‘Perplexing’: JSC’s 5th rejection of Judge Unterhalter sparks controversy

The overlooking of widely respected High Court Judge David Unterhalter by the Judicial Service Commission (JSC) for a spot on the bench in the Supreme Court of Appeal has brought the JSC process into question.

After two days of interviews, the JSC announced that Judges Fayeeza Kathree-Setiloane and Shane Kgoele would be recommended to President Cyril Ramaphosa for permanent appointment to the SCA where two seats remain open.

It marked Unterhalter’s fifth rejection by the JSC to an appellate bench, with the legal fraternity yesterday expressing unhappiness about the process.

Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, described as “perplexing” the JSC’s decision not to recommend four candidates for appointment to the SCA.

“All candidates interviewed were suitably qualified for appointment, yet the JSC has chosen to keep the vacancies open with no reasons provided.

“It is not clear why any of the other candidates were not recommended,” said Naidoo.

While the JSC interview process has improved in the last year and is now less confrontational, “other aspects of the process remain deeply flawed”, he said.

“The deliberations and decision-making continue to be shrouded in secrecy, leaving the perception that extraneous factors and improper influence may steer its decisions.

“The JSC should provide reasons for its decisions, with transparency becoming a norm, so that the it can be held accountable for its decisions.”

Alison Tilley, coordinator of Judges Matter – a campaign of the Democratic Governance and Rights Unit at the University of Cape Town – expressed disappointment.

“There were appointable and very good candidates who were not appointed.

“Obviously, the candidate people are most aware of is Judge Unterhalter, but two other positions were also not filled.

“The SCA just lost a group of very senior judges and the delay in appointing replacements is detrimental to the court.”