The list that will be presented to president Jacob Zuma includes high court judges Brian Spilg and Selby Baqwa, supreme court of appeal court judge Lebotsang Bosielo and advocate Mbuyiseli Madlanga.
This is the fifth time the commission has rejected Gauntlett for a position on one of the country's benches — he had last year failed in an attempt to get on to the Western Cape bench in his most recent previous interview.
Gauntlett is widely considered one of the country's finest legal minds but his temperament has raised questions over whether he is suitable for the bench.
Gauntlett got a rough ride for comments he made about the commission to the Sunday Times newspaper last year after failing to make the shortlist for a place on the Western Cape bench.
The silk, who has been described as “acerbic” was appearing before the commission for the fifth time and advocate Dumisa Ntsebeza appeared to take exception to Gauntlett’s comments in the Sunday Times interview that the body had a “slate” of preferred choices.
Home affairs deputy-minister Fatima Chohan-Khota asked Gauntlett whether anything could be read into the timing of an opinion piece published in the Mail & Guardian last week about judicial limits. Gauntlett responded that the timing “was not strategic".
Gender issues raised
Gender representation on the judiciary, judicial temperament and the 17th Constitutional Amendment Bill recently signed into law by President Jacob Zuma rose during the Judicial Service Commision (JSC)’s interviews for the Constitutional Court position recently vacated by retiring judge Zak Yacoob on Friday in Johannesburg.
Mindful that Section 174(2) of the Constitution requires gender representation on the bench and that the shortlist of candidates consisted of five males – high court judges Selby Baqwa and Brian Spilg, supreme court of appeal judge Lebotsang Bosielo and two silks, advocates Madlanga and Jeremy Gauntlett — the commission appeared to be at pains to grapple with the issue.
A stock question for the commission’s advocate Izak Smuts was to enquire as to the candidates’ views on the matter. What became apparent is that the several potential female candidates had refused to avail themselves, placing the commission in a conundrum, for as Bosielo pointed out “the JSC does not manufacture candidates” – only interview those before it.
But it became apparent during the interviews that several potential female candidates had chosen not to throw their hats into the ring. Gauntlett recounted speaking to a “judge based in Bloemfontein” who had spoken to all the female judges based at the Supreme Court of Appeal there and all had, for one reason or another, apparently refused nomination.
Madlanga recounted having approached another potential candidate with a view to convincing her to avail herself, in which case he would have withdrawn his own candidacy – she had also refused for “personal reasons”.
Commissioner CP Fourie noted that restarting the process in an attempt to attract female candidates did not guarantee that a suitable female appointment would emerge from a new process. He underlined that the commission would be opening itself up to allegations of favouritism if it started inviting candidates. The 17th Constitutional Amendment Bill will, when it comes into effect, make the Constitutional Court South Africa’s apex court, extending its jurisdiction to all matters, not just constitutional ones – which candidates quizzed on it, thought was a good thing.
The bill will also ensure that the “judiciary is on charge of the administration of the judiciary", as Madlanga pointed out during his interview.