A waggish colleague of mine made the following sage but sad “3-rule observation”:
There’s a Yiddish saying to describe this: bittere gelegte, a joke, but one that’s not funny.
By all accounts the members of the Judicial Service Commission (JSC) were respectful to the other two white, male candidates for the two vacant positions on the ConCourt. And yet when David Unterhalter was interviewed the nonsense started again.
Advocate K Pillay SC wanted to know of him why he hadn’t mentored more female advocates than the six he had. Commissioners Pillay and Kathleen Matolo-Dlepu said it was insufficient.
Then he was grilled on a ConCourt application in which he had sat. It turned out that Unterhalter had ruled in this matter in the Supreme Court of Appeal. High Court. Unterhalter said that due to the volume of matters that have to be dealt with in the High Court he hadn’t realized that this is what had happened. Julius Malema chose not to understand that mistakes like this can happen.
The result? Four people were recommended for the two ConCourt positions – two black women and two white men. The latter did not include Unterhalter.
The president has to be given three names more than the number of positions available. So two positions would require five recommendations. The JSC decided not to recommend Unterhalter even though there were only five people applying for the posts. The result is that only one position can be filled; the other remains vacant. Rule 3 is confirmed.
Sara Gon
Institute of Race Relations
