The legal battle over the filling of vacancies at the Constitutional Court has taken a new turn with a challenge to the decision to reopen interviews for the positions.

Reyno de Beer, of the Liberty Fighters Network (LFN), has asked the Gauteng High Court (Johannesburg) to declare the 18 August order – for the JSC to reconvene and interview the eight candidates for positions in the Constitutional Court – invalid, says a Cape Times report.

The order was granted, after the Council for the Advancement of the SA Constitution (Casac) approached the High Court to have the interview process reviewed, but then reached a settlement with the JSC, rubber-stamped by the court, for the interviews to be rerun. 

Alternatively, De Beer wants the High Court to set aside its decision.

Judges Fayeeza Kathree-Setiloane, Jody Kollapen, Rammaka Mathopo, Mahube Molemela, Bashier Vally, David Unterhalter, and Advocate Alan Dodson SC, are scheduled to be interviewed by the JSC next month.

The JSC recommended Judges Kathree-Setiloane, Kollapen, Mathopo, Molemela, and Vally, for appointment by President Cyril Ramaphosa in April.

De Beer wants the order for the interviews to be restarted, rescinded, or declared invalid, on the basis that it was void ab origine due to having resulted from procedural irregularities.

According to De Beer, the court was also erroneous in granting the order for interviews to be restarted, in the absence of parties affected by the decision, and on the basis that the court granted the order as a result of a mistake.

‘The hearing, at which the purported settlement agreement was made an order of the court, was unlawful,’ he said.

The LFN believes that the JSC and Casac concocted a settlement and that they are to blame for what it referred to as a ‘travesty’, notes the Cape Times report. 

‘Such conduct needs to be investigated and possibly referred, as this court pleases ... to the Legal Practice Council and the Bar,’ De Beer argues in his court papers.

He continued: ‘There does not appear to be any procedural precedent as to why the full court omitted to question the legitimacy of the purported settlement agreement between the parties (JSC and Casac) and, nevertheless, made the very agreement an order’.

De Beer said, while he agreed that appointments to the apex court must be products of a process that was free of wrongdoing at any point, the JSC's decisions were not cast in stone and, ultimately, Ramaphosa – after consultations – may, on proper cause, appoint different candidates.

He also accused Casac of wanting the High Court to be a mouthpiece for the unsuccessful candidates. He has asked that the matter be heard on 28 September.

Full Cape Times report