Freedom Under Law brought an urgent application in December 2023 in the Pretoria High Court, in which it challenged the JSC’s ongoing failures to fulfil its constitutional mandate. The application comprises two parts. Part A of the application sought to address the urgent situation that arose from the Judicial Service Commission’s failure to recommend any of the candidates to fill two remaining vacancies in the Supreme Court of Appeal following its interviews in October 2023.Part B challenges the processes followed by the Judicial Service Commission and seeks to address the ongoing failures of the JSC properly to adjudicate applicants against constitutionally appropriate criteria, and in accordance with the requirements of transparency and fairness. Following constructive engagements between FUL and the Judicial Service Commission, it was agreed to settle Part A on the basis of the JSC’s undertaking that it would conduct further interviews in April/May for the vacancies in the Supreme Court of Appeal. This settlement was made an order of Court on 14 February 2024.

On 20 February 2024, FUL was informed that the Judicial Service Commission no longer intended conducting interviews for the Supreme Court of Appeal vacancies during April/May 2024 and instead had indicated that it would do so during June 2024. Almost simultaneously, too, the Judicial Service Commission made a public announcement to that effect.

FUL’s representatives then engaged urgently with the Judicial Service Commission in this regard, given the binding nature of the JSC’s undertaking as well as the binding order of court entered into just a few days previously. It was important for FUL to do so because the Judicial Service Commission would have reneged on its agreement with FUL and defied a court order that it had consented to.

While disappointed that the Judicial Service Commission sought to undo a court order, FUL is pleased to note that, following these engagements, the JSC has confirmed that the interviews for the vacancies on the Supreme Court of Appeal will indeed take place during the course of May. This is in accordance with the undertaking provided by the Judicial Service Commission and the court order. This has meant that it will now not be necessary for FUL to approach the Court on an urgent basis to enforce the order in relation to Part A.

FUL intends pursuing the relief sought in Part B on an expedited basis.