A critique of the April 2021 Judicial Service Commission hearings
The Council for the Advancement of the Constitution (CASAC) lifted the lid in June this year on a small part of what uSpiked suspected was wrong with how judges of the High Court are selected.
The Judicial Service Commission (JSC) is the constitutionally mandated body that interviews and recommends suitable candidates to the President for appointment as High Court judges.
Following a 2018 precedent-setting Constitutional Court decision in which the Helen Suzman Foundation was granted access to the private deliberations of the JSC, it’s becoming clear that JSC, has somewhat allowed for this mandate to be usurped by some outside parties. That precedence thanks to CASAC’s June 2021 High Court application, this journalist landed access to records of the April 2021 deliberations of the JSC and supposed interviews of the candidates for appointment to the apex court, and the JSC complied.
According to CASAC’s Lawson Naidoo, Chief Justice Mogoeng did not provide the rationale for the inclusions of the shortlisted candidates. However, the CJ provided brief reasons why the JSC had excluded three potential candidates.
- Alan Dodson SC: “had been out of judicial action” for a long time and, when he had been a judge, it was in the Land Claims Court.
- Judge David Unterhalter: “a very able judge but he has only just arrived”… “three years and I think he can afford to wait. [haven’t we heard that before, the youthful ones can wait their future turns -Editor] There will be vacancies coming. Let him wait and then we will see at that stage.” He added that the JSC should discourage the “kind of behaviour” where “colleagues wait for as long as they want to in practice, come in and shortly thereafter are elevated not to the second-highest court in the land even, but to the highest court in the land”.
- Judge Daya Pillay: “I won’t … say much really. I do not think judge Pillay should be part of that list. I would leave it to those who want her to be on the list if there are any to substantiate.”
In his supplementary founding affidavit, Naidoo said that instead of deliberating on each candidate, “a pre-selected list was produced by Chief Justice Mogoeng Mogoeng.” The CJ “…never explained how, where, when, why or with whom he had prepared such list. The list itself was never subjected to an examination against any standard. The deliberations, such as they may exist, can properly be described as a sham.”
uSpiked will be keenly watching CASAC’s case to see whether the adage that “the fish rots from the head” will prove itself true.
The process for the appointment of judges is supposed to be transparent. The public and taxpayers have an interest in the appointment of judges and are therefore entitled to know the substratum which may form the subject of discussion during the televised interviews. The judiciary is the third arm of our constitutional state and has a vital role in the dispensation of justice.
Comments on the candidates fulfil an important role in the process by bringing to the attention of the JSC’s Commissioners information that might not otherwise be known. This is laudable and works when private individuals comment, as the identity of the commentator is known, and the candidate can deal head-on with any concern raised.
It came as some surprise when the Johannesburg Society of Advocates (JSA) surreptitiously posted comments on several candidates who had been shortlisted for the April 2021 JSC interviews, before those comments had even been processed by the JSC and sent to the candidates concerned. After uSpiked started investigating, it became apparent that this was no accident and nothing more than an ambush. The reviews were published with indecent haste – replete with schoolboy errors. On consideration of the reviews as a whole, the reader is left with no doubt as to who the supported candidates were and those who weren’t. For example, a candidate is lauded for delivering judgments expeditiously and another is criticised for doing the very same thing.
On balance, these reviews are nothing more than a partisan attempt to persuade the members of the JSC to support the preferred candidates of the General Council of the Bar (GCB).
Are the GCB and JSA the same? The link in this particular instance is a far more direct and worrying one. GCB chair Craig Watt-Pringle does not feature on the JSA’s council or any of its committees. A straightforward request addressed to Richard Moultrie SC, chair of the JSA’s Judicial Candidates Review Committee (JCRC), for the names of the members that prepared individual reviews were met, somewhat surprisingly, with a response by Watt-Pringle – on the GCB’s letterhead – that “In the circumstances (and apart from the fact that we consider that the identities of the authors are not relevant and indeed that their disclosure could be counterproductive given the nature and purpose of the reviews), we consider that we are not obliged to furnish you or any other person with the names of the reviewers.” [Did the GCB subcontract the JSA to undertake the reviews on its behalf, and did the members of either the GCB or its constituent bars even know about this? – Editor]
The GCB misguidedly seems to regard itself as the guardian of the judiciary and the gatekeepers of judicial appointments. Their activities in appointments of judges appear identical to the American Conservative think tank The Heritage Foundation that was able to fill US Federal Courts with right-wing judges during President Trump’s four years in office.
It appears that Richard Moultrie, a freshly minted Senior Counsel and chamber mate of Watt-Pringle, was the tool used by him to ensure that the JSC had before it the so-called “independent reviews” which leaned heavily in favour of Watt-Pringle’s preferred candidates. Unsurprisingly Watt-Pringle has taken over to only that which only he can.
Neither the GCB nor the JSA subscribe to that principle – drummed into first-year law students – audi alteram partem (hear the other side). Surprisingly, where aspersions were cast on the characters of individuals they were not given the right of reply so that their side could be heard before scurrilous and defamatory materials were placed in the public domain on the JSA website, and then sent to the JSC. The intention of raising matters in this way was nothing more than to ambush and embarrass the unpreferred candidates and to mislead the JSC interviewing panel (Commissioners) and the public.
[The seemingly single-sourced reviews and comments on the candidates published by the JSA are so grotesque that uSpiked found to tread within that thin line of libel. Though the reviews and comments are still available on JSA’s website, uSpiked has made an editorial decision not to provide a link to it. -Editor]
It is astounding, given the allegations made against certain candidates that when this journalist asked for the names of the authors of the reviews that the GCB and JSA both said that neither was a public body nor would they be making any statement on the reviews – not surprising since they had the last word before the candidates would have to deal publicly with the allegations in the crucible of the interviews. If the reviews had been prepared with any modicum of adherence to the basic principles of natural justice, then this may all have been nothing more than a storm in a teacup. The anonymous reviews of unfavoured candidates are replete with references to complaints and criticisms by “members”. These members are not identified, and with good reason, as uSpiked has discovered in considering the tale of two candidates.
For some candidates it was the best of times, for others it was the worst of times. For those who withdrew their candidacy before the interviews even commenced, it was the age of wisdom. For some candidates, it was the epoch of incredulity. For truth and justice, it was the winter of despair although the interviews generated as much heat as they did light on what was afoot.
[With thanks to Charles Dickens and commiserations to those who fell victim; Editor.]
During the interview of Judge Bashir Vally, GCB representative, Commissioner Jenny Cane SC, who is, coincidentally, also a chamber mate of Watt-Pringle, sprung the trap.
On 1 November 2018 the Legal Practice Council (LPC) became the guardian (custos morum) of the entire legal profession: both attorneys and advocates.
This journalist has inquired how it is that the GCB, (on the face of it, one man and a fax machine plus a website outfit), can claim to be a representative of the advocates’ profession.
The reviews were undated, the name/s of the reviewer/s were not disclosed, the reviews were not written in the forensic style that one would expect of a member of the advocates’ profession. They were shockingly amateurish and contained schoolboy errors. In addition to this, it was obvious that the drafters of the reviews favoured certain members of the advocates’ profession whom the GCB or JSA wanted to crack the nod. [No reasonably intelligent client would have parted with good money for written opinions in the style of claptrap produced by the JSA’s reviewers. Btw uSpiked has cloned these reviews and comments just in case JSA get to see their questionable ways. Editor]
Space does not permit an analysis of all the candidates whose reviews this journalist has investigated. There are two candidates whose reviews and JSC interviews demonstrate that the GCB and JSA reviews are not to be relied upon and are forensically flawed.
The ambush having been set, all that was required was for the anonymous allegations to be raised during the interviews – for which Commissioner Jenny Cane SC, obliged and dutifully played the role of the Judas goat. Did the candidates oblige the GCB’s agenda?
JUDGE BASHIER VALLY
If the GCB believed Judge Vally would be a lamb to the slaughter they were sadly mistaken. Without missing a beat, Judge Vally laid bare the allegations against himself for the nonsense that they were, and was able to name Watt-Pringle as the source of one of those allegations and even named the case in which he had to castigate counsel for their unprofessional behaviour. [Settling old scores. – Editor]
The pain did not stop there – Judge Vally disclosed to the interviewing Commissioners that Group 16, a long-standing, well-regarded and influential advocates group, had written a letter to the JSC distancing itself from Judge Vally’s review recording its dispute of the contentious allegations. So too did two Senior Counsel, Philip Mokwena and William Mokhari,
Unstoppable Judge Vally went further and invited Commissioner Jenny Cane SC to elucidate the bald allegations in the review – something that she was unable to do, and making all the plainer the GCB’s agenda. During the deliberations of the JSC, Commissioner Cane made it clear that irrespective of the facts, she was going to pursue the agenda of the GCB.
The interview with Judge Vally took place on the second day and the tone and modus operandi pervaded each interview for the remainder of the two weeks that the JSC sat.
ADVOCATE BRAD WANLESS SC
The pinnacle of the GCB’s malevolence was reached in the final days of the interviews. In the review of Advocate Wanless, an anonymous harassment allegation was made. The pillar on which his candidacy was to be derailed was what can only be described as a contrived allegation of harassment.
When Wanless asked the GCB, before his interview, for particularity, the high watermark of the complaint was reached with the disclosure that the complainant was an unknown baby junior advocate, David du Plessis, the former CEO of a litigant that Wanless had represented and with whom there had been a fee dispute.
While money is not the root of all evil, the love of it is, and this may explain du Plessis complaint of the alleged harassment of an anonymous lady some nine years previously in the presence of third parties. Curiously, du Plessis did not lodge any complaints with any professional body – choosing instead to keep the allegation to himself until it was needed.
Wanless addressed the allegations in detail to the JSC but the GCB was aware of the fact that the JSC was not in a position to deal with his rebuttal on the spot. Wanless withdrew his candidacy allowing for the allegation to be properly investigated. Perversely, the fact that Wanless did the right thing ended up serving the GCB agenda! He was out of the running.
Wanless subsequently referred the allegations to the Legal Practice Council (LPC) for investigation. The LPC, after consideration of the statements of two lawyers who were at all times present with Wanless and who had denied that any such thing ever occurred, found that it was a baseless allegation. The LPC convened an investigating committee led by highly-regarded Advocate Mark Harcourt SC. The LPC review states, “The conduct of the JSA certainly, raises eyebrows. And the suggestion can arguably be made that it is just conveying tittle-tattle.” [It begs the question whether this was vengeance against Wanless, or whether it was naked ambition on the part of du Plessis – Editor]
uSpiked suspects that this may explain the belated allegation by du Plessis because he was aggrieved with Wanless and, as an act of vengeance, allowed himself to be used by the GCB to take Wanless out of the running. While they may have succeeded in derailing his April 2021 candidacy, the review having been shown to be demonstrably false, hopefully, Wanless won’t be deterred in his quest to serve his country as a judge.
uSpiked holds no candle for any particular candidate but wonders why some so-called professional bodies have to stoop to these lows to besmirch the candidacy (and reputations) of those who are fit and proper to hold judicial office. But we must pause to ask, how many current members of the bench were pushed onto taxpayers by GCB? In other words for how long has GCB been identifying and recommending candidates to JSC for judicial appointments.
When nameless, faceless people make allegations that cannot be challenged, one has to ask oneself what and whose agenda is being served?
This article was originally published on 11 August 2021 on Uspiked.com.