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[2018] ZACC 8
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Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) (24 April 2018)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 289/16
In the matter between:
HELEN SUZMAN
FOUNDATION
Applicant
and
JUDICIAL SERVICE
COMMISSION
Respondent
and
THE TRUSTEES FOR THE TIME BEING
OF THE BASIC RIGHTS FOUNDATION
OF SOUTH
AFRICA
Amicus Curiae
Neutral citation:
Helen Suzman Foundation v Judicial Service Commission
[20
18]
Z
ACC 8
Coram:
Zondo DCJ,
Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J,
Theron J and Zondi AJ
Judgments:
Madlanga J (majority): [1] to [83]
Jafta J (dissenting): [84] to [154]
Kollapen AJ (dissenting): [155] to [214]
Heard on:
31 August 2017
Decided on:
24 April 2018
ORDER
On appeal from the Supreme Court of
Appeal (hearing an appeal from the High Court of South Africa,
Western Cape Division, Cape Town),
the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the High Court of South Africa, Western Cape Division,
Cape Town
(High Court) and the Supreme Court of Appeal are set aside
and substituted with the following:
“The
respondent is ordered to comply with rule 53(1)(b) of the Uniform
Rules of Court and to deliver the full recording of
the proceedings
sought to be reviewed in the main application, including the audio
recording and any transcript of the deliberations
of the JSC after
the interviews on 17 October 2012.”
4.
The respondent is to pay the applicant’s costs, including the
costs of
two counsel, in this Court, the Supreme Court of Appeal and
High Court.
JUDGMENT
MADLANGA J
(Zondo DCJ, Cameron J, Froneman J,
Kathree Setiloane AJ, Mhlantla J and Theron J
concurring):
[1]
May the
private deliberations of the Judicial Service Commission (JSC), in
the execution of its mandate to advise the President
on the
appointment of judges, be disclosed under rule 53(1)(b) of the
Uniform Rules of Court as part of the record of its proceedings?
[1]
The High Court of South Africa, Western Cape Division, Cape Town
(High Court) answered the question in the negative.
[2]
On appeal, the Supreme Court of Appeal held that the JSC’s
deliberations are not necessarily excluded from the
record, but that
in the particular circumstances of this case, they should not form
part of the record.
[3]
The Helen Suzman Foundation (HSF) now approaches this Court
seeking leave to appeal against that decision.
Background
[2]
In
October 2012 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.
[4]
This decision followed private deliberations held by the JSC after
the candidates had been interviewed. The HSF approached
the
High Court seeking to have that decision reviewed and set aside on
the grounds that it was unlawful and irrational.
[3]
In
terms of rule 53(1)(b) the JSC was required to file the record of the
“proceedings sought to be corrected or set aside,
together with
such reasons as [it] is by law required or desires to give or make”
with the registrar of the High Court.
The JSC
filed the record in August 2013. This record consisted of:
(a) the reasons for the decision
by the JSC; (b) the
transcripts of the JSC interviews; (c) each candidate’s
application for appointment; (d) comments
on each candidate by
various professional bodies and individuals; and (e) related
research, submissions and correspondence.
The reasons for the
decision were distilled from the deliberations by the Chief Justice.
[4]
The
filed record did not include any minutes, transcripts or other
contemporaneous record of the JSC’s official deliberations.
Two days before the applicant was due to file its supplementary
affidavit, it became aware that the JSC routinely recorded its
deliberations and that the deliberations in question had also been
recorded. It requested the JSC to file a recording of
the
deliberations on the basis that the recording formed part of the rule
53 record. The JSC declined. It adopted the
stance that
“post interview deliberations of the JSC are done in a closed
session for reasons of confidentiality”.
This was a
blanket – and not fact-specific – claim
to confidentiality. The HSF launched an
interlocutory
application to compel the JSC to file a full record of the decision,
including the recording.
[5]
The
High Court dismissed that application on the basis that the HSF was
not entitled to the recording under rule 53. On appeal,
the
Supreme Court of Appeal held that a decision-maker’s
deliberations do not automatically form part of a rule 53
record.
[5]
The extent of the record depends on the facts of the case. It
held that whether or not disclosure was required was—
“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.”
[6]
That Court held that, in some cases, the
decision-maker may be required to produce a “full record”
of proceedings, including
its deliberations. However, there are
cases, such as this one, where confidentiality considerations warrant
non-disclosure
of deliberations. The appeal was dismissed.
[6]
In this
Court, the HSF argues that the judgment of the
Supreme Court of Appeal: undermines procedural
fairness;
curtails the efficacy of rule 53 in a manner
inconsistent with open, transparent decision-making; undermines the
ability of
courts to exercise their power of judicial review; and
encourages selective disclosure by respondents in review
applications.
According to the HSF, the recording is “patently
the most immediate and accurate record of the decision and the
process leading
up to the decision”, and is “indispensable
in determining whether there is a rational connection between the
deliberations,
the decision and the reasons”. The HSF
argues that, without the recording, it is deprived of the procedural
and substantive
safeguards that are the very reason for the existence
of rule 53. It contends that this breaches the requirement
of
equality of arms in section 34 of the Constitution.
[7]
The JSC
argues that there is a distinction in our law between the record that
served before a body and the deliberations of that
body. It
submits that, while a disclosure of deliberations may be required in
some circumstances, this cannot be the norm.
The JSC submits
that there are good reasons for the confidentiality of its
deliberations. These are: the promotion of the
rigour and
candour of deliberations; the encouragement of future applications;
and the protection of the dignity and privacy of
applicants.
Requiring disclosure may have the unintended consequence of
discouraging the JSC from recording its deliberations
in future.
[8]
The
Trustees for the Time Being of the Basic Rights Foundation of South
Africa were admitted as a single
amicus curiae
(friend of the
court) and granted leave to file written submissions, but not to make
oral submissions at the hearing. The
amicus
curiae
argued that: the JSC has the power to regulate its own procedure; in
doing so under regulation 3(k) of the JSC rules of procedure
[7]
(JSC procedure), it has made provision for its deliberations to take
place in private; the implication is that no one is entitled
to what
takes place at the private deliberations; and as there has been no
challenge to the validity of regulation 3(k), this is
fatal to the
HSF’s application.
[9]
This
matter raises two principal issues. They are:
(a)
Do we have jurisdiction and, if we do, must
leave to appeal be
granted?
(b)
Is it legally permissible to exclude a recording
of JSC deliberations
from a rule 53 record?
Jurisdiction and leave to appeal
[10]
The
question whether JSC deliberations must be disclosed as part of the
rule 53 record raises constitutional issues.
It implicates
the right of access to court which – in the context
of civil proceedings – is often
referred to as the
right to a fair trial.
[8]
It concerns the interpretation of the JSC’s constitutional
power to determine its own procedure. That this Court
has
jurisdiction is clear.
[11]
The
question whether and under what circumstances the JSC must divulge a
recording of its post-interview deliberations under rule 53
is
of great import. There are reasonable prospects of success.
Thus it is in the interests of justice that leave to
appeal be
granted.
The content of a rule 53 record
[12]
In
order to decide if it is legally permissible to exclude a recording
of JSC deliberations from a rule 53 record, it is necessary
first to
consider what the existing state of our law is on what a rule 53
record is, and what it contains.
[13]
The
purpose of rule 53 is to “facilitate and regulate applications
for review”.
[9]
The requirement in rule 53(1)(b) that the decision-maker file the
record of decision is primarily intended to operate in
favour of an
applicant in review proceedings. It helps ensure that review
proceedings are not launched in the dark.
[10]
The record enables the applicant and the court fully and properly to
assess the lawfulness of the decision making process.
It
allows an applicant to interrogate the decision and, if necessary, to
amend its notice of motion and supplement its grounds
for review.
[11]
[14]
Our
courts have recognised that rule 53 plays a vital role in enabling a
court to perform its constitutionally entrenched review
function:
“Without the
record a court cannot perform its constitutionally entrenched review
function, with the result that a litigant’s
right in terms of
section 34 of the Constitution to have a justiciable dispute decided
in a fair public hearing before a court
with all the issues being
ventilated, would be infringed.”
[12]
[15]
The
filing of the full record furthers an applicant’s right of
access to court by ensuring both that the court has the relevant
information before it and that there is equality of arms between the
person challenging a decision and the decision-maker.
Equality
of arms requires that parties to the review proceedings must each
have a reasonable opportunity of presenting their case
under
conditions that do not place them at a substantial disadvantage
vis-à-vis
their opponents.
[13]
This requires that “all the parties have identical copies of
the relevant documents on which to draft their affidavits
and that
they and the court have identical papers before them when the matter
comes to court”.
[14]
[16]
In
Turnbull-Jackson
this Court held:
“Undeniably,
a rule 53 record is an invaluable tool in the review process. It
may help: shed light on what happened
and why; give the lie to
unfounded ex post facto (after the fact) justification of the
decision under review; in the
substantiation of as yet not fully
substantiated grounds of review; in giving support to the
decision maker’s stance;
and in the performance of
the reviewing court’s function.”
[15]
[17]
What
forms part of the rule 53 record? The current position in our
law is that – with the exception of privileged
information – the record contains all information
relevant to the impugned decision or proceedings.
[16]
Information is relevant if it throws light on the decision-making
process and the factors that were likely at play in the
mind of the
decision-maker.
[17]
Zeffertt and Paizes make a comment on the exclusion of evidence on
the grounds of privilege. That comment must surely
be of
relevance even to the exclusion of privileged information from a rule
53 record. After all, the content of a rule 53
record is but
evidentiary in nature. The authors say that in the case of
privileged information, the exclusion is based on
the recognition
that the general policy that justice is best served when all relevant
evidence is ventilated may, in some cases,
be outweighed by a
particular policy that requires the suppression of that
evidence.
[18]
The fact that documents contain information of a confidential nature
“does not per se in our law confer on them any
privilege
against disclosure”.
[19]
[18]
Specifically
coming to a decision-maker’s deliberations, historically they
have not formed part of the rule 53 record.
This was based on
this dictum in
Johannesburg City Council
:
“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.”
[20]
(Emphasis added.)
[19]
Recently
our courts have begun to diverge from this position. In what I
consider to be a positive development, they
place emphasis on the
fact that deliberations are relevant to the enquiry as to what it is
that informed the decision.
HC SANRAL
tells us
that—
“any record
of the deliberations by the decision-maker would be relevant and
susceptible to inclusion in the record. .
. . The content
of such deliberations can often be the clearest indication of what
the decision-maker took into account and
what it left out of
account. I cannot conceive of anything more relevant than the
content of a written record of such deliberations,
if it exists, in a
review predicated on the provisions of section 6(2)(e)(iii) of
[the Promotion of Administrative Justice
Act], that is that
impugned decision was taken because irrelevant considerations were
taken into account or relevant considerations
were not considered.”
[21]
To state the obvious, “[t]he fact
that the deliberations may in a given case occur privately does not
detract from their relevance
as evidence of the matters considered in
arriving at the impugned decision”.
[22]
[20]
However,
the statement in
Johannesburg City Council
has recently been
endorsed by the Supreme Court of Appeal in
Intertrade
.
[23]
But in the present matter, the Supreme Court of Appeal held that the
statement in
Johannesburg City Council
that
deliberations never form part of the record should be qualified.
It held that deliberations are not necessarily excluded
from the
record but that in some circumstances considerations of
confidentiality will justify their exclusion.
[24]
[21]
It is
helpful to consider this question in two stages: first, whether
deliberations in general ought to be excluded from rule 53
records;
and second, whether JSC deliberations in particular ought to be
excluded.
[22]
The
general exclusion of deliberations as a class of information from
rule 53 records in accordance with the
Johannesburg City
Council
principle seems to be somewhat arbitrary.
Irrelevance and privilege are the usual grounds for excluding
information from
the record. It cannot be that deliberations,
as a class of information, are generally: (a) irrelevant for purposes
of assisting
an applicant in pleading and presenting her or his case;
or (b) subject to some form of privilege. Further, I cannot
conceive
of any policy or public interest reasons for excluding
deliberations from the record in general. In the specific
example
given in
Johannesburg City Council
, of a judicial
officer’s court book, the notes contained in it certainly do
meet the test for being part of the record.
[25]
That is, the notes are relevant to the judicial officer’s
decision. Whatever the basis for exclusion may be,
it is surely
not because the notes are not relevant to the decision. Reasons
that have been proffered for the exclusion are
based on the existence
of strong policy considerations that justify exclusion. They
are not based on generalised notions
of confidentiality. It
cannot be that these strong policy considerations necessarily exist
in respect of the deliberations
of all decision makers.
That said, the exclusion under this example is not before us for
decision. Therefore,
I need not pronounce definitively on it.
[23]
Surely,
deliberations are relevant to the decision they precede and to which
they relate. Indeed,
HC SANRAL
correctly says so.
[26]
They may well provide evidence of reviewable irregularities in the
process, such as bias, ulterior purpose, bad faith, the
consideration
of irrelevant factors, a failure to consider relevant factors, and
the like.
[27]
Absent disclosure, these irregularities would remain hidden.
Deliberations are the most immediate and accurate record
of the
process leading up to the decision.
[24]
If
this is true of deliberations in general, it must surely be true of
JSC deliberations as well. The JSC’s own practice
of
distilling reasons for a decision from the deliberations is
indication enough that JSC deliberations are of relevance to the
decisions. They clearly bear on the lawfulness, rationality and
procedural fairness of the decisions. The question
is whether
there is some legally cognisable basis that they must nonetheless be
excluded from a rule 53 record. I deal with
that question
later.
[25]
The
JSC submitted that relevance should be determined with reference to
the pleaded case. I do not agree. Rule 53 envisages
the
possibility of a review applicant supplementing the papers, including
the very cause of action, upon being furnished with the
record.
[28]
That much is plain from the fact that an applicant may supplement not
only the affidavits, but also the notice of motion.
That means
an applicant may add to or subtract from the grounds of review.
[29]
Then, if information could be excluded on the basis of being
irrelevant to the pleaded case, this would negate a substantial
part
of the purpose of the rule 53 record.
[30]
What must be disclosed is information relevant to the impugned
decision. Unsurprisingly, a review applicant may not
have
pleaded certain issues that bolster her or his challenge exactly
because she or he was not aware of their existence.
[26]
It is helpful to point out that t
he rule 53
process differs from normal discovery under rule 35 of the Uniform
Rules of Court. Under rule 35
documents are discoverable
if relevant, and relevance is determined with reference to the
pleadings.
So, under the rule 35 discovery
process, asking for information not relevant to the pleaded case
would be a fishing expedition.
Rule 53 reviews are
different. The rule envisages the grounds of review changing
later. So, relevance is assessed as
it relates to the decision
sought to be reviewed, not the case pleaded in the founding
affidavit.
[27]
In
sum, I can think of no reason why deliberations as a class of
information ought generally to be excluded from a rule 53 record.
For me, the question is whether deliberations are relevant, which
they are, and whether – despite their
relevance – there
is some legally cognisable basis
for excluding them from the record. This approach to what a
record for purposes of rule
53 should be better advances a review
applicant’s right of access to court under section 34 of the
Constitution. It
thus respects the injunction in section 39(2)
of the Constitution that courts must interpret statutes in a manner
that promotes
the spirit, purport and objects of the
Bill of Rights.
[31]
Whilst doing so, it also heeds the caution expressed in
Hyundai
that, in seeking to adhere to the section 39(2) injunction, courts
must not strain the language of a statutory instrument.
Here is
how Langa DP expressed the caution:
“Limits must,
however, be placed on the application of this principle. On the
one hand, it is the duty of a judicial
officer to interpret
legislation in conformity with the Constitution so far as this is
reasonably possible. On the other
hand, the Legislature is
under a duty to pass legislation that is reasonably clear and
precise, enabling citizens and officials
to understand what is
expected of them. A balance will often have to be struck as to
how this tension is to be resolved when
considering the
constitutionality of legislation. There will be occasions when
a judicial officer will find that the legislation,
though open to a
meaning which would be unconstitutional, is reasonably capable of
being read ‘in conformity with the Constitution’.
Such
an interpretation should not, however, be unduly strained.”
[32]
[28]
I have
had the pleasure of reading the judgment prepared by my colleague,
Jafta J (second judgment). The second
judgment takes
the view that the word “record” in rule 53 must have
the same meaning regardless of the type of
proceedings sought to be
reviewed. It instances the notes of a judicial officer in court
proceedings. It then says
because these notes do not form part
of the record, deliberations in administrative proceedings should
likewise also not form part
of the record; the word “record”
should not be assigned different meanings depending on the function
performed.
I understand the reasoning to be grounded on the
fact that what the second judgment is comparing is information
of a particular
type.
[29]
To my
mind this begs the question. One must first establish the
reason for the exclusion of a judicial officer’s notes
from the
record for one to be able appropriately to use this as a basis for
the exclusion of all comparable information in administrative
proceedings. That reason may not necessarily apply to other
instances. As to what that reason is and – for
that matter – whether a judicial officer’s
notes should form part of a rule 53 record is not before us for
decision.
[30]
Also,
reasoning backwards from this example does not provide a principled
basis for ascribing a meaning to “record”
and excluding
all deliberations from a rule 53 record. A simple
illustration will help. Let us consider correspondence
as a
class of information. If relevant, it ordinarily forms part of
the record. However, some correspondence – such
as attorney-client communications – may be privileged
and thus exempt from inclusion in a rule 53 record.
It does not
then follow that, because there is privilege in respect of this type
of correspondence, all correspondence is exempt
from inclusion in a
rule 53 record. In each instance any claim to exemption must be
founded on some legally cognisable basis.
So, within the class
“correspondence”, some correspondence would be included
in the rule 53 record, and some excluded.
Exclusion of JSC deliberations from a
rule 53 record
[31]
The
JSC has argued that its deliberations must be excluded on the basis
of its confidentiality concerns. One cannot make light
of this
argument. If it has merit, it has huge constitutional
implications. That is so because it relates to the very
make-up
of an important and constitutionally created arm of state – the
judiciary – which is the
final arbiter on compliance
with the Constitution. The JSC’s confidentiality concerns
relate to the selection of members
of this arm of state. If
there is something in the fears expressed by the JSC, disclosure may
well seriously hamper this
selection process. And that may
redound to the detriment of the judiciary.
[32]
The
importance of the judiciary in our constitutional democratic project
cannot be overemphasised:
“The
judiciary is essential to the maintenance of constitutional
democracy. By exercising judicial control over governmental
power and keeping it within its constitutional bounds, the judiciary
is able to hold the legislature and executive to account in
the
courts and thus secure the rule of law and the protection of human
rights.”
[33]
[33]
For
the judiciary to continue to fulfil these important functions, it is
of pivotal importance that it continues to be a strong
institution
which carries public confidence and support:
“Unlike
Parliament or the executive, the court does not have the power of the
purse or the army or the police to execute its
will. The
superior courts and the Constitutional Court do not have a
single soldier. They would be impotent to
protect the
Constitution if the agencies of the state which control the mighty
physical and financial resources of the state refused
to command
those resources to enforce the orders of the courts. The courts
could be reduced to paper tigers with a ferocious
capacity to roar
and to snarl but no teeth to bite and no sinews to execute what may
then become a piece of sterile scholarship.
Its ultimate power
must therefore rest on the esteem in which the judiciary is held
within the psyche and soul of a nation. That
esteem must
substantially depend on its independence and integrity.”
[34]
[34]
This
strength relies, in no small measure, on ensuring that our judicial
appointment processes are able to attract and result in
the selection
of the best possible candidates to serve as judges. If we are
to have a strong judiciary which enjoys public
confidence and is
capable of fulfilling its constitutionally mandated role, of course
judges who – in accordance
with the provisions of
section 174(1) and (2) of the Constitution – are best
placed to fulfil this mandate must
be appointed. The JSC argues
that disclosure of its deliberations would impede the selection
process. If there is merit
in this claim, this would have
serious consequences for the judiciary and, consequently, our
constitutional democracy as a whole.
The question is whether
disclosure would indeed weaken the selection process. Put
differently, is there merit in the JSC’s
confidentiality
concerns?
[35]
The
JSC contends that the need for confidentiality has two aspects.
The first concerns members of the JSC themselves.
The
confidentiality of JSC deliberations promotes effective judicial
selection by ensuring the candour and robustness of future
deliberations. The second aspect concerns the interests of
candidates. If the content of deliberations and thus the
views
held by commissioners about candidates could be divulged, that might
be a dampener to future applications. Confidentiality
of the
content of deliberations promotes the privacy and dignity of
candidates. Thus this implicates fundamental rights.
[36]
In
order to assess the impact of the disclosure of deliberations on the
selection process properly, it is worth having a close look
at who
make up the JSC. Some become members of the JSC by virtue of
the office they hold. These are the Chief Justice,
[35]
the President of the Supreme Court of Appeal,
[36]
the Cabinet member responsible for the administration of justice,
[37]
and – when the JSC is considering matters relating to
a specific division of the High Court – the
Judge
President of that division and the Premier of the province
concerned.
[38]
The remaining members are nominated, designated or elected by a
variety of bodies and the President. They are: one
Judge
President designated by the Judges President;
[39]
two practising advocates nominated from within the advocates’
profession;
[40]
two practising attorneys nominated from within the attorneys’
profession;
[41]
one teacher of law designated by teachers of law at South African
universities;
[42]
six persons designated by the National Assembly from amongst its
members;
[43]
four permanent delegates to the National Council of Provinces with a
supporting vote of at least six provinces;
[44]
four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in
the
National Assembly.
[45]
All those who are nominated – and not designated or
elected – are appointed by the President.
[37]
Since
courts play a crucial role in our constitutional democracy, without
doubt the JSC’s function of recommending appointments
to the
senior judiciary is of singular importance. Bearing in mind the
importance of this function, I do not think it unreasonable
to expect
that those that bear the responsibility of nominating, designating or
electing individuals for membership of the JSC
will take their
responsibility seriously and identify people who are suitably
qualified for the position. Of course, we cannot
be blind to
some bad appointments to a variety of senior positions that we have
witnessed in litigation that has come before the
courts. But
that is not reason enough to make an assumption that the JSC may well
be saddled with bad appointments.
As for those whom the
Constitution has identified for membership by virtue of their office,
I cannot second-guess the framers of
the Constitution in selecting
the relevant offices. If anything and barring individual
shortcomings which – from
time to time – do
manifest themselves even in the highest and most respected of
offices, these offices are eminently
qualified for membership of the
JSC.
[38]
Now,
looking at the composition of the JSC, it seems to me that the JSC’s
concerns regarding the impact of disclosure of deliberations
are
overstated. I do not think it is expecting too much to adopt
the stance that JSC members worth their salt ought to be
in a
position to stand publicly by views they have expressed in private
deliberations. I would find it odd that JSC members
would be
such “timorous fainthearts”
[46]
that they would clam up at the prospect that views they express
during deliberations could be divulged. I readily conceive
of
members being apprehensive at the prospect of disclosure if – during
deliberations – they make
inappropriate comments.
Is that worthy of shielding? I think not. Debating with
candour and robustness does not
equate to the expression of
impropriety. It escapes me why the prospect of disclosure of
deliberations should necessarily
take away candour and robustness
from the debate.
[39]
Another
aspect of the JSC’s confidentiality argument relates to the
privacy and dignity concerns of candidates themselves.
The
argument is that divulging the content of deliberations may bring
into the public domain matter that impugns the dignity and
privacy of
candidates and that this may be a dampener to future applications.
One assumes that, in asserting their points
during deliberations, JSC
members will not – as they shouldn’t – make
unfair or improper
assertions that impugn the dignity or privacy of
candidates. By unfair or improper assertions I mean assertions
that have
no basis on the material canvassed, questions asked or
answers given during the interview. I have already concluded
that
the JSC cannot appropriately expect unfair or improper
assertions made during deliberations to be shielded from disclosure.
[40]
Generally
the most embarrassing issues that could impugn the dignity or privacy
of candidates are raised during interviews.
And the interviews
take place in public and are often widely publicised. It is
this stage that should fill candidates with
dread. These are
applicants who have put themselves forward for an important public
office, and who must expect, and do submit
to, gruelling scrutiny at
the public interview. What follows after the public interview
can hardly be as distressing.
And most observers, who care to,
will most likely draw their own conclusions on embarrassing issues at
the stage of the public
interview. If anything has the
potential of being a dampener to future applications, it must be the
prospect of the gruelling
public scrutiny. That is not what the
JSC’s concerns relate to. How, if it were known by
potential candidates
that the ensuing arguments by JSC members at
their deliberations are normally divulged, that could – to
a
sufficiently significant
extent – be a
dampener to future applications is difficult to comprehend.
[41]
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.
I use “worthy”
advisedly. Candidates who are aware of issues that may
seriously impugn their candidacy are more
likely to fear the exposure
of those issues and the interrogation on them that would most likely
ensue at the public interview
than the later expression of views on
those issues by JSC members in deliberations.
[42]
I am
led to the conclusion that the fears expressed by the JSC do not
entitle it to refuse to disclose recordings of its deliberations.
The second judgment reaches the opposite conclusion. This it
does mainly on two bases. One basis is grounded on exemptions
on disclosure contained in the Promotion of Access to Information
Act
[47]
(PAIA). The other relates to what the second judgment holds was
at the centre of the High Court’s judgment: that
is the
exercise of discretion in terms of rule 30A of the Uniform Rules of
Court.
[48]
I have also had the honour of reading a judgment penned by my
colleague, Kollapen AJ (third judgment). It too disagrees
with
my conclusion based on, amongst others, some provisions of PAIA.
I must next deal with this PAIA point.
The impact of PAIA provisions
[43]
The
second judgment draws attention to the fact that some sections in
PAIA deny the public access to certain types of information.
One example is section 12(d) of PAIA which denies access to
information relating to the JSC’s selection process.
[49]
The second judgment then makes the point that it would be a
subversion of the provisions of PAIA to afford a litigant under
rule
53 that which PAIA does not allow. I disagree.
[44]
PAIA
and rule 53 serve different purposes. Rule 53 helps a review
applicant in the exercise of her or his right of access
to court
under section 34 of the Constitution. On the other hand, in one
instance PAIA affords any person the right of access
to any
information held by the state.
[50]
The person seeking the information need not give any explanation
whatsoever as to why she or he requires the information.
The
person could be the classic busybody who wants access to information
held by the state for the sake of it.
[45]
In the
myriad areas of its operation, the state often comes across, or
enjoins persons to furnish it with, private information.
I
expand on this shortly. The knowledge that the state will not
unhesitatingly give that information to others – including
busybodies who want it for no particular reason – serves
as an incentive to persons readily to cooperate and provide
their
information.
[51]
That facilitates the exercise of powers and performance of functions
by state functionaries. Surely then, if under
PAIA
information – including information truly belonging
to other
private
persons – can be had merely
for the asking, it makes sense that there should be stricter controls
on access than
in the case where – as is the position
under rule 53 – information is required for the
furtherance
of a right. Of course, those controls should not be
such that the right of access to information is denuded of its
essential
content.
[46]
The
difference in the nature of, and purposes served by, the right of
access to information in terms of PAIA, on the one hand, and
the
right to a record under rule 53, on the other, underscore the
reality that it is inapt simply to transpose PAIA proscriptions
on
access to information to the rule 53 scenario. There is a
principled basis for drawing a distinction.
[47]
Take
the example of section 36 of PAIA.
[52]
This section exempts from disclosure confidential commercial
information.
[53]
This type of information is routinely disclosed in civil proceedings
where that is necessary. It would be an oddity
for it to be
suggested that this should not be so. Indeed, confidential
commercial information has been divulged under rule
53. The
modern regulatory state, which collects and holds vast amounts of
information – including confidential
commercial
information – about private businesses for a variety
of purposes “
has an
interest in the protection of confidential information submitted to
it, because third parties may otherwise be unwilling
to
co-operate
”.
[54]
[48]
In
Bridon
confidential commercial information belonging to Bridon
International GMBH (Bridon) had been divulged to an organ of state,
the
International Trade Administration Commission (Commission), to
enable it to exercise its “anti dumping”
investigative
powers in terms of the International Trade
Administration Act.
[55]
Relying on this information, the Commission made a recommendation
that the relevant Minister should take a decision that
would
adversely affect
Casar Drahtseiwerk Saar GMBH
(Casar), Bridon’s competitor. The Minister
decided in accordance with the recommendation. Casar instituted
proceedings in which it sought the review of both the Commission’s
recommendation and the Minister’s decision.
In complying
with rule 53, the Commission refused to disclose Bridon’s
confidential commercial information. This was
on the basis
that, in terms of
Part D of Chapter 4 of the
International Trade Administration Act, the Commission could
divulge the information only with the consent of Bridon. This
stance led to an interlocutory application by Casar that the
Commission be compelled to furnish the information in terms of rule
53. The High Court granted that application subject to a strict
confidentiality regime. An appeal by Bridon to the
Supreme Court of Appeal was unsuccessful.
[49]
Crucially
for present purposes, the effect of what the Supreme Court of Appeal
held – correctly so – was
that
Bridon’s confidential commercial information was subject to
disclosure under rule 53. This it did despite the
existence of
section 36 of PAIA. Of course, the Supreme Court of Appeal
upheld the High Court’s strict confidentiality
regime.
[50]
Does
the fact that
Bridon
turned on the provisions of section 35
of the International Trade Administration Act make a difference?
No. In
terms of this section a court that has found the
information in issue to be confidential has a discretion to make an
order concerning
access to it.
[56]
But in the end in
Bridon
the information was required in terms
of rule 53. That is what the order by the High Court,
which was confirmed by the
Supreme Court of Appeal, sanctioned.
[51]
Lastly,
the second judgment points to absurdities that may arise if
everything relevant to the impugned proceedings were to form
part of
the rule 53 record. It gives the example of “a party that
seeks access to information held in confidence under
an international
agreement or information whose disclosure could reasonably cause harm
to the defence or security of the Republic”.
[57]
The judgment then makes the point that in terms of section 41 of PAIA
the information officer of a public body may refuse
access to
information of this nature.
[52]
Information
that bears no relevance to the subject of review need not form part
of the record. At the same time, not all information
that is
relevant must necessarily form part of the record. There may be
one or other basis of exclusion. As we know,
privileged
information, for example, communications between clients and their
legal representatives, is routinely excluded from
disclosure under
rule 53. The question is: is there some legally cognisable
basis for excluding the relevant information
from the record? A
basis of excluding the information referred to by the second judgment
could, for example, be “public
interest privilege”.
[58]
Based on the learning that
Bridon
deals with extensively,
there is no closed list of what may constitute privilege.
[59]
The test is based—
“
on
a judicial evaluation of the balance between two conflicting public
interests. On the one hand there is the public interest
in
finding the truth in court proceedings. This is to be weighed
up against the countervailing public interest which sometimes
requires that the confidentiality of information be maintained.
”
[60]
[53]
Happily
I need not decide the question whether the type of information
instanced by the second judgment does indeed qualify for
public
interest privilege. The simple point I make is this: the fact
that information that – in terms of
section 41
of PAIA – cannot be accessed by a requester is
relevant for purposes of rule 53 does not of necessity
lead to its
disclosure under this rule. Thus I do not see the absurdity
which – according to the second judgment – follows
inexorably whenever the information in issue is relevant.
[54]
The
third judgment too relies on some PAIA exclusions to bolster the view
that the JSC is entitled not to disclose its deliberations.
I
think my response to the second judgment in this regard has
sufficiently dealt with what the third judgment says.
[55]
To
summarise, the denial of access to information – whether
under sections 12(d), 36, 41 or any other section
of PAIA – does
not necessarily lead to the type of information covered by those
sections being exempt from disclosure
under rule 53.
Is there a legislative or
constitutional bar to disclosure?
[56]
The
JSC also argued that – read together – section 178(6)
of the Constitution, section 38
of the Judicial Service
Commission Act
[61]
(JSC Act) and regulation 3(k) of the JSC procedure determined by
the JSC, create a bar to disclosure. The JSC is established
in
terms of section 178 of the Constitution. Section 178(6)
empowers the JSC to determine its own procedure.
[62]
Under this power, the JSC has determined rules of procedure.
[63]
The rules have been promulgated as regulations in terms of section 35
of the JSC Act. These regulations are what I defined
as the JSC
procedure above. Regulation 3(k) provides that “[a]fter
completion of the interviews, the Judicial Service
Commission shall
deliberate in private and shall, if deemed appropriate, select the
candidate for appointment by consensus or,
if necessary, majority
vote”.
[57]
Section
38(1) of the JSC Act provides:
“No person,
including any 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.”
[58]
The
power in section 178(6) – which is couched in broad
terms – does not mean the JSC may determine
procedures that are at odds with the Constitution. It cannot be
otherwise because a determination of procedure by the JSC
that is at
variance with any constitutional provision would be an infringement
of the supremacy clause which prescribes that “law
or conduct
inconsistent with [the Constitution] is invalid”.
[64]
Of relevance for present purposes is the right of access to court
contained in section 34 of the Constitution. It is
axiomatic
that this is the right sought to be advanced by rule 53. As we
have seen from
Democratic Alliance
, without a record, a court
cannot perform its review function properly.
[65]
And that constitutes an infringement of the right of access to
court. This must also be true of a truncated record;
the JSC
record from which a recording of the deliberations has been excised
answers that description.
[59]
In
addition, there is a real risk of a review applicant’s right
under section 34 being infringed when she or he has been
denied
access to material that might have assisted her or his case.
The unfairness lies in the fact that the applicant may
have been
hampered in the formulation and prosecution of her or his case.
Put differently, she or he may have been prevented
from making the
best possible case. It matters not that – in
the end – the recording of the
deliberations may have
proved to be useless to the applicant’s case. The
pronouncement by Brand JA in
Bridon
is apt:
“The
Commission expressly stated that it had relied on Bridon’s
confidential information in arriving at the decision
which Casar
seeks to challenge in the main application. It follows that,
without knowing the basis for the decision, Casar
will have to mount
that challenge in the dark against an opponent with perfect night
vision, in that it knows exactly what information
it had considered.
For example, Casar will hardly be able to contend that the decision
was irrational; that irrelevant considerations
were taken into
account; or that the decision was taken arbitrarily or capriciously.
These, of course, would all constitute
legitimate grounds for review
under
section 6
of the
Promotion of Administrative Justice Act 3 of
2000
. What is more, it is not only the confidential information
actually relied upon by the Commission that may potentially be
material. Disclosure of Bridon’s confidential information
that was available to the Commission may show that it had
failed to
have regard to relevant considerations, which is another review
ground contemplated in
section 6(2)(e)
of PAJA.”
[66]
[60]
Coming
to
regulation 3(k)
of the JSC procedure, if it is to be read to mean
that a recording of the deliberations of the JSC is not subject to
production
under
rule 53
, that would make the regulation
inconsistent with the right of access to court and invalid. In
Hyundai
Langa DP said:
“[J]udicial
officers must prefer interpretations of legislation that fall within
constitutional bounds over those that do
not, provided that such an
interpretation can be reasonably ascribed to the section.”
[67]
[61]
And he
then expressed the word of caution against straining language that I
referred to above.
[62]
Therefore,
if possible, the procedure that has been determined by the JSC in
terms of section 178(6) of the Constitution must
be read in
conformity with the Constitution. This accords with section
39(2) of the Constitution. A reading that keeps
regulation 3(k)
within constitutional bounds is quite possible here. If the
constitutional right of access to court
requires disclosure, I do not
see how a procedure determined by the JSC can alter that. After
all what section 178(6)
authorises is the determination by the
JSC of its procedure, not that of courts.
[63]
Do the
provisions of section 38 of the JSC Act alter the position? I
think not. The section itself actually envisages
disclosure,
but only under the exceptions itemised in (a) to (d).
There is thus no general bar to disclosure.
Crucially, it is
not all information or documents obtained in the performance of
functions in terms of the JSC Act that may
not be disclosed.
The operative word is “confidential”; only confidential
information or documents are hit by
the prohibition. This is a
far cry from the blanket refusal of disclosure that the JSC is
contending for. Surely, confidentiality
must relate to the
nature of the information. Information cannot be confidential
just because the person who would like it
to be regarded as such says
it is.
[68]
Therefore, an
a priori
declaration by the JSC that its
deliberations are to be held in private cannot automatically
transform even the most innocuous,
non sensitive content of
deliberations to confidential information. Confidentiality has
everything to do with the nature
of the information or document
concerned.
[69]
That is why – in my view – section 38
applies even in instances outside of JSC deliberations.
Thus if
the JSC claims that divulging the content of its deliberations will
be hit by the prohibition in section 38, it must first
demonstrate
that the information is of a confidential nature. It has not
done that. It has rather relied on a blanket
non disclosure.
Section 38 cannot be a basis for that stance.
Balancing the competing interests
[64]
The
JSC’s appeal to secrecy in the face of the possible
infringement of a litigant’s fundamental right to a fair trial
raises rule of law concerns. This Court has held that the
foundational values of accountability, responsiveness and openness
find application even outside their original setting of regular
elections found in section 1 of the Constitution.
[70]
This is what it said addressing the need for the openness and
transparency of the processes of courts themselves:
“Courts
should in principle welcome public exposure of their work in the
court room, subject of course to their obligation
to ensure that
proceedings are fair. The foundational constitutional values of
accountability, responsiveness and openness
apply to the functioning
of the judiciary as much as to other branches of government. These
values underpin both the right
to a fair trial and the right to a
public hearing (i.e. the principle of open court rooms). The
public is entitled to
know exactly how the judiciary works and to be
reassured that it always functions within the terms of the law and
according to
time-honoured standards of independence, integrity,
impartiality and fairness.”
[71]
[65]
These
values are of singular importance in South Africa coming – as
we do – from a past where governance
and
administration were shrouded in secrecy.
[72]
If we are truly to emancipate ourselves from that past, all our
democratic constitutional institutions must espouse, promote
and
respect these values. The blanket secrecy that the JSC is
advocating is at odds with this imperative. And this
is
especially so, regard being had to the fact that the JSC’s
claim to secrecy does not bear scrutiny.
[66]
The
secrecy that the JSC is clamouring for might result in negative
public perceptions not only about the JSC itself, but also about
the
very senior judiciary in respect of whose appointment it plays a
vital role.
[67]
Where
a claim to blanket non-disclosure is asserted, the court must engage
in a balancing exercise. An important factor in
weighing-up the
JSC’s interest against that of review applicants in general is
that the JSC is engaged in a particularly
important exercise of
public power, which must be done lawfully and rationally.
Generally the only way to test the legality
of the exercise of this
power completely and thoroughly is to afford an applicant for review
access to
all
material relevant to that exercise of power.
If a public functionary can withhold information relevant to the
decision, there
is always a risk that possible illegalities remain
uncovered and are thus insulated from scrutiny and review. That
is at
variance with the rule of law and our paramount values of
accountability, responsiveness and openness. This affects not
only
the individual litigant, but also the public interest in the
exercise of public power in accordance with the Constitution.
It must, therefore, be in truly deserving and exceptional cases that
absolute non-disclosure should be sanctioned.
[68]
Unsurprisingly, in
Masetlha
Moseneke DCJ writes that
ordinarily courts incline towards disclosure rather than the
opposite. Of course, he says this in
a different context, but
it is relevant. His words are:
“
Ordinarily
courts would look favourably on a claim of a litigant to gain access
to documents or other information reasonably required
to assert or
protect a threatened right or to advance a cause of action. This
is so because courts take seriously the valid
interest of a litigant
to be placed in a position to present its case fully during the
course of litigation. Whilst weighing
meticulously where the
interests of justice lie, courts strive to afford a party a
reasonable opportunity to achieve its purpose
in advancing its case.
After all, an adequate opportunity to prepare and present one’s
case is a time-honoured part
of a litigating party’s right to a
fair trial.
”
[73]
[69]
It is
worth noting that the third judgment accepts that ordinarily the
deliberations of the JSC should form part of a rule 53 record.
But it holds that considerations of confidentiality justify their
exclusion. Based on my conclusion that it is only in truly
deserving and exceptional cases that there must be absolute
non disclosure, I do not agree. Although I cannot make
light of the concerns raised by the JSC, I do not think they reach
the level of being exceptional.
[70]
Where
absolute non-disclosure is not justified, the information at issue
may – in the court’s exercise of
discretion – be disclosed, not disclosed or disclosed
subject to a confidentiality regime. The court will
weigh up
the interests that favour disclosure against the asserted
confidentiality interests. The outcome of that exercise
of
discretion will depend on the circumstances of each case.
[71]
In
this case, it is not possible to order non-disclosure because no
fact-specific basis for non-disclosure has been pleaded.
May
disclosure then be ordered under a confidentiality regime?
Confidentiality regime
[72]
I do
not quite comprehend why the JSC’s concerns cannot be
adequately addressed by a suitably framed confidentiality regime.
The
only
reason given by the third judgment against a
confidentiality regime is that confidentiality regimes are not
foolproof. The
judgment says:
“Even if
access to the deliberations of the JSC are limited to the parties and
their lawyers, the material in the deliberations
is
likely
to
find its way into affidavits and oral submissions made by the
parties.”
[74]
(Emphasis added.)
[73] This is not
true of all confidentiality regimes. Some
can and do
impose very stringent conditions with the result that it becomes
unlikely
that the confidential material may be divulged beyond
the category of people who should rightly have it. An example
is the
one that was formulated in
Bridon
. It limited—
“
access
to the confidential part of the Commission’s record to legal
representatives of the parties in the main application
and one
independent expert appointed by each party to assist in that
application. In addition, these persons w[ould] only
have
access after they ha[d] signed a confidentiality undertaking in the
form dictated by the order. In terms of that undertaking
the
signatory pledge[d] not to divulge the information that he or she
obtained from the record to anybody outside the stipulated
group of
persons, which group
d[id] not include
the parties themselves or any of their employees
.
The order further require[d] that
any pleading, affidavit or argument filed in the main application be
made up in two parts – a
confidential version and a
non confidential version; that all references to confidential
information be expunged from the
non confidential version; and
that access to the confidential version be reserved to permitted
persons and the judge presiding
in the main application
.
”
[75]
(Emphasis added.)
[74]
For
all we know the likely fears of, and potential harm to, JSC members
and candidates appearing before them may be sufficiently
dealt with
by a similarly strict confidentiality regime. The
Bridon
example does not only deny access to the public, it also denies it to
the parties themselves. The few individuals who do
have access
sign a confidentially undertaking not to divulge the information even
to their clients.
[76]
To the extent that the third judgment says the information could be
divulged even in parties’ submissions, it is a
matter of
relative ease for the regime to address that as well. The fact
that – as was done in
Bridon
– something
can workably be done with the content of affidavits illustrates
this. Under these or similar
circumstances, it would be
grabbing at straws for one to continue to suggest that the JSC could
still nurse realistic fears.
At best, the likelihood of
disclosure is minuscule and certainly not warranting the
non-disclosure that the JSC is contending for.
In each
instance, all that would have to be done is to craft a regime with
conditions that are suited to it.
[75]
Although
the third judgment makes a strong case for the JSC’s claim, I
remain unpersuaded that the required protection cannot
be
sufficiently provided by a suitable confidentiality regime.
[76]
In
this case must we then order disclosure subject to a confidentiality
regime? Since no fact-specific claim of confidentiality
was
raised, I do not think it necessary to pronounce on a possible
confidentiality regime.
Refusal of disclosure based on the
facts
[77]
At a
factual level, the third judgment says that the HSF will not suffer
any significant harm as it already has a substantial record;
it will
thus not be forced to launch its review in the dark. It is
worth noting that the third judgment acknowledges that
the JSC’s
deliberations are relevant for purposes of a rule 53 record and that
relevance must be considered in respect of
their connection to the
impugned decision rather than the pleaded case. The unfairness
suffered by a review applicant denied
access to deliberations lies in
the fact that she or he may have been prevented from making the best
possible case. The fact
that a number of other relevant
documents and reasons distilled from the deliberations have been
provided does not detract from
the unfairness of withholding other
relevant information. The information that has been withheld
may provide evidence of
reviewable irregularities that are not
revealed by the other documentation. That is why the rule
requires that
all
relevant documentation must be provided,
unless there is some legally cognisable basis for withholding it.
[78]
Finally,
I next deal with the second basis for the second judgment’s
conclusion.
High Court’s exercise of
discretion
[79]
The
second judgment reasons that the High Court’s decision to
deny the HSF the recording of the JSC’s deliberations
was based
on that Court’s exercise of discretion in terms of rule 30A of
the Uniform Rules of Court.
[77]
The second judgment says, because the High Court’s decision was
based on the exercise of discretion in the true sense,
on appeal its
decision should be liable to be set aside only on the narrowest of
grounds. I have no quarrel with the fact
that in terms of rule
30A(2) there is an exercise of discretion as to what an appropriate
order should be once a court has held – under
rule
30A(1) – that there has been non-compliance with the
rules. As to the antecedent question arising from
rule 30A(1)
whether there has, in fact, been non compliance with the rules,
there is no question of an exercise of discretion.
The court
must determine – as an objective question of fact or
law – whether there has been non-compliance.
On
that question, therefore, a court of appeal makes the simple
determination whether the lower court was right or wrong in its
conclusion on compliance. The discretion under rule 30A(2) does
not feature at all. The second judgment does not draw
this
distinction between what is required of the court first under rule
30A(1) and then under rule 30A(2).
[80]
To
conclude on this aspect, the High Court first had to determine
whether the JSC’s refusal to furnish the HSF with a
copy
of the recording of the deliberations amounted to non-compliance with
rule 53. This did not involve any exercise of
discretion.
On this the High Court held against the HSF. That remains the
issue that we too must determine. On
whether the High Court’s
conclusion falls to be upheld, we cannot be subject to the strictures
applicable to appeals on matters
concerning the exercise of a
discretion in the true sense. The question is a simple one: was
the High Court right or
wrong in its conclusion?
Conclusion
[81]
The
appeal must succeed with costs, including the costs of two counsel.
Condonation
[82]
The
amicus curiae
applied for condonation for the late filing of
its written submissions. The written submissions were served
electronically
on the HSF and the JSC and emailed to the
Registrar’s office on the last day for filing. On the
following day
the correspondent attorneys attempted to file hard
copies of the submissions. These were not accepted as they were
late and
not accompanied by a condonation application. The
written submissions were ultimately filed, together with the
condonation
application, two days later. The delay is minimal.
Given that electronic service was effected on time, there is no
prejudice to the other parties. It is in the interests of
justice that condonation be granted, and it is granted.
Order
[83]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the High Court of South Africa, Western Cape Division,
Cape Town (High Court) and the Supreme Court of Appeal are set aside
and substituted with the following:
“The
respondent is ordered to comply with rule 53(1)(b) of the Uniform
Rules of Court and to deliver the full recording of
the proceedings
sought to be reviewed in the main application, including the audio
recording and any transcript of the deliberations
of the JSC after
the interviews on 17 October 2012.”
4.
The respondent is to pay the applicant’s costs, including the
costs of two counsel, in this Court, the Supreme Court of Appeal and
High Court.
JAFTA J:
[84]
I have
had the benefit of reading the judgment prepared by my colleague
Madlanga J (first judgment). While I agree that
leave to
appeal must be granted, I am unable to support the proposed outcome.
I think the appeal should fail.
[85]
The
conclusion I reach is informed by the approach I take which differs
from the one followed in the first judgment. Shorn
of frills,
this case concerns enforcement of the Uniform Rules of Court.
The dispute relates to whether, after receiving
review papers, the
JSC had complied with rule 53(1)(b) of the Uniform Rules of
Court. The Western Cape Division, a division
of the High Court
to which rule 53 applies, held that there was compliance with it. An
appeal to the Supreme Court of
Appeal was dismissed, hence this
application for leave to appeal.
[86]
Although
the appeal lies against the order of the Supreme Court of Appeal, for
the appeal to succeed, this Court is required to
examine the judgment
of the High Court and reverse its order as well. That is
why the first judgment overturns not only
the order of the Supreme
Court of Appeal but also the order of the High Court. But
we can only set aside the order of
the High Court, if on the
application of the correct test to such decisions, we are convinced
that its conclusion on whether there
was compliance with rule 53
constituted an improper exercise of discretion.
[78]
The rules themselves recognise that the High Court has discretion to
determine whether there was compliance and if there
was
non-compliance, to make an order deemed necessary. Therefore,
with regard to the High Court, the real issue is whether
that Court
exercised its power under rule 30A judicially.
[87]
It
cannot be gainsaid that our courts adopt a flexible approach in
construing and applying the rules. A mechanical application
of
the rules is not encouraged.
[79]
This approach is buttressed by the inherent power each of the courts
listed in section 173 of the Constitution enjoys.
[80]
This provision affirms that the High Court, like this Court and
the Supreme Court of Appeal, has the inherent power
to protect and
regulate its own process. This is the context in which the
appeal must be adjudicated.
Background
[88]
During
October 2012, the JSC as is customary, conducted interviews of
prospective candidates for appointment as Judges. These
interviews were done in order to enable the JSC to fulfil its
constitutional function of recommending to the President, candidates
to be appointed by him as Judges. During that session of
interviews, eight candidates were interviewed for vacancies in the
Western Cape Division of the High Court. Certain candidates
were recommended for appointment and others were not. Shortly
after the recommendation was made public, Justice Harms demanded
reasons for recommending one candidate, who was identified
by name,
instead of another candidate, who was also identified by name.
[81]
Reasons were furnished by the JSC in November 2012.
[89]
Dissatisfied
with those reasons, the HSF instituted a review application in the
High Court, impugning the JSC’s recommendation
on the grounds
of unlawfulness and irrationality. The review was launched in
terms of rule 53 of the Uniform Rules of
Court. Upon
service of the application papers on the JSC, the rule triggered a
duty on the JSC to deliver to the registrar
of the High Court, within
15 days after receipt of the papers, the record of “proceedings
sought to be corrected or set aside”.
[90]
In
August 2013 the JSC delivered to the registrar a record comprising
six lever arch files.
[82]
These files contained full reasons for the impugned recommendation in
respect of each candidate, an application for appointment
by each
candidate, comments of professional bodies and individuals, related
research, submissions, correspondence and transcripts
of an interview
of each candidate by the JSC.
[91]
Reasons
for the recommendation were compiled by the Chief Justice and they
revealed something that was not known to the HSF.
This was that
members of the JSC had private deliberations during which various
views were expressed on each candidate. These
deliberations
were recorded and the Chief Justice distilled the reasons for the
impugned decision from the recording. However,
a copy of the
deliberations was excluded from the record delivered to the
registrar.
[92]
Unhappy
with this exclusion, the HSF addressed a letter to the JSC’s
attorneys, demanding that a copy of the deliberations
be delivered.
The JSC’s attorneys responded by letter, informing the HSF that
the JSC declined the request for a correct
copy of the deliberations
on the ground that such deliberations were confidential. This
was so, the JSC reasoned, to enable
its members to have frank and
robust discussions and “to protect the integrity and dignity of
the candidates without impeding
or undermining the ability of the
commissioners to submit them to robust assessment”. This
response forms part of the
record in this Court.
[93]
The
HSF took the view that those deliberations formed part of the record
which the JSC was obliged to lodge with the registrar and
that its
refusal constituted non compliance with rule 53(1)(b).
High Court proceedings
[94]
In
January 2014 the HSF instituted an interlocutory application in terms
of rules 6(11)
[83]
and 30A
[84]
of the rules. Rule 30A is crucial to the determination of this
appeal. It is the rule in terms of which the HSF sought
relief. Consequently, if the appeal must succeed, this Court
should grant an order which the High Court ought to have given.
The rule provides a general remedy for non-compliance with the
Uniform Rules. But more importantly, the rule confers
a
wide discretion on the court to which a rule 30A application is
made. If that court finds that non-compliance has been
established, it is free to make any order it deems fit.
Notably, the rule does not oblige the court to order compliance.
This rule was introduced in June 1998.
[85]
[95]
The
HSF sought a specific order that directed the JSC “to comply
with the provisions of rule 53(1)(b) of the Uniform Rules
of Court,
namely to dispatch to the registrar, and to notify the applicant that
it has done so . . . the full record of the proceedings
sought to be
reviewed . . . including the audio recording and any transcript of
the deliberations of the respondent, after the
interviews on
17 October 2012”. In its founding affidavit,
the HSF addressed reasons furnished by the JSC
for its refusal to
deliver a copy of deliberations. In disputing that
deliberations were confidential, the HSF averred:
“The
respondent’s disclosure of these ‘considerations’
in the Reasons does not in any way impair the ‘integrity
and
dignity of the candidates’, nor in any way impede or undermine
the ability of the respondent’s members to ‘submit
them
to robust assessment’. The respondent cannot contend that
disclosure of the Recording could cause such impairment
or
impediment, any more than disclosure of the Reasons, without
conceding that the Reasons inaccurately or incompletely capture
the
contents of the Deliberations and thus the record of the Decision.
The unavoidable
conclusion, therefore, is that the ‘rationale’ provided
for the confidentiality of the Recording is
factually unfounded and
that the refusal to lodge the Recording with the Registrar is
likewise factually unfounded.”
[96]
The
HSF continued to allege:
“In the first
place, as a matter of principle, confidentiality is not a valid
ground for refusing to produce documents under
Rule 53. It is
settled that the fact that documents contain information of a
confidential nature does not per se in our law
confer on them any
privilege against disclosure. That is all the more so in a
constitutional democracy, since access to the
full record of the
proceedings is fundamental to the proper ventilation of the review
before the court. The requirement that
there be proper
disclosure of the record under Rule 53 furthers the constitutional
guarantee of just administrative action, as
well the right of access
to any information held by the state and the constitutional
requirement of public administration that
is transparent and
accountable.
Secondly, nothing
in this case permits a departure from that generally established
principle. Section 178(6) of the Constitution
empowers the
respondent to determine its own procedure.
Section 5
of the
Judicial Service Commission Act 9 of 1994
provides for such
procedure, once determined, to be promulgated by the Minister of
Justice. It is notable that neither provision
empowers the
respondent to impose an impenetrable regime of secrecy over its
procedure.”
[97]
The
HSF concluded on the first reason that was advanced in support of
confidentiality:
“The SCA
states that the primary purpose of
rule 53
(in line with the dicta in
Jockey Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A)(‘
Jockey Club
’) and
Cape Town City v South
African National Roads Authority and others
2015 (3) SA 386
(SCA)
(‘SANRAL’)) is to ‘facilitate and regulate
applications for review by granting the aggrieved party seeking
to
review a decision . . . access to the record of the proceedings in
which the decision was made, to place the relevant evidential
material before court.’”
[98]
With
regard to non-compliance with
rule 53
, the HSF stated:
“The [JSC]
has plainly and deliberately not complied with
Rule 53(1)(b)
, its
non compliance suffers from serious procedural and substantive
deficiencies, and there is no basis for such non-compliance
to be
countenanced by this Honourable Court.”
The HSF added that
the JSC’s conduct “is deserving of severe censure by [the
High Court] and a punitive costs order”.
[99]
The
matter was opposed by the JSC. In responding to the allegation
that disclosure of deliberations will not impede a robust
assessment
of candidates, the JSC contended:
“Confidentiality
is important so that the commissioners can have frank discussions
about each candidate amongst themselves,
and also in order to protect
the integrity of the persons who are subject to the scrutiny of the
commissioners. Allowing
for deliberations to be made public,
albeit only in court papers, might lead to a situation where possible
candidates will be wary
of subjecting themselves to a process where
adverse comments about them might become public. On the other
hand, the commissioners
themselves may be stifled and may not express
their views on candidates as robustly as they would otherwise have
done, especially
if those views are negative.”
[100]
With
regard to the averment that keeping deliberations confidential would
protect “the integrity and dignity of candidates”,
the
JSC said:
“All
candidates for judicial offices who have thus far put their names
forward for· consideration by the Respondent
have done so in
the knowledge, and with the comfort, that the deliberations in
respect of their applications will be undertaken
in confidence.
It would be unfair, and potentially damaging to their dignity, for
those deliberations to now be made public.
With regard to what
is stated in paragraph 38, the Applicant misses the point. It is not
being suggested that members of the Respondent
would have ridiculed
or humiliated candidates or otherwise impaired their dignity or
integrity. What is being said is that
the making known of the
frank and honest assessment by members of candidates could well
affect the professional and personal standing
of the latter,
especially where such views relate to aspects like personality,
temperament, diligence and
other
personal
attributes.”
[101]
I
have rendered this detailed factual background because, as I see it,
the facts provide a proper context within which the appropriate
remedy under
rule 30A
must be determined. It will be recalled
that under the rule the High Court was free to make whatever order it
deemed necessary,
if non-compliance was established.
[102]
Having
outlined the parties’ submissions, the High Court construed
rule 53(1)
to determine its purpose. With reference to
decisions of the High Court and the Supreme Court of Appeal, that
Court concluded
that “the rule is primarily intended to operate
in favour of and to the benefit of an applicant in review proceedings
and
to avoid review proceedings being launched in the dark”.
[86]
[103]
With
reference to the purpose of the rule and the information in the six
lever arch files, the High Court concluded that there
was
compliance with
rule 53(1)(b).
It reasoned thus:
“In the
present instance it is common cause that the JSC has dispatched to
the Registrar 6 lever-arch files, which contain
all the documentation
and transcripts of the proceedings which took place and resulted in
the judicial appointment of five candidates
to this Division, as the
record of proceedings sought by the HSF to be set aside or
corrected. This record of proceedings
included the following:
each of the eight candidate’s individual applications for
judicial appointment; comments on the candidates
from professional
bodies and certain individuals; other related submissions and
correspondence; transcripts of the eight candidates’
interviews; and reasons for the JSC’s decision to recommend
certain candidates and not to recommend others. In addition
reasons were furnished by the JSC in November 2012 in relation to a
complaint why Dalomo AJ (as he then was), and not Gauntlett
SC, was
recommended to the State President for a permanent appointment.
The drafter of the distilled reasons of the Deliberations
was in fact
the Chief Justice.
Absent the full
record of the Deliberations, has the JSC complied with the objective
and purpose of the Rule? In my view the
question must be
answered in the affirmative. In view of what had been dispatched to
the Registrar, the HSF is not forced to launch
a review application
in the dark. Moreover, the contention that the HSF will be
required to evaluate and argue the rationality,
lawfulness and
reasonableness of the impugned decision without key documents and be
denied the benefit of the Rule is unfounded.
The HSF is not
being deprived of the procedural and substantive safeguards which are
the underlying rationale for the Rule.”
[87]
[104]
With
regard to the question whether, in spite of the purpose of the rule
having been satisfied, the JSC was still required to include
a copy
of the deliberations in the record it had delivered, the High Court
considered a number of decisions by other divisions
of the High
Court
[88]
and
Intertrade
[89]
,
a decision of the Supreme Court of Appeal. Some of those
decisions define “record of proceedings to be corrected or
set
aside” to include deliberations whilst others define it as
excluding deliberations. The original interpretation
which
excludes deliberations was adopted in 1970 in
Johannesburg City
Council
.
[105]
Preferring
the
Johannesburg City Council
interpretation, the High Court
here held:
“Having
regard to the overall process adopted by the JSC the view expressed
in the
Johannesburg City Council
matter supra at 91H-92A is
indeed apposite in the present instance.
The JSC’s
deliberations are in my view no different to those of a magistrate
or those of a judge as reflected in his or her court-book or
deliberations which do not form part of the record of proceedings on
appeal or review
. Accordingly, the non disclosure of
the JSC’s deliberations cannot taint the entire review
proceedings.”
[90]
[106]
In
motivation of this conclusion, the High Court made reference to other
democratic jurisdictions with comparable systems of selecting
candidates for appointment as Judges.
[91]
Two observations were made at the conclusion of this analysis.
These were that the JSC represents the best practice
for selection of
Judges and that it is already “far more transparent than the
majority of comparable bodies in other jurisdictions”.
The High Court accepted that the JSC’s deliberations were
confidential and opined that the disclosure of deliberations might
“deter potential candidates from accepting nominations for
appointment” and that the “efficiency of the judicial
selection process could therefore be compromised”.
[92]
[107]
A
close reading of the High Court’s judgment reveals that its
order rested on three pillars. The first was that the
JSC had
complied with
rule 53(1)(b).
The second was that the JSC’s
deliberations did not constitute part of the record of the
proceedings to be reviewed.
And the third was that when the
HSF’s interests were weighed up against the JSC’s need
for confidentiality, the High
Court deemed it necessary to decline
granting the relief sought, as in its view, such relief would not
advance “the constitutional
and legislative imperatives of the
JSC”.
[93]
SCA appeal
[108]
The
Supreme Court of Appeal did not approach the matter on the footing
that the HSF had sought relief under
rule 30A
and that the High Court
had exercised a discretion in deciding the matter. Instead,
that Court focused on two of the three
pillars on which the High
Court’s order rested. The Supreme Court of Appeal
considered the question whether the JSC
deliberations formed part of
the record envisaged in
rule 53(1)(b).
This issue was
determined with reference to
Johannesburg City Council
and
Intertrade
, on one hand and
Afrisun
,
[94]
Comair
and
SCA SANRAL
,
[95]
on the other.
[109]
Whilst
accepting that in some cases the deliberations may, depending on the
circumstances form part of the record, the Supreme Court
of Appeal
held:
“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.”
[96]
[110]
It is
apparent from this statement that the Court did not conclude only on
the issue whether deliberations formed part of the record
but also
determined the question whether the High Court was correct in holding
that the balancing exercise favoured refusal of
the HSF’s
request. The Supreme Court of Appeal endorsed the High Court’s
reasoning that a disclosure would
undermine the JSC’s
“constitutional and legislative imperatives”. The
appeal was dismissed on account of
these two conclusions.
In this Court
[111]
It is
evident from the judgment of the High Court and the
Supreme Court of Appeal that the issues arising in the
context of
rule 30A
are those on which the High Court relied in
dismissing the application. These are: the JSC has complied
with
rule 53(1)(b)
; JSC deliberations do not form part of the record;
and the balancing of interests favoured the dismissal of the
application.
But the antecedent question is whether there are
grounds warranting interference with the exercise of discretion by
the High Court.
Approach to exercise of discretion
[112]
It
cannot be disputed that
rule 30A
, in terms of which this application
was instituted, confers a discretion on the High Court. The
rule empowers the court where
there has been non-compliance with any
of the rules to grant whatever order it deems fit. Nor can it
be gainsaid that
rule 53
is part of the Uniform Rules.
[113]
The
wide discretion conferred by the relevant rule is consonant with the
underlying purpose of court rules, namely, the promotion
of the
administration of justice by facilitating the adjudication of cases.
In
PFE International (BVI)
this Court held:
“Since the
rules are made for courts to facilitate the adjudication of cases,
the superior courts enjoy the power to regulate
their processes,
taking into account the interests of justice. It is this power
that makes every superior court the master
of its own process. It
enables a superior court to lay down a process to be followed in
particular cases, even if that process
deviates from what its rules
prescribe. Consistent with that power, this Court may in the
interests of justice depart from
its own rules.”
[97]
[114]
What
this statement tells us is that rules are not the law of the Medes
and Persians to be followed slavishly in every case.
Since the
rules are made for the courts and not the courts for the rules, a
superior court has an inherent power to condone not
only
non-compliance with its rules but also to authorise a deviation from
them. That is why rule 30A permits the court to
determine
whatever order it deems necessary in the event of non-compliance.
The inherent power of courts to regulate their
own process allows for
flexibility in the application or enforcement of the rules.
Rule 53 forms part of the process and
is subject to regulation by the
High Court.
[115]
This
means that the power to intervene with the exercise of that inherent
power on appeal is circumscribed. An appeal court
may not
intervene purely on the basis that, had it been the court of first
instance, it could have exercised the power differently.
For if
this were to be so, the High Court’s power to protect and
regulate its own process would be seriously undermined.
[116]
The
power that has received constitutional recognition in the form of
section 173 of the Constitution does not authorise one
superior
court to regulate the processes of another superior court. It
explicitly recognises that each of the superior courts
has the power
to regulate its own process. In order to preserve this special
power, in matters relating to enforcement of
rules, other courts must
defer to the court whose rules have been breached and which has been
approached for exacting compliance.
[117]
Accordingly,
a decision on non-compliance with the rules of a particular court
should be liable to be set aside on appeal on the
narrowest grounds –
like where such court has improperly exercised its rule 30A power.
This may occur where the Court’s
decision was influenced by
wrong principles of law.
[98]
In
Giddey
this Court affirmed the following reasoning
pertaining to a decision in terms of which an amount of security
under section 13 of
the Companies Act
[99]
was determined:
“(2)
When section 13 is combined with the provisions of Rule 47, as it
must be to give it practical
effect, the Court is regulating its own
procedure by deciding not only whether a litigant should be ordered
to provide security
for costs – a decision which may be made,
in terms of the section ‘at any stage’ of proceedings
(and therefore
in
medias res
) – but also, where it
grants such an order, whether the litigant should be allowed to
proceed until such security has been
provided.
The
regulation by a Court of its own procedure is also a matter usually
held to involve a discretion in the narrow sense
.
(3) The discretion requires
in essence the exercise of a value judgment and there may
well be a
legitimate difference of opinion as to the appropriate
conclusion.”
[100]
[118]
As
mentioned, when a court is called upon to adjudicate a rule 30A
application, it is concerned with the exercise of discretion
in the
narrow sense. This is because rule 30A(2) affords the
court an unlimited range of choices. In
SABC
this Court
reaffirmed the principle:
“Where the
discretion is a discretion in the strict sense, in that the Court had
a range of legal choices open to it, an Appellate
Court will
ordinarily interfere with the exercise of that discretion only in
narrow circumstances.”
[101]
[119]
Yet
in
Mabaso
this Court held that the question whether there is a
failure to comply with court rules and whether non-compliance should
be condoned,
involves the exercise of a discretion which may not be
interfered with on appeal—
“merely
because the Court of appeal would itself, on the facts of the matter
before the lower court, have come to a different
conclusion; it may
interfere only when it appears that the lower court had not exercised
its discretion judicially, or that it
had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a
decision which in the result could
not reasonably have been made by a
court properly directing itself to all the relevant facts and
principles.”
[102]
[120]
It is
now convenient to examine each of three conclusions reached by the
High Court in support of its order.
Meaning of rule 53
[121]
Rule
53(1) provides:
“(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, quasi-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 despatch, 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.”
[122]
The
rule preceded the Constitution and its purpose has been defined in
numerous cases as an important tool for adjudicating disputes
about
the validity of administrative decisions which are normally taken in
the absence of the applicant for review.
[103]
In
Jockey Club
Kriegler AJA declared:
“The purpose
of Rule 53 is not to protect the decision-maker but to facilitate
applications for review and to ensure their
speedy and orderly
presentation. Such benefits as it may confer on a respondent,
in contradiction to those ordinarily enjoyed
by a respondent under
Rule 6, are incidental and minor. It confers real benefits on
the applicant, benefits which he may
enjoy if and to the extent
needed in his particular circumstances.”
[104]
[123]
The
delivery of the record to the reviewing court served a dual purpose
of furnishing the applicant, who otherwise had no knowledge
of
reasons for the impugned decision, information or facts on which the
decision was based. Hence the rights conferred on
the applicant
by subrules (3) and (4) which entitle the applicant to peruse the
delivered record and make copies as well as to
“amend, add to
or vary the terms of his notice of motion and supplement the
supporting affidavit”. In this way
the rule avoids the
launching of review proceedings in the dark and enables courts to
adjudicate the real decision or ruling.
[124]
However,
the advent of the constitutional dispensation in 1994 changed all of
this. The interim Constitution obliged state
officials to grant
access to information held by the state and conferred on persons the
right of access to reasons for an administrative
decision taken in
their absence where their rights are adversely affected by it.
This is also the position under the Constitution.
This
extensively reduces the risk of launching a review application in the
dark, if not altogether eliminates such a possibility.
This
development has a bearing on the purpose for which the rule was
enacted and the purpose it currently serves.
Meaning of
record
[125]
It
goes without saying that the constitutional developments referred to
are relevant to the interpretation of what “record”
now
must mean. Indeed in
Ekuphumleni
Leach J observed:
“As is
apparent from this, while there may be no merit in the premise that
the whole record of proceedings has to be furnished
is respective of
whether or not it is relevant to the review, in order for the Rule to
fulfil its purpose ensuring that all relevant
evidential material is
placed before court, it is self-evident that all portions of a record
relevant to the decision in question
should be made available.
And in considering the question of relevance, it is important to bear
in mind that there is now
a constitutional obligation for reasons to
be given for administrative decisions which must be justified as
rational and reasonably
sustainable. If there is no rational
link between the decision and the reasons, it leads to the conclusion
that the decision
was taken unreasonably, irrationally or
arbitrarily, and that it should therefore be set aside.”
[105]
[126]
Reasons
for a decision are a crucial indicator to why a particular decision
was taken. The light they illuminate on the decision
far
exceeds any light flowing from the record, which may merely be
reflective of the information that was placed before the
decision-maker.
The record, in contradistinction to the
reasons, does not show why, on the facts, a particular decision was
taken. Unless
of course, a record incorporates reasons.
The significance of reasons may be underscored with reference to a
judicial process
pertaining to leave to appeal. Ordinarily an
application for leave to appeal is not required to include the entire
record
of the proceedings but a copy of the judgment appealed against
must be incorporated. This is because such judgment must
contain
the full reasons for the court’s decision. And
the validity of that decision is evaluated with reference to the
judgment
only. Usually it is not permissible for a judicial
officer to augment the reasons in the judgment by pointing to a
separate
document.
[127]
The
record, which rule 53(1)(b) requires delivery of to the registrar, is
the one relating to the proceedings referred to in the
opening part
of the rule which states—
“all
proceedings to bring under review the decision or proceedings of any
inferior court and of any tribunal, board or officer
performing
judicial, quasi-judicial or administrative function.”
[128]
A
proper reading of this text reveals that “proceedings”
connotes a formal process. The phrase “all proceedings
to
bring under review” refers to the review application itself.
And the words “proceedings of any inferior court
and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions” refer to proceedings
sought to be
reviewed. But in both instances “proceedings” mean
a formal process. This is buttressed by
the distinction the
rule draws between a decision and proceedings. The rule makes
it plain that a review lies against a decision
or proceedings and
does not say a record of a decision must be delivered. To this
extent the drafters of the rule were aware
of the fact that an
application for review may be pursued against a decision where no
record exists.
[129]
Rule
53(1) requires the applicant for a review to deliver a notice of
motion to “the magistrate, presiding officer or chairman
of the
court, tribunal or board or to the officer”, calling upon them
to show cause why “such decision or proceedings
should not be
reviewed and corrected or set aside”. Notably, the rule
identifies and lists persons on whom the notice
of motion should be
served. Not surprisingly, none of those persons include the JSC
and its chairperson, the Chief Justice.
This is because the
rule precedes the Constitution and when it was adopted, a review of a
body like the JSC was not envisaged.
However, the scope of the
rule is not limited only by reference to bodies whose decisions and
proceedings may be reviewed but also
by the functions performed by
such bodies. These are judicial, quasi-judicial and
administrative functions. The selection
of candidates suitable
for appointment as Judges does not fit neatly under any of these
functions. The
Promotion of Administrative Justice Act
[106
]
which was enacted to cover the entire field of administrative action,
excludes the function of the JSC from the definition of
administrative action.
[130]
But
since the parties and the other courts approached the matter on the
assumption that
rule 53
applies to the review of decisions of the
JSC, I am also willing to decide the matter on that assumption.
[131]
In
terms of
rule 53(1)(b)
, the notice of motion served on the
magistrate, presiding officer, chairman or officer must call upon
them to deliver, within 15
days of receipt of the notice of motion,
“the record of such proceedings sought to be corrected or set
aside”.
The words “such proceedings” refer
back to “proceedings of any inferior court and of any tribunal,
board or officer
performing judicial, quasi-judicial or
administrative functions”. It is the record of those
proceedings which must
be delivered to the registrar within 15 days
and depending on the requirements of the relevant law or the wishes
of the person
on whom the notice is served, the record may be
accompanied by reasons.
[132]
It is
apparent from the rule that “record” carries the same
meaning regardless of whether the proceedings sought to
be reviewed
are judicial, quasi-judicial or administrative. This is what
influenced the High Court here to prefer the meaning
that was
assigned to “record” in
Johannesburg City Council.
It will be recalled that in this matter the High Court
pronounced:
“The JSC’s
deliberations are, in my view, no different to those of a magistrate
or those of a judge as reflected in
his or her court book or
deliberations which do not form part of the record of proceeding on
appeal or review.”
[107]
[133]
It is
not controversial that the notes taken by a presiding judicial
officer during a hearing before her, do not form part of the
record
of the proceedings if a review is instituted or an appeal is lodged.
With the rule using the word “record”
with reference to
both judicial and administrative functions, I can think of no reason
in principle or logic that warrants that
this word be assigned
differing meanings, depending on the function that was performed.
Consequently, if “record”
in respect of judicial
proceedings excludes the presiding judicial officer’s notes and
where applicable, discussions of those
who formed the panel of
presiding officers, equally with reference to administrative
proceedings “record” must include
deliberations.
[134]
This
is because a word used in a statutory provision or subordinate
legislation cannot be assigned different meanings.
Rule 53(1)
employs “record” in respect of judicial proceedings of a
magistrate’s court and administrative proceedings.
With
regard to judicial proceedings, the notes of the presiding magistrate
do not form part of the record and so are the deliberations
between
the magistrate and assessors. Yet where the record is lost,
those notes may be used to reconstruct a record for purposes
of an
appeal.
[108]
[135]
The
same approach is followed with regard to arbitration proceedings
conducted in terms of the Labour Relations Act.
[109]
If a record of arbitration proceedings before the Commission for
Conciliation Mediation and Arbitration (CCMA) is lost, the
notes of
the arbitrator are used to reconstruct the record. Just like
the notes of a magistrate taken during a trial, notes
of the
arbitrator do not form part of the formal record. Yet the
proceedings before the arbitrator constitutes administrative
proceedings of the kind envisaged in rule 53(1). In
Sidumo
this Court held:
“
Compulsory
arbitrations in terms of the [Labour Relations Act] are different
from private arbitrations. CCMA commissioners
exercise public
power which impacts on the parties before them. In the language
of the pre-constitutional administrative
law order, it would have
been described as an administrative body exercising a quasi-judicial
function. I conclude that a
commissioner conducting a CCMA
arbitration is performing an administrative function.”
[110]
These examples illustrate the point made
earlier to the effect that the words “the record of such
proceedings” in rule
53(1)(b) refer to all record of formal
proceedings. It is that record which must be dispatched to the
registrar. The
notes and deliberations are excluded because
they are not part of it. They are not excluded, as the
first judgment suggests,
on some other ground similar to
privilege.
[111]
Where the formal record of the proceedings is furnished, the
application for review may not demand that the notes of a magistrate
or an arbitrator must also be furnished.
[136]
Consequently, I conclude that properly construed “record”
in rule 53(1)(b) does not incorporate deliberations.
Accordingly the High Court applied the right law in adjudicating the
HSF’s rule 30A application.
[137]
To
conclude that anything relevant to the impugned proceedings should
form part of the record to be delivered to the registrar may
have
absurd consequences. Take for example, a case of a party that
seeks access to information held in confidence under an
international
agreement or information whose disclosure could reasonably cause harm
to the defence or security of the Republic.
In terms of section
41 of PAIA, the state may refuse access to such information.
The requester of that information may bypass
this refusal by simply
lodging an application for review and serving upon the state the
relevant papers, for rule 53(1)(b) to be
triggered. Once
served, the state would be obliged to deliver to the registrar the
full record, including deliberations on
why the information should
not be disclosed. And the applicant would be entitled to have
access to it purely on the basis
that it forms part of the record and
is relevant to his claim of access to information.
[138]
Rule
53(1) may not be used to subvert PAIA. If it is accepted, as it
must be, that section 41 of PAIA may not be circumvented
by employing
rule 53 to achieve what could not be attained under the section, then
by parity of reasoning, the rule should not
be used to achieve what
PAIA excludes from its scope giving effect to the right of access to
information, and promoting the values
of openness and transparency.
High Court’s conclusion on
compliance
[139]
In
light of the view I take on the meaning of record, it is not
necessary to set out a detailed analysis of the other points which
formed the foundation of the High Court’s decision.
With regard to compliance with rule 53(1)(b), the High Court
took the view that the proceedings which the HSF sought to be
corrected or set aside, were those that led to the selection of
candidates for appointment to the Western Cape Division.
[112]
It will be recalled that the rule itself limits the delivery of the
record to the proceedings to be reviewed. The High
Court took
account of the fact that six lever-arch files were delivered to the
registrar. These files contained, said the
High Court, “all
the documentation and transcripts of the proceedings which took place
and resulted in the judicial appointment
of five candidates to [that
division], as the record of proceedings sought by the HSF to be set
aside or corrected”.
[113]
[140]
The
Court paid attention to the nature of information contained in those
files. It stated that the record that was submitted
to the
registrar contained—
“each of the
eight candidates’ individual applications for judicial
appointment, comments on the candidates from professional
bodies and
certain individuals; other related submissions and correspondence;
transcripts of the eight candidates’ interviews,
and reasons
for the JSC’s decision to recommend others. In addition
reasons were furnished by the JSC in November 2012
in relation to the
complaint why Dalomo AJ (as he then was), and not Gauntlett SC, was
recommended to the State President for permanent
appointment.”
[114]
[141]
The
Court assessed the sufficiency of this information against the
purpose of rule 53 and the procedural benefits the rule
affords
applicants for review. It reminded itself that reasons
furnished were distilled from deliberations by the Chief Justice
himself. Having taken all this into consideration, the Court
made two important findings, namely, the HSF could not launch
its
review application in the dark and that the contention that the HSF
would be required to argue the rationality, lawfulness
and
reasonableness grounds of review without key documents was
unfounded. It was for these reasons that the High Court
concluded
that there was compliance with rule 53(1)(b).
[142]
It
must be stressed that rule 53(1)(b) does not require delivery of the
whole record. Consistent with this, courts have considered
that
delivery of a portion relevant to proceedings sought to be reviewed
would suffice for purposes of compliance with the rule.
[115]
In
Muller
the applicant for review had sought to set aside the
Master’s ruling in terms of which he was refused legal
representation
at an insolvency inquiry that was held under the
Insolvency Act
[116]
.
The applicant had indicated that he would like to be represented by a
particular attorney and asked for a postponement of
the inquiry for
the purposes of securing legal representation.
[117]
The Master’s ruling on the issue was:
“I think that
in view of the fact that the purpose of this interrogation is to find
facts, that very little sense would serve
to adhere to the current
practice of permitting legal assistance.”
[118]
[143]
In
response to the application for review of this decision, the Master
delivered to the registrar a transcript of what the applicant
had
said pertaining to the request for legal representation only, as the
record required by rule 53(1)(b). The Master did
not include a
copy of the evidence given during the interrogation that followed the
impugned ruling. In view of this, the
applicant argued that
there was no compliance with the rule which required the Master to
deliver the full record. On sufficiency
of the record furnished
Galgut J said:
“In all of
the circumstances, I therefore, hold that, as far as the record is
concerned, the Master was not obliged in terms
of Rule 53 to furnish
more than he has done.”
[119]
[144]
The
learned Judge reached this conclusion in spite of the applicant’s
contention to the effect that the omitted portion might
show that the
Master was influenced by his aggressive, high-handed and bullying
conduct when he refused him legal representation.
This conduct
was said to have occurred during the subsequent interrogation.
What happened in that case confirms the fact
that rule 53(1)(b) does
not require delivery of the whole record of proceedings. And
that the court to which a complaint
of non-compliance is made may
determine that there was compliance, despite the fact that only a
portion of the record was filed.
What is crucial is whether,
based on what was filed, the applicant would be able to effectively
prosecute her review challenge.
Balancing the parties’
interests
[145]
On
this aspect of the case, the High Court weighed the HSF’s
interest to procedural benefits afforded to it by rule 53 against
the
JSC’s interest to confidentiality. In this exercise the
Court considered comparable foreign jurisdictions as well.
It
noted that “international courts and academic writers”
accepted that keeping deliberations of bodies like the JSC
confidential was justified. With regard to these institutions
and commentators, the High Court recorded:
“They have
held that confidentiality breeds candour, that is vital for effective
judicial selection, that too much transparency
discourages
applicants, and will have an effect on the dignity and privacy of the
applicants who applied with the expectation of
confidentiality.”
[120]
[146]
The
position in other jurisdictions appears to be consonant with the
legislative regime put in place by Parliament, for purposes
of
regulating the functioning of the JSC. The JSC Act and the
relevant regulations make this plain. The regulations,
it will
be remembered, require that deliberations of the JSC be held in
private. The need for confidentiality is also underscored
by
the deliberate omission of the information about the functioning of
the JSC from the scope of PAIA, the legislation that was
enacted to
advance openness and transparency.
[147]
The
outcome of the balancing of the competing interests by the High Court
was that the HSF was not entitled to have access to deliberations
of
the JSC, as part of the record.
[121]
I am unable to conclude that the High Court has improperly exercised
its discretion under rule 30A, with reference to compliance
with rule
53(1)(b) and the balancing of the parties’ interests.
[148]
The
first judgment holds that the determination of the question whether
there was non-compliance with the rules does not involve
an exercise
of discretion.
[122]
I disagree. The High Court perused the record comprising six
lever-arch files in order to determine compliance with
the relevant
rule. It assessed the adequacy of the information in that
record against the purpose of rule 53 and concluded
that there was
compliance. In doing so the High Court was exercising its
inherent power to regulate its own process.
A power referred to
in section 173 of the Constitution.
[123]
[149]
In
SABC
this Court accepted that section 173 confers a discretion
on each superior court to protect and regulate its own process.
Acknowledging that another court could arrive at a decision different
to the one reached by the court below, this Court declined
to
intervene and reasoned:
“
Given
that a court has a primary obligation to ensure that the proceedings
before it are fair, that obligation will always figure
large in the
exercise of discretion under section 173. We cannot agree that
the Supreme Court of Appeal erred in recognising
this in the
particular circumstances of this case.
We
repeat that it may well be that another court might have perceived
the interests of justice differently in relation to proceedings
before it, but that is not the test on appeal here. The
question is whether the Supreme Court of Appeal committed a
‘demonstrable
blunder’ in adopting the test it did.
”
[124]
[150]
Here
the High Court was best placed to determine not only whether its own
rules were met but also to regulate how the case before
it was to be
prosecuted to finality. This forms part of the section 173
power which enables a superior court to protect and
regulate its own
process. Thus in
Giddey
this Court quoted with approval
the principle that regulation by a court of its own procedure
involves a discretion in the narrow
sense.
[125]
The effect of the dismissal of the interlocutory application here was
that the HSF had to pursue to finality its review application
which
is pending before the High Court.
[151]
Rule
30A may not, as suggested in the first judgment, be read
disjunctively. It is a rule in terms of which non-compliance
with the Uniform Rules of Court is investigated by the High Court
itself. The difficulty with separating rule 30A(1) from (2)
is that under the rule only one application is envisaged and a single
enquiry is conducted. There is no separate application
to which
rule 30A(2) applies. The application made to the court in terms
of this subrule is the same application that was
referred to in the
notice previously issued in terms of rule 30A(1). In other
words, rule 30A(1) authorises only the issuance
of notice to a
defaulting party. If that notice is not complied with, then
rule 30(A)(2) is triggered and an application
may be made to the
court.
[126]
[152]
As
mentioned in paragraph 20, in determining whether there was
compliance with rule 53(1)(b) the High Court first determined the
object of the rule and with reference to it, examined the record that
was dispatched to the registrar in six lever arch files.
That
Court concluded that the purpose of the rule was achieved and as a
result there was compliance. This accords with
the test for
compliance as laid down in
Maharaj
[127]
and endorsed by this Court in
Intervalve
[128]
.
[153]
In
Maharaj
, Van Winsen AJA formulated the test in these terms:
“The enquiry,
I suggest, is not so much whether there has been ‘exact’
‘adequate’ or ‘substantial’
compliance with
this injunction but rather whether there has been compliance
therewith. This enquiry postulates an application
of the
injunction to the facts and a resultant comparison between what the
position is and what, according to the requirements
of the
injunction, it ought to be. It is quite conceivable that a
Court might hold that, even though the position as it is
is not
identical with what it ought to be, the injunction has nevertheless
been complied with. In deciding whether there
has been a
compliance with the injunction the object sought to be achieved by
the injunction and the question of whether this object
has been
achieved are of importance.”
[129]
[154]
For
all these reasons, I would dismiss the appeal.
KOLLAPEN AJ (Zondi
AJ concurring)
Introduction
[155]
This
is an application which, in the narrow sense, involves a
determination of whether the private deliberations of the Judicial
Service Commission form part of the record of its proceedings for the
purposes of rule 53(1)(b) of the Uniform Rules of Court.
[130]
In the wide sense, it is a matter which may have relevance for
the judiciary
–
its
independence, integrity, efficacy and, in particular, the calibre of
those who constitute it.
[156]
I
have read the lucid and comprehensive judgment of my colleague
Madlanga J (first judgment) and I agree with him that the
question of the JSC’s power to determine its own procedure, as
well as the issue of whether its deliberations form part of
the rule
53 record, raise important constitutional matters justifying the
granting of leave.
[131]
I disagree, however, with his conclusion that the appeal must
succeed.
[132]
I have also read the clear and extensive judgment of my colleague
Jafta J (second judgment) and, while I agree
with him that
the appeal must fail, I do so for different reasons.
Parties and the litigation history
[157]
The
parties and history of litigation between them have been fully set
out in both the first and second judgments. I agree
with the
overview provided and have nothing further to add.
Openness and transparency
[158]
While
the legal issue for determination is the scope of the obligation to
produce a record in terms of rule 53(1)(b), its resolution
is also
located within the principles of openness and transparency. The
principles of openness, accountability and responsiveness,
which
stand at the gateway to the Constitution,
[133]
continue to encapsulate the kind of society we seek to build and the
values that must permeate its people and its institutions.
However,
they do not stand separately and apart from the processes they must
regulate. Their meaning and value also
arise in the context in
which they are deployed and to the extent they advance the broader
values of the Constitution. Simply
put, we do not hold them up
because they exist but rather because beyond their intrinsic value,
they shape and inform the practical
realisation of our Constitution
and by so doing they endure.
[159]
To
the extent that this application harnesses the value of openness, it
is worth recalling that openness is not absolute or without
limitation. The right to open justice is moderated to protect
the dignity and the privacy of children and others who come
before
our courts,
[134]
just as the right of the media to report on court proceedings is
moderated to protect the privacy interests of families.
[135]
This is not a negation of openness or of the principle of open
justice, but rather, its fruition and the proper meaning it
must come
to have, in a complex society where competing interests often require
delicate balancing.
[160]
Openness
is also double-sided. It is imperative that what is
constitutionally necessary is seen and heard. However,
in order
to ventilate what must be seen and heard and to preserve certain core
constitutional values, there also has to be an environment
in which
open and uncensored debate flourishes. In some instances,
confidentiality is necessary to ensure such an environment
exists, so
that what must be shown and said is brought into the light, to factor
into constitutionally necessary debates.
[161]
This
application has relevance for the judiciary, which is the repository
of the judicial authority in our country. The independence
and
authority of the judiciary is comprehensively set out in the
Constitution,
[136]
but outside of the legal guarantees that exist to secure its
independence, the best possible guarantor of its independence and
integrity lies in those individuals who are required to discharge
judicial authority.
Issues
[162]
Two
substantial issues are raised:
(a)
Do the deliberations of the JSC form part of its record for the
purposes of rule 53?
(b)
If so, is it legally permissible to exclude it from the record?
Do deliberations form part of the
record?
[163]
The
first judgment provides a comprehensive overview of the development
of the law on this issue commencing from
Johannesburg City
Council
, which took the position that deliberations were not a
part of the record, to
HC SANRAL
, where the Western Cape
High Court expressed the view that they were likely to be
relevant and susceptible to inclusion in
the record.
[137]
In these proceedings, the Supreme Court of Appeal’s
stance was that deliberations were not necessarily
excluded from the
record but that in some circumstances, considerations of
confidentiality will justify their exclusion.
[138]
[164]
I
agree with the approach taken in the first judgment that the general
exclusion of deliberations from the record as a class of
information
appears arbitrary and cannot pass constitutional muster.
[139]
At the same time, I can think of no constitutional imperative
that justifies its automatic inclusion in the record either.
In
each instance, the matter should turn on the relevance of the
deliberations and if they pass the test of relevance, then
they
should, ordinarily, be included as part of the record unless there is
a proper justification for their exclusion.
[140]
[165]
I am
also of the view that relevance then falls to be considered, not in
relation to the pleaded case, but rather in respect of
its connection
to the impugned decision. That this should be so in rule 53
proceedings is self-evident, as an aggrieved party
institutes
proceedings without the benefit of a record and is entitled to
supplement its case upon the record being furnished.
[141]
Under those circumstances, relevance cannot be gauged by reference to
what has been pleaded given the inherent limitation
of the pleading
exercise in the absence of a record.
[166]
In
the context of this application, the recommendations made by the JSC
followed the private deliberations it conducted. The
Chief
Justice used a record of those deliberations to distil the reasons of
the JSC for the purpose of providing reasons for the
decision in
terms of rule 53(1)(b). It would under these circumstances be
futile to argue that those private deliberations
are not, broadly
speaking, relevant to the reasons furnished given what must be the
inextricable link between those deliberations
and the decision
ultimately taken.
[167]
I am
mindful of the provisions of section 178(6) of the Constitution which
allow the JSC to regulate its own processes,
[142]
section 38(1) of the JSC Act which prohibits the disclosure of
confidential information,
[143]
and regulation 3(k) of the JSC Procedure, which provides that the JSC
shall deliberate in private.
[144]
These provisions must all be interpreted in the “spirit,
purport and objects” of the Constitution and the values
it
enhances.
[145]
They all must live and be given meaning in the context of the
Constitution as a living document,
[146]
and they cannot on their own stand in the way and trump the relevance
argument for the inclusion of deliberations as part of the
record.
It cannot be that a claim to confidentiality can succeed simply
because the decision maker says it is confidential.
That
would negate the spirit of the Constitution. I do not suggest
that this is the approach of the JSC in these proceedings,
but raise
it simply to demonstrate the point that a claim to confidentiality
must be properly made out by reference to constitutional
values as
opposed to it being simply asserted on the back of some legal
provision that purports to cloak it with confidentiality.
[168]
For
these reasons, I conclude that the deliberations of the JSC are
relevant to the decision under review, and on account of that
they
should be included in the record, unless there is some legal
justification for their exclusion.
Is there a legal justification for
excluding the deliberations?
[169]
As a
general principle the exclusion of deliberations from the public
record of proceedings is neither unusual nor exceptional and
does not
in itself undermine the principle of transparency or the commitment
to open justice as demonstrated in the following areas;
court
deliberations, judicial disciplinary proceedings, cabinet
deliberations, and evaluative material governed by PAIA.
[147]
These examples are offered in advance of the argument that even where
deliberative material may pass the test of relevance,
which would be
the case in all of the instances mentioned hereunder, their exclusion
from the public record of proceedings may
nevertheless be justified
on some legal or constitutional basis. To that extent they
provide support for the principle of
confidentiality but they cannot
and do not in themselves provide the necessary justification for
confidentiality in respect of
the JSC deliberations.
[148]
The deliberations of courts
[170]
Courts
often deliberate after hearings and before a judgment. Those
deliberations are relevant in the ultimate formulation
of the
judgment of that court and simply on the test of relevance would fall
to be included as part of the record in the event
of a review
(assuming of course that there was a record of those deliberations
which is not without possibility). Yet, those
deliberations
would be ordinarily justifiably excluded from any record in terms of
rule 53(1)(b) on a number of grounds, which
would include the
integrity of the adjudication process and the independence of the
judiciary. Those deliberations would
ordinarily reflect the
views, comments, impressions, and instinctive responses of members of
the court in relation to the various
issues that arise for
determination including the credibility, reliability, the demeanour
of witnesses, the adequacy of the legal
arguments, and the extent to
which counsel was of assistance and a host of other issues.
[171]
Those
initial views may significantly change during the course of the
deliberations, be modified, or remain unchanged. The
views of
other members of the court may be persuasive in changing a prima
facie view and all of this happens in the ebb and flow
of the
deliberative process. It is often in the intensity of exchanges
in the deliberative process that views may be tested
and critiqued
with a view to arriving at a just outcome and the confidentiality of
that process must be a significant factor in
the freedom to express
views, have them critiqued and change them, if need be.
[172]
At
other times, views may be expressed in a manner that may depart from
the decorum and the language of the court. This is
not unusual
nor is it a negation of justice as judicial officers are entitled to,
and perhaps even enjoined to, act robustly and
with candour and
vigour in the deliberative process. It is in many respects that
the confidentiality that the deliberative
process offers creates the
enabling environment for vigour, robustness, the right to be wrong,
as well as the right to persuade
and be persuaded, which are all
important in enhancing the quality of the adjudication process. I
cannot imagine that any
claim to absolute openness in that setting
can have, as its consequence, qualitatively better adjudication. On
the contrary,
the loss of confidentiality may have a chilling effect
on the ability to speak and debate openly.
[173]
Courts
in both Canada and the United States of America (United States) have
found judicial privilege in the deliberative materials
of judges.
In
Criminal Lawyers’ Association
, the Supreme Court of
Canada held:
“
It
may also be that a particular government function is incompatible
with access to certain documents. For example, it might
be
argued that while the open court principle requires that court
hearings and judgments be open and available for public scrutiny
and
comment, memos and notes leading to a judicial decision are not
subject to public access. This would impair the proper
functioning of the court by preventing full and frank deliberation
and discussion at the pre-judgment stage.”
[149]
[174]
The
Massachusetts Supreme Judicial Court has also found that judicial
privilege protects a judge’s “internal thought
processes
and deliberative communications, memoriali[s]ed in notes, diaries, or
otherwise”.
[150]
There, the notions of “finality”, “quality and
integrity of decision-making”, and “independence
and
impartiality” were at play.
[151]
I cannot imagine why the same rationale behind these decisions to
protect deliberative judicial materials should not apply
with similar
force in South Africa.
Judicial Disciplinary Proceedings
[175]
There
is also requisite confidentiality in judicial disciplinary
proceedings. The High Court, in
Mail and Guardian
, found
that there was a need for “caution and confidentiality during
the early period of any investigation.”
[152]
The Court expressed the view that:
“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 the judge.”
[153]
[176]
The
fact that confidentiality regimes protect the early deliberative
processes in judgment-making and in judicial disciplinary proceedings
provide useful parallels for the judicial appointment process in
terms of the nature of the interests at stake that may require
protection.
Cabinet deliberations
[177]
There
can hardly be an area of decision-making that has greater impact on
the lives of citizens than the deliberations of Cabinet.
While
the requirements of openness dictate that those decisions and the
reasons for them be made public, they do not extend to
what may be
termed Cabinet deliberations that precede a decision.
[154]
The need for private deliberations of Cabinet was expressed in this
Court’s decision in
SARFU
, where this Court acknowledged
the need for Cabinet deliberations to take place in a “robust”
and “unhindered”
manner. The Court held:
“[T]here is
the public interest in ensuring . . . that the efficiency of the
executive is not impeded and that a robust and
open discussion take
place unhindered at meetings of the Cabinet when sensitive and
important matters of policy are discussed.”
[155]
In
Babcock
, the Supreme Court of
Canada held:
“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.”
[156]
[178]
Again,
the requirements of openness and transparency do not extend as far as
requiring Cabinet deliberations to be ordinarily subject
to
disclosure. This is largely consistent with ensuring efficacy
in government and in striking the appropriate balance between
openness and confidentiality.
The approach in the Promotion of
Access to Information Act
[179]
PAIA
is the national legislation that gives effect to the right of access
to information provided for in section 32 of the Constitution.
[157]
Thus, it is the definitive legislative framework regulating access to
both publicly and privately held information. Mindful
that the
processes of the JSC are exempt from PAIA disclosure,
[158]
the manner in which PAIA deals with the disclosure of evaluative
material is instructive in these proceedings.
[180]
Section
44(2)(b) of PAIA allows an information officer to refuse access to a
record should it contain evaluative material.
[159]
Evaluative material is defined in PAIA as—
“an
evaluation or opinion prepared for the purpose of determining—
(a)
the suitability, eligibility or qualifications of the person to whom
or which the
evaluation or opinion relates—
(i)
for employment or for appointment to office.”
[160]
[181]
This
limited carve-out in PAIA does not apply to evaluative material other
than in the circumstances of employment or appointment
to office.
Thus, a record in relation to evaluative material that traversed the
ability to provide a service such as building
a road or the provision
of textbooks would not fall within the exclusion of section 44(2).
This distinction properly recognises
the deeply different processes
that play themselves out in the evaluation of personal and
professional attributes which relate
to employment or appointment to
office as opposed to the technical and capacity attributes that may
relate to the provision of
a service. Personal attributes are
distinctly different from functional attributes and it is a
distinction that PAIA expressly
recognises in section 44(2).
[182]
The
intensely personal nature of the former and the capacity and ability
of the evaluating panel to have the necessary freedom is
also
enhanced by the confidentiality that attaches to the record of that
process. An evaluative process that examines personal
attributes such as diligence, reliability, honesty, and commitment,
even when based on objective facts that emerged from the interview,
can be diversely subjective. These comments and the views
expressed there, if made public, can be potentially damaging to
both
the person who is the subject of the evaluation as well as the person
making such an evaluation. This is a long way
from the
proposition that candidates who seek to hold office must accept a
rigorous scrutiny of their credentials. Evaluative
material
that contains comments that reflect negatively on the personal
attributes of an individual and which are generated in
private can
have significant consequences when made public. It is
accordingly understandable why the legislature elected
to provide
some measure of confidentiality to such evaluative material which as
I will demonstrate would be largely similar to
the areas of comment
that the private deliberations of the JSC would evoke in respect of
candidates who come before them.
[183]
The
High Court in
Belwana
has recently upheld the denial of an
information request pursuant to an appeal of an employment decision,
seeking evaluative material
where panellists evaluating suitability,
eligibility, or qualifications for a post had signed a
confidentiality clause.
[161]
[184]
Thus,
even in a jurisdiction such as ours, that places a high premium on
openness and transparency, policy and the law recognise
that in given
situations, even deliberations that meet the threshold of relevance
may well be justifiably excluded from a record,
either in terms of
PAIA or in terms of rule 53(1)(b) for a variety of reasons, including
the dignity and privacy interests of individuals,
the integrity of
the administration of justice, and the independence of the judiciary.
The deliberations of the JSC
[185]
Before
dealing with whether a constitutionally sound justification exists
for the exclusion of the record of deliberations, it may
be useful to
provide an overview of the JSC process in relation to judicial
appointments and the location of private deliberations
in that
process.
[186]
The
JSC Procedure, promulgated in terms of section 5 of the JSC Act, sets
out the processes to be followed when a judicial appointment
is to be
made to the High Court in regulation 3.
[162]
There is opportunity for public participation in the nomination
process, the names and profiles of the shortlisted candidates
are
made public and are also distributed to various legal institutions
for comment and the interviews of candidates are generally
open to
the public and media.
[163]
[187]
What
emerges from this framework is what can be described as a
substantially transparent process that is open to public and
institutional
scrutiny and that seeks the active input and
involvement of the public in the judicial appointment process. It
is probably
one of the most open and transparent processes that exist
internationally for the appointment of judicial officers.
[164]
The fact that one or more of the JSC’s processes may be
private does not render the process, as a whole, secretive
or lacking
in transparency. The process must be viewed in its totality,
rather than in segments thereof without relating
them to the whole.
I make the point not in justification of confidentiality, but
rather, as a general proposition that this
application is not a
contest between secrecy and openness. This Court is tasked with
determining what, if any, are the justifiable
limits to openness in
the context of a record of proceedings in terms of rule 53.
[188]
This
matter is unlike those where litigants have to grapple in the dark in
the absence of a full record. Such a situation
would impose a
severe disadvantage on a litigant in formulating a coherent case
where relief of judicial review is sought. Here,
the record
provided by the JSC is substantial and includes the announcement for
the vacancy, the written application of each candidate,
the
institutional and other responses to the candidacy, the transcript of
the public interview and the reasons for the recommendations.
Again, without suggesting that this in itself disentitles the
applicant to the deliberations as part of the record, there is, in
my
view, a substantial record made available on which the applicant was
willing to proceed to the final hearing until of course
it discovered
that the deliberations were recorded. These observations are
relevant in providing a complete picture and in
locating the dispute
in its proper context.
[189]
While
this application is not concerned with the furnishing of reasons, it
may nevertheless, in this context, be important to pause
and reflect
on the importance of those reasons. This must be done in the
context of the record provided and against the backdrop
of a
litigant’s ability to meaningfully engage with the
rationalisation of a decision and the ability to assess any basis
for
challenge. The issue arose in
Cape Bar Council
:
“The reply by
the JSC does not serve any of the purposes for which reasons should
be given. These purposes were articulated
with admirable
clarity by Lawrence Baxter Administrative Law (1984) at 228 in the
following statement, which was endorsed by Schutz
JA in
Transnet
Limited v Goodman Brothers (Pty) Ltd
[2000] ZASCA 151
;
2001 (1)
SA 853
(SCA) paragraph 5:
‘In the first
place, a duty to give reasons entails a duty to
rationalise
the decision. Reasons therefore help to structure the exercise
of discretion, and the necessity of explaining
why
a decision
is reached requires one to address one’s mind to the decisional
referents which ought to be taken into account.
Secondly,
furnishing reasons satisfies an important desire on the part of the
affected individual to know why a decision was reached.
This is
not only fair: it is also conductive to public confidence in the
administrative decision making process. Thirdly
–
and probably a major reason for the reluctance to give reasons –
rational criticism of a decision may only be made
when the reasons
for it are known. This subjects the administration to public
scrutiny and it also provides an important
basis for appeal or
review. Finally, reasons may serve a genuine educative purpose,
for example where an applicant has been
refused on grounds which he
is able to correct for the purpose of future applications.’”
[165]
[190]
There
has been no suggestion that the reasons provided by the JSC fall
short of being both sufficient and comprehensive.
Is the claim for confidentiality
sustainable?
[191]
I am
convinced that maintaining the confidentiality of JSC deliberations
is not only constitutionally sustainable but also necessary
to
protect multiple constitutional values housed in the Bill of
Rights.
[166]
In coming to this conclusion, it is necessary to consider three
distinct but interrelated interests. They are those
of the
candidates that come before the JSC and whose candidature is the
subject of deliberations, those of the commissioners who
undertake
the deliberations, and finally those of the JSC institutionally,
including the integrity of its processes in discharging
its
constitutional mandate.
The candidates
[192]
In
the interview process the candidate’s physical presence
entitles them to respond to questions and answer concerns that
may be
raised. In general, a candidate would be entitled to respond to
and correct, to the extent possible, any negative
views or
impressions that emerged about their candidacy.
[193]
The
deliberative process is different, in that it occurs in the absence
of the candidate and provides space for the consideration
of the
material that emerged in the interview and from other sources.
[167]
Members have the opportunity to openly express their views,
impressions, and understanding of a candidate’s qualifications
and their suitability.
[168]
These may differ quite radically from member to member as they
undertake a rigorous scrutiny of the material that emerged
during the
interview and from other sources. The same material canvassed
in the interview may lead to different conclusions
and lend itself to
different interpretations by members. The material may, in some
instances, lead to complimentary and supportive
remarks, while in
others, it may evoke various concerns which could be deeply damaging
by calling into question the professional,
moral, and ethical
qualities of a candidate. Such a view, while it may be based on
what emerged from the public interview,
may be no more than just a
view or an impression that is subjectively held and may well fall
short of being a proven fact.
The view or impression will
nevertheless be articulated in the deliberative process.
[194]
Members
of the JSC have an obligation to ventilate concerns, where those
concerns cast doubt on a candidate’s capability to
exercise the
necessary fidelity, integrity, and commitment to the constitutional
ethos demanded of the judiciary. Even if
concerns raised do not
necessarily feature in the final reasons for determination of a
candidacy, they will, however, remain part
of the record and, if
disclosed, enter the public domain. This could potentially tar
a candidate’s future applications
or general reputation.
[195]
They
could be deeply damaging or possibly destructive of a reputation and
there is little that can be done to dispute any concerns
raised in
the record. The rules of natural justice do not apply during
the deliberative process and negative views, opinions,
or impressions
will forever remain part of the record and in a real way attach to a
candidate.
[169]
I am not convinced that our considerable commitment to the
constitutional values of human dignity and privacy should countenance
such a consequence. This is not about being over-sensitive to
the candidates; it is about protecting the dignity and privacy
of
candidates during a part of a process where they have no voice or
avenue for response.
[196]
There
is a real risk that legal and judicial careers could face unwarranted
and unjustified risk by the disclosure of untested views,
opinions,
and impressions that may instinctively emerge from a free-flowing and
robust deliberative process. The need for
openness,
transparency, and accountability cannot be ignored; however, on
balance, concern around the dignity and privacy implications
of
disclosure of the JSC’s deliberative process is a strong factor
in favour of maintaining the existing confidentiality
regime.
Confidentiality of the deliberations justifiably protects the dignity
and privacy interests of the candidates that
come before the
JSC.
[170]
In
SCA
SANRAL
, the Supreme Court of Appeal held
that public bodies can have a claim to confidentiality “[b]ut
any claim of confidentiality
arises from other interests such as
security or perhaps even the privacy rights of persons mentioned in
the documents, but not
from [a public body’s] right to
privacy”.
[171]
Members of the JSC
[197]
The
members of the JSC carry a significant constitutional obligation to
recommend fit and proper candidates for judicial office.
They
are required to act with integrity and show the highest standard of
professionalism in the discharge of those duties.
Consistent
with those obligations, one would expect nothing less than rigour,
robustness, and candour when examining candidates’
credentials
in an application for judicial office. The public interview
process is thus as much a test of the candidates’
suitability
as it is about the members of the JSC’s commitment to the
process.
[198]
However,
the deliberative process also allows members the necessary legal and
constitutional space for debate, discussion, a testing
of views, the
articulation of impressions, persuasion, and correction.
[172]
It is in this process that members may express a view that may
ultimately not be sustainable, but is nevertheless justifiably
and
properly expressed at the time. That view may be damaging to a
candidate and ultimately the member who expressed it will
remain the
source of that damage with all the attendant consequences that go
with it.
[173]
Should the cloak of confidentiality be lifted, through public
disclosure, JSC members could face the very real threat of
delictual
liability for defamation.
[174]
Expressing concerns about a candidate’s potential
discriminatory beliefs or susceptibility to corruption, among other
concerns, is vitally important to ensure that the judiciary’s
independence, integrity, and fidelity to the constitutional
ethos are
maintained.
[175]
The risk of appointing a judge out of sync with the necessary
constitutional values is so serious that it warrants the
confidentiality
protections to ensure no chilling effect stifles
members raising concerns.
[199]
An
important additional consideration is that in deliberations, if they
are to be effective and meaningful, the disposition to change
one’s
mind and be convinced must be a feature of that process. It
reflects the true nature of evaluative discussions
where one
participant’s force of argument and clarity in reasoning, may
persuade another participant to change or even totally
abandon a
previously held view. It is this ability to persuade and be
persuaded that distinguishes the deliberations of the
JSC from the
public interview process. Without confidentiality being
attached to those deliberations, there is a real danger
that this
possible shift in discourse about candidates’ suitability may
never happen. A member of the JSC in the knowledge
that a view,
even a provisional one, is cemented into a disclosable record, may
either not offer it or if offered may be unwilling
to change or
abandon it on the record even if there was a compelling case to do
so. There must be a substantial risk that
the loss of
confidentiality in the deliberative process may result in
deliberations that are not open, frank or robust but rather
a
carefully choreographed dialogue that is heavily influenced by the
knowledge that every part of it is part of a disclosable
record.
[176]
Such an outcome can hardly be consistent with the objective of
choosing the best men and women to serve the judiciary of
South
Africa.
The JSC as an institution
[200]
When
an institution can enhance the process by which it selects and
recommends candidates for judicial appointment, it contributes
positively to the independence of the judiciary and enables it to
discharge its constitutional obligations diligently. In
De
Lange
, Ackermann J held—
“judicial
independence . . . is foundational to and indispensable for the
discharge of the judicial function in a constitutional
democracy
based on the rule of law. This independence, of which
structural independence is an indispensable part, is expressly
proclaimed, protected and promoted by . . . section 165 of the
Constitution in the following manner:
‘(2) The courts are independent
and subject only to the Constitution and the law, which they
must
apply impartially and without fear, favour or prejudice.
(3) No person or organ of
state may interfere with the functioning of the courts.
(4) Organs of state,
through legislative and other means, must assist and protect the
courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.’”
[177]
[201]
The
JSC is one of the state organs at the front line to protect the
courts and ensure their “independence, impartiality, dignity,
accessibility, and effectiveness”.
[178]
For the reasons already given, private deliberations promote these
constitutional values.
[179]
They allow the institution the space and the latitude to undertake,
with the necessary degree of rigour, the evaluation of
competing
candidates. It allows all views to emerge and through a process
of debate and discussion, there is the advancement
of some candidates
and the elimination of others. While, the reasons that the JSC
ultimately provides should be consistent
with the deliberations,
equally not everything that is the subject of the deliberations will
be relevant to the reasons given.
[180]
[202]
The
confidentiality of the deliberations also bolster the ability of the
JSC as an institution to, in the overall scheme of things,
make
recommendations for judicial office that arise from a transparent
process and are properly motivated. The fact that
its
deliberations are private does not detract from this but serves to
advance the dignity and privacy of the process and those
of the
candidates who come before it and the members who participate in
it.
[181]
[203]
Finally,
all of this happens in a manner that is constitutionally
permissible. There was certainly no suggestion in these
proceedings that the confidentiality provisions in the JSC Act and
JSC Procedure are constitutionally suspect.
[204]
I
would, accordingly, conclude that even though the deliberations of
the JSC are relevant and should ordinarily be part of the record
in
terms of rule 53, considerations of confidentiality justify
their exclusion for the reasons I have given relating to the
interests of the candidates, the JSC members, and the JSC
institutionally.
Exclusion results in an inequality of
arms
[205]
There
would certainly be a live and real concern if a litigant was expected
to litigate without the relevant record or where there
was a
disparity in what was available to the respective parties. That
situation does not arise in these proceedings, nor
will it in
proceedings where the claim of confidentiality in private
deliberations is successfully invoked. In practice,
where a
proceeding includes a record, that excludes the private
deliberations, but includes the reasons for any recommendations,
that
record will be filed. The parties to the proceedings will be
confined to the four corners of that record in advancing
their
respective cases.
[206]
It is
inconceivable that one party may somehow have access to private
deliberations which are not part of the record to bolster
its case.
Even if such access was possible, notwithstanding that it may be
unprofessional, unethical and trigger a fair trial
challenge, it is
not clear how such information could be used to advance a litigant’s
case, when it remains outside of the
record. Deliberation
transcripts may provide a connection to the reasons that are
furnished but at the same time they may
contain material that is
disconnected from the final decision. Even if the applicant
were granted the relief sought, it would
not be better off toward
obtaining equality of arms, due to the fragmented nature of the
deliberative information and its possible
disconnection from the
final vote tally due to the imposition of a secret ballot.
[182]
Concerns of impropriety and
reputational damage to the JSC
[207]
Can
the private deliberations create the enabling environment for
impropriety and, with that, bring reputational damage to an
institution
such as the JSC? These must remain valid concerns
in a society where impropriety has become notorious. I do not,
however,
think that confidentiality carries any real risk of
shielding impropriety in the JSC process.
[208]
The
first judgment deals with the composition of the JSC and then
concludes that those that make up its membership are eminently
qualified for membership of the JSC.
[183]
I fully associate myself with this conclusion and would argue that
the JSC’s very composition provides not an absolute,
but a
constitutionally sound guarantee against impropriety. It is
difficult to imagine that a body such as the JSC, comprising
as it
does a wide diversity in its membership across political,
ideological, and legal persuasions, will somehow collectively
contrive to shield any impropriety in the institution.
[209]
I am
also not convinced that non disclosure of the private
deliberations will lead to reputational damage for the JSC.
As
pointed out in this judgment, the JSC process is a substantially
transparent one and the deliberative process, which is private,
is
simply one segment in that process.
[184]
The growing constitutional maturity of the South African public will
see and understand this dispute in its proper context
as part of an
important balancing exercise, weighing openness, accountability, and
transparency, as well as access to courts, against
judicial
independence, dignity, and privacy. The necessary balancing of
constitutional values to guide the interpretation
of rule 53
motivates towards the finding that disclosure of the JSC
deliberations record would not be in line with the “spirit,
purport and objects” of the Constitution.
[185]
In any event, private deliberations have been a part of the JSC
process for a considerable time now,
[186]
and there is no evidence advanced before this Court that they have
negatively impacted upon the standing, independence, and integrity
of
the JSC as a constitutional body.
Attaching a confidentiality regime to
the record
[210]
The
applicant in its written submissions in this Court, and without
conceding that a proper case for confidentiality was advanced,
invited the Court, if necessary and if it was so inclined, to attach
a confidentiality regime to the record of private deliberations
which
would make it available only to the applicant and its legal
representatives. While in principle this mechanism may
appear
workable, in practice such a regime
is unlikely
to achieve the confidentiality it contemplates. Even if access
to the deliberations of the JSC are limited to
the parties and their
lawyers, the material in the deliberations is likely to find its way
into affidavits and oral submissions
made by the parties. Even
if reference to commissioners and candidates were capable of being
anonymised in these affidavits
and submissions, it is unlikely to
protect the confidentiality of the material. This is largely
due to the nature and knowledge
within the relatively small and well
connected legal community in South Africa, which would make it
relatively easy for the public
to identify commissioners and
candidates even from an anonymised record, simply by reference to the
content of the remarks made
and the nature of the deliberations
evidenced from the record. Thus, such an option would fall
considerably short in practice
of achieving the limited level of
confidentiality it contemplates.
Disclosure of deliberations and the
secret ballot
[211]
Members
of the JSC vote in secret and while the secrecy of the ballot within
the JSC is not the subject of the relief sought in
these proceedings,
it must follow that if the deliberations of the JSC become part of a
disclosable record, then there exists the
distinct possibility that
those deliberations will indicate the preference of members of the
JSC in respect of the candidates before
them and will by so doing
effectively undermine the secrecy of the ballot.
[187]
[212]
Members
of the JSC are often called upon to express opinions and vote in
respect of candidates who, in many instances, will be known
to them
either as colleagues or acquaintances. In this regard, the
judges, lawyers, academics and politicians who serve on
the JSC are
called upon to express views and cast votes in relation to these
candidates with honesty and integrity. The secrecy
of the
ballot goes a long way to ensuring that they are able to do so
without compromising friendships and relationships that exist
and
indeed to separate the personal from the professional.
[188]
If the deliberations of the JSC become part of a disclosable record,
then the voting preferences of its members become public
with all the
attendant consequences. In this way the secrecy of the ballot
which goes a long way towards enhancing the integrity
of the
selection process runs the real risk of being laid bare.
[189]
This is another reason for the retention of the confidentiality which
attaches to those deliberations.
Conclusion
[213]
I
have sought to demonstrate that excluding the private deliberations
of the JSC from the record, in terms of rule 53, does not
injure the
applicant’s right to properly prosecute its review application,
nor does it impermissibly breach the principles
of openness and
transparency. Disclosure of those deliberations, however,
carries the real risk of causing substantial harm
to the dignity,
privacy, and reputational interests of many. At the same time
it may also undermine the effective functioning
of the JSC in the
discharge of its constitutional mandate to promote judicial
independence.
[214]
I
would, for these reasons, dismiss the appeal and make no order as to
costs.
For the Applicant:
D Unterhalter SC, M Du Plessis and N Dyirakumunda instructed by
Webber Wentzel.
For the Respondent:
I Jamie SC and A Platt
SC instructed by the State Attorney.
[1]
Rule 53(1) provides:
“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, quasi-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 chairperson
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, chairperson or
officer, as the case may be, to despatch, 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 or she is by law required or desires
to give or make,
and to notify the applicant that he or she has done so.”
[2]
Helen Suzman Foundation v Judicial Service Commission
[2014]
ZAWCHC 136
;
2015 (2) SA 498
(WCC) (High Court judgment).
[3]
Helen Suzman Foundation v Judicial Service Commission
[2016]
ZASCA 161
;
2017 (1) SA 367
(SCA) (SCA judgment).
[4]
Section 174(6) of the Constitution provides that “[t]he
President must appoint the judges of all other courts on the advice
of the Judicial Service Commission”. This is a reference
to judges other than the judges of the Constitutional Court,
and the President and Deputy President of the
Supreme Court of Appeal.
[5]
SCA judgment above n 3 at para 39.
[6]
Id at para 27.
[7]
Procedure of Commission, GN R423
GG
24596, 27 March 2003.
[8]
Section 34 of the Constitution provides:
“Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[9]
Jockey Club of South Africa v Forbes
[1992] ZASCA 237
;
1993
(1) SA 649
(A) (
Jockey Club
) at 661.
[10]
See
Jockey Club
id where it was held at 660:
“Not
infrequently the private citizen is faced with an administrative or
quasi-judicial decision adversely affecting his
rights, but has no
access to the record of the relevant proceedings nor any knowledge
of the reasons founding such decision.
Were it not for Rule 53
he would be obliged to launch review proceedings in the dark and,
depending on the answering affidavit(s)
of the respondent(s), he
could then apply to amend his notice of motion and to supplement his
founding affidavit.”
In similar vein, the Supreme Court of
Appeal held in
Bridon International GMBH v International Trade
Administration Commission
[2012] ZASCA 82
;
2013 (3) SA 197
(SCA)
(
Bridon
) at para 31:
“[W]
ithout
knowing the basis for the decision, Casar [the review applicant]
will have to mount [its] challenge in the dark against
an opponent
with perfect night vision, in that it knows exactly what information
it had considered. For example, Casar
will hardly be able to
contend that the decision was irrational; that irrelevant
considerations were taken into account; or that
the decision was
taken arbitrarily or capriciously
.”
[11]
Jockey Club
id at 660 and 662 and
Lawyers for Human Rights
v Rules Board for Courts of Law
[2012] ZAGPPHC 54;
2012 (7) BCLR
754
(GNP) at para 23.
[12]
Democratic Alliance v Acting National Director of Public
Prosecutions
[2012] ZASCA 15
;
2012 (3) SA 486
(SCA) at para 37.
[13]
Lawyers for Human Rights
above n 11 at para 23.
[14]
Jockey Club
above n 9 at 660G.
[15]
Turnbull-Jackson v Hibiscus Coast Municipality
[2014] ZACC
24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR 1310
(CC) at para 37.
[16]
Muller v The Master
1991 (2) SA 217
(N) at 219J-220C.
[17]
City of Cape Town v South African National Roads Agency Ltd
[2013] ZAWCHC 74
(
HC SANRAL
) at para 48.
Though the Supreme Court of Appeal overturned much of the Western
Cape High Court’s reasoning on
appeal, it did not supplant the
view expressed by the High Court on relevance (see
City of Cape
Town v South African National Roads Agency Ltd
[2015] ZASCA 58
;
2015 (3) SA 386
(SCA) (
SCA SANRAL
)).
[18]
Zeffertt and Paizes
The South African Law of Evidence
2 ed
(LexisNexis, Durban 2009) at 573.
[19]
Unilever plc v Polagric (Pty) Ltd
2001 (2) SA 329
(C)
(
Unilever
) at 339J. See also
Crown Cork & Seal
Co Inc v Rheem South Africa (Pty) Ltd
1980 (3) SA 1093
(W)
(
Crown Cork
) at 1099G-I;
S v Naicker
1965 (2) SA 919
(N) at 934G
; Rutland v Engelbrecht
1956 (2) SA 578
(C) at
579D-E and 579G-H; and De Ville
Judicial Review of Administrative
Action in South Africa
revised 1 ed (LexisNexis Butterworths,
Durban 2005) at 310.
[20]
Johannesburg City Council v The Administrator Transvaal
(1)
1970 (2) SA 89
(T) at 91G-92B.
[21]
HC SANRAL
above n 17 at para 48. See my comment in n 17
regarding
SCA SANRAL
on this holding. See also
Comair
Ltd v Minister for Public Enterprises
2014 (5) SA 608
(GP)
(
Comair
);
Ekuphumleni Resort (Pty) Ltd v Gambling and
Betting Board, Eastern Cape
2010 (1) SA 228
(E) (
Ekuphumleni
);
and
Afrisun Mpumalanga (Pty) Ltd v Kunene N.O.
1999 (2) SA
599
(T) (
Afrisun
).
[22]
HC SANRAL
id.
[23]
MEC for Roads and Public Works, Eastern Cape v Intertrade Two
(Pty) Ltd
[2006] ZASCA 33
;
2006 (5) SA 1
(SCA) (
Intertrade
)
at para 15.
[24]
SCA judgment above n 3 at para 15.
[25]
For purposes of review, this part of the debate is of relevance in
the context of magistrates as their decisions may be reviewed
by
superior courts. It cannot really be of relevance in the case
of judges whose decisions are subject to appeal, not review.
See
Pretoria Portland Cement Co Ltd v Competition Commission
2003
(2) SA 385
(SCA) at paras 35 and 42 and
Gentiruco AG v Firestone
SA (Pty) Ltd
1972 (1) SA 589
(AD) at 601D-F.
[26]
HC SANRAL
above n 17 at para 48.
[27]
Section 6
of the
Promotion of Administrative Justice Act 3 of 2000
provides:
“(1)
Any person may institute proceedings in a court or a tribunal for
the
judicial review of an administrative action.
(2)
A court or tribunal has the power to judicially review an
administrative
action if—
(a)
the administrator who took it—
(i)
was not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised
by
the empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or condition prescribed
by
an empowering provision was not complied with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an error of law;
(e)
the action was taken—
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another
person or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f)
the action itself—
(i)
contravenes a law or is not authorised by the empowering
provision; or
(ii)
is not rationally connected to—
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
the action concerned consists of a failure to take a decision;
(h)
the exercise of the power or the performance of the function
authorised
by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no
reasonable person could have so exercised the power or performed
the function; or
(i)
the action is otherwise unconstitutional or unlawful.”
Of course, legality review is not
governed by
section 6.
But the principle being addressed here
is applicable even to legality review.
[28]
In
Jockey Club
above
n 9 at 661G-H the Court held:
“More
important in the present context is subrule (4), which enables the
applicant, as of right and without the expense
and delay of an
interlocutory application, to ‘amend, add to or vary the terms
of his notice of motion and supplement the
supporting affidavit’.”
[29]
Telcordia Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
[2006] 139 SCA (RSA)
[2006] ZASCA 112
; ;
2007 (3) SA 266
(SCA) at para 32:
“
The
grounds for any review as well as the facts and circumstances upon
which the applicant wishes to rely have to be set out in
the
founding affidavit. These may be amplified in a supplementary
founding affidavit after receipt of the record from the
presiding
officer, obviously based on the new information which has become
available.”
[30]
Requesting the full record in a bona fide attempt
to determine what factors were probably operative in the
decision-maker’s
mind does not amount to a “fishing
excursion”. See
Johannesburg City Council
above n 20 at 93C-D.
[31]
Section 39(2) of the Constitution provides:
“When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.”
[32]
Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: In Re Hyundai Motor Distributors (Pty)
Ltd v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10)
BCLR 1079
(CC) (
Hyundai
) at para 24.
[33]
Hoexter and Olivier
The Judiciary in South Africa
(Juta &
Co Ltd, Cape Town 2014) at xxvii. As former
Chief Justice Ngcobo has remarked, the role played by
the
judiciary is of far-reaching importance:
“The
judicial branch is responsible not only for resolving disputes
between private parties, but also for resolving disputes
between
government and private parties and even disputes between different
branches or sectors of government. It has the
responsibility
to protect individuals from government overreaching, and it plays an
important role in our country’s constitutional
balance of
powers.” (Ngcobo “Sustaining Public Confidence in
the Judiciary: An Essential Condition for Realising
the Judicial
Role”
(2011) 128
SALJ
5
at 9).
[34]
Mahomed “The Role of the Judiciary in a Constitutional State
Address at the First Orientation Course for New Judges”
(1998)
115
SALJ
111
at 112. See also the words of Kriegler J
in
S
v Mamobolo
[2001] ZACC 17
[2001] ZACC 17
; ;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 16:
“In our
constitutional order the Judiciary is an independent pillar of
State, constitutionally mandated to exercise the
judicial authority
of the State fearlessly and impartially. Under the doctrine of
separation of powers it stands on an
equal footing with the
executive and the legislative pillars of State; but in terms of
political, financial or military power
it cannot hope to compete.
It is in these terms by far the weakest of the three pillars;
yet its manifest independence
and authority are essential. Having
no constituency, no purse and no sword, the Judiciary must rely on
moral authority.
Without such authority it cannot perform its
vital function as the interpreter of the Constitution, the arbiter
in disputes
between organs of State and, ultimately, as the watchdog
over the Constitution and its Bill of Rights – even
against the State.”
[35]
Section 178(1)(a) of the Constitution.
[36]
Section 178(1)(b).
[37]
Section 178(1)(d).
[38]
Section 178(1)(k).
[39]
Section 178(1)(c).
[40]
Section 178(1)(e).
[41]
Section 178(1)(f).
[42]
Section 178(1)(g).
[43]
Section 178(1)(h).
[44]
Section 178(1)(i).
[45]
Section 178(1)(j).
[46]
This phrase is borrowed from Van den Heever JA in
Herschel
v Mrupe
1954 (3) SA 464
(A) at
490F.
[47]
2 of 2000.
[48]
I deal with this basis towards the end of the judgment.
[49]
Section 12(d) provides:
“This Act
does not apply to a record—
. . .
(d)
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 Judicial Service
Commission in
terms of any law.”
[50]
Section 9(a)(i) of PAIA. The other instance is where – in
terms of section 9(a)(ii) – any
person may access
any information that is held by another person and that is required
for the exercise or protection of any rights.
On the issue I
am discussing now, I need not say anything further on this second
instance.
[51]
Bridon
above n 10 at para 23.
[52]
Section 36 provides:
“(1)
Subject to subsection (2), the information officer of a public body
must refuse a request for access to a record of the body if the
record contains—
(a)
trade secrets of a third party;
(b)
financial, commercial, scientific or technical information, other
than trade secrets, of a third party, the disclosure of which would
be likely to cause harm to the commercial or financial interests
of
that third party; or
(c)
information supplied in confidence by a third party the disclosure
of which could reasonably be expected—
(i)
to put that third party at a disadvantage in contractual or
other
negotiations; or
(ii)
to prejudice that third party in commercial competition.
(2)
A record may not be refused in terms of subsection (1) insofar as
it
consists of information—
(a)
already publicly available;
(b)
about a third party who has consented in terms of section 48 or
otherwise in writing to its disclosure to the requester concerned;
or
(c)
about the results of any product or environmental testing or other
investigation supplied by a third party or the result of any such
testing or investigation carried out by or on behalf of a third
party and its disclosure would reveal a serious public safety or
environmental risk.
(3)
For the purposes of subsection (2)(c), the results of any product
or
environmental testing or other investigation do not include the
results of preliminary testing or other investigation conducted
for
the purpose of developing methods of testing or other
investigation.”
[53]
I have inserted “confidential” because from a reading of
paragraphs (a)-(c) of section 36(1), it is plain that the
information referred to is confidential in nature.
[54]
Bridon
above n 10 at para 25.
[55]
71 of 2002.
[56]
Here is what section 35 which is headed “Proceedings in
contested claims” provides in full:
“(1)
A claimant affected by a determination of the Commission in terms of
section 34(3) may appeal against that determination to a High
Court, subject to its rules, in the prescribed manner and
form.
(2)
A person who seeks access to information which the Commission has
determined is, by nature, confidential, or should be recognised as
otherwise confidential, may—
(a)
first, request that the Commission mediate between the owner of
the
information and that person; and
(b)
failing mediation in terms of paragraph (a), apply to a High Court
for—
(i)
an order setting aside the determination of the Commission;
or
(ii)
any appropriate order concerning access to that information.
(3)
Upon appeal in terms of subsection (1), or an application in terms
of subsection (2)(b), the High Court may—
(a)
determine whether the information—
(i)
is, by nature, confidential; or
(ii)
should be recognised as being otherwise confidential; and
(b)
if it determines that it is confidential, make any appropriate order
concerning access to that confidential information.”
[57]
See [137].
[58]
Bridon
above n 10 at paras 18-22.
[59]
Id.
[60]
Id at para 22.
[61]
9 of 1994.
[62]
This section provides: “The Judicial Service Commission may
determine its own procedure, but decisions of the Commission
must be
supported by a majority of its members.”
[63]
Procedure of Commission above n 7.
[64]
Section 2 of the Constitution.
[65]
Democratic Alliance
above n 12 at para 37. The role of
discovery in general in ensuring fair trial rights was recognised in
the pre-Constitutional
era. In
Crown Cork
above n 19,
the High Court, in determining that it is permissible for the Court
to impose measures to safeguard, noted at 1100B-C:
“
But
it is to be stressed that care must be taken not to place undue or
unnecessary limits on a litigant's right to a fair trial,
of which
the discovery procedures often form an important part. I trust
that by holding what I have I have not opened a
new door to
interlocutory litigation or to a flood of ill-founded objections on
grounds of confidentiality. Practitioners
would do well to
remember that the normal rule is full inspection.”
In the specific context of rule 53,
this dictum was quoted with approval by the Supreme Court of Appeal
in
Unilever
above n 19 at 341G-H.
[66]
Bridon
above n 10 at para 31.
[67]
Hyundai
above n 32 at para 23.
[68]
Compare
Independent Newspapers (Pty) Ltd v Minister for
Intelligence Services: In re Masetlha v President of the Republic of
South Africa
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR
771
(CC) (
Masetlha
) at paras 54-5 where this Court held:
“
A
mere classification of a document within a court record as
‘confidential’ or ‘secret’ or even
‘top secret’
under the operative intelligence
legislation or the mere
ipse
dixit
[say-so] of the
minister concerned does not place such documents beyond the reach of
the courts. Once the documents are
placed before a court, they
are susceptible to its scrutiny and direction as to whether the
public should be granted or denied
access.
”
[69]
Tulip Diamonds FZE v Minister of Justice and Constitutional
Development
[2012] ZASCA 111
;
2013 (1) SACR 323
(SCA) at para
15.
[70]
Section 1 of the Constitution provides:
“The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(d)
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.”
[71]
South African Broadcasting Corporation Ltd v National Director of
Public Prosecutions
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007
(2) BCLR 167
(CC) (
SABC
) at para 32.
[72]
Compare
Azanian Peoples Organization (AZAPO) v President of the
Republic of South Africa
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at para 17 where Mahomed DP says:
“Most of the
acts of brutality and torture which have taken place have occurred
during an era in which neither the laws
which permitted the
incarceration of persons or the investigation of crimes, nor the
methods and the culture which informed such
investigations, were
easily open to public investigation, verification and correction.
Much of what transpired in this
shameful period is shrouded in
secrecy and not easily capable of objective demonstration and proof.
. . . Secrecy and authoritarianism
have concealed the truth in
little crevices of obscurity in our history.”
[73]
Masetlha
above n
68
at para 25.
[74]
See [210].
[75]
Bridon
above n 10 at para 9.
[76]
Criticism of these stringent regimes that I am aware of relates to
their unfairness – real or perceived – to
the litigant seeking disclosure who is denied access in the sense
that only her or his legal representatives are allowed access,
and
not to them not being sufficiently foolproof. See
Bridon
id at para 36.
[77]
Rule 30A headed “non-compliance with rules” 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.”
[78]
Rule 30A of the Uniform Rules of Court 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.”
See also
Dalhouzie v Bruwer
1970
(4) SA 566
(C) at 571E.
[79]
PFE International Inc (BVI) v Industrial Development Corporation
of South Africa
Ltd
[2012] ZACC 21
;
2013 (1) SA 1
(CC);
2013 (1) BCLR 55
(CC) at para 31.
[80]
Section 173 provides:
“The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to
protect and regulate
their own process, and to develop the common law, taking into
account the interests of justice.”
[81]
High Court judgment above n 2 at para 4.
[82]
Id at para 3.
[83]
Rule 6(11) of the Uniform Rules of Court provides:
“Notwithstanding
the aforegoing subrules, interlocutory and other applications
incidental to pending proceedings may be
brought on notice supported
by such affidavits as the case may require and set down at a time
assigned by the registrar or as
directed by a judge.”
[84]
Uniform Rules of Court above n 77.
[85]
Rule 30A of the Uniform Rules of Court was introduced by GN R881,
GG
6217, 26 June 1998.
[86]
High Court judgment above n 2 at para 14.
[87]
Id at paras 15-6.
[88]
Comair
above n 21;
South African National Roads Agency
Limited v City of Cape Town; In Re: Protea Parkway Consortium v City
of Cape Town
[2014] ZAWCHC 125
;
[2014] 4 All SA 497
(WCC);
Lawyers for Human Rights
above n 11;
Ekuphumleni
above
n 21; and
Johannesburg City Council
above n 20.
[89]
Intertrade
above n 23.
[90]
High Court judgment above n 2 at para 29.
[91]
These included the United States, Canada, Australia, Malaysia,
Tanzania and Zambia.
[92]
High Court judgment above n 2 at para 48.
[93]
Id at para 49.
[94]
Afrisun
above n 21.
[95]
SCA SANRAL
above n 17.
[96]
SCA judgment above n 3 at para 39.
[97]
PFE International Inc (BVI)
above n 79 at para 30.
[98]
SABC
above n 71 at paras 39-41 and
Mabaso v Law Society of
the Northern Provinces
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005
(2) BCLR 129
(CC) at para 20.
[99]
61 of 1973.
[100]
Giddey N.O. v JC Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at para 20 quoting
Bookworks (Pty) Ltd v Greater Johannesburg
Transitional Metropolitan Council
[1999] 4 SA 799
(W) at
807H-808C.
[101]
SABC
above n 71 at para 39.
[102]
Mabaso
above n 98 at para 20.
[103]
Jockey Club
above n 9;
Comair
above n 21;
SCA
SANRAL
above n 17;
Lawyers for Human Rights
above n 11;
Ekuphumleni
above n 21; and
Johannesburg City Council
above n 20.
[104]
Jockey Club
above n 9 at 662.
[105]
Ekuphumleni
above n 21 at para 9.
[106]
3 of 2000.
[107]
High Court judgment above n 2 at para 29.
[108]
JMYK Investments CC v 600 SA Holdings (Pty) Ltd
2003 (3) SA
470
(W) and
S v Van Wyngaardt
1965 (2) SA 319 (O).
[109]
66 of 1995.
[110]
Sidumo v Rustenburg Platinum Mines Ltd
[2007] ZACC 22
;
2008
(2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at para 88.
[111]
See [29] to [30].
[112]
High Court judgment above n 2 at para 15.
[113]
Id.
[114]
Id.
[115]
SACCAWU v President of the Industrial Tribunal
[2000] ZASCA
74
;
2001 (2) SA 277
(SCA) at para 7 and
Muller
above n 16.
[116]
24 of 1936.
[117]
Muller
above n 16 at 218F-H.
[118]
Id at 219A-C.
[119]
Id at 221H-I.
[120]
High Court judgment above n 2 at para 48.
[121]
Id at para 51.
[122]
See [32].
[123]
Section 173 of the Constitution Provides:
“The Constitutional Court, the
Supreme Court of Appeal and the High Court of South Africa each has
the inherent power to
protect and regulate their own process, and to
develop the common law, taking into account the interests of
justice.”
[124]
SABC
above n 71 at para 55.
[125]
Giddey
above n 100 at para 20.
[126]
Centre for Child Law v The Governing Body of H
ö
erskool
Fochville
[2015] ZASCA 155
;
2016 (2) SA 121
(SCA) at para 16.
[127]
Maharaj v Rampersad
1964 (4) SA 638
(A);
[1964] 4 All SA 466
(A) at 646C-E.
[128]
National Union of Metal Workers of South Africa v Intervalve
(Pty) Ltd
[2014] ZACC 35
;
2015 (2) BCLR 182
(CC); (2015) 36 ILJ
363 (CC) (
Intervalve
) at para 44.
[129]
Maharaj
above n 127 at 646C-F.
[130]
Rule 53 provides:
“(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, quasi-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 chairperson
of the court, tribunal or board or to the officer, as the
case may
be, and to all other parties affected—
. . .
(b)
calling upon the magistrate, presiding officer, chairperson or
officer, as the case may be, to despatch, 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 or she is by law required or desires
to give or make,
and to notify the applicant that he or she has done so.”
[131]
See [10].
[132]
See [81].
[133]
Section 1 of the Constitution reads:
“The Republic of South Africa is
one, sovereign, democratic state founded on the following values:
. . .
(d)
Universal adult suffrage, a national common voter’s roll,
regular elections and a multi-party system of democratic government,
to ensure accountability, responsiveness and openness.”
[134]
This moderation occurs when a court grants an anonymisation order to
protect a child’s or an otherwise vulnerable individual’s
rights. See
Member of the Executive Council for Health and
Social Development, Gauteng v DZ obo WZ
[2017] ZACC 37
;
2018 (1)
SA 335
(CC);
2017 (12) BCLR 1528
(CC) at fn 1.
[135]
This protection occurs where a court issues a publication ban on
proceedings involving intimate family interests. See for
example the ban on publishing information “
to
the proceedings of a children’s court which reveals or may
reveal the name or identity of a child who is a party or a
witness
in the proceedings” without a court’s consent in section
74 of the Children’s Act 38 of 2005.
See also
section
11(2)(a)
of the
Domestic Violence Act 116 of 1998
which states
that “no person shall publish in any manner any information
which might, directly or indirectly, reveal the
identity of any
party to the proceedings”.
[136]
Section 165 of the Constitution reads:
“(1)
The judicial authority of the Republic is vested in the courts.
. . .
(4)
Organs of state, through legislative and other measures, must
assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.”
[137]
See [18] to [19]. See also
HC SANRAL
above n 17 at para
48 and
Johannesburg City Council
above n 20 at 91G-92B.
[138]
See [20]. See also SCA judgment above n 3 at para 39.
[139]
See [22].
[140]
See
Comair
above n 21 at 618F-619D;
Ekuphumleni
above
n 21 at para 9; and
Muller
above n 16 at 220D-F.
[141]
See
Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v
Nelson Mandela Metropolitan University
2009 (5) SA 441
(SE) at
para 7.1 and
Pieters v Administrateur, Suidwes-Afrika
1972
(2) SA 220
(SWA) at 225G.
[142]
Section 178(6) of the Constitution reads “[t]he [JSC] may
determine its own procedure, but decisions of the Commission
must be
supported by a majority of its members”.
[143]
Section 38(1) of the JSC Act provides:
“No person, including any 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.”
[144]
Procedure of Commission above n 7. Regulation 3(k) of the JSC
Procedure provides that “[a]fter completion of the
interviews,
the Commission shall deliberate in private and shall, if deemed
appropriate, select the candidates for appointment
by consensus or,
if necessary, majority vote”.
[145]
Section 39(2) of the Constitution provides that “[w]hen
interpreting any legislation, and when developing the common law
or
customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights”.
[146]
Constitutional interpretation should reflect the dynamic and
evolving nature of the constitutional ethos which is “rooted
in an understanding of the context and purpose of the
Constitution”. See
Ferguson v Rhodes University
[2017] ZACC 39
;
2018 (1) BCLR 1
(CC) at para 18 and fn 15.
[147]
See
SCA SANRAL
above n 17 at para 12:
“
The
learned Chief Justice began by saying that the ‘open court
principle was rightly venerated as a key component of the
rule of
law’
.
She elaborated – the open court principle meant in practice
that: (a) court proceedings including the evidence and
documents
disclosed in proceedings should be open to public scrutiny; and (b)
juries and judges should give their decisions in
public. (It
did not require every aspect of the judicial process to be open, so
that for example judges’ deliberations
could remain private,
and some evidence might be protected by privilege).”
[148]
See [55].
[149]
Ontario (Public Safety and Security) v Criminal Lawyers’
Association
2010 SCC 23
;
[2010] 1 SCR 815
(
Criminal Lawyers’
Association
) at para 40. See also
Mackeigan v Hickman
[1989] 2 SCR 796
at 842-3.
[150]
In re Enforcement of a Subpoena
463 Mass 162
(2012)
(
Enforcement of a Subpoena
) at 178. The Massachusetts
Supreme Judicial Court, the apex court in that state, appeared to
rely on the United States
Supreme Court in
United States v Morgan
[1941] USSC 123
;
313 U.S. 409
(1941) at 422 where it held that the “mental
processes” of a judge, like that of a member of the executive,
“cannot
be subjected to such a scrutiny” as “such
examination of a judge would be destructive of judicial
responsibility”.
[151]
Enforcement of a Subpoena
id at paras 3, 6 and 9.
[152]
Mail and Guardian Ltd v Judicial Service Commission
[2009]
ZAGPJHC 29 (
Mail and Guardian
) at para 20.
[153]
Id.
[154]
See Malan “To what extent should the Convention of Cabinet
Secrecy still be recognised in South African constitutional
law?”
(2016) 1
De Jure
117:
“The basis of the convention of
cabinet secrecy is the principle of the collective accountability of
the national executive
(cabinet) to the national legislature (and to
the public). In terms of this principle, all members of
cabinet assume collective
responsibility for the policies adopted by
cabinet, thus preventing an individual member from distancing
himself/herself from
a decision on the grounds that he/she is not in
agreement with it and has expressed such disagreement during cabinet
deliberations.
In this way:
·
cabinet solidarity is maintained and promoted; and
·
cabinet maintains a united front to the national legislature (and
the public).
By the same token, coherent and stable
government is maintained.
This coherence has the effect of
barring public access to the content of cabinet deliberations, which
is the primary subject matter
of the convention of cabinet secrecy.
At the same time, it also precludes any individual member from
escaping collective
accountability by relying on the content of such
deliberations to show that he/she has expressed disagreement with
the cabinet
decision in question.”
[155]
President of the Republic of South Africa v South African Rugby
Football Union
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10)
BCLR 1059
(CC) (
SARFU
) at para 243.
[156]
Babcock v Canada (Attorney General)
2002 SCC 57
; [2002] 3 SCR
at para 18. See also
Criminal Lawyers’
Association
above n 149 at para 40.
[157]
Section 32 of the Constitution reads:
“Access to information
(1)
Everyone has the right of access to—
(a)
any information held by the state; and
(b) any
information that is held by another person and that is required
for
the exercise or protection of any rights.
(2)
National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the
administrative and financial burden on the state.”
[158]
See
[43] for reference to section 12 which excludes the JSC from the
effects of PAIA. If PAIA were to include the JSC that
might
contradict the JSC’s constitutional power to control its own
processes under section 178(6) of the Constitution and
raise a
question regarding PAIA’s constitutional validity to regulate
access to the JSC’s information.
[159]
Section 44 of PAIA reads:
“(2) Subject
to subsection (4), the information officer of a public body
may
refuse a request for access to a record of the body if—
. . .
(b) the
record contains evaluative material, whether or not the person
who
supplied it is identified in the record, and the disclosure of the
material would breach an express or implied promise which
was—
(i)
made to the person who supplied the material; and
(ii) to
the effect that the material or the identity of the person
who
supplied it, or both, would be held in confidence.”
[160]
Section 1 of PAIA.
[161]
Belwana v Eastern Cape MEC for Education
2017 (6) SA 182
(ECB) at paras 68-9.
[162]
Regulation 3 of the JSC Procedure reads:
“The procedure for the selection
of candidates for appointment as judges of the High Court in terms
of section 174(6) of
the Constitution shall be as follows:
(a) The
President of the Supreme Court of Appeal or responsible Judge
President shall inform the Commission when a vacancy occurs or will
occur in the Supreme Court of Appeal or any
provincial or local division of the High Court.
(b) The
Commission shall inform the institutions of the vacancy and
shall
call for nominations by a specified closing date.
(c)
A nomination contemplated in paragraph (b) shall consist of—
(i)
a letter of nomination
which identifies the person making the
nomination, the candidate and the division of the High Court for
which he or she is nominated;
(ii)
the candidate’s written
acceptance of the nomination;
(iii)
a detailed
curriculum vitae
of the candidate which shall
disclose his or her formal qualifications for appointment as
prescribed in section 174(1) of the
Constitution, together with a
questionnaire prepared by the Commission and completed by the
candidate; and
(iv)
such further pertinent information concerning
the candidate as he or
she or the person nominating him or her, wishes to provide.
. . .
(e) The
screening committee may, in its discretion, receive and consider
nominations received after the specified closing date and shall
prepare a short list of candidates to be interviewed, which shall
include all candidates who qualify for appointment.
. . .
(f)
(i)
The short list of candidates proposed by the screening
committee
shall forthwith be submitted to the members of the Commission.
. . .
(g) The
short list shall be distributed to the institutions for comment
by a
specified closing date.
(h)
After the closing date referred to in paragraph (g), the short
list
and all the material received on short-listed candidates shall be
distributed to all the members of the Commission.
(i)
The Commission shall interview all short-listed candidates.
(j)
The interviews contemplated in paragraph (i) shall be open
to the
public and the media subject to the same rules as those ordinarily
applicable in courts of law and shall not be subject
to a set time
limit.
(k)
After completion of the interviews, the Commission shall deliberate
in private and shall, if deemed appropriate, select the candidates
for appointment by consensus or, if necessary, majority vote.
(l)
The Commission shall advise the President of the Republic
of the
name of the successful candidate for each vacancy.
(m) The
Commission shall announce publicly the name of the successful
candidate for each vacancy.”
See also section 5 of the JSC Act which
reads “[t]he Minister of Justice shall by notice in the
Gazette, make the particulars
of the procedure which the Commission
has determined in terms of section 105(4) of the Constitution”.
[163]
The institutions are defined in regulation 1 of the JSC Procedure
and include—
“the Law Society of South Africa,
the Black Lawyers Association, the Department of Justice and
Constitutional Development,
the General Council of the Bar of South
Africa, the Magistrates Association of South Africa, the National
Association of Democratic
Lawyers, the Society of Teachers of Law
and the Association of Regional Magistrates of South Africa, and
such other institutions
with an interest in the work of the
Commission as the Commission may identify from time to time.”
[164]
In comparison to international law, South Africa’s system of
judicial appointments is largely open and transparent.
For
instance, in Canada, the judicial appointment of judges was reviewed
in 2016 to enhance the objectives relating to openness
and
transparency. The Independent Advisory Board for Supreme Court
Appointments (Advisory Board) was established as an
independent and
non-partisan body whose primary mandate was to provide
recommendations to the Prime Minister on the appointment
of judges
for the Supreme Court of Canada. The Advisory Board’s
primary mandate is to provide a shortlist of
three to five
candidates, after consultation with the Chief Justice of the Supreme
Court of Canada and other key stakeholders,
for consideration by the
Prime Minister, who will be tasked with choosing the preferred
candidate. Thereafter, the Minister
and the Chair of the
Advisory Board will appear in Parliament to engage with Members of
Parliament and Senators before the appointment
is finalised.
Although the Canadian process has improved in its efforts to achieve
transparency and openness, when compared
with the South African
process of judicial appointments, ours appears to be leaps ahead of
theirs. See Justin Trudeau,
Prime Minister of Canada “New
process for judicial appointments to the Supreme Court of Canada” (2 August 2016), available at https://pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada.
In the United States, judges at the
federal level are nominated by the President, on the advice and
consent of Senate. The
Department of Justice may, through the
Standing Committee of Federal Judiciary of the American Bar
Association, advice the President
in his task of nominating judges.
At the state level, there are various methods used to select
judges. Some states
use selection commissions, while others
make use of elections when appointing judges. American courts
and academics have,
on numerous occasions, affirmed the existence of
confidentiality of the proceedings relating to judicial
appointments.
When comparing the system of appointing judges
in the United States with that of South Africa, ours appears to
achieve greater
transparency and openness. See High Court
judgment above n 2 at paras 32-7.
[165]
Judicial Service Commission v Cape Bar Council
[2012] ZASCA
115
;
2013 (1) SA 170
(SCA) (
Cape Bar Council
) at
para 46.
[166]
Section 7(1) of the Constitution.
[167]
Regulation 3(k) of the JSC Regulations above n 7. The
reference to “other sources” refers to
professional / legal
bodies and members of the public that
make representation prior to the interview process regarding the
suitability of each candidate.
These representations are
considered by the members of the JSC in their deliberations.
[168]
Cape Bar Council
above n 165 at para 40.
[169]
Namely the
audi alterem partem
(right to be heard) principle
of natural justice would not be engaged given the inability to
respond to the newly publicised
allegations. In connection to
the right to respond and natural justice, see
Psychological
Society of South Africa v Qwelane
[2016] ZACC 48
;
2017 (8) BCLR
1039
(CC) at para 33.
[170]
Ferreira v Levin N.O.; Vryenhoek v Powell N.O.
[1995] ZACC
13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 49:
“Human dignity cannot be fully
valued or respected unless individuals are able to develop their
humanity, their ‘humanness’
to the full extent of its
potential. Each human being is uniquely talented. Part
of the dignity of every human being
is the fact and awareness of
this uniqueness. An individual’s human dignity cannot be
fully respected or valued unless
the individual is permitted to
develop his or her unique talents optimally.”
See also
S v Makwanyane
[1995]
ZACC 3
;
1995 (3) SA 391(CC)
;
1995 (6) BCLR 665
(CC) at para 328:
“The importance of dignity as a
founding value of the new Constitution cannot be overemphasised.
Recognising a right
to dignity is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be
treated as worthy of
respect and concern. This right therefore
is the foundation of many of the other rights that are specifically
entrenched
in chapter 3.”
[171]
SCA SANRAL
above n 17 at para 37.
[172]
Cape Bar Council
above n 165 at para 40.
[173]
SCA judgment above n 3 at para 28.
[174]
Id.
[175]
Particularly when one considers the general lack of these virtues
exhibited by courts in the apartheid era. See the Truth
and
Reconciliation Commission
Truth and Reconciliation Commission of
South Africa Report
(Volume 4, October 1998).
[176]
SCA judgment above n 3 at para 28.
[177]
De Lange v Smuts N.O
.
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 59.
[178]
Section 165(4) of the Constitution.
[179]
Though section 39(2) only refers to promoting the spirit, purport
and objects of the Bill of Rights, this Court has found that
other
constitutional provisions and the values they promote also require
an interpretive injunction to read legislation subject
to the
Constitution, see
Harksen v President of the Republic of South
Africa
[2000] ZACC 29
;
2000 (2) SA 825
(CC);
2000 (5) BCLR 478
(CC) at para 18. Judicial independence is undoubtedly one such
value worthy of the injunction’s effect.
[180]
The rationale for the JSC providing reasons is articulated in
Cape
Bar Council
above n 165 at paras 50-1. The Supreme Court
of Appeal noted that the JSC is not “under an obligation to
give reasons
under all circumstances for each and every one of the
myriad of potential decisions it has to take”.
[181]
SCA judgment above n 3 at para 29.
[182]
Cape Bar Council
above n 165 at para 41.
[183]
See [36] to [37].
[184]
See [187].
[185]
See section 39(2) of the Constitution.
[186]
The SCA judgment above n 3 at para 31 states that private
deliberations have been conducted since the JSC’s inception in
1994.
[187]
See
Cape Bar Council
above n 165 at para 41:
“In order to
protect members from undue pressure, so the deponent for the JSC
said, votes are exercised by secret ballot.
In the result,
nobody knows how another member has voted, or why he or she has
voted one way or the other. 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.”
[188]
United Democratic Movement v Speaker of the National Assembly
[2017] ZACC 21
;
2017 (5) SA 300
(CC);
2017 (8) BCLR 1061
(CC) at
para 74.
[189]
Cape Bar Council
above n 165 at para 41.