Gauntlett's comments come back to bite him

On Friday he was eliminated from a list of five contenders for a vacant post on the Constitutional Court. A BDlive report says Gauntlett, 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. JSC spokesperson Dumisa Ntsebeza SC announced that the four names from which President Jacob Zuma must choose the next Constitutional Court judge are Selby Baqwa, Ronnie Bosielo, Mbuyiseli Madlanga SC and 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. During his JSC interview, Gauntlett reportedly said he had not meant any slight on Mogoeng last year when in a newspaper interview he said did not think God had called on him to be a judge. The report notes Gauntlett's statement was widely viewed as a reference to a remark made by Mogoeng during his interview for the position in 2011. He said at the time, that, after he had been nominated, he had prayed and got a signal that it was the right thing to do. On Friday, Mogoeng told Gauntlett his words were relevant because of the crucial issue of collegiality - it could affect how he related with colleagues if he were to be appointed. BDlive says Gauntlett replied that he had not intended a slight on the Chief Justice, but added that should 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'. Full BDlive report See also a Mail & Guardian Online report

The question of Gauntlett's judicial temperament - raised at a previous JSC hearing - continued to be a sticking point on Friday. According to a Weekend Argus report, several commissioners questioning Gauntlett on whether he thought 'judicial temperament' should be a mere consideration, or a key criterion for appointment. 'I endeavour to be a proper colleague, as I have when I served on the Bar Councils,' he said. The Sunday Times article which quoted Gauntlett criticising the commission in November became a major issue, notes the report. Gauntlett was quoted as having said the JSC already had a 'slate in mind' when conducting interviews for the Western Cape Bench. Asked by Ntsebeza whether he thought he would have an unfair hearing during the interview, Gauntlett said he had 'no perception in relation to this sitting'. Ntsebeza suggested Gauntlett's comment on Mogoeng was in poor taste. 'There are things which I wouldn't like to mention in the media, which I sometimes talk about (to) my colleagues,' he said. Gauntlett responded that he felt the issue of religion should never have come up in Mogoeng's interview for a 'secular Constitution and secular court'. But his answer did not satisfy all on the panel, and Commissioner Fatima Chohan-Khota later asked whether his comment was meant as a 'slight' on the Chief Justice. Full Weekend Argus report (subscription needed) See also a City Press report

Gauntlett said yesterday he was grateful for all the support he had received, notes a Business Day report. It quotes his as saying he was 'grateful to all those who thought it was my duty to stand and who expressed their support, up to the last, in so many ways'. His candidacy had been accompanied by an outpouring of public support, with 66 nominations - including by veteran human rights lawyer Sydney Kentridge QC, Mamphela Ramphele and DA leader Helen Zille. 'I am sorry their views were disparaged as 'populist' in the media comment offered afterwards by the chairman of the JSC,' he said. Mogoeng said the JSC would not be 'populist' and would not shirk its constitutional duty to avoid losing a court case. The report notes the JSC went to the brink of court action the last time Gauntlett was overlooked. Full Business Day report

Mbuyiseli Madlanga SC had a much more pleasant, even jolly, interview, , says the BDlive report. He was candid about his resignation from the Bench in 2001, 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 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. Full BDlive report

Baqwa said the absence of women candidates for the Constitutional Court post was a cause for concern, which the JSC needed to address, says a BDlive report. JSC member Izak Smuts SC asked Baqwa why the JSC should not tell the President it had not recommended any candidate for appointment because of the lack of female candidates. Baqwa said this was a difficult question to ask an applicant, but the lack of female candidates was an important issue. 'That is an area which seriously needs to be addressed by this panel. It does not seem to be in accordance with what is envisaged (in the Constitution), the race and gender balance. It is a matter which is within the purview of this panel,' Baqwa said. The report adds Baqwa, who was appointed a judge only in May last year, also faced questions about his lack of experience on the Bench. He said he had been a lawyer for 35 years, and had been the country's first Public Protector. He said he had read with amazement a comment by the National Association of Democratic Lawyers (Nadel) that it would be of benefit if he acted as a judge for a few more years. 'I have 35 years' experience in the practice of law. I bring experience as an attorney, advocate and senior counsel for 14 years,' he is reported to have said. Full BDlive report

Bosielo said significant progress has been made in the transformation of the judiciary in terms of race, but the country should be ashamed of its failure to transform the judiciary on gender lines, notes another BDlive report. Bosielo said this was the question the country had to resolve. 'We are all complaining about lack of women. The question is what we are doing as a country.' He said when a position became vacant last year after the term of Chief Justice Sandile Ngcobo expired, he went to four senior judges to ask them to apply for the position. They told him they did not want to be nominated. Bosielo said the commission did not manufacture candidates but invited candidates to apply. He said there was no guarantee there would be any women if the post was re-advertised. Bosielo added there was no doubt in his mind that he would make a worthwhile contribution to the court. Full BDlive report