Freedom Under Law (FUL) says it will legally challenge the Judicial Service Commission's (JSC's) "inadequate" reasons for only filling two of four vacancies at the Supreme Court of Appeal – and snubbing two candidates who it described as "excellent".
FUL made the decision to seek a review of the JSC's SCA appointment process after reading the reasons that the commission provided to the Council for the Advancement of the SA Constitution (Casac) about why it only filled half of the Appeal Court vacancies during interviews held last month.
"FUL has studied these reasons 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," it said in a statement.
"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. As a courtesy, FUL has advised the JSC [of this] today."
In a letter sent to Chief Justice Raymond Zondo, the chairperson of the JSC, FUL's Judith February explained that the organisation "has significant concerns about the process followed by the JSC, and the ultimate appointment recommendations" during the SCA interviews.
"Accordingly, FUL has resolved to take the JSC's decision on review," she said.
That legal action will force the JSC to fully disclose the nearly four hours of deliberations that resulted in the commission appointing Judges Fayeeza Kathree-Setiloane and Maleshane Kgoele to the SCA.
While Kathree-Setiloane was clearly a favourite among commissioners (having received 20 votes from a pool of 23 commissioners), the JSC's letter to Casac reveals that some commissioners were "not convinced" by the answers that Kgoele gave in her interview, "and whether these reflected an adequate grasp of legal principles".
Those reasons also revealed that unsubstantiated claims of racism and arrogance blocked widely respected Judge David Unterhalter from being appointed to the SCA. The judge had not been asked to address any of 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 to SA's second most powerful court.
The only explanation for that non-appointment appeared to lie in unsubstantiated racism claims.
"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," the JSC stated in its letter to Casac – without providing any further details of these claims or who had made them.
The JSC also noted that some of its commissioners had considered Gauteng High Court Judge Thina Siwendu - who had competently handled a number of high-profile cases and had much-needed experience as a commercial lawyer and business rescue expert – as "an excellent candidate" who had "written cogently on questions of transformation of society and rule of law".
Despite this, "some" unnamed commissioners felt that Siwendu did not have enough experience as a High Court judge, the JSC told Casac.