In the four interviews which preceded that of Judge Unterhalter, the positive influence of Chief Justice Zondo and that of the replacements of Dali Mpofu SC and Griffiths Madonsela SC, those being Kameshni Pillay SC and Sesi Baloyi SC, was apparent from the get-go.

Unlike the disastrous interviews for Chief Justice, the only outcome of which was to ensure that all four of the most senior judges in the country were victims, the questions posed to Alan Dodson SC and Justices Fayeeza Kathree-Setiloane, Mahube Molemela and Owen Rogers were aimed at assessing whether these candidates met the requirements for the highest judicial office.

To the extent that there was legitimate criticism of the process, it concerned the absence of more probing questions about judicial philosophy, what in tangible legal terms is meant by transformative constitutionalism, or more explicitly, how the candidate considers that law can be an engine for contributing to a society based on freedom, dignity and equality for all 60 million South Africans.

In addition, when asked about the attack on the Constitution and the proclaimed enthusiasm by the RET faction for parliamentary democracy, the least that be expected from a judge who wishes to grace the highest court in the land, and which is the ultimate custodian of the constitutional form of government chosen by the people in 1994, is a serious engagement with the so-called counter-majoritarian problem which is posed by governance bounded by a written Constitution.

In this sense, it is hard to divine a difference in criteria that the JSC applies when interviewing for the Constitutional Court as opposed to the high court. That the four candidates were at least treated with courtesy and respect marked a welcome change and it would be churlish not to so acknowledge, even though a serious legal engagement beyond the odd perfunctory question as to why a judge decided a case was luminously absent from these proceedings.

All of this studious degree of low-key questioning disappeared when Justice Unterhalter entered the interview room.

Suddenly the relevance of a question put to each of the four candidates about petitions to the Supreme Court of Appeal and the Constitutional Court became apparent. 

Mvuzo Notyesi, who had been part of the tag team that had been central to the proceedings of the JSC when the interviews for Chief Justice took place, revealed the objective of the question almost immediately — why had Justice Unterhalter been one of two judges who dismissed a petition for leave to appeal to the SCA and yet participated in the same petition when it was brought to the Constitutional Court where he was now an acting judge.

Julius Malema needed no invitation to continue the attack, suggesting inter alia that Unterhalter had compromised the legitimacy of the court.

Then followed a range of questions from other commissioners about Justice Unterhalter’s lack of commitment to transformation in that he had so few juniors who were black advocates, particularly black women, during his glittering career as one of the very top silks at the Bar. Leave aside the point that Justice Unterhalter should have done more to bring in more senior black practitioners into legal teams that he led. Neither Justice Rogers nor advocate Dodson were asked the same question. Why not?

When the magnitude of the error in relation to the petition is assessed and given the number of petitions that cross the desk of each Constitutional Court judge on a weekly basis, it was surely no more than an unfortunate and inadvertent error on the judge’s part, as if no candidate nominated by the JSC in previous rounds had never made an error. Thus, the key question arises: why were so many of the commissioners so determined to exclude Justice Unterhalter from consideration? 

Although assessment of judges will differ among practitioners, many senior practitioners regard Judge Unterhalter as among the very best on the current South African Bench, as a reading of his judgments would confirm.

So what is it about him that elicits such hostility among certain members of the JSC?

The upshot of this reaction, in a similar fashion to its decisions regarding the Chief Justice, is that the JSC has again legally overreached. The Constitution (s174(4)) expressly provides that the JSC must prepare a list of nominees with three names more than the number of appointments to be made and submit this list to the President. If the President advises that any of the nominees are unacceptable and any appointment remains to be made, he advises the JSC, which is required to supplement the list with further nominees.

But the JSC failed to so perform. It submitted four names which, as it correctly noted for once, means that only one vacancy can be filled.

Either it found that Justice Unterhalter was not appropriately qualified for the Constitutional Court (truly an absurd proposition in that on any count he was obviously the candidate with the greatest measure of constitutional expertise albeit that Judge Rogers held the same stature as a technical “black letter lawyer”) or that he was not fit and proper for the post, even though he has been deemed fit and proper to be a High Court judge and an acting member of the SCA and the Constitutional Court.

The JSC owes the nation an explanation.

Assuming it can explain the omission of Justice Unterhalter on rational grounds, then the legal problem remains: its inability to provide three names more than the vacancies so advertised should have compelled it to find that the entire process had to recommence with a fresh advert and subsequent interviews.

The point of this is not about the individual candidature of Justice Unterhalter. It is about the JSC staying within its constitutional lane. For the second time in two months, it has failed to so do. DM

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