CHIEF Justice Raymond Zondo has been accused of trying to influence the judicial appointments that were under way this past week.
This was after Justice Zondo was asked to provide his reasons for recommending two candidates for the Supreme Court of Appeal (SCA) vacancies.
The Judicial Service Commission (JSC), chaired by Justice Zondo, has been conducting interviews in various courts across the country, including the SCA.
The commission initially advertised five vacant positions for the appellate court earlier this year, but one post was later withdrawn.
For two days the JSC interviewed 10 candidates but only recommended the appointments of Judges Fayeeza Kathree-Setiloane and Maleshane Kgoele to the SCA.
However, the Council for the Advancement of the South African Constitution (Casac) has written to Justice Zondo, asking him to explain the decision.
In the letter, dated October 5, Casac said the effect of this decision is to leave the vacancies unfilled and the SCA under-resourced and reliant on the appointment of acting judges.
The council also asked to be informed of the following:
- Whether, in the opinion of the JSC, any of the eight candidates who were not recommended for appointment do not meet the requirements for appointment as set out in Section 174(1) and 174(2) of the Constitution.
- Whether, in the opinion of JSC, any of the eight candidates who were not recommended for appointments do not satisfy any or all of the criteria set out in JSC’s Criteria and Guidelines for Judicial Appointment document, and if so, which of those criteria apply in relation to each candidate.
- Whether the JSC’s decision is rationally related to any legitimate purpose.
The council also requested written reasons for the JSC’s decision to recommend the two candidates.
“In particular, the reasons why JSC considered the two candidates to fulfil both the constitutional criteria and the JSC’s published criteria and guidelines both individually and in contradistinction to the rest of the candidates.”
However, members of the Pan African Bar Association of SA (Pabasa) said the reason for this was that Justice Zondo, as the chairperson of JSC, wanted to dictate the process.
They said he also allowed the General Council of the Bar of SA (GCBSA) to be the only representative of the advocates’ profession during the interview process.
“Zondo is allowing this because he is the chairperson and the one chairing the interviews. He is trying to influence the process. And the fact that he is chairperson of the JSC does not make him have dictatorial tendencies,” said the members.
In a letter written to Justice Zondo this week, Pabasa also expressed its dissatisfaction that other representatives of the advocates’ profession were not invited during the interviews.
The association said this could make the interview process vulnerable to a legality challenge.
Pabasa said the GCBSA was not a true and legitimate representative of the advocates’ profession.
“We address this correspondence to register the position of Pabasa regarding the legality of the JSC interviews, which, in our respectful view, are proceeding without the true and legitimate representatives of the advocates’ profession.
“The representatives of the advocates’ profession as presently constituted in the interviews are not representative of the profession as a whole as required by Section 178(1)(e) of the Constitution,” read the letter.
Justice Zondo’s spokesperson, Lusanda Ntuli, said her colleague, Mbali Mondlane, would assist in responding to questions sent on Thursday, as they related to JSC. However, Mondlane said the questions were forwarded to the JSC spokesperson, Sesi Baloyi.
Baloyi said: “I confirm that the JSC has received a letter from Pabasa. The Chief Justice has no comment to your enquiry, “what does he think of the context of the letter?”.
Baloyi added that Justice Zondo and the JSC would not respond to “mischievous unsubstantiated allegations whose source you do not identify, including when and where the alleged allegations were made”.
GCBSA spokesperson Tracy Nothnagel asked for a deadline extension until Friday at 1pm.
However, Pabasa said their position was stated clearly to Justice Minister Ronald Lamola and President Cyril Ramaphosa in 2020.
Pabasa said it had also raised the matter in 2022 and warned that the continued participation of GCBSA as the sole representative of the advocates’ profession would render the entire process unlawful.
“More recently and having referred the matter to the Legal Practice Council, the minister has initiated a process by which the advocates’ profession could agree among itself as to the nature of their representation to the JSC.
“While this approach itself was cynical and sought to shift responsibility, it had the potential to resolve the impasse. However, the GCBSA has consistently and cynically frustrated that consultative process with the hope that a delay in finding a solution will result in the GCBSA’s continued and unlawful presence in the JSC interview process,” Pabasa said.
The association said the GCBSA’s failure to attend the advocates’ profession consultative meetings was a deliberate stratagem to prevent the resolution of the impasse in order to ensure its continued attendance at the JSC interviews without the participation of other advocate bodies.
Meanwhile, former president Jacob Zuma has filed a court notice to challenge the appointment of Justice Zondo as the country’s chief justice.
Zuma said Ramaphosa acted irrationally by ignoring the advice of JSC by appointing Zondo.
Last year, the JSC recommended Judge Mandisa Maya as its preferred candidate for the position, but Ramaphosa appointed Zondo, saying the decision remained the sole prerogative of the state president.
Of the four candidates interviewed by the JSC for the position, Justice Zondo scored the lowest points, and Zuma wants Ramaphosa to explain why he overlooked the JSC’s recommendation.