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How public should the JSC be?

Judiciary watchers have long speculated about what happens when the Judicial Service Commission goes behind closed doors for its strictly confidential deliberations — weighing up the merits of the different candidates, and ultimately deciding who will get the nod.

While the rest of the process is mostly public, the deliberations of the body — made up of members of Parliament, government representatives, judges and and representatives of the legal profession — have remained private. But this could soon change.

The Constitutional Court on Thursday heard an appeal in the four-year battle between the Helen Suzman Foundation and the JSC. It will have to decide whether to take the unprecedented step of ordering the disclosure of a recording of one the JSC’s deliberations — and if, when and how deliberations could be accessed in future.

Intense criticism over the years of some of the JSC’s decisions and its processes has led to an argument that its deliberations should be open to public scrutiny.

Legal lobby group the Helen Suzman Foundation has, since 2013, pursued legal action 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 was overlooked for appointment.

When the case was lodged, Chief Justice Mogoeng Mogoeng — who chairs the JSC — distilled the 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.

Yet at the hearing, Deputy Chief Justice Raymond Zondo said: “I’m not sure how far the gap is between the parties.”

The foundation accepted that there may be times when deliberations should be kept confidential, Zondo suggested. The JSC, in turn, accepted there may be times when it would be necessary to provide a transcript of the deliberations, he said.

“The two of you [are] not too far apart,” he said.

Counsel for the foundation, David Unterhalter SC, agreed, but said the difference amounted to an important point of principle.

He said the departure point should be that all relevant documents must be provided when decisions are taken to court on review.

This is what was required by rule  53 of the court rules, which was underpinned by the fundamental right of access to courts, he said.

Rule 53 applied to all bodies whose decisions were open to judicial review, said Unterhalter. What made the JSC so different? he asked repeatedly.

He said South Africa had “crossed a particular Rubicon” when it decided that JSC decisions were open to review by a court. But once this was accepted, then the JSC became like every other public institution, which had to supply all relevant documents to the court.

The Supreme Court of Appeal had treated the JSC as “some kind of special case. That is a very dangerous principle,” said Unterhalter.

Ismail Jamie SC, counsel for the JSC, said the difference was that the JSC was mandated by the Constitution to regulate its own process. This meant the Constitution had specifically empowered the JSC — unlike other institutions — to decide that its deliberations were confidential.

“We say there is a special regime for the JSC, which trumps rule 53.” Jamie added that there was good reason for this: it would have a “chilling effect” on candidates coming forward if they knew that a frank discussion about their qualities was open to the public.

Jamie agreed that both sides had come closer to each other’s arguments and that the JSC now accepted the appeal court’s view that the extent of the rule 53 record must depend on the facts of each case.

“We accept this — we have made that concession — but this is not one of those cases,” said Jamie.

Unterhalter accepted that the JSC has the constitutional power to regulate its own process. “But there is no clash,” he said.

Rule 53 and the JSC’s rule that deliberations are private “operate in separate spheres” — one deals with the JSC’s internal processes and the other with when the JSC is, as an institution, brought before a court.

There was nothing in the JSC regulations that suggested its confidentiality rule had any reach outside its own internal processes, said Unterhalter.

He added that rule 53 was not an ordinary rule, it was relevant to the court’s inherent powers to ensure justice was done — “it is a rule of significant pedigree”.

Unterhalter also disagreed with Jamie’s chilling-effect argument, saying candidates had already subjected themselves to a public interview, at which intrusive questions would have already been raised. It would be unfair to a candidate if any new thing was raised in deliberations that had not been put to him or her, said Unterhalter.

Judgment was reserved.

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

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