What is going on with the JSC?

Jeremy writes on the inexcusable exclusion of David Unterhalter from the ConCourt shortlist

I’ve been trying hard all day to remember a movie, presumably a horror movie of some sort, in which human heads exploded (or imploded) into fire – you saw the flesh in flames for a second, as though napalm had gone off inside the head – and within seconds each head became a fleshless skull, which was nonetheless “alive,” i.e., it still talked, or jabbered.

But I can’t recall the name of the movie or what it was about (if anything). Still, the image remains with me and it’s one I have in mind regarding the Judicial Services Commission’s recent exclusion of Gauteng high court judge David Unterhalter from its shortlist for the Constitutional Court bench.

You pretty much know the story, yes? The JSC was forced to rerun, just a few days ago, its controversial April 2021 Constitutional Court interview process, after the Council for the Advancement of the SA Constitution (Casac) legally challenged the lawfulness and rationality of the April proceedings.

Just so that we stick to comprehensible English, by the way, questionable lawfulness and rationality means that in April judges had been bullied, asked inappropriate questions, had to listen to bizarre interpolations [i], and then were excluded from the shortlist on irrelevant grounds. 

Be this as it may, the JSC went ahead a few days ago with round two – and produced exactly the same shortlist as it had in April [ii] – two of whom will be chosen by President Cyril Ramaphosa to fill two vacancies at the Concourt: Acting Concourt justice Rammaka Mathopo, former Free State judge president Mohube Molemela, and High Court judges Jody Kollapen, Fayeeza Kathree-Setiloane and Bashier Vally.

“To some [legal] practitioners,” Business Day has written in an Editorial, Unterhalter’s “exclusion was scandalous, ... considering his pedigree as a jurist and scholar,” as was the exclusion of silk Alan Dodson, and this “has triggered cries in some legal circles that identity politics have trumped merit”; and the Editorial went on to say that “[c]onsequently, the JSC’s credibility and judgment remain in question”.

In a piece in Daily Maverick , Ferial Haffajee said much the same: “This means that non-racialism is kaput in practice but still stands as a philosophical [iii] key pillar of the Constitution. Like many other countries, we are ensnared in the politics of identity as a motivational force.” [iv]

What, by the way, is identity politics? According to Wikipedia, “Identity politics is a political approach wherein people of a particular gender, religion, race, social background, class or other identifying factors, develop political agendas that are based upon theoretical interacting systems of oppression that may affect their lives and come from their various identities.”

Okay, sure. But, once more in the interests of comprehensible English (I get confused by euphemisms and jargon), can’t we simply call a spade a spade? (Or given the slang usage of spade from my day, let’s rather call a shovel a shovel.) Personally, I prefer Haffajee’s remark: “The [ANC] is in the thrall of black African nationalism ...”

So what, I ask myself, is going on here? Are we dealing with black nationalism or rather populism? Yes, we are (with a little soupçon of anti-Semitism [v] thrown in for good measure). You don’t have to take my word for it.

According to Karyn Maughan, EFF leader Julius Malema told Unterhalter that, while he recognised Unterhalter was a “very good” candidate, when it came to the “transformation agenda, you don't fit that purpose”. Malema asked Unterhalter: “Would I be wrong to consider a black male over you?”

And during Dodson’s interview, the learned Dali Mpofu SC stressed that one of the three “ostensible disadvantages” Dodson had in relation to his prospects of being appointed to the Concourt was that “you are a white male, and nobody seems to be talking about that, that’s the elephant in the room”.

But I would guess that if you asked Malema or Mpofu or any of the others on the JSC, you might be told that some of their best friends are white (even Jewish) – and some might even be telling “the truth”.

I want to suggest therefore that we’re (also) talking here about an attitude, a mindset, that (for want of a better phrase) “extends beyond” black African populism, even while it contains it. It’s perhaps never consciously articulated, even among its adherents, but it’s there, nonetheless.

If the political party at the centre of everything in SA, the ANC – and for many it’s more than a political party, it’s a popular way of life (the only popular way of life) – if the ANC is so patently useless at government and administration, which it is, if the ANC has destroyed the economy and the fabric of the commonweal, which it has, and if the ANC has so cruelly and remorselessly ripped off those it’s supposed to serve (the poor and vulnerable [vi]), which it has, what has it got left to offer?

Well, it can claim that at least it’s out there batting for the black person. Example? It’s making damn sure that it’s not going to let any smartass whiteys – the very smartassedness of whom is ipso facto irksome for black people – on to the bench of the country’s apex court. That’s ours; and we’re going to keep it that way.

Let me try to put it another, less abstract, way.

Avoiding for the moment names such as “the Zuma faction” or the “RET faction” – there are, I think, more people than we realise in what I’ll call the “old guard,” and they are probably more troubled than we realise by Ramaphosa’s ostensible push on corruption. Those who would have been previously untouchable, Jacob Zuma, Ace Magashule, Zweli Mkhize, etc., have all been “touched” – and today, for example, National Police Commissioner Khehla Sitole was suspended, and his deputy is on special leave.

In such a situation, the concept of meritocracy in the courts becomes an unnecessary frippery; meritocracy, shmeritocracy. What is needed by those who might well be “touched” in the future are magistrates and judges who will find in their favour, not necessarily because they are “captured” (though this helps) but because they will find it – they do find it – extremely difficult to see out from under the ideological tarpaulin they’ve been sharing with the touched ones for all these years. 

In short then, that smiling and beneficent face presented by Ramaphosa is the face of the ANC that we see. But we all need to realise that the true face of the ANC is a rotting and corrupt skull – like the ones I saw in that movie – and that this latest JSC interview process has afforded us a clear view of it.


[i] Outgoing Chief Justice Mogoeng Mogoeng, who chaired the April interviews, suddenly had a remarkable attack of memory from some years before, which put an end to Judge Dhaya Pillay’s hopes of sitting on the Concourt bench.

[ii] According to Karyn Maughan, writing on News24, “The JSC insisted it did not seek to defend that [April] interview process because it wanted to ensure President Cyril Ramaphosa would be able to make much-needed permanent appointments to the apex court, which will soon have five vacancies”. In other words, being good and upstanding citizens, the needs of apex court were foremost in their minds – nothing else.

[iii] I thought it was a key legal pillar ...

[iv] Though Haffajee, being Haffajee (or maybe it’s a case of the DM being the DM), made certain to “balance” her report on the Unterhalter issue by accusing the DA of also playing race politics in Cape Town.

[v] Haffajee remarked in her article that “this time, at least, the JSC avoided asking anti-Semitic questions of the Jewish judge [Unterhalter]”.

Odd comment, because JSC commissioner Advocate Thandazani Madonsela, one of Ramaphosa’s candidates on the JSC (!), persistently asked Unterhalter – now, in October – about his connection with the SA Jewish Board of Deputies (SAJBD), from which Unterhalter had resigned some time ago. In April, Unterhalter had similarly been interrogated about his association with the SAJBD – an elected representative body of the Jewish community, which serves to protect the Jewish community from public attacks and coordinates various charitable and welfare projects – after Unterhalter’s candidacy was opposed by the South African Boycott Divestment Sanctions Coalition and the Black Lawyers Association.

Don’t know about you, but my understanding is that if it walks like a duck, quacks like a duck, and looks like a duck ....

[vi] I almost added in here “the working class” but a giant swatch of our working class and most of our potential working class are presently unemployed.