JSC commissioners 'failed dismally' during ConCourt interviews, Casac says in high court papers

'At best, commissioners asked irrelevant and nonsensical questions that prejudiced candidates; at worst, they used the interviews for naked political score settling,' says Casac’s Lawson Naidoo in the papers

Lawson Naidoo, executive director of the Council for the Advancement of the South African Constitution.
Lawson Naidoo, executive director of the Council for the Advancement of the South African Constitution.
Image: Supplied

The Judicial Service Commission (JSC) acted unlawfully and went beyond its mandate in its recent interviews for the Constitutional Court, the Council for the Advancement of the South African Constitution (Casac) said in court papers filed on Thursday. 

“At best, commissioners asked irrelevant and nonsensical questions that prejudiced candidates; at worst, they used the interviews for naked political score settling,” said Casac’s Lawson Naidoo in the papers.

Casac wants the Johannesburg high court to declare the JSC’s recent ConCourt interviews in April unlawful and to set aside its recommended list to President Cyril Ramaphosa for appointment to SA’s apex court. 

After the interviews, the JSC submitted to Ramaphosa five names, from which he could choose two for appointment. However, the interviews were widely criticised for being “politicised”, particularly the interviews of KwaZulu-Natal High Court judge Dhaya Pillay and Gauteng High Court judge David Unterhalter, who both did not make the JSC shortlist.

Naidoo said that if the interviews were found to be unlawful, any consequent appointments would be similarly unlawful.

In his affidavit, Naidoo said the purpose of JSC interviews is to determine if a candidate is fit and proper for appointment and which candidates are the most suitable. Party-political considerations and agendas should play no role. Even though the JSC includes politicians, their role is a constitutional one, said Naidoo.

“The constitution includes them so they can represent their constituency: the people,” he said.

But in this role the politicians on the JSC — “and others too” — had “failed dismally”, said Naidoo. 

He said JSC interviews had to be related to the criteria for judicial appointment set by the constitution and the JSC must not consider irrelevant factors. The process must also be procedurally fair.

If “adverse issues” were going to be raised with a candidate, the candidate should be given prior notice — “candidates cannot be ambushed on disputed facts”, he said.

It was an abuse of the JSC process to obtrude factional political fights on to it.
Casac’s Lawson Naidoo

Commissioners should also not use interviews to pursue ulterior motives — such as political agendas, “including asking a candidate to comment on political issues that have no rational connection to the candidate’s fitness to hold office”.

Naidoo gave a number of examples of how the JSC had fallen short on these standards in the interviews. 

One of these was Pillay’s interview.

The JSC had received a number of comments from members of the public about her judgment in a defamation case between former president Jacob Zuma and ANC NEC member Derek Hanekom. The questions came “from a certain ‘faction’ of the ANC,” he said. But, when each was considered, they were irrelevant to whether Pillay was fit and proper, he said.

There should have been a screening process beforehand and these questions vetted and then excluded. These then led to further “irrelevant, political” questions.

“It was an abuse of the JSC process to obtrude factional political fights on to it.”

Naidoo said Unterhalter was “subjected to inaccurate and irrelevant questioning about Israel’s relations with Palestine [which] had nothing to do with Unterhalter’s fitness for office”.

Naidoo was particularly critical of the role played by chief justice Mogoeng Mogoeng, who as chair of the JSC should have intervened at crucial moments to protect candidates from certain lines of questioning, but did not.

He also took issue with the way Mogoeng “ambushed” Pillay with a series of questions about a meeting he had with public enterprises minister Pravin Gordhan in 2016 at which Gordhan had enquired, “How did my friend Dhaya Pillay perform?”

Naidoo said there were “a number of disturbing points” about how Mogoeng had questioned Pillay on this score.

In addition to the ambush, the exchange between Gordhan and the chief justice would only be relevant to her fitness for office if she had been party to an attempt to influence her appointment. Yet Mogoeng did not ask her if she had, said Naidoo.

When she nonetheless said she knew nothing of the exchange, Mogoeng responded “I believe you”, yet carried on.

Naidoo said there was a further “gravely worrisome aspect”: that Mogoeng created the impression — “without actually advancing the allegation” — that Mr Gordhan requested a meeting with him for the purpose of influencing the selection of judges. 

“This is all he can mean by the following musings: ‘Why did the honourable minister make an effort to meet me? We are not friends. I don’t know him from anywhere, except from television. Why did he make a trip to seek an audience with me, just to ask me, “How did my friend Dhaya Pillay perform?"’”

Naidoo said the suggestion that Gordhan specifically made a trip to influence Mogoeng was “very serious and should not lightly be made”.

“If made, it should be made fairly and squarely, and not as part of loud ruminations or ‘wonderings’. Yet this is exactly what the chief justice did. This was seriously irregular.”

Casac has asked for the recording of the JSC’s private deliberations and, when it receives this, may augment its court papers further.

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