The Judicial Service Commission (JSC) was unable to fill a vacancy on the Supreme Court of Appeal on Wednesday because none of the six candidates interviewed got a majority of votes.
“After deliberations and voting, no single candidate got the majority vote,” said spokesperson Sesi Baloyi SC. A majority vote would have been 13 votes.
The six candidates interviewed on Tuesday were Eastern Cape High Court judges Gerald Bloem and Thandi Norman, KwaZulu-Natal High Court judge Bulelwa Masipa, Free State High Court judge Pule Molitsoane and Gauteng High Court judges Bashier Vally and Leonie Windell.
The JSC’s announcement came late into the night, after hours of behind-closed-doors deliberations and after the commission had spent most of the day interviewing candidates, some of whom had been praised by commissioners for the quality of their judgments.
Baloyi said it was not a two-way split between two candidates, but no single candidate received the required 13 votes. The JSC did not think it was “within our powers” to vote again, she said.
“If you recall, we did something similar previously with the SCA vacancies and that created an issue. And it has caused us to reflect on it and, out of caution, we decided we would not do a second round.”
She was referring to litigation that followed interviews in October 2023, when the JSC left two vacancies on the SCA open and only filled two — overlooking several eminently appointable candidates, including widely respected judge David Unterhalter. When Freedom Under Law challenged the JSC’s proceedings in court, one of its grounds was that the JSC’s voting procedure was irrational.
What happened in that instance was that more candidates got a majority of votes than the number of vacancies. So, to break the tie, the commission voted again. But in the second round, only two candidates got a majority of votes. FUL said this process was irrational in law.
FUL’s 2023 litigation was partly settled when the JSC agreed to accelerate the next round of SCA interviews, after which vacant SCA posts were filled and Unterhalter was appointed.
However, “Part B” of the case is ongoing. And one of the issues FUL addresses in its written legal argument — still to be made before court — is the voting procedures of the JSC.
TimesLIVE
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