JSC faces own ‘spy tapes’ debacle

2013-10-27 06:00

The Judicial Service Commission (JSC) will soon have to deal with its own “spy tapes” debacle.

The Helen Suzman Foundation (HSF), which is challenging the JSC’s interpretation of the Constitution when it appoints judges, is going to court to force the commission to disclose a transcript of its deliberations, which takes place behind closed doors.

The subject of the litigation is the decision by the JSC not to appoint the highly respected advocate Jeremy Gauntlett to the bench of the Western Cape High Court.

The HSF is using the non-appointment of Gauntlett, which resulted in the JSC being forced – under threat of litigation – to disclose reasons for its decisions, as a test case to challenge whether merit should trump transformation in the appointment of judges.

City Press understands that the JSC did not disclose to the HSF that there was a transcript of the deliberations that took place behind closed doors.

The NGO wrote a letter, demanding that the JSC file the transcript in accordance with what the HSF says is the commission’s obligation to file a record of its decision.

Dumisa Ntsebeza, JSC spokesperson, confirmed that the litigation committee of the JSC, one of the commission’s subcommittees, decided not to disclose the transcript.

“(Deliberations are) a confidential process adopted by the JSC, which is entitled to fashion its own proceedings by the Constitution.”

Ntsebeza also confirmed that there was a “great deal of debate” around whether the transcripts of the JSC’s deliberations should be filed as part of the record the JSC would disclose.

Ntsebeza said the reason for confidential deliberations was to enable commissioners of the JSC to voice their opinions about candidates freely.

He also said the confidentiality of deliberations was aimed at protecting the integrity and dignity of candidates.

But the HSF now intends to launch an application to compel the JSC to disclose this record.

A top Johannesburg counsel, who asked not to be named, told City Press there was a “clear” duty on the JSC to file a record of its decision.

“There might be good reason to limit access to parts of the record, but then you ask for an undertaking from your opposition that this part of the record will not be made public.”

Ntsebeza, however, said such an arrangement would have to be made by an order of court.

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