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[2016] ZASCA 161
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Helen Suzman Foundation v Judicial Service Commission and Others (145/2015) [2016] ZASCA 161; [2017] 1 All SA 58 (SCA); 2017 (1) SA 367 (SCA) (2 November 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 145/2015
In
the matter between:
THE
HELEN SUZMAN FOUNDATION
APPELLANT
and
JUDICIAL SERVICE
COMMISSION
RESPONDENT
POLICE
AND PRISONS CIVIL RIGHTS
UNION
FIRST AMICUS CURIAE
NATIONAL
ASSOCIATION OF
DEMOCRATIC
LAWYERS
SECOND AMICUS CURIAE
DEMOCRATIC
GOVERNANCE
AND
RIGHTS UNIT
THIRD
AMICUS CURIAE
THE
TRUSTEE FOR THE TIME
BEING
OF THE BASIC RIGHTS
FOUNDATION
OF SA
FOURTH
AMICUS CURIAE
Neutral
citation
:
The
Helen
Suzman Foundation v Judicial Service Commission
(145/2015)
[2015] ZASCA 161
(2 November 2016)
Coram:
Maya DP, Majiedt, Mbha
and Dambuza JJA and Fourie AJA
Heard:
5
May 2016
Delivered:
2
November 2016
Summary:
Recording
of the private deliberations on judicial appointments by the Judicial
Service Commission, properly conducted in terms
of the
Judicial
Service Commission Act 9 of 1994
and
regulation 3
(k)
made
thereunder, does not form part of the record of its proceedings for
purposes of Uniform
rule 53(1)
(b)
–
constitutional principles of openness and accountability are not
absolute and the JSC is entitled to raise the defence of
confidentiality to a
rule 53
demand for the disclosure of the
recordings of its private deliberations.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Le Grange J sitting as
court of first instance): reported
sub
nom
Helen
Suzman Foundation v Judicial Service Commission
2015 (2) SA 498
(WCC).
The
appeal is dismissed with no order as to costs.
JUDGMENT
Maya
DP
(Majiedt,
Mbha and Dambuza JJA and Fourie AJA
concurring
):
Background
[1]
The core issue in this appeal is whether the deliberations held in a
closed session by the respondent, the Judicial Service
Commission
(the JSC), in the execution of its mandate to advise the President of
the Republic of South Africa (the President) on
the appointment of
judges under s 174(6) of the Constitution,
[1]
form part of the record of its proceedings for purposes of Uniform
rule 53(1)
(b)
.
[2]
[2]
The appellant, the Helen Suzman Foundation (HSF),
[3]
appeals, with the leave of this court, against the judgment of the
Western Cape Division of the High Court, Cape Town (Le Grange
J). The
court a quo dismissed HSF’s interlocutory application for an
order directing the JSC to deliver the full record of
the proceedings
sought to be reviewed, including the audio recording and any
transcript of the JSC’s private deliberations
after the
interviews of judicial candidates on 17 October 2012. HSF required
the record for purposes of review proceedings it launched
in the high
court. In those proceedings it sought an order declaring, inter alia,
that the JSC’s decision, taken pursuant
to the deliberations,
to advise the President to appoint certain candidates and not to
advise him to appoint certain other candidates
as judges of the court
a quo, was unlawful and irrational and thus invalid.
[4]
Four
amici curiae, the Police and Prisons Civil Rights Union (POPCRU), the
National Association of Democratic Lawyers (NADEL), the
Democratic
Governance and Rights Unit (DGRU) and the Trustee for the Time Being
of the Basic Rights Foundation of South Africa
(BRF), were also
granted leave to join in the proceedings although only POPCRU and BRF
participated in the appeal.
Proceedings
in the court a quo
[3]
The challenge, originally initiated by the former Deputy President of
the Supreme Court of Appeal, Mr Justice Harms, was particularly
directed at the JSC’s recommendation of the appointment of
Dolamo AJ instead of Mr Gauntlett SC. After the institution of
the
review proceedings the JSC delivered a record of its proceedings in
terms of rule 53(1)
(b)
.
The record contained: (a) the reasons for the JSC’s decision,
distilled from the deliberations, which set out its considerations
in
respect of each candidate; (b) the transcripts of the interview with
each of the candidates; (c) each candidate’s application
for
appointment; (d) comments on the candidates from various professional
bodies and interested individuals; and (e) related research,
submissions and correspondence.
[4]
HSF, having discovered in the interim that the JSC routinely keeps
audio recordings of its entire proceedings, considered the
record
incomplete as it did not include a transcript or audio recording of
the deliberations (the recording). Following the JSC’s
dogged
refusal to furnish the recording on the ground that it does not form
part of the record of its proceedings contemplated
by rule 53, HSF
issued a rule 30A
[5]
notice and thereafter launched the interlocutory application to
compel the recording’s production. The basis of these
procedures
was that the JSC had furnished an incomplete record in
breach of rule 53(1)
(b)
by failing to furnish the recording, which is the most immediate and
accurate record of its decision and the process leading thereto.
[5]
As indicated above, the court a quo found in the JSC’s favour
and held that the record produced by the JSC met the objectives
and
purpose of rule 53. In the court a quo’s view, due regard being
had to the JSC’s legislative framework and overall
approach to
judicial appointments, namely: (a) the JSC’s publication of the
objective criteria it employs in the selection
of judges, (b) its
public interview process, and (c) its obligation to give reasons for
its recommendations to the President, which
were provided here, the
record satisfied the requirements of openness, transparency,
equality of arms
[6]
required by s 34 of the Constitution and access to information. The
court saw no reason to depart from the established approach
of
determining the extent of the required record for purposes of rule 53
on the facts of each case. And on that basis the court
considered
that HSF had been supplied with ‘enough’ documentation to
ensure that it was not forced to launch its review
in the dark. The
court also found significance in the fact that such documentation
included a summary of the JSC’s reasons
compiled by the Chief
Justice, which, it pointed out, had not been impugned as incorrect.
In its view, the Chief Justice could
not, in any event, improperly
adapt the reasons having regard to its broad composition.
[6]
The court a quo considered that the JSC’s unique status
deriving from its constitutional powers and entitlement to determine
its own process, placed its private deliberations in the realm of
judicial officers’ court book recordings or deliberations
after
a hearing, which do not form part of the record of proceedings on
appeal or review. The court a quo finally held that comparative
international jurisdictions did not support HSF’s stance which,
in turn, would not advance the constitutional and legislative
imperatives of the JSC. Instead, the JSC was shown to represent
international best practice and is far more transparent than the
majority of comparable international bodies
.
Submissions
on appeal
[7]
HSF’s contentions before us did not change. Relying mainly on a
number of cases from the provincial divisions and one
from this
court,
[7]
it argued that constitutional democracy and the associated principles
of transparency and accountability that underpin rule 53
oblige the
JSC to furnish the full record of its proceedings ie any minutes,
transcripts, recordings or other contemporaneous records
of the JSC’s
official deliberations after interviewing candidates up to the time
of taking the decision, including the recording.
It was not for the
JSC to determine the extent of relevant and disclosable material
under rule 53, so it was argued. And the JSC
was legally obliged to
produce the recording because the deliberations bear on the
lawfulness, rationality and procedural fairness
of its decision and
is indispensable to the determination whether there is a rational
connection between the deliberations, the
decision and the reasons.
[8]
This was so, it was contended, because the deliberations represented
the only part of the process where the JSC acts as a deliberative
committee and were the most direct evidence of the reasoning behind
the JSC’s decision. They constituted the very basis from
which
that reasoning was drafted and were therefore indispensable to the
exercise of review rights and clearly relevant. Disclosure
would
enhance the legitimacy of the JSC processes rather than compromise
the dignity and integrity of candidates. HSF did however
acknowledge
the court’s power to order limited disclosure if there were any
parts of the recording which, in its view, should
not be made public
in order to mitigate any prejudice, preserve HSF’s fair trial
rights and give effect to rule 53. But it
argued that the JSC had
laid no basis for such a limitation of the record and that the court
a quo disregarded this proposition,
in any event, despite HSF’s
oral and written submissions in this regard. It also challenged the
court a quo’s comparison
of the deliberations to private
judicial deliberations, arguing that the JSC had not performed
judicial functions in this instance
and that the high court had no
power to determine what would be disclosable as in the case of a
magistrate taken on review in a
specific context.
[9]
The JSC properly accepted at the outset that its processes must
comply with the foundational constitutional principles of
transparency,
responsiveness and accountability that bind all organs
of State.
[8]
It acknowledged its significant public and constitutional
responsibility and that it wields enormous public power, which must
be exercised lawfully, rationally and in a procedurally fair and
unbiased manner, and, as mentioned above, that an organ of State
whose decision is under review may be obliged to disclose its
deliberations, or some aspects thereof, in appropriate circumstances.
It was thus not in contention that the process it followed and its
decision are subject to judicial review under rule 53. The point
of
departure, as stated, related only to the meaning and extent of the
term ‘record of . . . proceedings’ in the rule.
[10]
But the JSC argued that the confidentiality of its deliberations,
which protects the dignity and integrity of the candidates
and the
process itself, does not conflict with the constitutional norms,
domestic case law, international jurisprudence and the
rules of
court. This was so, given the sound reasons therefor, the fact that
it is recognised in relevant legislation and the extent
of the
openness and transparency within which the JSC generally operates.
Thus, it asserted, there is no absolute requirement for
the
disclosure of its deliberations, which are not relevant to HSF’s
review proceedings, and the record it provided sufficed
to enable HSF
to challenge it in the review on an equal footing.
[11]
The amici supported the JSC’s position. POPCRU also took issue
with HSF’s insistence on accessing the verbatim
recording
despite the summary of the deliberations which was prepared and
submitted by the Chief Justice on the mandate of the
JSC’s
members. In POPCRU’s view, HSF’s stance challenged the
veracity of the summary and indicated its lack of
faith in the word
of the Chief Justice. BRF reiterated that the recording bears no
relevance for the review proceedings as it does
not form part of the
objective information evidence before the JSC. Its initial objection
to the non-joinder of the candidates
in issue and the JSC members who
partook in the deliberations, on the contention that they have a
direct, substantial interest
in the outcome of the review
proceedings, was correctly abandoned in argument before us.
The
purpose and applicability of rule 53
[12]
R
ule
53 reads in
relevant
part
:
‘
(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court
and of any
tribunal, board or officer performing judicial or administrative
functions shall be by way of notice of motion directed
and delivered
by the party seeking to review such decision or proceedings to the
magistrate, presiding officer or chairman of the
court, tribunal or
board or to the officer, as the case may be, and to all other parties
affected–
(a)
calling
upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and
(b)
calling
upon the magistrate, presiding officer, chairman or officer, as the
case may be, to dispatch within fifteen days after receipt
of the
notice of motion, to the registrar the record of such proceedings
sought to be corrected or set aside, together with such
reasons as he
is by law required or desires to give or make, and to notify the
applicant that he has done so.’
[13]
The primary purpose of the rule is to facilitate and regulate
applications for review by granting the aggrieved party seeking
to
review a decision of an inferior court, administrative functionary or
State organ, access to the record of the proceedings in
which the
decision was made, to place the relevant evidential material before
court.
[9]
It is established in our law that the rule, which is intended to
operate to the benefit of the applicant,
[10]
is
an important tool in determining objectively what considerations were
probably operative in the mind of the decision-maker when
he or she
made the decision sought to be reviewed. The applicant must be given
access to the available information sufficient for
it to make its
case and to place the parties on equal footing in the assessment of
the lawfulness and rationality of such decision.
[11]
By
facilitating access to the record of the proceedings under review,
the rule enables the courts to perform their inherent review
function
to scrutinise the exercise of public power for compliance with
constitutional prescripts. This, in turn, gives effect
to a
litigant’s right in terms of s 34 of the Constitution –
to have a justiciable dispute decided in a fair public
hearing before
a court with all the issues being properly ventilated.
[12]
Needless to say, it is unnecessary to furnish the whole record
irrespective of whether or not it is relevant to the review. It
is
those portions of a record relevant to the decision in issue that
should be made available.
[13]
A key enquiry in determining whether the recording should be
furnished is therefore its relevance to the decision sought to be
reviewed.
[14]
The JSC relied, inter alia, on
Johannesburg
City Council v The Administrator Transvaal & another
,
[14]
and a decision of this court which cited the former case with
approval in
MEC
for Roads and Public Works, Eastern Cape & another Intertrade Two
(Pty) Ltd
,
[15]
to the effect that a decision-maker’s private deliberations do
not form part of the rule 53 record. In the former decision,
Marais J
interpreted the words ‘record of proceedings’ as follows
(at 91G-92A):
‘
The
words “record of proceedings” cannot be otherwise
construed, in my view, than as a loose description of the documents,
evidence, arguments and other information before the tribunal
relating to the matter under review, at the time of the making of
the
decision in question. It may be a formal record and dossier of what
has happened before the tribunal, but it may also be a
disjointed
indication of the material that was at the tribunal’s disposal.
In the latter case it would, I venture to think,
include every scrap
of paper throwing light, however indirectly, on what the proceedings
were, both procedurally and evidentially.
A record of proceedings is
analogous to the record of proceedings in a court of law which quite
clearly does not include a record
of the deliberations subsequent to
the receiving of the evidence and preceding the announcement of the
court’s decision.
Thus the deliberations of the Executive
Committee are as little part of the record of proceedings as the
private deliberations
of the jury or of the Court in a case before
it. It does, however, include all the documents before the Executive
Committee as
well as all documents which are by reference
incorporated in the file before it.’
[15]
Whilst our courts have consistently followed this dictum over
decades, well into the post-constitutional era, it is clear from
recent constitutional jurisprudence that it needs qualification in so
far as it excluded all and any deliberations of a decision-maker
from
the ambit of rule 53. The qualification of the dictum would apply
with equal force to this court’s obiter remarks in
Intertrade
,
which endorsed it, albeit tentatively. The JSC itself properly
conceded that a disclosure of its deliberations, or at least some
aspects thereof, may be warranted in appropriate circumstances.
Indeed, there can be no contention that disclosure of its
deliberations
to establish the identity of participating members
would be necessary to refute a challenge that its composition did not
meet the
requirements of s 178(1) of the Constitution when it made a
particular decision in those proceedings. 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. The list is not closed.
[16]
As mentioned above, the provincial divisions of the High Court have,
in the cases relied upon by HSF, emphasised the constitutional
goals
of open and accountable decision-making and disagreed with Marais J’s
dictum in so far as it advocated wholesale non-disclosure
of
decision-makers’ deliberations. In
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO & others
,
[16]
the court held that in an open and transparent system such as
contemplated by the Mpumalanga Gaming Act 5 of 1995, the applicant
was entitled to the minutes of deliberations and a video recording of
the deliberations of a gambling board since it was the manner
in
which the board reached its decision that was at issue.
Comair
Ltd v Minister for Public Enterprises & others
approved
this decision and held that rule 53 entitles an applicant to access
the full deliberations of a decision-maker.
[17]
There, a decision of the Minister of Public Enterprises was sought to
be reviewed. Heavily redacted minutes of meetings held between
him
and other relevant State functionaries were produced under rule 53 on
the basis that the full minutes contained sensitive and
confidential
financial information that was privileged. The court reiterated the
trite principle that confidentiality does not
by itself confer
privilege against disclosure
[18]
as that would defeat the purpose of rule 53, and ordered delivery of
the full minutes.
[17]
Cape
Town City v South African National Roads Agency
(
SANRAL
)
[19]
bears
a closer resemblance to the instant case as it concerned somewhat
similar issues in a dispute between the parties as to exactly
what
constituted the rule 53 record. The City sought information
pertaining to the selection, by SANRAL’s board of directors,
of
a preferred bidder in a tender process undertaken for the award of a
contract for the upgrade, construction, maintenance and
operation of
parts of the N1 and N2 national roads in the vicinity of Cape Town as
toll roads, which the City had brought under
review. Questions arose
regarding whether the information was confidential and whether its
disclosure would not only harm SANRAL,
but also the bidders and that
such harm provided a basis for secrecy. In an appeal against the
decision of the Western Cape Division,
Cape Town (Binns-Ward J)
(which expressly dissociated itself with the dictum in
Johannesburg
City Council
)
in the City’s favour, this court reiterated the importance of
the time honoured principle of open justice which is now
constitutionally entrenched.
[20]
The
court endorsed the view that as a general rule court records should
be open to the public and that any departure from this position
should be the exception and must be justified.
[18]
I am not at all convinced that any of these decisions support HSF’s
case in the manner claimed. What is immediately discernible
is that
they were mainly premised upon the particular legislative provisions
pertaining to the bodies whose decisions were being
reviewed. Those
bodies’ deliberations were not endowed with statutory
confidentiality as is the case here. Both
Afrisun
and
Ekuphumleni
Resort
involved
the review of decisions of gambling boards which were enjoined by
legislation to conduct their affairs in an open and transparent
manner. In
Comair,
it
weighed heavily with the court that the relevance of the redacted
minutes was not disputed and that an undertaking had been given
to
protect the confidentiality of the minutes, which the court found
made nonsense of the fear that their disclosure would likely
cause
prejudice.
SANRAL
acknowledged
the possibility of a public body’s claim to keep its documents
confidential arising from ‘interests such
as security or
perhaps even the privacy rights of persons mentioned in the
documents’.
[21]
No court has laid down a general, fixed rule that deliberations must
always form part of a review record under rule 53.
[19]
HSF also relied on the judgment of the Constitutional Court in
Swartbooi
& others v Brink & others
.
[22]
In that matter, the Court considered whether the conduct of elected
municipal councillors during deliberations which culminated
in the
making of a decision affecting the respondents’ rights was
‘integral to deliberations at a full council meeting
and to the
legitimate business of that meeting’. It held that the
‘evidence of conduct in the proceedings of
the full council is
admissible for the purpose of deciding whether the conduct falls
within the bounds of s 28 [of the
Local Government: Municipal
Structures Act 117 of 1998
] protected conduct, or to prove the
requirements of civil liability for conduct within the council that
is not protected by
s 28.
’
[23]
[20]
Swartbooi
is clearly distinguished by its own facts. The Constitutional Court
was engaged in a wholly different enquiry. It was concerned
with
whether the councillors’ liability for costs arising from
litigation challenging council decisions, which they had supported,
constituted liability to civil proceedings. If so, they would be
entitled to the immunity provided in s 28 of the Municipal Structures
Act, from personal liability for conduct amounting to the performance
of their council functions. What the Court sought to decide,
therefore, was whether s 28 covered the conduct of municipal
councillors that constituted participation in the deliberations of
the full council in the course of the legitimate business of that
council. Importantly, those deliberations were not clothed with
confidentiality at all and their relevance was determined in an
entirely different context.
[24]
Confidentiality
of the JSC’s deliberations
[21]
Against that background, it must be decided whether the
confidentiality of the JSC’s deliberations insulates
it from
disclosure under rule 53. The starting point is the
fount of the JSC’s existence
–
s 178 of the Constitution. These
provisions, inter alia, determine its composition.
[25]
In ss (4), provision is made for the JSC’s powers and functions
as are assigned to it by the Constitution (in s 174) and
national
legislation. And in subsection (6), it is given a wide power to
determine its own procedure with only one rider that its
decisions
must be supported by its majority.
[26]
[22]
The confidentiality of the JSC’s processes is recognised,
first, in s 38(1) of the Judicial Service Commission Act 9
of 1994
(the JSC Act), which provides:
‘
No
person, including and member of the Commission, Committee, or any
Tribunal, or Secretariat of the Commission, or Registrar or
his or
her staff, may disclose any confidential information or confidential
document obtained by that person in the performance
of his or her
functions in terms of this Act, except–
(a)
to
the extent to which it may be necessary for the proper administration
of any provision of this Act;
(b)
to
any person who of necessity requires it for the performance of any
function in terms of this Act;
(c)
when
required to do so by order of a court of law; or
(d)
with
the written permission of the Chief Justice.’
[23]
More pertinently, the process which the JSC must employ in respect of
the recommendation of candidates for judicial appointment
is governed
by regulations promulgated for that purpose in terms of s 35 the JSC
Act.
[27]
Regulation
3
(a)
–
(m)
sets out the formal procedure which the JSC employs in the selection
of candidates for appointment as superior court judges, save
for
appointment to the Constitutional Court.
[28]
Regulation 3
(k)
provides that:
‘
After
completion of the interviews, the [JSC] shall deliberate
in
private
and shall, if deemed appropriate, select the candidate for
appointment by consensus or, if necessary, majority vote.’ (My
emphasis.)
Interestingly,
this procedure is not peremptory as regulation 7 allows the JSC to
‘depart from this procedure or condone any
departure from [the]
procedure whenever, in its opinion, it is appropriate to do so’.
This is in line with its constitutionally
conferred powers to
regulate its own procedure in terms of s 178(6).
[29]
[24]
Significantly, the Promotion of Access to Information Act 2 of 2000
(PAIA), which imposes transparency in relation to documents
held by
the State to give effect to the constitutional right to access
information under s 32(2) in accordance with s 32 of the
Constitution,
[30]
also
exempts the JSC’s processes relating to the judicial
appointments from its operation. In terms of s 12(
d
)
thereof, PAIA ‘does not apply to a record relating to a
decision referred to in paragraph (
gg
)
of the definition of “administrative action” in section 1
of the Promotion of Administrative Justice Act, 2000 (Act
3 of 2000),
regarding the nomination, selection or appointment of a judicial
officer or any other person by the [JSC] in terms
of any law’.
[31]
[25]
The confidentiality of the deliberations therefore enjoys recognition
in legislation enacted to give effect to the very right
to access
information enshrined in the Constitution, which was rightly not
challenged as being unconstitutional. (All that HSF
argued was that
the confidentiality of the deliberations is no basis for withholding
disclosure under rule 53, and that it could
at best ‘lead to
the setting up of a confidentiality regime in respect of disclosure
where properly established’ and
that the regulations relate
only to the process to be employed by the JSC in performing its
functions.) Furthermore, our courts,
which ultimately retain the
power to order disclosure of confidential material where appropriate,
have endorsed the need for confidentiality
in JSC processes.
[32]
Recently, in
Judicial
Service Commission v Cape Bar Council & another
,
[33]
this court dealt with the JSC’s obligation to give reasons for
its decision not to recommend a particular candidate if properly
called upon to do so. In concluding that the JSC is indeed enjoined
by law to provide such reasons, the court accepted the legitimacy
of
the JSC’s procedure of merely distilling its reasons as a
summary of its deliberations (as was done in this case) and
voting
for candidates by secret ballot. The court stated that ‘if the
reasons of the majority cannot be distilled from the
. . .
deliberations which precede the voting procedure, there appears to be
no reason, on the face of it, why the members cannot
be asked to
provide their reasons
anonymously
.’
[34]
The court also pointed out that it was not ‘suggesting that the
JSC is under an obligation to give reasons under all circumstances
for each and every one of the myriad of potential decisions it has to
take.’
[35]
[26]
Likewise in
Mail
& Guardian v Judicial Service Commission
,
[36]
the South Gauteng High Court, dealing with access to the JSC’s
‘public proceedings’ (and not process endowed
with
confidentiality by statute as here), nonetheless acknowledged the
need for confidentiality. It allowed the media applicants
access to a
judge’s disciplinary proceedings largely because the
proceedings had already been fully open and no justification
had been
advanced for closing them. Although the court emphasised the
importance of openness, it recognised the necessity of
confidentiality
at the early stages of the proceedings as follows
(para 20):
‘
Confidentiality
would encourage the filing of complaints but also protect judges from
unwarranted and vexatious complaints and maintain
confidence in the
judiciary by avoiding premature announcements of groundless
complaints. Moreover, it would facilitate the work
of the
disciplinary authority by giving it flexibility to accomplish its
functions through voluntary retirement or resignation.
Confidentiality is required to protect a judge from frivolous and
unfounded complaints; to allow a judge to recognise and correct
his
or her own mistakes; to resolve the complaint prior to formal
proceedings and to protect the privacy of a judge.’
[27]
What may be gleaned from these decisions, in my view, which HSF’s
counsel did not challenge, is that there is no absolute
requirement
of disclosure of the JSC’s proceedings. Rather, it is a
question of weighing, inter alia, the nature and relevance
of the
information sought, the extent of the disclosure and the
circumstances under which the disclosure is sought and the potential
impact upon anyone, if disclosure is ordered or refused, as the case
may be, in a manner that would enable the JSC to conduct a
judicial
selection process that does not violate its positive obligations of
accountability and transparency. It should be borne
in mind in that
exercise, however, that these constitutional values do not establish
discrete and enforceable rights.
[37]
They
serve
merely as interpretive guides that may have to be balanced against
and fettered by competing values, interests and rights
of equal
importance, such as rights to dignity and privacy of parties who
would be affected by the disclosure. And as the rules
of court must,
like all other legislation, be construed and applied in the manner
enjoined by s 39(2) of the Constitution,
[38]
there can be no objection to a limitation of the record if that is
reasonable and justifiable in the sense contemplated by s 36(1)
of
the Constitution.
[39]
[28]
It must then be determined if there are any reasons, consistent with
the Constitution and the law, justifying the non-disclosure
of the
deliberations. I have difficulty with HSF’s contentions that
non-disclosure of the recording is inimical to the notions
of open
justice and public accountability and that protecting the
confidentiality of the deliberations would undermine the public’s
trust in the JSC and its processes. The nature of the JSC’s
constitutional mandate requires it to engage in a rigorous, intense
judicial selection process. To that end, it must be accepted that
during the course of the deliberations adverse remarks will be
made,
which although not necessarily actionable in law, may yet be hurtful
to a candidate and cause reputational damage harmful
to his or her
professional career. This would apply with greater force to a sitting
judge who applies for a higher position on
the Bench with the
potential of eroding public esteem in the judiciary upon which the
ultimate power of the courts rests.
[40]
The JSC and its members may also be exposed to possible actionable
claims for delictual damages arising from utterances made during
the
deliberations which a candidate may consider defamatory. It should
not be overlooked too that the legal practitioners in the
JSC will,
in future, appear before the appointed judge who may harbour ill
feelings against them if they expressed adverse views
against her or
his appointment in the deliberations. This may potentially inhibit
the practitioners and even the judges sitting
on the JSC from freely
and frankly expressing themselves on the suitability of the
candidates.
[29]
Protecting the confidentiality of the deliberations clearly serves
legitimate public interests in the circumstances. Whilst
the JSC
itself cannot lay claim to a general right to privacy as it
discharges a public duty,
the
privacy and dignity of judicial candidates, who are assured by the
JSC Act and its regulations that the deliberations concerning
their
suitability will be confidential, must be protected
in
the judicial interviewing and selection process.
[41]
Non-disclosure of the deliberations therefore fosters this
obligation. It likely encourages applicants who might otherwise not
make themselves available for judicial appointment for fear of
embarrassment were the JSC members’ frank opinions on their
competence or otherwise be made open to the public. This would
compromise the efficacy of the judicial selection process. The cloak
of confidentiality also enhances the judicial appointments process by
allowing the members to robustly and candidly state facts
and
exchange views in discussing the suitability or otherwise of the
candidates based on their skills, characters, weaknesses and
strengths.
[30]
It is worth noting in this regard that courts in various foreign
jurisdictions have acknowledged the need to protect the
confidentiality
of State functionaries’ deliberations in proper
cases so as to preserve their ability to speak frankly, free from
improper
public scrutiny and influence. In
Babcock
v Canada (Attorney General)
,
[42]
the court explained the need to protect the confidentiality of
cabinet minutes thus:
‘
Those
charged with the heavy responsibility of making government decisions
must be free to discuss all aspects of the problems that
come before
them and to express all manner of views, without fear that what they
read, say or act on will later be subject to public
scrutiny . . . If
Cabinet members’ statements were subject to disclosure, Cabinet
members might censor their words, consciously
or unconsciously. They
might shy away from stating unpopular positions, or from making
comments that might be considered politically
incorrect. . . .
The process of democratic governance works best when Cabinet members
charged with government policy and
decision-making are free to
express themselves around the Cabinet table unreservedly.’
These
sentiments have been echoed by the House of Lords and the High Court
of Australia.
[43]
I cannot think of any reason why they would not apply to the
deliberations of the JSC, which also makes politically sensitive
decisions of great constitutional import.
[31]
The public’s confidence in the JSC, which has incidentally
conducted its deliberations privately without question since
its
inception in 1994, plainly does not arise from public access to the
deliberations. Rather, it stems from, inter alia (a) the
diversity of
the JSC’s uniquely broad composition which comprises senior
members from each of the three arms of government,
the legal and
academic professions and civil society; (b) the publication of the
criteria for eligibility and the appointment of
judges; (c) public
and media access to the selection process from the time when the
vacancies are advertised until the interviews;
and (d) the JSC’s
duty to furnish reasons for its recommendations. These factors
satisfy the requirements of transparency
and accountability, as
evinced in the criticisms against the JSC, which are to be expected
and welcomed in an open and democratic
society.
[44]
Relevance
of the Deliberations?
[32]
As mentioned above, the reasons compiled by the Chief Justice ‘from
the contributions of Commissioners during the deliberations,
as
mandated by the Commissioners at the end of the meeting’ in
terms of Uniform rule 53(1)
(b)
, contained a concise summary of
the views expressed by the JSC members in respect of each candidate.
Based on those reasons HSF
stated the following in its founding
affidavit in the main application:
‘
The
HSF submits that this matter is now ripe for determination by this
Honourable Court. The reasons provided by the JSC, as delineated
below, together with certain recent public statements by, inter
alios, the Chief Justice . . . and the spokesperson for the JSC
. . .
provide this Honourable Court with the necessary context to consider
the relief sought in the Notice of Motion accompanying
this
affidavit.’
[33]
Further on in this affidavit, HSF set out its grounds of review which
amounted to that the JSC: (a) elevated the consideration
in s 174(2)
of the Constitution, which obliges the JSC to consider ‘the
need for the judiciary to reflect broadly the racial
and gender
composition of South Africa . . . when judicial officers are
appointed’, above other relevant factors; (b) failed
to take
other material considerations into account; and (c) failed to engage
in a meaningful, comprehensive and comparative analysis
of the
respective strengths and weaknesses of the various candidates.
[34]
Prior to the launch of the interlocutory application, the JSC’s
instructing attorneys requested more time ‘to finalize
the
record’. HSF’s response to that request was:
‘
In
the closing paragraph of [your client’s letter dated 16
November 2013] your client indicated to Mr Cloete [retired Justice
Harms DP’s legal representative] that “this letter as
well as the previous one . . . has given you all the necessary
information”. Accordingly, given your client’s stated
position that it has already furnished Mr Cloete with the totality
of
its record of and reasons for the decision that is challenged in this
matter, it is unclear what record remains to be “compiled”
or “finalised” by your client under Rule 53.’
[35]
HSF’s insistence on the disclosure of the deliberations is
puzzling in light of this unequivocal position, which took
no issue
with the adequacy or accuracy of the reasons furnished by the Chief
Justice, that all the material necessary for the adjudication
of the
matter it described as ‘ripe for determination’ was
before the court a quo. It seems nothing like a legitimate
endeavour
to obtain knowledge of the reasons founding the impugned
recommendations and smacks of the ‘fishing excursion’
against which the court cautioned in
Johannesburg
City Council.
HSF’s
own stance makes clear that the deliberations are not required for
the proper determination of the review.
[36]
It is not in any event clear what value would be added by the
preliminary views of members. What they state during the
deliberations
is not necessarily an indication of the basis on which
they ultimately decide each matter, as their initial views
may
well have changed from persuasion by the others by the time of
voting. Moreover, the voting process itself poses another hurdle
as
its secrecy would make it impossible to attach any views expressed in
the deliberations to a particular member. The reasons
provided by the
Chief Justice clearly allow an objective determination of the
considerations that were probably operative in the
minds of the JSC
members when they made the recommendations. There is no conflict
between the JSC’s procedures and rule 53.
If the reasons were
considered inadequate, which was not HSF’s case, as already
stated, nothing would preclude HSF from seeking
reasons from each of
the JSC members anonymously in the manner suggested by this court in
Cape
Bar Council.
The recording of the actual deliberations is therefore irrelevant for
purposes of rule 53.
[37]
This finding is strongly supported by comparative international
practice of various jurisdictions including the USA, Australia
(which
has no judicial appointments commission at all), Canada, the United
Kingdom and other Commonwealth jurisdictions, which
is
comprehensively discussed in the court a quo’s judgment. Even
in jurisdictions that provide little or no confidentiality
protections for applicants in deference to open justice and
accountability, the courts and academic writers have recognized the
justification for confidential deliberations similar to what has been
advanced by the JSC.
[45]
Final deliberations and votes of the commissioners are afforded
extensive confidentiality and the universal purpose therefor is
to
encourage free and frank discussion of the applicants’
qualifications by the commissioners and the other reasons given
by
the JSC
.
[38]
As the court a quo correctly observed, employing a body such as the
JSC to conduct judicial selection in itself represents
international
best practice. Interestingly, the JSC’s processes are by far
more open than those of its international counterparts,
to the extent
that its openness has sometimes been slated. In 2013, the
Commonwealth Lawyers Association, the Commonwealth Legal
Education
Association and the Commonwealth Magistrates’ and Judges’
Association, in a paper titled ‘Judicial
appointments
commissions: A model clause for constitutions’, developed a
model constitutional clause for judicial appointment
commissions.
[46]
The paper contains the following observation on the clause in
recommending that judicial appointment commissions should be able
to
determine their own procedure (at 12-13):
[47]
‘
It
is important that the selection process is seen to be transparent in
the processes it uses to assess the qualifications of candidates
for
appointments. In some countries, such as South Africa the
deliberations are through public hearings. We do not recommend that,
because reports have shown that although candidates are prepared to
put themselves through an open and fair process, they are less
willing to share their candidature, and any lack of success, with the
public at large. Whatever the method, there should be an
established,
public system for the assessment of qualifications of candidates.’
[39]
To sum up: A decision-maker’s deliberations do not
automatically form part of the record of the proceedings as
contemplated
in rule 53. The extent of the record must depend upon
the facts of each case. In certain cases the decision-maker may be
required
to produce a full record of proceedings which includes its
deliberations. But there may be cases, such as this one, where
confidentiality
considerations may warrant non-disclosure of
deliberations for the reasons set out above. I agree with the court a
quo that the
JSC is set apart from other administrative bodies by its
unique features which provide sufficient safeguards against arbitrary
and irrational decisions. The relief sought by HSF would undermine
its constitutional and legislative imperatives by, inter alia,
stifling the rigour and candour of the deliberations, deterring
potential applicants, harming the dignity and privacy of candidates
who applied with the expectation of confidentiality of the
deliberations and generally hamper effective judicial selection.
[40]
The appeal must therefore fail. The JSC did not seek a costs order in
the event of its success and my view is that this stance
is correct
in light of the
Biowatch
principle.
[48]
[41]
The appeal is accordingly dismissed with no order as to costs.
___________________________
M
M L Maya
Deputy
President
APPEARANCES:
For the
Appellant:
D Unterhalter
SC
(with M du Plessis and ML Dandadzi)
Instructed
by:
Webber
Wentzel, Johannesburg
Symington & De Kok,
Bloemfontein
For the
Respondent:
AL Platt SC (with N Pakoe)
Instructed
by:
State
Attorney, Cape Town
For
First
Amicus
Curiae
:
V Ngalwana
SC
(with N Ali)
Instructed by:
Marais Muller
Hendricks
Inc, Cape Town
For
Fourth
Amicus
Curiae
F Moosa
Instructed by:
Fareed Moosa Attorneys, Cape Town
Webbers, Bloemfontein
[1]
In terms of this
provision, the President must appoint judges (other than judges of
the Constitutional Court (s 174(4)) and the
President and the Deputy
President of the Supreme Court of Appeal (s 174( 3)) on the advice
of the JSC.
[2]
Uniform
rule 53 governs the procedure to be followed in review proceedings
before the high court and has been quoted in relevant
part in para
12 below.
[3]
Founded in
1993 to honour the life work of the late Helen Suzman, HSF is
a non-governmental organisation whose objectives
include inter alia
‘to defend the values that underpin our liberal constitutional
democracy and to promote respect for
human rights,’ thus
litigating in this matter within the generously wide
locus
standi
in
judicio
provisions
of s 38 of the Constitution. For more on HSF see its website at
http://hsf.org.za/about-us
.
[4]
The President, acting on
the JSC’s recommendations, appointed Judges Judith Innes
Cloete, Babalwa Pearl Mantame, Mokgoatji
Josiah Dolamo, Owen Lloyd
Rogers and Ashton Schippers as judges of the Western Cape Division
of the High Court, and did not appoint
Ms Nonkosi Saba and Messrs
Jeremy John Gauntlett and Stephen John Koen.
[5]
Uniform
rule 30A deals with non-compliance with the Uniform rules or a
request made pursuant to them and provides:
‘
(1)
Where a party fails to comply with these rules or with a request
made or notice given pursuant thereto, any other
party may notify
the defaulting party that he or she intends, after the lapse of 10
days, to apply for an order that such rule,
notice or request be
complied with or that the claim or defence be struck out.
(2)
Failing compliance within 10 days, application may on notice be made
to the court and the court may make
such order
thereon as to it seems meet.’
[6]
The principle of ‘equality
of arms’ is an integral part of the rights to fair trial and
access to court as well as
the due process of the law in civil,
criminal and administrative proceedings. Strict compliance with the
principle is required
at all stages of the proceedings in order to
afford opposing parties (especially the weaker party) a reasonable
opportunity to
present their case under conditions of equality. It
is a principle that was jurisprudentially developed by the European
Court
of Human Rights but has since been referred to with approval
by the Constitutional Court in, inter alia,
Bernstein
& others v Bester & others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) fn 154;
Zondi
v MEC for Traditional and Local Government Affairs & others
[2004] ZACC 19
;
2005 (3) SA 589
(CC) para 63; and
Shilubana
& others v Nwamitwa (National Movement of Rural Women and
Commission of Gender Equality as Amici Curiae)
[2007] ZACC 14
;
2007 (5) SA 650
(CC) para 21. See also Pieter van
Dijk & Godefridus J H Hoof
Theory
and practice of the European Convention on Human Rights
3
ed (1998) 430. Further see Jason Brickhill & Adrian Friedman
‘Access to courts’ in Stuart Woolman & Michael
Bishop (eds)
Constitutional
Law of South Africa
2
ed (Revision Service 6, 2014) at OS 11-07, 59-73.
[7]
For example,
Comair
Limited v The Minister of Public Enterprises & others
2014
(5) SA 608
(GP);
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO & others
1999
(2) SA 599
(T);
Cape
Town City v South African National Roads Authority & others
[2015] ZASCA 58; 2015
(3) SA 386 (SCA).
[8]
Within the meaning of s 239
(b)
read with s 195(1) and (2)
(b)
and also s 41 of the
Constitution which require the administration of organs of State
including within all spheres of government
to be governed by certain
democratic values and principles enshrined in the Constitution which
include, inter alia, to be transparent
and accountable. See also
South African
Broadcasting Corporation SOC Ltd & others v Democratic Alliance
& others
[2015]
ZASCA 156
;
2016 (2) SA 522
(SCA) paras 2 and 44;
Judicial
Service Commission & another v Cape Bar Council & another
[2012] ZASCA
115
;
2013 (1) SA 170
(SCA) paras 46-47.
[9]
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993
(1) SA 649
(A) at 661H-I and 662G-H
;
Cape Town City v South
African National Roads Authority & others
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA) para 36
.
See also D E van Loggerenberg & E Bertelsmann
Erasmus:
Superior Court practice
(
Original Service,
2015) at D1-700; Derek Harms
Civil
Procedure in the Superior Courts
(2016) para B53.8; Andries Charl Cilliers, Cheryl Loots &
Hendrick Christoffel Nel
Herbstein
and Van Winsen: Civil Practice of the High Court and the Supreme
Court of Appeal of South Africa
5 ed (2009) at 40-1291.
[10]
Jockey
Club of SA v Forbes
(above
) at 660D-F;
SACCAWU
& others v President Industrial Tribunal & another
[2000] ZASCA 74
;
2001
(2) SA 277
(SCA) para 7.
[11]
See for example,
Johannesburg
City Council v The Administrator Transvaal & another
(1)
1970 (2)
SA 89
(T);
Jockey
Club of SA v Forbes
(above
)
at
660E fn 7;
Lawyers
for Human Rights v Rules Board for Courts of Law & another
[2012]
3 All SA 153
(GNP) para 23;
Heatherdale
Farms (Pty) Ltd & others v Deputy Minister of Agriculture &
another
1980 (3) SA 476
(T) at 480B-C.
[12]
Democratic Alliance &
others v Acting National Director of Public Prosecutions
[2012]
ZASCA 15
;
2012 (3) SA 486
(SCA) para 37.
[13]
Jockey
Club of SA
v
Forbes
(above
)
at
660F;
Muller
& another v The Master & others
1991 (2) SA 217
(N) at 220E;
Ekuphumleni
Resort (Pty) Ltd v Gambling and Betting Board, Eastern Cape
2010
(1) SA 228
(E) para 9. See also
Comair
Ltd v Minister for Public Enterprises & others
2014
(5) SA 608
(GP)
.
[14]
Johannesburg
City Council v The Administrator Transvaal
(above)
.
[15]
MEC for Roads and
Public Works, Eastern Cape & another Intertrade Two (Pty) Ltd
[2006] ZASCA 33
;
2006
(5) SA 1
(SCA) para 15.
[16]
Afrisun Mpumalanga (Pty) Ltd
v Kunene NO & others
1999
(2) SA 599
(T)
at
631J-632C . See also
Ekuphumleni
(Pty) Ltd v Resort Gambling and Betting Board, Eastern Cape
(above).
[17]
Comair Ltd v Minister
for Public Enterprises
(above)
para 39.
[18]
Comair Ltd v Minister for
Public Enterprises
(above) paras 43-61 and 109. See also
S
v Naicker & another
1965
(2) SA 919
(N);
Van
der Linde v
Calitz
1967
(2) SA 239
(A) at 260;
Crown
Cork & Seal Co Inc & another v Rheem South Africa (Pty) Ltd
& others
1980
(3) SA 1093
(W) at 1099B-1091C.
[19]
Cape Town City v South
African National Roads Authority & others
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA) paras 2, 35-38 and 45-47.
[20]
Cape Town City v SANRAL
(above) para 13. See
Shinga v The State &
another (Society of Advocates, Pietermaritzburg Bar as Amicus
Curiae); O’Connell & others v
The State
[2007]
ZACC 3
;
2007 (4) SA 611
(CC) para 26;
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa
& another
[2008]
ZACC 6
;
2008 (5) SA 31
(CC);
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions & others
[2006]
ZACC 15; 2007 (1) SA 523 (CC).
[21]
Paragraph 37.
[22]
Swartbooi & others v
Brink & others
[2003] ZACC 25
;
2006 (1) SA 203
(CC) para 12.
[23]
Paragraph 21.
[24]
The law-making deliberative
process by elected members of legislative bodies is a uniquely
placed one in that it entails the public’s
democratic right to
direct public involvement and participation and indirect
participation through the elected members which
necessitates the
greatest public access. See ss 59, 72, 118 and 160(7) of the
Constitution. See also
Primedia
Broadcasting (a division of Primedia (Pty) Ltd) & others v
Speaker of the National Assembly & other
[2016] ZASCA 142.
Compare also, in this regard, the open
deliberative process of the National Assembly and public
broadcasting thereof in nominating
and recommending candidates for
appointment as Public Protector (and see
SABC
v DA
[2015] ZASCA
156
;
2016 (2) SA 522
(SCA) para 30).
[25]
In s 178 of
the Constitution which reads in relevant part:
‘
Judicial
Service Commission
(1)
There is a Judicial Service Commission consisting of–
(a)
the
Chief Justice, who presides at meetings of the Commission;
(b)
the
President of the Supreme Court of Appeal;
(c)
one
Judge President designated by the Judges President;
(d)
the
Cabinet member responsible for the administration of justice, or an
alternate designated by that Cabinet member;
(e)
two
practising advocates nominated from within the advocates’
profession to represent the profession as a whole, and appointed
by
the President;
(f)
two
practising attorneys nominated from within the attorneys’
profession to represent the profession as a whole, and appointed
by
the President;
(g)
one
teacher of law designated by teachers of law at South African
universities;
(h)
six
persons designated by the National Assembly from among its members,
at least three of whom must be members of opposition parties
represented in the assembly;
(i)
four
permanent delegates to the National Council of Provinces designated
together by the Council with a supporting vote of at
least six
provinces;
(j)
four
persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in
the
National Assembly; and
(k)
when
considering matters relating to a specific Division of the High
Court of South Africa, the Judge President of that Division
and the
Premier of the province concerned, or an alternate designated by
each of them.’
[26]
The JSC is one of three
constitutionally created and empowered organs of State which
especially have the power to determine their
own procedures. The
others are courts with inherent jurisdiction (s 173) and the
legislatures in different spheres of government
(ss 57, 70, 116 and
160(6)).
[27]
Procedure
of Commission GN R114 published in
GG
16952
of 2 February 1996, as amended by GN R795 of
GG
18059 of 13 June 1997, GN R402 of
GG
23277
of 5 April 2002 and
GG
24596 of 27 March 2003.
[28]
Section
174(4) and (6) of the Constitution as well as regs 2 and 3
respectively set out distinct procedures for the appointment
of
Constitutional Court judges as opposed to the appointment of other
judges of the superior courts.
[29]
See, with regard to powers
sourced directly from the Constitution and complemented through
further subsidiary powers in national
legislation,
SABC
v DA
(above) paras
42-43. See also
Trustco
Group International (Pty) Ltd v Vodacom (Pty) Ltd & another
[2016] ZASCA 56
para 14.
[30]
Section
32(1)(
a
)
of the Constitution affords everyone ‘the right of access to
information held by the state’.
Section
32(2) of the Constitution provides that national legislation must be
enacted to give effect to the right to everyone’s
right to
access information and the long title of PAIA provides that that
Act’s purpose is: ‘To give effect to the
constitutional
right of access to any information held by the State and any
information that is held by another person and that
is required for
the exercise or protection of any rights; and to provide for matters
connected therewith.’ See also s 9
of PAIA setting out the
objectives of that Act.
31
Section
1(
gg
)
of PAJA defines ‘administrative action’ and excludes ‘a
decision relating to any aspect regarding the nomination,
selection
or appointment of a judicial officer or any other person, by the
Judicial Service Commission in terms of any law’
from review
under that Act.
[32]
See
Cape
Town City v SANRAL
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA) para 46, in the comparable context
of the numerous limits imposed on the dissemination of material
discovered, where this
court pointed out that for the question of
disclosure of such material it is impermissible to lay blanket
rules, but instead
that every case must be determined on its own
merits and that the court exercises a discretion in the careful
evaluation of what
is at stake on both sides.
[33]
JSC
v Cape Bar Council
[2012]
ZASCA 115; 2013 (1) SA 170 (SCA).
[34]
Paragraph 50.
[35]
Paragraph 51.
[36]
Mail & Guardian v
Judicial Service Commission
[2010]
1 All SA 148
;
2010 (6) BCLR 615
(GSJ). See also
eTV
(Pty) Ltd & others v Judicial Service Commission & others
2010
(1) SA 537 (GSJ).
[37]
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) & others
[2004]
ZACC 10
;
2005 (3) SA 280
(CC) para 21. See also,
Gaertner
& others v Minister of Finance & others
[2013]
ZACC 38
;
2014 (1) SA 442
(CC) para 49;
Bernstein
& others v Bester & others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) para 85.
[38]
Which enjoins
the interpretation of legislation that promotes the spirit, purport
and objects of the Bill of Rights.
[39]
The
provisions read:
‘
36
Limitation of rights
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account
all
relevant factors, including–
(a)
the nature of
the right;
(b)
the
importance of the purpose of the limitation;
(c)
the nature
and extent of the limitation;
(d)
the relation
between the limitation and its purpose; and
(e)
less
restrictive means to achieve the purpose.’
[40]
Hon Chief
Justice I Mohamed ‘
The
role of the judiciary in a constitutional State’
(1998)
115 SALJ 111
at 112.
[41]
Morné
Olivier &
Cora
Hoexter
‘The Judicial Service Commission’ in
Cora
Hoexter
& Morné Olivier (contributing eds)
The
Judiciary in South Africa
(2014)
at 176.
[42]
Babcock v Canada (Attorney
General)
2002
SCC 57
;
[2002] 3 SCR 3
para 40.
[43]
Conway v Rimmer
[1968] UKHL 2
;
[1968] AC 910
at 952. See also
Carey
v Ontario
[1986]
2 SCR 637
paras 50-51.
[44]
Olivier & Hoexter op
cit at 174-188. See also Tabeth Masengu ‘
Gender
transformation as a means of enhancing perceptions of impartiality
on the bench
’
(2016) 133
SALJ
475
at 485-490; Mateenah Hunter, Tim Fish Hodgson & Catharine
Thorpe ‘
Women
are not a proxy: Why the Constitution requires feminist judges
’
(2015) 31
SAJHR
579
at 596-604.
[45]
See, for
example,
Public
Citizen v Department of Justice
[1989] USSC 125
;
491 US 440
(1989);
Lambert
v Barsky
N.Y. Supr.,
91 Misc.2d 443
; 398 N.Y.S.2d 84 (1977);
Justice
Coalition v First District Court of Appeal Judicial Nominating
Commission
823 So. 2d; 823
So.2d 185 (Fla. Dist. Ct. App. 2002);
Guy
v Judicial Nominating Commission
659 A.2d 777
(Del. Super. 1995);
Guardian
News and Media Limited v IC (Freedom of Information Act 2000
)
[2009] UKIT EA_2008_0084
(10 June 2009);
Judicial
Appointments Commission (Decision Notice
)
[2009] UKICO FS50242843 (24 August 2009); Ontario Judicial
Appointments Advisory Committee
Annual
Report for 2012
(2013) at 9, available at
www.ontariocourts.ca/ocj/files/open/JAAC-2012-Ann-Rep.pdf
,
accessed 23 October 2016; Marla N Greenstein & Kathleen M
Sampson
Handbook
for judicial nominating commissioners
2 ed (2004) at 24; Rachel Davis & George Williams ‘Reform
of the judicial appointments process: Gender and the bench
of the
High Court of Australia’ (2003) 27
Melbourne
University LR
819 at 863; Simon Evans & John Williams ‘Appointing
Australian judges: A new model’ (2008) 30
Sydney
LR
295.
[46]
Karen Brewer, James
Dingemans & Peter Slinn
Judicial
appointments commissions: A model clause for constitutions
(2013), available for download on the CMJA website at
http://www.cmja.org/archivednews2013-2014.htm
,
accessed 23 October 2016.
[47]
The recommended clause provides
the following:
‘
(15)
The Commission shall be responsible for the establishment of its own
procedural rules and regulations which should include
provision for
the conduct of meetings, where necessary, by video or other
teleconferencing means and for the transparency of
selection
processes.’
[48]
Biowatch
Trust v Registrar, Genetic Resources & others
[2009] ZACC
14
;
2009 (6) SA 232
(CC).