PODCAST | The Story: The increasing politicisation of judicial appointments

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Judge David Unterhalter.
Judge David Unterhalter.
Theana Breugem
  • On Monday, the Judicial Service Commission (JSC) recommended the same candidates as they had originally put forward for appointment as judges to the Constitutional Court.
  • After a legal challenge by CASAC, the high court ordered a rerun of the JSC's April interviews.
  • But, for a second time, two top legal minds, Judge David Unterhalter and advocate Alan Dodson, were excluded from the shortlist of candidates. 

Two internationally renowned legal minds, Judge David Unterhalter and advocate Alan Dodson did not make the candidate shortlist for possible appointment to the Constitutional Court.

What counted against them, it seemed, was the colour of their skin. Both are white males. 

On this week's episode of The Story, we speak to specialist legal journalist for News24, Karyn Maughan, about the politicised nature of the judicial selection process. We also talk to Nicole Fritz, CEO of Freedom Under Law, about what precisely the Judicial Service Commission (JSC) is looking for, and whether there has been enough transformation on the bench, in terms of race and gender. 

The Council for the Advancement of the SA Constitution (CASAC) challenged the legality, rationality and constitutionality of the JSC's April process after obtaining the deliberations that informed the shortlisting of the five candidates.

Maughan said: "It emerged during those deliberations, that essentially Chief Justice Mogoeng Mogoeng had come with a pre-written list to those deliberations and basically informed the JSC members that these were the people that they should select."

She said there was very little "deliberative process" and some of the candidates had been subjected to "extremely politicised attacks". 

But despite a rerun of interviews, the JSC recommended the same candidates as before.

Maughan said a number of the people who made the shortlist were "excellent in the interviews", but she believed Judge Bashier Vally was the weakest of the candidates and "did not display a massively judicial temperament during his interviews".

During advocate Alan Dodson's interview, advocate Dali Mpofu said one of the obstacles Dodson faced in being appointed to the Constitutional Court was that he was a white male and that this was "the elephant in the room".

READ | Serjeant at the Bar: Streaks ahead, yet Judge David Unterhalter didn't make it... again

Maughan believes the inclusion of Vally in favour of the two white males created the impression that Unterhalter and Dodson were excluded based on their race and gender.

Freedom Under Law CEO Nicole Fritz, said it's unclear what criteria the JSC was looking for.

She said there had been attempts to have the JSC articulate what that should be. Fritz believed transformation "is not exhausted by consideration of demographics, that those appointed need to be able to embody a jurisprudential vision and lived experience that reflects a commitment to justice, to socio-economic transformation".

Fritz added that the bench should "reflect the composition of South Africa broadly, that it looks like the people of South Africa".

She said the 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. We know that they were fairly egregious demonstrations on the part of the JSC that it was not conducting the process in the way that it should," she told News24.

She added:

One of the most egregious instances was in respect of Judge Dhaya Pillay, and she, in fact, has not made herself available for consideration this round. So of the seven candidates, only two were women, and one has narrowed the pool of women who might be considered for appointment to the highest court, I think, as a result of the conduct of the JSC last time round. And I think it is a very stark underlining that when constitutional bodies such as the JSC fail to perform their functions, fail to discharge their functions properly, the harm cannot necessarily be repaired, even if that process is rerun.

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