Casac squares up for litigation against JSC on its appeal court choices

In what could be a precursor to litigation, the Council for the Advancement of the South African Constitution (Casac) has written to the Judicial Service Commission (JSC) asking for written reasons why it only recommended two candidates for the Supreme Court of Appeal (SCA) on Tuesday, leaving two posts vacant on the appeal court. 

The JSC’s decision, announced late on Tuesday night after lengthy confidential deliberations, shocked judiciary watchers. Ten candidates were interviewed over two days and competent candidates, including Gauteng judges David Unterhalter and Thina Siwendu, were overlooked. 

“The effect of this decision is to leave the vacancies unfilled and the SCA under-resourced and reliant on the appointment of acting judges,” said Casac in its letter sent on Thursday. 

It asked the JSC to state whether its decision was “rationally related to any legitimate purpose”. This is a legal basis upon which a court may set aside a decision of the JSC, according to previous court judgments.

In a 2012 case between the Cape Bar Council and the JSC, the SCA said that since the JSC was under a constitutional obligation to act rationally and transparently, “it follows that, as a matter of general principle, it is obliged to give reasons for its decision not to do so”.

Just saying that candidates did not garner enough votes was not good enough, said the SCA, as this was “no reason at all”.

“We also wish to state, at this stage, that we consider the JSC’s decision to not recommend candidates for all four vacancies to be prima facie irrational and contrary to its constitutional obligations,” said Casac's letter.

It has asked the JSC whether, in its opinion, any of the eight candidates not recommended for appointment did not meet the requirements for appointment set out in the constitution and in the JSC’s criteria for the appointment of candidates.

It also asked for reasons why the JSC chose the two candidates it did: Gauteng judge Fayeeza Kathree-Setiloane and Mpumalanga judge Shane Kgoele.

While Kathree-Setiloane's recommendation was expected and she had a smooth interview, Kgoele was grilled by commissioners about her judgment-writing skills and legal knowledge. Commissioner Sesi Baloyi SC raised a concern that the judgments Kgoele had submitted to the JSC, and by which it could assess her readiness for an appellate court, had not been written by her alone but had been co-authored with other judges.

“When one doesn’t have any judgments that were written by you, it’s very difficult to evaluate your ability to write judgments ... and I feel disadvantaged completely to make any comment about your judgments,” said Baloyi.  

In its letter Casac asked the JSC for: “in particular, the reasons why the JSC considered the two candidates to fulfil both the constitutional criteria and the JSC’s published criteria and guidelines both individually and in contradistinction to the rest of the candidates”.

Casac has also asked for a detailed breakdown of the voting procedure adopted in this instance, since JSC decisions are taken by majority vote.

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