High court rules JSC interviews must be rerun, amid threats of apex court 'crisis'

The Judicial Services Commission (JSC) this morning faced tough

questions about why it refused to concede that its interviews for

vacancies at the Constitutional Court – which it has agreed to rerun –

were unlawful.

If they [the JSC] don't accept that they acted

unlawfully, what is the basis for one to get comfort that they will

change the tack, come the next interviews？ Mpumalanga Judge President

Francis Legodi asked the JSC's counsel, advocate Hamilton Maenetje.

Advocate

Tembeka Ngcukaitobi, for the Council for the Advancement of the SA

Constitution (Casac), had earlier reiterated that it believed the

process undertaken by the JSC to compile a shortlist of Constitutional

Court nominees was nothing more than a “sham” defined by political

grandstanding.

Serjeant at the Bar | We stand at critical point that could damage Constitutional democracy

But,

he said, Casac was prepared to accept that, in agreeing to rerun the

process, the JSC should do a better job of the interviews that it did

on the previous occasion – when, among other things, EFF leader Julius

Malema had been allowed to attack Kwazulu-Natal High Court Judge Dhaya

Pillay over her long-standing friendship with Pravin Gordhan.

Chief

Justice Mogoeng Mogoeng, without giving any required warning to Pillay,

then tried to suggest that Gordhan had improperly asked him how his

friend had fared in her 2016 interview for a position at the Supreme

Court of Appeal – a claim that Gordhan comprehensively denied.

Things

only got worse for Mogoeng and the JSC when the commission was forced

to hand over records of its deliberations for the Constitutional Court

shortlist, which revealed that that candidates had all been chosen from a

pre-selected list drawn up by the Chief Justice – with virtually no

discussion or pushback from JSC members.

READ HERE | 'Unlawful, irrational, and unfair': Mogoeng, JSC under fire over 'politicised' ConCourt interviews

Despite

all of this, Maenetje was adamant that the JSC – which has failed to

file an affidavit disputing this evidence or explaining it – refused to

admit that there was anything unlawful about its Constitutional Court

interview process.

It was, however, willing to agree to an order

compelling it to conduct those interviews and deliberations again,

thereby preventing what the JSC has described as the “crisis” that would

result from the Constitutional Court appointments potentially been

delayed for up to two years.

Judge

Margaret Victor, who was part of the Bench that was considering the

JSC/Casac settlement order, had earlier stressed to Ngcukaitobi that she

believed the parties in the case had “sensibly” agreed to settle it.

The

consequences, in this case, if this matter is not finalised before the

next set of interviews (for four vacant positions at the Constitutional

Court in October), I think it will be disastrous for the country, she

said.

READ | ConCourt nominees to be re-interviewed by the JSC

Ngcukaitobi

agreed, adding that while an order that did not explicitly state that

the JSCs “sham” Constitutional Court interviews were unlawful was

“imperfect”, it was still lawful – and would “still avert a crisis”.

He said:

We

are in the middle of a crisis. It's not as if this is a future crisis.

We are in the middle of a crisis of having a Constitutional Court with

no judges.

Ngcukaitobi had earlier pointed out

that, following the retirement of Mogoeng and Justices Chris Jafta and

Sisi Khampepe in October, and unless the Casac/JSC legal dispute was

resolved, there would only be six permanent justices at the

Constitutional Court.

Legodi, however, initially appeared to be

unconvinced and repeatedly questioned what guarantees there were, absent

the JSC acknowledging the issues raised by Casac, that the rerun

interviews would not repeat the problems highlighted in the first.

It

was only when Maenetje conceded that the JSC would be cognisant of the

complaints raised by Casac, when it conducted the Constitutional Court

interviews, that the judge stated that he was “comforted” by the

proposed orders – and granted it.