Now that the Judicial Service Commission (JSC) has responded to the Council for the Advancement of the SA Constitution’s request for reasons for its decision not to fill four vacancies in the hard-pressed Supreme Court of Appeal (SCA), which has recently lost the talents and accumulated wisdom of 200 years of judicial experience, it is possible to divine just how far most commissioners have strayed from their mandate.
The constitutional mandate of the commission is to identify suitably qualified fit-and-proper people who can fill vacancies on the bench. When it comes to judges vying for positions in the SCA and Constitutional Court it is a matter of identifying and then choosing those capable of what the SCA leadership calls the “heavy lifting” such high office requires.
It seems some commissioners lost sight of the fact that they were weighing the merits of candidates previously identified as fit-and-proper people — those who already grace the bench in the high court.
The reasoning behind the decision to give a thumbs down to the erudite and highly experienced judge David Unterhalter based on suspected racism and elitism that was not raised with him, is utterly specious. Nonracism and equality before the law are foundational to the legal order in SA.
No judge should be tolerated if not respectful of these values. The anti-Unterhalter faction in the JSC does not have the courage to complain against him, or even confront him, thus revealing the shameful perfidy of the stance taken to thwart the career of a deserving candidate.
A mature rethink is what is required of the JSC, rather than a judicial review of the irrationality and irregularity now in evidence. The JSC does not want to find itself back down the rabbit hole that prompted the resignation of its Bar representative, Izak Smuts SC, back in 2013, after many deserving candidates were rejected by it.
May it swiftly appoint much-needed and capable talent to the SCA to do the “heavy lifting” needed in that court. The proper administration of justice depends on it.
Paul Hoffman, SC
Director, Accountability Now
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