The very recent decision of the Judicial Service Commission (JSC) to exclude Judge David Unterhalter for a second consecutive time from the shortlist for judges to be appointed to the Constitutional Court has quite rightly given rise to debate about the criteria being applied by the JSC in nominating candidates for judicial appointment.
The decision to overlook Judge Unterhalter is particularly controversial because he is widely recognised as one of the leading legal minds of his generation.
He is a distinguished legal academic scholar (he has degrees from Oxford and Cambridge universities) and has held professorships at the universities of Cape Town and the Witwatersrand and has served as a director of the Mandela Institute. He was also an eminent advocate and practised as a senior counsel for about 15 years before being appointed as a judge. His advocacy skill has also been recognised by the English courts in cases where he represented the Office of Fair Trading.
Simply put, he is a jurist of global standing.
It is perhaps tempting to regard the decision not to include Judge Unterhalter in the Constitutional Court shortlist as simply an aberration or a decision that is confined to the specific facts of his case.
Some have sought to justify the decision on the basis that he has only served as a judge for a limited time and has not previously acted in the Constitutional Court. These types of justifications are not particularly convincing, given the fact that even during his short tenure as a judge he has served with distinction and has already served as an acting judge in the Supreme Court of Appeal for a number of terms and in the Competition Appeal Court.
Moreover, such parochial views also completely fail to take into account his years on the World Trade Organization Appellate Body (a highly prestigious position in the apex court of the world trade system) including as its chairperson (a distinction and recognition that no other South African jurist has enjoyed).
Jurists of Judge Unterhalter’s ability, calibre and experience should not be required to tick some specific and arbitrarily determined box as having served as a judge or acting judge for a period in order to be considered to have sufficient expertise or experience to sit on the Constitutional Court.
The concerning feature of the decision to overlook Judge Unterhalter for a position on the Constitutional Court is not so much in my view that it reflects an apparent disinclination to appoint white male judges to the highest court in the land (other white males have previously been appointed to this court), but more importantly that it is the most recent example of a pattern of decision-making to reject intellectual talent which goes back several years. Indeed, Judge Unterhalter is not the only applicant with significant intellectual and legal ability who has been turned down by the JSC.
There is in fact a long line of similar decisions in this regard. For example, the commission also rejected applications to the Constitutional Court by Jeremy Gauntlett SC and Geoff Budlender SC. Both are gifted intellectuals and are regarded as leading advocates.
Budlender SC also had a significant track record of public interest service in the form of running the Legal Resources Centre for many years. His applications for other positions, even in the lower courts, were also not successful.
Apart from Judge Unterhalter, Gauntlett SC and Budlender SC, the JSC has also chosen at various times to overlook the likes of judges Owen Rogers, Clive Plasket and Trevor Gorven for appointment to the Supreme Court of Appeal (albeit that Plasket and Gorven were each appointed after a number of subsequent applications — four in the case of Judge Gorven). Judge Rogers was also regarded as one of the leading advocates during his time at the Bar and likewise Plasket and Gorven were regarded as excellent judges.
In some quarters it has been suggested that the decisions to reject the applications of certain of these candidates is an exercise in race-based politics. However, instead of being an exercise in race-based ideological thinking, the motivation may be the rejection of intellectual capital. In other words, the proposition is that all of the individuals concerned had impeccable legal and intellectual credentials and were regarded as some of South Africa’s leading advocates and legal minds.
Indeed, one of the most egregious examples of not appointing the most gifted intellectual judge to a position of seniority, was the decision not to appoint former justice Dikgang Moseneke as chief justice. It was widely acknowledged at the time that he was head and shoulders above any of the other candidates, but it appears that one of the key reasons he was not appointed may have been because it was believed that he did not subscribe to views that the president at the time felt were conducive to his political agenda.
While the decision not to appoint Moseneke as chief justice was made by the Presidency, as opposed to the JSC, it is still illustrative of the central thesis.
The decision not to appoint certain individuals with significant intellectual ability is perhaps premised on the concern that they would potentially demonstrate high levels of independent thinking and, given their intellectual ability, might conceivably sway their colleagues in the courts when it comes to deciding particular cases. In some sense this is a far more dangerous and alarming motivation for rejecting their applications for judicial appointment, because it signals that the majority of decision-makers on the JSC are seeking to influence the types of judges who are appointed.
This type of approach is, of course, not unique to South Africa. The US is the clearest example of politicians seeking to appoint judges to the highest courts who they believe will adopt a particular ideological perspective and thereby ensure that certain political objectives can be realised. The debate, for example, about women’s right to abortion is highly contentious and it is well known that conservative policymakers in the US have wanted more conservative-minded judges to be appointed in the hope that this will ultimately result in previous decisions about women’s right to abortion being reversed.
Of course, many of our current serving judges demonstrate impeccable intellectual ability. This article does not seek to suggest otherwise.
The concerns raised are for the future of the judiciary and the politics which appear to be influencing the JSC’s consideration of candidates to a worrying and escalating extent. The key point is that in a South African context, with the courts having recently played a decisive role in upholding the rule of law and holding politicians to account, judicial independence, integrity and intellectual capital are critical issues.
All the more reason to ensure that individuals who display high levels of intellectual capability and independence are appointed as judges. One wonders whether eminent advocates such as Vincent Maleka, Wim Trengove and Tembeka Ngcukaitobi have been dissuaded from applying to be appointed to the judiciary as a consequence of the approach taken by the JSC.
The rights of all citizens are ultimately affected in one form or another by the decisions of our courts, whether they relate to fundamental constitutional rights such as freedom of expression or the right to live in a safe environment, or whether the issues in question are more mundane and relate to everyday legal proceedings and simple justice between citizen and citizen.
In either case, as citizens we want the very best lawyers to serve in our courts and hear our disputes, in the same way that we would want the very best surgeon if we were to be operated on, in the expectation that they will deliver the best outcomes which are consistent with the rule of law and justice, thus ensuring that respect for and adherence to the legal system are maintained.
The perverse irony of the manner in which the JSC currently conducts itself is that instead of appointing some of the very best candidates, the commission has, generally speaking, chosen to reject some of the best-qualified and most competent candidates and most worryingly sought to delay taking any action against judges who have been found to be seriously wanting from the point of view of being fit and proper to carry out judicial responsibilities.
There is a surreal quality to the JSC’s decision to exclude a candidate of the quality of Judge Unterhalter on two consecutive occasions. His credentials are so outstanding that it is nothing short of absurd that he did not even make the shortlist of five judges for appointment to the Constitutional Court.
One fears for the future of the judiciary and the country as a whole if the JSC continues to reject intellectual capital that can only positively contribute to the quality of judicial decision-making. DM