The HSF and the JSC.

Introduction

The appointment of judges is a topic of much debate - not least among those legal practitioners who appear before the courts. But the debate about judicial appointment is far too an important matter to be confined only to lawyers.

Judicial appointments impact on how our constitutional democracy is promoted and protected, and how the rule of law is safeguarded. Without an informed and knowledgeable judiciary which is independent, our constitutional democracy is under threat; nor is a pliant judiciary compatible with our constitutional democracy.

Even though judges are appointed by the President, the nomination process lies with the Judicial Service Commission ("JSC"). Over the years, there is no doubt that the JSC has endeavored to nominate candidates of outstanding merit. Nevertheless, the JSC must guard against politicisation of the process of judicial appointments. There are concerns about those judicial applications which have been unsuccessful.

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 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 forensic skill, race and gender, and independence is a potent one which the JSC must 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.

The HSF raised, among others, the following legal issues:

What is the correct interpretation of s 174(1), (2) and (6) of the Constitution which relate to the appointment of judges;

How must the JSC exercise its power under s 174(6) when advising the President on judicial appointments;

Did the JSC consider irrelevant factors or alternatively fail to consider relevant material factors in arriving at its decision?

The relevant sections are:

Section 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.

6.  The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

The power under section 174(6) is a discretionary one, which must be exercised after taking into account all material and relevant factors, including the race and gender of the candidates.

Two questions arise from our interpretation of section 174:

What factors must be taken in account by the JSC when exercising its discretion?

How must it take these factors into account?

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 (indeed, a most important part) of the required Record, let alone of its reasons for doing so.

The JSC's rationale for non-disclosure is based on confidentiality, namely:

to enable the Commissioners to have frank and robust debate around the suitability of candidates; and

to protect the integrity and dignity of the candidates without impeding or undermining the ability of the Commissioners to submit them to robust assessment.

After numerous failed attempts by the HSF to procure the Recording from the JSC, the HSF launched interlocutory proceedings in the Western Cape Division of the High Court for an order compelling the JSC to disclose the Recording as part of the Record ("the Interlocutory Proceedings").

Interlocutory Proceedings

The HSF believes that the JSC's rationale cannot be correct for the following reasons:

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 to the Recording. If they do not, then this is potentially a ground of review in which the HSF would have an interest in the main application.

The JSC's rationale for refusing to lodge the Recording is similarly misconceived. The JSC is constitutionally bound to the principles of transparency, accountability and rationality. The provisions governing the JSC's processes can thus not be interpreted as enabling a regime of secrecy.

The JSC's rationale has already been firmly rejected by the High Courts in Gauteng, the Western Cape and the Eastern Cape. The Courts 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.

The HSF has repeatedly emphasised that the JSC's members exercise an enormous public power and are vested with substantial public and constitutional responsibility which they must discharge lawfully, rationally and in a procedurally fair, unbiased manner. As the Supreme Court of Appeal has recently held, the JSC's members must be accountable for the exercise of power and fulfilment of responsibility, and the public must have mechanisms for holding them accountable. If the JSC's members did or said something which they could not properly or lawfully do or say, then this is again a reason for disclosure. Non-disclosure would undermine the entire purpose of the JSC and its constitutional role.

Conclusion

The Interlocutory Proceedings are an essential part of the HSF's case and have the potential to set ground-breaking precedent in the law relating to "confidential information" and the disclosure thereof.  

The case is set down for hearing on Friday 8 August 2014 in the Western Cape High Court.

To view the HSF's Heads of Argument, click here.

Statement issued by Francis Antonie, Director of the Helen Suzman Foundation, August 5 2014

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