Yesterday, certain news publications falsely reported that a South African court had “ordered” the Judicial Service Commission (JSC) to re-interview the candidates for two positions on the Constitutional Court. The Johannesburg High Court had merely made a previous settlement agreement between the Council for the Advancement of the SA Constitution (Casac) and the JSC an order of court. As there was no judgment, the question arises why those media outlets pretend otherwise and concocted the story that the court “ruled” that the interviews had been found as politically driven. The story does not end there; however: “It is questionable whether the JSC as a quasi-judicial body was in a position to agree to discard its formal decision without following its prescribed internal processes,” so LFN’s President Reyno De Beer. 

This “strange settlement” was necessitated, LFN says, because De Beer had lodged an application to intervene in the matter; in it he questions Casac’s right to lodge the review application against the JSC in general: “They tried,” De Beer argues, “to negotiate a benefit for one of the justices, initially not shortlisted by the JSC, Unterhalter, which is what they had hoped for.” At the point of Casac initiating this lawsuit, Unterhalter was still part of the bench at the Supreme Court of Appeal and was supposed to still consider, independently and unbiased, Dlamini-Zuma’s appeal against LFN’s victory over the so-called lockdown regulations. “You just cannot influence a judge like that and especially not if you pretend to advance the Constitution.” In the appeal before the JSC, Casac had been admitted as amicus curiae, and had strongly supported the government’s argument. “Suing the JSC for allegedly incorrectly interviewing and not selecting ‘their’ candidate – and that’s what this case is really about – for a position as future ConCourt judge, while the man still had to adjudicate a matter which affects all South Africans, and in which matter Casac argued against the rights of the People, clearly crossed the line from independence to judicial corruption.

This argument, De Beer believes, could not be heard in public as it would have proved beyond reasonable doubt that corruption within the highest ranks of the judiciary is rampant. Another obvious question in this context is why the JSC, themselves consisting largely of members of the legal fraternity, and full well knowing that they had an almost clear winning case on their hands, would agree to settle what they could have won and even tendered to pay the legal costs for Casac’s legal team?

Not just merely a coincidence: Casac was represented during this review by the very members of the legal fraternity who had nominated Justice Unterhalter for a seat on the Constitutional Court’s bench in the first place. The organisation might soon find itself in the awkward position to have to await whether or not LFN might object to Unterhalter’s nomination. LFN’s time span to do so runs out five days after the re-interviews are supposed to end. LFN’s basis to object to the nomination of Justice Unterhalter would include several grounds of suspected judicial misconduct and corruption, possibly implicating several other judges, and might also provide the opportunity for LFN to in turn even proceed with another review of the whole matter in the event that Unterhalter should magically succeed the second time around.

LFN will now formally continue to request the full record of the entire procedure which the JSC followed in deciding to enter into a settlement agreement which overruled its earlier decision. South Africa shall soon see whether the full board of the JSC indeed overruled a formal previous decision, and on what basis, or whether it was underhandedly agreed to by some individuals, possibly the very legal team who have nominated Unterhalter, attempting to defraud South Africa and its People of due process in the decision making process by which future judges of our Constitutional Court are pre-selected.

Just for the record… Casac had been utilised as a vehicle to support the endeavours of, none other than, our President Cyril Ramaphosa.

LFN will ensure, and will leave no stone unturned, that Casac and Unterhalter do not succeed with their rascally plans.

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