The Judicial Service Commission (JSC) “does not intend complying” with a high court order to hold interviews for vacant seats at the Supreme Court of Appeal (SCA) during April or May, says Freedom Under Law (FUL).
Instead, the JSC indicated it would be able to do so only in June despite agreeing to a February court order to hold interviews earlier.
“If the chief justice [Raymond Zondo, who is also the JSC chair] and the JSC do not comply with court orders,” FUL wrote in a letter to the JSC last week, “on what basis could ordinary members of society be required to comply with court orders?”
FUL says that given the recent announcement by President Cyril Ramaphosa that elections will be held on May 29, this “calls into question the likelihood that any interviews could take place” because members of the JSC are also MPs.
The office of the chief justice indicated in correspondence to FUL that the interviews could “not realistically” be held in April or May because “of the time needed to administer the whole process”.
To host interviews, the JSC says, it has to organise advertisements for vacancies, engage a screening process and a host of other aspects.
However, FUL says “it is simply not acceptable ... for the JSC to permit an undertaking to be made an order of court where it has not ensured that it will comply”. In other words, if the JSC knew it could not host the interviews in May, the JSC should not have agreed in the first place.
“It amounts to flagrant disregard for the rule of law for the JSC unilaterally to breach an order of Court,” FUL said.
FUL’s challenge to the JSC arose as a result of the JSC’s only appointing two judges to the Supreme Court of Appeal (SCA) during the October 2023 interviews, despite four vacancies and interviewing 10 shortlisted candidates, including widely regarded judges such as David Unterhalter, Fayeeza Kathree-Setiloane and Shane Kgoele.
Only Kathree-Setiloane and Kgoele were recommended to President Cyril Ramaphosa out of the 10, leaving two seats still vacant. Court watchers were shocked at Unterhalter’s now fifth rejection despite universal praise by all SCA judges and admiration by JSC members for his work ethic.
FUL brought a legal challenge in December, which resulted in the JSC providing a redacted transcript of its October deliberations which outlined the discussions members had before their votes for each candidate. Candidates usually require about 13 votes to be recommended to the president for elevation to the bench.
This redacted transcript of the normally confidential deliberations revealed that some JSC members made various accusations against Unterhalter as a basis for not voting for him. For example, EFF leader Julius Malema accused Unterhalter of “subtle racism” and ANC MP Thamsanqa Dodovu said Unterhalter was arrogant with a “sense of entitlement”.
In court papers FUL argued statements such as these were “improper, baseless and unfair allegations” and were not “put to the candidate”. Further, said FUL executive officer Judith February, Zondo should have clamped down on accusations and ordered members not to take such allegations into account when voting.
This was not done, FUL said, undermining the entire proceedings relating to the two empty SCA seats. (FUL had no problem with the recommendations of Kathree-Setiloane and Kgoele.)
After engaging with the JSC earlier in 2024, however, FUL dropped part of its legal challenge on condition the JSC hold interviews for the vacant SCA seats sooner. “The JSC gave a clear and unambiguous undertaking, which formed the basis for the settlement,” which became an order of court, FUL said in its letter.
FUL demanded the JSC respond to its concerns that the JSC is “defying” a court order, by noon last week Friday. The organisation noted the “good faith settlement that [FUL] entered into with the JSC and which the JSC and FUL jointly had made an order of Court”. It therefore does not want to enter into further litigation.
However, FUL says despite its reservations in terms of further litigation, FUL “will consider all of its options if the JSC does not respond in a manner that accords with the rule of law”.
The JSC responded late on Monday.
“It was not thought that you would not be able to accommodate the JSC in regard to the interviews being in June,” the JSC said in a letter to FUL on Monday.
However, after a meeting on Monday afternoon, “a way was found to deal with the appointment process in such a way that the interviews can be held in May. Accordingly, the interviews will now be held some time in May.”
Update: February 26 2024
This story has been updated with new information.
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