The Judicial Service Commission (JSC) has recommended four candidates for two vacancies in the Constitutional Court, with only acting apex court justice David Unterhalter cut from the list of interviewees heard on Tuesday.
President Cyril Ramaphosa must halve the JSC’s shortlist of four: Alan Dodson, Fayeeza Kathree-Setiloane, Mahube Molemela and Owen Rogers.
Twenty-three commissioners deliberated behind closed doors for more than three hours on Tuesday night before settling on the names. This followed mostly genteel interviews throughout the day, with a few tense moments.
It is noteworthy that among the JSC’s highly qualified picks is a practising senior advocate. Dodson has a special interest in land claims and property rights. The remaining three are senior jurists with experience acting in SA’s superior courts, including the Constitutional Court.
All five candidates, including Unterhalter, previously ran for jobs in SA’s court of last instance, and the 23 commissioners had transcripts of their last interviews on hand.
Most of Tuesday’s proceedings were marked by order, with chief justice Raymond Zondo chairing for the first time as permanent leader of the judiciary, following his appointment in March.
Zondo began the day highlighting the JSC’s deliberations on Monday, in which criteria for the candidates settled on in 2010 were reaffirmed.
“The commission had very fruitful and constructive discussion yesterday on its mandate and on various matters connected with its mandate. The spirit was very good,” Zondo said.
The first interviewee, Dodson, fielded questions about his suitability in light of absent acting experience in the apex court. Acting in the Constitutional Court is not an express requirement for the job and is not prescribed.
He highlighted years’ experience as an acting judge in the Land Claims Court, and his work as counsel in cases that were heard in the Constitutional Court. Dodson also raised his work for the UN reviewing land claims in post-war Kosovo in the 1990s.
Throughout the interviews JSC commissioners were acutely aware of a constitutional imperative regarding the composition of the judiciary with regards to race and gender.
Questions on the makeup of the judiciary, both broadly speaking and the apex court in particular, arose throughout the day, with candidates asked how their possible appointment related.
Section 174 (2) affirms that the “need for the judiciary to reflect broadly the racial and gender composition of SA must be considered when judicial officers are appointed”.
Dodson said he did not consider his being a white male a demerit in the context of the composition of the Constitutional Court bench at present.
He said he could not change that he is white and male, but suggested his record speaks for his values on transformation. “I am an African,” Dodson said.
Kathree-Setiloane, who has acted in the appeals court among others, followed. The ANC’s Jomo Nyambi, who is one of the National Council of Provinces (NCOP) representatives, asked her what had changed since she last interviewed in October 2021.
“I think I’m more tempered. I think I’m a calmer individual. It helped me grow in strength,” replied Kathree-Setiloane. In 2021 she fielded questions on her judicial temperament, including from EFF leader Julius Malema.
This time around Malema gave her a far warmer reception. He had no questions for Kathree-Setiloane. Rather, he wished her well and said “we keep trying” and he “does not know what is going wrong” when it came to her advancement.
Kathree-Setiloane’s demeanour was raised during previous JSC interviews, in terms of complaints by clerks who worked with her. Among the complainants was a daughter of appeals court president justice Mandisa Maya. Likely for that reason, Maya did not attend on Tuesday. Her deputy Xola Petse represented the Supreme Court of Appeal (SCA).
Kathree-Setiloane received nods, including from parliamentary speaker Nosiviwe Mapisa-Nqakula, for jurisprudence and published work on gender and same-sex partnerships.
She predicted courts would be dealing with LGBTQI and trans issues more and more, so courts and judges must be sensitive in their approach.
“Vulnerable groupings are given protection and obviously transgender people will fall within vulnerable groups, they’ve experienced terrible violence at the hands of their communities,” she said.
She concluded by pressing the JSC to do more than give “lip service” to gender transformation. Kathree-Setiloane highlighted the importance of increasing women judges’ capacity. “You have two strong women appearing before the panel today,” she said.
The JSC’s third interviewee was appeals court justice Molemela, who previously served as judge president of the Free State high court. Zondo asked her about her time acting in the court to which she aims to be appointed full time.
Molemela said her acting experience over the past few months was “very enriching” and “the best experience” of her life. After about 35 years in the profession, said Molemela, she was ready to “hit the path running” in SA’s top court.
As with Kathree-Setiloane, Malema did not pose a question to Molemela. He encouraged her to continue appearing before the JSC until she succeeded. “Do not be discouraged,” he said.
Senior counsel Kameshni Pillay, newly appointed to represent Advocates For Transformation (AFT) on the JSC, raised three dissenting judgments Molemela penned in the appeals court. In these, Molemela was in the minority. On appeal in all three cases, highlighted Pillay, these judgments were affirmed.
In her closing remarks, Molemela lamented that “so long after the advent of democracy” and in light of Section 174 (2) the Constitutional Court did not have an equal gender split.
She said “we should be there already” as there were “women who tick all the boxes” among judicial candidates. Molemela said the pool was no longer limited. “I think now is the time,” she told Zondo.
Early into Rogers’ interview he shared his surprise on being invited to act in the Constitutional Court. “I did think that my experience was more generalist, plus I had some specialist knowledge in fields which are not overtly constitutional,” he said.
Zondo insisted he had added value acting in the top court, and noted Rogers took care consulting Maya and others before accepting the offer.
When NCOP member Thamsanqa Dodovu asked Rogers about his judicial temperament he admitted: “I can be quite rigorous in engaging counsel.”
NCOP deputy chair Sylvia Lucas asked about judicial activism, to which Rogers gave a cautious reply. If it meant a judge should have “some agenda” or predetermined result in mind, he could not agree.
“The oath of office is that a judge will apply the constitution and the law without fear of favour,” Rogers said.
Easily the poorest section of Rogers’ interview concerned his response on the makeup of the apex court bench in terms of gender and race. “I just think a court of 11 justices is just too small and too important to allow anything along the lines of a quota to determine who goes on it,” he said.
His comments on this score led to confusion, prompting Zondo to follow up. Justice minister Ronald Lamola probed further. Rogers said he was expressing a personal opinion that since there were “only” 11 seats on the bench “you should not be so tied to representivity that you do not consider candidates’ contribution”.
Unterhalter was interviewed last, from afternoon into evening. Like Molemela he found acting in the Constitutional Court this year an “enormously enriching experience” with challenging and interesting cases.
It was one of those cases that caused consternation, however. Unterhalter had previously considered an appeal while acting in the SCA and it arose again in the top court. In both instances, attempts to appeal a decision in a case with Mogale City and Eskom among the parties failed.
Unterhalter said he had not detected that he had seen the case before, when an attempt at having an appeal heard in the top court was shared among apex court judges for consideration.
The repeat, which was highlighted by commissioner Mvusi Notyesi, proved divisive. In all likelihood it proved Unterhalter’s undoing, even though he admitted the error after checking his emails and apologised.
“We are going to use this,” said Malema.
Unterhalter said he was “very much alive” to the need for judges to recuse themselves in these circumstances and said there were many instances where, being aware of a need to do so, he had stepped away.
Malema forecast his plan to raise in the private deliberations that Unterhalter had not recused himself was a mark against him. “The point is the morality of it. It doesn’t enhance the image of the judiciary,” Malema said.
On representation, Unterhalter fielded Pillay’s queries on the mentorship of black advocates, particularly women. He had given the JSC a list of advocates of colour with whom he worked. To commissioner Kathleen Matolo-Dlepu it was not long enough, Pillay considered it insufficient in black women seniors.
The IFP’s chief whip, Narend Singh, asked Unterhalter to again share his response to criticism about previous involvement with the SA Jewish Board of Deputies (SAJBD), something raised in the April and October interviews.
Unterhalter said he took up the position to provide support to SA’s Jewish community during the Covid-19 pandemic. He emphasised the SAJBD’s establishment predated the state of Israel, the board was geared at combating anti-Semitism, and existed to serve SA’s Jewry. He is no longer involved.
Unterhalter shared his belief he had a meaningful contribution to make in SA’s court of last instance, and that he would “love” to do so. His nomination was supported by prominent figures in the legal profession, among them Vincent Maleka and Tembeka Ngcukaitobi.
After three unsuccessful runs to preside in the Constitutional Court, including during JSC interviews that were impugned over gross defects, Unterhalter is in all probability disinclined to interview again.
The JSC continues interviews for posts in SA’s superior courts from April 6-8. Thereafter, the president will choose two judges from the JSC’s list of four to join the Constitutional Court. It is now a contest between Dodson, Kathree-Setiloane, Molemela and Rogers.
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