JSC deliberations and the appointment of Judges
When the JSC appoints judges, most of the proceedings are open to the public, and can be watched online on the Judges Matter website. However, when the members of the JSC discuss whether they are actually going to appoint a judge, the proceedings are closed. All members of the public leave the room, taking their laptops and phones with them. What happens next is something like the mystery of how the Pope gets appointed. We don’t know what is said, or who argues for which candidate.
All we know is that at some point, white smoke is seen, and we all congregate around the member of the JSC who is the spokesperson – generally Dumisa Ntsebeza and CP Fourie – and the names of those who will be sent to the President for formal appointment are read out. When the appointment of a candidate is controversial, it is natural for people to ask for more information about what actually happened in the discussion. This is seldom forthcoming, and we are left to speculate. This is, of course, often a consequence of secrecy – rumours, and speculation.
However, the contrary argument is that when you engage in a deliberative process, before a decision is taken, it can be in the interests of a better decision to allow people to say what they think, candidly and not for the record. This view has been the view of the JSC, and they have consequently not released the record of their deliberations, although a record is indeed kept.
This refusal has been challenged in court, and the JSC won in the first hearing. They just won again on appeal, and barring any further challenge, the records will not be released.
However, another interesting issue is raised in the judgement. The question of how many votes a candidate needs to get in order to be nominated has recently been clarified for us by the JSC, in that any candidate must get 13 votes to be appointed. Some candidates get 23 votes, a full house. Some get no votes. The court in the recent decision says;
‘Disclosure to show the number of members who voted in support of a particular decision would be similarly vital to controvert an allegation that a majority of members had not supported the decision as is required by s 178(6) of the Constitution.’
Can we, and indeed should we, be making the argument for the disclosure of the votes the candidates get? Should a candidate who is not appointed be told the number of votes he or she got? That might certainly give candidates who imagine another interview would clinch the deal something to think about.
Read the full judgement in; Helen Suzman Foundation v Judicial Service Commission and Others (145/2015)  ZASCA 161 (2 November 2016).
Find out more about the Judicial Service Commission.