Examining the JSC deliberations process

In a ground-breaking decision on 25 April 2018, the Constitutional Court ordered the release of the records of a deliberation of the JSC in October 2012, during which the JSC took a decision to advise the President to appoint certain candidates as judges of the Western Cape Division of the High Court, and not to appoint others. Like all rounds of JSC interviews, this decision followed private deliberations held by the JSC after the candidates had been interviewed.

There is a majority decision and two dissenting decisions. Writing for the majority Madlanga J had the concurrence of Zondo DCJ, Cameron J, Froneman J, Kathree Setiloane AJ, Mhlantla J and Theron J. He found that, “It should be borne in mind that the gruelling public interviews take place all the time. That should be contrasted with the few times when JSC decisions are taken on review, giving rise to the need to divulge deliberations. I do not think that the prospect that the deliberations might be divulged would be to so significant an extent as to be a dampener to worthy candidates.”

One of the questions that has attracted our attention is to understand how the JSC takes its decisions on who to appoint. The Cape Bar Council judgment requires that the JSC should be able to articulate reasons for a decision not appoint when properly called upon to do so. This suggests that an appreciable level of discussion and deliberation must take place. However, our engagement at the April 2018 interviews suggests that a straight voting procedure is effectively followed, and the new regulations say so in terms.

This contradicts the decision of the SCA in the Cape Bar Council case which states in terms;

“Suffice it for present purposes to say that: (a) since the JSC is under a constitutional obligation to act rationally and transparently in deciding whether or not to recommend candidates for judicial appointment, it follows that, as a matter of general principle, it is obliged to give reasons for its decision not to do so; (b) the response that the particular candidate did not garner enough votes, does not meet that general obligation, because it amounts to no reason at all..”

Now with the record of this particular JSC meeting a public record, we will be able to assess more closely how the JSC takes its decisions.

Ref: Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA)