Owen Rogers appointed to the constitutional court

President Cyril Ramaphosa on Wednesday appointed well respected Western Cape high court judge Owen Rogers to the constitutional court.

The appointment flows from a round of interviews with five candidates for two vacancies at the apex court, after which the Judicial Service Commission put forth only four names after faulting David Unterhalter for failing to recuse himself on a constitutional court matter.

This meant that the president could only fill one of the vacancies as all five candidates interviewed would have had to be recommended for him to select two.

The other candidates were Alan Dodson SC, supreme court of appeal judge Mahube Molemela and Gauteng high court judge Fayeeza Kathree-Setiloane.

Rogers was asked by Chief Justice Raymond Zondo to avail himself for consideration for the constitutional court, where he has acted since last year. He has since 2017, also acted at the Supreme Court of Appeal. 

His rulings include setting aside the sale of South Africa’s strategic fuel reserves, and the majority judgment in which the constitutional court held that the courts did not have the power to extend the constitutional time limit for elections to be held. Hence the Electoral Commission of South Africa could not postpone local government elections until early this year because of concerns that they would not be free and fair because of the Covid-19 pandemic. The elections were then held last November.

As one of three white male candidates, Rogers was asked during his interview by commissioner Mvuzo Notyesi whether he believed that achieving demographic representivity at the constitutional court was crucial.

Rogers replied 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.

It was the third time Unterhalter was overlooked.

It emerged during his interview that he had not recused 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.

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

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