David Unterhalter SC during an interview with the Judiciary Committee. (Oppa Nkosi)
Freedom Under Law (FUL) ignores High Court order for Judiciary Commission (JSC) to conduct interviews to fill two vacancies on the Supreme Court of Appeal (SCA) in April or May this year and accused them of undermining the rule of law.
The order was made by the Pretoria High Court on February 14 with the consent of the parties. This was agreed as a settlement of Part A of the application filed by FUL in October last year to challenge JSC's failure to fill vacancies as unreasonable.
Among the candidates overlooked in that appointment round was David Unterhalter SC, who is also a regular candidate for office on the nation's highest court.
On Tuesday, six days after the court order was issued, the JSC sent a letter to FUL's lawyers advising that interviews would only take place during June.
“Despite our best efforts, unfortunately it is not realistically possible to hold interviews on the dates agreed with the client in April or May 2024. , as it takes time to manage the entire process, including the interview process and the appropriate procurement associated with it.”
In a response sent to the Office of the Chief Justice on Thursday, law firm Nortons said the letter was received at about the same time the JSC published an invitation in the media stating that interviews were scheduled for June. He pointed out.
On the same day, President Cyril Ramaphosa announced the national election date of May 29. Lawyers said the election meant a change in the members serving on the committee and a reconstitution of the chamber, raising questions about whether the JSC would be able to conduct interviews in June.
The court expressed regret that the JSC, chaired by Chief Justice Raymond Zondo, could deviate from court orders without consulting the other parties in the case.
“If the Chief Justice and the JSC do not comply with the court's orders, on what basis can ordinary members of society be required to comply with the court's orders?”
“One of the roles of the JSC is to discipline judges and ensure compliance with the rule of law and ethical standards, yet the very same body acts deliberately to break agreements with its clients. It is very worrying that the government has chosen to do so in violation of the court order. ”
The letter noted that one of the reasons FUL agreed to the order was that it included a promise to expedite interviews to fill vacancies on the Court of Appeals.
The agreement also includes the JSC's commitment to invite all candidates who received 12 or more of the 23 votes in the commission's first round of voting in October to apply for the remaining vacancies on a new ballot. It was
FUL has given JSC until midday on Friday to indicate whether it will amend its position and comply with the order or risk further litigation if it does not.
“Alternatively, check whether the JSC intends to urgently approach the High Court to change the order or simply defy the order,” the newspaper wrote.
JSC did not respond to a request for comment on Friday. The Office of the Chief Justice referred a separate request for comment to the committee.
The JSC interviewed 10 candidates for the four SCA vacancies, but only appointed Justices Fayiza Kasuri-Setiloane and Mareshane Goele.
FUL, an NGO dedicated to the rule of law and the defense of the constitution, is just one of the legal sector organizations that deplored the decision. Civil society judicial watchdog group Judges Matter said this was puzzling.
The South African Constitution Promotion Council has asked the JSC to provide written reasons why it is not recommending enough candidates to fill all four posts. It said the decision suggested FUL had “chosen to prioritize the vacancy over any of the remaining candidates”. .
JSC responded that it had held two votes. In the first election, one candidate received his 19 votes and the other four each received his 12 votes. A second round was needed to resolve this tie, with one candidate receiving 20 votes less than her, one candidate receiving 12 votes less than her, and the other candidate receiving 3 votes less than his. Therefore, the committee said it could only recommend the appointment of two candidates as the remaining candidates did not have the support of half of the 23 members.
Those who did not receive enough votes in the second round were Mr Unterhalter, Judge John Smith of the Eastern Cape High Court and Judge Tina Siwendu of the Gauteng High Court.
In Part A of the challenge, FUL told the court that the process was unreasonable and the result unconstitutional. The report said that candidates found to be suitable and suitable were immediately excluded from the second round, and that commissioners appeared unable to consider whether it was advisable to leave the SCA seat vacant. It is said that
Article 174(6) of the Constitution imposes a duty on the JSC to recommend candidates for judicial appointments, and Article 165(4) imposes a duty on the JSC to ensure the effective functioning of the court.
“Ensuring the effectiveness and accessibility of the courts requires the appointment of a sufficient number of permanent judges to handle the workload of the courts. This will be accomplished by appointing competent, competent, experienced and appropriate persons as judges with a proven track record.”
Additionally, it alleges that JSC failed to provide a fair hearing to all candidates.
This particularly concerns Unterhalter.
In April 2022, in response to questioning from Commissioners Mvuzo Notiesi and Julius Malema, he admitted that he did not recuse himself when considering a constitutional application in the Supreme Court, so he will be seated at the Constitutional Court in April 2022. Any hope of getting it was gone. Appeals continue on issues involving Eskom.
The refusal came after the same applicant had refused to apply to the Supreme Court of Appeal during his representative term at the Supreme Court.
When the issue came up again in October, there was clear discomfort in the room and Unterhalter was this time reluctant to admit he had made a mistake.
Mr Malema made it clear that he did not approve Mr Unterhalter's answer. An edited transcript of the on-camera deliberation revealed that Malema claimed Mr Unterhalter was racist in a “subtle” way. They further revealed that Zondo supported his appointment to the SCA.
FUL said in court documents that it was clear that commissioners were allowed to bring disbarment claims in an unfair manner.
“Therefore, the JSC (through one or more commissioners) allowed it to reach a decision by reference to considerations that were irrelevant and contaminated the process.”
Part B of the lawsuit asks the court to declare the JSC's current selection process illegal and directs the court to draft and apply standards expected by the commissioners in their written evaluation of each candidate. I am asking you to do so.