CASAC takes JSC to court over ConCourt interviews

Manner of questioning of some of the candidates went beyond the bounds of what is permissible (with founding affidavit)

CASAC challenges JSC Interviews for Constitutional Court

3 June 2021

CASAC has launched an application in the Johannesburg High Court challenging the constitutionality of the recent Judicial Service Commission (JSC) interviews for candidates to fill vacancies at the Constitutional Court.

In its court papers CASAC alleges and will argue that the manner of questioning of some of the candidates went beyond the bounds of what is permissible to determine the fitness and propriety of the candidates. Some of the questioning was irrelevant and aimed at ambushing the candidates, resulting in them suffering severe prejudice.

In his founding affidavit CASAC's Executive Secretary, Lawson Naidoo says:

"The interviews are not a platform for party politics; they are not there for the JSC to investigate and evaluate complaints against judges; and they are not there to give commissioners a chance to quibble with judgments they lost as litigants. Nor do they exist to enable individual commissioners to ventilate grudges against judges.... Party political considerations and political agendas should play no role in the JSC's decisions and processes. The JSC's obligation to guard its independence—and, through it, the judiciary's independence—rests on each individual commissioner as well as the JSC's chairperson who has ultimate responsibility to control the conduct of meetings, interviews, and deliberations."

CASAC seeks an order declaring the decision to shortlist five candidates for the President's consideration to be invalid and set aside, and that the Judicial Service Commission's conduct, in the interviews of candidates in April 2021, for purposes of the JSC decision, was unlawful.

CASAC is represented by Webber Wentzel Attorneys, and counsel are led by Wim Trengove SC and Tembeka Ngcukaitobi SC.

Issued by Lawson Naidoo on behalf of CASAC, 3 June 2021

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In the matter between:










BASHIER VALLY - Seventh Respondent

DHAYANITHIE PILLAY - Eighth Respondent




I, the undersigned,


do hereby make oath and state that:

1. I am the Executive Secretary of the applicant CASAC, and am authorised to depose to this affidavit on its behalf.

2. The facts in this affidavit am true and, save where the contrary appears, within my personal knowledge.

3. Where I make legal submissions, I do so on the advice of my legal representatives.


4. This is a review of the decision of the Judicial Service Commission (" the JSC ") to list the third, fourth, fifth, sixth, and ninth respondents as nominees for appointment to the Constitutional Court. The JSC's decision breached sections

174 and 178 of the Constitution. Its decision was also procedurally unfair, irrational, arbitrary, and the product of systemic failure to approach the JSC's important function with an open mind.

5. CASAC asks that the JSC's decision be remitted to the JSC and that the interview process be conducted afresh. In this regard, although the President is ultimately the one who appoints judges to the Constitutional Court, his entitlement to do so depends on a lawful recommendation process. If the JSC's process was unlawful, then the President's appointment of the recommended candidates will be similarly unlawful.


6 The applicant is the Council for the Advancement of the South African Constitution (CASAC), a non-governmental organisation established in 2010. CASAC is a juristic entity in the form of a voluntary association. It has legal personality and the power to sue and be sued. A copy of CASAC's constitution is annexed marked PN1.

7. CASAC is an initiative led by progressive people who want to advance the Constitution as a platform for democratic politics and the transformation of society. CASAC's principles. are based on the core values of the Constitution, including the rule of law, public accountability and open governance. I attach marked PN2 a list of CASAC's patrons and members of its Advisory Council.

8. To achieve its mission, CASAC inter a/ia undertakes the following activities:

8.1 encouraging a multi-sector campaign to drive social activism to enable affected persons to claim and defend their rights;

8.2 developing a strategy 'for public engagement;

8.3 conducting research to inform constructive debate on constitutional issues; and

8.4 supporting and participating in public interest litigation.

9. CASAC has been involved in a number of litigious matters, including:

9.1 The challenge to the extension of the term of office of the Chief Justice;

9.2 The hate speech case against Mr Julius Malema;

9.3 The review application instituted by Mr Robert McBride against his suspension as executive director of the Independent Police Investigative Directorate;

9.4 The application brought to have the contract under which Mr Mxolisi Nxasana was removed as National Director of Public Prosecutions (NDPP) reviewed and set aside.

10. The subject-area of this matter falls squarely within CASAC's focus areas and the work in which it has been involved. CASAC brings this application in its own interest, in the interest of its members, and in the public interest in terms of section 38(d) of the Constitution .

11. The first respondent is the Judicial Service Commission, an organ of state established by section 178('1) of the Constitution , with its principal place of administration at 188, 14th Road, Noordwyk, Midrand, 1685.

12. The second respondent is the President of the Republic of South Africa, to be served c/o the State Attorney, located at SALU Building, 315 Thabo Sehume Street (corner Thabo Sehume Street and Francis Barnard Street), Pretoria.

13. The third respondent is Justic,e Fayeeza Kathree-Setiloane of the Gauteng Local Division, at corner Von Brandis and Pritchard Street, Johannesburg.

14. The fourth respondent is Justice Narandran Jody Kollapen of the Gauteng Provincial Division, at Paul Kruger & Madiba St, Pretoria Central, Pretoria.

15. The fifth respondent is Justice? Rammaka Steven Mathopo of the Supreme Court of Appeal, at corner President Brand St and Elizabeth St, Bloemfontein.

16. The sixth respondent is Justice Mahube Betty Molemela of the Supreme Court of Appeal, at corner President Brand St and Elizabeth St, Bloemfontein.

17. The seventh respondent is Justice Bashier Vally of the Gauteng Local Division, at corner Von Brandis and Pritchard Street, Johannesburg.

18. The eighth respondent is Justice Dhayanithie Pillay of the Pietermaritzburg Divisionof the High Court, at 301 Church Street, Pietermaritzburg.

19. The ninth respondent is Justice David Nat Unterhalter of the Gauteng Local Division, at corner Von Brandis and Pritchard Street, Johannesburg.

20. The tenth respondent is Alan Christopher Dodson, an advocate in practice at Victoria Mxenge Chambers at 1st Floor, Sandown Village Office Park, 81 Maude St, Sandton, Johannesburg.

21. The third to tenth respondents are joined for their interest in this matter. No relief is sought against them.


22. I submit that this matter, in its very nature, is of utmost importance. It involves not just the administration of justice: it involves the appointment of the custodians of justice, judges of the Constitutional Court. It also involves those who are responsible for their appointnnent, the JSC. If the case advanced by CASAC below is accepted, then that nneans the President cannot make appointments of any of the recommended judges to the Constitutional Court. This is because he can only appoint pursuant to a lawful process.

23. This means that it is in the public interest that this matter be resolved expeditiously. The matter is inherently urgent: appointments to the highest court in the land should happen expeditiously. Similarly, any court challenge to the appointment of judges should where possible be heard as a matter of urgency. There will be harm to the administration of justice, the legitimacy of the judiciary, and ultimately the rule of law, if such challenges as the present were allowed to drag on.

24. For all these reasons, CASAC will ask the Judge President or the Deputy Judge President to allocate the matter to the Full Court and to give it a preferential hearing date.


25. The Constitution entrusts the JSC with judicial appointments. The JSC is involved in appointments to every superior court in the country.

26. To be a superior court judge, a candidate must be "appropriately qualified" and "fit and proper". The JSC is the gatekeeper of those requirements. The purpose of the interview process is to give the JSC an opportunity to determine whether a candidate meets those requirements, and to evaluate which candidates should be recommended for judicial office.

27. That is the only purpose of interviews: to determine if a candidate is fit and proper for judicial office, and to determine which candidates are the most suitable. The interviews are not a platform for party politics; they are not there for the JSC to investigate and evaluate complaints against judges; and they are not there to give commissioners a chance to quibble with judgments they lost as litigants. Nor do they exist to enable individual commissioners to ventilate grudges against judges.

28. The JSC must be independent. Section 178 of the Constitution and the JSC's statutory mandate require as much.

29. The need for the JSC to 1be independent also flows from its role in the appointment and removal of judges, and the need for the judiciary itself to be independent.

30. The Constitutional Court has underscored this point:

"[33] For the judiciary to continue to fulfil these important functions, it is of pivotal importance that it continues to be a strong institution which carries public confidence and support:

"Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially de1Pend on its independence and integrity."1

31. Party political considerations and political agendas should play no role in the JSC's decisions and processes. The JSC's obligation to guard its independence- and, through it, the judiciary's independence-rests on each individual commissioner as well as the JSC's chairperson who has ultimate responsibility to control the conduct of meetings, interviews, and deliberations.

32. The Supreme Court of Appeal has held that the JSC is under a duty to act lawfully and rationally in its decision-making procedures. It cannot refuse to give reasons for its decisions. Nor can it give reasons (which may be political) which do not bear a rational connection to iits constitutional function:

"[51] To recapitulate .and lest I am misunderstood: I am not suggesting that the JSC is under an obligation to give reasons under all circumstances for e.ach and every one of the myriad of potential decisions it has to take. Suffice it for present purposes to say that: (a) since the JSC is under a constitutional obligation to act rationally and transparently in deciding whether or not to recommend candidates for judicial appointment, it follows that, as a matter of general principle, it is obliged to give reasons for its decision not to do so; (b) the response that the particular candidate did not garner enough votes, does not meet that general obligation, because it amounts to no reason at all; (c) in a case such as this, where the undisputed facts gave rise to a prima facie inference that the decision not to recommend any of the suitable candidates was irrational, the failure by the JSC to adhere to its general duty to give reasons inevitably leads to confirmation of that prima facie inference. In thei event, I agree with the finding by the court a quo that the failure by the JSC on 12 April 2011 not to fill any of the two vacancies on the ber1ch of the WCHC was irrational and unlawful."2

33. True enough, the JSC, by de·sign, includes politicians. But their role in the JSC is a constitutional one; it is not the pursuit of party political interests. The Constitution includes politicians on the JSC not to politicize the JSC. The Constitution includes them so, they can represent their constituency: the people. It follows that politicians on th,e JSC must act in the public interest. When they sit as commissioners, they are not advancing their party political agendas. They are serving the public interest in the fulfilment of their constitutional function.

34. The best-and CASAC submits, the only- way for a commissioner to act in the public interest is by discharging the obligations imposed on him or her by the Constitution.

35. In this role, the politicians on the JSC (and others too) failed dismally. They subverted the Constitution, and reached an unlawful, irrational, and unfair decision, because they misconceived their obligations. They did not ask of candidates questions designed to test their fitness for the judicial function. They failed to consider and apply the central constitutional criteria for appointing judges to the Constitutional Court.

36. The JSC is an organ of state. Its decisions to shortlist nominees for the Constitutional Court, and to recommend judges for other courts, are public

decisions that are made under the Constitution. These decisions, and the JSC's decision-making process, are reviewable under the principle of legality.

37. The JSC's decisions and decision-making process must be lawful and rational.

This means that its decisions: and decision-making process must be based on, and rationally related to, th,3 constitutional and statutory criteria for judicial appointment and the JSC's constitutional and statutory purposes and functions. It also means that the JSC must consider only relevant factors; it may not consider irrelevant factors that do not relate to the constitutional and statutory criteria for judicial appointment and a candidate's suitability for judicial office.

38. The JSC's decisions and decision-making process must also be procedurally rational and procedurally fair. In the context of a deliberative process based on interviews, procedural fairness requires the JSC to give candidates adequate notice of adverse issues that will be raised in their interview. And if a commissioner intends to raise a specific allegation against a candidate during her interview, the candidate is entitled to prior notice of the allegation­ candidates cannot be ambushed on disputed facts.

39. Candidates are also entitled to an open-minded panel. They are also entitled to fair, consistent and equal treatment. A candidate does not receive the benefit of an open-minded panel if one or more commissioners approach the candidate and his or her interview with pre-conceived notions about the candidate's fitness to hold office.

40. I am advised that a distinction must be kept in mind between the JSC's ultimate decisions and the JSC's decision-making process, including commissioners' conduct during interviews. The distinction is important because if unfairness taints the JSC's process, then the JSC's decision falls too. It would not matter that the ultimate decision is justified despite the instances of unfairness in the process leading to those decisions.

41. This reasoning applies equally to particular candidates. The JSC's decision was to recommend five candidates. If there was unfairness or an irregularity in respect of any candidate, the decision to nominate §11 candidates falls too. The JSC cannot argue, for example, that Candidate A would, on anyone's version, have been nominated, so an U1nfair process for Candidate B makes no difference.

42. With the above in mind, the JSC's decisions and decision-making process is subject to the following constitutional and rule-of-law framework:

42.1 The JSC must follow a fair process.

42.1.1 At the very least, this means that if a commissioner intends to raise a particular issue or allegation against a candidate, the candidate must be given adequate prior notice of it.

42.1.2 It also means that the JSC's interview process is not the appropriate forum to canvass issues or allegations about a candidate that turn on disputed facts.

42.1.3 An important distinction must be drawn between questions and allegations. The interview is for questions testing fitness. Allegations, on the other hand, even if they go to fitness, ought in fairness to be put to a candidate: beforehand. This is because if the allegation is disputed- as some were, as I show below-then there is no way of fairly resolving that dispute in a way that does not taint the chances of a candidate. That is to say, a dispute cannot be resolved consistently with fairness towards a candidate. This point goes further. Even if a candidate (who currently occupies judicial office) properly rebuts a question based on wrong facts, it is prejudicial to their standing as judges, as reasonable minded people might well believe that the facts are true, which taints the reputation and standing of the candidate regardless of whether or not they are appointed.

42.2 The JSC's decisions anid process must be rational. This means that the JSC's decisions on candidates and the questions that commissioners ask candidates must be rationally related to the JSC's constitutional and statutory purposes and, in particular, a candidate's fitness to hold office.

42.3 The JSC's decisions and process must not be arbitrary and must not consider issues, facts, or allegations that are not relevant to a candidate's fitness to hold office.

42.4 Commissioners must approach interviews with an open mind and without preconceived notions about a candidate and his or her fitness to hold office.

42.5 The JSC's decisions must be lawful.

42.5.1 It is unlawful for the JSC to impose unconstitutional and unfair bars or eligibility criteria to judicial office.

42.5.2 This includes, for example, a JSC created and imposed bar against the shortlisting of candidates of a particular demographic.

42.5.3 It also includes a JSC created and imposed prerequisite that a candidate must have acted on the Constitutional Court before being eligible to be shortlisted for a position on that Court. It is not in the candidate's gift to ask to act on the Constitutional Court. These appointments, at any rate, are made at the invitation of the Chief Justice. We do not know what criteria are followed as none is publicly available. The point, however, is if acting at the Constitutional Court is a prerequisite for permanent appointment to the Constitutional Court, that would give the Chief Justice a disproportionate influence in the process of selection of Constitutional Court judges. The Constitution does not countenance a situation in which the Chief Justice plays such a decisive role in the selection of Constitutional Court justices.

42.5.4 I stress that there is nothing that a candidate can do to get him or herself appointed 1to act. Acting is not a constitutional requirement, even if it may be said to be relevant to appointment. In addition, the Constitution confers no power on the JSC (or, for that matter, the Chief Justice) to impose eligibility criteria on judicial appointments.

42.5.5 Even if relevant, because it is not constitutionally required, it cannot be used against a candidate. There is evidence that it was so used in this case.

42.6 The interview process must not be a vehicle for ulterior motives.

42.6.1 These include commissioners using interviews to pursue political agendas against candidates, including asking a candidate to comment on political issues that have no rational connection to the candidate's fitness to hold office.

42.6.2 Similarly, commissioners must guard against bias and the apprehension of bias - both actual and perceived. This would include, for example, a commissioner questioning a candidate on a judgment that the candidate delivered against the commissioner (or a company or organisation in which the commissioner is involved).

43. Although the Constitution sets a benchmark for eligibility for appointment to the Constitutional Court - fitness and propriety - the rule of law requires the JSC to flesh this out in intelligible appointment criteria, which can be considered by each candidate and each commissioner.

As far as I can ascertain, there are no such appointment criteria or guidelines. This results in a situation where each commissioners can use the interview to pursue their own goals, unrelated to the purpose of testing the eligibility of the candidate. This is also unfair to the candidates because they do not actually know in advance, beyond the constitutional benchmark, what factors will be used and how each factor will be evaluated in respect to their ,application. It is irrational to conduct interviews in these circumstances.

44. It is necessary, before I deal with specific individual instances, to make submissions on section 174(; ) of the Constitution. The section is not a licence for the JSC to appoint candidates based on its own political preferences, rather than the Constitution. Writing extra-curially, former Justice of the Constitutional Court, Johann Kriegler has said:

"The constitutional mandate instructs the Judicial Service Commission in section 174(1) to appoint people that are appropriately qualified. That's a precondition. That's a mandatory requirement. And then subsection (2), as a rider to that, says: and in doing that, have regard to the racial and gender balance on the Bench. And it's for obvious reasons that the Constitution, while mentioning the transformational criterion in subsection (2), demands in subsection (1) as the primary and essential requirement that appointees be appropriately qualified. Now these two essential factors, the one absolute and the other discretionary, have been turned on their heads."3

45. I am advised that the JSC is required to produce a record of its decisions under Rule 53. This includes a record of the JSC's deliberations.

46. CASAC has already asked for the record of deliberations. The JSC refused to disclose it, even though CASAC asked only for the audio version, thereby expediting matters and relieving the JSC of the cost and trouble of transcribing those deliberations. The correspondence in this regard is attached and marked PN3.1 to PN3.6.

47. Given the public importance of this application, CASAC trusts that the JSC will attend to this with haste. CASAC reserves its right to file a supplementary founding affidavit after receipt of the whole record of decision, which would include, apart from deliberations, representations made by organisations and members of the public in relation to each candidate. It should be easy to produce the latter because all the Commissioners had files containing those representations before them in the proceedings.

48. I shall now explain by reference to the candidates the egregious failures to act in accordance with the law on the part of the JSC. I note that the quotations relied upon are from draft transcripts provided to the applicant by Judge's Matter. Judges Matter is a project of the Democratic Governance and Rights Unit at the Department of Public Law, in 1the Faculty of Law at the University of Cape Town.

These transcripts have not been attached as annexures so as not to unduly burden the court with papers. Furthermore, the full and final transcripts will form part of the record, which will be filed in due course.


49. In this section of this affidavit, I set out facts showing that the JSC breached sections 174 and 178 of the Constitution and did not comply with its obligations catalogued in paragraph 42. These failures are various and I shall group them under appropriate headings. The focus of this section will be on the interview of Pillay J. In the other sections I will focus on other judges.

(i) Failure to screen the questions to be put to candidates Commissioner Singh's introduction of unvetted questions

50. The JSC has an obligation to put to candidates questions relevant to their fitness for office. That is the constitutional standard. This means that whenever the JSC receives complaints from members of the public about a candidate, the JSC's duty is first to decide (i) whether the issue is relevant and (ii) whether it is material, bearing in mind in both cases that the central criteria for appointment is fitness and propriety.

51. The JSC failed to carry out this initial assessment. This failure is particularly apparent in the case of Pillay J (even though, as I shall show later, it occurs in relation to other candidates a1s well). This failure had serious consequences in the case of Pillay J, as I demonstrate below.

52. Commissioner Singh put to Pillay J questions from members of the public. Had the JSC vetted these questions for relevance and appropriateness, Commissioner Singh would not have asked them. More importantly, Pillay J's interview might not have deteriorated into a political attack upon her that it ultimately became.

53. Commissioner Singh introduced the questions from members of the public in the following terms.

"Mr N Singh:

Okay, through you Chief Justice. Malosi Mokgale, I'll just give you the opening sentence and what he says in the end. He wrote to the JSC, I think it would be wrong to appoint Judge Dhaya Pillay to the apex court in the land. I was not iconvinced by her legal reasoning in the latest Court judgement involving President Jacob Zuma. And then. in the end he says. lastly. putting her on apex court, where you need a rational unbiased Judge. whe1re decisions of such Court have fundamental impact on the lives and the lives of our nation, will be a grave mistake. Now, that's Malosi.

Then Mondi Dube writes on February 14. I want to raise my worry and concern about Judge Dhaya Pillay being shortlisted and likely to get the job to be in the Concourt panel of Justices and then he ends off by saying that, I hope and trust that my genuine concern will meet your attention.

And then we have a third objection here from a student, he calls himself a student, Mr SimpiWE:! Mlotshwa and Mr Mlotshwa here also appreciates the opportunity, and he's watched the interview of Judge Pillay before the JSC on YouTube ancl he asks whether the Honourable Judge Pillay still holds the view that politics in important cases before her Ladyship, like she alluded when she was a candidate for judgeship in the SCA. And then the last three lines. Is the Honourable Judge a friend or a close acquaintance of Mr Hanekom? Is the Judge a friend with Mr Gordhan, Minister of Public Enlterprises, or a close acquaintance? Does she feel that she needs to recuse herself on matters where litigants may perceive conflicts of interest of some bias on her part. I thought it's important for you, Judge, to respond to those objections and comments. Thank you." [Emphasis added]

54. These questions have one thing in common: they relate to a defamation case that Derek Hanekom brought against Jacob Zuma that Pillay J decided. That case went against Mr Zuma and the members of the public to whom Commissioner Singh refers are obviously unhappy about her decision. The one (Mr Mogale) says that her reasoning was faulty (in what respects Commissioner Pillay did not say); the other (Mr Mlotshwa) asks whether she is a friend of both Mr Gordhan and Mr Hanekom (who had brought the application against Mr Zuma).

55. The questions should not have been permitted. Mr Mogale's complaint that Pillay J's reasoning in Hanekom v Zuma was not convincing can be made of most judgments, provided there is someone disappointed enough to do so. The allegation that, because of unspecified faults in her reasoning, she was irrational and biased should equally not have been allowed.

Without any factual support, they were frivolous. The JSC should have screened them and, finding them unsupported, not put them to the candidate. But it failed in this and put the questions to Pillay J. This was a failure to undertake preliminary screening of questions, resulting in a procedurally unfair and irrational process.

56. As regards Mr Mlotshwa, his concern, as Commissioner Singh summarised it, appears to be that Pillay J is friends with Mr Hanekom and that, despite this, sat in a case in which Mr Hanekom was an applicant. Mr Zuma was legally represented and his lawyers did not, in that case, ask for Pillay J's recusal. Mr Mlotshwa had no evidence of any friendship between Pillay J and Mr Hanekom. He himself is quoted as asking the question in a speculative mode. This is exactly why it should not have been permitted. A vetting of the question would have exposed it as lacking any substance, speculative and therefore likely only to harm the candidate. By allowing this question, the JSC allowed irrelevant considerations to taint the interview.

57. It is also to be noted that these questions came from a certain "faction" of the ANC, the "Zuma faction". This explains the reference to Mr Gordhan in Commissioner Singh's question (summarising a letter from a member of the public). It was never suggested to Pillay J that she had sat in a case in which Mr Gordhan was a party (which arguably might have made the question relevant). That could therefore never be the explanation for referring to him. But it is notorious that, in the faction fighting within the ANC, Mr Gordhan and Mr Hanekom occupy the opposite side to Mr Zuma's. This is important because, as I will show further below, Pillay J was subjected to ANC factional political questioning, which had nothing to do with the judicial function. This constituted a perversion of the JSC's function.

(ii) The JSC permitted irrelevant, political questions to candidates

Example 1: Commissioner Nyambi

58. The failure by the JSC to scn:!en questions from members of the public-which all concerned Mr Zuma- led directly to her further questioning on political issues, which were again all concerned with Mr Zuma. In this part of this affidavit, I catalogue some of those questions.

59. For example, if the questions by members of the public, summarised above, had been screened and not permitted, then the following question (harmful to the candidate) would never have been posed by Commissioner Nyambi.

"Mr A J Nyambi:

My question is linked to the one that has been asked by Honourable Commissioner Singh. The issue of the support from Advocates for Transformation. They· raise that sometimes you appear temperamental but they are supporting you. But when you're responding to the first objection about the issue of the former President, the one that was read by Honourable Singh, he touched the introduction and the conclusion.

Once you read the letter it's explaining that part of what was raised by the legal team, representing former President, there was an issue of a medical certificate coming from a Government institution in a form of a Military Hospital. And you were in a rush so they talk of lack of empathy and humanity in how vou handled that issue. So, I thought when you have the opportunity, you are going to touch that issue of the letter because that's where this issue of lack of empathy and humanity and those attributes of a good judge. Your comment on that?

Judge D Pillay:

Well, I think you would have heard, the hearing was televised, and the reason why I questioned the medical certificate. was because of the alterations in them. So, it had nothing to do, it's what I would do with any litigant. If, you know, the Court sees medical certificates of all kinds and it's, and sometimes medical certificate will read the patient says he's unwell. Now, it's for the doctor to say whether the patient is unwell and what is wrong. But this had alterations. Now, that's my concern and I did exercise my discretion in favour of Mr Zuma in the sense that I did not authorize the issuing of the warrant immediately. I stayed it. because that's what we do and Mr Zuma was not a flight risk. So, I did exercise my discretion judiciously. I just have answered you." [Emphasis added]

60. Commissioner Nyambi states that his line of questioning is "linked" to Commissioner Singh's. Commissioner Nyambi makes two points in his question. The first, implicit point is that the medical certificate was from a military hospital and therefore apparently sho1uld have been accepted on the face of it. Second, the fact that Pillay seemed to question the certificate showed that she lacked sympathy. Legally, this was nonsensical and contrary to the judicial function. As Pillay J says in her answer, looking at the evidence is exactly what the courts are there to do.

61. The objection to this line of questioning, however, is this. This was yet another case, a different case, involving Mr Zuma about which Pillay J was asked. Commissioner Nyambi's question related to Mr Zuma's failure to appear in criminal proceedings, for which failure he tendered a doctor's certificate. On that occasion, the matter came before Pillay J, who ultimately gave the order she has explained in the excerpt above. Commissioner Nyambi's concern, at base, was that Pillay J failed to show humanity or empathy towards Mr Zuma. That is to say, she is still being questioned about a particular litigant. It was an abuse of the JSC process to obtrude factional political fights onto it.

62. In any event, Pillay J was obliged to subject the medical certificate to scrutiny given the problems on the face of it and to rule on its admissibility. In the event, she ruled that it was inadmissible because of certain inconsistencies in it. That was performing the judicial function, not evidence of lack of empathy. The question should never have been permitted because it left the impression, founded on a false premise, that Pillay J lacked judicial temperament.

63. The Chief Justice, who is familiar with how the courts work, should have intervened at this stage to protect Pillay J from questions founded on a misunderstanding of the judicial process, namely that a judge lacks empathy when she is doing her job scrutinizing a medical certificate.

64. Similarly, Unterhalter J was subjected to inaccurate and irrelevant questioning about Israel's relations with Palestine, including an absurdly irrelevant question about the so-called two-state solution. These questions had nothing to do with Unterhalter J's fitness for office. Unterhalter J's response was that he believes in a "two-state solution". By contrast the views of South Africa's most senior judicial officer, the Chief Justice, are well known-he is a supporter of Israel.

He has been sanctioned by the Judicial Conduct Committee ("JCC") and has appealed the decision. This illustrates the problem: the JCC has ruled the public expression, by the Chief Justice, of political views as amounting to unacceptable conduct. Yet, Unterhalter J was expressly invited in his interview to discuss his political views on a matter to which there is no single answer. For his part, the Chief Justice, who was aware of the JCC ruling against him, allowed the political question to be asked without quibble, when he was under a duty to stop it.

65. It is submitted that candidates cannot be evaluated on the basis whether or not their political views are aligned with the views of the commissioners. In any case, a deeper problem in this regard is that there was no way in which Unterhalter J could answer the question in a manner that demonstrated his fitness for judicial office. And that is because, as a political question, there is no one answer to it. In short, the question was both irrelevant and unfair.

Exampel 2: Commissioner Notyesi

66. Again, flowing directly from the irrelevant questions posed by Commissioner Singh on behalf of some members of the public, Pillay J was asked a question about ANG factional fights (and, in particular, Mr Zuma's faction). Commissioner Notyesi asked the following:

"Mr Notyesi:

Justice, these questions have been dealt with extensively by Honourable Singh, and Mr NyambL but there is just one other objection that I'm not sure whether you have seen this one of Avinash Ramkisoon I mean, is the language he uses, which concerns me, for instance where he says, I mean referring to you, I mean in paragraph 2, one whose name is also in the business of being a [inaudible 7:46:22.4] Judge, one whose name is also found on the Cf documents, CR17 document. My question is in relation to this. I know because we don't have evidence, how do we end this thing?

Judge D Pillay:

How do we end ...[intervenes]

Mr Notyesi:

How do we end these, whether it's rumour or whatever. because here it's. every time this thing emerges and it's now emerging that you are one of the (inaudible 7:46:54.3] Judges in the document. how best this can be dealt with in your own way?

Judge D Pillay:

Well, I think, set up a forum. Conduct an enquiry. Put up the evidence. Call us to account. That's when we will deal with it. I can't respond, no Judge can respond to media statements and as I mentioned earlier, Commissioner, litigants who lose are the ones who complain to the JSC, as you would know. And for every losing litigant who makes a noise on the media, for the judiciary, for the leadership in the judiciary, for the JSC to react, it's not right. Cause to react means, and to act on it, means that we are confirming that those detractors are interfering in contravention with the Constitution with the judiciary, whereas everyone, organs of State, must help the judiciary, Section 165. And must obey the laws and Court order, even if you don't agree with it. That Mr Ramkisoon appeared in my Court unrepresented. And in Motion Court, and practitioners here would know, he was first on the roll, he came up as an urgent and he started and I said, Mr Ramkisoon , I have this Courtroom of people waiting to be heard, how long do you think you're going to need. Oh, I'm going to be here the whole day, I said well, that won't happen. I have to, if you want a whole day it has to be arranged elsewhere on another time, but how long do you think you will take to get your point across. Half an hour. I sat quietly, I heard him out, I made the decision, his papers were horribly in a mess, which was confirmed by the Constitutional Court." (Emphasis added]

67. When Commissioner Notyesi confessed that he had no evidence to back up his allegation, that was the point at which the Chief Justice, as chairperson of the proceedings, should have stopped Commissioner Notyesi from pursuing the speculative and oppressive questioning. The Chief Justice stayed silent. The Chief Justice had no independent reason to permit a speculative and extremely serious allegation to be put to, a candidate.

68. On the contrary, he had himself on a previous occasion said that the allegation had no foundation. The Chief Justice had himself given a press statement on 14 September 2019 in which he said he believed his colleagues on the allegation (here directed at Pillay J) that certain judges had been paid by "CR17". In short, he regarded the allegations as false. Two news articles referring to the Chief Justice's statement are attached hereto marked PN4. It defies understanding that he should therefore permit an allegation he regards to be false (and Commissioner Notyesi admittedly regards as unfounded) to be ventilated to the detriment of Pillay J.

69. All this could have been avoided had the JSC ensured a rational and fair process. including by vetting Mr Ramkisoon's objection. In any event, the Chief Justice could and should have stopped this line of questioning. His failure to do so constituted a failure by the J:SC to perform its constitutional function. It was a perversion of the JSC's functi,on.

70. Commissioner Notyesi’s question ultimately turned out to be oppressive. He asked: "how do we end this thing?" It was not for a candidate to disprove an admittedly baseless allegation. This left the impression that Pillay had something to answer. This was unfair, both as a matter of substance and process.

Example 3: Commissioner Malema

71. Commissioner Malema began by asking questions about judges holding shares in banks. This is an issue that has been dealt with by the Constitutional Court in Berner! v Absa Bank Limited:2011 (3) SA 92 (CC). The Chief Justice knew about the judgment, but did not intervene to point this out, despite its dangerous connotations for Pillay J.

72. The Chief Justice should further have informed lay JSC commissioners that there are avenues for complaints against judges sitting in cases in which they are or might be perceived to be conflicted. He might have pointed out that judges take a judicial oath. He might have pointed out that judges mero motu recuse themselves when they perceive a conflict. He might have said that, unless Commissioner Malema had a particular case in mind, there was no point in questioning Pillay J about her shares in banks without tying that to a particular bank case in which Pillay J sat when she should have recused herself.

73. Instead of any of this, Commissioner Malema accused Pillay J (again without any intervention from the Chief Justice) of being "evasive" (see para 75 below). This was unfair to Pillay J and sho1uld not have been permitted.

74. Of greater concern, however, is that Commissioner Malema soon picked up on the unvetted objections first aired by Commissioner Singh (see paras 52 to 57 above). This too shows why the JSC should have screened objections from members of the public.

75. At any rate, this is what Commissioner Malema put to Pillay J:

"Mr J S Malema :

Well, I take it my, you're not going to answer my question? I heard someone of the lawyers there's something called evasive. So, there's something that sounds like that. Let's leave it. Is there a picture of you and Hanekom and Gordhan circulating?

Judge D Pillay:

You mean together?

Mr JS Malema:

Ja, together.

Judge D Pillay:

I've [never] taken a picture with Mr Hanekom.

Mr J S Malem a:

Do you have a picture with Mr Gordhan?

Judge D Pillay:

It's possible.

Mr J S Malema:

What's your relationship with Mr Gordhan?

Judge D Pillay:

I have answered that. I am a friend of his. We have been friends.

Mr J S Malema:

Do you think it enhances the good image of the judiciary to have Judges

befriending politicians? [Emphasis added]

76. Pausing here, Commissioner Malema's question about Mr Hanekom and Mr Gordhan is exactly the same question as initially raised, without substance (and without objection or guidance from the Chief Justice), by Commissioner Singh. It will be recalled that Commissioner Singh (at para 53 above) summarised a member of the public (Mr Mlotshwa) as asking whether Pillay J was friends with Mr Hanekom and Mr Gordhan.

77. Following this line of unlawful questioning, Commissioner Malema poses what can only be described as a cruder version of the same question. He asks whether there is a picture of Pillay J with Mr Gordhan and Mr Hanekom, on the risible assumption that a picture always makes a friend.

78. The ethical rule of conflicts deals with how a friendship between a judge and a politician should be handled: roughly speaking, a judge should not sit in a case in which she is conflicted or is reasonably perceived to be conflicted. No allegation was put to Pillay J that she sat in a case in which Mr Gordhan, her friend, was directly or indirectly a party.

Example 4: the Chief Justice

79. I have already observed above how the Chief Justice, as chairperson of the proceedings , permitted unscreened, hostile and uninformed representations from members of the public to be introduced by Commissioner Singh. I have also submitted that these formed the basis of much of the questioning of Pillay J.

80. It was with respect quite anott1er thing for the Chief Justice himself to seize upon the same material to question Pillay J about her relationship with Mr Gordhan. The Chief Justice suggested that Pillay J's answer to the question by Commissioner Singh regarding her relationship with Mr Gordhan had not been satisfactorily answered, and that Pillay J had in answer to Commissioner Singh somehow withheld some information about the true nature of her relationship with Mr Gordhan.

81. In plain terms, a suggestion of evasiveness on her part was made. This was unfortunate. The point, however, is that the Chief Justice should not have seized upon the question. This is how the Chief Justice put his question:

"Chief Justice M T H Mogoeng:

I noticed when Honourable Singh asked you flowing from the comments that he read, whether you were a friend or an acquaintance, a close acquaintance of Mr Hanekom and Minister Gordhan you said, with respect to Mr Hanekom, no, I'm not his friend. And then with regard to Minister Gordhan, you said, do I know Mr Gordhan, yes, I know Mr Gordhan, there is no way I could not know him. It was after Mr Honourable Malema asked you in a more pointed way, again whether you were friends that you admitted friendship. Let me tell you where I'm going to. During the last interviews for the Constitutional Court that you attended and while the JSC program was running, my office got a call from the office of Mr Pravin Gordhan seeking an appointment with me and I was a bit surprised, we had never met except at the meeting of the Heads of the Arms of the State where he had to brief us as Minister of Finance regarding the true state of the fiscus at the time so that we embark on the cross-cutting measures that you might be aware we tried to introduce towards. He came, I took a break from the JSC proceedings and I really don't know what the purpose of the meeting was. I don't have a clear recollection. I think it was something about the Tax Ombuds, but what stuck to my mind and left me puzzled was the following. He asked me a question, he said how did my friend, Dhaya Pillay perform and we had just coursed the spokespersons to announced the results and I told him, because it was public knowledge that you did not make it. And the thing has stayed with me, it got renewed as Honourable Singh had the question to you, as Honourable Malema engaged you and said why did the Honourable Minister make an effort to meet me, we are not friends. I don't know him from anywhere except from television, why did he make a trip to seek and audience with me just to ask me how did my friend, Dhaya Pillay perform . So. it is in that context that the concern regarding your relationship with Honourable Minister Gordhan arises and my concern regarding your initial response which didn't seem to admit or acknowledge friendship. arises. I'll put to you what others have probably put to you. so that you can deal with it and be satisfied that you've dealt with it. It doesn't have: to be a long answer. Is it potentially compromising for judicial independence and impartiality for a Minister or a senior politician to be keenly interested in the upward mobility or to look like he or she is keenly interested in the upward mobility of a Judge? And let me explain, I'm raising it because you remember, there was in issue about friendship between a politician and a Judge not so long ago, and it seems to be an issue. That's why I want you to deal with it. Just in your own words, just deal with it as briefly as you can without compromising the quality of your answetr. [Emphasis added]

82. There are a number of disturbing points I wish to bring to the attention of this Honourable Court about this question.

82.1 First, and most importantly, the evidence that the Chief Justice was putting to Pillay J had not been put to her before the hearing. Fairness demanded that it should have been, so that she could deal with it. Instead, she was ambushed. This alone constituted an irregularity and was procedurally and substantively unfair and irrational. A fair process, a fair interview, required that the question be put to her before the hearing so that she could prepare on it. As it happened, she did not know about the encounter between the Chief Justice and Mr Gordhan. As she herself said, no doubt surprised:

"Judge D Pillay:

Chief Justice, I wasn't aware of this interaction between you and Mr Gordhan, Minister Gordhan."

82.2 Second, the Chief Justice's question was not in its terms (as he suggested in introducing it) in any way linked to Commissioner Singh's question about Pillay J's relationship with Mr Gordhan. The question, when he eventually put to Pillay J, turned out to be a general one:

"Is it potentially compromising for judicial independence and impartiality for a Minister or a senior politician to be keenly interested in the upward mobility or to look like he or she is keenly interested in the upward mobility of a Judge?"

82.3 If this were a pure, general question, it is not clear why it was linked by the Chief Justice to Pillay J's relationship with Mr Gordhan. It was put to her specifically because the Chief Justice thought that Pillay J had something to do with the interaction, and that she was attempting to hide it in her response to Commissioner Malema. That could be its only relevance to her.

Otherwise it could be put to any judge, as a general question, but was not. The only time a particular judge should be made to answer such a question is if she was in some way or other part of the minister's plan to interfere with judicial appointments. If the suggestion is that the judge is part of that conspiracy, then the matter should be plainly put to her that she is. If she is not part of the conspiracy, then there is no reason for that question to be put to her and no one else. Yet that is what happened here. The Chief Justice did not put to her that she was part of the conspiracy with Mr Gordhan unduly to influence the appointment of judges. There was a good reason for that: he did not have evidence that she was part of the conspiracy.

82.4 Third, that is why, when Pillay J answered (as I have quoted her above) that she was not aware of Mr Gordhan's interaction with the Chief Justice, the Chief Justice immediately said "I believe you". If this was meant to be a reassurance, it was with respect a puzzling one. For it shows that, when putting the question, the Chief Justice did not know differently from Pillay J about her knowledge of the encounter. In other words, the Chief Justice had no evidence that she knew of the encounter.

82.5 But his question could could be relevant to her interview if (i) she was part of the conspiracy and (ii) the Chief Justice had evidence that she was part of the conspiracy. There could be no other basis for putting the question, especially when he linked (as he did) with her knowledge of Mr Gordhan.

82.6 The question was only relevant in so far as it touched upon the candidate's fitness for office (which is the constitutional standard). She would be unfit if she was part of the conspiracy. But the Chief Justice had no evidence of that. Putting such a speculative and damaging question, whether intended or not, was calculated to damage her prospects, as it no doubt must have. Only the deliberations oif the JSC after the interviews would reveal that (but the result at least suggests it). But the JSC has unaccountably refused to disclose those deliberations, in breach of their constitutional obligation to do so.

82.7 Fourth, the Chief Justice in effect suggested that, without Commissioner Singh and others asking (impermissibly) about Pillay J's relationship with Mr Gordhan, he would not himself have taken up his question. That is the only thing he can have meant when he said:

"And then with regard to Minister Gordhan, you said, do I know Mr Gordhan, yes, I know Mr Gordhan, there is no way I could not know him. It was after Mr, Honourable Malema asked you in a more pointed way, again whether you were friends that you admitted friendship. Let me tell you where I'm going to." [Emphasis added]

82.8 By this statement the Chief Justice knew that he was linking his new allegation about his encounter with Mr Gordhan to the allegation made initially by members of the public and then, later, by the other commissioners about the relationship between Mr Gordhan and Pillay J. But this served to bury iin the questions of others (which should not have been permitted by any prior screening,) an independent question that the Chief Justice had posed to Pillay J. That independent question was whether Pillay J had anything to do with the Mr Gordhan's approach to the Chief Justice (otherwise, as I say, the Chief Justice's question had no relevance). But that relevant, independent question was never put to Pillay J by the Chief Justice. She nevertheless answered it by saying that she did not know of the encounter between the Chief Justice and Mr Gordhan.

82.9 Fifth, once that answer was given by Pillay J-that she did not know of the encounter, and once thi3 Chief Justice confirmed that Mr Gordhan did not ask that Pillay J be appointed-that should have been the end of the matter. But the whole manner of setting up the question was unfair. The allegation was that Mr Gordhan purported to intervene in judicial appointments on behalf of Pillay J. Pillay J, without being asked as she should have been, said that she did not know of the approach.

But that was the first thing that should have been put to her if the whole line of questioning by the Chief Justice was to have an)/ relevance. If that was the first question, it would have put an end to the whole questioning by the Chief Justice on that issue. Further, if the question had been put before the hearing, as fairness and justice demanded, the whole thing, damaging as it was to Pillay J, would have been answered. She would have said, as was her evidence, that "I did not know (or] authorise Mr Gordhan to speak to you on my behalf. I did not even know it." Had she been allowed to say that earlier, as fairness demanded, the Chief Justice would not have asked his (in the event) damaging questions to her.

82.10 Finally, I must refer to what, on the available evidence, is a gravely worrisome aspect of the matter. I refer to the Chief Justice's version of his encounter with Mr Gordhan (five or six years earlier), which he had hitherto not seen fit to disclose or to lay a complaint about. That was after all his obligation if he felt a Minister was interfering with the selection of judges. At any rate, the Chief Justice's version of his encounter with Mr Gordhan is this:

"During the last interviews for the Constitutional Court that you attended and while the JSC program was running, my office got a call from the office of Mr Pravin Gordhan seeking an appointment with me and I was a bit surprised, we had never met except at the meeting of the Heads of the Arms of the State where he had to brief us as Minister of Finance regarding the true state of the fiscus at the time so that we embark on the cost-cutting measures that you might be aware we tried to introduce towards. He came, I took a break from the JSC proceedings and I really don't know what the purpose of the meeting was. I don't have a clear recollection.

I think it was something about the Tax Ombuds, but what stuck to my mind and left me puzzled was the following. He asked me a question, he said how did my friend, Dhaya Pillay perform and we had just coursed the spokespersons to announced the results and I told him, because it was public knowledge that you did not make it. And the thinq has stayed with me, it got renewed as Honourable Singh had the question to you, as Honourable Malema engaged you and said Why did the Honourable Minister make an effort to meet me, we are not friends. I don't know him from anywhere except from television, why did he make a trip to seek and audience with me just to ask me how did my friend, Dhaya Pillay perform. So, it is in that context that the concern regarding your relationship with Honourable Minister Gordhan arises and my concern regarding your initial response which didn't seem to admit or acknowledge friendship, arises."

82.11 There are a number of 1factual propositions contained in this question and they raise more questions than they answer about the Chief Justice's conduct.

82.11.1 First, the Chief Justice says that during JSC interviews in which Pillay J participated as a candidate (no date is given: but it was five years or so ago), his office received a call from Mr Gordhan's office seeking an appointment with him. The Chief Justice remembers that he was "a bit surprised" because he and Mr Gordhan had "never" met "except at the meeting of the Heads of the Arms of the State".

82.11.2 Second, according to the Chief Justice, when Mr Gordhan came to see him, the Chief Justice says that he "really(did not] know what the purpose of the meeting was", and that he did not "have a clear recollection." Nevertheless, he also supposes that that might have been "something about the Tax Ombuds."

82.11.3 The first (charitable!) interpretation of the Chief Justice's account of his meeting with Mr Gordhan is that, before that meeting, the Chief Justice did not know what the meeting was about (hence his self­ confessed "surprise").

82.11.4 The second (less charitable) account is this. Whatever the Chief Justice's state of mind before meeting with Mr Gordhan was, at least after the meeting, the Chief Justice knew that the meeting was inter alia about the Tax Ombud, and perhaps other matters. Certainly, at the time he put the question above to Pillay J, he knew what the meeting was about, despite his claim that he did not.

82.11.5 Nevertheless, the Chief Justice creates the impression - without actually advancing the allegation (itself unfair) - that Mr Gordhan requested a meeting with him for the purpose of influencing him in the selection of judges; specifically to advance the interests of Pillay J. This is all he can mean by the following musings:

"why did the Honourable Minister make an effort to meet me, we are not friends. I don't know him from anywhere except from television, why did he make atrip to seek and audience with me just to ask me how did my friend, Dhaya Pillay perform." [Emphasis added]

82.11.6 The suggestion that Mr Gordhan made a "trip" to see the Chief Justice in order to influence him is very serious and should not be lightly made. If made, it should be made fairly and squarely, and not as part of loud ruminations or "wonderings". Yet this is exactly what the Chief Justice did. This was seriously irregular.

82.11.7 In any event, the sU1ggestion that Mr Gordhan made a "trip" specifically to influence the Chief Justice is questionable because Mr Gordhan has himself denied it in a letter to the JSC (annexed hereto marked PN5) in which he gave an account of the meeting. His account, briefly, is that, although, like the Chief Justice, he cannot recall the purpose of the meeting, it was an official meeting. Mr Gordhan says that his records reveal that the Chief Justice agreed to meet with him in Cape Town on 16 April 2016. At the meeting, the statement goes on to say, the following happened:

" As I recall, after the completion of a cordial discussion of the matter for which the meeting was requested, I, in passing. did refer to Judge Pillay's interview with the JSC. The CJ responded I then left." [Emphasis added]

There is a serious conflict between Mr Gordhan's version and that put by the Chief Justice to Pillay J. The Chief Justice seems to have known (or recalled) that the meeting might have been about something else. Yet he put about a suggestion (which Mr Gordhan contests) that the meeting was about influencing him (the Chief Justice) in favour of Pillay J. The statement, whether intended or not, was calculated to influence the Commissioners against Pillay J. Whether it had this effect will be revealed by the record of the deliberations which took place after the interviews.

83. I respectfully submit that the Chief Justice not only allowed questions to be put to Pillay which ought not have been put, but in fact (by his own questions to Pillay J) facilitated the hostile: and unfair environment created against Pillay J. The Chief Justice's question to Pillay was, as I have said, only relevant if Pillay J instructed Mr Gordhan to talk to the Chief Justice about her candidacy.

Example 5: Commissioner Malema

84. Commissioner Malema attacked Pillay as being "no judge" and "nothing but a political activist. This for quoting an ANC conference speech. This is what Commissioner Malema said:

"Mr J S Malema:

Judge, you knew what you were doing is incorrect, that's why you didn't write it is called, I asked you deliberately because I know it, it is called ANC Morogoro Consultative Conference and you knew that it will be inappropriate for you to quote ANC documents in your judgement, you deliberately omit the ANC, so that people will even know that a Judge of a neutral Court quotes a political party gathering documents, in her own judgement, yet we must still perceive you to be a neutral and objective Judge who is not biased. Judge, I'm going to argue in this, in the closed session, that you are nothing but a political activist. You are no Judge and you deserve no high office. If anything, you also factional and belong to Pravin's faction and you are pursuing factional battles using the Bench. Will I be fair in that criticism?

Judge D Pillay:

No, you won't. For your information, Mr Malema, I refused leave to appeal in the Hanekom matter. It went to the Supreme Court of Appeal who refused a petition. It went to the Constitutional Court and the Chief Justice also was party to the decision refusing leave to appeal. So, if I misbehaved in any way, there was every opportunity for the Court sitting over me, to call me to order." [Emphasis added]

85. I submit that this was not a question but intimidation of a candidate. There is nothing wrong with referring to political material in judgments, which are relevant to the judicial function. That does not make a judge biased towards the political partly whose document she is referring to. For example, in New Nation Movement NPC v President of the Republic of South Africa 2020 (6) SA 257 (CC) at para 142 the Constitutional Court cited the Freedom Charter, a political document. Commissioner Malema's question was not that the reference was irrelevant or sought to promote the ANC-he objected to the mere reference to a political document. This is not the law in this country. Judges can draw from a variety of sources, including speeches of venerated figures, such as Oliver Tambo, as Pillay J did. It is worth stating that Pillay J's reference to the document was merely obiter and it has not been alleged, at least by Mr Malema, that it ultimately determined the outcome of the case.


86. The interview with Kathree-Setiloane J was another example of the unfairness, irrationality, and arbitrariness of the JSC's process. It shows how Kathree­ Setiloane J was (i) ambushed, (ii) required to answer false allegations and (iii) wilfully misinterpreted and thereafter unfairly attacked. All this was prejudicial, and emblematic of large parts of the session.

(i) Use of "temperament" to ventilate false allegations

Commissioners Nyambi and Notyesi

87. This was the second time Kathree-Setiloane J was interviewing with the JSC for a Constitutional Court position. The first time was in 2019. During the 2019 interview, a question had been raised about a complaint from a clerk of the Constitutional Court. That complaint was formally referred to the JSC. The appropriate body within the JSC dismissed the complaint. However, during her interview under consideration, Commissioner Nyambi once again asked her about this now-resolved issue. Commissioner Nyambi's question, and her answer, were as follows:

"Honourable Nyambi:

Thank you, my last question, I am happy that you are the one who raised what happened the last time you were here.

Judge Kathree-Setilloane:


Honourable Nyambii:

Especially, that issue of that clerk. But I don't want to go back to that issue, we are forward looking. Given an opportunity now, because we normally say experience is the best teacher with hindsight when reflecting what you said, then in responding to the JSC, what might be things that you might consider as your weakness or lesson you learn out of your responses then so you can assist us with a clear picture.

Judge Kathree-Setiloane:

Yes, I think it's important, and I'm sure you are aware of it but the subsequent complaint has been dismissed by the judicial conduct committee on the that the allegations were not substantiated and I was basically accused of coming before this commission and lying to the commission, by the clerk. These were all completely unsubstantiated allegations and the decision makes that very clear that these were unsubstantiated allegations made against the judge, in stating that I was dishonest, before this body.

The decision basically states that these are serious allegations to make against a justice judge, particularly where none of those allegations are substantiated and it's made quite clear in that decision that when I responded to the questions from the Chief Justice, that I was basically putting my version of the facts to him and that I wasn't at all being dishonest.

And that was clear from the transcript of the proceedings and the, I responded on affidavit, the complaint was not made against me on affidavit but I responded fully on affidavit. My response was also supported by the affidavit of the second clerk Refilwe and she basically distanced herself from all of the allegations made by the young clerk at the time in relation to way that, the fact that I was being dishonest.

I think I took my relationships with the clerk for granted. I'm a very compassionate person and I take seriously what I do, you know perhaps I ought to have checked the way I responded to my clerks and just be careful the next time so I don't create expectations. But I would never ever want to go through that experience again Mr Myanmbi. It was a terrible experience for me.

I could have on the Saturday when I received the memorandum from the judicial conduct, JSC, I could have actually withdrawn from the process but I needed to attend the hearing. I knew it wasn't going to be a difficult hearing. After I gathered all the courage and all the strength, I met with my family and my husband, I decided that I had to come before the commission and put forward my version of the events. You know the sad part is, that I think we sometimes take for granted. we were trained that way, if we did something wrong as young clerks, work wasn't up to scratch, up to standard, we were immediately told by our superior,and we learnt from that and perhaps you know we need to rethink going forward, the youth are completely different, they experience life differently from what we experienced." [Emphasis added]

88. It is clear from Kathree-Setilo,ane J' s answer that the allegations by the clerk, to which Commissioner Nyambi refers, were found by the JSC itself to be baseless (in a separate hearing about that complaint). It might be that Commissioner Nyambi was not aware of this. Whether that is so or not is beside the point. The point, I respectfully submit, is that the JSC as a body and the Chief Justice knew about this. The Chief Justice, should have disallowed the question on the basis that it had been dealt with by the JSC and that the complaint against Kathree­ Setiloane J was dismissed. This did not happen.

89. Instead, Kathree-Setiloane J was left to answer the question, prejudicial as it was, one would have thought that her answer to Commissioner Nyambi would bring the matter to an end. After all, she had been officially absolved of all the allegations by the JSC. But ;the matter was allowed to drag on. For example, Commissioner Notyesi asked:

"Commissioner No yesi:

The only thing that troubles me is the record of your interview in April 2019 with your relationship with the clerks. I hear you say that the matter has been solved. But the fact of the matter is that what comes up to me is generally, it reflects that you generally don't have respect for juniors to you. That's what comes up, from this record. The second point is, from your record is that in fact admittedly is that you are a short-tempered person.

Judge Kathree-Setiiloane:

No, I did not say that I am a short-tempered person.

Commissioner Notyesi:

But this is what I find from the answers in the debate between yourself and Nyambi around this question. My point is have you sorted out these things, what is your response to what is troubling me?"

90. Commissioner Notyesi acknowledged that "the matter ha[d] been resolved". The truth was stronger than that: the complaint had been dismissed. Nevertheless he uses "temperament" as a basis for pursuing an allegation that, after the explanation, he now knew to be false. Again, the Chief Justice permitted this question to be posed.

91. I submit that this was one example in which "temperament"- a plainly relevant criterion-was used oppressively to pursue a question that had no factual foundation. A witness in court-a more hostile environment- would be protected from this line of unfair questioning.

The protection is the rule of evidence that a false version may not be put to a witness. I must add that I do not accuse the commissioners of deliberately or knowingly putting a false version to Kathree­ Setiloane J. I am simply saying that the question, because prejudicial and lacking in factual foundation, should not have been permitted to be pursued.

(ii) Use of "temperament" to ventilate an unfounded rumour

92. The Deputy President of the Supreme Court of Appeal, Petse DP, posed a question to Kathree-Setiloane J that, again, had no factual foundation. It is not my suggestion that Petse DP knew that the allegation had no factual foundation: he would not have posed it otherwise. The case is that what Petse DP put to Kathree-Setiloane J was a rumour which, had it been put to Kathree-Setiloane J before the interview, would have received an appropriate answer and probably not have been raised in the interview. Its being raised was a sign of the failure by the JSC to be bound by its obligations to be fair to candidates and put the questions to them beforehand so they can prepare.

93. Deputy President Petse begins his question by acknowledging that it might "ruin [her] good mood":

"Be mindful of the fact that I am only allowed limited questions to ask, I will cut to the chase and my apologies in advance, if my questions somehow ruin your good mood. But I am duty bound to ask them. I will start off with the penultimate paragraph of the nomination by Judge Murphy it is. And I will go to the relevant portion where he says, when she differs, she being a reference to you, open quote, she does so graciously and collegiality, closed quote, and my first question to you, is do you truly subscribe to this statement or perhaps are you just paying lip service to this principle of collegiality?"

94. This was not a good sign. A question with such effect, one might think, should be put to the candidate before the interview so she can fairly prepare for it. Then he quotes from what appears to be a recommendation from her judicial colleague, Murphy J, the effect of which is that Kathree-Setiloane J is a "gracious" and "collegial" judge.

95. Deputy President Petse then proceeds, without yet laying the foundation for the allegation, to ask her whether she agrees with Murphy J's positive assessment of her. This is an odd question: "do you think your colleague who praises you is right?". The oddity is soon -explained later when he adds, apropos Murphy J's statement:

"do you truly subscribe to this statement or perhaps are you just paying lip service to this principle of collegiality?."

96. She answers the yet unsubstantiated allegation thus:

Judge Kathree-Setiaoane :

"Justice Petse, I am, my colleagues will tell you that I am very collegial in the High Court, when I differ, I state my view and that's been my experience, I haven't been uncollegial, I haven't been impolite. I have had colleagues who have been impolite to me when they took a different view, but at the end of the day , we discuss our views. I certainly haven't been impolite to any of my colleagues, and I certainly don't know of any colleagues who have indicated that I have been I have been impolite to them or that I have been uncollegial.

97. In short, she denies that she: pays lip service to collegiality and says that her colleagues in the High Court would attest to that. Deputy President Petse, having got her to say that she does not pay lip service to collegiality, then puts to her an allegation that, if true, might contradict that denial. He puts it thus:

"Deputy President:

Thank you. I will ask you about an incident that occurred at the SCA of which I am aware. You were part of the panel of five judges who had a particular appeal on the 26th of February 2016. And one of your number, was as is customary at the SCA, was to write a judgment, he wrote his judgement, produced a draft and circulated amongst the members of the bench in that case, as is the convention. It was an 11-page judgement, you read the judgment up Page 6 and you approached that colleague and said this judgment is not up to scratch, I will not waste my time reading it further, you will have to write this judgment all over again.

Judge Kathree-Setiloane:

No sorry, sorry Mr Petse. that is not correct. I don't think that is correct.

It was my colleague from the High court. Judge Maroa Tsoka. I was reading, I didn't even know. you know we not actually told how you are supposed to approach the judge. when you write in relation to how you bring your comments to them. Because Justice Moroa Tsoka was a friend of mine. I approached him in chambers, I read the judgment and I felt that there were certain things missing and ultimately one of the other judges had written large aspects of that judgment. he had completed a lot of the other things that I would have pointed out. As a colleague, Justice Moro and I are from the same court. There are things that I had to be put in. I thought as a colleague. it was collegial for me to go to him.

I never said to him that his judgment was not up to scratch. I never said that. I never said that at all. I had made insertions in the judgement and I asked him to consider that but I read it till page 6. and I had all of these things and I thought let me go to him and ask him to reconsider inserting certain things in the judgement and he took offense to it. I left it at that point. I didn't take it further. I actually left it at that point. I didn't mean to offend Judge Tsoka in any way. Judge Tsoka is my colleague from the Joburg High court. There are times when he gave me a judgement to look at and he said to me. I am giving you the liberty to basically do what you want to do with my judgement. That's the kind of relationship that I had with him in the early years. I apologized to him for it. I didn't understand the process, I thought that maybe, I was handwriting and making changes in the judgement and I thought if I go and discuss it with him as a colleague. but he became. he felt offended and I said I'm sorry and I left it at that. At the end of the day, one of the other judges. one of the other very senior judges. had basically made exactly the same changes in the judgement that I was suggesting to Judge Moroa. I'm sorry that he took offense to it. it was not meant to be that way.

Deputy President:

And indeed. your comments and inscription go as far as page 6 this is where you left it.

Judge Kathree-Setiloane:

No no, I did read the whole judgement but I had made changes and I wanted to discuss those changes made to that point. He didn't accept them. I read the whole judgment and within a day of me, or within the very next day, there was a whole new judgement that was proposed by one of the senior judlges that basically added to the content of Judge Moro's judgement and it took care of my concerns and I left it there. So I didn't have to comment further on it.

Deputy President:

Chief Justice. this is a follow up question. I know that you have disputed what I have put to you. But on the level of principle. do you think that if indeed you said what is attributable to you. would it have been collegial of you to tell a colleague that your judgement is not up to scratch, you have to rewrite it.

Judge Kathree-Setiloane:

No sir, I did not say that. I didn't tell my colleague that.

Deputy President:

No, I accept that.

Judge Kathree-Setiloane:

Yes, but it would hav,a been wrong of me to say that your judgment is not up to scratch. But I diid not say that the judgement is not up to scratch.

Deputy President:

I'm sorry for the interruption, that's the point I was putting to you at the level of principle. And this ties up with your firmness that you have been bold to tell us about. There is nothing in my view about being firm but when you are being firm, you must be sensitive and your firmness must be tempered with politeness. Do you accept that proposition?

Judge Kathree-Setiloane:

Yes sir, I accept that your firmness must be tempered with politeness. And I haven't been impolite. I don't take a firm approach with my colleagues, I am polite to my colleagues, I'm polite to counsel I am generally polite to counsel. There may be one or two instances where counsel felt I was being impolite, that is a view, there are always other view, there were other counsel in court.

I'm sorry if I was impolite, I didn't mean to be impolite. But as women, sometimes when we are assertive, when women are assertive, they are seen to be impolite, they are seen to be too dominant, they are not viewed well but when males do the same thing then it's completely accepted. It is not seen as impoliteness; it is not seen as rudeness.

Deputy President:

I will not end that controversy. Lastly, I just want to put it to you, when you express your views, you have to do so bearing in mind, or you have to be sensitive about how you do so. Not so.

Judge Kathree-Setilloane:

Yes exactly. Yes exactly.

Deputy President:

Thank you, Chief Justice. I have no further questions."

98. Deputy President Petse puts an allegation about an event that allegedly took place in the SCA on a specified date (26th of February 2016). According to the allegation, Kathree-Setiloane J was part of a panel of five judges. One member of the panel, according to the allegation, had written a draft judgment of eleven pages. Kathree-Setiloane J is then alleged to have been unhappy about the draft. According to Deputy President Petse, she regarded it as being "not up to scratch". She is further quoted as saying that "I will not waste my time reading it further, you will have to write this judgment all over again."

99. It turns out some material aspects of this story are not true. It also turns out, in the end, that the Deputy President accepts the explanation of the facts given by Kathree-Setiloane J in her answer. He says, in terms, that "I accept that''. In short, as will be apparent, he accepts her version once explained to him. This then leaves serious issues about the whole question itself. But before we turn to that, it is necessary to analyse the two versions.

Analysis of the two versions

100. Kathree-Setiloane J is very clear that the incident to which Deputy President Petse is referring had nothing to do with the SCA. That means that not only the date, the venue, and the number of judges allegedly involved were incorrect, but, additionally, that the whole interaction as described by Deputy President Petse was inaccurate. This unfortunate occurrence might have been prevented if Deputy President Petse had put this version to Kathree-Setiloane J for comment before the interview. Deputy President Petse in this regard cannot be held to the same standard as lay members of the JSC.

101. Be that as it may, the incident, if it may be so described, in fact took place in another court and involved Tsoka J. Even then, it is not as described by Deputy President Petse. That much is clear from Kathree-Setiloane J's version. It is important that her version is not disputed by Deputy President Petse. He did not say, for example, "I will have, to find out more about that". He expressly accepted her version. So her version must be accepted for purposes of this application.

102. Nevertheless, having accepted her version, Deputy President Petse pressed on with his question, now not relying on his version (which he accepted was incorrect), but as a matter of "Principle ". He said:

"Chief Justice, this is a follow up question. I know that you have disputed what I have put to you. But on the level of principle, do you think that if indeed you said what is attributable to you, would it have been collegial of you to tell a colleague that your judgement is not up to scratch, you have to rewrite it." [Emphasis added]

103. The "if ' in the question reflects the prejudicial nature of the question. There was no question of principle to put to her since its whole basis was accepted by Deputy President Petse as false. That is why, in her answer, Kathree-Setiloane J insisted that "no I did not say that".

The embarrassment could have been avoided

104. The JSC is not a court of law. It has no obvious means, in an interview, to resolve a conflict of versions if questions are based on a factual version that the candidate disputes. The result, in this case, was an unedifying spectacle in which the Deputy President's question was based on an incorrect factual version, which had to be corrected by a candidate. A candidate is put in an awful position in which she has to correct the questioner. The questioner is in turn put in a position in which she must give up her version or stick to it, with the regrettable impression that someone is not telling the truth.

105. Ordinarily, that should never be permitted to happen. The only way to prevent that, as I have said, is to put the potentially factually contentious question t!) the candidate before the interview. The dispute may be cleared up when the candidate answers the question beforehand, and the embarrassment would then be avoided. But this requires that the JSC should do its work of vetting such questions beforehand.

106. In any event, even if that is not possible (as the JSC might argue) there was no reason, in this case, for Deputy President Petse to press on with his question on an "if ' basis. The Chief Justice, as the chairperson of the proceedings, should have directed Kathree-Setiloane J not to answer the question. His failure to do so constituted reviewable unfairness to the candidate.

(iv) The use of "temperament to attack a candidate

107. It will be clear by now that•· temperamen"t and "collegiality" were used with a peculiar and unique veheme:nce against Kathree-Setiloane J. But - and this is the point - on examination, it turns out that they were used to ventilate false allegations or to complain about a case lost by counsel. Once the "temperament" theme got going, it had to go on.

108. Commissioner Malema used it to an altogether different purpose. He used it to attack Kathree-Setiloane J. The uncomfortable exchange between Commissioner Malema and Kathree-Setiloane J went as follows:

"Honourable Malema:

It's just a comment because I am going to raise it and I don't want to be accused of being unfair to you. And you can comment if you want to. I am going to argue that you are condescending and that you treat juniors as kids and you don't take into consideration that the courts themselves, just the building and the benches are designed to intimidate and when you come in the manner in the manner you are saying to people that you are actually worsening their intimidation and as a result. they are unable to express themselves.

And they end up misrepresenting some of the counsels they are their own clients because of what you call firmness which at times comE3S as if rudeness and you call people youth. Adults who have gone to school and who have graduated to come and work with you. And I think you call them youth because you are here. I get the suspicion that you a1t times get tempted to refer to them as kids and you treat them like kids. You are puppeteering them and if that is the approach then you can guarantee that the youth I lead, you are going to fight with them many times. This is a new youth. a youth that will not accept condescending attitudes.

Judge Kathree-Setiloane:

I'm sorry Mr Malema, when I speak of the youth, I'm not talking about children. You know that at the youth can be up to the age of 35 years old, you know that. You can be part of the youth league up to 35 years old. I am not condescending to my juniors; I really am not condescending. That hasn't been my attitude.

If anything I, encourage the youth, the young people that work with me, the young adults that work with me. That has been my experience always, I really am not rude, I certainly am not rude. Firmness cannot be mistaken for rudeness, Mr Malema. All judges are firm, we are required to do a job and we have to do it efficiently. At times, it may come across as robust but we have a duty to the litigants to ensure that they are properly represented and I said that in 99% of the cases, the litigants are properly represented and counsel's performance is immaculate.

There may be a small percentage, I have had counsel appear before me who have come back fully prepared and we have a great relationship. I am not condescending to young people, in fact, I am very popular amongst young people. And if you know me and my relationship with counsel at the bar and you know my relationship with the clerks at the court, you will know that I am not condescending to young people. I show compassion, I help build them, I empower them to the extent that I can.

I have a number of mentees, mentees that were clerks at the constitutional court, that were clerks of other judges that still have a relationship with me and will call me, mentees that run organisations today, mentees that went on to work at the Supreme Court of Appeal, mentees that are currently doing pupilage at the bar and call me from time to time for advice. So, I am not condescending to young people.

I have extremely good relationships with young people. They may be a small percentage at the bar that felt that I responded differently to them. There was no malice in that. I'm sorry, I will not accept that I am condescending to young people. And I will not accept that by referring to young people as the youth that I am referring to them as kids. The youth are in fact young adults." [Emphasis added]

109. Commissioner Malema had no basis whatsoever for the attack he launched on the Kathree-Setiloane J. There was no evidence that she treats her "juniors as kids". The whole thing appears to have arisen out of a misunderstanding by Commissioner Malema of Kathree-Setiloane J. This would not have mattered much had it remained merely a misunderstanding. However, Commissioner Malema went on to issue a threat that he was going to "argue"- a telling word­ that she is "condescending".

110. He went on to threaten Kathree-Setiloane J that the "youth I lead" (i.e. the EFF youth) will fight her allegedly condescending attitude:

"You are puppeteering them and if that is the approach then you can guarantee that the vouth I lead. you are going to fight with them many times. This is a new youth, a youth that will not accept condescending attitudes."

111. It is hard to think of a worse statement to a candidate during what is after all an interview for a position on the highest court in the land. The JSC interviews must be the only ones in which, basically, a job interviewee, instead of being asked questions. is bullied and attacked. I submit that no legal system will tolerate threats in an appointment process for public office. The law rightly regards that as inimical to fairness and high standards expected of public bodies such as the JSC.

112. Finally, Commissioner Malema's threat to "argue" a certain position in the deliberations of the JSC was an indication of a closed mind. The whole point of discussing candidates after interviews is to canvass the views of commissioners for the purpose of taking a decision whether a candidate is fit and proper to be

appointed to the Constitutional Court. A commissioner does not say, as if to a witness in a trial, "I am going to argue proposition -x.The commissioner's role is to elicit answers from a candidate with a view to assessing her fitness.

113. Again, what is regrettable is tlhat the Chief Justice permitted this to happen. It is the Chief Justice's role-because the JSC is composed of politicians and lay people-to protect candidates, to maintain decorum and dignity in the proceedings, and to prevent harassment of candidates (who in this case were mostly judges) by politicians. Everyone, not just judges, deserves that protection. Something is seriously amiss, however, if even judges are not protected from harassment by politicians, special interests or disgruntled litigants.


114. The extracts from the interviews catalogued in the previous sections show that the JSC breached sections 174 and 178 of the Constitution. The JSC failed to discharge its mandate to determine whether candidates were fit and proper. Instead, the JSC went beyond its mandate and asked candidates questions that have nothing to do with the judicial function and their fitness for office. At best, commissioners asked irrelevant and nonsensical questions that prejudiced candidates; at worst, they used the interviews for naked political score settling.

115. Moreover the JSC's job is to interview each candidate and make a determination about whether he or she is fit and proper. The JSC fails to do that job when it puts unfair pressure on a candidate to withdraw his or her application. It is simply not the JSC's place to tell a candidate to step aside. When it does that, it abdicates its constitutional duty.

116. The process was also unfair. Candidates were asked questions involving disputed allegations without any prior notice. The mere airing of disputed allegations was unfair; this interview process is not structurally equipped to deal with disputes of fact and allegations of misconduct. Other bodies within the JSC are there to resolve those issues. The transcripts quoted above also show that candidates were-perhaps deliberately- ambushed. The JSC also made no attempt to screen or filter questions from the public.

117. The JSC's decision was irrational. The purpose of interviews is to determine candidates' fitness for office. The purpose of interviews is not to test a candidate on obviously irrelevant considerations like a candidate's views on Zionism or the Two State Solution. Nor should interviews be a proxy for complaints against judges; for even stronger reasons, interviews are not a forum to rehash ethical complaints that were already heard and dismissed by the appropriate body within the JSC. Nor should interviews be an opportunity for disgruntled counsel and litigants to have one last word against a judge who fairly ruled against them.

118. Commissioners did not approach their task with an open mind. A coordinated attack was levelled against candidates based on spurious grounds, like their distant friendship with Ministers, their brief membership of civil society organisations like the Jewish Board of Deputies, and their "temperament" (a line of questioning, I note, that male candidates seem to have been spared). Some commissioners were even candid about their intention to "argue" against the nomination of particular candidates in deliberations. Alone, that gives the game away: the JSC's process should not be adversarial; the JSC should not be "argu[ing]" for or against a candidate. Regrettably, it appears that some commissioners approached the interviews with a closed mind about particular candidates.

119. It also appears that the JSC applied, or at least it was suggested during interviews that it would apply, unlawful eligibility criteria. Acting on the Constitutional Court is not a prerequisite to appointment to that Court. Neither the JSC nor the Chief Justice has power to create eligibility criteria. It should follow that a long line of qu,estioning to a candidate for an apparent lack of experience as an Acting Justice is irrelevant.

120. Finally, and most regrettably, ulterior motives tainted the JSC's decision and decision-making process. Pillay J's interview is perhaps most stark in this regard. Certain commissioners treated her interview as their chance to settle old political scores.

121. The sunlight of the JSC's deliberations will be the best disinfectant - if an unwelcome one for those commissioners who strayed far from their constitutional role. In light of the obvious public interest in this review, CASAC trusts that the JSC will send the record of its deliberations as soon as possible.


122. The JSC's decision to list the third, fourth, fifth, sixth, and ninth respondents as nominees for appointment to the Constitutional Court should be declared unlawful and set aside. The decision should then be remitted to the JSC for reconsideration.

123. CASAC accordingly asks for an order in terms of the notice of motion. If CASAC is not substantially successful, it should get Biowatch protection from costs.



1 Helen Suzman Foundation v Judicial Se,rvice Commission (CCT289/16) [2018] ZACC 8.

2 Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115.

3 Johann Kriegler "Can Judicial lndependence Survive Transformation?"

The original PDF version of this affidavit can be accessed here.