The Helen Suzman Foundation said on Monday it was carefully weighing a court challenge to the rationality of the Judicial Service Commission (JSC) hearings that culminated in the entity recommending that the president appoint Supreme Court of Appeal president Mandisa Maya as the next chief justice.
The think-tank said the interviews, which descended into political ambush, saw the JSC abuse its powers and that it was taking legal advice on launching a review.
If it proceeded, founding director Nicole Fritz said, the foundation would ask for the process that played out last week to be set aside.
But Fritz said it was considering several factors.
“We are cognisant that the country desperately needs a chief justice and we don’t want to unduly delay the process,” she told the Mail & Guardian, adding that President Cyril Ramaphosa was not bound by the recommendation put forth on Saturday by the JSC.
“So, to some extent, legal action may be redundant and superfluous, although, as an exercise in public power, it still demonstrates irrationality and unfairness.”
What transpired last year after the JSC reluctantly agreed to repeat interviews with candidates for the Constitutional Court conducted in April six months later, showed that a review may have little practical impact.
The initial interviews were mired by politics and the second round conducted with far more propriety, but the same candidates were recommended, and there is unhappiness in the legal community that one of its finest minds, David Unterhalter SC, was overlooked both times.
“Even a successful review might have that process returned to the commission for another round of interviews which, as we saw last year, is not necessarily going to yield a different outcome,” Fritz said.
The JSC agreed to a rerun of the last year’s interviews under legal duress from the Council for the Advancement of the South African Constitution (Casac).
But a legal challenge to last week’s interview with Maya, Deputy Chief Justice Raymond Zondo, Constitutional Court Justice Mbuyiseli Madlanga and Gauteng Judge President Dunstan Mlambo would be distinct from Casac’s challenge, according to Alison Tilley, the co-ordinator of Judges Matter, in that this time the recommendation was not binding on Ramaphosa.
When faced with nominations by the JSC as to whom to appoint to the bench, the president is compelled to take his pick from the names put forth by the commission.
This time, he is not, but can theoretically choose anybody, Tilley pointed out.
Observers say that, politically, it would be very hard for Ramaphosa to deviate from the JSC’s recommendation, arrived at by a vote late on Saturday afternoon, particularly as doing so would mean not appointing the country’s first female chief justice.
But there is debate as to whether the JSC was mandated, in what is an unprecedented process given that this is the first time they asked to interview more than one candidate, to make known their preference or simply report to Ramaphosa on the relative suitability of each of the four justices.
“It wasn’t clear to the commissioners what their mandate was and there was extensive debate behind closed doors during the deliberations as to what it was,” one source said.
Another observer said the JSC committed a blunder by understanding that its role was to recommend a single candidate.
Fritz said her reading of the Constitution was that the commission’s task was “basically to give a view of the candidates’ suitability and they might have said this is the strongest candidate and the idea is not to fetter the president’s powers”.
The Helen Suzman Foundation and others have expressed alarm at Mlambo’s two-hour grilling on unsubstantiated allegations of sexual harassment.
It was procedurally offside, and eventually SCA deputy president Xola Petse ruled that it be expunged from the record. Mlambo calmly dismissed that the allegations were rumours designed to sink his candidacy.
Fritz said, even so, prejudice was suffered.
“It was an outrageous exercise in unfairness to ambush Mlambo as they did without giving him notice that this is a line of questioning that would be pursued … I know it was expunged but, in fact, it severely prejudices him that so much of the interview was taken up in respect of that.”
She also flagged the shouting match that erupted between Justice Minister Ronald Lamola and Economic Freedom Fighters leader Julius Malema during Zondo’s interview about Mlambo’s acting stint at the Constitutional Court as an abuse.
Malema’s implication, vehemently denied by Lamola, was that the minister acted outside of his powers in a bid to boost Mlambo’s candidacy.
“That is so far out of the sphere of what the JSC’s powers can be understood to be. What is then being pursued is a political fight through the forum of the JSC and that is a total abuse of that forum,” Fritz said.