JSC secret deliberations on appointing judges under spotlight

The Constitutional Court on Thursday grappled with whether the Judicial Service Commission (JSC) should disclose recordings of its secret deliberations before voting on judicial appointments.

The JSC robustly questions candidates for judicial appointments in public but its deliberations‚ where judges decide on who should be recommended for appointments‚ have always been held behind closed doors.

The Helen Suzman Foundation (HSF) wants that to change.

The HSF has been arguing on this issue since 2013 following its decision to review - in the high court in Cape Town - the recommendation by the JSC that Mokgoatji Dolamo be appointed to the bench of the high court instead of venerated advocate Jeremy Gauntlett SC.

The HSF wanted the high court to declare that the JSC’s decision was irrational in law.

When a decision goes on review‚ the record of the decision that is challenged must be handed over to court in terms of Rule 53 of the Uniform Rules of Court.

The JSC did not hand over the recording of its deliberations. Instead‚ the JSC sent the reasons of its decision‚ distilled from the deliberations‚ which set out its considerations in respect of each candidate. It also sent the transcripts of the interviews of the candidates and other correspondence.

The HSF was not happy with this record‚ as it excluded recordings of the deliberations.

However‚ the high court in Cape Town and the Supreme Court of Appeal held that the JSC’s deliberations did not automatically form part of the record as contemplated in Rule 53.

Arguing for the HSF on Thursday‚ David Unterhalter SC told the Constitutional Court that the decision-making powers of the JSC were subject to legal review.

Unterhalter said the court was entitled to get the reasons behind the decision and what deliberations gave rise to that decision.

“The reasons are just the summation and extraction for deliberations that took place‚” Unterhalter said.

Unterhalter said that to allow the decision-maker‚ in this case the JSC‚ to circumvent the requirement to produce a copy of the recording and instead rely in the summary‚ was to defeat the very purpose of delivering the record under Rule 53.

However‚ Ismail Jamie SC‚ for the JSC‚ said the HSF was given the Rule 53 record of decision which the commission considered relevant.

“Everything that is relevant must be given. Deliberations were not considered relevant.”

Jamie said it gave reasons why Gauntlett was not appointed‚ based on the summary of positions taken by commissioners.

Jamie said the country’s judicial appointment process was by far the most transparent in the world.

“There are very good reasons for not disclosing the deliberations‚” Jamie said.

One of the reasons was that candidates for appointment would be deterred from applying again if deliberations about them were to be disclosed.

Deputy Chief Justice Ray Zondo asked Jamie what was confidential as the JSC had given the summary of the deliberations to the JSC.

Jamie replied that the summary of the deliberations did not include the names of the commissioners and did not use the actual words used during such deliberations.

Jamie said that even if the deliberations were disclosed‚ there was no scientific way to know why one candidate was not appointed‚ as the vote was still done by secret ballot.

The court reserved judgment.