In his supplementary founding affidavit, Casac’s Lawson Naidoo said instead of deliberating on each candidate, “a preselected list was produced by chief justice Mogoeng Mogoeng”.
The chief justice “never explained how, where, when, why or with whom he had prepared such list. The list itself was never subjected to an examination against any standard. The deliberations, such as they may exist, can properly be described as a sham,” said Naidoo.
Naidoo said Mogoeng produced his list, and did not explain why those who had made the list were included. Instead, he gave terse reasons why he had excluded the three names that did not make the list.
In the case of Alan Dodson SC, it was because he “had been out of judicial action” for a long time and, when he had been a judge, it was at a specialised court, the land claims court.
In the case of Unterhalter, Mogoeng described him as a very able judge “but he has only just arrived”.
“Three years. And I think he can afford to wait. There will be vacancies coming. Let him wait and then we will see at that stage,” said Mogoeng — according to Naidoo’s affidavit.
Mogoeng added that the JSC should discourage the “kind of behaviour” where “colleagues wait for as long as they want to in practice, come in and shortly thereafter are elevated not to the second-highest court in the land even, but to the highest court in the land”.