JSC appeal dismissed in Cape bar matter

2012-09-14 18:53
<a href=\\\\\\\\\\\\\\\\http://www.shutterstock.com\\\\\\\\\\\\\\\\>Shutterstock</a>

Shutterstock

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

Bloemfontein - A decision by the Judicial Service Commission not to recommend candidates for posts on the Western Cape High Court Bench in 2011 was again held to be unlawful and invalid on Friday.

The Supreme Court of Appeal (SCA) dismissed an appeal by the Judicial Service Commission (JSC) against a judgment of the Western Cape High Court (WCHC) in favour of the Cape Bar Council (CBC).

The high court upheld an application by the CBC resulting from a judicial appointment recommendation made by the JSC in April 2011.

It follows interviews with seven short-listed candidates to fill three positions on the Western Cape High Court Bench, but the JSC filled only one.

The CBC filed an application to the high court for a declaration that the JSC’s proceedings and the decision not to fill the two vacant posts were unconstitutional.

Proceedings unlawful, invalid

The bar council wanted the JSC to reconsider the applications of the short-listed candidates.

The council contended that the JSC’s action, in not recommending candidates to fill two vacancies on the bench of the WCHC, was inconsistent with the Constitution.

Both the President and the Deputy President of the Supreme Court of Appeal were absent at the JSC’s meeting on the day, making proceedings unlawful and invalid.

The JSC contested the grounds of the relief sought.

On Friday, the SCA held the JSC’s power to advise the country’s president on the appointment of judges was a public power, and therefore subject to review on the basis of irrationality.

The SCA also upheld the lower courts' finding that the JSC had been unlawfully constituted.

The SCA judgment held neither the president of the SCA nor his deputy were present at the JSC meeting on April 12, 2011, and it could not be shown that both were unavailable at the time.

The JSC’s decisions taken were therefore not validly taken.

Finding withheld

The SCA also upheld the lower court's findings that the JSC’s decision, leading to the failure to fill the two judicial vacancies, was irrational and that the reasons provided were wholly inadequate in the circumstances.

The JSC contended that it had no duty to provide reasons for its decisions at the time.

The SCA withheld a finding to declare the voting process followed by the JSC unconstitutional on the day.

However, it held that since the JSC was under a constitutional obligation to act rationally and transparently in deciding whether or not to recommend candidates for judicial appointment, it was in principle obliged to give reasons for its decision not to do so.

The JCS’s response, that a particular candidate did not garner enough votes to fill a vacant post did not meet its general obligation, because it amounts to no reason at all.

The JSC’s appeal was dismissed with costs.

Read more on:    jsc  |  cape town  |  judiciary
NEXT ON NEWS24X

SHARE:

Read News24’s Comments Policy

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
2 comments
Add your comment
Comment 0 characters remaining

Inside News24

 
/Africa
 

Autobraking: See just how good they are!

Just how good are automatic brakes on cars these days? Two VW models have been praised by top UK research centre Thatcham. Find out why...

 

Stay safe

Pro's and con's of accredited driver-training
Juvenile pillion riders? Play safe...
Need a family ride? SA's top Mommy Cars
Mom's driving-school dream come true
Horoscopes
Aquarius
Aquarius

Something may be concerning you and this puts a dampener on your spirits. You may need to take a closer look into documents, forms...read more

There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.