A pair of landmark judgments handed down by the constitutional court (above) on Monday for the first time recognise strategic litigation against public participation (so-called Slapp suits) as an abuse of process,
(Renata Larroyd)
The Council for the Advancement of the South African Constitution (Casac) has demanded the record of the Judicial Service Commission’s (JSC) deliberations last week on recommendations of candidates for appointment to the Constitutional Court.
Casac’s letter of demand comes amid controversy over the exclusion of David Unterhalter and Alan Dodson from the list of five names sent to President Cyril Ramaphosa and signals more legal action may follow to challenge the selection process.
It was sent by the council’s attorneys, Webber Wentzel, three days after seven candidates were interviewed on Monday in a rerun of an April session marred by overtly political questions to the candidates.
“As you will appreciate, the request is urgent as our client is considering challenging the process of the selection of judges for the constitutional court as unlawful,” it says.
Casac makes plain that should the record not be forthcoming, it will be the subject of future litigation.
“It is in the interests of justice that access to these deliberations be made available at this stage, than rather as part of the disclosures required by Rule 53 of the Uniform Rules of Court to avoid unnecessary litigation,” the letter says.
Though consensus is that the second interview session was more decorous than the first, the same candidates for two vacancies at the court were recommended as six months ago — Judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela and Bashier Vally.
Inevitably, concerns have since been raised as to why Unterhalter and Dodson, were again overlooked. Both long served on international adjudicative bodies, respectively dealing with land and trade disputes. Both were asked by commissioners about their relative privilege and the impact of their white race on demographics at the highest court.
Freedom Under Law executive officer Nicole Fritz remarked in a newspaper editorial that the inclusion on the list of Vally instead of either “made it appear that the JSC would have preferred any candidate, bar another white male, over Dodson and Unterhalter”.
In the letter, Casac voices its concern over the questions put to Unterhalter, who is recognised by the legal fraternity as one of its finest minds.
“Our client’s view is that the process of the interviews, the questions asked of some candidates and the outcomes reflect a fundamental misunderstanding of the constitution,” it said.
“For instance, Judge David Unterhalter was unfairly harangued by one of the commissioners about the politics of the Jewish Board of Deputies.”
In June, Casac went to court to have the process that led to the initial recommendation set aside, arguing that it was unlawful as the JSC’s line of questioning flew in the face of the independence of the judiciary as guaranteed by section 178 of the constitution.
It also demanded that the JSC release the record of its April deliberations.
In August, the commission reached a settlement with Casac, made an order of the court, in which it agreed to conduct the interviews afresh. The record was released some weeks prior and the council commented that it showed that “there were no deliberations at all”.
The agreement had prevented further delay in filling vacancies at the Constitutional Court, which stood at five as of Monday with the retirement of Chief Justice Mogoeng Mogoeng and justices Sisi Khampepe and Chris Jafta.
However, Casac executive secretary Lawson Naidoo said it had the disadvantage that the council’s court bid to compel the JSC to publish the criteria that guided it in its selection process fell away.
The letter of demand indicates that this is now back on the cards.
Casac said it was not known what criteria the JSC employed to arrive at the names sent to Ramaphosa as its deliberations “were not held openly”, adding that this was in conflict with the constitutional demands of transparency and accountability.
“The issue will be the subject of litigation to be instituted by Casac,” it said.
Advocate Dali Mpofu, spokesman for the JSC, said he was “unable to foretell what decisions the JSC may take or what legal advice it may obtain” on the matter.