The Constitutional Court will hear arguments on Thursday on whether to take the unprecedented step of ordering the Judicial Service Commission (JSC) to disclose a recording of one if its highly confidential deliberations on judicial appointments.
If it does, it will open the door for access to JSC deliberations, which has never happened. The JSC grills candidates nominated to be judges in public. But its deliberations – where the merits of candidates are debated – have always been behind closed doors.
South Africa’s judicial appointment system is one of the world’s most transparent, but intense criticism over the years of some of the JSC’s decisions and its processes have led to an argument that its deliberations should be open to public scrutiny.
Legal organisation the Helen Suzman Foundation has, since 2013, been litigating on this issue after it sought to review a 2012 round of appointments to the Western Cape High Court in which highly respected silk Jeremy Gauntlett SC was overlooked for appointment. The foundation does not want the 2012 appointments reversed, but seeks a declaration that the JSC’s process was irrational in law.
The foundation argued that the transcript of a recording of the deliberations was highly relevant and should have been part of the “Rule 53 Record” – a collection of documents that must, in terms of the rules of court, be handed over when a decision is being challenged. The record is supposed to include all the documents used by a decision-maker.
When the case was lodged, Chief Justice Mogoeng Mogoeng – also the chairman of the JSC – distilled reasons, based on the recording of the deliberations, and handed them to the foundation and the court. But this was not enough to satisfy the Constitution, said the foundation.
The Supreme Court of Appeal found it would not be in the public interest for the deliberations to be part of the record in this case, although it said there may be cases when disclosing such a recording would be necessary.
But the Helen Suzman Foundation says the appeal court’s approach was “not consistent with our constitutional democracy and its commitment to open, transparent decision-making”.
“The SCA judgment sets a dangerous precedent, as it suggests that a party that is required to file a record under Rule 53 may, in certain circumstances, and on its own determination, not disclose certain relevant portions of the record,” says David Unterhalter SC in heads of argument.
The decision also “effectively undoes years of jurisprudence regarding the importance of Rule 53 as a procedural device”, he said.
“The recording is patently the most immediate and accurate record of the decision and the process leading up to the decision. The recording is indispensable to any proper determination of whether there is a rational connection between the deliberations, the decision and the reasons [given by the chief justice].”
But the JSC argues that the jurisprudence on what is included in a Rule 53 record supports its argument – that the deliberations should be confidential. The JSC was not like other administrative bodies, it added.
Nor did confidential deliberations breach the Constitution, said Ismail Jamie SC in heads of argument. “The overall process undertaken by the JSC … does not detract, in any way, from the JSC’s obligation to conduct its business in an open, transparent and accountable manner.”
There are “good reasons” to keep JSC deliberations confidential, said Jamie. The JSC makes “constitutionally important and politically sensitive decisions”. It was exactly the type of body that courts around the world had recognised required candour.
Allowing disclosure would affect the rigour and candour of deliberations and deter future applicants, because it would affect the dignity and privacy of those who did apply.
“It is vital that the members of the commission are able to engage in frank and robust discussions about the capabilities, personalities, strengths and weaknesses of candidates,” said Jamie.
But Unterhalter questioned why commissioners should be shielded from the consequences of unlawful remarks. “The members should necessarily act in a professional and lawful manner when undertaking such a public function.”