The Judicial Service Commission (JSC) will speak with advocate Jeremy Gauntlett, who was overlooked by the commission for a place on the Western Cape bench in its most recent round of interviews, before it decides whether to give reasons for that decision to retired Supreme Court of Appeal Deputy Judge President Louis Harms, Chief Justice Mogoeng Mogoeng said on Friday morning.
Harms, who nominated Gauntlett to be interviewed in Cape Town last week, wrote to Mogoeng earlier this week questioning the decision to not appoint the advocate, who is considered one of the eminent legal minds in the country.
In the letter, he questioned the recommendation, especially of acting judge Mokgoatji Dolamo over Gauntlett, calling it "in particular irrational and inexplicable" and asked that Mogoeng revert the decision to nominate Dolamo back to the JSC until such time that he could launch a legal challenge to the decision.
Harms stated that he found Gauntlett's omission "to be irrational and accordingly legally assailable".
Mogoeng, with a nod to an appeal court judgment that found the JSC was required to be transparent and give reasons for its decisions relating to judicial appointments, said the commission would have to communicate with Gauntlett before agreeing to give reasons to Harms for their decision. The commission decided it would furnish reasons for its decisions to candidates if they requested them.
Five candidates were recommended for appointment in the Western Cape High Court. Those that 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.
Hlophe tribunal set-up
At a press conference on Friday held in Erasmia, outside Tshwane, attended by other JSC members including attorney CP Fourie, appeal court Judge President Lex Mpati, North and South Gauteng High Court Judge President Bernard Ngoepe and Correctional Services Deputy Minister Ngoako Ramatlhodi, Mogoeng revealed the JSC was still in the process of setting up the tribunal to look into the judicial misconduct case against Western Cape Judge President John Hlophe.
In September this year, the Judicial Conduct Committee – a subcommittee of the commission – had found that Hlophe was, prima facie, guilty of impeachable gross misconduct and recommended that a tribunal be set up.
This related to a complaint of judicial misconduct laid by the justices of the Constitutional Court in 2008 against Hlophe. The justices alleged Hlophe had approached justices Chris Jafta and Bess Nkabinde with the intention of improperly influencing them in a matter before the court involving corruption charges against President Jacob Zuma – then an ordinary citizen. Hlophe had laid a counter-complaint against the judges, criticising the manner in which they had announced their complaint to the JSC – stating that it impinged on his right to dignity.
The matter has been long-running with the JSC deciding previously not to pursue the complaints with a cross-examination of the various parties. This decision was set aside by an appeal court ruling.
Mogoeng also said that he had met with Zuma earlier this week and that the president had "agreed that we may announce our recommendations immediately after the decision is taken in relation in each court" so as to avert leaks.
The other judges nominated to the various benches include: advocate Murray Lowe and Buyiswa Majiki for the Eastern Cape high courts (Mthatha and Port Elizabeth), judges Dimpheletse Moshidi and Willem Wepener for the electoral court and, as expected, judge Achmat Jappie being recommended as deputy-judge president for the KwaZulu-Natal High Court.
Advocate David Fourie was the sole nominee to the North and South Gauteng High Court, which had three vacancies. Basheer Waglay was recommended by the commission to fill the Labour Court judge president position.
Noting that the commission had appointed three white males to various divisions of the high court, Mogoeng said: "We did no not because we were under any form of pressure, or because they have an inherent right to be appointed by reason of being senior counsel or being endorsed by certain organisations, but because all things being considered, we were satisfied that they had to be appointed."
The inclusion of five commissioners for the press conference – usually attended by just the commission's spokespersons, Fourie and Dumisa Ntsebeza – appeared to be part of an attempt by the commission to address various "assumptions" about its operations and methodology.
Addressing the perceptions of the commission's "lost credibility" that was "borne out" by "the number of cases it has lost" and its "commitment to transformation" Mogoeng said: "These perceptions and conclusions have therefore been crying out for a meaningful engagement between the leadership of the JSC and the media, over and above the previous engagements with the [JSC] spokespersons."
Mogoeng said the commission would be "unapologetic" about its transformation mandate and that it would be a "betrayal of our constitutional mandate" to continue appointing white males to the bench "when gender and racial disparities are still so glaring".
Addressing the issue of political interference in the workings of the commission, Mogoeng said "The JSC does not go through the motions of pretending to interview when it is in fact rubber-stamping some recommendation by some personality or organisation. We seek to determine a candidates suitability for appointment with due regard to all the relevant factors".
These included the needs of the specific courts, the imperatives of the constitution and a person's track record, chipped in Mpati
Mogoeng also called for "unsubstantiated speculation that a particular candidate is anointed for appointment, could be desisted from".