Failure to fill Supreme Court of Appeal posts a ‘dereliction of constitutional duty’: FUL

The Judicial Service Commission’s decision in October to leave two vacancies open on the Supreme Court of Appeal was irrational and a “dereliction of its constitutional duty”, said Freedom Under Law in court papers filed on Thursday.

In October the JSC interviewed 10 candidates for four vacancies on the SCA, South Africa’s second highest court of appeal. After two days of interviews and lengthy deliberations behind closed doors and two rounds of voting, the commission only recommended two candidates — justices Fayeeza Kathree-Setiloane and Shane Kgoele.

Its announcement was met with shock and dismay, as there had been a number of candidates widely viewed as eminently suitable for appointment, including Gauteng judges David Unterhalter and Thina Siwendu and Northern Cape deputy judge president Mmathebe Phatshoane.

It later emerged, after the Council for the Advancement of the South African constitution (Casac) asked the JSC to explain its choices and process, that in the first round of voting, there had been five candidates who had secured sufficient votes to get the nod. But in the second, tiebreaker, round, only two had made the cut.

FUL has urgently challenged the JSC’s decision in the Pretoria high court and has asked for an order directing the JSC to meet again and “consider whether the remaining candidates are fit for appointment”. And, if so, to determine which two are the most suitable and recommend them for appointment — within 20 days of the court’s order.

FUL has not asked the court to re-run the interviews and has not taken issue with the two appointments that have already been made.

FUL has also — in part B of its application, which is not urgent — asked the court to order the JSC to “develop, publish and apply assessment criteria” and that these must be used by each commissioner to assess each candidate “in writing”.

In her founding affidavit, FUL’s executive officer, Judith February, said the JSC had said in its reasons to Casac that it had not taken a specific decision not to fill the vacancies that remained. But, said February, in recommending only two candidates, the JSC had “in effect” failed to fill two vacancies. And it did so without “even considering” whether to leave the other two posts vacant and without considering whether any of the remaining candidates should be recommended.

“In failing to consider whether the two remaining vacancies should be left open, the JSC had derogated its constitutional duty,” she said. Moreover, it was irrational to fail to make appointments given the availability of candidates that were “eminently suitable for appointment”.

The voting process was also irrational, she said. It was irrational in law “for a candidate to be considered suitable in the first round [of voting] and then immediately thereafter effectively disqualified in the second round”.

In its response to Casac, the JSC had summarised the deliberations in relation to each candidate. However, these were stated to be views expressed during deliberations and were not reasons for the JSC’s failure to select them.

In relation to the deliberations on Unterhalter, part of the JSC's summary included a view expressed by “some commissioners” that he appeared to be arrogant and even “racist”. The letter said other commissioners felt these allegations were “without substance and baseless”.

February described this as “what appears to be an unsubstantiated but serious” allegation of racism, which had not been put to him in his interview.

“It goes without saying that disqualifying allegations not raised with a candidate during the interviews may not be raised during the deliberations, and may certainly not be used as a basis for voting by a member, or to influence other members as to their voting,” she said.

The JSC had allowed itself to arrive at a decision by reference to “an irrelevant and process-poisoning consideration”, she said. The allegations “impugn his dignity” and ought not to have been raised without him being given an opportunity to respond.

“Since the JSC reasons record that these unfair and improper allegations played a role in the JSC's sudden about-turn in the second round of voting in which justice Unterhalter presumably went from securing sufficient votes to being disqualified, the JSC's failure to appoint candidates ... is unconstitutional, unlawful and irrational for this further reason,” she said. 

FUL also took issue with how the JSC justified its decision. The JSC did not “distil” the reasons for its decision not to fill two vacancies and instead “attempt[ed] — long after the fact — to guess what may have motivated commissioners not to vote for specific candidates”.

“It says that some commissioners may have not voted for some candidates because they may have taken into account the needs of the SCA for experienced judges and that some candidates were not sufficiently experienced for appointment,” said February.

But this was “plainly inadequate justification” and “inapposite” to a number of candidates, since the JSC, in its first round of voting, felt that five candidates were suitable, she said.

She said the JSC’s processes “do not allow for meaningful reasons to be produced justifying the JSC’s decisions”.

That much was “clear from the reasons produced by the JSC” in response to Casac, said February. “The best that the JSC is able to do, because members of the JSC are not required to voice their motivation for or against a particular candidate, is to guess the reasons relied on with reference to the deliberations.”

In part B of its application, FUL wants an order for the JSC to develop and publish assessment criteria within three months.

The idea is that JSC commissioners would assess each candidate in writing for compliance with published assessment criteria, “as well as to write down any further reasons that he or she may choose to give either in support or against” a candidate. Then commissioners would hand in their written assessments when they cast their votes, which may still be cast secretly, said February.

February said FUL hoped the JSC would “welcome and embrace” this as it would provide a “necessary safeguard” to the constitutional integrity of the JSC’s process.