To reveal or not to reveal JSC deliberations, that’s the ConCourt question

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.”

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Your M&G

Hi , To manage your account please click here.

You can access your digital copy of this week’s paper here.

Advertising

READ IT IN FULL: Ramaphosa’s address on the extension of...

This is the full address given by President Cyril Ramaphosa on April 9

Stella set to retain her perks

Communication minister will keep Cabinet perks during her two months of special leave

Covid-19 grounds Nigeria’s medical tourists

The country’s elites, including the president, travelled abroad for treatment but now they must use the country’s neglected health system
Advertising

Press Releases

Rahima Moosa Hospital nursing college introduces no-touch facial recognition access system

The new system allows the hospital to enrol people’s faces immediately, using artificial intelligence, and integrates easily with existing access control infrastructure, including card readers and biometrics

Everyone’s talking about it. Even Kentucky

Earlier this year South African fried chicken fast-food chain, Chicken Licken®, launched a campaign for their wallet-friendly EasyBucks® meals, based on the idea of ‘Everyone’s talking about it.’

New energy mix on the cards

REI4P already has and will continue to yield thousands of employment opportunities

The online value of executive education in a Covid-19 world

Executive education courses further develop the skills of leaders in the workplace

Sisa Ntshona urges everyone to stay home, and consider travelling later

Sisa Ntshona has urged everyone to limit their movements in line with government’s request

SAB Zenzele’s special AGM postponed until further notice

An arrangement has been announced for shareholders and retailers to receive a 77.5% cash payout

20th Edition of the National Teaching Awards

Teachers are seldom recognised but they are indispensable to the country's education system

Awards affirm the vital work that teachers do

Government is committed to empowering South Africa’s teachers with skills, knowledge and techniques for a changing world