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Bid to halt ConCourt appointments puts Khampepe and Ramaphosa on the spot

The Council for the Advancement of the South African Constitution (Casac) pleads for urgency in its legal bid to have the April recommendations for appointment of judges to the constitutional court set aside, but the challenge could be long if the Judicial Service Commission (JSC) opposes the relief sought.

The JSC recently refused Casac’s request to release the recordings of its deliberations that resulted in judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela and Bashier Vally making the list sent to President Cyril Ramaphosa from which to select two to fill vacancies at the court.

The release of the recordings is now among the demands listed in the notice of motion Casac filed in the high court in Johannesburg this week, along with the JSC restarting the process from scratch and this time ensuring that questioning of the candidates remains within bounds.

“We argue that the process was and would have to be set aside and restarted, and that questioning be confined to judicial capacity,” Casac director Lawson Naidoo said.

The application to set aside the recommendations is unprecedented, though the release of  recordings of the JSC’s deliberations is not. The Helen Suzman Foundation in 2018 eventually prevailed in the constitutional court in its bid to force the release of the recordings of the JSC’s deliberations in 2012 on nominees for the Western Cape bench. The foundation had argued that the process, in which the candidacy of Jeremy Gauntlett SC and others was rejected, was irrational.

Alison Tilley, the coordinator of Judges Matter, welcomed the Casac challenge.

“We are very pleased regarding the application. We think JSC should have a more vetted approach about questioning and they should be questioning candidates with regard to specific criteria and the chairing of JSC needs to be more proactive in ensuring that,” she said. 

Although there have been questions about propriety in the questioning of candidates by the JSC before, politics intruded in a particularly egregious manner this time when Economic Freedom Fighters leader Julius Malema launched an attack on the KwaZulu-Natal high court judge, Dhaya Pillay.

Outgoing Chief Justice Mogoeng Mogoeng not only allowed the line of questioning but fanned the flames by suggesting that Public Enterprises Minister Pravin Gordhan had sought to intercede on behalf of Pillay during an earlier candidacy.

“Candidates are entitled to an open-minded panel. They are also entitled to fair, consistent and equal treatment,” Naidoo notes in his founding affidavit in the application.

“If there was unfairness or an irregularity in respect of any candidate, the decision to nominate all candidates falls too.”

Ramaphosa is listed as the second respondent in the matter, and must now weigh whether to proceed with the appointments — at a time when the constitutional court is already operating with a number of acting judges — or wait for the legal process to unfold. 

“The president can proceed to appoint or he can await the outcome,” Naidoo said.

Judicial observers say it is most likely that the president will file a notice of intention to abide by the court’s decision. 

This would mean all rests in the hands of Acting Chief Justice Sisi Khampepe, who, as the acting chairperson of the JSC, decides how to respond to Casac’s papers.

Apart from the two vacancies, two more loom at the apex court with Khampepe own retirement and that of Judge Chris Jafta due in October. The JSC on Friday morning sent out a call for nominations for candidates to fill these positions, with the interviews set to take place in the first week of that month.

Mogoeng’s own term ends in October but he effectively vacated office early by taking long leave last month. Deputy Chief Justice Raymond is occupied with chairing the inquiry into state capture. 

In the worst case scenario, more than half of the judges at the constitutional court will be serving in acting capacity, without appointment by the president. Or the JSC could elect to proceed with the October interviews, bearing in mind the demands for fairness Casac sets in its papers, and contain the number of vacancies.

Naidoo said it was in everybody’s interest that the matter be resolved as soon as possible and he trusted that the court would adopt this approach. But the application also has bearing on all future  interview processes, including those scheduled for October interviews.

He argued in his affidavit that the rule of law demands that the JSC sets out intelligible appointment criteria. 

“As far as I can ascertain, there is no such criteria,” Naidoo says.

“This results in a situation where each commissioner can use the interviews to pursue their own goals, unrelated to the purpose of testing the eligibility of the candidate.”

He submitted that if a commissioner chose to raise a particular issue or allegation with a candidate, warning should at least be given to the candidate. In April, Malema not only accused Pillay of having a factional, political agenda but tried to corner Judge Elias Matojane over his decision to award former finance minister Trevor Manuel defamation damages against the EFF.

Naidoo argued that section 178 makes plain that the JSC must be independent and that if, by design, it includes politicians in the person of the justice minister and 10 members of parliament, their duty as commissioners was a constitutional one.

“It is not the pursuit of party political interests.”

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