On September 7, Liberty Fighters Network’s (LFN) President, Reyno De Beer, lodged an urgent application in the Johannesburg High Court. He applies to have the alleged court order which rubber-stamped the Judicial Services Commission’s (JSC) decision to re-interview the nominees for the open positions in the Constitutional Court set aside.
“Just looking at the record of the matter, or should I rather say lack thereof, makes me weep,” says the LFN President. “There was no settlement agreement between JSC and the Council for the Advancement of the South African Constitution (Casac); full stop. All that happened was that Casac’s original draft order was changed and was made an order of court. If one just reads the order, one is left with the impression that the court properly adjudicated the matter. This is not so.”
One question is, so LFN, why the JSC, while having a very good chance to be victorious, would want to settle the matter in the first place instead of arguing it. “It appears that someone with sufficient authority simply took it upon himself to bypass the entire JSC process and probably also deceived the full bench of the court that such a settlement agreement had been reached,” so Reyno De Beer.
LFN wrote to the JSC in August 2021, shortly after it had become aware of the unannounced sitting of the court and requested the full record of the decision by the JSC to settle. In early September it became clear that the JSC did not have any record of the decision-making process. Non-existing records, however, cannot be taken into account by a court. “Without confirmation of the legality of a proposed settlement of this nature such a settlement cannot be made an order of court.”
De Beer also states that it is not allowed for a private entity to enter into a settlement agreement with a state organ to resolve a public law dispute by way of settlement between the parties, never mind that the agreement itself seems to be “missing in action.” Further, the merits of Casac’s accusation that the alleged settling of political scores had caused the unlawful exclusion of three specific nominees, Judges Pillay and Unterhalter, as well as Advocate Alan Dodson SC, from the Constitutional Court’s short-list, were not assessed by the court.
Another question that requires urgent answers is on what grounds the JSC was able to plan and announce its detailed plans to re-interview the judges, one week before the court was even in a position to consider whether or not to grant the order. “This,” so the LFN President, “is extremely suspicious and might well point to collusion.” LFN’s interest in the matter had been sparked by Casac’s launch of its Review Application against the JSC’s decision. It was brought at a time when its preferred and allegedly impermissibly non-shortlisted ConCourt nominee Unterhalter was supposed to deliberate as a judge “independently and without bias” in a matter where Casac itself had argued in line with the government. That case was the Dlamini-Zuma Appeal against LFN, where the CoGTA Minister had appealed the LFN order of last June and which lead to the constitutional invalidity of the so-called “lockdown measures”, before the Supreme Court of Appeal (SCA). On the basis that Casac tried to arrange for a benefit of a deliberating judge in a matter where Casac itself had followed a clear line of argument, opposing the view of LFN, Casac lost its ability to institute the matter. The appeal by government was then upheld.
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