In no order of importance, let’s begin with the omission from the list of five candidates of Judge Fayeeza Kathree-Setiloane.

Although of anecdotal value only, this columnist asked a number of colleagues at the Bar and side Bar their reaction to her being left off the list of five. Everyone expressed the view that Judge Kathree-Setiloane should have been high on the list and certainly not the person who should have been omitted.

That raises a question which is not anecdotal: During her interview, Judge Kathree-Setiloane was asked about poor relationships with clerks, as I understand it when she acted at the Constitutional Court. This was followed by questions concerning whether she was overbearing.

This exchange is truly saturated with irony, given the legitimate concern of members of the Judicial Service Commission (JSC) with the issue of gender equality. Here was precisely the kind of comment that applies only to women — overbearing and over-assertive. Men, by contrast, are hardly subjected to the same characterisation, notwithstanding the number of rude men who have been judges over the decades.

One can only hope that neither this description nor the spat with clerks constituted the reason for her omission and that the decision was taken purely on merit; that is, contrary to the anecdotal evidence the JSC considered that the five proposed candidates were more qualified to be Constitutional Court justices.

The second issue that emerged from the interviews concerned a reference at the hearings to an observation made in a column in this publication by Professor Pierre de Vos that, in the Jacobs decision where the Constitutional Court deadlocked at 5:5, had the Chief Justice been present, a 6:5 decision would have resulted. The Chief Justice has a range of roles beyond presiding in court and doubtless had a very sound reason for not having sat in this case; hence understandably he showed irritation at this criticism.

But this issue prompted a broader set of problematic responses concerning academic and media criticism of the court. The suggestion was made that there is a nefarious agenda not only to discredit the Chief Justice in particular but also to create a divide between judges of whom the media/academics approve and those that they do not.

In this way, the argument runs, there is a temptation to write judgments that win approval from these quarters and hence be captured by the discourse punted in the media/academy. This was then extended to an argument that presumably these same people defend the common law at all costs and seek to ensure that the spirit, purport and objects of the Constitution do not influence the common law.

These are disturbing reactions. Courts are held accountable by higher courts. When the highest court is involved, the most effective form of accountability is academic and popular analysis which in turn informs the public.

It is true that sometimes criticism may be seen as overly strident and arguably wrong, but that is the price of freedom of expression. Analytical and if necessary, critical comment on judgments is part of a robust democracy.

What is equally troubling is the absence of evidence to support these claims, that is, the presence of a sustained trend of criticism of the Constitutional Court or of the Chief Justice once the brouhaha surrounding his elevation to Chief Justice took place in 2012. Thanks in significant part to extremely favourable coverage of his judgment in the Nkandla case and subsequently his decision in the no-confidence case, the Chief Justice appears to enjoy a deserved and extremely positive reputation among the public.

Regarding the accusation of an army of reactionary defendants of the sanctity of the common law, this is one area where a number of academic writers have levelled sustained criticisms against decisions, particularly from the Supreme Court of Appeal (SCA), which decisions have failed to incorporate the spirit, purport and objects of the Constitution sufficiently into common law principles.

On the broader point of academic analysis, which it is suggested is critical of the courts generally, there is surprisingly little outside the question of the common law and, to some very limited extent, administrative law. Unlike during the apartheid era, present-day academics, either because of a lack of courage or interest, offer very little by way of critical analysis. Indeed it is hardly likely that they will respond to the present conspiracy charge.

The final issue concerns the increasing practice of spending much time in Constitutional Court interviews on the atmosphere at the SCA. Much is spoken of the top six at the SCA as if they operated like the top six in another important organisation, save that in the case of the SCA one does not know the identity of the top six.

The sharp point is this — what has the atmosphere at the SCA got to do with the suitability of a candidate to become a justice on the Constitutional Court? Very little, if anything, is surely the answer unless it goes to the collegiality of a candidate at the SCA, which was not at issue in these interviews.

These observations notwithstanding, the JSC did put a series of substantive questions to each candidate. Hopefully, this will help the president appoint two candidates who will grace this most important of courts. DM