There has been much talk recently about the impeachment process of judges John Hlophe and Nkola Motata.
Read more in Daily Maverick: Impeachment of judges and Home Affairs cost order are crucial rule-of-law steps
An expeditious decision about two judges already found guilty of gross misconduct by the Judicial Service Commission (JSC) is extremely important to preserve the integrity of the judicial system. Both of these cases seem to have exceeded Egoli: Place of Gold as the longest-running soap opera in South Africa. The delays only reflect adversely upon our system of judicial accountability.
But far more important in the longer run is the JSC itself, an institution which has consistently failed to fulfil its core constitutional obligations.
This consistent failure imperils the future of an independent, resilient judiciary committed to the independence and transformation of the South African legal system. Take, for example, the latest own goal of the JSC.
The Counsel for the Advancement of the South African Constitution (Casac) requested reasons for the JSC filling only two of the four vacancies which had been advertised for the Supreme Court of Appeal (SCA) at its most recent meeting. At that hearing, the JSC recommended two candidates, judges Fayeeza Kathree-Setiloane and Anna Maleshane Kgoele, for appointment. It followed that a number of judges who had also applied to the JSC, in particular judges David Unterhalter, Thina Siwendu, Mmathebe Phatshoane and John Smith, failed to be appointed even though there were two additional vacancies.
The JSC has responded to Casac and provided a textbook case of irrationality in its attempt to justify its decisions.
The reasons inform us that the Deputy President of the SCA, Judge Xola Petse, outlined the needs of the SCA. He told the JSC that with recent retirements from the court, it had lost some 200 years of experience. He then motivated for four candidates to be appointed by reference to their experience and expertise.
Let us leave aside Judge Kathree-Setiloane. While the JSC reasons might have over-egged the justificatory pudding by saying she was considered “to be an outstanding candidate” (that description surely belonged to Judge Unterhalter), there is no question that she is a very competent judge who will add to the expertise on SCA.
Judge Kgoele apparently was appointed because she was “considered to qualify for elevation based on her writing abilities, the symbolism of her appointment from a transformation perspective and her experience in general areas of law”. By contrast, her interview revealed gaping holes in her legal knowledge. It is difficult to understand how her writing abilities were superior to those of any of the candidates who were not appointed.
The argument that there was symbolism from a transformation perspective conveniently elides over the fact that in at least two cases (judges Phatshoane and Siwendu) the same symbolism would have been achieved by their appointment.
Then we are told that initially, one candidate (clearly Judge Kathree-Setiloane) obtained 19 votes and four candidates (unspecified) each obtained 12 votes. Since only four candidates could be appointed, it was resolved to conduct a second round of voting. Judge Kathree-Setiloane then obtained 20 votes. But only one of the other four secured the necessary 12 votes… Another candidate obtained 11 votes, one short of the required minimum.
It is extremely difficult to understand how commissioners at the JSC would vote for a candidate to be appointed and then change their mind and decide they were not sufficiently qualified. The upshot was that three of the four judges who initially received 12 votes were suddenly relegated.
To make the explanation more problematic were the JSC reasons insofar as Judge Unterhalter was concerned. He was an excellent judge who had acquired appellate experience at the Constitutional Court, Competition Appeal Court and the SCA. His judgments had been praised for their erudition and insightfulness and as the JSC needed “heavy litigators and lawyers of substance”, Judge Unterhalter qualifies as one. He had been allocated more than his fair share of judgments while at the SCA.
In disgraceful unsubstantiated terms, it was then asserted, “Some commissioners stated that Judge Unterhalter was not a team player who appears to be arrogant and even racist.”
In fairness, other commissioners felt that these allegations were without substance or basis. Sadly, the JSC, which has a recent history of ensuring that distinguished judges are smeared without any substance (take the case of Judge President Dunstan Mlambo when he applied for the post of Chief Justice), has again, in the case of some commissioners, repeated the calumny.
In short, the reasons provided by the JSC for appointing only two judges when there were four advertised posts are risible. This is a decision which can only weaken the SCA, in particular, and the judiciary, in general. Apart from the smear on Judge Unterhalter, the arguments that Judge Phatshoane was a great prospect but her elevation to the SCA would be premature, or that Judge Smith did not have sufficient experience as an appellate judge (notwithstanding having sat in the SCA and the Labour Appeal Court as an acting judge) or that Judge Siwendu had only been a judge for some six years (very little difference from Judge Kgoele) reveal a palpable lack of justification.
It appears that this decision of the JSC will be taken on review. This columnist remains unconvinced that a review application is particularly helpful. Even if successful, a court would doubtless not substitute the decision of the JSC but would remit it for further consideration. Given the present composition of the JSC, it is highly unlikely that any change other than supplementation of reasons will result. In the case of Judge Unterhalter, it is impossible to see how the stench of an unjustified smear can be cleansed — a truly awful consequence.
The fundamental answer to the overall problem is the reconstitution of the JSC. In particular, legal NGOs should be advocating strenuously for amending section 178 of the Constitution to ensure a reduction of the number of members of the JSC, with fewer politicians to sit thereon and consideration of a smaller, representative body which will apply itself fastidiously to justifiable reasons for appointments or non-appointments.
The JSC explanation of its latest decision is exhibit A in the case for constitutional amendment. Regrettably, a review of any one decision, even one as lacking in rationality as the latest JSC offering, and one that has, among other flaws, the irrational rejection of black women judges who merit elevation, can only serve as a Band-Aid. DM