednesday but declined to say why it deemed him unfit for the bench.

The JSC would only give its reasons to President Cyril Ramaphosa in a report being drafted by Chief Justice Raymond Zondo, said JSC spokesperson Doris Tshepe.

“We are not at this point going to be engaging on the reasons. We have to write to the president … we have to do that first before we make that into a public conversation.”

Advocate Sesi Baloyi, a new commissioner nominated by Ramaphosa and named co-spokesperson of the JSC, stressed that the report to the president would explain how the commission came to the decision not to recommend Unterhalter, who is serving a second term as an acting justice of the constitutional court.

She said the reasons would “become public” once conveyed to the president but she later added that it was up to him to decide whether to disclose what those were.

Tshepe said commissioners voted on all five candidates who were interviewed this week to fill two vacancies at the highest court.

Because of the constitutional requirement that the JSC present the president with three names more than the number of vacancies at the constitutional court, Unterhalter’s exclusion means that Ramaphosa will now only be able to fill one vacancy.

Another round of interviews will have to be held to fill the second vacancy, creating another delay in restoring a full complement of permanent judges at the highest court.

READ MORE: Unterhalter overlooked by the JSC for a third time

Unterhalter’s candidacy faltered after he was forced to concede on Tuesday that he was part of the constitutional court quorum that dismissed an application for leave to appeal, after he had been one of two judges who denied the same applicants leave to appeal to the supreme court of appeal.

He apologised and put it down to plain human error that he had not recognised the matter of Ken Lindeque v Eskom Holdings SOC Ltd v Mogale City Local Municipality as one that had crossed his desk earlier while he was acting at the appellate court and recused himself. 

“I did not recognise that I had sat previously and that I should have recused myself.”

He added that there was a risk this could happen when one served at more than one court but vowed to take great care to avoid a repeat of the mistake.

The matter was raised by commissioner Mvuzo Notyesi, who had found copies of both rulings, but Economic Freedom Fighters leader Julius Malema was also aware of it. 

Malema was openly hostile to the Oxbridge graduate’s candidacy when he was twice interviewed by the commission last year, and on Tuesday argued that the lapse was so serious that the integrity of the constitutional court would be compromised if he were appointed.

But commissioners had also challenged Unterhalter on his claim that he had enlisted a high number of black women as junior counsel, pointing out that a list he supplied yielded only seven names and suggesting that his efforts in this regard were recent and aimed at enhancing his chances of appointment to the bench.

”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,” commissioner Khumeshni Pillay, who represents Advocates for Transformation, said.

The Council for the Advancement of the South African Constitution last year asked for the record of the JSC’s deliberations after Unterhalter and Alan Dodson SC did not get the nod after being interviewed for positions at the constitutional court in October, in a rerun of a contested interview process in April last year marred by unseemly politicking on the part of Malema in particular. The request was ignored by the JSC.

READ MORE: Casac demands record of deliberations on ConCourt candidates

Freedom Under Law protested at the time that the inclusion on the list of judge Bashier Vally instead of either “made it appear that the JSC would have preferred any candidate, bar another white male, over Dodson and Unterhalter”.

This time Dodson did make the list, along with Western Cape high court judge Owen Rogers, supreme court of appeal judge Mahube Molemela, and Gauteng high court judge Fayeeza Kathree–Setiloane.

Observers said Unterhalter’s exclusion this time around again raised the spectre of review, though it was debatable how defensible his own goal was.

There is legal precedent in Judicial Service Commission and Another v Cape Bar Council and Another.

The case saw the bar council challenge the failure of the JSC in 2011 to put forth names to fill two vacancies at the Western Cape high court, after interviewing six candidates, one of whom was the highly-regarded Rogers. 

It was found by the court a quo to have been irrational and therefore unconstitutional, and the decision was upheld by the appellate court.  

The SCA ruling made plain that since the JSC derived its power to advise the president on judicial appointments from the constitution, it was undoubtedly a public power and therefore open to review.

The council had pressed the JSC for reasons it found none of the candidates suitable and received the reply that none had received a majority vote. In its court papers, the JSC argued that it was under no duty to give reasons for not recommending a candidate. 

The court disagreed, holding that it had an obligation to do so if called upon and that citing the outcome of a vote was not sufficient.

This week’s interviews are the first chaired by Zondo since his appointment by Ramaphosa, who diverged from the JSC’s recommendation that he name SCA president Mandisa Maya to the post. 

The president ventured that the commission had exceeded its mandate by putting forth a single name instead of advising him on the relative strengths of all four shortlisted candidates. 

READ MORE: JSC recommends Mandisa Maya for chief justice

The interviews with the candidates was were widely condemned as improper after commissioners, Malema among them, confronted Gauteng judge president Dunstan Mlambo with allegations of sexual harassment, without warning or substantiation. 

On Tuesday, Baloyi said there was a brief discussion on the process when the commission met on Monday and a commitment to reflect on every interview process, including the one this week, after it was concluded.

The JSC has been under pressure to clarify its criteria for judicial appointment, but on Monday instead simply recommitted to those set out in 2010.

But Tshepe said that, “given the passage of time since 2010 we will look at that to see if we need to be supplementing, expanding or amending any of the criteria”.

Tuesday’s interviews with the five candidates for the constitutional court initially proceeded with something approaching delicacy, until Unterhalter’s turn came. 

Thereafter, Malema’s tone dispelled hope that 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.

The innocent victim of the week’s drama may well be Dodson, an internationally respected expert on land restitution with a career-long record of pro bono work. It was his third interview and there was sense last year that he deserved to make the list but did not because of a narrow focus on demographics.

With the president able to make only one appointment and there being five male and three female justices at the court currently, the odds may favour Molemela or Kathree-Setiloane as naming another woman will serve the cause of gender parity.

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