JSC Chairman, Chief Justice Raymond Zondo; (Oupa Nkosi/Judges are important)
The Judicial Council (JSC) has brought forward interviews to fill vacancies on the Supreme Court of Appeal (SCA) by a month following threats of legal action from Freedom Under Law (FUL).
The Chief Justice's office announced last week that interviews with candidates for the Court of Appeals will take place in June, a move that FUL, a nonprofit and public interest organization, said violates a court order.
The JSC issued a correction on Monday, saying interviews would be held in May.
“Interested candidates wishing to be appointed to these positions are hereby advised that interviews will be held in May 2024 instead of June 2024 as previously mentioned.
“The notice will be amended to reflect this change.”
The first announcement came six days after an agreement between FUL and JSC to expedite interviews was ordered by the Pretoria High Court.
In a letter to FUL's lawyers on the same day, the Office of the Chief Justice said: “Unfortunately, it is not realistically possible to meet with our client on the agreed date of April or May 2024.'' There is,” he said.
They say there simply wasn't enough time to complete all the paperwork.
FUL has called on the JSC to amend its position and comply with the order, failing which it will urgently move to court to enforce the order.
He expressed regret that the commission, chaired by Chief Justice Raymond Zondo, had attempted to withdraw from the commission, saying it undermined respect for the rule of law.
The agreement with FUL was reached as a settlement of Part A of the application filed by the NGO to protest the JSC's failure to fill vacancies in October last year as unreasonable.
The JSC interviewed 10 candidates for the four vacancies in the SCA, but only appointed Justices Fayeza Kasuri-Setiloane and Mareshane Goele.
Among the candidates overlooked in that appointment round was David Unterhalter SC, who has become a regular candidate for office on the nation's highest court.
The JSC agreed to invite him and all other candidates who received at least 12 out of 23 votes in the commission's first round of voting in October to apply for the remaining vacancies in a new round of voting. .
The development of the vote became clear after the South African Constitutional Advancement Council asked the JSC to provide written reasons why it had not recommended enough candidates for all four posts.
JSC responded that it had held two votes. In the first election, one candidate received his 19 votes and the other four each received his 12 votes. A second round was required to resolve this tie, with one candidate receiving 20 votes less than her, one candidate receiving 12 votes less than her, and the other candidate receiving 3 votes less than his. Therefore, the committee said it could only recommend the appointment of two candidates as the remaining candidates did not have the support of half of the 23 members.
Those who did not receive enough votes in the second round were Mr Unterhalter, Judge John Smith of the Eastern Cape High Court and Judge Tina Siwendu of the Gauteng High Court.
In Part A of the challenge, FUL told the court that the process was unreasonable and the result unconstitutional. Candidates found to be fit and suitable were immediately excluded from the second round, the report said, and commissioners did not consider whether it was advisable to leave the SCA seat vacant. It seems so.
Additionally, it alleges that the JSC failed to provide all candidates with a fair hearing.
This particularly concerns Unterhalter.
In April 2022, in response to questioning from Commissioners Mvuzo Notiesi and Julius Malema, he admitted that he did not recuse himself when considering a constitutional application in the Supreme Court, so he will be seated at the Constitutional Court in April 2022. Any hope of getting it was gone. Appeals continue on issues involving Eskom.
The refusal came after the same applicant had refused to apply to the Supreme Court of Appeal during his representative term at the Supreme Court.
The issue came up again in October, and Unterhalter this time seemed reluctant to admit he had made a mistake.
In particular, Malema made it clear that he did not approve of Unterhalter's response. An edited transcript of the on-camera deliberation revealed that Mr Unterhalter claimed to be racist in a “subtle” way. They further revealed that Zondo supported his appointment to the SCA.
Part B of the lawsuit asks the court to declare the JSC's current selection process illegal and directs the court to draft and apply standards expected by the commissioners in evaluating each candidate in writing. I am asking you to do so.
FUL said Tuesday it intends to move forward with this part of the application quickly.
