THE JSC should be subject to the provisions of the constitution, be accountable and transparent, yet appeared opaque and inconsistent in failing to explain why it failed to appoint two Western Cape High Court judges in April, said Judge Pete Koen in the Cape High Court yesterday.
KwaZulu-Natal High Court Judges Koen and Fikile Mokgohloa presided over the case against the Judicial Service Commission brought by the Cape Bar Council following the JSC’s failure to appoint judges to vacant positions on the Cape Bench on April 12, despite having suitably qualified candidates endorsed by the Cape Bar to choose from.
The JSC was interviewing seven candidates for three vacant posts but appointed only coloured Judge Robert Henney. The remaining six candidates were all white, five of them male.
Although the CBC’s submissions to the court avoid the question of race and focus on the argument that the 25 member JSC was not properly constituted and the JSC had a constitutional duty to appoint judges if they had suitable candidates, controversy has been stirred by the JSC’s lack of explanation as to exactly why the posts were left unfilled.
Friend of the court (Amicus Curiae) the Centre for Constitutional Rights – part of the De Klerk Foundation – contend that the JSC’s decision, or lack thereof, leads to speculation that none of the remaining candidates were chosen because they were white.
The only explanation provided by the JSC is that candidates were not selected because they did not receive a majority vote of 13 from the 25 member body. This despite the president of the Supreme Court of Appeal (SCA) not being present during voting on April 12, which the CBC argues is a constitutional requirement.
Additionally, the very rationality of the JSC’s voting process has been called into question by the CFCR, arguing that the procedure involving members being allowed one vote per vacancy meant that the greater the number of candidates, the less likely it was that any one of them would achieve a majority vote.
In questioning the JSC’s advocate Marumo Moerane SC, Judge Koen seemed to lean toward the CBC’s argument that the JSC failed to provide adequate reasons for its non-appointment of candidates.
“We don’t know why the positions were left unfilled,” said Koen, which led to speculation.
“We should not be left to speculate,” he said.
He said all that was known was that candidates did not achieve a majority vote, which was not satisfactory.
Judge Mokgohloa appeared to raise her eyebrows at the JSC’s convoluted argument that the SCA president did not have to appoint his deputy to preside at the April 12 sitting in his absence – as determined by the constitution – not because he was ‘unable to serve’ as worded in the constitution, but because he was absent.
The SCA’s president’s absence is one of the main reasons the CBC seeks an order that the JSC “reconsider afresh” the applications of candidates not selected on April 12.
Mokgohloa asked Moerane to clarify that his argument that the constitutional imperative that the SCA president appoint his deputy when his is ‘temporarily unable’ to sit on the JSC was not applicable because the SCA president was not ‘unable’ but absent.
“Yes, that is the submission,” replied Moerane.
Judgement on the case is reserved. – Steve Kretzmann