JSC interviews: Two judges recommended to SCA, other vacancies left open

The Judicial Service Commission (JSC) has decided to only recommend the appointment of two judges to the Supreme Court of Appeal (SCA).

The JSC has been conducting interviews for vacancies in various courts across the country including the SCA.

The commission initially advertised five vacant positions for the appellate court earlier in the year, but one post was later withdrawn.

Unterhalter snubbed

For two days, the JSC interviewed 11 candidates, including Judge David Unterhalter, in Sandton this week.

However, it only recommended the appointments of judges Fayeeza Kathree-Setiloane and Maleshane Kgoele to the SCA after nearly four hours of deliberation.

The JSC’s decision leaves two other vacancies open, and Unterhalter with another unsuccessful interview.

Unterhalter was cut from a shortlist of candidates vying for appointment to the Constitutional Court (ConCourt) in 2022.

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He was again snubbed for a position in the country’s highest court in April this year.

The Gauteng High Court judge had previously come under scrutiny for not recusing himself in a decision to dismiss a leave to appeal application by the ConCourt, where he was acting at the time.

This is despite Unterhalter having sat over the same case at the SCA, with the judge admitting it was an “error” on his part.

The matter dominated the judge’s interview again on Tuesday after Economic Freedom Fighters (EFF) leader and JSC commissioner Julius Malema questioned him about it.

Watch the interviews below:

Unterhalter, however, made a U-turn on his initial explanation, saying he did not believe that it was a mistake in law.

“It’s a contentious issue, certainly, but I think that because the nature of the test that is applicable for the purposes of determining appeal in the Supreme Court of Appeal and the test applicable for an appeal in the Constitutional Court are not the same, and although there are certain common elements, the fundamental, overall question is quite distinctive.

“Therefore, the proposition that was put to me last time is simply not a simple proposition at all as a matter of law. But I don’t accept in the first place that it was a mistake,” he explained.

The judge also sought to provide clarity over bribery allegations against him, which he said was a result of his email being hacked.

At the end, the JSC picked Kathree-Setiloane and Kgoele, whose names will be sent to President Cyril Ramaphosa to make the final decision on their permanent appointments.

Who is Kgoele?

Kgoele, who obtained a BProc degree in 1987, is a judge of the Mpumalanga High Court.

She worked in various positions, including serving as a district prosecutor, between 1988 and 2008 before she was appointed as a judge of the North West High Court from 2009, according to Judges Matter.

Kgoele served a brief stint as Acting Deputy Judge President in the Mpumalanga High Court from July to September 2018 before her permanent appointment in 2019.

She also spent eight consecutive terms as an acting judge of the SCA from December 2020 until September 2022.

Who is Kathree-Setiloane?

Kathree-Setiloane is a judge of the Gauteng High Court in Johannesburg.

The judge has a BA and LLB degree obtained from the then-University of Natal in 1991 as well as an LLM obtained from Georgetown University in the United States (US) in 1993.

She has consistently acted as judge of the Labour Appeal Court from 2014 to 2022. She also served as an acting judge in the Competition Appeal Court from 2018 to 2022.

Kathree-Setiloane has had two acting stints in the SCA between December 2015 to June 2016, and again from December 2022 to the present day.

The judge also acted in the ConCourt from July to December 2017.