RATE IT | Did the ConCourt judge nominees impress?

Five candidates were interviewed for the two vacant positions at the Constitutional Court by members of the Judicial Service Commission (JSC) on Tuesday.

Newly appointed chief justice Raymond Zondo facilitated the interviews while EFF leader Julius Malema and correctional services minister Ronald Lamola were among the commissioners who questioned the candidates. 

The candidates were advocate Alan Dodson SC, judge David Unterhalter, Gauteng High Court judge Fayeeza Kathree-Setiloane, Supreme Court of Appeal (SCA) judge Mahube Molemela and Western Cape High Court judge Owen Rogers.

The commission, comprising 23 commissioners, recommended four candidates for the positions, with only Unterhalter not making the list.

Here's a summary of how the interviews went and talking points from each candidate: 

Judicial activism — advocate Alan Dodson

Dodson said judges don't need to be judicial activists to ensure justice.

“It is well recognised that we have a transformative constitution, it is a bold constitution that makes discrimination outlawed ... What I would rather say is we have an activist constitution. As long as the judge comes to the case with the recognition that it's a transformative constitution, I don't think you need to be an activist to do justice.”

Rights of LGBTQIA+ community — Gauteng High Court judge Fayeeza Kathree-Setiloane

Kathree-Setiloane said members of the LGBTQIA+ community are also victims of gender-based violence.

She said they deserve to be treated with the same sensitivity as women who are subject to abuse and judges should be sensitive to individuals who are nonbinary, meaning those who do not wish to be referred to as he or she.  

“I think the courts have to be sensitive. It's important for the police to be sensitised on how to approach and deal with cases of people who choose a particular identity.”

Access to justice — SCA judge Mahube Molemela

Molemela said due to the code of conduct that restricts judges from involvement in extrajudicial activities, she could only advise communities to form or be part of organisations that help bring their cases to courts. 

“As a judiciary, we are reactive and it has to be that way in acknowledgment of the separation of powers. As a judge, you cannot be a member of an organisation and invite people to bring cases to the courts because when that happens you might be asked to recuse yourself. People might have formed an impression that they know where your sympathies will lie in cases of that nature.”

Gender and racial equality in the judiciary — SCA judge Owen Rogers

Rogers said while it is important for the judiciary to reflect efforts to achieve gender and racial equality, this should not come at the expense of depriving qualified individuals who may not meet these requirements. 

“When you have only 11 positions to work with, one should not be so tied down trying to achieve absolute representativity that you potentially deprive the court of people who could add more to its work.”

Working with black women — Gauteng high court judge David Unterhalter

Unterhalter was asked why, after having written about 350 judgments, he'd only worked with no more than eight black women, the majority of whom were junior. 

He told the commission he did not think it problematic and saw it as him offering them the opportunity to launch their careers, which more senior black women no longer needed due to their seniority.

“I think I took it upon myself at the black bar to involve myself with black practitioners and women and I was happy and privileged to do so. They did derive some benefit from working in these cases,” he said.