High court rules JSC interviews must be rerun, amid threats of apex court 'crisis'

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Chief Justice Mogoeng Mogoeng.
Chief Justice Mogoeng Mogoeng.
Alet Pretorius, Gallo Images
  • A full bench of the Gauteng High Court ordered the JSC  interviews for ConCourt justices be rerun.
  • The ruling was given after Casac challenged the constitutionality of the interview and deliberation process.
  • Mpumalanga Judge President Francis Legodi questioned the commission's refusal to admit the interviews were unlawful.

The Judicial Services Commission (JSC) this morning faced tough questions about why it refused to concede that its interviews for vacancies at the Constitutional Court – which it has agreed to rerun – were unlawful.

"If they [the JSC] don't accept that they acted unlawfully, what is the basis for one to get comfort that they will change the tack, come the next interviews?" Mpumalanga Judge President Francis Legodi asked the JSC's counsel, advocate Hamilton Maenetje.

Advocate Tembeka Ngcukaitobi, for the Council for the Advancement of the SA Constitution (Casac), had earlier reiterated that it believed the process undertaken by the JSC to compile a shortlist of Constitutional Court nominees was nothing more than a "sham" defined by political grandstanding.

Serjeant at the Bar | We stand at critical point that could damage Constitutional democracy

But, he said, Casac was prepared to accept that, in agreeing to rerun the process, the JSC "should do a better job of the interviews that it did on the previous occasion" – when, among other things, EFF leader Julius Malema had been allowed to attack Kwazulu-Natal High Court Judge Dhaya Pillay over her long-standing friendship with Pravin Gordhan.

Chief Justice Mogoeng Mogoeng, without giving any required warning to Pillay, then tried to suggest that Gordhan had improperly asked him how "his friend" had fared in her 2016 interview for a position at the Supreme Court of Appeal – a claim that Gordhan comprehensively denied.

Things only got worse for Mogoeng and the JSC when the commission was forced to hand over records of its deliberations for the Constitutional Court shortlist, which revealed that that candidates had all been chosen from a pre-selected list drawn up by the Chief Justice – with virtually no discussion or pushback from JSC members.

READ HERE | 'Unlawful, irrational, and unfair': Mogoeng, JSC under fire over 'politicised' ConCourt interviews

Despite all of this, Maenetje was adamant that the JSC – which has failed to file an affidavit disputing this evidence or explaining it – refused to admit that there was anything unlawful about its Constitutional Court interview process.

It was, however, willing to agree to an order compelling it to conduct those interviews and deliberations again, thereby preventing what the JSC has described as the "crisis" that would result from the Constitutional Court appointments potentially been delayed for up to two years.

Judge Margaret Victor, who was part of the Bench that was considering the JSC/Casac settlement order, had earlier stressed to Ngcukaitobi that she believed the parties in the case had "sensibly" agreed to settle it.

"The consequences, in this case, if this matter is not finalised before the next set of interviews (for four vacant positions at the Constitutional Court in October), I think it will be disastrous for the country," she said.

READ | ConCourt nominees to be re-interviewed by the JSC

Ngcukaitobi agreed, adding that while an order that did not explicitly state that the JSC’s "sham" Constitutional Court interviews were unlawful was "imperfect", it was still lawful – and would "still avert a crisis".

He said:

We are in the middle of a crisis. It's not as if this is a future crisis. We are in the middle of a crisis of having a Constitutional Court with no judges.

Ngcukaitobi had earlier pointed out that, following the retirement of Mogoeng and Justices Chris Jafta and Sisi Khampepe in October, and unless the Casac/JSC legal dispute was resolved, there would only be six permanent justices at the Constitutional Court.

Legodi, however, initially appeared to be unconvinced and repeatedly questioned what guarantees there were, absent the JSC acknowledging the issues raised by Casac, that the rerun interviews would not repeat the problems highlighted in the first.

It was only when Maenetje conceded that the JSC would be cognisant of the complaints raised by Casac, when it conducted the Constitutional Court interviews, that the judge stated that he was "comforted" by the proposed orders – and granted it.

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