David Unterhalter SC during the Judicial Service Commission interviews. (Oupa Nkosi)
Freedom Under Law (FUL) has accused the Judicial Service Commission (JSC) of undermining the rule of law by flouting a high court order to conduct interviews to fill two vacancies on the supreme court of appeal (SCA) during April or May this year.
The order was made by the Pretoria high court by consent of the parties on 14 February. It was agreed as a settlement of part A of an application the FUL filed to challenge the JSC’s failure to fill the vacancies in October last year as irrational.
Among the candidates overlooked in that appointment round was David Unterhalter SC, who has become a perennial also-ran for positions at the country’s highest courts.
On Tuesday, six days after the court order was made, the JSC sent a letter to the FUL’s lawyers advising that the interview will only be conducted in June.
“Despite our best efforts, the interviews can unfortunately not realistically be held in April or May 2024, the dates agreed with your client. This is because of the time needed to administer the whole process including advertisement, screening, public participation and interview processes as well as proper procurement related thereto.”
This letter, law firm Nortons noted in a reply sent to the Office of the Chief Justice on Thursday, was received at roughly the same time the JSC published invitations in the media indicating that the interviews would be scheduled for June.
On the same day, President Cyril Ramaphosa announced 29 May as the date for national elections. This, the attorneys said, raised doubt that the JSC could conduct interviews in June because the election implies the replacement of MPs who serve on the commission, and for this parliament to be reconstituted.
It expressed dismay that the JSC, which is chaired by Chief Justice Raymond Zondo, could depart from a court order, more so still without consulting the other party to litigation.
“If the chief justice and the JSC do not comply with court orders, on what basis could ordinary members of society be required to comply with court orders?” it said.
“It is deeply concerning that where one of the functions of the JSC is to discipline judges and ensure compliance with the rule of law and ethical standards, that the very same body is choosing to renege on an agreement reached with our client and deliberately act in contravention of a court order.”
The letter noted that one of the reasons the FUL agreed to the order was it included an undertaking that the interviews to fill the vacancies at the appellate court would ensue rapidly.
The agreement also included an undertaking by the JSC to invite all candidates who received 12 or more out of 23 votes in the commission’s first round of voting in October, to apply for the remaining vacancies in the new round.
The FUL gave the JSC until noon on Friday to indicate whether it will revise its position and comply with the order, or risk further litigation in response to its failure to do so.
“Alternatively, please confirm whether the JSC will be approaching the high court on an urgent basis to vary the order or whether it simply intends defying the order,” it wrote.
The JSC did not immediately respond to a request for comment on Friday. The Office of the Chief Justice referred a separate request for comment to the commission.
The JSC interviewed 10 candidates for four vacancies at the SCA, but appointed only justices Fayeeza Kathree-Setiloane and Maleshane Kgoele.
The FUL, an NGO dedicated to the protection of the rule of law and the Constitution, is but one group in the legal field that deplored the decision. Judges Matter, a civil society watchdog of the judiciary, termed it inexplicable.
The Council for the Advancement of the South African Constitution asked the JSC to submit written reasons for not recommending sufficient candidates to fill all four posts — a decision the FUL said implied that it had “chosen to prefer a vacancy over any of the remaining candidates”.
The JSC replied that it held two rounds of voting. In the first, one candidate obtained 19 votes and the other four 12 votes each. A second round was necessary to resolve this tie, and one candidate drew 20 votes, one 12 and the other three fewer votes. Hence, it said, it could only recommend that two candidates be appointed because the rest failed to obtain the support of half of the 23 commissioners.
Those who did not get enough votes in the second round were Unterhalter, Eastern Cape high court Judge John Smith and Gauteng high court Judge Tina Siwendu.
The FUL went to court to argue, in part A of its challenge, that the process was irrational and the outcome unconstitutional. It said candidates who had been recognised as fit and proper were summarily excluded in the second round, and commissioners seemingly failed to consider whether it was prudent to leave a seat on the SCA empty.
Section 174(6) of the Constitution imposes a duty on the JSC to recommend candidates for judicial appointment and section 165(4) a duty to ensure the courts could function effectively.
“The effectiveness and accessibility of courts requires the appointment of sufficient permanent judges to handle the courts’ workload. These duties are fulfilled when the JSC takes appropriate action to appoint capable, competent, experienced, and suitable persons, with demonstrated judicial merit, as judges.”
It further argues that the JSC failed to give all candidates a fair hearing.
This relates specifically to Unterhalter.
In April 2022, his hopes of a seat on the constitutional court in April 2022 were extinguished when he conceded, under questioning from commissioners Mvuzo Notyesi and Julius Malema, that he had failed to recuse himself while at the apex court when it 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.
In October, there was clear discomfort in the room when the matter was raised again and Unterhalter seemed more reluctant this time to concede that he had made a mistake.
Malema made clear that he did not approve of Unterhalter’s responses. Redacted transcripts of in camera deliberations revealed that Malema argued that Unterhalter was racist in a “subtle” fashion. They further revealed that Zondo had supported his appointment to the SCA.
In its court papers, the FUL said it was clear that commissioners were allowed to raise disqualifying allegations in an unfair manner.
“Accordingly, the JSC allowed itself (through one or more commissioners) to arrive at a decision by reference to an irrelevant and process-poisoning consideration.”
In Part B of its case, it asks the court to declare the JSC’s current selection process unlawful and to direct it to draft and apply criteria against which commissioners are expected to measure each candidate in writing.