Disagreement over the suitability of Northern Cape Judge President Frans Kgomo and Johannesburg High Court Judge Nigel Willis for a seat in the Constitutional Court led to last week’s unexpected re-opening of applications for the position.
On Wednesday the Judicial Service Commission (JSC) made this announcement after interviewing judges Edwin Cameron, Shenaz Meer, Kgomo and Willis. The seat becomes vacant when Judge Tholakele Madala retires next month.
”Although four candidates were interviewed, the JSC considered that the names it would be able to submit to the president, as a result of the interviews, fell short of the requisite number of four,” said a statement signed by Chief Justice Pius Langa.
The Constitution requires, in the case of the highest court in the land, that the body submit, without a recommendation, a list consisting of at least four names.
In addition to the four judges who were interviewed, the original short-list contained three other judges who later withdrew from the race.
First to withdraw was Pretoria High Court Judge Eberhard Bertelsmann. Then, unexpectedly in the week they were to be interviewed, judges Franklin Kroon and Chris Jafta also stepped down.
Kroon and Jafta were both acting judges at the Constitutional Court when Cape Judge President John Hlophe is alleged to have attempted to improperly influence the 11 judges of the court to rule in Jacob Zuma’s favour. The Mail & Guardian previously reported that it was the Hlophe matter that contributed to the two stepping down.
The M&G has reliably learnt from four members of the JSC that although there was unanimous agreement on the suitability of Cameron, the members were especially divided on the suitability of Kgomo and Willis. Kgomo, the M&G has learnt, caused the most animosity, with the majority of members feeling he was not ”appointable”.
This, the members added, left the commission with no option but to re-advertise the post as the legislation does not permit a list of fewer than four names to be sent to the president.
”We were suddenly faced with a situation where it was send the four names or send nothing at all,” one JSC member told the M&G.
JSC spokesperson advocate Marumo Moerane told the M&G that the body was ”uncomfortable” sending the list of four to the president as it stands. He added that it was not unprecedented for the JSC to decide to re-open the interview process.
The M&G has previously reported on the tough questioning Kgomo faced during his interview two weeks ago, with the majority of JSC members pointing to a Supreme Court of Appeal judgement that accused him of bias in the racially charged case of Joseph le Grange.
Kgomo’s judgement in that case was overturned by the appeal court, which ordered that Le Grange and his co-accused be re-tried by another judge.
One JSC member, Koos van der Merwe of the Inkatha Freedom Party, told Kgomo during his interview that he would not be recommending him for any further promotion, as he was not ”fit and proper to be a judge”.
Van der Merwe confirmed to the M&G last week that he had adopted the same position when the list of candidates was discussed by the JSC.
Other members of the JSC, the M&G has been told, were not at all happy with Willis, who got a tongue-lashing from advocate George Bizos during his interview over the issue of socioeconomic rights.
Willis, who told the JSC that he felt he was suitable for appointment because he is married to a ”previously disadvantaged” woman, took the unusual step of analysing Constitutional Court judgements since the inception of the court as part of his application.
He was taken heavily to task about his views on such cases as the landmark Grootboom case.
The JSC will reconvene in Johannesburg on December 12 to interview candidates in a completely new process.