Gauteng high court judge David Unterhalter was viewed by some members of the Judicial Service Commission (JSC) as “not a team player” and as “appear[ing] to be arrogant, and even ‘racist’”. Other commissioners considered these allegations “without substance and baseless”, said the JSC this week.
This is according to written reasons given by the JSC this week to the Council for the Advancement of the South African Constitution (Casac), explaining its choices for the Supreme Court of Appeal in October, which stunned the legal community and led to an outcry. The JSC filled only two vacancies out of four, after interviewing 10 candidates and overlooked clearly competent candidates, including the widely respected Unterhalter.
Casac wrote to the JSC immediately afterwards asking for an explanation, including why it left posts vacant and why it chose the candidates it did and overlooked others. Casac’s Lawson Naidoo said on Wednesday that, now that the reasons had been provided, Casac “will not need to proceed to litigation”.
In its letter, the JSC explained there had been two rounds of voting for the SCA candidates. In the first round, five candidates got enough votes to be appointed. The letter did not say who these were but said one candidate got 19 votes and four others got 12. Twelve votes was the minimum needed for an appointment, said the letter.
The JSC then had a second round of voting “in order to break the tie”. In the second round, one candidate — judge Fayeeza Kathree-Setiloane — got 20 votes. But only one other — judge Shane Kgoele — got 12. That was how it ended up that only two appointments were made, said the letter.
The letter explained that the SCA’s deputy president Xola Petse had told commissioners that there was “a serious problem” at the SCA in that it had lost many experienced judges through retirement. “The SCA was in great need of ‘heavy lifters’ and judges who would ‘hit the ground running’.”
The letter said those who got the nod did so because they got enough votes. But it also summarised the views expressed by commissioners in the JSC’s private deliberations on each of the candidates.
The summary did not give any more detail on why some commissioners felt Unterhalter was not a team player and appeared to be arrogant and “even ‘racist’”. Nor did it say how many commissioners felt so, only saying “some”.
News reports at the time were that his interview went smoothly at first, until he was asked about a previous JSC interview, for a post on the Constitutional Court, at which it emerged that he had sat in an application for leave to appeal in a case at the ConCourt in which he had also sat in the Supreme Court of Appeal. When he was asked about this during the earlier interview, he had been unprepared for the question and agreed that he should have recused himself.
This time around, he said had he been given time to prepare, he would have answered the question differently: that, as a matter of law, the test for leave to appeal was different at the two appellate courts, so he was not necessarily wrong to have sat on both appeals. He said he thought he was treated unfairly in his earlier interview and “ambushed”. His answer led to a number of what appeared to be increasingly frustrated follow-up questions, with Unterhalter repeating his original answer a few times.
But the letter was clear that Unterhalter had the support of other commissioners. The letter said Petse had said he was considered to be one of the “heavy lifters and lawyers of substance” that the SCA needed. Commissioners who motivated for him said he was an excellent judge, with appellate experience at the SCA, Constitutional Court and the Competition Appeal Court. “It was also noted that he has usually been allocated more than his fair share of judgments per term.”
Gauteng judge Tina Siwendu had also been a favourite for appointment and had a good interview. In the letter, the JSC said that some commissioners considered her to be an excellent candidate whose judgments “demonstrate a clear understanding of legal principles”. But some commissioners felt that, because she had only been a judge for six years, “she still needed to gain more experience” on the high court. She had also been “candid” in describing herself as a “work in progress” and “candid” when she told commissioners that she had heard the questions that had been put to other commissioners and that were also put to her.
There was a view that some of the candidates still needed more experience in the high court.
— Judicial Service Commission
Then there was Northern Cape deputy judge president Mmathebe Phatshoane, who, as a DJP with 13 years of experience as a judge, was also widely viewed ahead of her interview as one of those likely to get the nod. The JSC’s letter said she was “viewed to be a great prospect, but there was a sense that her application for elevation to the SCA was premature”. The letter did not explain why commissioners felt her application was premature. But in her interview, Phatshoane was grilled about making herself available for the SCA when she had only been appointed DJP two years previously.
The letter said that Kgoele — who despite a grilling in her interview got the nod — was considered to qualify “based on her writing abilities, the symbolism of her appointment from a transformation perspective and her experience in general areas of the law”. According to an annexure provided by the JSC, she was the second longest serving candidate. However, the letter noted that some commissioners “were not convinced about the answers she gave during the interviews and whether these reflected an adequate grasp of legal principles”.
Kathree-Setiloane seemed to be the only candidate who was almost universally approved of, with her 20 votes. The letter said she was considered an “outstanding candidate” with a broad range of expertise in various areas of law and performed well during the interview.
The JSC said it did not take a specific decision not to fill all four vacancies. It agreed with Casac that judicial vacancies should be filled without unreasonable delay, “and it is undesirable for a court such as the SCA to be ‘under-resourced’,” said the letter.
But it said one of the factors that may have influenced commissioners not to vote for some candidates was what Petse had said about the loss of experience at the SCA. “There was a view that some of the candidates still needed more experience in the high court,” said the letter.
Naidoo said he appreciated the JSC’s provision of written reasons — the first time it has done so in recent years outside of court proceedings. He said he hoped this would open an avenue for constructive engagement with the commission on how its processes could be improved — particularly the voting procedure, which is where he thought things had gone wrong here.
Approached for his response, Unterhalter said it was not appropriate for a judge to comment.
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