Freedom Under Law and the Judicial Service Commission have agreed “to resolve” a part of their legal dispute on the JSC’s decision last October to only fill two out of four vacancies on the Supreme Court of Appeal.
The decision, which came after 10 candidates were interviewed and saw eminent candidates overlooked by the JSC, led to an outcry in the legal community and prompted the litigation launched by Freedom Under Law (FUL).
However, in a draft order that has been agreed between the parties, FUL has dropped Part A of its court case — in which it wanted the JSC to reconvene its October meeting and “consider whether the remaining candidates are fit for appointment”. And, if so, to determine which two were the most suitable and recommend them for appointment.
The JSC, for its part, has undertaken to advertise for the Supreme Court of Appeal “and to conduct interviews and make decisions regarding the filling of these and any further vacancies during April and/or May”.
JSC spokesperson Sesi Baloyi SC confirmed that the order would be made an order of court on Tuesday.
The order recorded that, despite this resolution of Part A, FUL remained of the view that the JSC’s decisions not to fill the remaining two posts on the SCA, were “constitutionally non-compliant and, therefore, null and void”. The JSC “denies this”, reads the order. The JSC is of the view that its conduct “complied with the constitution and the law”.
Unless drastic steps are taken ... it might have a negative effect on the performance of the SCA, to the detriment of litigants.
— Xola Petse, Supreme Court of Appeal’s deputy president
The order also says candidates who got 12 or more votes in the first round of voting during the October interviews will be invited to apply for the vacant posts to participate in the interviews.
From the court papers that have been filed so far, it has emerged that these candidates were Gauteng high court judges David Unterhalter and Thina Siwendu and Eastern Cape high court judge John Smith.
The order also makes clear that it has been made “without prejudice” to the litigation that FUL is pursuing in Part B of its court case. In this part, FUL has asked the court to order the JSC to “develop, publish and apply assessment criteria” and that these must be used by each member of the commission to assess each candidate “in writing”.
Last week, a redacted transcript of the confidential deliberations of the JSC was submitted to court.
It revealed that the Supreme Court of Appeal’s deputy president Xola Petse had told the commission that SA’s second highest court was in desperate need of “what I would call heavy lifters, lawyers of substance”.
The senior judges in the court were battling under the pressure and had reached a point where it had become “exceedingly onerous for them to hold the hand of the least experienced judges”. He said — “within the confines of this room” — there was a “crisis looming”.
“Unless drastic steps are taken ... it might have a negative effect on the performance of the SCA, to the detriment of litigants,” he said.
After consulting with his senior colleagues at the court, including its president Mahube Molemela, he had recommended to the commission Unterhalter, justice Fayeeza Kathree-Setiloane, Siwendu and Smith.
In the first round of voting all four of these had secured 12 or more votes — enough for recommendation. But justice Shane Kgoele had also got sufficient votes. In the second round of voting, only Kathree-Setiloane and Kgoele got enough votes to be recommended for appointment.
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