Get more Mail & Guardian
Subscribe or Login

Helen Suzman Foundation: Battle goes on for access to full JSC deliberations

The battle for access to closed-door deliberations over the selection of candidates for the Western Cape Bench continues on Wednesday in the Cape Town high court.

The Helen Suzman Foundation is returning to court to ask for the right to appeal a judgment refusing it access.

At issue are questions about the criteria being used to select judges, and whether these are likely to ensure that independent and knowledgeable candidates are selected.

The foundation had asked for access to the confidential recordings and transcripts of the Judicial Service Commission’s deliberations over the selection of judges.

In August 2013 the JSC filed the record of its decision, and a summary of the recorded deliberations, excluding the actual recordings and transcripts.

The present legal challenge forms part of a larger application by the foundation over the process adopted by the JSC when it recommends judicial candidates, which it believes, should be transparent.

Need to protect the candidates
The main application is yet to be heard and deals with a request by the foundation to declare the JSC’s decision to reject some candidates, which included senior counsel Jeremy Gauntlett, during interviews in October 2012 as “unlawful, irrational and invalid”.

Judge André le Grange in his judgment handed down in September ruled that deliberations by the commission were no different to those of a magistrate or judge “reflected in her court book or deliberations” and therefore should remain confidential.

He also said that behind-the-scenes deliberations should be kept confidential to protect the candidates. “The knowledge that the full record of the deliberations might include extremely frank remarks and options of senior members of the judiciary and executive as to the candidates’ competence or otherwise would be made public could deter potential candidates from accepting nominations for appointment.”

The judge said there was nothing to suggest that the summary given was not accurate.

The foundation is asking for permission to appeal the ruling, arguing in an 11-page application that the recordings and any transcripts of the deliberations should have been produced because they were an important part of the record.

“If the JSE wished to withhold any part of the record, it should have put up substantial and compelling reasons to substantiate its decision.”

The importance of the judiciary
The foundation argues that without a full record it will be forced to continue its litigation “wholly in the dark”.

It also questions Le Grange’s view that the commission was a unique entity, which derived its powers from the Constitution and as such was entitled to make decisions about its own procedure.

The foundation has said its interest in what motivates the appointment of judges relates to the importance of the judiciary and how it “impacts on how constitutional democracy is prompted and protected”.

“Despite the JSC’s best attempts to nominate candidates of outstanding merit, there has, in recent years, been some concern as to how it has exercised its constitutional mandate … There seems to be scant regard for how it should be considered.”

Subscribe to the M&G

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them.

Related stories

WELCOME TO YOUR M&G

If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here

Advertising

Subscribers only

Mkhize tenders resignation as Ramaphosa calls top six meeting, fueling...

Mkhize’s resignation and the top six meeting are the clearest indicators yet that Ramaphosa is intending to make a much-anticipated cabinet reshuffle

Zuma funder link in Phoenix killings

Weapons have been seized from a number of security companies owned by ANC-linked individuals who are loyal to the former president

More top stories

Markets react as Mboweni steps down in Ramaphosa cabinet reshuffle

ANC economic policy head Enoch Godongwana takes over the finance portfolio

Mkhize tenders resignation as Ramaphosa calls top six meeting, fueling...

Mkhize’s resignation and the top six meeting are the clearest indicators yet that Ramaphosa is intending to make a much-anticipated cabinet reshuffle

Zuma funder link in Phoenix killings

Weapons have been seized from a number of security companies owned by ANC-linked individuals who are loyal to the former president

ANC factions united on Zweli Mkhize

Despite agreement that it would be politically ‘unwise’ for the president to remove the health minister before the Special Tribunal makes its decision on the application by the Special Investigating Unit, he may have just done so
Advertising

press releases

Loading latest Press Releases…
×