Suzman group: JSC process unlawful

2013-06-07 13:26
Jeremy Gauntlett SC (Felix Dlangamandla, Beeld)

Jeremy Gauntlett SC (Felix Dlangamandla, Beeld)

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Johannesburg - The Helen Suzman Foundation (HSF) wants the Judicial Service Commission's decision-making process, which overlooked Jeremy Gauntlett SC for a job on the Bench, declared unlawful, it said on Friday.

The foundation said that although the case in the Western Cape High Court was not about individual candidates, but about the process of decision-making and recommendations to the president, Gauntlett was central to its application.

The foundation's director, Francis Antonie, submitted in papers that after interviewing eight candidates in October 2012, the JSC advised the president to appoint justices Judith Innes Cloete, Babalwa Mantane, Mokgoatji Dolamo, Owen Rogers and Ashton Schippers as judges of the high court in Cape Town, in terms of section 174(6) of the Constitution.

It made a decision to not advise the president to appoint Nonkosi Saba, Gauntlett and Stephen Koen.
The appointments were made on 7 February this year.

Judges must be ‘fit and proper’

Retired judge Louis Harms had sent letters via his attorney to the JSC to ask why Gauntlett, who he had nominated, had not been appointed.

According to the court papers, the JSC replied that the reasons Gauntlett did not muster enough votes were: "1) Concerns or doubt as to whether he is possessed of the humility and judicial temperament; 2) The appointment of two white males would do violence to the provisions of section 174 (2) of the Constitution."

This was based on contributions made by JSC commissioners during the deliberations before voting.

The HSF's application focuses on section 174 of the Constitution, which governs the appointment of judges.

Section 174 (1) says judges must be "fit and proper" and appropriately qualified people must be appointed.

Section 174(2), states the need for the judiciary to reflect broadly the racial and gender composition of South Africa.

Section 174(6) says the president must appoint judges on the advice of the JSC.

The HSF said that although the Constitution did not explicitly give a list of factors that had to be considered when choosing a candidate to recommend for appointment, this discretion could not be "unfettered" and the JSC could not "act on whim or fancy".

It said section 174(2) served as an "affirmative action" provision to remedy imbalances in the judiciary, and to make sure the judiciary was considered legitimate by those over whom it presided.

The HSF argued that factors to consider when deciding to recommend someone, should include knowledge of law, analytical ability, confidence of the public and good temperament.

These formed part of a "basket of considerations" and the JSC was not permitted to "pick and choose".
The importance of race and gender would depend on the balance on the Bench at a particular given time, it argued.

Analysis

When making a decision, the JSC had to do so without elevating one of the factors as decisive.

With Gauntlett there was no evidence of balancing his attributes and other factors with those that counted against him, the HSF claimed.

There was also no evidence that the JSC analysed the comparative weaknesses and strengths of the candidates.

"Rather, it appears merely to have considered the race and gender of the candidates and the racial and gender composition of the WCC, decided that more than one white male could not be appointed to the WCC, and then preferred Mr Justice Rogers over Mr Gauntlett and Mr Koen in making the decision," the HSF said.

"The failure to consider all material relevant considerations in a meaningful, comprehensive, and comparative manner, tainted the entire decision-making process with unlawfulness and irrationality, thus rendering the decision unlawful and irrational."

JSC commissioner Izak Smuts left the JSC in April in a row over transformation at the commission.

JSC spokesperson Sello Chiloane confirmed that the JSC had received the HSF's application and the committee would meet to discuss it and decide how to proceed.

Rogers, who is white, was nominated unsuccessfully before, then made it to the Bench in February.
Read more on:    jsc  |  jeremy gauntlett  |  judiciary

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