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.
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