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JSC appeal dismissed in Cape bar matter

Sapa

A decision by the JSC not to recommend candidates for posts on the Western Cape High Court Bench in 2011 was again held to be unlawful and invalid.

Constitutional Court judge Raymond Zondo. (Gallo)

The Supreme Court of Appeal (SCA) dismissed an appeal by the Judicial Service Commission (JSC) against a judgment of the Western Cape High Court (WCHC) in favour of the Cape Bar Council (CBC).

The high court upheld an application by the CBC resulting from a judicial appointment recommendation made by the JSC in April 2011.

It follows interviews with seven short-listed candidates to fill three positions on the Western Cape High Court Bench, but the JSC filled only one.

The CBC filed an application to the high court for a declaration that the JSC's proceedings and the decision not to fill the two vacant posts were unconstitutional.

The bar council wanted the JSC to reconsider the applications of the short-listed candidates.

The council contended that the JSC's action, in not recommending candidates to fill two vacancies on the bench of the WCHC, was inconsistent with the Constitution.

Unlawful and invalid
Both the president and the deputy president of the Supreme Court of Appeal were absent at the JSC's meeting on the day, making proceedings unlawful and invalid.

The JSC contested the grounds of the relief sought.

On Friday, the SCA held the JSC's power to advise the country's president on the appointment of judges was a public power, and therefore subject to review on the basis of irrationality.

The SCA also upheld the lower courts' finding that the JSC had been unlawfully constituted.

The SCA judgment held neither the president of the SCA nor his deputy were present at the JSC meeting on April 12 2011, and it could not be shown that both were unavailable at the time.

The JSC's decisions taken were therefore not validly taken.

Judicial vacancies
The SCA also upheld the lower court's findings that the JSC's decision, leading to the failure to fill the two judicial vacancies, was irrational and that the reasons provided were wholly inadequate in the circumstances.

The JSC contended that it had no duty to provide reasons for its decisions at the time.

The SCA withheld a finding to declare the voting process followed by the JSC unconstitutional on the day.

It held that since the JSC was under a constitutional obligation to act rationally and transparently in deciding whether or not to recommend candidates for judicial appointment, it was in principle obliged to give reasons for its decision not to do so.

The JCS's response, that a particular candidate did not garner enough votes to fill a vacant post did not meet its general obligation, because it amounts to no reason at all.

The JSC's appeal was dismissed with costs. – Sapa

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