Legal bid for JSC’s ‘white judges’ tapes
Commission disputes claim it acted unlawfully
THE battle over judges on the Western Cape bench goes on — more than a year after President Jacob Zuma seemingly settled the bitterly contested issue.
The Judicial Service Commission’s legal team fought a rearguard battle in the High Court in Cape Town on Friday, opposing an application that, if granted, would unveil sensitive discussions about the appointment of judges.
The JSC was taken to court by the Helen Suzman Foundation in 2012 in order to unravel the controversy surrounding interviews for the Western Cape bench. At the time of the interviews, some white advocates were shunned. Jeremy Gauntlet, who has been overlooked at least three times — once for the Western Cape High Court and twice for the Constitutional Court — was at the centre of the 2012 controversy.
The foundation brought the High Court application to force the JSC to release audio recordings and transcripts of closeddoor meetings in which the appointment of five judges was discussed following public interviews in 2012.
The foundation wants these recordings to bolster a judiciary review application it launched in the same court last year. It wants the commission’s recommendations for the bench declared invalid. But the JSC has refused to hand over the recordings, citing confidentiality. The foundation’s main application is yet to be heard.
The foundation’s legal researcher, Kameel Premhid, said the high court challenge emanated from reasons provided by the JSC to Judge Louis Harms, former deputy judge president of the Supreme Court of Appeal, when he queried Gauntlett’s exclusion.
“In the reasons they used the phrase ‘to appoint two white men would do violence to the constitution’. It’s our view that this interpretation of transformation is unlawful or prospectively unlawful, and we want to get access to the tapes and prove that unlawfulness,” he said.
But Ismail Jamie SC, for the JSC, told the court that the foundation was not entitled to the recordings and that the commission’s debates about prospective judges should be kept confidential. “It will ensure candid deliberations, protect the privacy and dignity of applicants and encourage future applicants,” said Jamie.
Judge Andre le Grange reserved judgment on Friday.
Francis Antonie, the director of the foundation, said it would raise funds to pursue the matter.
“We are very fortunate in that we have an impressive young legal team in the foundation. We are able to approach various lawyers from firms who think [the issue] is important and in the public interest, and they are prepared to do a lot of the work pro bono,” said Antonie.