Landmark ruling against JSC

2011-09-30 16:01

Cape Town - The Western Cape High Court has ruled in favour of the Cape Bar Council (CBC) and the Centre for Constitutional Rights (CCR) in a dispute with the Judicial Service Commission over the process used to interview candidate judges.

Lionel Egypt, the director in law firm Cliffe Dekker Hofmeyr's dispute resolution and litigation practice who represented the CCR, described the ruling on Friday as a landmark.

"This is a landmark ruling in the ongoing effort to realise the constitutional vision of an open, accountable and transparent democratic society," he said.

The CBC had challenged the JSC's failure to fill two vacancies on the Western Cape High Court Bench. The CCR made supporting submissions.

Despite a vast backlog in the Western Cape High Court, seven short-listed candidates, including pre-eminent senior counsel Owen Rogers, and 28 applicants, the JSC recently recommended that only one of the three existing judicial vacancies be filled.

It also failed to recommend Rogers for appointment.

The CBC and the CCR challenged the procedure adopted by the JSC in making recommendations for judicial appointment, alleging that it was "inconsistent with the Constitution".

They challenged the merits of the decision, contending that it was irrational and "unlawful" to recommend only one applicant for appointment when there were three vacancies and several suitable candidates.

In its answering papers the JSC had declared its conduct in the case to be "immune from review".

Egypt argued that "the interpretation of its constitutional duties by the JSC affords the opportunity for individual members of the JSC to give unrestrained vent to any subjective prejudice or personal dislike.

"Worse, it opens the process to allegations of political gerrymandering, the very thing which, in our submission, the JSC structure is intended to inhibit.".

In a statement Cliffe Dekker Hofmeyr said that in ruling that the JSC's conduct was unconstitutional and unlawful, Judge Pete Koen had placed "significant reliance" on the arguments proffered by the CCR with regard to the irrationality of the JSC's voting procedure.

"Whatever the voting procedure is supposed to be, it should be clear and not left to the kind of vagaries on which I am now speculating," Koen said.

  • White_Rhino - 2011-09-30 16:09

    The ANC moves with the speed and grace of a geriatric elephant and its first priority is always itself. Meanwhile the actual governance of South Africa becomes a secondary consideration. This movement is now very clearly an obstacle to efficient, able and orderly government. In a more 'normal' democracy the ANC would be reduced to electoral rubble in view of its abject performance and endless shenanigans since 2005. Roll on competitive politics in SA!

      cliffarc - 2011-09-30 19:08

      - The Anc reminds me of a bull in a china shop. Total disregard for anything of value as they trash our most precious constitution without concern. They also remind me of a runaway train , heading the country towards an inevitable crash. This country ought to have a health warning for it's citizens ; danger this country is controlled by the Anc, which will be hazardous to your future.

      Atholl - 2011-09-30 23:21

      This ruling indicates that the constitution is in the wrong hands. ... {JSC declares it's conduct - "immune from review"} .??.. Do the JSC understand that if there was no constitution there would be no JSC.

  • leonard - 2011-09-30 16:10

    I speculate that the appointee was ANC material.The other nominees did not fit the ANC profile.Well done to the CBC and CCR for the challenge and the win.All right thinking South Africans Salute you.

      crackerr - 2011-09-30 17:00

      Appointees coming out of such a process must appreciate that they will forever be viewed with (perhaps) unspoken suspicion. It is one of those consequences if the selection and filtering processes are under suspicion. This country does not belong to one specific political grouping. They are busy messing it up for EVERYBODY.

  • letsee - 2011-09-30 16:14

    The ANC sides the constitution at its will and soon may start changing it to do what it wants "within" a paper constitution.

  • Vince York - 2011-09-30 16:26

    Maybe we need more brave people that can survive even having an arm blown off to take matters to a head - as used to be the case against irrationality and unethical immorality "before seemingly apathetic silence subdued by politicians, ego's and money" took a firm grip over this once robust respectable entity! Wretched blind raped Justice! (for the few).

  • crackerr - 2011-09-30 16:41

    According to the one party's comment, "Worse, it opens the process to allegations of political gerrymandering, the very thing which, in our submission, the JSC structure is intended to inhibit.". "Gerrymandering" means, divide the constituencies of (a voting area) so as to give one party an unfair advantage manipulate or adapt to one's advantage The facts stated in the above article confirm that there are serious attempts to manipulate the legal system notwithstanding even the practical adverse consequences for the country's peoples. We need the best available legal brains to man our judiciary. Politics and skin color are not the reasons people must be appointed in important, supposedly neutral, positions. AND DESPITE THE SELF-SERVING AND POLITICALLY INSPIRED BS ABOUT TRANSFORMATION WE OFTEN HEAR WE KNOW THAT PEOPLE WOULD MUCH RATHER HAVE THEIR LEGAL DISPUTES DECIDED BY A MATURE, COMPETENT LEGAL BRAIN THAN A SKIN COLORED OR POLITICALLY APPOINTED JUDICIAL OFFICER.

      YES - 2011-09-30 16:57

      Given South African political history, I suppose best minds and brains are found within white society? If it is indeed so, then when it wrong with JSC to be bias towards emerging black jurists and will we ever have plain fields levelled? In view of the above, I regard the judgment bad in law - the judge concerned didn't pay any regard to the constitution, which recognise limitation clause in grey cases such as the one under review. I am sure JSC will succeed if it appeals teh decision, which did not come as a surprise to some of us.

      crackerr - 2011-09-30 19:03

      @ Yes Why should skin color be such a concern? A jurist is a jurist. Up and coming or whatever. Jurists and legal minds do not depend on skin color for competency. Your comment represents the hackneyed attempt at racializing everything. Do you really think litigants care about skin color when they want a legal decision? That the average citizen in this country goes to bed at night unable to sleep because of the possibility that a non-white will not be appointed as a judicial officer or judge? Twak man!!! Who is bluffing who in this country? Given this country's history is exactly the reason why discrimination based on race must stop. The argument is not that the JSC must discriminate against so-called black jurists. It is about transparency and realism. The realism being that we can not longer go on discriminating for the sake of the few who use race to further their own selfishness and feathering their own nests. The fact remains that, based on the facts alleged in the article, race and politics are preferred over practical considerations. Why are judges not appointed if we have competent and available candidates while there is clearly a need for appointments based on operational needs? This fall back on race is nothing but an attempt by some to gain an unfair if not sometimes an overwhelming advantage when merit will not do the trick.

  • Nogeen - 2011-09-30 17:08

    Siestog julle klomp narre - waarvoor word julle aan die einde van die maand betaal?

  • leonard - 2011-10-01 12:04

    @NAROMIE........This is an English forum,do not know what you have said.Do I praise you or chastise you.

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