The JSC has been given the go-ahead from advocate Jeremy Gauntlett to furnish reasons for it overlooking him for a place on the Western Cape Bench.
Commission secretary Sello Chiloane said it was "working on" compiling "the full reasons" for retired supreme court of appeal deputy judge president Louis Harms but was unable to comment on when these would be ready. Harms had nominated Gauntlett to be interviewed for a position on the Western Cape High Court Bench, and wrote to the commission last week requesting reasons for its decision not to recommend Gauntlett.
The decision not to appoint Gauntlett – who had failed twice previously to be nominated by the commission to the Constitutional Court and one other time to the Western Cape High Court – was considered controversial by many in the legal fraternity who feel Gauntlett is one of the country's foremost jurists.
A Supreme Court of Appeal ruling found the commission was required to be more transparent and give reasons for its decisions relating to its judicial appointments. This after the Cape Bar Council took the commission to court last year after it had failed to fill vacant positions on the Western Cape bench during its April 2011 round of interviews.
It appears the commission adopted a new policy that it will furnish reasons if requested by unsuccessful candidates or other interested parties.
The Mail & Guardian understands the commission wrote to Gauntlett on Monday requesting his permission to disclose reasons to Harms, who had been critical of the appointment of acting judge Mokgoatji Dolamo over Gauntlett.
It emerged during Dolamo's interview he had 26 complaints laid against him with the law society.
No consent required
In his response Gauntlett wrote he felt his consent was not actually required as he understood – through communication between the commission and Harms's attorneys - that the reasons would be furnished at a commission press conference held in Pretoria West on October 26, or immediately thereafter. "There was no suggestion that any other consideration operated," he said.
"Secondly," wrote Gauntlett, "the reasons are not my reasons, nor Mr Dolamo's. They are the JSC's reasons. I am not aware that the release of reasons by a decision-maker is in law a matter to be determined by the attitude of the subject of the decision."
Gauntlett also pointed out that the commission's decision was based on material and interviews in the public domain: "I do not understand on what basis a claim could be made by any candidate for either that material, or reasons derived from it, to be withheld from disclosure pursuant to a request such as that in the present case."
He concluded that, "to the extent it is relevant" he had no objections to the commission disclosing reasons to Harms.
In his writing to the commission, Harms questioned Dolamo's recommendation, calling it "in particular irrational and inexplicable".
He asked that Chief Justice Mogoeng Mogoeng revert the decision to nominate Dolamo to the JSC until such time that he could launch a legal challenge to the decision.
Harms stated he found Gauntlett's omission "to be irrational and accordingly legally assailable".
Five candidates were recommended by the commission for appointment in the Western Cape High Court. Those who were preferred over Gauntlett included Dolamo, attorneys Judith Cloete and Babalwa Mantame, and advocates Owen Rogers and Ashton Schippers – the latter two being especially well regarded within the legal fraternity.