At the end of two days spent interviewing 10 judges, the Judicial Service Commission (JSC) announced that it would recommend filling just two of the available four spots on the Bench of the country’s second-highest court, the Supreme Court of Appeal (SCA).

The JSC said it would recommend to President Cyril Ramaphosa that Judge Fayeeza Kathree-Setiloane and Judge Shane Kgoele be appointed permanently to the appellate court.

It is a decision that, as so often with the JSC’s opaque choices, will raise eyebrows. A shortage of qualified candidates for the country’s top posts has been a problem for some years. Indeed, Chief Justice Raymond Zondo tacitly acknowledged as much on the sidelines of this week’s JSC interviews when he revealed that, from now on, academics and lawyers who have not previously been appointed as judges will be considered for direct appointment to the Constitutional Court.

Judge Zondo said this move was designed to address the paucity of candidates making themselves available for the country’s top courts. Although the current incarnation of the JSC remains leagues more professional and functional than its chaotic iterations in recent years, this week’s decision on the SCA posts will once again fuel debate about what exactly it is that the JSC values in candidates.

Candidates weak on legal concepts

In line with the principles of the newly reformed JSC under Chief Justice Raymond Zondo, there was a much greater emphasis in the SCA interviews on candidates’ technical jurisprudential chops.

A new development at the JSC is the practice of asking each candidate at least one or two of the same questions, to establish a kind of baseline of knowledge relative to which candidates can be assessed.

In the case of the SCA interviews, candidates were asked for their understanding of the two concepts of legal “discretion”, an important issue in appellate courts. Notably, few of the early candidates managed an intelligible definition.

One of those who failed was one of the two candidates ultimately recommended for appointment, Judge Kgoele, who in response to the question simply said: “I cannot do it [explain the difference] just immediately like that now.”

By the time the JSC reached the final candidates, the one obvious flaw in the practice of asking interviewees the same technical question was laid bare – as Judge Namhla Siwendu nonchalantly confessed she had had the “benefit” of listening to the previous interviews and had accordingly brushed up on her definitions.

This was not the only issue on which many candidates seemed to fall short. Another was that of how many judgments they had penned which could be said to be truly significant, addressing a novel issue or advancing the law in some way.

Judge Johannes Daffue was accused of citing judgments that actually dealt with “matters already settled” in law as significant.

Successful candidate Judge Kgoele was charged with having provided a list of her finest judgments which included almost none written solely by her.

Judge Zamani Nhlangulela was told that the cases he had advanced as being significant might be “factually interesting, but don’t deal with difficult points of law”.

This was the situation for the vast majority of the candidates, who were told they were producing judgments which might be functional and fair but failed to display the kind of jurisprudential flair expected from judges sitting on the Bench of one of the country’s two top courts.

Unterhalter hoisted by his own petard

There were just two judges whom the JSC seemed to agree, during the interviews themselves, were indisputably in possession of the required intellectual muscle for the SCA roles. Those were successful candidate Judge Fayeeza Kathree-Setiloane – whose 65 reported judgments and “glowing” reports from all law bodies were respectfully acknowledged – and unsuccessful candidate Judge David Unterhalter.

Judge Unterhalter has now taken on the mantle previously donned by Advocate Jeremy Gauntlett of being the JSC’s most controversial also-ran – having now been rejected for both the Constitutional Court and the SCA four times.

Although Judge Unterhalter is unquestionably one of the country’s top legal minds, his approach to this week’s SCA interview was akin to a JSC suicide mission. If there is one thing the body has made consistently clear over the years, it is that it takes a decidedly dim view of perceived arrogance – particularly from candidates of the white male variety.

Judge Unterhalter’s interview may in future years be considered a parable about the dangers of hubris.

In short: At his April 2022 JSC interview for the Constitutional Court, Judge Unterhalter was asked whether it would ever be permissible for a judge who had sat on a Supreme Court panel considering the right to appeal a matter to then subsequently sit on a Constitutional Court Bench considering the very same leave to appeal. Judge Unterhalter replied that this would not be permissible.

He was then “ambushed” – his words – with the announcement from JSC commissioner Mvuzo Notyesi that Judge Unterhalter had himself in fact recently done just this – something Judge Unterhalter said was a mistake and for which he apologised.

When the matter came up again at this week’s interview, Judge Unterhalter could surely have foreseen that the best way of putting the issue to bed once and for all would be to apologise again and confirm that the error would not recur. He seemingly could not bring himself to do so.

In a truly bizarre course of action – at least considering the famously prickly and unpredictable forum in which Judge Unterhalter was appearing – the judge announced that upon reflection, he had decided that presiding over a single matter at both the Supreme and Constitutional Court was, in fact, probably not a mistake he should have apologised for.

This clearly rattled even Chief Justice Raymond Zondo, who pointed out that as a result of the error made by Judge Unterhalter, a new protocol had been introduced whereby judges had to disclose whether or not they had sat on the relevant matter in a lower court. In other words, the rest of the South African judicial system took the problem seriously enough to implement an ongoing safeguard to prevent it recurring.

Judge Unterhalter simply would not be dissuaded from his kamikaze position, and certainly did not help his case by adopting a distinctly supercilious tone in addressing commissioners: “I’m not certain you fully appreciate the manner in which these two courts work,” he told MP China Dodovu.

Only someone utterly unfamiliar with the JSC’s modus operandi would have gone on to put money on Judge Unterhalter being recommended for appointment after that performance – and indeed, he was not.

Ego vs ego

Although Judge Zondo’s JSC continues to deserve credit for its more stable functioning, one unpleasant incident outside this week’s hearings will cast a shadow over the SCA decision-making.

JSC commissioner Julius Malema made his voice heard only once during the SCA interviews: to join the grilling of Judge Unterhalter, although his intervention there was hardly vicious by Malema’s previous standards.

When News24 legal journalist Karyn Maughan tweeted to note Malema’s unusual silence, Malema responded: “I don’t just speak; I only spoke on your candidate [an apparent reference to Unterhalter], and now look at the results.”

This, too, is hubris in action: Malema certainly no longer has the influence to sway JSC voting on a candidate, if he ever did. Yet the mere suggestion, made in public, that a commissioner approached a candidate in a particular way because he was perceived as a media darling is deeply problematic – and one that Chief Justice Zondo should address. DM

JSC hearings for posts in the lower courts continue until Friday, 6 October.