Freedom Under Law (FUL) says it will legally challenge the Judicial Service Commission’s inadequate reasons for only filling two of four vacancies at the Supreme Court of Appeal – and snubbing two candidates whom it described as ‘excellent’.
FUL studied the reasons that the Commission provided to the Council for the Advancement of the SA Constitution (CASAC) and ‘is of the view that the reasons are inadequate, and do not address the significant public concerns which were raised about the appointments in the immediate aftermath of the interviews.’
‘FUL has accordingly resolved to take the JSC’s decision in relation to the appointments to the Supreme Court of Appeal on review, and is instructing its legal representatives accordingly.’
Legal action will force the JSC to fully disclose the nearly four hours of deliberations that resulted in the commission appointing Maleshane Kgoele to the SCA.
The JSC’s letter to CASAC reveals that some commissioners were ‘not convinced’ by Kgoele in her interview and doubted ‘whether these reflected an adequate grasp of legal principles’.
The reasons also revealed that unsubstantiated claims of racism and arrogance blocked Judge David Unterhalter from being appointed. The judge was not asked to address these accusations during his interview.
Despite being described by SCA Deputy President Xola Petse as one of the ‘heavy lifters and lawyers of substance’ that the Appeal Court desperately needs, following the retirements and promotions of its most senior judges, and being praised for his erudite rulings and solid work ethic, Unterhalter was not appointed.
Some commissioners stated that Unterhalter is not a team player and appears to be arrogant and even ‘racist’. The JSC, in its letter, said these allegations were considered by some commissioners to be without substance and baseless, but without providing any further details of these claims or who had made them.