JSC interviews for Constitutional Court were a 'sham': Casac

14 July 2021 - 17:25
By Franny Rabkin
Chief justice Mogoeng Mogoeng 'produced a preselected list'. File photo.
Image: Freddy Mavunda Chief justice Mogoeng Mogoeng 'produced a preselected list'. File photo.

The recent Judicial Service Commission (JSC) interviews for the Constitutional Court were a “sham”, said the Council for the Advancement of the South African Constitution (Casac), after obtaining a transcript of the JSC's confidential deliberations when it shortlisted the candidates in April.

In court papers filed on Tuesday, Casac said the record of the confidential deliberations showed that “there were no deliberations at all”.

The NGO has applied to the Johannesburg high court to declare the interviews in April unlawful and to set aside its recommended list to President Cyril Ramaphosa for appointment to the apex court. 

After the interviews, the JSC submitted five names to Ramaphosa, from which he could choose two for appointment. However, the interviews were widely criticised for being “politicised”, particularly the interviews of KwaZulu-Natal high court judge Dhaya Pillay and Gauteng high court judge David Unterhalter, who both did not make the JSC shortlist.

Casac has now supplemented its court papers after the JSC had to, because of the litigation, provide the court with a record of its confidential deliberations.

In his supplementary founding affidavit, Casac’s Lawson Naidoo said instead of deliberating on each candidate, “a preselected list was produced by chief justice Mogoeng Mogoeng”.

The chief justice “never explained how, where, when, why or with whom he had prepared such list. The list itself was never subjected to an examination against any standard. The deliberations, such as they may exist, can properly be described as a sham,” said Naidoo.

Naidoo said Mogoeng produced his list, and did not explain why those who had made the list were included. Instead, he gave terse reasons why he had excluded the three names that did not make the list.

In the case of Alan Dodson SC, it was because he “had been out of judicial action” for a long time and, when he had been a judge, it was at a specialised court, the land claims court.

In the case of Unterhalter, Mogoeng described him as a very able judge “but he has only just arrived”.

“Three years. And I think he can afford to wait. There will be vacancies coming. Let him wait and then we will see at that stage,” said Mogoeng — according to Naidoo’s affidavit.

Mogoeng added that the JSC should discourage the “kind of behaviour” where “colleagues wait for as long as they want to in practice, come in and shortly thereafter are elevated not to the second-highest court in the land even, but to the highest court in the land”.

On Pillay, Mogoeng had only this to say: “I won’t ... say much really. I do not think judge Pillay should be part of that list. I would leave it to those who want her to be on the list if there are any to substantiate.”

Naidoo said the record showed that there was no discussion or deliberation on this list by the JSC. Commissioner Archibold Nyambi suggested those who had an opposing view to the chief justice should voice them. Jenny Cane SC raised a dissenting voice with reservations about judge Bashier Vally and in support of Dodson and Unterhalter.

However, he said immediately after Cane’s intervention, instead of proposing a discussion around it, Mogoeng said: “Thank you very much, commissioner. Colleagues, are we ready to vote?” 

Naidoo said the conclusion is “inescapable” that it was not part of Mogoeng’s plan to have any discussion of the candidates on his list and that even when Griffiths Madonsela SC asked whether everyone agreed with the chief justice’s list, Julius Malema immediately said “we still vote” — supported by a number of commissioners.

“There was therefore a reviewable collective failure by the JSC, in its eagerness to adopt the chief justice’s list without discussion, in its insistence on voting before discussion, and in its failure to give reasons for voting the way it voted,” said Naidoo. 

It was only after the vote that judge president Dunstan Mlambo raised as a point of principle whether it was a rule that judges with only three years of experience were not eligible to be appointed to the ConCourt or if they came straight from the bar, said Naidoo.

The discussion on this showed that there was no rule on this score and that “decisions are made as the JSC goes along,” said Naidoo.