In Daron Acemoglu and James A Robinson’s book Why Nations Fail: The Origins of Power, Prosperity, and Poverty, they posit that prosperous societies are those with accountable institutions, both political and economic. The economics generally follow the politics, they argue. 

In societies in which institutions are extractive and serve only the narrow interests of a small elite and thus lack accountability, chances of prosperity and dealing with economic and other social challenges remain low. It’s a compelling argument backed up by reams of evidence and comparisons between countries. Creating a culture of accountability within society is an ongoing process. 

Of course, they also make the point that at various moments in history institutions become shaped, and whether countries are able to reshape institutions to become accountable and transparent depends on how they respond at critical junctures. In South Africa we are at such a critical juncture (well, we have been for a while), attempting to rebuild our institutions after almost a decade of State Capture. 

Coupled with a toxic political environment and a President who promised the rebuilding of institutions but has preferred fealty to his party rather than the best interests of the country, rebuilding institutions has been a halting and often discouraging task. We have also come to understand fully how broken our institutions are.

So, institutions matter and the Judicial Service Commission (JSC) is an important part of the accountability jigsaw. If the judiciary is to function optimally and if we are serious about protecting and defending the Constitution and the rule of law (in many parts, in tatters already), the JSC needs to lead with conviction and principle in both its appointments processes and in dealing with judicial conduct. Both of these areas have remained cause for concern.

Last week, the JSC held its second sitting of the year. Unfortunately, it was again mired in controversy.

After many years of criticism, the JSC finally appeared to have turned a corner. Controversy surrounding interviews for the Constitutional Court in 2021 (which had to be rerun when the JSC was threatened with litigation, so egregiously had the interviews been handled), for the Chief Justice position in 2022 (characterised by ambushes, sexist comments and commissioners shouting at each other), and for the Constitutional Court in 2022 (when, foreshadowing the latest controversy, the JSC ensured that only one of two vacant positions could be filled due to its refusal to recommend Judge David Unterhalter for appointment). After seeming to hit rock bottom, the JSC showed welcome signs of improvement. 

At the beginning of 2023, it introduced additional criteria and guidelines to inform the process of public interviews in the selection of candidates, and this contributed to encouraging developments where candidates who appeared before the JSC were treated more fairly and were engaged with more rigorously about core issues relating to their experience and understanding of the law. For many observers of the interviews (this writer included), criteria have long been seen as a key component to ensure that the JSC interview process improves.

Contentious events at last week’s sitting

Why, then, are we faced with a situation where the JSC’s decisions are yet again the subject of contestation and challenge? A closer look at what happened at last week’s sitting is necessary. 

The JSC sat between 2 and 6 October to interview candidates for a range of vacancies on the superior courts. Four of these vacancies were for positions on the Supreme Court of Appeal (SCA). To the surprise of many observers, it only recommended two candidates, judges Fayeeza Kathree-Setiloane and Shane Kgoele, for appointment, leaving two vacancies open. Perplexingly, this meant the JSC again rejected the candidacy of Judge David Unterhalter, who is widely regarded as one of South Africa’s top lawyers.

It may be helpful to draw a distinction between the process followed during the interviews, and the substantive decisions which followed thereafter. There were again positive aspects of the interview process. The questioning of candidates was often rigorous, and frequently engaged with candidates’ judgments and jurisprudential outlook to an extent that has been rare in the JSC’s recent history. 

The Chief Justice introduced each interview with an explanation of the criteria being followed. Candidates were not ambushed or harassed. The process was not perfect, of course. There are still many irrelevant questions put and the commission continues to struggle to keep to its scheduled time, with interviews often running way beyond allocated times.

But much of this has unfortunately been drowned out by the bewilderment at Judge Unterhalter’s omission. Described by the General Council of the Bar as having knowledge of the law that is “widely acknowledged … to be of the highest order”, and “enjoy[ing] renowned popularity as a gifted jurist and constitutional lawyer”, Judge Unterhalter’s interview demonstrated these qualities. 

While there was some debate over an incident where he had sat on the panel deciding an application for leave to appeal on both the SCA and the Constitutional Court, this was surely not sufficient basis to exclude such an eminent jurist from appointment — particularly considering that commissioners specifically commended him for being technically competent and hard working. The rejection of Judge Unterhalter sends the wrong message to aspirant candidates and also deprives the Bench of legal skills so sorely needed at the SCA. 

“This takes place in a context where many of South Africa’s state institutions have all but collapsed as a result of appointment processes which have been deeply flawed, sometimes even corrupt. The South African judiciary, which has typically stood as a bulwark against the most egregious excesses of power, can therefore ill afford to be denied the undoubted judicial qualities of top jurists at this critical juncture,” said the Freedom Under Law chair, Judge Azhar Cachalia. 

Freedom Under Law went on to say in its statement on the issue, “The SCA is South Africa’s second-highest court which demands of its judges experience and a deep knowledge across all branches of the law. During the JSC interviews this week, mention was made of the skill and experience the SCA has lost in the recent past. The JSC’s criteria and guidelines for appointing judges include the requirement that a candidate ‘must be a competent and experienced person, and must be technically competent and have the capacity to give expression to the values of the Constitution’. This applies with particular force to the appointment of judges to the appellate courts. 

“Given its refusal to fill two of the four vacancies on the SCA, questions must be raised about how the JSC is applying these criteria. Although it is invidious to single out individual candidates, it is difficult to come to a conclusion other than that irrelevant, extraneous or improper reasons were at play in the JSC’s decision not to recommend an outstanding candidate like Judge Unterhalter for appointment. The JSC’s decision to leave vacancies open, despite being presented with candidates of this quality, will further dissuade the best lawyers from applying for judgeships. The decision represents a low-water mark in the JSC’s appointments record, particularly distressing at a time when it appeared to be reassuming its proper constitutional mandate.” 

Unfortunate reflection on JSC leadership

The recent JSC process also raises serious questions about how the commission has determined that highly regarded jurists such as Judge Unterhalter are essentially unappointable. How has the JSC applied criteria and then arrived at a decision which in no way logically follows such an application? Commissioners are required to apply their minds rationally and not illogically, after all. It is also an unfortunate reflection on the leadership of the JSC that such irrational outcomes persist. The judiciary is an institution for all the people of South Africa and proper interpretation of the law is required if the rights of the most vulnerable in our society are to be protected.

The Council for the Advancement of the South African Constitution (Casac) has formally requested the JSC’s reasons for the decision to leave vacancies on the SCA open. This is a welcome move, given the need not only to gain clarity regarding what is, on the face of it, an inexplicable decision, but also to hold the JSC to account for the power it exercises on our behalf.

Towards the end of last week, Chief Justice Raymond Zondo announced that senior lawyers and academics would be considered for direct appointment to the Constitutional Court. In the early days of the ConCourt, this was not unusual. Sadly, in recent years the ConCourt has had difficulty in attracting suitable candidates. This tells us a great deal about the past interview processes, which have provided plenty of reasons for good candidates not to apply. 

The Chief Justice’s comment was followed swiftly by President Cyril Ramaphosa’s appointment of Alan Dodson SC, Matthew Chaskalson SC and Professor David Bilchitz as acting justices of the ConCourt. Dodson had previously applied for a position on the ConCourt but did not make the cut when he was interviewed in April 2022. One line of questioning was how being a white male would contribute to the transformation of the judiciary, to which Dodson replied to Julius Malema: “I am an African.” Then, however, Judge Owen Rogers (more than deservedly) made the cut while Justice Fayeeza Kathree-Setiloane did not. 

In this context, appointing these three individuals (and no women, it must be said) to act on the highest court is but a Band-Aid on the deeper challenge of a dearth of suitable candidates and the reasons behind that. This requires us to pause and think about what we mean when we say we want a “transformed” judiciary and, more importantly, how the JSC applies the founding provisions of our Constitution, specifically the values set out in section 1, which include non-racialism and non-sexism. DM