In Review: The HSF and the JSC

Introduction

The HSF has maintained, since launching this matter last year, that the appointment of judges is a topic of much debate. Given that judicial appointments impact on how our constitutional democracy is promoted and protected, and how the rule of law is safeguarded, it should come as no surprise. Without an informed and knowledgeable judiciary, which is independent, our constitutional democracy could come under threat. The HSF’s actions are aimed at enhancing and strengthening our judiciary and, by extension, the constitutional democracy it serves.

Even though judges are appointed by the President, the nomination process lies with the JSC. Despite the JSC’s best attempts to nominate candidates of outstanding merit, there has, in recent years, been some concern as to how it has exercised its constitutional mandate. While that mandate takes gender and race into consideration – as it must – there seems to be scant regard for how much judicial independence should also be considered. Given the importance of the separation of powers, and the role of the judiciary in holding the government accountable, judges should be preeminently qualified both in their formal training and their experience. The mix of forensic skill, race, gender, and independence, is a pertinent one that the JSC should handle with great care.

Background

In 2012, at the conclusion of one such selection process, a member of the judiciary requested the reasons from the JSC for its decision to recommend to the President certain candidates for judicial appointment, and not to recommend certain other candidates for judicial appointment in the Western Cape High Court ("the Decision"). After considering the unsatisfactory response from the JSC, the HSF launched judicial review proceedings in the Western Cape High Court ("the main application") seeking an order declaring the Decision to be unlawful and/or irrational and invalid; alternatively, 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 purported to be the Record.  Two days before the HSF was due to supplement its founding affidavit based on the Record, the HSF 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 either the Court or the HSF, at the time of lodging the Record in incomplete form, of the fact that it had withheld a part of the Record, let alone of its reasons for doing so. 

Last Friday’s application, moved in the Western Cape High Court (Cape Town), before Mr Justice Le Grange, was aimed at compelling the JSC to provide the HSF the recordings and transcripts.

Interlocutory Proceedings

The JSC's rationale for non-disclosure is based on confidentiality. In argument before the Court, the JSC contended that keeping these recordings private was preferable so as to better enable the Commissioners to have frank and robust debate around the suitability of candidates. Further, the JSC contended that confidentiality was essential to protect the integrity and dignity of the candidates without impeding or undermining the ability of the Commissioners to submit them to robust assessment.

The HSF believes that the JSC's rationale is incorrect. We maintain that the effect of the failure to disclose the Recording is that the HSF is placed in an inferior position in the litigation vis-à-vis the JSC which has all the relevant information at its disposal.  If the deliberations simply mirror the stated reasons, then there can be no objection to withholding access. This duty is enhanced by the JSC’s standing as a public body bound by the Constitution, a document which demands openness, accountability, and transparency. That several of the country’s High Court Divisions have already found similarly adds further credence to our position.  They have consistently held that the dignity and stature of the entire judiciary will be enhanced, rather than diminished, by there being an open and transparent appointment process. Ultimately, access will ensure that if the JSC’s members did or said something which they could not properly or lawfully do or say, then they can be held accountable.

Comment

The HSF was pleased with proceedings in court. We are hopeful that Mr Justice Le Grange will recognise the inability of the JSC, and the amici in this matter, to meet us squarely on the arguments that we have raised. This case is not about race only, as may have been reported. Race and gender are legitimately important factors when considering appointment and their determinative value, relative to other equally legitimate factors, needs to be tested. The HSF fully understands, and supports, the need for transformation in South Africa. We believe that ensuring such transformation is constitutionally compliant is not only of benefit to the JSC itself, but to South Africa as a whole.

Conclusion

Judgment was reserved. The HSF is hopeful that the Court will find in our favour given the ground-breaking precedent this could set in relation to “confidential information” and the disclosure thereof.

The HSF was represented by Advocates David Unterhalter SC, Max du Plessis, and Tembeka Ngcukaitobi. Webber Wentzel is our attorney of record.
 

Kameel Premhid – kameel.premhid@gmail.com
Researcher
Helen Suzman Foundation

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