HSF Takes JSC to Court: Update

Background

On Friday, 7 June 2013, the Mail & Guardian broke the story of the Helen Suzman Foundation’s application to the Western Cape High Court seeking to declare certain of the JSC’s nominations unlawful and/or irrational [1].

The HSF argues in its founding papers that the JSC has acted unlawfully in its interpretation of section 174 of the Constitution [2]. It contends that the JSC has misconstrued its powers when considering persons for judicial appointment/advancement by erroneously using race (and gender) as determinative factors in the appointment-process.

The HSF emphasises that it fully agrees with the constitutional demands of judicial transformation. However, the HSF believes that it is justified in bringing this action against the JSC as there is a growing perception that talented candidates are being overlooked for reasons that are not clear or explicit [3]. This is in addition to the recent public comments on these very questions by key players in the JSC itself [4].

The JSC has yet to determine whether it will oppose the application, but it has been advised by its spokesman, Dumisa Ntsebeza SC, to do so. Speaking to Die Burger, Ntsebeza is noted as stating that in his personal opinion, the JSC should oppose it [5].

Amicus Application

Whilst the JSC is still considering its response, the Higher Education Transformation Network (HETN) has indicated that it would like to join the application as an amicus (friend of the court) [6].

The HETN issued a statement to the effect that it “condemns and deplores” the legal action taken by the HSF [7]. As reported in City Press, the HETN has also instructed its lawyers to be admitted as a friend of the court so that it may add its voice to the debate around transformation in the judiciary [8].

In the same report, City Press noted that the HSF’s Director, Francis Antonie, had said that the HETN had “misunderstood the court action”. Antonie emphasised that this case was about getting certainty about the hotly contested interpretation of transformation in this context [9].

The HSF has received a letter from the HETN requesting to be admitted as an amicus.

In its response the HSF stated that it “welcomes the intervention of civil society organisations to provide assistance to the courts when considering matters of great public importance, and has itself intervened in several such matters as amicus curiae in the past.” However, the HSF indicated that, at this point, it would be unable to provide the HETN with permission, as sought. This is owing, inter alia, to the fact that the HETN has not been able to establish its interest in the matter, nor has it  advanced any argument that indicates how and why it should be able to assist the Court. This is in line with the requirements laid out in Rule 16A of the Uniform Rules of Court [10].

However, should the HETN revise its position and meet the HSF’s requirements as founded in the rules, the Foundation, in principle, would see no reason to withhold consent.

Conclusion

It is to be understood that a case such as this, which goes to one of the core questions of our post-apartheid society, should elicit passionate responses. The HSF welcomes the opportunity to engage with the JSC, the HETN, and any other interested party in determining the meaning of section 174.

The HSF hopes that in their eagerness to do so, interested parties will remain respectful of all other parties so that whatever the outcome of this case the status of civility in our democracy is strengthened.

References

[1]    http://mg.co.za/article/2013-06-07-00-jsc-fixated-on-race-and-gender
[2]    http://hsf.org.za/siteworkspace/hsf-founding-affidavit.pdf
[3]    http://hsf.org.za/media/press-releases-1/helen-suzman-foundation-takes-judicial-service commission-to-court
[4]    Note 3 above
[5]    http://www.dieburger.com/nuus/2013-06-11-rdk-dalk-hof-toe-oor-sy-prosedures
[6]    http://www.hetn.org.za/
[7]    http://www.hetn.org.za/documents/Press_Release_68_Helen_Suzman_Foundation_Litigation.pdf
[8]    http://www.citypress.co.za/news/the-jsc-should-do-what-afrikaners-did/
[9]    Note 8 above
[10]  http://www.justice.gov.za/legislation/rules/UniformRulesCourt%5b26jun2009%5d.pdf

Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation