JSC members’ flawed reasoning and phoney criteria a threat to the rule of law – IRR

6 February 2024

The rule of law, and democracy in South Africa, are threatened by the flawed reasoning and phoney criteria on the part of some members of the Judicial Service Commission’s (JSC) in their deliberations on the suitability of Gauteng High Court Judge David Unterhalter as a Supreme Court of Appeal (SCA) judge.

This much is plain from the redacted transcript of the JSC’s confidential discussions last October on filling four vacancies in the SCA. The transcript was filed last week in the Pretoria High Court in the litigation between Freedom Under Law (FUL) and the JSC, and was published by the Sunday Times.

The Sunday Times reported that “FUL challenged the JSC’s decision to fill only two of four vacancies after interviewing 10 candidates and overlooking some who were widely viewed as eminently appointable, including Unterhalter”. FUL seeks an urgent order that the JSC reconvene its October meeting and “consider whether the remaining candidates are fit for appointment”.

One of the founding values in our Constitution is the supremacy of the constitution and the rule of law. The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written and publicly disclosed laws; and these laws are adopted and enforced in accordance with established procedural steps that are referred to as due process.

Why? To safeguard us against arbitrary governance, whether by a totalitarian leader or by mob rule. It is the lynchpin of democracy.

No one needs to tell us about the county’s ruination through the trashing of the rule of law. Our very liberty depends upon sustaining the rule of law.

Yet, the one body whose conduct has repeatedly contributed to the trashing of that fundamental principle is the JSC.

From the transcript of the JSC’s deliberations we learn, among other things, that in Justice Minister Ronald Lamola’s view, Judge Unterhalter “tried to be too clever when it was not necessary”.

Julius Malema, in turn, accused Unterhalter of “subtle racism”. Malema said he would “never succumb to subtle racism that masquerades itself as being intelligent. I don’t agree with the minister that he was trying to be clever with us. He was being himself. A person who looks down at very senior judges because they are of a different colour”.

ANC legislator Thamsanqa Dodovu described Unterhalter as arrogant with a “sense of entitlement”. “We must deal with this arrogance, and it is on this basis that I will not support his candidature.”

IFP MP Narend Singh said while Unterhalter was “a great jurist”, he, Singh, did “not get the impression in the way that he [Unterhalter] answered today that he’s a team player”.

To their credit, some resisted introducing false criteria into the discussion. Sesi Baloyi SC said the JSC needed “to be mindful that humility and arrogance were not criteria”.

“In fact, we have many, many judges who are terribly arrogant who are on the bench but that is not a disqualifying factor … Yes, maybe if he had read the room better, he would have been more minded to be more modest,” she said. But it would not “withstand scrutiny” if this was a disqualifying criterion.

Similarly, Tembeka Ngcukaitobi SC said there was “zero” basis for saying Unterhalter was not a team player and that his colleagues “actually praise him for his collegiality”. There was no basis for the criticism of a “sense of entitlement”, “importance” or “racism”, he said.

Ngcukaitobi also noted that none of these allegations had been put to Unterhalter during his interview. “These are very, very serious charges. And if they are to be taken into account without a factual basis and without them being put to him, then this body would be acting irrationally.”

Ngcukaitobi added: “I am here to appoint judges and I am here to look at what the country needs in terms of a strong judiciary….”

Although there were four vacancies, by the time the voting finished only two vacancies had been filled, and neither of them included Unterhalter.

Unterhalter interviewed unsuccessfully for vacancies at the Constitutional Court in April 2021, October 2021, and April 2022. In the 2021 rounds, members of the JSC argued with Unterhalter over his brief membership of the executive committee of the South African Jewish Board of Deputies.

What is clear is that as long as the phoney criteria of supposed self-importance, arrogance, not being a team player, or being too clever are applied in assessing appointments to our top courts then the rule of law is in terrible danger – and so too is our democracy.

Issued by Sara Gon, IRR Head of Strategic Engagement, IRR, 6 February 2024