Last week saw a marathon sitting of the Judicial Service Commission (JSC) in order to interview candidates for appointment to South Africa’s various courts. All eyes however were likely drawn to the first day’s proceedings when the JSC interviewed candidates for appointment to South Africa’s highest court – a process it was forced to undertake a second time after the Council for the Advancement of the South African Constitution (CASAC) had challenged the earlier April interviews on the basis that these and their outcomes were procedurally unfair and unlawful.
But while the conduct and demeanour of the JSC at the Monday interviews was plainly different from that on display during the April interviews, this rerun of the process produced the very same outcomes: the same five names were shortlisted and forwarded to the President for him to make a selection of two for appointment to the Constitutional Court.
That the previously defective process produced the very same result as Monday does not on its own mean we should dispute these latest proceedings. And it must be said at the outset that several on that shortlist of five are entirely deserving of their positions.
If you were watching the proceedings you could’t not to be struck by the considerable talents of those who made themselves available for appointment. There were moments too of poignancy. Judge Jody Kollapen lyrically referenced his parents, a waiter and a seamstress, and remarked that it would have been impossible to imagine growing up that he would one day be offered the opportunity of ascending to South Africa’s highest court.
That is true of the majority of those who made themselves available on Monday, underlining that even in appointing those tasked to realise justice in South Africa today there is a justice to be served.
It is a peculiarly South African reminder, making us marvel at our journey but also leaving us queasy – for the extensive suffering and hardship that apartheid imposed but also for the inordinate loss it inflicted by depriving this country of so much talent and skill.
And it is for the exclusion of talent and skills that we should be most concerned about Monday’s proceedings. For a start, one of the original eight candidates interviewed in April chose not to make herself available for Monday’s proceedings. The treatment to which Judge Dhaya Pillay was subject in April was so egregious – including that the Chief Justice put to her a version of events which seemed designed only to politically impugn her and to which she could not possibly be fairly expected to respond – that it is perfectly understandable if she chose to exempt herself for this reason. But her absence was an important underlining that when constitutional bodies fail to discharge their functions properly, as was the case of the JSC in April, harms cannot always be undone.
Pillay’s absence also meant that a potential pool of three female candidates from which new appointments to the Constitutional Court might be made was whittled down to two.
However it is the exclusion of David Unterhalter (to whom I was once, long ago, briefly married) and Alan Dodson from the shortlist ultimately compiled by the JSC that has invited most criticism. That is particularly so when referenced against the almost inexplicable inclusion of Judge Bashier Vally who seemed to show at every turn his unfitness for elevation to our highest court – demonstrating irascibility towards commissioners, discourtesy to his judicial peers, and blame of his subordinates.
That interview performance and subsequent inclusion made it appear that the JSC would have preferred any candidate, bar another white male, over Dodson and Unterhalter.
Neither Dodson nor Unterhalter is just any candidate. Both have had exceptionally distinguished legal careers, serving respectively on internationally appointed bodies concerned for land and property disputes and international trade disputes. That neither man’s resume seemed worth putting before the President, that their expertise and skills should be thought of little significance to the Court, seems extraordinary.
I am conscious that discussions of this sort can be heard to suggest that it is white men who offer the intellectual acumen and rigour and Black candidates and women who offer the other attributes we might want on the bench: most significantly an ability to represent all in our society and the ability to meaningfully relate to and reflect the lived experiences and circumstances in which so many South Africans find themselves. The divide is false as is any sense that in making appointments to the bench, whether at the Constitutional Court or lower court level, we need too make a choice between commitment to transformation and legal skill and expertise. The history of our country and indeed our highest court prove that white men have no monopoly on intellectualism, on black letter law, on legal interpretation.
But the opposite must also be true: that white men can embody a jurisprudential vision that will allow meaningful transformation and the realisation of the rights and values enshrined in our Constitution in the deepest, most impactful way.
South Africa’s Constitution enjoins that we are “united in our diversity”. What does that mean when we appoint men and women to our highest court, the ultimate guardian of that constitution. There have been few times in our country when it has seemed so important to seriously grapple with this question. The President has yet to make his pick of the two Constitutional Court judges from the shortlist of five. The JSC will very soon likely have to compile a further shortlist for him when Judges Khampepe and Jafta officially retire. And if the next chief justice is appointed from the ranks of already sitting Constitutional Court judges, there will be a further vacancy.
That is five of eleven seats on the Constitutional Court that potentially stand to be newly filled. It represents a potential reshaping of the Court. There is ample opportunity to we make available to the Court the greatest possible array of strengths, expertise and experience.
It is worth remembering that the Constitutional Court in its initial iterations was universally acclaimed here and abroad and while there were many judicial superstars on the Court, the undisputed star was the Court itself – the interplay and cohering of a diverse set of jurists and their very rich array of expertise, skills, life experience and attributes.
We must look to ensure that this is again true.