Gauntlett snub to be explained

A Mail & Guardian Online report notes that commission secretary Sello Chiloane said it was 'working on' compiling 'the full reasons' for retired SCA Deputy Judge President Louis Harms but was unable to comment on when these would be ready. Harms had nominated Gauntlett to be interviewed for a position on the Western Cape High Court Bench, and wrote to the commission last week requesting reasons for its decision not to recommend Gauntlett. The decision not to appoint Gauntlett - who had failed twice previously to be nominated by the commission to the Constitutional Court and one other time to the Western Cape High Court - was considered controversial by many in the legal fraternity who feel Gauntlett is one of the country's foremost jurists. A SCA ruling found the commission was required to be more transparent and give reasons for its decisions relating to its judicial appointments. This after the Cape Bar Council took the commission to court last year after it had failed to fill vacant positions on the Western Cape Bench during its April 2011 round of interviews. It appears the commission adopted a new policy that it will furnish reasons if requested by unsuccessful candidates or other interested parties. Gauntlett said that, 'to the extent it is relevant' he had no objections to the commission disclosing reasons to Harms, the report states. Full Mail & Guardian Online report

A report in Die Burger notes that Harms is specifically concerned by one of the nominations - that of Nape Dolamo, who was nominated in spite of having had 26 complaints filed against him with the Law Society. On a question about whether reasons for Dolamo's nomination would also be revealed, Chiloane said the JSC would react to everything for which Harms had requested reasons. Full report in Die Burger

The failure to recommend Gauntlett appears to approximate a decision that is irrational, male fide or unreasonable, says George Devenish, a senior research associate at the University of KZN, in a letter on the BDlive site. He points out that in a recent SCA judgment, it was held that in making its recommendations, the JSC must take into account that the Constitution requires the need for the judiciary to reflect broadly the racial and gender composition of SA when judicial officers are appointed. In addition, such persons must also be fit and proper in order to be appointed judicial officers. This means it is submitted that demography should not be an 'inflexible rule' and merit must also play a significant role in the recommendations the commission makes. He adds that 'making race and gender considerations the pre-eminent requirement for appointment must inevitably impact prejudicially on jurisprudential excellence and productivity output by appointed judges.' Full letter on the BDlive site See TODAY'S ANALYSES (below)