Appointment of judges: ‘We should not be left to speculate’

2011-08-23 16:34

Unsatisfactory. This is how Judge Pete Koen described the Judicial Service Commission’s (JSC) explanation of its failure earlier this year to appoint two Western Cape High Court judges.

KwaZulu-Natal high court judges Koen and Fikile Mokgohloa today presided over a case in the Cape High Court against the JSC, brought by the Cape Bar Council (CBC), following the JSC’s failure to appoint judges to vacant positions on the Cape Bench on April 12. This, despite having suitably qualified candidates endorsed by the Cape Bar to choose from.

The JSC interviewed seven candidates for three vacant posts but appointed only Judge Robert Henney. The remaining six candidates were all white, five of them male. Although the CBC’s submissions to the court avoid the question of race and focus on the argument that the 25-member JSC was not properly constituted and the JSC had a constitutional duty to appoint judges if they had suitable candidates, controversy has been stirred by the JSC’s explanation of why the posts were not filled.

Friend of the court (amicus curiae) the Centre for Constitutional Rights (CFCR) – part of the De Klerk Foundation – contend that the JSC’s decision, or lack thereof, leads to speculation that none of the remaining candidates were chosen because they were white.

The only explanation provided by the JSC is that candidates were not selected because they did not receive a majority vote of 13 from the 25-member body. This, despite the president of the Supreme Court of Appeal (SCA) not being present during voting on April 12, which the CBC argues is a constitutional requirement.

Also, the JSC’s voting process has been called into question by the CFCR. It argued that the procedure involving members being allowed one vote per vacancy meant that the greater the number of candidates, the less likely it was that any one of them would achieve a majority vote.

While questioning the JSC’s advocate, Marumo Moerane, SC, Koen said: “We don’t know why the positions were left unfilled.

“We should not be left to speculate.”He said all that was known was that candidates did not achieve a majority vote, which was not satisfactory.Judgement has been reserved. – West Cape News

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