HSF v JSC - Interlocutory Proceedings
Various factors come into play in judicial appointments: gender and race must obviously feature in deliberations for judicial appointment. It is unclear, however, how heavily the question of judicial independence weighs on the collective mind of the Judicial Service Commission ("JSC").
A crucial factor which needs to be borne in mind is that judges should be preeminently qualified both in their formal training and their experience. The mix of, amongst other things, forensic skill, race and gender, and independence is a potent one which the JSC must handle with great care.
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 ("WCC") ("the Decision").
After considering the unsatisfactory reasons given by the JSC, the Helen Suzman Foundation ("HSF") launched judicial review proceedings in the WCC ("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 yet another lengthy delay, the JSC finally filed what it considered 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 from the Record. 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 (indeed, a most important part) of the required Record, let alone of its reasons for doing so.
After numerous failed attempts by the HSF to procure the Recording from the JSC, the HSF launched interlocutory proceedings in the WCC for an order compelling the JSC to deliver the Recording of its post-interview deliberations. This material, which the HSF seeks to use in the main application, forms an essential part of the JSC's record of decision not to appoint certain candidates.
The Interlocutory Proceedings
On 8 August 2014, the WCC heard the interlocutory proceedings.
Last Friday (5 September 2014), the WCC delivered a judgment against the HSF. (READ MORE HERE) The judgment is only relevant with respect to the HSF's access to the above material and not the merits of the main application which is pending before the WCC. The judgment of the WCC is not a reflection upon, nor a rejection of, the HSF's prospects in the main application.
The HSF does not agree with the outcome of the WCC judgment.
The HSF, with the assistance of our lawyers, has carefully studied the judgment of Mr Justice Le Grange and has launched an application for leave to appeal against the judgment and order handed down on 5 September 2014. (READ MORE HERE)
Statement issued by Francis Antonie, Director Helen Suzman Foundation, September 11 2014
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