The Council for the Advancement of the South African Constitution (Casac) has won a High Court battle which compels the Judicial Service Commission (JSC) to run fresh interviews for the country’s judges in order to allegedly “smuggle in” certain individuals to the judiciary.
Judge David Unterhalter, who represented President Cyril Ramaphosa during the Marikana Commission, is named as one of the people that Casac allegedly wants to “smuggle in”.
Unterhalter came under fire at the JSC interviews for seeking appointment to the highest court in the land with only three years’ experience on the bench when there were others who had been there for longer than him.
In his defence he told the Commission of the black and female lawyers he had taken under his wing, but that wasn’t enough to deflect questions about his privilege, as reflected by Commissioner Julius Malema:
"You sit there, with the beautiful education you got ... in three years’ time (at the bench), you come and pass ... all these people, who have gone through poverty to be where they are. You pass them and you go to the highest court. We are going to be heavily criticised to choose a white man against a black African female who has gone through the ranks, who has interviewed so well. But she doesn’t have what you have – for obvious reasons..."
Three JSC commissioners who asked for anonymity because they might be sitting in the new panel, yesterday expressed their disappointment with the Johannesburg High Court ruling and accused Casac of advancing the interests of certain individuals and not the Constitution of the country.
“We all know that some people weren’t happy that a certain judge who is a friend of a certain minister wasn’t shortlisted. This whole court case was a fightback strategy and not the advancement of our Construction,” said one commissioner. This was in reference to Judge Dhaya Pillay, who was grilled at the JSC interviews over her relationship with Public Enterprises Minister Pravin Gordhan. Pillay explained the “friendship” as dating back to the anti-apartheid struggle days.
"I have known Mr Gordhan for a long time. We are both activists from Durban and it’s hard not to know him," she said at the time.
But Commissioner Malema didn't buy that explanation. “... You are nothing but a political activist, and you don’t deserve any high office. You are factional and you are part of the Gordhan faction,” he said.
In the same vein, Chief Justice Mogoeng Mogoeng also revealed how Gordhan had allegedly approached him about how “his close friend” Judge Pillay had performed in an interview for a post at the Supreme Court of Appeal.
"Why did the minister make an effort to meet me? We are not friends. I don’t know him from anywhere except from television. Why did he make a trip to seek an audience with me to ask me: how did ‘my friend’ perform?" asked the chief justice.
Speaking on condition of anonymity, the second commissioner said their committee was expected to shortlist certain candidates not on merit but as a favour. “The record of the judges that we shortlisted speaks for itself, there was no favour to anyone but they were shortlisted on merit. This rerun is another attempt to capture the judiciary.”
The third commissioner said the whole notion that there was no proper deliberation on the shortlisted candidates was an insult to their intelligence.
“Names of the shortlisted candidates were put forward and we all agreed on them, and therefore what were we supposed to deliberate on, this is just an insult to our intelligence.
“This is a clear attempt by Casac to smuggle in certain individuals to the judiciary. We all know that some members of Casac expected Judge David Unterhalter to be shortlisted after Judge Dhaya Pillay failed to make it. JSC isn’t a platform for political favours. This is a clear attempt to capture the judiciary.”
The second name of the person who was apparently expected to be shortlisted is Advocate Alan Christopher Dodson, SC. One of the commissioners claims that Judge Unterhalter and Advocate Dodson were the least experienced candidates.
“Judge Unterhalter doesn’t even have five years’ experience and Advocate Dodson isn’t even a judge, he is still a senior counsel but we were expected to shortlist them by hook or by crook.”
Casac spokesperson, Lawson Naidoo, however, yesterday said these allegations were mischievous and unfounded.
“Any such allegations are totally unfounded and are mischievous in the extreme. They merely seek to distract from the fact that the challenge was based on rule of law principles.
“Casac challenged the unfair manner of the interviews and the total failure of the JSC to conduct any meaningful deliberations on the attributes of the candidates that were interviewed. This violated the constitutional mandate of the JSC. The JSC in tabling a settlement agreement has accepted the bona fides of Casac’s challenge,” Naidoo said.
But JSC spokesperson, Advocate Dali Mpofu, said they decided to settle with Casac to avoid unnecessary lengthy litigation that would have left the Constitutional Court with acting judges for two to three years.
“The only reason we settled isn’t of any view that they have a claim but to avoid paralysis in the Constitutional Court. It would have taken two to three years to settle the matter which means that acting judges would have been at the helm of the Constitutional Court,” Mpofu said. He, however, refused to comment on allegations that there is an attempt to “smuggle in” certain people. “It is a race agenda,” he said.
Mpofu also confirmed that Judge Unterhalter and Advocate Dodson were some of the least experienced candidates.
He echoed the words of some of the commissioners on the record of the shortlisted candidates speaking for itself.
The names of the shortlisted candidates given to Ramaphosa in April were judges Fayeeza Kathree-Setiloane, Jody Kollapen, Rammaka Mathopo, Betty Molemela and Bashier Vally.
The Sunday Independent