IN A decision bound to send shockwaves through the legal fraternity, Jeremy Gauntlett SC will once again be overlooked for judicial appointment, after the Judicial Service Commission (JSC) on Friday decided not to recommend him.
Mr Gauntlett, who was widely regarded as a front-runner for appointment to the single vacancy at the Constitutional Court, had already been overlooked four times in the past.
After a relatively short deliberation session, JSC spokesman Dumisa Ntsebeza SC announced to the media that the four names from which President Jacob Zuma must choose the next Constitiutional Court judge are Judge Selby Baqwa, Judge Ronnie Bosielo, Mbuyiseli Madlanga SC and Judge Brian Spilg.
Chief Justice Mogoeng Mogoeng said the JSC could not shirk its constitutional duty because of popular opinion or to avoid the possibility of a court judgment against the commission.
"We are confident we made the right decision, as unpopular as it might be," he said.
Earlier, during his JSC interview, Mr Gauntlett said he had not meant any slight on Justice Mogoeng when he told the Sunday Times last year that, unlike other candidates, he did not think God had called on him to be a judge.
Mr Gauntlett’s responses on Friday to the inevitable questions on his brutally frank interview with the Sunday Times might have been what determined the JSC’s final recommendation.
Mr Gauntlett’s statement in the interview was widely viewed as a reference to an infamous remark made by Justice Mogoeng during his interview for the position in 2011. In the interview he said that, after he had been nominated, he had prayed and got a signal that it was the right thing to do.
On Friday, Justice Mogoeng told Mr Gauntlett that the interview was relevant because of the crucial issue of collegiality — it could affect how he related with colleagues if he were to be appointed.
“I know it’s a very uncomfortable question, but if you could please assist,” he said.
Mr Gauntlett replied that he had not intended a slight on the chief justice. What he meant was that, according to his own religious beliefs, God did not busy himself with his daily life and “has no involvement directing my choice as to whether I come to this interview”.
He said he had the “highest admiration” for the administrative skills that Justice Mogoeng had brought to the Constitutional Court and the office of the chief justice. But he told the JSC that should Justice Mogoeng not want him on the Constitutional Court, “then I do think you should not send me forward”.
“I really put myself in the hands of the chief justice,” he said.
Mbuyiseli Madlanga SC — also widely viewed as a front-runner — had a much more pleasant, even jolly, interview and he deftly dealt with all the potentially sticky spots.
He was candid about his resignation from the bench in 2001 — which has in the past been frowned on at a JSC interview — saying the reason, well known at the time, was because he could not afford to stay on as a judge. He said went to the bench very young and had a young family, a bond and six children.
He had explained this at the time to then chief justice Arthur Chaskalson and former justice minister Penuell Maduna. He said his circumstances had now changed.
On a 1998 judgment for which he had been criticised, he said he was the first to accept that the judgment that overturned him was right. Commissioner Izak Smuts added that the judgment was written in the early days of the constitution — “an explorative phase”.