IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO:
In the matter between:
THE CAPE BAR COUNCIL - APPLICANT
and
THE JUDICIAL SERVICE COMMISSION - FIRST RESPONDENT
THE CHAIRPERSON, JUDICIAL SERVICE COMMISSION - SECOND RESPONDENT
FOUNDING AFFIDAVIT
I, the undersigned,
ALASDAIR ROBERT SHOLTO-DOUGLAS,
do hereby make oath and say that:
INTRODUCTION
I am an adult male advocate practising as such from chambers situate at 1515 Huguenot Chambers, 40 Queen Victoria Street in Cape Town. I am a member of the Cape Bar, a society of duly admitted advocates, of which the Cape Bar Council (‘the CBC'), the applicant in these proceedings, is the governing body. I am the President of the CBC and I am authorised to depose to this affidavit on its behalf.
2. Unless the context indicates otherwise, the facts to which I depose fall within my personal knowledge, and to the best of my belief are both true and correct. The statements of law that I make in this affidavit are made on the advice of the CBC's legal representatives, which I believe to be well-founded. Where I refer to statements by the spokesperson of the Judicial Services Commission (‘the JSC') reported in the media, I have no reason to believe that they have been inaccurately reported and believe that they have been accurately reported.
THE PURPOSE OF THIS APPLICATION
3. This application concerns the validity of the proceedings and actions of the first respondent, the JSC at its meeting of 12 April 2011. The JSC had the duty on that day to interview and select candidates for judicial appointment in respect of three vacancies on the Bench of the Western Cape High Court (‘WCHC'). The JSC selected one candidate, but failed to fill the remaining two vacancies.
4. The Constitution establishes the JSC and regulates its composition. In terms of s 178(1)(b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution'), the President of the Supreme Court of Appeal (‘the SCA') is a member of the JSC. According to s 178(7) of the Constitution if the President of the SCA is temporarily unable to serve on the JSC, the Deputy President of the SCA acts as his or her alternate.
5. However, during the interviews, deliberations and decisions of the JSC on 12 April 2011, neither the President of the SCA nor the Deputy President of the SCA was present. The CBC asks this Court, in paragraph 2 of the notice of motion, to declare that on 12 April 2011 the JSC was accordingly improperly constituted and that its proceedings on that day were inconsistent with the Constitution, unlawful and consequently invalid.
6. The CBC seeks, in paragraph 3 of the notice of motion, a declarator that the failure by the JSC on 12 April 2011 to fill two judicial vacancies on the WCHC is unconstitutional and unlawful. The CBC seeks this order on the following grounds (which are set out in more detail later in this affidavit):
6.1. The JSC is under a positive constitutional duty in terms of ss 174 and 165(4) of the Constitution, to ensure the accessibility and effectiveness of the courts by selecting and recommending the appointment of applicants for judicial appointment who are ‘appropriately qualified' and ‘fit and proper'.
6.2. The JSC had insufficient regard to its constitutional duty to select and recommend for judicial appointment candidates who are appropriately qualified and fit and proper and suitable for appointment.
6.3. Among the candidates who the JSC did not select on 12 April 2011 are individuals who are appropriately qualified, fit and proper and suitable for appointment. Absent a good reason, the failure by the JSC to select any of them for the remaining two vacancies is unjustifiable.
6.4. The JSC has failed to provide an adequate reason for its action.
6.5. The JSC's failure to provide an adequate reason for its action, and the objective known facts, lead to the inference that its failure to select candidates for the additional two vacant positions is unjustifiable.
7. Consequently, the CBC seeks, in paragraph 4 of the notice of motion, an order directing the JSC, properly constituted, to reconsider afresh the applications of the shortlisted candidates who were not selected on 12 April 2011 for two vacancies on the WCHC in light of the judgment by this Court.
8. In this affidavit I deal in turn with the parties to this application, this Court's jurisdiction, the facts, and the two main points in this application relating to the improper composition of the JSC and the substantive defects in its failure to fill the two vacancies. Penultimately, I deal with the issue of urgency. Lastly, I make concluding observations about the decision to launch this application.
PARTIES
9. The applicant is the CBC with its address at Ground Floor, Huguenot Chambers,
40 Queen Victoria Street, Cape Town.
9.1. The CBC is the governing body of the Cape Bar, the objects of which include ‘the consideration and promotion of improvements in ... the administration of justice' and ‘the maintenance of the rule of law'. These objects are contained in clauses 2(c) and (d) of the Constitution of the Cape Bar, a copy of the relevant extracts of which are annexed as ‘ARSD 1.'
9.2. In terms of the Constitution of the Cape Bar, the CBC consists of members of the Cape Bar, and its powers and duties relevant to this application include the following:
9.2.1. To represent the Cape Bar in any matter of general concern to the Cape Bar or to its members;
9.2.2. To represent the Cape Bar in legal or other proceedings in so far as may be permitted by law in regard to any matter affecting the Cape Bar or any member of the Cape Bar; and
9.2.3. To do all such other things as may, in its opinion, further the objects of the Cape Bar or are necessary for or incidental to the carrying out of those objects or the exercise of the abovementioned powers and duties.
(Clauses 23 (a), (u) and (cc).)
9.3. I submit that the issues in this application, concerning the validity of the proceedings and actions of the JSC when performing its important Constitutional function of selecting High Court judges, are of considerable public interest. They potentially affect all litigants in the WCHC. The members of the Cape Bar have a professional duty to act in the interests of that body of litigants.
9.4. The CBC accordingly brings this application:
9.4.1. its own interest;
9.4.2. in the interests of the members of the Cape Bar;
9.4.3. in the public interest; and
9.4.4. in the interests of all litigants in the WCHC.
10. The first respondent is the JSC, a body established by s 178 of the Constitution. The address of the JSC is care of the Constitutional Court, Constitutional Hill, Braamfontein, Gauteng.
11. The second respondent is the Chairperson of the JSC, who is cited in his official capacity both as the Chairperson of the JSC and as the person who chaired the JSC proceedings on 12 April 2011. As far as I am aware, the Chief Justice, the Honourable Justice Sirral Sandile Ngcobo, was the Chairperson of the JSC at all times material to these proceedings.
11.1. Section 5(1)(a) of the Constitutional Court Complementary Act 13 of 1995 provides that no civil proceedings, including by way of notice of motion, shall be instituted against the Chief Justice, except with the consent of the President of the SCA. Accordingly in a letter dated 20 May 2011 (‘ARSD 2.'), the CBC's attorneys requested the consent of the President of the SCA to institute these proceedings against the Chief Justice.
11.2. In a letter dated 24 May 2011 (‘ARSD3.') the President of the SCA granted such consent.
11.3. I accordingly submit that there has been proper compliance with the relevant provisions of the Constitutional Court Complementary Act and that this application is properly before this Court.
12. I understand that there were some 28 applicants for the three vacancies at the WCHC. The candidates whom the JSC interviewed and considered for selection on 12 April 2011 for the three judicial vacancies on the WCHC appear in a shortlist that the JSC published on 28 February 2011 (‘ARSD4.'). In terms of the JSC's Procedure of Commission, referred to in more detail below, a shortlisted candidate is a candidate who ‘qualifies for appointment' and who has either been identified by a member of the JSC as a candidate who ‘they feel strongly should be included in the short list' or who the JSC's screening committee or any of members of the screening committee, considers to ‘have a real prospect of selection' (paragraph 3(e)).
13. The shortlist for the WCHC comprised seven candidates, namely Adv R A Brusser SC, Ms J I Cloete, Adv M J Fitzgerald sc, Mr Acting Justice R C A Henney, Mr S J Koen, Adv S Olivier SC and Adv 0 L Rogers SC (‘the shortlisted candidates'). Of the seven short-listed candidates one (Mr Acting Justice Henney) was black, six were white and one (Ms J I Cloete) was a woman.
13.1. As I explain in more detail below, on 12 April 2011 the JSC selected Mr Acting Justice Henney, but failed to select any of the other shortlisted candidates. The relief sought does not impugn the appointment of Judge Henney for reasons to be explained.
13.2. I submit that the shortlisted candidates do not have a direct and substantial interest in the subject-matter and outcome of this application which requires their joinder as respondents.
13.3. Nonetheless, as a courtesy and out of caution, following the CBC's decision to bring these proceedings, I advised Judge Henney and each of the other shortlisted candidates of this application, of the legal issues that the CBC intended to raise and the relief that it would seek. At his request, I provided Judge Henney with a draft of this application prior to its launch.
13.4. The CBC will also cause a copy of the notice of motion and founding affidavit to be served on the shortlisted candidates as a further safeguard of any interest that they may have in the matter.
JURISDICTION
14. The impugned proceedings of the JSC were conducted in Cape Town and the dispute concerns vacancies on the WCHC. I submit that these considerations separately and jointly bestow jurisdiction on the WCHC.
15. I submit further, as discussed below and as will be argued at the hearing, that the provisions of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA') are of application to these proceedings. Section 6(1) of PAJA states that ‘Any person may institute proceedings in a court ... for the judicial review of administrative action.' Section 1 defines ‘court', inter alia, as a High Court:
‘within whose area of jurisdiction the administrative action occurred or the administrator has his or her or its principal place of administration or the party whose rights have been affected is domiciled or ordinarily resident or the adverse effect of the administrative action was, is or will be experienced.' (emphasis added)
16. Accordingly, PAJA authorises the institution of these proceedings in this Court, within whose area of jurisdiction (a) the administrative action occurred; (b) the Cape Bar is ordinarily resident; and (c) the adverse effect of the administrative action was, is and will be experienced.
FACTS
17. In response to the notice referred to in paragraph 12 above, in a letter to the Chairperson of the General Council of the Bar (‘GCB') dated 14 March 2011, the CBC commented on the shortlisted candidates. The CBC supported the appointment of Advs Fitzgerald SC, Olivier Sc and Rogers SC to the three vacancies. As the letter states, the CBC was conscious of the fact that it was supporting three white males. The CBC explained that since it is committed to transformation of the legal profession, including the bench, it adopted this position only after considerable debate and careful consideration. The CBC said further that should the JSC prefer not to fill all three vacancies, it urged the JSC to appoint Adv Rogers SC, who it said is an exceptional candidate, and to consider appointing at least one of Advs Fitzgerald SC and Olivier SC. A copy of this letter, without its annexures, which the GCB subsequently incorporated in its report to the Secretariat of the JSC, is attached marked ‘ARSD5.'
18. On 30 March 2011 the Executive Committee of Advocates for Transformation (Western Cape) (‘AFT') sent a letter to the Secretary of the JSC (‘ARSD6.'), by means of which AFT supported the appointment to the WCHC of Adv Rogers SC.
i. On 31 March 2011 the SCA handed down judgment in the matter of Judicial Service Commission v Premier, Western Cape (537/10) [2011] ZASCA 53 in which it made findings infer alia about how the JSC should be composed. The JSC decided to abide that judgment rather than to appeal further to the Constitutional Court.
20. On Tuesday 12 April 2011 all seven shortlisted candidates were interviewed by members of the JSC in public at the Cape Town International Convention Centre (‘CTICC'). The interview of Adv Rogers SC was scheduled to take place on Wednesday 13 April 2011, but was moved forward and in fact took place at approximately 17h00 on 12 April 2011.
21. I attended part of the interviews on 12 April 2011. The members of the JSC were seated in a horseshoe arrangement with public seating at the open end of the horseshoe and the Chairperson (the Chief Justice) seated at the head. I noticed that there were a number of unoccupied seats towards the open end of the horseshoe. Those seats were clearly not occupied at all. There was, in addition, a fairly regular flow of JSC members who left and then returned to the meeting during the interviews. I noticed that neither the President of the Supreme Court of Appeal (‘SCA'), Judge Lex Mpati, nor the Deputy President of the SCA, Judge Louis Harms, were present. I later learned that the President of the SCA did not attend any of the proceedings of the JSC on 12 April 2011.
22. The Deputy President of the SCA was not invited to act as the alternate of the President of the SCA at the proceedings of the JSC on 12 April 2011 and was not present.
23. It appears from the exchange of correspondence and the press report described below, that the JSC has acknowledged that despite sections 178(1 )(b) and (7) of the Constitution, neither the President of the SCA nor the Deputy President of the SCA were present at any stage during the proceedings of the JSC on 12 April 2011.
24. After the last of the interviews on 12 April 2011, which ended at about 18h30, the Chairperson announced a 30 minute break before the JSC commenced deliberating in camera. I left the venue at that stage and can therefore only assume that deliberations commenced at about 19h00. Before 20h00 that evening I had been informed of the outcome of the deliberations and voting.
24.1. After the deliberations, the members of the JSC still present at the meeting voted on each of the candidates' applications for selection to the WCHC. 13 or more members of the JSC voted in favour of Mr Acting Justice Henney. 12 members voted in favour of Adv Rogers SC. Advs Fitzgerald SC and Olivier SC received fewer supporting votes than Rogers SC. The JSC has not disclosed how many votes the other shortlisted candidates received.
24.2. As I understand, no members of the JSC cast votes against any of the candidates.
24.3. Since a majority of the JSC is 13 when deciding on the advice to be given to the President of the Republic on the appointment of judges to all courts other than the Constitutional Court under section 174(6) of the Constitution and any decision of the JSC must be supported by a majority of its members, Mr Acting Justice Henney was the only candidate that the JSC selected on 12 April 2011 for appointment to the WCHC.
24.4. There was no support by a majority of the members of the JSC for any decision, either for or against, the application by Adv Rogers SC.
24.5. The JSC did not take a decision, or at least not one supported by a majority of its members, to keep two vacancies on the WCHC open.
25. On Friday 15 April 2011, in my capacity as chairperson of the CBC, I sent a fax to the Chief Justice, in his capacity as chairperson of the JSC, a copy of which is attached marked ‘ARSD7.' In this letter:
25.1. I expressed concern that because neither the President nor Deputy President of the SCA had been present on 12 April 2011, the proceedings of the JSC on that day were invalid. I asked the Chief Justice not to convey to the President of the Republic, Mr Jacob Zuma, any decisions of the JSC. I requested the Chief Justice to re-convene the JSC in terms of s 178(6) of the Constitution, including the President of the SCA or his Deputy, in order that the shortlisted candidates for appointment to the WCHC may be re-interviewed followed by fresh deliberations and decisions on the filling of the three vacancies.
25.2. I also said that in view of the absence of the President of the SCA and his Deputy, I was also concerned that some of the decisions taken by the JSC on the shortlisted candidates for appointment to the WCHC may not have been supported by a majority of its members. I asked the Chief Justice to let me know how many members of the JSC voted in favour of and against each of the seven shortlisted candidates for appointment to the WCHC.
26. In a fax transmitted at 17h30 on Monday 18 ApI 2011 ARSD8.'), the Secretary of the JSC, acting pursuant to a direction from the Chief Justice, replied to my letter and said the following:
26.1. The JSC had decided, by majority, that It does not agree that It was not properly constituted when it considered the shortlisted candidates for the WCHC.
26.2. The JSC had requested the Chief Justice to proceed to advise the President of the Republic on Its recommendations as envisaged In s 174(6) of the Constitution.
26.a The JSC did not think the CBC was entitled to the Information about the number of members who voted for and against each of the seven shortlisted candidates.
27. Pursuant to a resolution of the CBC adopted at an urgently convened meeting, I sent a fax to the Secretariat of the JSC at 11h30on Tuesday 19 April 2011 (ARSD9.'), in which I requested the Chief Justice to refrain from advising the President of the Republic of the recommendations of the JSC regarding the vacancies on WCHC until 141i15 on Thursday 21 April 2011. I explained that this time was to allow the CBC to place before its AGM the question of whether review proceedings should be instituted.
28. In a reply sent at 14h40 on Tuesday 19 April 2011 (‘ARSD 10.'), the Secretary of the JSC, acting pursuant to a direction from the Chief Justice, stated that the Chief Justice would be meeting the President of the Republic at I 5h00 that day to discuss issues related to the JSC and other related matters.
29. At 18h11 on Tuesday 19 April 2011 the Registrar of the Constitutional Court sent an email invitation to members of the media to a press briefing, to be held at 14h00 on Wednesday 20 April 2011, to announce the names of the candidates recommended by the JSC for appointment to the various positions on the bench, following the interviews that were held at the CTICC from 4 to 12 April 2011. A copy of this invitation is attached marked ARSD11.'
30. Shortly after 14h00 on Wednesday 20 April 2011 the JSC released a media statement on the recommendations it had presented to the President of the Republic. A copy of this media statement is attached marked ‘ARSDI2.' It included confirmation that Mr Acting Justice Henney had been recommended for appointment to the WCHC and the statement that the JSC was ‘unable to recommend candidates to fill the other two vacancies'. The statement also said the JSC envisaged that those positions and others it had been unable to recommend be filled, would be re-advertised and considered in the next sitting of the JSC.
31. On Thursday 21 April 2011 the Business Day published an article headed ‘Cape vacancies may land JSC back in court', under the by-line of its reporter Franny Rabkin. A copy of this article is attached marked ‘ARSDI3.' It includes the following statements ascribed to one of the spokespersons of the JSC, Adv Dumisa Ntsebeza SC:
‘Mr Ntsebeza said the majority view [of JSC members] was that the constitution did not require that Judge Mpati or Judge Harms had to be there.
The majority were "quite ready to concede that their opinion might not necessarily be the right one'. But it was only when a court had made a "clear pronouncement" that there would be certainty on the issue.
Mr Ntsebeza said all the Western Cape candidates, in particular Mr Rogers, were "excellent" in terms of technical competence. But a lot of factors had to be considered by the JSC, including the need for a broadly representative judiciary.'
32. In an interview with Chris Baron published in the 30 April 2011 edition of the Sunday Times in the ‘So many questions' column (‘ARSDI4.'), Adv Ntsebeza SC responded as follows:
‘Does the JSC consider itself above the law?
No.
Why does it consistently flout it?
To flout the law does not mean you're above the law. You flout the law because you consider your position to have been the correct position, until the court tells you it is not the correct position.
Now the Supreme Court of Appeal has told you.
What has it told us?
That the JSC was not properly constituted when it ruled on the (Judge President) John Hlophe Issue.
And what has the JSC done? It has said it will abide by that decision.
But 12 days later, It was again not properly constituted when it interviewed candidates for the Western Cape bench.
The court has not pronounced on that. And, by the way, the JSC has decided to abide by its ruling on the Zille matter ... (The SCA on Hlophe)
I'm talking about the JSC's consistent refusal, or failure, to be properly constituted
Come on, come on. Where have we ever refused to constitute ourselves properly?
When it interviewed candidates for the bench after the Supreme Court of Appeal spelt out very clearly how it should be constituted.
That's exactly where we differ. The SCA has not pronounced on the constitution of the JSC relevant to the presence or otherwise of the president of the SCA or his nominee. Show me one line where
The appeal court listed the people who had to be on the JSC for it to be properly constituted, such as the president of the SCA. Yet, 12 days later, when it interviewed candidates for the bench, those people were not present.
I've given you an answer. We have a different view on that particular issue. We don't agree that we were not properly constituted.
33. In a statement made on 10 May 2011 (‘ARSD15.') the Presidency announced that the President of the Republic under s 174(6) of the Constitution and on the advice of the JSC had appointed Mr Acting Justice Henney as a Judge of the WCHC.
34. Following the receipt of legally privileged advice sought by it, and having carefully and thoroughly considered such advice and the consequences thereof, the CBC unanimously resolved at a meeting held on Friday 13 May 2011 to institute these legal proceedings. This resolution is confirmed in a notice to the members of the Cape Bar on the same day, a copy of which is attached marked ‘ARSDI6.'.
35. Also on 13 May 2011 the CBC received a copy of an undated media announcement issued by the JSC (‘ARSDI7.') in which the JSC invited nominations to fill, among other positions, three vacancies on the Bench of the WCHC. In addition to the two positions left vacant after the JSC meeting on 12 April 2011, a further vacancy had arisen in the meantime by the retirement of Judge Cleaver.
36. In a letter dated 20 May 2011 (ARSDI8.'), the CBC's attorneys informed the JSC of the CBC's decision to bring this application. The CBC requested the JSC to provide written reasons (a) as to why the JSC acted on 12 April 2011 while it was irregularly constituted and (b) for the failure by the JSC to fill the two vacancies. The request was made in terms of s 33(2) of the Constitution, alternatively s 5(1) of PAJA.
37. In a separate letter to the Chief Justice dated 20 May 2011 (‘ARSD19.') the CBC's attorneys:
37.1. pointed out that in order for the CBC to present the correct factual position to this Court, it needs to describe, among other things, which members of the JSC attended its proceedings on 11 and 12 April 2011, and the deliberations, voting procedures and voting numbers of the members present, relating to the WCHC vacancies;
37.2. requested the Chief Justice in terms of s 38(1 )(d) of the Judicial Service Commission Act 9 of 1994 (‘the JSC Act') to provide written permission to the representatives of the advocates' profession to disclose such information to the legal representatives of the CBC for purposes of the envisaged legal proceedings, provided that they will not be asked to indicate how individual members of the JSC voted;
37.3. also pointed out that the request was directed to the Chief Justice of South Africa in his capacity as such rather than in his capacity as Chairperson of the JSC. This was because the JSC Act, while defining ‘Chairperson' to mean the Chief Justice, distinguishes in the body of the Act between some functions performed by the Chairperson and others by the Chief Justice. As submitted in that letter, it is ‘the Chief Justice' and not the Chairperson who is meant to exercise the power under s 38(1 )(d); and
37.4. respectfully submitted that the giving of the permission sought would be ‘reconcilable with our constitutional democracy which values openness and transparency', in the recent words of the SCA in the Premier matter referred to in paragraph 19 above.
38. In a further letter to the Chief Justice dated 24 May 2011 (‘ARSD20.'), the CBC's attorneys corrected the mistaken identification in its earlier letter of one of the representatives of the advocates' profession.
39. In a letter dated 3 June 2011 (‘ARSD21.') the JSC responded to the CBC's request for reasons. I discuss the content of that response later in this affidavit.
40. The Chief Justice did not respond to the request directed to him in terms of s 38(1)(d) of the JSC Act for him to permit the disclosure of certain information.
41. Instead, in its letter of 3 June 2011 (ARSD2I) the JSC stated that any disclosure of information is ‘appropriately performed' by the Secretariat of the JSC. The JSC further said that:
41.1. no branch of the advocates' profession has the right ‘to make demands upon or purport to issue mandates' to the two representatives of the advocates' profession who sit on the JSC (even though the CBC has never made demands upon or purported to issue mandates to any JSC Commissioner - and the request to the Chief Justice for him to permit Commissioners to disclose information has nothing to do with the making of any demand or the issue of any mandate by anyone);
41.2. the JSC does not recognise or concede any entitlement of the CBC ‘in terms of PAJA' to the information sought (even though the CBC expressly made the request to the Chief Justice in terms of s 38(1 )(d) of the JSC Act and not in terms of PAJA).
41.3. the JSC recognises that certain information is public knowledge or information to which the public in general is entitled, and provided, among other information, a list of Commissioners who it says attended the proceedings on 12 April 2011. The list, which comprises 24 names, excludes the names of the President and Deputy President of the SCA.
41.4. the number of votes recorded for each candidate may impact on their dignity and reputation and will accordingly not be released without the consent of the candidates in question.
42. The CBC accordingly obtained the written consents of Advs Fitzgerald SC, Olivier SC and Rogers SC for the JSC to make public and furnish the CBC's attorneys with the number of votes cast in their favour during the JSC proceedings in April 2011. These consents were attached to a letter to the JSC dated 3 June 2011 (‘ARSD22.') in which the JSC was requested to provide the voting numbers in respect of those three candidates.
43. In a letter dated 6 June 2011 (ARSD23.) the JSC provided the voting numbers.
COMPOSITION OF THE JSC
44. The composition of the JSC is regulated by s 178(1) of the Constitution, the relevant parts of which provide:
‘178 Judicial Service Commission
(1) There is a Judicial Service Commission consisting of -
(a) the Chief Justice, who presides at meetings of the Commission;
(b) the President of the Supreme Court of Appeal;
(c) one Judge President designated by the Judges President;
(d) the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
(e) two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by the President;
(f) two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by the President;
(g) one teacher of law designated by teachers of law at South African universities;
(h) six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly;
(i) four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
(j) four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
(k) when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.
(7) If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.
(8) The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason.'
45. The JSC serves a unique and crucial function in the South African judicial system and in our democracy. Among its duties, the JSC has sole responsibility for deciding who should be appointed as judges to the various High Courts. While the President makes the formal appointment, in terms of s 174(6) of the Constitution, the President must appoint the High Court judges as advised by the JSC. The actions of the JSC have far greater impact and are therefore even more important than the proceedings of adjudicative and quasi-adjudicative bodies.
46. Neither the Constitution nor the JSC Act provides that the JSC has a quorum. Likewise, the Procedure of Commission published GNR 423 in the Government Gazette of 27 March 2003 in terms of s 5 of the JSC Act (‘Procedure of Commission') (‘ARSD24.') also does not provide for a quorum.
47. In relation to the selection of candidates for appointment as judges of the High Court, paragraph 3 of the Procedure of Commission provides for the calling for nominations, the compilation of a shortlist by a screening committee and the distribution to members of the Commission of any comments received on the shortlisted candidates. Thereafter, paragraph 3(k) provides that:
‘(k) After completion of the interviews, the Commission shall deliberate in private and shall, if deemed appropriate, select the candidates for appointment by consensus or, If necessary, majority vote.' (emphasis added)
48. The Procedure of Commission defines ‘the Commission' as the ‘Judicial Service Commission'. The definitions also provide that ‘a selection made by "majority vote" is one made with the support of at least an ordinary majority of all the members of the Commission' (emphasis added).
49. I am advised and submit that in the circumstances, for the JSC to be properly constituted, its full complement must be in attendance during the proceedings and the decision-making process, in the absence of sound reasons for the non- attendance of a member.
The position of the President of the SCA and the Deputy President of the SCA
50. The composition of the JSC is constitutionally mandated. The JSC has been constituted in a structured and careful manner. It reflects a balance between members with legal training and other members appointed by the government who need not have a legal background. Importantly, s 178(1) identifies the Chief Justice and the President of the SCA as the first two members. There is specific provision in s 178(7) for the Deputy Chief Justice and the Deputy President of the SCA to act as their alternates. While not establishing any hierarchy of membership, the section clearly recognises the important roles that the Chief Justice and the President of the SCA or their alternates fulfil in serving on the JSC. They are particularly qualified to participate in the JSC deliberations and decisions regarding the selection of judges. The Chief Justice and the President of the SCA or their alternates are among the 13 ‘core members' listed in ss 178(1 )(a)-(g) and (j) of the Constitution.
51. The President of the SCA and the Deputy President of the SCA, along with the Chief Justice and the Deputy Chief Justice, are positions of special constitutional importance. They are appointed by a unique procedure, governed by s 174(3) of the Constitution.
52. The alternates for the Chief Justice and the President of the SCA on the JSC are also unique in s 178. The Deputy Chief Justice and the Deputy President of the SCA are the only ex officio alternates.
53. In this mailer, when the President of the SCA was temporarily unable to serve, the Deputy President was his constitutionally designated alternate. However, the Deputy President of the SCA was not requested to attend the proceedings on 12 April 2011 as an alternate in terms of s 178(7) of the Constitution. The failure by the JSC to request the Deputy President to attend cannot be regarded as a sound reason for his non-attendance.
Requirement for majority support
54. Section 178(6) of the Constitution provides that decisions of the JSC must be ‘supported by a majority of its members'. This means the majority of the members who compose the JSC and not a majority merely of those who happened to attend a meeting.
55. When considering the selection of a judge, the JSC comprises 25 members. A majority is therefore 13 or more.
56. In the case of Adv Rogers SC, the failure by the JSC to properly constitute itself is especially material. At the proceedings of the JSC on 12 April 2011, Adv Rogers SC received 12 votes in favour of his selection, which is one vote short of the requisite majority. Had the President of the SCA or the Deputy President of the SCA been present and voted in his favour, then Adv Rogers SC would have been selected and subsequently appointed as a judge.
The JSC's stated reasons for being irregularly constituted
57. As mentioned, in its attorneys' letter of 20 May 2011 (ARSDI8) the CBC requested the JSC to provide written reasons as to why the JSC acted while it was irregularly constituted by virtue of sitting without the President or Deputy President of the SCA. In its letter of 3 June 2011 (ARSD2I) the JSC provided the following response:
‘This issue was debated by the Commission after receipt of a letter from your client, and the JSC resolved that it had not been improperly constituted. The Commission is accordingly unable to furnish reasons for your client's conclusion of fact, with which it does not agree.'
58. The letter does not indicate how many members of the JSC participated in the debate and how many members were in favour and how many against the resolution that the JSC had not been properly constituted. The JSC is invited to disclose this in any answering papers in light of the requirement in s 178(6) of the Constitution that a decision of the JSC be supported by a majority of its members.
Relief sought and cause of action concerning the improper composition of the JSC.
59. In relation to the failure by the JSC to properly compose itself, the CBC seeks the following orders:
59.1. It is declared that the proceedings of the JSC on 12 April 2011 were inconsistent with the Constitution, unlawful and consequently invalid (para 2 of the notice of motion); and
59.2. The JSC, properly constituted, is directed to reconsider afresh the applications of the shortlisted candidates who were not selected on 12 April 2011 for the two remaining vacancies on the WCHC in light of the judgment by this Honourable Court (para 4 of the notice of motion).
60. There can be no doubt that all conduct by the JSC constitutes an exercise of public power and, as such, must comply with the principle of legality. The exercise of all public power must be done according to the dictates of the Constitution and any relevant legislation. Failure to so comply is unconstitutional and falls to be declared invalid under the Constitution.
61. I submit that the JSC's failure to be properly constituted on 12 April 2011 means that its proceedings on that day were inconsistent with the Constitution and consequently invalid.
62. A declaration of invalidity in relation to the proceedings of the JSC on 12 April
2011 could notionally impugn the appointment of Judge Henney to the WCHC. On the other hand:
62.1. after the JSC selected Judge Henney, the President of the Republic appointed him in terms of s 174(6) of the Constitution. There does not appear to be anything irregular with the actions of the President or any reason to seek the setting aside of the appointment;
62.2. although a court must declare that conduct inconsistent with the Constitution is invalid to the extent of its inconsistency, it has a discretion in terms of s 172(1)(b) of the Constitution to make any order that is just and equitable; and
62.3. it would not be just and equitable for Judge Henney's appointment to be set aside in circumstances where the majority of the JSC supported his application, the President appointed him, and such relief is not actually sought.
63. Accordingly, the CBC does not seek an order setting aside the appointment by the President of the Republic of Judge Henney. Furthermore, the consequential relief sought by the CBC in paragraph 4 of the notice of motion concerns only the two positions on the WCHC in respect of which the JSC failed to make a selection on 12 April 2011. Therefore the relief sought in this application does not impugn the appointment of Judge Henney.
SUBSTANTIVE ISSUES
64. The JSC plays a pivotal role in the process leading to the appointment of judges. As mentioned, a judge cannot be appointed to a High Court unless the JSC selects him or her and advises the President of the Republic to make the appointment in terms of s 174(6) of the Constitution. Once the JSC has selected a judge for appointment to the High Court, the President of the Republic exercises no discretion in terms of the Constitution in making the subsequent appointment.
65. The substantive criteria upon which the JSC must select a candidate for appointment as a judge include those contained in ss 174(1) and (2) of the Constitution:
‘174 Appointment of judicial officers
(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.'
66. Also relevant is s 165(4) of the Constitution, which requires that:
‘Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.'
67. The process by which the JSC selects short-listed candidates and deliberates on their applications is dealt with in the Procedure of Commission (‘ARSD24'), which provides, inter alia, that following the closing date for nominations for vacancies to the High Courts:
‘3. (d) ... all the members of the Commission shall be provided with a list of the candidates nominated with an invitation to -
(i) make additional nominations should they wish to do so and such nominations shall comply with the requirements of paragraph (c)
above; and
(ii) Inform the screening committee of the names of the candidates, if any, who they feel strongly should be included In the short list of
candidates to be Interviewed.
(e) ‘ The screening committee may, in its discretion, receive and consider nominations received after the specified closing date and shall prepare a short list of candidates to be interviewed, which shall include all candidates who qualify for appointment and who -
(i) are referred to in paragraph (d) (ii); or
(ii) in the opinion of the screening committee or any of its members, have a real prospect of selection.
(f)(i) The short list of candidates proposed by the screening committee shall forthwith be submitted to the members of the Commission.
(ii) Within 7 days of receipt of the short list any member of the Commission may request the Secretary of the Commission in writing to add to the short list the name of any candidate who was duly nominated but who was not included in the short list and who the member feels strongly should be added to the short list of candidates to be interviewed.
(iii) The name of any such candidate shall thereupon be added to the short list.
(I) The Commission shall interview all short-listed candidates.
(j) The interviews contemplated In paragraph (I) shall be open to the public and the media subject to the same rules as those ordinarily applicable In courts of law and shall not be subject to a set time limit.
(k) After completion of the interviews, the Commission shall deliberate in private and shall, if deemed appropriate, select the candidates for appointment by consensus or, If necessary, majority vote.'
68. In general, unfilled judicial vacancies impair the accessibility and effectiveness of the courts. This is especially so in a busy court like the WCHC in which litigants have to wait extended periods for their cases to be heard. For example, parties have to wait almost three years for a civil trial to be heard. (The Registrar is currently allocating dates in February 2012 in respect of applications for trial dates which were made in April 2009.)
69. The effectiveness of a court is also dependent on having judges on its bench who are appropriately qualified and experienced to decide all matters that come before it, including those in more specialist legal fields.
70. Accordingly, where there is a judicial vacancy, ss 174 and 165(4) read together, place a positive duty on the JSC to ensure the accessibility and effectiveness of the courts by selecting and recommending the appointment of an applicant who is ‘appropriately qualified' and ‘fit and proper', especially where the candidate is especially well qualified.
71. For the reasons given in the CBC's comments of 14 March 2011 (ARSD5), Advs Fitzgerald SC, Olivier SC and Rogers SC are all appropriately qualified, fit and proper and suitable for appointment. Adv Rogers SC in particular is particularly outstanding and exceptional for the reasons summarised the CBC's letter dated 15 April 2011 (ARSD7). The JSC's spokesperson has acknowledged that all the Western Cape candidates, in particular Adv Rogers SC, are ‘excellent in terms of technical competence'. The selection of any of these candidates would therefore have been in the interests of the judiciary, the legal profession, the litigating public and the broader community.
72. The JSC has declined to furnish any reasons for its failure to fill the remaining two vacancies. However, JSC spokesperson, Adv Ntsebeza SC, explains this failure as follows:
the JSC does not select candidates on talent only, or choose candidates who are only technically competent, but ... uses and applies s 174(2) of the Constitution, which states that ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered' when judicial appointments are made. He said that the JSC would not apologise for making this its focus.' (June 2011 edition of De Rebus - ‘ARSD25.')
73. To the extent that this statement provides an indication of the JSC's reasons for not filling two of the vacancies, I must address it briefly. It is correct that the JSC must, in terms of s 174(2), consider the need for the judiciary to reflect broadly the racial and gender composition of South Africa. This is to promote the foundational constitutional value of equality and the object of creating a non- racist and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. Affirmative action is unquestionably the most embraced means to promote equality in our society given its history of decades of systemic racial discrimination entrenched by the apartheid legal order.
74. Albeit in other contexts, our courts have made it clear that for affirmative action to be implemented in a constitutionally-compliant manner, a decision-maker must have an affirmative action policy, plan and/or programme.
74.1. The JSC Act and the Procedure of Commission to which I refer in paragraph 46 above do not contain any reference to considerations of race or gender. I am not aware of any policy, plan and/or programme of the JSC which guides or determines how it considers race and gender when selecting judges. It would seem that the JSC has none. I am aware only of the decision by the JSC taken at a special sitting on 10 September 2010 to set certain criteria which it would use ‘in the interview of candidates, and in the evaluation exercise during the deliberations by the members of the Commission' (‘ARSD26.').
74.2. As a result, the JSC does not have a predictable system or selection policy. It has no targets with reference to any objective criteria, such as the racial and gender demographics of the judiciary and the South African population.
74.3. In the absence of a policy, plan and/or programme to address the transformation of the bench in general, and representivity in the WCHC in particular at its deliberation on 12 April 2011, I submit that the JSC was obliged to follow legislation pertaining to selection of judges.
74.4. For the JSC to leave judicial posts vacant, particularly in the absence of a rational policy, plan or programme that justifies it not selecting a judge or judges when there are capable candidates, is I submit, ad hoc, haphazard, random, arbitrary and unfair. Such an action cannot be said to be designed to achieve a constitutionally-authorised end.
75. On the face of it, it would appear that in the course of its deliberations, the JSC failed to take into consideration, as it ought to have done, or failed properly to appreciate, the extent to which the WCHC Bench already broadly reflects the racial composition of South Africa.
75.1. In relation to the WCHC, the consideration in s 174(2) of the ‘racial and gender composition of South Africa', must logically refer to, or at least take account of, the racial and gender composition of the area of jurisdiction of the WCHC. The distribution of population groups for the Western Cape is 50.2% Coloured, 30.1% African, 18.4% White and 1.3% Indian / Asian. These data are obtained from the Community Suivey, 2007, the latest Statistical Release which the CBC has been able to obtain from Statistics South Africa. A copy of the relevant extracts of this report is attached as ‘ARSD27.' The full report is available on the StatsSA website (www.statssa .gov.za).
75.2. With Moosa and Cleaver JJ having recently retired, the WCHC Bench currently comprises 11 Coloured, 11 White and 6 African Judges.
75.3. Accordingly, the WCHC Bench is 60.1% Black. By comparison, the population in its area of jurisdiction is 81.6% Black (Coloured, African and Indian I Asian combined). In the circumstances, I submit that while there is room for further improvement, the WCHC already reflects ‘broaiy' the racial composition of the Western Cape.
75.4. If the JSC did take these facts into consideration, then it is invited in its answering papers to produce any documents which served before all the Commissioners which contain this information.
76. The extent to which the JSC is able in practice to take into consideration the need for broad racial representivity when selecting judges is obviously constrained by the fact that it has no control over the race of candidates who apply for judicial office. In this case there were no other Black candidates who had been shortlisted by the selection committee of the JSC or who had been added to the shortlist at the request of a member of the JSC in terms of paragraphs 3(d) or (f) of the Procedure of Commission. In the circumstances, I submit that the consideration in s 174(2) of the Constitution does not justify the JSC's failure to select judges for the two vacancies from among the other eminently qualified candidates before it.
77. If regard is had to the JSC's own Supplementary Criteria published in September
2010 (‘ARSD26'), there is also, on the face of it, no justification for its failure to fill
the two remaining positions.
77.1. The statement released by the JSC was published ‘in line with the JSC's principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary'. It indicates that the criteria used by the JSC in the interview of candidates and the evaluation exercise during the deliberations by members of the commission would be the following:
Criteria stated in the Constitution
1. Is the particular applicant an appropriately qualified person?
2. Is he or she a fit and proper person, and
3. Would his or her appointment help to reflect the racial and gender composition of South Africa?
Supplementary Criteria
1. Is the proposed appointee a person of integrity?
2. Is the proposed appointee a person with the necessary energy and motivation?
3. Is the proposed appointee a competent person?
(a) Technically competent
(b) Capacity to give expression to the values of the Constitution
4. Is the proposed appointee an experienced person?
(a) Technically experienced
(b) Experienced in regard to values and needs of the community
5. Does the proposed appointee possess appropriate potential?
6. Symbolism. What message is given to the community at large by a particular appointment?'
77.2. Judged against the criteria stated in the Constitution and the supplementary criteria published by the JSC, there is no justification for the failure by the JSC to fill the remaining two vacancies at the WCHC.
The JSC's stated reasons for failing to fill two vacancies
78. As mentioned, in its attorneys' letter of 20 May 2011 (ARSDI8) the CBC also requested the JSC to provide written reasons for the failure by the JSC to fill the two vacancies. In its letter of 3 June 2011 (ARSD21) the JSC provided the following response:
‘In terms of the provisions of section 178 (6) of the Constitution, decisions of the Commission must be supported by a majority of its members. When members of the Commission voted on the candidates available for appointment during April 2011, only one candidate received the support of a majority of the members of the Commission. The Commission was accordingly unable to recommend the appointment of any other candidates.'
79. I submit that this is no reason at all, or at the very least, this is not an adequate reason. The JSC seeks to explain its failure to select candidates for two of the three vacancies by saying that it selected only one candidate. It does not explain why it did so.
80. The JSC ought to have provided a coherent explanation for its failure to fill judicial vacancies despite the availability of eminently qualified candidates. To the extent that the JSC's explanation may have relied upon s 174(2) of the Constitution, the JSC would have had to explain with reference to objective criteria and a constitutionally-compliant plan, programme and/or policy how it took into consideration and what weight it gave to the question of representivity.
81. The JSC is an organ of state bound by the basic values and principles governing public administration contained in s 195(1) of the Constitution. Accordingly, the JSC must be, among other things, accountable (S 195(1)(f)), and transparent by providing timely, accessible and accurate information (s 195(1 )(g)). Section 33(2) of the Constitution also places a specific duty on the JSC to give written reasons.
82. The inadequacy of the JSC's stated reason for its failure to fill the two vacancies demonstrates a lack of accountability and transparency. It also creates the inference that the JSC has no good reason for its failure to fill the two vacancies.
83. In this regard, I point out that the request for reasons was also made in terms of s 5(1) of PAJA and that ss 5(3) and (4) of PAJA state:
‘(3) If an administrator fails to furnish adequate reasons for an administrative action it must, subject to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.
(4) (a) An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and must forthwith inform the person making the request of such departure.
84. The JSC has no reasonable and justifiable basis to depart from its duty to furnish adequate reasons. In any event, the JSC did not inform the CBC of any departure in terms of s 5(4) of PAJA and has not sought to rely on that subsection to justify its departure from the requirement to furnish adequate reasons.
Relief sought and causes of action concerning the substantive issues
85. In relation to the substantive issues, the CBC seeks, in paragraph 3 of the notice of motion, a declarator that the failure by the JSC on 12 April 2011 to fill two judicial vacancies on the WCHC Bench is irrational, unfairly discriminatory, unreasonable and otherwise unconstitutional and unlawful. As a consequence, the CBC seeks the relief contained in paragraph 4 of the notice of motion also in relation to this aspect.
86. For the reasons given above, I submit that the failure by the JSC on 12 April
2011 to fill two of the three vacancies on the WCHC:
86.1. is irrational, contrary to the requirement implicit in the Constitution that public power may be exercised only in an objectively rational manner;
86.2. is contrary to s 174(1) read with s 165(4) of the Constitution which requires the JSC to ensure the accessibility and effectiveness of the courts by selecting and recommending the appointment of an applicant who is ‘appropriately qualified' and ‘fit and proper'; and
86.3. unfairly discriminates against the appropriately qualified and fit and proper shortlisted candidates, contrary to s 9(3) of the Constitution.
87. I submit further that, in addition to the provisions of the Constitution, the JSC's failure to fill two vacancies in this case is also governed by the provisions of PAJA. I say this for the reasons which follow:
87.1. As a body, the JSC did not take a decision on 12 April 2011 to keep open two vacancies on the WCHC. The voting which took place in respect of Adv Rogers SC shows that if a proposal to keep two positions vacant had been put to the vote, it would not have been supported by a majority of JSC members. He received supporting votes from 12 of the JSC members present. Assuming that the SCA President and his alternate was the only JSC member absent, then at most 12 members of the JSC members present failed to support Adv Rogers SC. Even if their reason for doing so was because they wanted to retain vacancies on the WCHC, they constitute a minority of the JSC members.
87.2. Section 178(6) of the Constitution provides that ‘decisions of the Commission must be supported by a majority of its members'. Since there was no support by a majority of the members of the JSC (13 or more) for a decision to keep open two vacancies on the WCHC or in respect of the application by Rogers SC, there was no constitutionally recognised ‘decision'.
87.3. The action by the JSC on 12 April 2011 in failing to fill two vacancies accordingly constituted a ‘failure to take a decision' as contemplated in the first phrase of the definition of administrative action in PAJA.
87.4. It is indisputable that the JSC is an organ of State and that its action on 12 April 2011 in relation to the two vacancies on the WCHC involved the exercise of a public power or the performance of a public function in terms of the Constitution and had a direct, external, legal effect. This action also adversely affected the rights of the shorttisted candidates who were not selected, litigants in the WCHC and the public.
87.5. I acknowledge that paragraph (gg) of the definition of ‘administrative action' in PAJA expressly excludes ‘a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law'. However, since the impugned action of the JSC involved a failure to take a decision rather than ‘a decision', the exclusion in paragraph (gg) does not apply. In this respect paragraph (gg) may be contrasted with paragraphs (ii) and (jj), both of which expressly include within their ambit (and hence exclude from the definition of ‘administrative action') a ‘failure to take a decision'.
87.6. In the circumstances, I submit that the JSC's failure to fill the two vacancies constituted administrative action in terms of PAJA.
88. I submit that the JSC's failure to fill the two vacancies is reviewable in terms of PAJA in the light of the facts set out earlier in this affidavit because:
88.1. the action was procedurally unfair (s 6(2)(c));
88.2. the action was taken because irrelevant considerations were taken into account or relevant considerations were not considered (s 6(2)(e)(iii));
88.3. the action itself is not rationally connected to (aa) the purpose for which it was taken: (bb) the purpose of the empowering provision: (cc) the information before the administrator; or (dd) the reasons given for it by the administrator (s 6(2)(f));
88.4. the action concerned consists of a failure to take a decision (S 6(2)(g));
88.5. the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function (s 6(2)(h)); and
88.6. the action is otherwise unconstitutional or unlawful (s 6(2)(i)).
89. In the circumstances, I submit that the failure by the JSC on 12 April 2011 to fill two judicial vacancies on the WCHC is irrational, unfairly discriminatory, unreasonable and otherwise unconstitutional and unlawful.
URGENCY
90. I submit that this matter should be heard on an urgent basis for the following reasons:
90.1. First, it is vital for the rule of law and the principle of legality that proceedings and actions which are inconsistent with the Constitution be declared invalid as soon as possible. The longer invalid proceedings and decisions are allowed to stand, the greater the threat to and infringement of the rule of law.
90.2. Second, this is especially necessary in this case which concerns the manner in which High Court judges should be selected. It is crucial for the public interest, the administration of justice in general, and the WCHC in particular that this matter be resolved urgently.
90.3. Third, I understand that the next sitting of the JSC is scheduled to take place during October 2011. It is vital that the questions raised in these proceedings regarding the manner in which the JSC conducts its proceedings and makes its decisions be determined prior to the commencement of the next JSC sitting. This is particularly so because the JSC is proposing in October 2011 to consider candidates for, among other positions, the two vacancies at issue in this application. If this matter is not determined before the October 2011 sitting of the JSC, and should the JSC fail to give a suitable undertaking, then the CBC would have to consider bringing an urgent application for an interim interdict preventing the JSC from selecting judges for the two disputed vacancies. Accordingly, it is also in the interests of the JSC for this application to be determined on an expedited basis.
90.4. Fourth, the JSC has made it clear that it does not consider it necessary to sit with all its members, including the President of the SCA, in order for it to be properly constituted. The JSC's spokesperson has stated that ‘it was only when a court had made a "clear pronouncement" that there would be certainty on the issue'. Such a pronouncement needs to be given before its next sitting in October 2011 to avoid the risk of the JSC selecting more judges in a manner which may create doubt about the validity of their appointment.
90.5. Fifth, the timetable set out in the notice of motion permits the respondents ample time to answer this application. The timetable does not curtail the time that the JSC would otherwise have under the Uniform Rules and the Supreme Court Act 59 of 1959 to file a notice of opposition. The time that the respondents would ordinarily have under the Uniform Rules for filing opposing papers is reduced by five court days. This reduction is necessary given the urgency of the matter. In any event, the respondents will have more than five weeks from the anticipated date of service to file answering papers. I accordingly submit that the respondents will not be prejudiced by an urgent hearing.
91. In the circumstances, I submit that it is clear that CBC cannot obtain substantial redress at a hearing in due course and that the provisions of Rule 6(12) have been satisfied.
COSTS
92. As indicated, the CBC brings this application in the public interest and the interests of litigants in the WCHC. To the extent that the CBC also brings this application in its own interests and those of its members, such interests are maintaining the rule of law and promoting improvements in the administration of justice. The members of the Cape Bar who act on behalf of the CBC in this matter accordingly do so pro bono. In the circumstances, the CBC does not ask for costs nor should costs be awarded against it if this application were to fail.
CONCLUSION
93. It needs to be stated that the CBC is acutely aware that by bringing this application it exposes itself to charges that it is simply acting in the parochial interests of its members, and/or that it seeks to inhibit the transformation of the judiciary. Neither motivation played any role whatever. The CBC decided to launch this application despite the risk that its purpose would be misconstrued or misrepresented, because it considers important Constitutional issues to be involved and because it believes that appointments to the judiciary in the WCHC are of sufficiently compelling public importance to warrant this application.
Signed
ALASDAIR ROBERT SHOLTO-DOUGLAS SC
June 13 2011
Transcribed from PDF. Please check against original.
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