The Judicial Service Commission has advertised vacancies on the Cape High Court bench for the first time since the court ruled that the commission's failure to appoint judges was unconstitutional and unlawful.
The Cape Bar took the JSC to court in April last year after the commission interviewed seven short-listed candidates for three posts on the bench but appointed only one.
The bar also asked the court to declare the commission's proceedings "inconsistent with the constitution, unlawful and consequently invalid", and to order that a properly constituted commission be appointed to deal afresh with the applications of the shortlisted candidates.
Judge Piet Koen granted the order in October but the commission took the matter on appeal.
JSC spokesman Dumisa Ntsebeza said yesterday that there might be as many as seven vacancies on the Cape Town High Court bench, but the commission has advertised despite the pending appeal.
JSC to continue with appeal
"The appeal was addressing interviews that took place on a specific date," said Ntsebeza. "We've had subsequent interviews for all the regions except Western Cape. It was after representations were made by the Cape Bar Council ... that, at the last JSC meeting, in April, we decided to revisit our decision ..."
Ntsebeza said the JSC did not want to litigate about appointments to the bench but would continue with the appeal.
"If we fail in the Supreme Court of Appeal, I can tell you now that we are going to the Constitutional Court because it's a constitutional matter and there needs to be clarity once and for all," he said.
The Cape Bar Council said it could not comment on the commission's decision.
The JSC also advertised two vacancies in the Eastern Cape High Court, one for the deputy judge president of the KwaZulu-Natal High Court, for the judge president of the Labour Court and the Labour Appeal Court, and for the deputy judge president of the North and South Gauteng high courts.
The advert reads: "The JSC reserves the right to recommend a candidate for the filling of any vacancy that may exist at the time of the interviews.
"This is to avoid the situation that has risen in the past when, despite the availability of suitable candidates, no appointments could be made to fill vacancies that had occurred subsequent to the notice calling for nominations.
"Consequently, in making nominations, regard should be [given] to the possibility that more judicial vacancies may occur than have been advertised."
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