/ 27 February 2024

Judicial Service Commission to interview SCA candidates in May

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JSC chairman, Chief Justice Raymond Zondo. (Oupa Nkosi/Judges Matter)

The Judicial Service Commission (JSC) has brought forward by a month interviews to fill vacancies at the Supreme Court of Appeal (SCA) under threat of legal action from Freedom Under Law (FUL).

The office of the chief justice last week announced that the interviews with aspirant appellate court judges would take place in June, prompting the FUL, a nonprofit and public benefit organisation, to point out that this is in breach of a court order. 

The JSC issued a correction on Monday, saying the interviews would be held in May.

“Interested candidates who wish to be nominated for these positions are hereby advised that the interviews will be held in May 2024 and not June 2024 as previously stated.  

“The notice is accordingly amended to reflect this change.”

The initial announcement came six days after an agreement between the FUL and the JSC to expedite the interviews was made an order of the Pretoria high court.

In a letter to the FUL’s attorneys on the same day, the office of the chief justice said “the interviews can unfortunately not realistically be held in April or May 2024, the dates agreed with your client”.

It said there was simply not enough time to complete all administrative processes.

The FUL demanded that the JSC revise its position and comply with the order, failing which it would approach the court on an urgent basis to enforce the order.

It expressed dismay that the commission, which is chaired by Chief Justice Raymond Zondo, attempted to depart from it, saying this undermined respect for the rule of law.

The agreement with the FUL was reached as settlement of part A of an application the NGO filed to challenge the JSC’s failure to fill the vacancies in October last year as irrational.

The JSC interviewed 10 candidates for four vacancies at the SCA, but appointed only justices Fayeeza Kathree-Setiloane and Maleshane Kgoele.

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.

The JSC has agreed to invite him and all other 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.

How voting unfolded was revealed after 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

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.

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, the matter was raised again and Unterhalter seemed more reluctant this time to concede that he had made a mistake. 

Malema in particular made clear that he did not approve of Unterhalter’s responses. Redacted transcripts of in camera deliberations revealed that he argued that Unterhalter was racist in a “subtle” fashion. They further revealed that Zondo had supported his appointment to the SCA.

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.

FUL on Tuesday said it intended pursuing this part of the application on an expedited basis.