ConCourt orders JSC to disclose record of deliberations on appointing judges

Constitutional Court. (Lerato Sejake, News24)
Constitutional Court. (Lerato Sejake, News24)

The Constitutional Court has ruled in favour of the Helen Suzman Foundation to have the Judicial Service Commission's (JSC) deliberations on appointing judges made public.

In a majority judgment delivered on Tuesday, the court ruled that a blanket ban of disclosure was unjustifiable in a democratic society. 

This means the foundation will now have access to the JSC's record of deliberations in the 2012 appointment of Western Cape judges. 

"Now looking at the composition of the JSC, it seems that the [commission's] concerns regarding the impact of disclosure of deliberations are overstated.

"I would find it odd that JSC members would be such 'timorous fainthearts' that they would clam up at the prospect that views they express during deliberations could be divulged."

HSF had launched a legal battle in 2013 after the commission took a decision in October 2012 to advise the President to appoint certain candidates as judges of the High Court and not others. 

The JSC held private deliberations after the candidates had been interviewed. 

News24 had previously reported that the decision-making process had initially overlooked Jeremy Gauntlett, SC, for a job on the bench.  

The foundation said that although the case in the Western Cape High Court was not about individual candidates, but about the process of decision-making and recommendations to the president, Gauntlett was central to its application. 

The foundation's director, Francis Antonie, submitted in papers that after interviewing eight candidates in October 2012, the JSC advised the president to appoint justices Judith Innes Cloete, Babalwa Mantane, Mokgoatji Dolamo, Owen Rogers and Ashton Schippers as judges of the high court in Cape Town, in terms of section 174(6) of the Constitution.

It made a decision not to advise the president to appoint Nonkosi Saba, Gauntlett and Stephen Koen.

The foundation sought the record of proceedings, however the  JSC refused to provide the recording of its deliberations. 

The foundation approached the High Court seeking to have that decision reviewed and set aside, arguing that the decision was unlawful and irrational. 

The commission filed a record of its proceedings but it did not include the actual deliberations. 

"In a constitutional democracy an independent judiciary must be staffed by judges of the highest intellectual ability and moral character, who not only understand but also live the spirit of the Constitution," the HSF said at the time of the initial court proceedings.

Antonie said the aim of the organisation's application was to enhance democracy and make the process of appointing judges more transparent.

"The HSF supports the constitutional imperatives of judicial transformation. However, there is a growing perception that talented candidates for judicial appointment and advancement are being overlooked for reasons that are not clear, or explicit.

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