A group of judges have expressed their outrage and dismay that Jeremy Gauntlett has been overlooked for one of three vacant seats on the Western Cape High Court, as reported in leaks to the media.
Die Burger and Business Day reported that Gauntlett had received only nine out of a possible 25 votes following his interview with the Judicial Services Commission.
It is believed that Patric Gamble, Chantel Fortuin and Elize Steyn had been chosen to fill the three vacant spots on the Western Cape bench.
The letter, penned by Swaziland Chief Justice Mathealira Ramodebedi, Justice DG Scott, Justice LS Melunsky, and retired justices Johan Steyn, Craig Howie and John Smalberger, expressed their "surprise and dismay" at the exclusion of Gauntlett from the bench.
"Several of us have served as judges on the courts of South Africa. Three of us have recently retired as members of the Supreme Court of Appeal. In our capacities as such, advocate Gauntlett frequently appeared before us.
"We testify that he is an outstanding lawyer and one of the leading senior advocates in South Africa. He is principled and conscientious. He also has great forensic skills.
"He is, in short, a most able lawyer and highly qualified in all respects for judicial appointment in South Africa.
"We express our surprise and dismay at the decision of the JSC not to recommend his appointment as a judge. Southern Africa, and South Africa in particular, have been denied the opportunity to benefit from the great contribution he would have made to the development of the law," the letter read.
A Western Cape High Court judge, speaking on condition of anonymity, said it was extraordinary that Guantlett had not been chosen for the vacancy.
Some of Gauntlett's colleagues said it had generally been acknowledged that he was "a very good lawyer" but that his "abrasive personality" could have had a hand in his omission.
"It's inexplicable. If it was a question of two women and a black male (being chosen) it would have meant a straight improvement to the demographics of the bench and the decision would have been fully understood.
"But to exclude him (Gauntlett) when they appoint a white woman and a white man who's not in the same class is inexplicable," said the judge.
Some of his colleagues said Gauntlett had made enemies within government for previous legal challenges to the State and his rejection from the bench was a payback for his numerous run-ins.
One of these challenges was to the provisions of the Medicines and Related Substances Control Amendment Act which sought to cut the price of medicines. The pharmaceutical industry, represented by Gauntlett, challenged the provisions within the act, saying implementation would be financially ruinous to smaller pharmacies, taking the case as far as the Constitutional Court.
"He's definitely not a favoured son of the ANC government," said a colleague at the Cape Bar.
Although Gauntlett had been accused of racism by Cape Judge President John Hlope in a leaked report to former Justice Minister Bridget Mabandla in 2005, the two men have seemingly patched up their relationship.
Paul Hoffman, director of the Institute for Accountability, said Gauntlett's omission was proof that neither merit nor transformation had been considered by the JSC.
"It seems that the JSC gave greater weight to its consideration of the need for the judiciary to reflect broadly racial and, particularly in this instance, gender demographics than to appropriate qualification. If merit had been accorded its proper place he would have been successful; none of the other candidates have as much 'heavy duty' experience of litigation both at the Bar and on the Bench," said Hoffman.