CASAC RECEIVES WRITTEN REASONS FROM THE JSC REGARDING THE FILLING OF SCA VACANCIES
8 November 2023
On Monday 6 November 2023, CASAC received written reasons from the Judicial Service Commission (JSC) regarding its decision to recommend only two candidates for appointment to the Supreme Court of Appeal following the JSC interviews held in early October.
In its letter, CASAC requested the reasons underlying the JSC's decision to leave two seats on the Supreme Court of Appeal vacant, despite interviewing ten (10) candidates for the four (4) advertised vacancies. In its response to the above, the JSC distilled the essence of its private, closed-door deliberations, explained the voting procedure that was adopted and outlined the Commissioners' reasoning in respect of each candidate.
While the JSC's processes remain deeply flawed and in need of urgent reform, CASAC welcomes the JSC's response as a positive step towards greater transparency regarding how it discharges its important constitutional function. CASAC views transparency as indispensable in deepening constitutional democracy and ensuring adherence to the rule of law.
CASAC believes that the publishing of written reasons following the JSC's recommendations should become a common practice as part of the JSC's obligation to be accountable to the public, and to deepen a culture of transparency.
CASAC Executive Secretary, Lawson Naidoo said:
"We look forward to engaging further with the JSC, with a view to contributing towards the reform of the processes of this important constitutional structure, and welcome this substantive response as a suitable starting point".
In the interest of transparency and openness, both CASAC's request for reasons and the JSC's response have been made available on our website (see below)
Text of Casac’s letter and the reply:
The Judicial Service Commission Midrand
Gauteng
c/o: Ms K. Moretlwe
05 October 2023
Dear Chief Justice and Commissioners,
REQUEST FOR REASONS: SUPREME COURT OF APPEAL VACANCIES
1. The decision of the Judicial Service Commission (JSC) to recommend only two candidates for four vacancies on the Supreme Court of Appeal on 03 October 2023 refers.
2. We note with concern that the JSC, despite having interviewed ten (10) candidates
over the course of two days, has elected not to recommend candidates for appointment to all four vacancies on the Supreme Court of Appeal. This in circumstances where the JSC advertised four vacancies, and shortlisted and interviewed candidates on that basis.
3. The effect of this decision is to leave the vacancies unfilled and the Supreme Court
of Appeal under-resourced and reliant on the appointment of acting judges. We note too that these vacancies have existed for a long period of time.
4. The JSC has a constitutional obligation to advise the President on the appointment of judges to the Supreme Court of Appeal, which it must fulfil, in terms of section 237 of the Constitution, diligently and without delay.
5. In particular, we wish to be informed of the following:
5.1. whether, in the opinion of the JSC, any of the eight candidates who were not
recommended for appointment do not meet the requirements for appointment as set out in section 174(1) and 174(2) of the Constitution;
5.2. whether, in the opinion of the JSC, any of the eight candidates who were not
recommended for appointment do not satisfy any or all of the criteria set out in the JSC’s ‘Criteria and Guidelines for Judicial Appointment’ document, and if so, which of those criteria applies in relation to each candidate; and
5.3. whether the JSC’s decision is rationally related to any legitimate purpose.
6. We also request written reasons for the JSC’s decision to recommend the two recommended candidates. In particular, the reasons why the JSC considered the two candidates to fulfil both the constitutional criteria and the JSC’s published criteria and guidelines both individually and in contradistinction to the rest of the candidates.
7. In view of the fact that the JSC’s decisions are taken by majority vote in terms of section 178(6) of the Constitution, we also request a detailed breakdown of the voting procedure adopted in this instance.
8. We also wish to state, at this stage, that we consider the JSC’s decision to not recommend candidates for all four vacancies to be prima facie irrational and contrary to its constitutional obligations.
9. We therefore request written reasons for the JSC’s decision not to recommend four candidates to fill four vacancies on the Supreme Court of Appeal and its decision to recommend the two particular candidates.
10. For the avoidance of any doubt, we do not seek access to the deliberations of the JSC but merely the reasons for its decision, which should be made public as a matter of course.
11. We hope to receive a favourable response from you soon.
Yours sincerely
Lawson Naidoo Executive Secretary Council for the Advancement of the South African Constitution (CASAC) [email protected]
***
OFFICE OF THE CHIEF JUSTICE REPUBLIC OF SOUTH AFRICA 6 November 2023
Mr Lawson Naidoo
Executive Secretary
Council for the Advancement of the South African Constitution (CASAC)
Mowbray
CAPE TOWN
8000
Dear Mr Naidoo
RE: REQUEST FOR REASONS: SUPREME COURT OF APPEAL VACANCIES
1. I refer to your letter dated 5 October 2023.
2. I am directed to provide the following response to your letter:
2.1 The Chairperson of the Commission apologises for the delay in responding to your
letter and appreciates your patience and understanding.
2.2 Before responding as set out below, it is important to point out that the Commissioners
had regard not only to the performance of the candidates in their respective interviews but also that they had regard to all the material that was before them including the length of judicial experience of the candidates.
2.3 The Commissioners were informed by the Deputy President of the Supreme Court of
Appeal that there was a serious problem that the SCA had, namely, that many experienced Judges had retired and that, therefore, the SCA was in great need of
"heavy lifters" and Judges who would "hit the ground running".
2.4 Paragraph 2 of your letter states that the Judicial Service Commission (JSC) "has elected not to recommend candidates for appointment to all four vacancies on the Supreme Court of Appeal." The JSC did not take any specific decision not to fill all four vacancies on the Supreme Court of Appeal. The circumstances in which the JSC decided to advise the President to appoint two candidates to the SCA are the following:
2.5 Judges of the Supreme Court of Appeal are appointed by the President on the advice of the JSC in terms of section 174(6) of the Constitution. These are Judges of the Supreme Court of Appeal other than the President and Deputy President of the SCA who are appointed in terms of section 174(3) of the Constitution.
2.6 Section 178(6) states: "The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members."
2.7 When interviews were conducted for the SCA in October 2023, there were 23 commissioners eligible to participate in the interviews, deliberations and voting. A candidate had to secure at least 12 votes to enable the JSC to advise the President to appoint him or her as a Judge of the SCA.
2.8 After the interviews, the first round of voting resulted in one candidate obtaining 19 votes and four candidates obtaining 12 votes each. Except for the candidate who got 19 votes, no other candidate got more than 12 votes. Since only four candidates could be appointed, the JSC resolved to conduct a second round of voting to resolve the tie. During the second round of voting the candidate who had obtained 19 votes in the first round got 20 votes and only one candidate secured 12 votes. All other candidates received less than the required minimum of 12 votes. One of the candidates who had obtained 12 votes in the first round obtained 11 votes in the second round. This means that this candidate was one vote short of the required minimum of 12 votes. The result was that, since only two candidates obtained 12 votes or more, the JSC could only advise the. President to appoint those two candidates.
3. In paragraphs 3 and 4 of your letter, it is stated that the fact that two and not the advertised four positions could be filled has left the SCA "under-resourced" in circumstances where the vacancies had existed for a long period of time. The JSC agrees with you that judicial vacancies should be filled without unreasonable delay and it is undesirable for a court such as the SCA to be "under-resourced". However, it must be pointed out that one of the factors that may have influenced one or more of the Commissioners not to vote for some of the candidates is the fact that the Deputy President of the SCA informed the JSC that the SCA had lost very experienced Judges which was understood or may have been understood to mean that it needed experienced High Court Judges to replace the experienced Judges that it had lost. There was a view that some of the candidates still needed more experience in the High Court before they could be appointed to the SCA.
4. Paragraphs 5.1 to 5.3 of your letter enquires whether in the opinion of the JSC any of the candidates who were not recommended do not meet the requirements of sections 174(1) and (2). The JSC did not form such opinion in relation to any of the candidates who were not recommended. You also wanted to find out whether the JSC formed the view any of the candidates who were not successful did not meet the JSC's Criteria and Guidelines for Judicial appointments. It is important to point out that the Commissioners bore in mind that these were vacancies in the second highest court in the land and that, therefore, a higher degree of knowledge of the law and experience were required. In this regard it is important to point out that the requirement of "fit and proper" includes, among other factors, experience. Some Commissioners did feel that some of the Candidates did not have the amount of experience that was required for a Judge of the SCA.
4.1 Only four candidates could be recommended. The procedure employed by the JSC
when considering candidates after their interviews is as follows:
4.1.1 The Head of the Court in which a vacancy or vacancies being considered is invited by the Chairperson of the JSC to give his or her views on the interviews and the candidates to guide the commissioners in their deliberation. Justice Molemela. the President of the SCA, had recused herself from the interviews and Justice Petse, the Deputy President of the SCA, stood in her stead. Justice Petse outlined the needs of the court, noting that with recent retirements from the SCA, the court had lost some 200 years of experience. He then identified four candidates by reference to their experience and expertise that he proposed for recommendation by the JSC.
4.1.2 Commissioners usually first deliberate on the names proposed by the Head of the Court, but any commissioner is free to introduce any other candidate that they consider should be recommended, either in support of the candidate recommended by the Head of the Court or in opposition thereof. The same procedure was adopted during these interviews. Commissioners expressed their views on the candidates.
4.1.3 Once these views were expressed, there was a vote. The JSC only advised the President to appoint only those candidates who got 12 or more votes. No decision was taken by the JSC that any of the candidates that were not recommended did not meet the requirements of section 174(1) and (2).
5. You have also enquired whether the "JSC's decision" is related to any rational purpose. The JSC believes that all decisions it made related to a legitimate purpose. Indeed, it also believes that the procedure it adopted in making its decisions related to a rational purpose.
6. Paragraph 6 of your letter requests reasons for recommending the two candidates, being Judge Kathree-Setiloane and Judge Kgoele. The candidates who were recommended received the required majority vote. Commissioners deliberated on the merits of all candidates by reference to the Constitution and the JSC published criteria for judicial selection. The summary which follows is based on the views expressed by the Commissioners who motivated for the recommendation of the recommended judges.
6.1 Judge Kathree-Setiloane was considered to be an outstanding candidate. She has a
broad range of expertise in various areas of law, including constitutional and administrative law, labour law, competition law and general commercial law. She has acquired experience as an appellate justice at the Constitutional Court, Supreme Court of Appeal, Competition Appeal Court and Labour Appeal Court. She performed well during the interview and demonstrated a clear grasp of understanding of the role of the SCA. She is also committed to transformation of society and the legal system as it is apparent from her CV. Judge Kathree-Setiloane received 20 votes.
6.2 Judge Kgoele was considered to qualify for recommendation based on her writing
abilities, the symbolism of her appointment from a transformation perspective and her experience in general areas of the law. Some commissioners were not convinced about the answers she gave during the interviews and whether these reflected an adequate grasp of legal principles and whether she had acquired enough experience to qualify for appointment to the SCA. Judge Kgoele received 12 votes.
7. You have enquired about how these candidates are viewed in comparison to the candidates who were not successful. From the record of the deliberations, these views were expressed in relation to the candidates:
7.1 The commissioners who motivated for Judge Unterhalter stated that he was an excellent judge. He had acquired appellate experience at the Constitutional Court, Competition Appeal Court and at the SCA. His judgments are praised by his colleagues and members of the legal profession alike, for their erudition and insightfulness. Petse DP stated that the SCA needs "heavy lifters and lawyers of substance", of which Judge Unterhalter was considered as one. It was also noted that he has usually been allocated more than his fair share of judgments per term. Some commissioners stated that Judge Unterhalter is not a team player and appears to be arrogant and even "racist". These allegations were considered by some commissioners to be without substance and baseless.
7.2 Some Commissioners considered Judge Siwendu to be an excellent candidate whose judgments, both at the High Court and the SCA demonstrate a clear understanding of legal principles. In her judgments she has also written cogently on questions of transformation of society and the rule of law. However, some Commissioners felt that, having been a Judge of the High Court only for six years or so, she still needed to gain more experience in the High Court before she could be appointed to the SCA, especially because the Deputy President of the SCA, Justice Petse, had told the Commissioners that the SCA had lost a lot of experienced Judges which suggested that all attempts should be made to replace them with experienced High Court Judges. During her interview, Judge Siwendu was candid with Commissioners and described herself as "work in progress". She was also candid with the Commissioners and told them that, prior to her interview, she had heard the questions that had been put to other candidates which were also put to her.
7.3 Judge Smith was considered to be experienced in general as a judge, but some
commissioners were not convinced about his experience specifically as an appellate justice.
7.4 Commissioners considered that Judge Daffue had performed poorly during his interview. There were several judicial shortcomings that were highlighted in the exchange with Justice Petse during the interviews which must have led to him not receiving enough votes.
7.5 Justice Petse expressed the view that Judge Masipa required more experience. He noted that Judge Masipa had been allocated judgments to write when she was an Acting Justice at the SCA but the quality of her drafts in some of those judgments was not considered satisfactory and, for that reason, some had to be co-written with other colleagues before they could be considered ready for hand down.
7.6 Judges Mjali and Nhlangulela were considered to lack appellate experience. It was
noted that with more acting opportunities, they could improve their abilities as potential justices of the SCA.
7.7 Judge Phatsoane was viewed to be a great prospect, but there was a sense that her
application for elevation to the SCA was premature.
8. In relation to paragraph 7 of your letter, it should be noted that the voting procedure is in secret. It is not possible to know the identities of the commissioners who voted for certain candidates and their reasons for doing so.
9. The length of service of the Candidates was as set out in the attached annexure "A".
10. It is hoped that this letter throws light on the matters you raised.
Yours sincerely
Mbali Mondlane (Ms)
Judicial Service Commission Office of the Chief Justice
ENDS
Issued by Casac, 8 November 2023
