Despite a long-standing vacancy at the Constitutional Court, the Judicial Service Commission (JSC) will not interview for the apex court next week when it seeks to fill vacant posts across the judiciary. Instead, two candidates once widely viewed as ConCourt front-runners have thrown their hats into the ring for the Supreme Court of Appeal, South Africa’s second highest court.
Gauteng high court judges David Unterhalter and Fayeeza Kathree-Setiloane are by now old hands at JSC interviews, having been interviewed three times since April 2021 for the Constitutional Court. In the last round of interviews, Kathree-Setiloane was one of the four names recommended to President Cyril Ramaphosa for appointment but lost to Owen Rogers. Unterhalter was not one of the final four — to the consternation of many in the legal community who regard him as one of South Africa’s foremost legal minds.
The two are now widely considered in the legal community to be front-runners for two of the four vacancies at the Supreme Court of Appeal. Though the SCA is the second highest court, it shoulders the bulk of the country’s appeals from the lower courts. The workload at the SCA is known to be gruelling and its judgments give guidance to the courts below.
Through retirement, a death and elevation of its judges to the Constitutional Court, the SCA has in the past five years lost 201 years of appellate court experience, said Judges Matter’s Mbekezeli Benjamin. The court now desperately needs skills and experience.
Although Unterhalter has only been a judge for five years, he came to the bench after a long and illustrious career at the Bar, taking silk in 2002 and appearing as counsel in many seminal cases. Known as a workhorse, the list of cases he appeared in that have been published in the law reports — meaning their judgments have developed the law — runs to over 18 pages.
But his previous JSC interviews have not been smooth sailing. Commissioners, in different rounds of interviews, grilled him about whether he was seeking elevation too soon, about a brief stint on the South African Jewish Board of Deputies — a fact not mentioned in his current questionnaire — about his sitting in the Constitutional Court in a case he had already sat in at the SCA and about his record of working with black and women juniors.
However, in the most recent round of interviews, in April, there was a shift in approach by the JSC after it adopted new interview guidelines. The emphasis was on candidates’ judgments, legal knowledge and judicial philosophy. If this trend continues, it may tip the balance in Unterhalter’s favour. Likewise with Kathree-Setiloane, who is also known to work extremely hard and to be a highly competent judge.
Candidates with long legal experience include Free State judge Johannes Daffue and Eastern Cape judges John Smith and Nozuko Mjali. Daffue has been a judge since 2012 and was an attorney from 1980, later an advocate. With expertise in insolvency law, he co-authored the well-known textbook Corbett & Honey’s Quantum of Damages. But his long experience may also be a disadvantage as his age means that he would only be able to serve a further three-and-a-half years on the bench — according to comments on candidates submitted by the General Council of the Bar (GCB).
Daffue said in his questionnaire that he “actively tried to recruit black legal professionals for the advocates’ profession ... and supported the ‘buddy’ system whereby black and female juniors obtained exposure”. In the past claims like this by white candidates have been vigorously tested by commissioners.
In the most recent round of interviews, in April, there was a shift in approach by the JSC after it adopted new interview guidelines
Smith too would have only five years left on the bench, according to the GCB’s calculations. Smith’s legal background is an activist one, having been on the national executive of the National Association of Democratic Lawyers (Nadel) from 1989 into the mid-1990s. He has been practising law since 1984 and was appointed as a judge in 2010.
Mjali became a prosecutor in 1981 and was appointed a judge in 2010. She would have 11 years left on the bench, according to the GCB.
Gauteng High Court judge Nelisa Mali has been in law since 1988 when she became a public prosecutor. Appointed to the bench in 2016, she has less judicial experience than some of the other candidates. The GCB comments raised a “concern” about judgments of Mali’s that were overturned on appeal and in which Mali’s reasoning was criticised by the appeal court. She may also face questions about three judgments listed in her questionnaire that have been outstanding for longer than a year.
Two candidates are deputy judges president — senior judges in their high court divisions. Mmathebe Phatshoane is deputy judge president of the Northern Cape and has acted as deputy judge president of the Labour Appeal Court — a post that the JSC will hope to fill in this round of interviews. Appointed a judge in 2011, Phatshoane was nominated for the SCA by Gauteng deputy judge president Roland Sutherland, who sat with her on the Labour Appeal Court and praised her “intellectual grasp of the issues at stake and her ability to discern the true forensic issues”.
Zamani Nhlangulela is deputy judge president in the Mthatha high court and was appointed as judge in 2009. He would have six years left on the bench, according to the GCB. He was nominated by the Eastern Cape branch of the Black Lawyers Association and Nadel’s Mthatha branch, which praised his leadership of the Mthatha court. He might face questions about the stability of the division if he were to be elevated because the Judicial Conduct Committee has recently recommended that Eastern Cape judge president Selby Mbenenge face a Judicial Conduct Tribunal to investigate a complaint of sexual harassment.
The JSC must decide whether to endorse this recommendation and whether to advise Ramaphosa to suspend Mbenenge, which would leave the division without its leader. It is understood the “small JSC” — the JSC without its MP commissioners — is supposed to meet on this during the week.
The other SCA candidates are Mpumalanga High Court judge Maleshane Kgoele, Gauteng High Court judge Namhla Siwendu and KwaZulu-Natal High Court judge Busisiwe Masipa. The SCA candidates will be interviewed over Monday and Tuesday.
Wednesday and Thursday are scheduled for interviews for the Labour Court and Labour Appeal Court — including an interview of Edwin Molahlehi for deputy judge president of those courts. The labour courts have been without a deputy judge president for seven years.
Thursday is dedicated to candidates for the Gauteng division, with commentators saying that very strong candidates have been shortlisted, with five silks included in an overall list of seven candidates vying for four vacancies. The Gauteng list is unusual in its brevity: Gauteng interview day is usually long — often going late into the night — with many candidates. For these interviews, the JSC’s shortlisting committee pruned the nominations down significantly, shortlisting only about half the number nominated.
On Friday, the JSC will interview for the KwaZulu-Natal division — four candidates for two vacancies — and one candidate for the Limpopo division.
