ConCourt orders JSC to disclose judges appointment records

THE Constitutional Court yesterday ordered the Judicial Service Commission (JSC) to deliver a full record of the proceedings sought to be reviewed by the Helen Suzman Foundation.

This includes the full recording of deliberations‚ including the audio recording of the deliberations of the JSC after interviews it conducted on October 17 2012.

The question the court had to deal with in this case was: May the private deliberations of the JSC‚ in the execution of its mandate to advise the president on the appointment of judges‚ be disclosed as part of the record of its proceedings.

The application had failed at the high court and the Supreme Court of Appeal. This forced the Helen Suzman Foundation to approach the Constitutional Court for relief.

The case has its genesis in October 2012‚ when the JSC recommended to the president that he appoints certain candidates as judges of the Western Cape High Court‚ and not to appoint others.

The decision followed private deliberations held by the JSC after the candidates had been interviewed.

The foundation wanted to have that decision – to advise the president to appoint certain other candidates and not others – reviewed on the grounds that it was unlawful and irrational.

In terms of the Uniform Rules of the Court‚ the JSC was supposed to file the record of the proceedings sought to be set aside with the registrar of the high court.

The JSC filed the record with the registrar‚ but did not include any minutes or transcripts of the deliberations.

Three judgments were prepared by the Constitutional Court yesterday.

The majority judgment‚ penned by Justice Mbuyiseli Madlanga and six other justices concurring‚ said the current position in our law was that the rule 53 record contained all information relevant to the challenged decision or proceedings.

“Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker‚” he said.

In a dissenting judgment‚ Justice Chris Jafta said “record” in rule 53(1)(b) did not include deliberations.

In the third judgment‚ Acting Justice Jody Kollapen disagreed with Madlanga’s conclusion.

Although Kollapen agreed with Jafta that the appeal must fail‚ he did so for different reasons.