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.


  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


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


  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.


  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.


  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


  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.


  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.


  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


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


  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:


  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.


  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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