Supreme Court smacks down JSC

2012-09-15 15:12

Advice the JSC gives the president about judicial appointments is subject to review, according to judgment

The Judicial Service Commission (JSC) has been dealt yet another bloody nose by the Supreme Court of Appeal (SCA).

In a precedent-setting judgment delivered on Friday, the court confirmed that the advice the JSC gives the president about judicial appointments is subject to review by the courts.

The SCA also called the JSC’s refusal to explain why it left two judicial vacancies open – when there were six candidates available – “rather cynical”.

The JSC lodged the appeal with the SCA after the Western Cape High Court ruled in favour of the province’s bar council.

The province’s council had asked the JSC for the reason it decided to appoint only one black candidate to one of three open positions on the Western Cape High Court in April last year.

Six white candidates had also been interviewed for the positions.

The JSC said that none of the other candidates had received enough votes, and that it could not give any further reasons because its ballots were secret.

But in a strongly worded judgment penned by SCA Judge Fritz Brand, the court held that it was “rather cynical to say to an affected individual ‘you have a constitutional right to a rational decision but you are not entitled to know the reasons for that decision’.”

“How will the individual ever be able to rebut the defence by the decision maker: ‘Trust me, I have good reasons, but I am not prepared to provide them’?” Brand wrote.

The court ruled the refusal by the JSC not to appoint two candidates was irrational and contrary to the principle of the rule of law.

It held that, as a general rule, the JSC was “obliged to give reasons for its decision not to recommend a particular candidate if properly called upon to do so”.

The SCA also ruled that if the JSC’s voting procedures did not allow it to give reasons, they would have to be changed.

The 25-member committee votes on judicial appointments, excluding Constitutional Court judges, by casting a secret ballot after interviewing candidates.

In order to be recommended for appointment, a candidate must get 13 votes.

“(T)here appears to be no reason, on the face of it, why the members cannot be asked to provide their reasons anonymously,” Brand wrote.

Although the high court found the voting procedure to be unconstitutional, the SCA declined to make a ruling
on this point.

A highly regarded constitutional lawyer told City Press the SCA’s decision could be seen as a “major insult” to the JSC, which is essentially “a committee of lawyers”.

“I do not have an objection to progressive transformation but there are an increasing number of exceptional advocates who are not appointed,” the lawyer said.

Ismail Jamie, the chairperson of the Cape Bar Council, welcomed the decision and said it was “in the best interests of the administration of justice for the JSC to appoint persons in a transparent manner”.

The SCA also ruled that the JSC was not properly constituted when it voted on candidates.

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