Recommendations for ConCourt appointments set aside, JSC to conduct new interviews in October

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The Judicial Service Commission (JSC) will conduct new interviews for Constitutional Court judges, after allegations that the initial deliberations to fill two vacancies at the apex court were compromised by blatant politicking.

In a statement released on Thursday, the Council for the Advancement of the South African Constitution (Casac) said the JSC had agreed to the relief it sought in an application to the Johannesburg high court in June to set aside recommendations for appointment of judges to the Constitutional Court.

In April the JSC recommended judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela and Bashier Vally for the appointments. 

In its unprecedented bid, Casac argued that the interview undermined the independence of the judiciary as guaranteed in section 178 of the constitution. Casac demanded that the JSC release the recordings of its deliberations and start from scratch.

In its court papers, Casac alleged that the manner of questioning of some of the candidates went beyond the bounds of what is permissible to determine the fitness and propriety of the candidates. Some of the questioning was irrelevant and aimed at ambushing the candidates, Casac argued.

In his founding affidavit Casac’s executive secretary, Lawson Naidoo, said: “The interviews are not a platform for party politics; they are not there for the JSC to investigate and evaluate complaints against judges; and they are not there to give commissioners a chance to quibble with judgments they lost as litigants. Nor do they exist to enable individual commissioners to ventilate grudges against judges …. Party political considerations and political agendas should play no role in the JSC’s decisions and processes.”

President Cyril Ramaphosa was listed as the second respondent in the matter, forcing him to weigh whether to proceed with the appointments or wait for the legal process to unfold.

The recommended shortlist submitted to the president, Casac said on Thursday, will be set aside and new interviews will be conducted. 

Also on Thursday, the JSC re-released the list of the candidates who will be interviewed for the two constitutional court vacancies. The judges — the same names as those who were interviewed earlier this year, except for KwaZulu-Natal high court judge Dhaya Pillay — will now be interviewed again in October.