JSC may face bruising legal battle about appointments
The Judicial Service Commission appears to be headed for another bruising court battle because of its decision to pass over Advocate Jeremy Gauntlett SC for appointment to the Western Cape High Court.
Retired Judge Louis Harms, the former deputy judge president of the Supreme Court of Appeal, has instructed his lawyers to write to Chief Justice Mogoeng Mogoeng asking him to refer the recommendations back to the JSC for it to provide reasons for its decision to pass Gauntlett over.
The candidates for appointment to the court were only announced this morning, but Business Day reported last week that Gauntlett had been passed over for the fourth time.
Lawyers acting for Harms on Tuesday wrote to Mogoeng, saying that “the recommendation of the JSC appears on the available information to be prima facie irrational and unconstitutional”.
This comes after the Supreme Court of Appeal last month ruled that recommendations by the 25-member Judicial Service Commission on the appointment of judges could be subject to review by judges.
The case was taken to court by the Western Cape Bar, which wanted the JSC to give reasons why it had left two positions on the Western Cape bench open, when there were six candidates to fill them.
The JSC had responded to the case by saying that votes for candidates are a secret ballot and it could therefore not give reasons for its decisions.
The Supreme Court of Appeal found that, as a general rule, the JSC was “obliged to give reasons for its decision not to recommend a particular candidate if properly called upon to do so”.
The SCA also ruled that if the JSC’s voting procedures did not allow it to give reasons, they would have to be changed.
The commission has come under heavy criticism from certain sections of the legal profession for the candidates it recommends for judicial appointment.
Legal sources have attributed the recent lack of suitable candidates who made themselves available for appointment to an open spot on the Constitutional Court’s bench to a perception in the legal profession that the JSC makes its mind up about appointments before interviews are even conducted.
Legal professionals suspect that these decisions are motivated by politics rather than merit.
Sello Chiloane, of the JSC Secretariat, responded to Harms saying it was “inappropriate” for the commission to deal with the issues raised by Harms’s lawyers before the official announcement was made today.
During the announcement of appointments this morning Mogoeng said he had not as yet discussed with his colleagues whether to give reasons to Harms about the non-appointment of Gauntlett.
The correspondence between lawyers and the JSC over Gauntlett was posted on legal commentator Carmel Rickard’s blog yesterday afternoon.