The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
Letter from RB Cloete of Matsepe’s Incorporated to Sello Chiloane, Judicial Services Commission, November 5 2012
FOR ATTENTION: MR SELLO CHILOANE
The Secretariat of the Commission
Judicial Service Commission
RECOMMENDATIONS OF THE JSC REGARDING THE APPOINTMENTS TO THE WESTERN CAPE BENCH
We refer to our letters of 23 and 25 October 2012.
In your response of 25 October you indicated that it would be ‘inappropriate’ for the reasons to be disclosed then, in view of the fact that the chairperson would address a media event the next day. No other basis was indicated as to why the reasons would not then be forthcoming.
The reasons were not furnished publicly at the media event. Instead it was indicated that the consent of Mr Gauntlett to the disclosure of reasons relating to him would be sought. We do not accept that the consent of Mr Gauntlett (or Mr Dolamo, to whom we assume a similar request was directed, given the terms of our request of 23 October) had to be obtained before the JSC could provide reasons. We do in any event understand that Mr Gauntlett assented, on the same day he received the request (29 October).
The delay in furnishing the reasons is a matter of concern. Is it to be inferred that in reaching its decisions on 17 October, the JSC as a body did not record the reasons by which the decisions were arrived at? It would appear that the delay is to be ascribed to the fact that reasons are now being prepared ex post facto, when the JSC is not in session.
Reply by the Judicial Service Commission to RB Cloete, November 6 2012:
JUDICIAL SERVICE COMMISSION
Enq: Sello Chiloane
To: Mr R B Cloete
Dear Mr Cloete
RECOMMENDATIONS OF THE JSC REGARDING APPOINTMENTS TO THE WESTERN CAPE BENCH
We acknowledge receipt of your letter sent via email dated 23 October 2012.
I was requested by the Chairperson of the Judicial Service Commission (Commission) to respond as follows:
Eight (8) candidates were interviewed for five (5) vacancies on the Western Cape High Court. The candidates were: Ms J I Cloete, Mr M J Dolamo, Advocate J J Gauntlett SC, Mr S J Koen, Mrs B P Mantame, Advocate 0 L Rogers, Ms N Saba and Advocate A Schippers SC.
The following candidates were recommended for appointment:
Advocate Rogers, and
The recommendations were determined through the normal voting procedure (secret ballot) of the Commission, the successful candidates having received a majority vote (50% plus one or more of votes cast). Advocate Gauntlett SC failed to muster the required number of votes so as to be recommended for appointment.
Voting takes place after the Commissioners have deliberated on the candidates’ strengths and weaknesses, the needs of a particular court and the requirements imposed by section 174(1) and 174(2) of the Constitution. The question that is answered at the voting stage is: Which of the candidates found to be fit and proper1 should the Commission recommend for appointment? [1 All the candidates interviewed were found to be fit and proper.]
Commissioners, therefore, vote for candidates that they want to be recommended for appointment. Each Commissioner thus exercises an independent vote. This is what happened in relation to these interviews for the Western Cape High Court.
As to Advocate Gauntlett SC, his excellence and experience as a lawyer were acknowledged. A concern was raised, however, that he has a ‘short thread’ and that he can be acerbic at times. Some Commissioners accepted his assurance that as a Judge one is removed from the immediate combative situation that counsel usually find themselves in, but strong reservations were also expressed as to whether, as part of his attributes, he has the humility and the appropriate temperament that a Judicial Officer should display.
Another very important consideration was the demographic composition of the Western Cape High Court Bench. It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution. Of course to some Commissioners those provisions were no obstacle to the appointment of two white males.
These were the considerations that occupied the minds of Commissioners when they were called upon to vote, It can therefore be concluded that the reasons for Advocate Gauntlett SC not mustering the required number of votes were:
1. concerns or doubt as to whether he is possessed of humility and judicial temperament; and
2. the appointment of two white males would do violence to the provisions of section 174 (2) of the Constitution.
It is correct that Mr Dolamo’s disciplinary complaints were raised during the Commission’s deliberations. However, most of the complaints were considered to be relatively ‘old’ and most were decided in his favour. Furthermore, the Commission took account of a letter from the Law Society of the Northern Provinces attesting to the fact that Mr Dolamo was a member in good standing with them. He could therefore not be disqualified in the face of such a letter.
The long delay in delivering a reserved judgment on an application for leave to appeal was viewed against the background that then he was acting and still learning. He was however described by some Commissioners as popular with fellow Judges and generally a good Judge.
Judicial Service Commission