HSF and the Judicial Service Commission

On Thursday, 5 May 2016, the Helen Suzman Foundation (‘HSF’) will argue in the Supreme Court Appeal that the Judicial Service Commission (‘JSC’) is legally obliged to release the recorded deliberations pertaining to its appointment of judicial candidates to the Western Cape High Court in 2012.

The appeal is a preliminary part to the main application that was brought by the HSF in 2013. This main application has yet to be heard.

Since launching this matter, the HSF has emphasised the fact that the appointment of judges is a matter of great public importance. It is central to the success or the failure of our constitutional democracy. An informed, knowledgeable, diverse and independent judiciary is a key feature of any political community regulated by the rule of law. It is this fact that motivates our actions, with our decisions always focused on enhancing and strengthening the judiciary.

High Court judges are ultimately appointed by the President, but always on the advice of the JSC. Despite the JSC’s historically good performance, the public must be vigilant in holding it to the standards set by the Constitution. So, for example, whilst section 174(2) of the Constitution cites gender and race as considerations relevant to the appointment of judicial officers, these are two of many. Others relevant factors include the need to maintain an independent judiciary, honour and integrity, formal training, experience and demonstrated ability. Together with a consideration of race and gender, the JSC is constitutionally obliged to consider and weigh-up these various and other factors when exercising its advisory powers.

Background to the appeal

In 2012, after a round of judicial appointments, a third party requested reasons from the JSC for its decision to recommend to the President certain candidates for appointment to the Western Cape High Court (‘the Decision’).

After considering the JSC’s response, the HSF took the view that it had failed to exercise its powers in the manner prescribed by the Constitution. Thereafter, the HSF launched proceedings in the High Court ("the main application"). It seeks a declaration that the Decision was unlawful and/or irrational and invalid; or, that the process followed by the JSC before making the Decision was unlawful and/or irrational and invalid.

In exercising its rights under the Uniform Rules of Court, the HSF called on the JSC to deliver its Record of the Decision under Rule 53 ("Record"). After several unsuccessful attempts to procure the Record, and after a delay of over a month, the JSC finally filed what it claimed to be the Record. Two days before the HSF was due to supplement its founding affidavit based on the Record, it learnt that an integral part of the Record, the recording (and transcripts) of the post interview deliberations of the JSC ("the Recording"), was excluded. The JSC failed to notify the Court or the HSF of the existence of the Recording.

On 8 August 2014, the HSF moved an application in the High Court aimed at compelling the JSC to provide it with the Recording. On 5 September 2014, Mr. Justice Le Grange handed down judgment dismissing this application. Leave to appeal to the Supreme Court of Appeal was granted on 9 February 2015.

Arguments before the Supreme Court of Appeal

The JSC's rationale for non-disclosure is essentially based on the supposed need for confidentiality. It argues that keeping the Recording private enables its members to have frank and robust debate around the suitability of candidates. It also contends that confidentiality is essential to protect the integrity and dignity of the candidates.

These arguments, the HSF contends, are not sufficient to justify non-disclosure of the Recording. Most obviously, the effect of non-disclosure is that the HSF is placed in a worse position relative to the JSC in its capacity to prosecute the main application.

Moreover, the ordinary duty of the JSC to disclose the Recording under Rule 53 is magnified by its standing as a public body. Given its critical role in our constitutional democracy, its duties must be interpreted and its powers must be exercised consistently with the constitutional values of openness, accountability, transparency and the rule of law. The fact that several High Courts have found similarly lends support to this position. The dignity of the judiciary will be enhanced, rather than diminished, by an open and transparent appointment process. Ultimately, access ensures that if the JSC’s members did or said something which they could not properly or lawfully do or say, they can then be held accountable.

Lastly, even if concerns regarding privacy are as important as the JSC contends, precedent exists to limit disclosure of the Recording to the court and to the parties to the main application. Such a middle ground meets the JSC’s concerns, whilst at the same time affording the court and the parties the access needed to litigate on an equal footing. Only with access, the HSF contends, can we be sure that the JSC is acting lawfully and rationally—that it is upholding the rule of law.

The HSF anticipates that the Supreme Court of Appeal will find in its favour. After the appeal is finalized, the parties will then finally be in a position to proceed with the main application.