The JSC had been requested to clarify the reasons it has already provided for refusing or failing to nominate advocate Jeremy Gauntlett SC for appointment to the High Court bench.   This all seems to be a prelude to litigation to challenge the JSC’s decision.

There are three previous posts about this pressing and important matter:

Franny Rabkin’s article JSC still facing threat of litigation over Gauntlett was first published in Business Day today and here are some random extracts.

IN AN attempt to “avoid litigation” Louis Harms, retired deputy president of the Supreme Court of Appeal, has again written to the Judicial Service Commission (JSC) for “clarity” on its reasons for not recommending top silk Jeremy Gauntlett for appointment to the Western Cape High Court.

The threat of litigation still hangs over the JSC, despite it giving reasons in response to a request from Judge Harms for its decision, and despite Mr Gauntlett confirming he would be available for an upcoming vacancy on the Constitutional Court.

Nominations for a post on the Constitutional Court close on November 23.   Judge Harms, who nominated Mr Gauntlett for the high court and warned the JSC that he found his nominee’s exclusion “irrational and therefore legally assailable”, said on Sunday that he had not yet decided whether he would end his interaction with the JSC.   “I’ll decide once I have a response to my latest letter.”

Mr Gauntlett has twice been overlooked for appointment to the Constitutional Court.

“I think it is my duty to be available.   Whether the JSC again unanimously considers me to be a fit and proper person, but (by majority) that it is again its duty not to appoint me, is for it to decide,” he said on Sunday.

Mr Gauntlett was referring to the JSC’s letter to Judge Harms last week.   It said while all the candidates interviewed for the Cape bench last month were found to be fit and proper for appointment, some commissioners had doubts about whether Mr Gauntlett was sufficiently humble to be a judge or whether he had the right kind of “judicial temperament”.

Mr Cloete asked the JSC: “Our client wishes to know whether the reasons were issued by you with or without reference to all the members of the commission.”

These concerns appear to be shared by Mr Gauntlett.   In an interview with the Sunday Times on Sunday, he said he “knew” the reasons were created after the event and that they were not circulated to members of the JSC.   Judge Harms also sought clarity on the substantive reasons given by the JSC.

As to the JSC’s concern about Mr Gauntlett’s character, Mr Cloete asked the JSC to clarify “where, in its agreed and published formulation of required judicial attributes, ‘humility’ is mentioned”.

Mr Cloete asked the JSC to clarify if its approach was that appointments should reflect “diversity” or “representivity”.   “This month’s census reports a ‘white’ population of some 8% of the total (some 4% of the total being white male)

“If ‘representivity’ is indeed applied by the JSC in appointments, is its target accordingly that no more than one of the 29 (Western Cape) judges should be white males?”