Kriegler calls JSC rerun of apex court hearings a disgrace but ‘it is just as well’

It is tragic but necessary that the Judicial Service Commission (JSC) has to rerun interviews for two Constitutional Court vacancies, says retired justice Johann Kriegler.

The high court in Johannesburg reviewed and set aside the JSC’s shortlist of judges for the apex court on Wednesday last week, paving the way for the body to conduct the interview process for two vacant posts again, after the sittings in April were slated.

The rerun brought to the fore claims of political meddling in judiciary appointments, with many critics accusing the JSC of poor, unprofessional handling of the interview process.

“It is a disgrace that the JSC has had to agree to this. But it is just as well, because the conduct […] was irrational and a failure of their constitutional duty. It’ sa tragedy but it’s [just] as well that they will be rerunning the process,” Kriegler said.

The retired judge presided in the Constitutional Court from 1994 until 2002. Kriegler now chairs nonprofit organisation Freedom Under Law (FUL), which was established to monitor and tackle concerns about the administration of justice.

“The JSC over more than a decade has been [a] cause of great concern to us,” he said.

The JSC’s rerun of interviews is scheduled for October 4 to 8. By then there will most likely be two more vacancies in the top court, because justices Chris Jafta and Sisi Khampepe will retire in late September.

The judges who made the cut the first time around can try again. In the first round the JSC shortlisted five out of eight judges interviewed: Fayeeza Kathree-Setiloane, Jody Kollapen, Rammaka Mathopo, Mahube Molemela and Bashier Vally. The three not shortlisted — Christopher Dodson, Dhaya Pillay and David Unterhalter — now have another shot.

The Council for the Advancement of the SA Constitution (Casac) took the JSC to court in June over the interviews. Casac’s executive secretary, Lawson Naidoo, told the court the JSC posed irrelevant questions, blindsided candidates and used interviews to settle personal scores. The rerun, he said, must take place urgently.

Last Wednesday’s court order came a week after President Cyril Ramaphosa defended the ANC’s deployment committee. Speaking at the state capture inquiry he confirmed the committee discussed judicial hires and said political parties worldwide lobby for preferred candidates. The ANC does not decide who becomes a judge, he said..

Constitutional law professor Pierre de Vos said it would be a problem if the ANC dictated to the JSC who should be appointed to the bench.

“They cannot outsource the decision to the deployment committee. If they do that, I think it would be unlawful. It’s a bit of a delicate balance.”

It is to be expected that JSC commissioners would fight their corners, De Vos said.

“The JSC is a body that by design contains politicians, lawyers [and] political appointees from the president. So you can’t insulate it from politics in the broad sense,” he said.