The JSC bus smash

Jeremy Gordin on what is left unsaid in the criticism of David Unterhalter's non-appointment to the ConCourt

“No reason to get excited,” the thief, he kindly spoke.
“There are many here among us who feel that life is but a joke,
But you and I, we’ve been through that, and this is not our fate.
So let us not talk falsely now, the hour is getting late”.

All Along the Watchtower, Bob Dylan, 1968.

Have you read Franz Kafka’s (incomplete) long short story, The Burrow [i] ?

The narrator is a badger-like creature (a mole, perhaps) who’s struggling feverishly to secure the burrow that he’s excavated – because he (she?) constantly fears that his enemies (unspecified) will find, attack, and destroy him.

I woke this morning thinking about The Burrow but not, I think, because I’m feeling more paranoid than usual. I’ve been sleeping in a room at the back of the house because the mattress there is kinder to my wrecked spine, and the room is also better insulated against light and noise than the main bedroom. So, it was these lines from The Burrow that I woke thinking about: “...[T]he most beautiful thing about my burrow is the stillness” [ii].

Not surprising. During these days of Covid, notwithstanding having been inoculated, one tends to live in semi-purdah, not going out much and not seeing as many folks as previously, and the streets, shops and coffee bars are also quieter than before.

But, besides the effects of Covid, there also exists, it seems to me, an ominous and unkind quietude (like that experienced by the narrator of The Burrow) – i.e., the silence of things not said or heard – brought about by the content of much of the public discourse one encounters.

Consider, for example, civil society’s response to the behaviour of the Judicial Service Commission (JSC). I wrote about this matter last week, about the inexcusable exclusion of Judge David Unterhalter from the ConCourt shortlist. It has provoked widespread outrage across the more politically correct pro-transformation side of our media, with even Eusebius McKaiser expressing his disquiet over the matter.

And yet one senses a struggle by these commentators to find a firm historical or principled footing on which to ground their sense of outrage. For example, advocate Nicole Fritz, CEO of Freedom Under Law, and upcoming chief of the Helen Suzman Foundation, said on October 9 that “transformation of the bench had been profound, but gender transformation remained a problem. ‘This is one of the great sadnesses about this round. In the April round there were eight candidates who were interviewed by the JSC. Of those eight, three were women ...”

Then on Tuesday, Fritz, on Twitter, responded to Franny Rabkin (another usually excellent legal mind) regarding an essay written on New Frame by Niren Tolsi, “JSC lets politics trump conscience and excellence”.

Rabkin quoted a part of Tolsi’s article: “The project suggests an inclusive generosity of spirit – not without myriad problems and evident contemporary failings – also inherent in the Constitution”. This “is so very good,” Fritz tweeted (presumably about all or much of Tolsi’s article, not just that quote), “[t]aking us beyond the crude race debate that reflections on this round of CC interviews seem to devolve into and having us more thoughtfully engage with what is playing out, and what we should want to be playing out ...”

Though it’s way too long and over-gentle, overall Tolsi’s article is sensible and critical of the JSC. And yet he suggests that Unterhalter’s non-nomination was somehow in breach of the “the broader national project that South Africa embarked on in 1994: one of inclusivity in diversity”.

Tolsi writes, “It was a rainbow nationalist project that, as the scholar Mahmood Mamdani observes ... sought to bring apartheid’s violent perpetrators and its victims into the same political community by reconfiguring both as survivors.

“... South Africans ‘attempted to decolonise’, Mamdani observes, ‘by thinking anew their political relation to each other: not as others or rivals but as equals in law’. .... The project suggests an inclusive generosity of spirit – not without myriad problems and evident contemporary failings – also inherent in the Constitution.”

Here he is quoting Mahmood Mamdani’s book, Neither Settler Nor NativeThe Making and Unmaking of Permanent Minorities. I have, as it happens, and for my sins, read the book or large swathes of it.

Every academic and his doggy thinks Mamdani is the greatest thing since Shakespeare; he writes well; he’s experienced; he’s apparently read more books than you and I ever will; he’s probably taught in more universities than I’ve heard of; and so forth. His book is already being widely taught in universities, and will no doubt shape international perceptions of South Africa for years to come.

But though Mamdani is very seductive his thesis is based on nothing but a candy floss fantasy whipped up from nothing but sweet wishful thinking. Take the judiciary. The final 1996 constitution expanded the Judicial Services Committee to give (ANC) political appointees much greater say over the appointment of judges. While the relevant constitutional provisions contain a reference to race and gender representivity, they contain no countervailing references to specific qualifications, experience, skill or the notion of individual merit.

In May 1998 Justice Minister Dullah Omar declared in parliament that, as with all other spheres of life, it was “imperative that the JSC consciously and deliberately embark upon a programme which will transform our courts, so as to make them [demographically] representative in the shortest possible period of time”.

This meant in practice that while white men may have made up a majority of those with the necessary skill and qualifications to sit on the bench, the ANC’s declared goal was now that white people would now be limited to their very limited percentage of the overall population of the country. In October 1998, an ANC caucus asserted itself on the JSC and since then its primary goal turned towards ensuring the ANC’s political and racial objectives were met. The JSC subsequently became notorious for knocking back applications from top white advocates foolish or impertinent enough to apply for positions to the bench, though some were allowed to slip through.

As far as the Constitutional Court has been concerned – where the President chooses from a shortlist of four candidates – the ANC’s refusal to appoint the best candidates (of all colours) has been a problem for decades. Part of the background to this is covered in an article written by James Myburgh in August 2008, “The great ConCourt mystery”. Discussing why South Africa’s top legal minds seemed reluctant to apply for spots on the ConCourt bench, Myburgh wrote (in 2008!): “Over the course of his presidency [Thabo] Mbeki’s appointments to the Constitutional Court were characterised by ‘negative selection.’ As under Communist systems ‘ideological, organisational, and personal loyalty’ were preferred over competence, and independent-mindedness”.

In the interregnum between Mbeki’s departure and Zuma’s re-capture of the levers of power (including the JSC) some good uns’ did slip through to the Constitutional Court. But under Zuma it soon was back to more of the same, but much worse.

Unterhalter and Dodson thus join a long list of highly qualified people who should have been appointed to the ConCourt but were not. What then is so different this time?

In the past Mbeki and Zuma could be relied upon not to appoint the best candidates, so meritorious candidates were allowed onto the four-person shortlist in the knowledge that the President could be relied upon to do the wrong thing. Ramaphosa, however, is more likely to appoint judges on merit but in his usual lackadaisical fashion failed to get his own people onto the JSC, despite having had ample time to do so.

The ANC RET-EFF faction still in control of the JSC could not rely on him not to appoint Unterhalter to the ConCourt, and so he had to be excluded at the shortlisting stage. Added to this is the fact that there are now no white South Africans left on the Constitutional Court and so the old “representivity” excuse used previously to block such appointments no longer applies [iii].

The point is that in excluding Unterhalter the bus was continuing in the same direction it has been travelling on for some two decades. Much of the recent criticism is that it did not stop where it was supposed to. But when you remove the brakes at the start of your journey what do you expect will happen at the end of it?

What part of this sad story don’t people understand? Why the eerie silence about what is as clear as a bus crash at the side of the highway? 


[i] “Der Bau,” trans. Willa and Edwin Muir, in The Complete Stories by Franz Kafka (NY: Schocken, 1972), pp. 325-59. Kafka worked on the story some months before he died of TB just short of his 41st birthday – and Philip Roth, though calling the story “exquisitely tedious,” has hailed it as a major clue to Kafka’s state of mind during his final days. Usually, The Burrow is “explained” as a depiction of a kind of persecution complex.

[ii] Though, this being a Kafka story, it does continue as follows (as I carefully note, for you and me): “Of course, that is deceptive. At any moment it may be shattered and then all will be over.”

[iii] Though technically, while white males only make up about 4% of the population, appointing Unterhalter to the bench would mean that this category made up 9% of the ConCourt. (This is just a little joke, by the way.)