Principle of legality means JSC must give its reasons

Last week the Judicial Service Commission (JSC) lost yet another case in which a decision it had made was successfully challenged. This judgment could have far-reaching consequences for the process of judicial appointments. The case involved the decision of the JSC in April to make only one appointment to the Cape High Court, despite three vacancies having been advertised.
In so deciding, the JSC rejected the applications of two attorneys and a number of senior counsel from the Bar.

The Cape Bar Council challenged this decision on two main grounds. First, the JSC was not fully constituted when it voted these applicants down: Supreme Court of Appeal (SCA) President Judge Lex Mpati was not present. Second, the Bar Council argued, the decision to appoint only one applicant when there were three vacancies, and it was common cause that at least some of the unsuccessful candidates were suitably qualified for judicial office, could not be justified.

Last week, Judge Piet Koen (with Judge Fikele Mokgohloa concurring) found in favour of these arguments and declared that the process by which the JSC had failed to fill these two vacancies must be set aside.

The upholding of the first line of argument was not surprising. In a prior case, heard by both the Cape High Court and the SCA, it was held that the Western Cape premier’s absence from the JSC in a dispute involving Judge John Hlophe meant the JSC had been improperly constituted.

The surprising and far-reaching aspect of Koen’s judgment is his finding on the substance of the JSC’s decision to appoint only one candidate. Conventional legal wisdom had suggested that a provision of the Promotion of Administrative Justice Act (PAJA) precluded such a challenge. The PAJA’s definition of administrative action, pivotal in justifying judicial review, expressly excludes a decision on any aspect of the nomination, selection or appointment of a judicial officer by the JSC. Game, set and match—as far as the JSC’s lawyers were concerned.

Not so, said Koen. Judicial review is not exclusively based on the PAJA. In our constitutional scheme, a principle of legality exists in terms of which all bodies clothed with public power must act. As Koen expressed it, this principle says a body exercising a public power must do so in a rational manner and for the purpose for which the power was granted. Even if the decision of the JSC fell outside the PAJA, because it could not be classified as administrative action, it could be reviewed for lack of rationality.

Applying this principle, Koen made two important findings. First, based on the affidavits filed on behalf of the JSC, it was not possible to determine how the JSC votes in closed session and decides on judicial appointments. Surprisingly, the JSC employs two different voting systems: one member one vote per candidate, or one member one vote per vacancy. In Koen’s view, this uncertainty was not conducive to a rational decision-making process.

The second finding is arguably the most important. The court held that, because the JSC had to provide reasons to the president when it recommended justices for appointment to the Constitutional Court, there was no justification for its not giving reasons for appointment or failure to appoint judges to the other courts. In this particular case, the JSC had provided no substantive reason for its failure to appoint any of the unsuccessful applicants and thus had failed to perform its duties as mandated by the principle of legality and the provisions of the Constitution.

Of course, the JSC could appeal this judgment, so we may not be certain whether the law as set out by Koen will govern the JSC from now on. But it is a judgment that boldly asserts the constitutional principles of legality, transparency and accountability.

By applying these principles to the work of the JSC, the judgment may well compel the JSC to reassess its procedures to ensure greater public awareness of its reasoning process.

This would strengthen our constitutional democracy through the promotion of transparency and rationality in decision-making. Of the greatest significance will be that the public will know why appointments are made to such powerful positions.

The JSC does not have an easy task: a complex set of considerations go into the appointment process, and this is an institution in need of further transformation. At the same time, the JSC needs to take on board the criticisms of its opaque performance over a fair amount time. Viewed in this context, an important task now lies ahead for new Chief Justice Mogoeng Mogoeng as he leads a JSC dealing with the challenges posed by this judgment.

President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new chief justice. For more news on the controversy surrounding the proposed appointment visit our special report.

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