‘JSC must change its internal processes’
FUL wants members of the commission to give written reasons for decisions on judges
The court challenge launched this week by Freedom Under Law (FUL) against the Judicial Service Commission (JSC) included an unexpected element.
FUL wants an order from the court that would result in a far-reaching change to the internal JSC processes: that when the JSC interviews candidates for judicial appointment, each commissioner must record, in writing, their assessment of every candidate —“in compliance with ... published assessment criteria”— and write down any further reason for voting for or against a candidate.
Then “the JSC member will hand in their written assessments and reasons in respect of each candidate when he or she casts his or her vote (which may be cast secretly)”, said FUL executive officer Judith February in her affidavit to the Pretoria high court.
When the JSC said it had filled only two vacancies on the Supreme Court of Appeal (SCA) in October, the announcement was met with bewilderment and dismay. Two vacancies were left open after two days of interviews, lengthy deliberations and two rounds of voting. Candidates widely viewed as eminently appointable were overlooked.
FUL’s court challenge has two parts. Part A is urgent and focuses specifically on the October SCA decision. Here, FUL has challenged the rationality, in law, of what it says was an effective decision not to fill vacancies, which it describes as “a dereliction of constitutional responsibility”.
It has also challenged the JSC’s voting procedure: there were two rounds of voting. In the first round, five candidates got sufficient votes to be recommended. But in the second tiebreaker round only two candidates did. “It is irrational for a candidate to be considered suitable in the first round and then immediately thereafter disqualified in the second round,” said February.
There are other grounds as well. In Part A, FUL wants the court to order the JSC to reconvene and reconsider its decision on the SCA vacancies. It does not want the interviews to be repeated, and has not challenged the appointments of judges Fayeeza Kath- ree-Setiloane and Shane Kgoele.
But it is FUL’s Part B non- urgent relief which, if successful, will have the most long-term consequences. The order sought is a direction to the JSC on how it must conduct its internal processes, an issue the constitution leaves to the JSC, saying it “may determine its own procedure”.
Part B is the continuation of a debate on how the JSC accounts for its decisions that began in 2012 in a case between the JSC and the Cape Bar Council. In 2011, the JSC interviewed seven candidates for three vacancies at the Western Cape High Court, but only one was recommended for appointment. To determine whether the decision was rational, reasons for the JSC’s decision were needed, but the only reason the JSC provided was that only one candidate got sufficient votes.
When the case came before the SCA, one of the arguments made by the JSC was that it was impossible for it to give reasons. The best reason it could give was that a candidate had failed to get a majority of votes.
This was because the JSC’s voting was by secret ballot: “Nobody knows how another member has voted, or why he or she has voted one way or another. Moreover, as the vote is secret, a member is not required to explain to anyone how or why he or she voted in a particular way. In the result, it is not possible for the JSC to furnish reasons.”
The SCA was not convinced. Judge Fritz Brand, on behalf of a unanimous court, said the JSC exercised a public power and was therefore bound to act rationally. This meant it had a duty to give reasons for its decisions. To say simply that the candidate did not secure enough votes was “no reason at all”, Brand said.
It was after this judgment that the JSC began recording its private deliberations.
The debate continued in the Helen Suzman Foundation (HSF) case, in which the HSF sought an order that the JSC make the recordings of its confidential deliberations available to the court. The Constitutional Court’s majority judgment said the deliberations were relevant to determining how the JSC came to its decision and should be made available: “Deliberations are the most immediate and accurate record of the process leading up to the decision ... They clearly bear on the lawfulness, rationality and procedural fairness of the decisions,” said justice Mbuyiseli Madlanga.
But to glean the reasons for a decision purely from the JSC’s deliberations is problematic. The JSC is, by constitutional design, a collective of disparate stakeholders with very different interests and views: politicians from opposing parties, members of the executive, lawyers and judges. The deliberations are meant to facilitate a frank, robust discussion in which commissioners may persuade or dissuade each other. But how can you tell whether what was said by one commissioner was the thing that persuaded the others to vote one way or another?
When the Council for the Advancement of the South African Constitution (Casac) challenged the April 2021 Constitutional Court recommendations, the JSC provided the transcript of its deliberations. What was remarkable about those deliberations was how few commissioners spoke at all. Many were silent throughout, yet they all voted.
The facts of FUL’s current case are another example. After the interviews, Casac asked the JSC for written reasons, based on its deliberations. FUL was unimpressed with the reasons given, saying the JSC “attempt[ed] long after the fact to guess what may have motivated commissioners not to vote for specific candidates”.
February described the JSC’s reasons: “It says that some commissioners may have not voted for some candidates because they may have taken into account the need of the SCA for experienced judges and [believed] that some candidates were not sufficiently experienced for appointment to the SCA.”
This was “plainly inadequate justification”, said February. And it was “inapposite” to a number of candidates, since the JSC, in its first round of voting, felt that five of them were suitable.
FUL said the JSC’s processes “do not allow for meaningful reasons to be produced”. This is partly why FUL wants its Part B order.
In deciding that the JSC had a duty to give reasons for its decisions back in 2012, Brand said he was not expressing a view on “how extensive these reasons should be”.
But he also said that, though the constitution allows the JSC a wide discretion to determine its own procedure, “that procedure must, as a matter of principle, enable the JSC to comply with its constitutional and legal obligations. If it does not, the procedure must be changed.”