In a major development regarding the selection of judges, the Judicial Service Commission (JSC) has agreed to rerun interviews for the Constitutional Court judges, following a challenge from the Council for the Advancement of the SA Constitution (Casac).
City Press reported last week that the two parties, Casac and the JSC, were upbeat on the possibility of an out-of-court settlement after the JSC received legal advice that it had erred in failing to deliberate on the performance of all the candidates following the interview process in April.
READ: Drama over new judges
In a statement on Thursday, Casac said the recommended shortlist of candidates submitted by the JSC to the president in April was to be set aside and fresh interviews for those candidates for the Constitutional Court would now be conducted. A draft settlement agreement to this effect had been submitted to the high court, to be made an order of court.
Interview records showed that the commission had only deliberated on the shortlist of five candidates who were recommended by Chief Justice Mogoeng Mogoeng. On Friday, JSC members were asked for their legal opinions and there was consensus that the commission should appeal to Casac for a settlement – others were even willing to entertain the option that the interview process be restarted.
But the optimism turned into a damp squib as the JSC offer failed to meet Casac’s demand that the entire process be nullified and the interviews restarted. However, agreement has since been reached on the issue.
“The key to Casac’s argument is that the entire process was flawed and should be set aside,” said a source with close knowledge of the developments. The civil society group was also opposed to “the political questions” that commissioners such as EFF leader Julius Malema put to prospective candidates.
Casac sought an order declaring the decision to shortlist five candidates to be invalid and set aside. The names of judge Fayeeza Kathree-Setiloane, Judge Jody Kollapen, Judge Rammaka Mathopo, Judge Mahube Molemela and Judge Bashier Vally were submitted to the president for his final decision.
The interviews were mired in controversy after politics appeared to be elevated above jurisprudential merit. Some judges were subjected to relentless questioning and probed on their relationships with judges and their judgments that affected politics.
In the main, the complaints centred on the interviews of KwaZulu-Natal High Court Judge Dhaya Pillay – a friend of Public Enterprises Minister Pravin Gordhan – and Gauteng High Court Judge David Unterhalter, neither of whom made the JSC shortlist.
During the interviews, Malema and Mogoeng made much of the fact that Pillay was Gordhan’s friend and questioned her suitability as a result. Another candidate who may have suffered because of being linked to a politician was Judge Aubrey Ledwaba. He is the deputy judge president of the Pretoria High Court and was also interrogated about his judgment in which he ruled that the bank records of people who had contributed to President Cyril Ramaphosa’s CR17 campaign be sealed. Ledwaba did not make the cut.
In his founding affidavit, Casac executive secretary Lawson Naidoo said: “The interviews are not a platform for party politics; they are not there for the JSC to investigate and evaluate complaints against judges; and they are not there to give commissioners a chance to quibble with judgments they lost as litigants.
“Nor do they exist to enable individual commissioners to ventilate grudges against judges… Party political considerations and political agendas should play no role in the JSC’s decisions and processes. The JSC’s obligation to guard its independence – and, through it, the judiciary’s independence – rests on each individual commissioner as well as the JSC’s chairperson, who has ultimate responsibility to control the conduct of meetings, interviews and deliberations.”