Business Day

Top court to decide on JSC’s secret debate

- Ernest Mabuza

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

 ??  ?? David Unterhalte­r Jeremy Gauntlett
David Unterhalte­r Jeremy Gauntlett

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