JSC refrains from explaining why it shortlisted four ConCourt candidates

The Judicial Service Commission (JSC) says it cannot disclose the reasons why it decided to cut Gauteng High Court Judge David Unterhalter from its recommendation list to President Cyril Ramaphosa.

On Tuesday night, the JSC announced that it had shortlisted four candidates for the two vacant positions at the Constitutional Court (ConCourt).

The commission interviewed five candidates – including Unterhalter – in Sandton earlier in the day.

However, Unterhalter was dropped from the list of candidates the JSC is expected to recommend to Ramaphosa for consideration.

According to Section 174(4)(a) of the Constitution, “the JSC must prepare a list of nominees with three
names more than the number of appointments to be made, and submit the list to the president.”

Four nominees – Western Cape High Court Judge Owen Rogers, Supreme Court of Appeal (SCA) Judge Mahube Molemela, Gauteng High Court judge Fayeeza Kathree-Setiloane and Advocate Alan Dodson – made the shortlist.

JSC vote

Addressing the media on Wednesday afternoon, JSC commissioner Doris Tshepe said the commission followed the judicial criteria for appointment, which was adopted in 2010, when it conducted the interviews.

On why Unterhalter was cut from the shortlist, Tshepe said the decision was taken after deliberations followed by a vote, however, she refrained from diving deeper into the matter.

“We are, at this point, not going to be engaging this matter. We have to write to the president and once we have done that all the reasons we have will be there,” she said.

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“All decisions of the Judicial Service Commission go down to a vote so that would have happened,” Tshepe added.

Expanding further on the matter, JSC spokesperson, advocate Sesi Baloyi said: “There were deliberations, decision was made by a vote [and] the submissions to the president [as well as] the report will explain how the decision was arrived at and that’s what it is. From that point the reasons will [then] become public at the appropriate time.”

‘Speculation’

Baloyi also said the JSC cannot speculate on whether Ramaphosa could reject the reasons provided on the decision or not.

“I don’t think we can assume and I don’t think it’s helpful to get into a discussion about what [the president] could do or could not do… that’s complete speculation,” she said.

The advocate further indicated that it was in Ramaphosa’s discretion and “prerogative how he chooses to deal with submissions” that has been made to him.

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Asked if the JSC did not trust the president to make a decision on the appointment, Baloyi said it was unfair to put such a statement

“Reasons have to be given to the president first. He cannot hear the reasons from the public or the media,” she said.

“Unless you’re challenging that then there is no further benefit to this question being repeated over and over. Do accept that the JSC has an obligation to give the reasons to the president before we share them with the public, and that is what will happen in this case,” Baloyi concluded.

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