JSC proceedings 'unlawful'

The battle between the Cape Bar Council and the Judicial Service Commission about appointments to the bench of the Cape Town High Court might be headed for the Constitutional Court.

The Cape Town High Court has ruled that the commission's failure to fill two vacancies on its bench was "unconstitutional and unlawful and falls to be set aside ".

The bar council took the commission to court after the commission interviewed seven short-listed candidates for three posts on the Cape Town High Court bench in April but appointed only one.

The bar asked the court to declare the commission's proceedings "inconsistent with the constitution, unlawful and consequently invalid".

It also asked the court to order that a "properly constituted" commission be appointed to deal with the applications of the short-listed candidates afresh.

Judge Piet Koen granted the application on Friday.

But commission spokesman Dumisa Ntsebeza SC said the commission would seek clarity from the Constitutional Court on the matter.

"I have heard that the judgment is far-reaching. It seems to be questioning the way the [commission] has done business throughout its existence," said Ntsebeza. "My immediate reaction is that, as I'm told, the judgment goes as far as to literally suggest that the way the [commission] has been conducting business is wrong."

Koen found that the commission was not properly constituted when it voted on the unsuccessful candidates because the president of the Supreme Court of Appeal was excused from the proceedings.

His deputy was not asked to attend in his stead.

"It is no doubt for this reason that the applicant maintains that the commission's failure to fill the remaining two vacancies from these candidates for no reason other than that the required majority of 13 was not received remains inexplicable," Koen ruled.

"The irresistible conclusion, it maintains, is that the decision of the [commission] therefore appears to be arbitrary, 'irrational, and unfairly discriminatory, unreasonable and otherwise unconstitutional and unlawful'."

Cape Bar Council chairman Alasdair Sholto-Douglas SC welcomed the judgment, saying three of the six unsuccessful candidates had been short-listed for interviews later this month.

"It may be that the other three . don't want to go back to the commission, in which case the practical resolution would be to hear what those candidates say on the October 10."