Court orders JSC to deliver recording of its deliberations on candidate appointment

24 April 2018 - 15:38 By Ernest Mabuza
South Africa’s score places it second out of 18 countries in the Sub-Saharan Africa region and eighth out of 36 among the upper-middle income countries.
South Africa’s score places it second out of 18 countries in the Sub-Saharan Africa region and eighth out of 36 among the upper-middle income countries.
Image: 123rf/ niroworld

The Constitutional Court on Tuesday ordered the Judicial Service Commission (JSC) to deliver a full record of the proceedings sought to be reviewed by the Helen Suzman Foundation.

The question the court had to deal with in this case was: May the private deliberations of the JSC‚ in the execution of its mandate to advise the president on the appointment of judges‚ be disclosed as part of the record of its proceedings.

The high court ruled that these deliberations should not form part of the record. The Supreme Court of Appeal said the deliberations‚ on the particulars of this case‚ should not form part of the record. This forced the Helen Suzman Foundation to approach the Constitutional Court for relief.

The case has its genesis in October 2012‚ when the JSC recommended to the president that he appoint certain candidates as judges of the Western Cape High Court‚ and not to appoint others. The decision followed private deliberations held by the JSC after the candidates had been interviewed.

The foundation wanted to have that decision - to advise the president to appoint certain other candidates and not others - reviewed on the grounds that it was unlawful and irrational. In terms of the Uniform Rules of the Court‚ the JSC was supposed to file the record of the proceedings sought to be set aside with the registrar of the high court. The JSC filed the record with the registrar‚ but did not include any minutes or transcripts of the deliberations.

The foundation became aware that the JSC routinely recorded its deliberations and that the deliberations in question had also been recorded. The JSC refused to supply the record of deliberations‚ which resulted in the failed applications by the foundation in the high court and the Supreme Court of Appeal.

Three judgments were prepared by the Constitutional Court on Tuesday.

The majority judgment‚ penned by Justice Mbuyiseli Madlanga‚ said the current position in our law was that the rule 53 record contained all information relevant to the challenged decision or proceedings.

“Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker‚” Madlanga said in a judgment‚ in which six other justices concurred.

In a dissenting judgment‚ Justice Chris Jafta said “record” in rule 53(1)(b) did not include deliberations.

In the third judgment‚ Acting Justice Jody Kollapen disagreed with Madlanga’s conclusion that the foundation’s appeal must succeed. Although Kollapen agreed with Jafta that the appeal must fail‚ he did so for different reasons.


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