The Judicial Service Commission's shortlisting of Constitutional Court justices – during which JSC commissioner, Julius Malema, attacked Judge Dhaya Pillay for her friendship with Pravin Gordhan – is now being challenged in court.
The Council for the Advancement of the SA Constitution (Casac) on Thursday filed papers at the Johannesburg High Court, in which it challenges the constitutionality of those interviews, which saw Chief Justice Mogoeng Mogoeng actively politicising Pillay's interview – after Malema accused her of being an "activist judge", and said she was "unfit for office" because of her friendship with Gordhan.
In the closing moments of Pillay's interview, Mogoeng suddenly remembered that then finance minister Gordhan had, during an unrelated meeting, asked him how she had done in her 2016 interview for a position at the Supreme Court of Appeal.
"Is it potentially compromising to judicial independence and impartiality for a minister or a senior politician to be keenly interested in the upward mobility, or to look like he or she is interested in the upward mobility of a judge?" Mogoeng asked.
Pillay said she was not aware of the interaction, and Mogoeng acknowledged that Gordhan had simply asked how she had done, and did not say "anything like 'you should appoint her'".
Gordhan subsequently released a statement, confirming that he had asked the question at the tail-end of a scheduled meeting and that it was in no way intended to influence any pending decision on Pillay's nomination to the Appeal Court.
Casac examined this and other incidents during that Constitutional Court interview process in its far-reaching legal action, in which it argues that "the manner of questioning of some of the candidates went beyond the bounds of what is permissible to determine the fitness and propriety of the candidates".
The council stated:
Casac seeks an order that the JSC's conduct in the interviews of the Constitutional Court candidates was unlawful.
It also wants the court to rule that the JSC's decision to shortlist five candidates for President Cyril Ramaphosa's consideration is invalid and to set it aside.
Ramaphosa has yet to decide which two of the five shortlisted candidates he will appoint - and it is unclear, at this stage, what his attitude to Casac's potentially precedent-setting legal action will be.
The court action will, however, force the JSC to disclose its secret deliberations about which candidates to shortlist – and will also provide crucial insight into what informed the commission's decision to exclude Judges David Unterhalter and Pillay, and advocate Alan Dodson from its list of preferred candidates.
ALSO READ | Judges’ interviews slammed by 82 KZN advocates
Casac's executive secretary, Lawson Naidoo, makes it clear in court papers that the council has severe reservations about how the Constitutional Court interviews were conducted – particularly given the clearly politicised attacks on Pillay.
"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," he states.
"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 [Mogoeng], who has ultimate responsibility to control the conduct of meetings, interviews and deliberations."
This is a developing story.