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New interviews, same result: JSC recommends exact same names for appointment to ConCourt

After the high court set aside its April interviews, the JSC on Monday put forward the same names as it did the last time around

04 October 2021 - 21:39 By Franny Rabkin
The interviews were a rerun of those conducted in April, after the first round was set aside by an order of the high court. File photo.
The interviews were a rerun of those conducted in April, after the first round was set aside by an order of the high court. File photo.

The Judicial Service Commission (JSC) has recommended Supreme Court of Appeal justices Rammaka Mathopo and Mahube Molemela, and Gauteng high court judges Fayeeza Kathree-Setiloane, Bashier Vally and Jody Kollapen for appointment to the Constitutional Court.

This is the same list of candidates that were recommended in April in a process that was set aside by the high court.

President Cyril Ramaphosa will make his choice of two of these five to fill two vacancies at South Africa’s apex court.

Once these appointments have been made, the president must still fill a further two vacancies and appoint a chief justice before the Constitutional Court will have its full complement of 11 members.

The interviews were a rerun of those conducted in April, after the first round was set aside by an order of the high court. This followed an application by the Council for the Advancement of the South African Constitution (Casac), which described the April interviews as “a sham” and unlawful.

Instead of embarking on potentially prolonged litigation, the JSC and Casac settled the case because of an urgent need to fill the vacancies at the Constitutional Court.

When the settlement was made an order of court, the JSC was careful to say that it was not conceding that the April interviews were unlawful and were only settling to prevent a delay to the filling of vacancies at the highest court.

The two candidates who lost out were Gauteng high court judge David Unterhalter and senior counsel Alan Dodson. Unterhalter’s April interview was one of those that had been the focus of many of Casac’s complaints. Another was the interview of KwaZulu-Natal court judge Dhaya Pillay - who, the JSC said, had decided not to avail herself even though she was invited to return.

Unterhalter’s interview on Monday was one of the longest of the day, and he sought to dispel some of the concerns that members of the JSC had raised about him in the last round. He said that it was not correct that he had only had three years’ experience as a judge, as this did not count his 11 years of experience at the Appellate Body of the World Trade Organisation.

However, when he was questioned again about having briefly been a member of the board of the South African Jewish Board of Deputies, Unterhalter repeated what he had said in April: that the South African Jewish community had a diversity of views when it came to supporting Israel. The board of deputies was an organisation that existed long before the state of Israel and was meant to serve the community, he said. It was on this basis, during the Covid-19 pandemic, that he had joined – “to be of service to the community”.

Dodson, a former judge of the Land Claims Court, also defended his application to the ConCourt despite currently not being a sitting judge. He said the Constitution specifically envisaged that judges on the highest court could be appointed from elsewhere and not just the bench. He said the commission could not close the door to him where the Constitution opened it.

Monday’s interviews were the first that were chaired by Deputy Chief Justice Raymond Zondo. He ran a tighter ship as far as time keeping was concerned – the interviews ran late, as they always do, but not nearly as late as they have tended to in the past.

Zondo also intervened when a question was asked to Kathree-Setiloane about a judgment of hers that may yet come before the Constutional Court. The role of the chair at the April interviews was another area of concern for Casac, which criticised chief justice Mogoeng Mogoeng for allowing inappropriate and irrelevant questions to candidates.

Zondo’s opening questions to all the candidates were law-focused, asking them about the circumstances in which direct access to the Constitutional Court could be granted and when direct appeals would be allowed.

A question that arose in most of the candidates’ interviews was the length of time that judgments were taking to be delivered in the Constitutional Court. Candidates all gave a variation of the same answer: yes, it was a valid concern but in a court of 11 justices, which is the final court of appeal and with a huge workload, one could not be too mechanical about setting deadlines; and the justices of the apex court were doing their best.

Commissioner Julius Malema was particularly fiery on this point, referring to the rescission of the contempt judgment that was urgently sought by former President Jacob Zuma and heard by the Constitutional Court. But then it took two months to deliver judgment.

Malema said when the application was first launched and “the country was burning”, lawyers were told on the weekend that “they must do the impossible. The matter is heard. Then the Constitutional Court takes time [and] goes quiet on us.”

The JSC deliberated for an hour and a half on the candidates.  Another complaint Casac had made in its application was that the deliberations were not properly done, as the merits of each individual candidate had not been considered.