SA leads the world’s constitutional democracies in its supply of judicial talent. That is the rational explanation for the decision-making processes applied by the Judicial Service Commission (JSC), the body entrusted by the constitution with recommending candidates for appointment to the various divisions of our courts.
How else to explain its recent decision to decline to even shortlist two of the most acclaimed jurists in the country, judges Owen Rogers and David Unterhalter, for appointments to the two highest adjudication bodies in the land, the Supreme Court of Appeal (SCA) and the Constitutional Court respectively?
To be fair, there is consistency in this stretching back decades now. The roll call of rejected candidates for judicial office includes leading senior counsel Geoff Budlender SC and Jeremy Gauntlett SC, knocked back on several occasions for preferment to even the lowest rungs of the judiciary in the provincial divisions. Notably, both of these eminent lawyers were retained by either former president Jacob Zuma in his legal jousts (Gauntlett), or in the case of Budlender for the most progressive advancement of constitutional rights for the poor and legally disfranchised.
Even the scars of battle in the long fight against apartheid and cementing a new legal order are regarded as insufficient for appointment by the JSC. Step forward here Halton Cheadle, an attorney with 40 years’ experience and who, as a champion of trade union rights during the long, dark night of repressive apartheid, was banned by the National Party regime. Though he authored the Labour Relations Act and represented the SACP during the Codesa negotiations on the Bill of Rights (where we had worthy clashes), the JSC deemed him unworthy for appointment to the Eastern Cape High Court in 2009.
Left-wing credentials, academic excellence, implacable opposition to apartheid and banishment under its fist, legal acumen and genuine commitment to constitutionalism have in each of these cases been insufficient to overcome the birth defect of being white in a country infected with race essentialism, which now determines every aspect of the public appointments process. Ill fares the land, as it hurtles on a downward path, that can so easily discard scarce expertise in its ranks. And suffer evermore the poor and marginalised whose claim for social justice and independent adjudication will not be determined by the best legal talent to hand.
Another aspect is pointed out on the website Judges Matter, whose strapline “Good Judges Make Good Judgments” is honoured in the breach by the JSC. It noted when Rogers was interviewed for the SCA post in 2019 that “ members of the JSC become visibly insecure when smart people are being interviewed —a defence mechanism that often reveals more about the interviewers than those seeking jobs”. This phenomenon was in overdrive during the latest deliberations of the JSC for various court vacancies. The joust between the egregious Julius Malema — who faces many court challenges of his own and doubtless hopes to face congenial jurists in the future — was egged on in his quest to discredit Dhaya Pillay due to her friendship with Pravin Gordhan and Derek Hanekom, by the ever controversial chief justice, Mogoeng Mogoeng.
Mogoeng is no doubt seeking new allies as he confronts his own legal disciplinary processes. Aligning himself with the EFF and “radical economic transformation” faction of the ANC, which also has supporters on the JSC, might be smart politics —even if it dumbs down the judicial arm of the state evermore. After all, Mogoeng has allowed a rogue judge president in the Western Cape, John Hlophe, to wreak havoc in his court, and 13 years to elapse in the complaint against Hlophe by two Constitutional Court colleagues.
In the dismissal of Unterhalter’s claims for judicial advancement his membership of the “suspect class” of his race was fused with his religious affiliation. Thus, the JSC interviewers gave little airtime to Unterhalter’s credentials — which include being the first South African ever appointed to the appellate body of the World Trade Organisation, where he served as chairperson for two years. (Disclosure: I have known Unterhalter since our university days). President Cyril Ramaphosa entrusted the defence of his actions around Marikana to the same person.
Courtesy of a bile-ridden tissue of vitriol against him authored by the Qatar-funded Boycott, Disinvest and Sanction (BDS) outfit, Unterhalter landed up spending much of his time offering his views on Zionism (not in the remit of the court) and his one-time membership of the SA Jewish Board of Deputies. According to BDS, the century-old board, whose leadership is democratically and transparently elected, is akin to the Broederbond, the secretive Afrikaner Nationalist superbody of yore. Mere membership of this community body rendered Unterhalter unfit for higher judicial office in the view of BDS, a matter the JSC seemed to endorsed.
While there is a slippery line between anti-Zionism and anti-Semitism, the latter was given full voice in another JSC interview in the same week as the Unterhalter ambush. TG Madonsela SC, a JSC member, inquired of Lawrence Lever SC, who is Jewish, whether his “observation of the sabbath would interfere with his judicial duties”. Leaving aside the utter ignorance of the query, since courts do not ordinarily sit on Saturdays and the candidate is nonobservant, there is the prejudice behind the question: no Christian or Muslim candidate received the same line of inquiry.
The circus of calumnies in the recent JSC hearings was an uncomfortable reminder of my own cardinal mistake in the birth of this body. In November 1993 the constitutional negotiations were nearly derailed by a secret compact between the exiting National Party government and the ANC. In essence, it would have allowed the new cabinet to appoint all of the judges to the new Constitutional Court, absent any independent mediation or public scrutiny. As the Democratic Party’s negotiator on justice matters I led the charge against this proposal and championed the creation of an independent appointments mechanism, the JSC. In this one crucial matter the voice of the DP eventually found favour and so the JSC was born.
But in view of the recent goings-on, the sheer politicisation and utter disregard for the merits of individual candidates, it is time to offer a mea culpa on an original idea gone wrong. It would probably achieve better outcomes, without the public grandstanding, political posturing and naked prejudice that now determine the JSC proceedings and shortlisting, to allow the president and cabinet to choose judges in private. Given the long rank of those excluded by the JSC the results could hardly be worse, and the process would not give the sheen of independence provided to today’s politically charged and ideologically driven JSC.
Of course, Ramaphosa has the power under section 174 (4) (b) of the constitution to reject the JSC’s selections and demand a supplementary list of candidates. But you are more likely to get a blood clot from a Covid-19 vaccine than see the president act.
Leon, a former leader of the opposition, now chairs Resolve Communications.
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