The Council for the Advancement of the South African Constitution (Casac) has written to the Judicial Service Commission (JSC) asking for written reasons why it only recommended two candidates out of the 10 it interviewed for the Supreme Court of Appeal (SCA), leaving two posts vacant.
After lengthy interviews with 10 candidates on Monday and Tuesday this week, the JSC threw its support behind the nominations of Judges Fayeeza Kathree-Setiloane and Anna Maleshane Kgoele for positions at the SCA.
It announced its decision to only recommend two candidates to President Cyril Ramaphosa on Tuesday night.
Casac executive director Lawson Naidoo said it was “unusual” in these circumstances that the JSC advertised four vacancies but only recommended two judges to be promoted.
In its letter to the JSC, Casac said the effect of this decision was to leave the vacancies unfilled and the SCA “under-resourced and reliant on the appointment of acting judges”.
It further asked the JSC to state whether its decision was “rationally related to any legitimate purpose”.
“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,” read Casac's letter.
Casac has now asked the JSC whether, in its opinion, any of the eight candidates not recommended for appointment did not meet the requirements for appointment set out in the constitution and in the JSC’s criteria for the appointment of candidates.
Further, it asked for reasons why the JSC chose judges Kathree-Setiloane and Kgoele.
Casac also asked for a detailed breakdown of the voting procedure adopted in this instance.
In an interview with SAfm, Naidoo elaborated, saying Casac was not necessarily calling for the deliberations to be made public.
“I do think that reasons on why they found only two candidates worthy enough to be recommended for SCA judges and leave two vacancies unfilled should be made public.
“The interviews were directed at assessing the skills and competence of the candidates before them, so it is really surprising that at the end, only two names emerged,” he said.
Naidoo added that Casac believed it was important to promote the principles of transparency and, more importantly, to actually hold JSC accountable.
“We have asked for the reasons because it is not clear that they said the other eight candidates were not competent.
“They need to tell us precisely the reasons because questions are being asked.
“The public deserves an answer on that,” Naidoo said.