The Johannesburg high court is expected to hold a case management meeting this week to set out timelines for the application by the Council for the Advancement of the South African Constitution (Casac) to set aside the recent recommendations for appointment to the Constitutional Court.
Casac chairman Lawson Naidoo said Gauteng Deputy Judge President Ronald Sutherland called the meeting for last Thursday but it was postponed because the Judicial Service Commission (JSC) had not yet appointed counsel to argue in opposition.
“We initially asked for a meeting last Tuesday, and it was then set for Thursday, but had to be postponed. It should now happen early this week,” Naidoo said, adding that it was important that a sense of urgency was afforded to the matter.
The JSC is understood to have briefed advocate Marumo Moerane in the matter, which sees Casac argue that the recent interviews for judges to fill two vacancies at the highest court was compromised by blatant politicking, undermining the independence of the judiciary as guaranteed in section 178 of the Constitution.
The application is unprecedented. Casac is demanding, in papers filed earlier this month, that the JSC restart the interview process it conducted in April and to ensure that this time questioning remains within acceptable bounds.
“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.”
President Cyril Ramaphosa is listed as the second respondent in the matter, and is understood to have instructed junior counsel, in what could be an indication that the presidency may file a notice of intention to abide by the court’s decision.
The JSC has forwarded the names of judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela and Bashier Vally for selection of two to fill vacancies at the highest court. Two more loom later this year when justices Sisi Khampepe and Chris Jafta are set to retire.
Though there have been rumblings about the treatment of candidates 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 Dhayanithi Pillay, accusing her of abusing her position to fight factional, political battles.
Outgoing Chief Justice Mogoeng Mogoeng did not call Malema to order but weighed in with an anecdote suggesting that Public Enterprises Minister Pravin Gordhan had sought to intercede on behalf of Pillay during an earlier candidacy.
Malema also sought to confront Judge Elias Matojane over his decision to award former finance minister Trevor Manuel defamation damages against the EFF, but he was a candidate for the supreme court of appeal, and Casac has confined its application to the constitutional court nominations.
The JSC recently refused Casac’s request to release the recordings of its deliberations that resulted in the nomination of the five judges.