Top court to decide on JSC’s secret debate
The Constitutional Court grappled on Thursday with whether the Judicial Service Commission (JSC) should disclose recordings of its secret deliberations before voting on judicial appointments.
The JSC robustly questions candidates for judicial appointments in public, but its deliberations‚ where judges decide on who should be recommended for appointments‚ have always been held behind closed doors.
The Helen Suzman Foundation wants that to change.
It has been arguing on this issue since 2013, following its decision to review — in the High Court in Cape Town — the recommendation by the JSC that Mokgoatji Dolamo be appointed to the bench of the high court instead of venerated advocate Jeremy Gauntlett SC.
The Helen Suzman Foundation wanted the high court to declare that the JSC’s decision was irrational in law.
When a decision goes on review‚ the record of the decision that is challenged must be handed over to court in terms of rule 53 of the Uniform Rules of Court.
The JSC did not hand over the recording of its deliberations. Instead‚ the JSC sent the reasons for its decision‚ distilled from the deliberations‚ which set out its considerations each candidate.
It also sent the transcripts of the interviews of the candidates and other correspondence.
The foundation was not happy with this record as it excluded recordings of the deliberations. However‚ the High Court in Cape Town and the Supreme Court of Appeal held that the JSC’s deliberations did not automatically form part of the record as contemplated in rule 53.
Arguing for the Helen Suzman Foundation on Thursday‚ David Unterhalter SC told the Constitutional Court that the decision-making powers of the JSC were subject to legal review. He said the court was entitled to get the reasons for the decision and what deliberations gave rise to that decision.
However‚ Ismail Jamie SC‚ for the JSC‚ said the foundation was given the rule 53 record of decision, which the commission considered relevant.
“Everything that is relevant must be given. Deliberations were not considered relevant,” he said.
Jamie said the JSC gave reasons for Gauntlett not being appointed‚ based on the summary of positions taken by commissioners. The country’s judicial appointment process was by far the most transparent in the world, he said. in respect of