Ebrahim Harvey | JSC interviews: Why affirmative action in the law is an ass

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Judge David Unterhalter is widely recognised as one of the top lawyers ever produced by South Africa.
Judge David Unterhalter is widely recognised as one of the top lawyers ever produced by South Africa.
PHOTO: Theana Breugem

The debate around the exclusion of High Court Judge David Unterhalter and Advocate Alan Dodson from the shortlist for two vacancies in the Constitutional Court has served to highlight some conceptual and procedural deficiencies. Ebrahim Harvey analyses the issue.

Regarding the critically important work of the Judicial Service Commission (JSC), a key constitutional problem is the lack of a clear and unambiguous definition for both the "transformation" of the judiciary and the criteria upon which judges are selected and appointed to the Constitutional Court. That the Constitution is regarded as the supreme law of the land to which all other legislation is ultimately subordinate is a measure of the serious nature of this deficiency.

The raging public debate after High Court Judge David Unterhalter and Advocate Alan Dodson were denied a shortlisting for appointment to the Bench of the apex court has served to highlight those conceptual and procedural deficiencies. Critical in this regard is this question: Upon which specific criteria and how was the transformation of the judiciary and the related selection of candidates for the Constitutional Court envisaged and determined, after the long apartheid nightmare of racist exclusion, denial and discrimination?

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