Legal battle over filling of ConCourt vacancies intensifies

THE legal battle over the non-filling of vacancies at the Constitutional Court has taken a new twist, after a Tshwane man challenged the decision to reopen interviews for the positions in the country's highest court.

Reyno de Beer, of the Liberty Fighters Network (LFN), has asked the South Gauteng High Court to declare the August 18 order – for the Judicial Services Commission (JSC) to reconvene and interview the eight candidates for positions in the Constitutional Court – invalid.

The order was granted, after the Council for the Advancement of the SA Constitution (Casac) approached the high court to have the interview process reviewed.

Alternatively, De Beer wants the high court to set aside its decision.

Judges Fayeeza Kathree-Setiloane, Jody Kollapen, Rammaka Mathopo, Mahube Molemela, Bashier Vally, David Unterhalter, and advocate Alan Dodson SC, are scheduled to be interviewed by the JSC next month.

The JSC recommended Judges Kathree-Setiloane, Kollapen, Mathopo, Molemela, and Vally, for appointment by President Cyril Ramaphosa in April.

In a further twist to the saga, Judge Dhaya Pillay opted out of the new interview process, after failing to be recommended earlier this year.

De Beer wants the order for the interviews to be restarted, rescinded, or declared invalid, on the basis that it was void ab origine (from the beginning) due to having resulted from procedural irregularities.

According to De Beer, the court was also erroneous in granting the order for interviews to be restarted, in the absence of parties affected by the decision, and on the basis that the court granted the order as a result of a mistake.

“The hearing, at which the purported settlement agreement was made an order of the court, was unlawful,” he said.

The LFN believes that the JSC and Casac concocted a settlement and that they are to blame for what it referred to as a “travesty”.

“Such conduct needs to be investigated and possibly referred, as this court pleases, mero motu (of its own accord) by the court, to the Legal Practice Council and the bar,” De Beer argues in his court papers.

He continued: “There does not appear to be any procedural precedent as to why the full court omitted to question the legitimacy of the purported settlement agreement between the parties (JSC and Casac) and, nevertheless, made the very agreement an order”.

De Beer said, while he agreed that appointments to the apex court must be products of a process that was free of wrongdoing at any point, the JSC's decisions were not cast in stone and, ultimately, Ramaphosa – after consultations – may, on proper cause, appoint different candidates.

He also accused Casac of wanting the high court to be a mouthpiece for the unsuccessful candidates.

“The applicant humbly submits that the current repeat interview process, reportedly under way before the first respondent (JSC), is unlawful and of no legal consequence,” De Beer argued.

He has asked that the matter be heard on September 28.