The Cape Bar Council v The Judicial Service Commission and Another.

 The Centre for Constitutional Rights joined as amicus in the recent Cape Bar Council's challenge to the Judicial Service Commission's (JSC's) failure to nominate for appointment to the Western Cape High Court bench candidates who, it had itself, found to be both fit and proper and duly qualified. 

Although the judgment related only to interviews for appointment to the three vacancies on the Cape Bench, its implications extend far beyond that in two important respects.

Firstly, it clarifies the procedure that will have to be followed at all future sittings of the JSC. This is particularly important given the role of the JSC. It is the body responsible for interviewing potential candidates for appointment as judges to all our Courts, including the Constitutional Court. It is specifically tasked by the Constitution with ensuring that our judges are fit and proper persons, and duly qualified.   It is also enjoined in its nomination process to have due consideration of the need for the judiciary to reflect broadly the racial and gender composition of South Africa.

It is thus the gatekeeper to an independent, competent judiciary, without which neither the preservation of the rule of law nor the supremacy of the Constitution can be guaranteed. A fault in the appointment procedure thus strikes at the very heart of our constitutional arrangement. Secondly, it illustrates that that there are no holy cows or institutions beyond public scrutiny. 

Although the Constitution permits the JSC to determine its own procedure to be followed when conducting interviews of prospective candidates, it is axiomatic that any procedure adopted must be constitutionally compliant. This is so because the Constitution brokers no exception to the  simple injunction that all persons, arms of government and organs of state are bound to respect, protect and promote the Constitution and that any law or conduct that is inconsistent with the Constitution is invalid. Within the constitutional context this requires that any procedure adopted by the JSC must be open and transparent and any action taken must be capable of being justified rationally.

The Cape Bar Council's challenge was twofold. Firstly, it challenged the actual proceedings on the basis of its composition, in that neither the President of the Supreme Court of Appeal nor his deputy was present, as is required by the Constitution. 

In the absence of any reason justifying this absence, which the JSC could not give, it argued that the proceedings were unlawful and consequentially invalid.  Secondly, the Bar Council challenged the validity of the actions, or more accurately inactions, taken by the JSC at that meeting on the grounds that, absent a good reason, the JSC's failure to meet its constitutional duty to select and recommend for appointment candidates who are appropriately qualified and fit and proper and suitable for appointment, was unjustifiable.  

Had the JSC explained its decision not to select a candidate on the basis of demographic considerations, the Bar council pointed out that it would have had to do so with reference to objective criteria and a constitutionally-compliant plan and/or policy  on how it took into consideration and what weight it gave to the question of representivity. This was not forthcoming and the JSC had accordingly acted irrationally and arbitrarily.

 The Centre based its challenge on an interpretation of the threshold requirements for appointment as a judicial officer, which it argued had been misconstrued by the JSC in that it had imported race and gender as a threshold requirement.  In the Centre's view, the latter were ameliorating considerations. 

These could not be elevated to a substantive requirement which could be employed to achieve the deliberate exclusion from judicial appointment of a candidate who met the constitutional requirements of being appropriately qualified and fit and proper. The Centre also argued that there is an imperative to fill vacancies if there are sufficient candidates who are appropriately qualified and are fit and proper.

The JSC's denial of this imperative, combined with the secret ballot system adopted by the JSC,  in the opinion of the Centre, merely afforded individual members of the JSC the opportunity to give unrestrained vent to subjective prejudices.   Even worse, it opened the process to allegations of political gerrymandering, which the very structure of the JSC was intended to inhibit.

In addition, the Centre challenged the voting procedure which was arbitrary and irrational. Last,ly the centre challenged the affront to human dignity as a result of the JSC's apparent decision to not appoint non-blacks, without declaring that intent.  

In outlining the legal framework relevant to the judgment, the learned judge reaffirmed that in selecting judges for the appointment to the various High Courts, the JSC is exercising a public power, conferred in terms of a constitutionally imposed mandate. The court also reaffirmed that the exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.

As explained by the Constitutional court in Affordable Medicines Trust and Others v Minister of Health and Othersthis means that "... the exercise may not be arbitrary and must be rational."  A further principle of the rule of law is that a body exercising public power may only exercise such power and perform such function as is conferred upon it by law. As a public body created to serve the public interest, the JSC must thus to perform its functions openly and transparently and may only reach decisions that are not arbitrary or irrational. 

 Against this background the Court found that it was incumbent upon the JSC to account for its failure to appoint candidates who were considered appropriately qualified and fit and proper.  Because the JSC failed to provide reasons for not recommending such candidates, the process was not transparent and appeared to be arbitrary and irrational.   

 The Court also found that the voting procedure was arbitrary and irrational in that the prospects of a candidate securing the required majority vote of 13 members depended on the number of candidates shortlisted. The justification that the JSC gave for not filling the two vacancies -  namely that no-one secured the requisite majority - was also arbitrary and irrational because the voting procedure made it virtually impossible to secure such majorities. The resultant failure to fill the vacancies was thus unlawful and unconstitutional. 

In view of these findings, the Court found that it was not necessary to consider the arguments advanced that demographic representivity did not constitute a qualifying requirement, but rather a factor to be considered when performing a selective function between otherwise qualifying candidates.

 The immediate effect of the judgment is that the JSC will, at its next sitting which is scheduled for later this month, have to adopt a transparent and consistent voting procedure. It will also have to provide reasons for its nomination and/or failure to nominate any candidates. Equally importantly, it will have to ensure that its composition is as prescribed in the Constitution. 

 The JSC has not shown itself to be the august body it should be, responsible for ensuring an independent, suitably qualified judiciary. The preconceived attitudes evidenced by many of the members at the recent interview of the now appointed Chief Justice fly in the face of its mandate to objectively ascertain the fitness of any candidate. The contradictions and inaccuracies in the JSC's founding affidavit in the Cape Bar's challenge, which was deposed to by one of the President's nominees, raise questions as to competency. 

 Because the JSC must now reconsider its own procedures, it might, perhaps, be an appropriate time  for politicians - and especially the President - to reconsider the principles governing nominations to the JSC.  The President appoints four members. They should not be nominated because of their political allegiance, but solely on the basis of their professional competence.  Perhaps the most important outcome of the case has been to reaffirm the crucial principle that no-one - and no organisation - even the JSC - is above the law and beyond judicial scrutiny.

Adv Nikki de Havilland is director of the FW de Klerk Foundation's Centre for Constitutional Rights

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