Victory for civil society after the reopening of Judicial Service Commission judge interviews

In a statement on Thursday, the Council for the Advancement of the South African Constitution (Casac) announced that the Judicial Service Commission (JSC) must rehold its interviews for candidates for the Constitutional Court.

This is a victory for Casac, which approached the High Court in Gauteng after the judge selection committee held interviews in April that attracted strong criticism.

As detailed by Daily Maverick at the time, candidate Judge Dhaya Pillay was subjected to a particularly shocking and clearly politically motivated grilling over her previous judgments against former president Jacob Zuma and her friendship with Public Enterprises Minister Pravin Gordhan.

The verbal assaults against Judge Pillay culminated with EFF leader Julius Malema barking at her: “You are no judge, and you deserve no high office” – an insult for which he was not censured by erstwhile JSC chair Chief Justice Mogoeng Mogoeng.

Neither Judge Pillay nor Judge David Unterhalter – who was put through the ringer for being white and Jewish – made the shortlist for nomination to President Cyril Ramaphosa.

Casac approached the court initially to argue that the JSC commissioners had “failed dismally”, had “subverted the Constitution” and “reached an unlawful, irrational and unfair decision” because of the commission’s failure to perform its core task – to ask of candidates “questions designed to test their fitness for the judicial function”.  

Casac also asked to receive the record of the JSC’s deliberations over which candidates to shortlist. Upon receiving the record of deliberations, Casac submitted a further affidavit to the court which was even harsher in its critique of the JSC.

“After studying the record, and in particular the record of ‘deliberations’, it is now abundantly clear that the JSC fundamentally misunderstood its function,” the affidavit read.

It stated that the record showed that there were effectively no deliberations at all, because “a preselected list” (of candidates to shortlist) “was produced by Chief Justice Mogoeng Mogoeng”.

Given this worrying revelation, Casac asked the court to set aside the Constitutional Court shortlist as unlawful.

On Thursday it emerged, however, that the JSC had agreed to a settlement, in terms of which the shortlist will be set aside and the interviews conducted again.

The Office of the Chief Justice subsequently published a media statement setting down the redoing of the Constitutional Court interviews for the JSC’s October sitting.

Casac director Lawson Naidoo told Daily Maverick that this time around, “we want to see that the questions are pertinent to establishing the qualities of the candidates to serve on the Constitutional Court”.

The qualities that should be probed, Naidoo said, include whether the candidates are “fit and proper, whether there is an appreciation of the Constitutional mandate, and whether there is an appreciation of issues around the separation of powers”.

Said Naidoo: “The JSC process should not be an opportunity for politicians to harangue candidates who appear before it.”

The announcement came in the same week that Ramaphosa’s appearance before the Zondo Commission suggested that the matter of judicial selection is discussed by the ANC’s deployment structures.

“It’s an issue that is germane to this matter,” Naidoo said.

“The commissioners are required to come to those interviews with an open mind and evaluate [candidates] according to the criteria set out in the Constitution. What the president said cast doubt on some of the commissioners.”

Although the JSC agreement will be welcomed by many would-be judges, it appears to come too late for one. On the list of Constitutional Court candidates to be reinterviewed in October, Judge Pillay does not appear – suggesting that she has removed herself from contention. DM