Cape bar gets ruling against JSC

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.