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[2014] ZAWCHC 136
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Helen Suzman Foundation v Judicial Service Commission and Others (8647/2013) [2014] ZAWCHC 136; [2014] 4 All SA 395 (WCC); 2015 (2) SA 498 (WCC) (5 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[WESTERN CAPE
DIVISION, CAPE TOWN]
REPORTABLE
CASE
NO: 8647/2013
DATE:
05 SEPTEMBER 2014
In the matter
between:
THE HELEN SUZMAN
FOUNDATION
..............................................................
Applicant
And
JUDICIAL SERVICE
COMMISSION
...............................................................
Respondent
With
POLICE AND
PRISONS CIVIL RIGHTS UNION
..............................
First
Amicus Curiae
NATIONAL
ASSOCIATION OF DEMOCRATIC LAWYERS
..........
Second
Amicus Curiae
DEMOCRATIC
GOVERNANCE AND RIGHTS UNIT
.......................
Third
Amicus Curiae
JUDGMENT
DELIVERED: 5
SEPTEMBER 2014
Le Grange, J:-
[1] This is an
interlocutory application under Rule 6 (11) and 30A for an order
directing the Respondent (“JSC”) 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.
Three amici curiae were granted leave to intervene in these
proceedings. The First Amicus, POPCRU, however
filed a notice to
abide by the decision of this Court.
[2] The Applicant
(“HSF”), in the main application, instituted review
proceedings against the JSC for an order, declaring,
inter alia, that
the ‘decision taken by the Respondent, under section 174(6) of
the Constitution, to advise the President
of the Republic of South
Africa to appoint certain candidates, and not to advise him to
appoint other candidates as judges of this
Division, was unlawful and
or irrational and thus invalid’.
[3] The background
facts underpinning this application are largely common cause and,
briefly stated, are the following. During
August 2013, the JSC filed
the record of its decision containing about six lever arch files. It
included all the applications
of the eight nominees, and the full
transcript of the public interviews. The Record also contains a
summary of the recorded deliberations
(“the Deliberations”)
which were held in private by the JSC after the interviews. The
summary was compiled by the Chief
Justice.
[4] It appears that
the unsuccessful application by Adv J Gauntlett SC is largely the
underlying subject matter in the main application.
As part of the
Rule 53(1)(b) record, reasons were provided in respect of the eight
candidates interviewed for the vacancies in
this Division. In
addition, reasons were furnished by the JSC in November 2012 to
Justice Harmse in relation to why Dalomo AJ (as
he then was) and not
Gauntlett SC was recommended to the State President for a permanent
appointment.
[5] The HSF claims
that it only became aware of the recording of the JSC’s
Deliberations shortly before it was to file its
supplementary
founding affidavit. The HSF wrote to the JSC requesting the
Deliberations. The JSC confirmed the existence of the
Deliberations,
but refused to disclose them. A further round of correspondence
followed between the two parties in which the HSF
again demanded the
recording, and in response the JSC informed the HSF that it already
had all the information it required. The
HSF then launched this
application. The JSC adopted the view that the HSF is not entitled in
law to the Deliberations of the JSC
as they do not form part of the
proceedings in terms of the Rule, and furthermore, the non-disclosure
of the Deliberations is reasoned,
justifiable and in accordance with
several comparative jurisdictions.
[6] The National
Association of Democratic Lawyers, the second amicus, and the
Democratic Governance and Rights Unit (“the
DGRU”), a
unit within the public law department of the University of Cape Town,
the third amicus, have adopted a similar
view to that of the JSC.
[7] Advocates David
Unterhalter SC, Max du Plessis and Tembeka Ngcukaitobi appeared for
the HSF. Advocates Ismail Jamie SC and
Namhla Pakade appeared for
the JSC. The attorney Mr. Clive Hendricks appeared for the first
amicus. The attorney Mr. Fareed Moosa
appeared for the second amicus.
Advocate Karrisha Pillay appeared for the third amicus. I would like
to extend my appreciation
to the legal representatives of the parties
for their comprehensive heads of arguments. It was of great
assistance in preparing
my judgment.
[8] The principal
submissions made by Mr. Unterhalter were as follows: The Record of
Proceedings that was furnished by the JSC is
wholly inadequate as the
Deliberations are the most immediate and accurate record of the
decision and the process leading thereto.
It was argued that access
to the Deliberations is indispensable to any proper determination of
whether there is a rational connection
between the Deliberations, the
Decision and any reason provided by the Respondent. Furthermore, the
Deliberations are a central
aspect of the Record of which the
disclosure is clearly required by Rule 53(1)(b). Moreover, the HSF
will be denied the benefit
of the said Rule and will be forced to
evaluate and argue the rationality, lawfulness and reasonableness of
the JSC’s decision
without the key documents. The submission
was also made that the disclosure of the Deliberations will indeed
further the constitutional
rights of access to information held by
the State, it will advance transparency and accountability and will
support the crucial
tenets of access to courts and equality of arms.
In addition, the JSC’s argument that the Deliberations as
summarized by
the Chief Justice and included in the reasons provided
is sufficient, ignores the law and reality. The submission was made
that
in terms of Rule 53(1)(b) the HSF is entitled to the full record
of the Deliberations and in reality the drafter of the summary
of the
Deliberations has the power to determine what goes into the summary
and would be in a position to tailor the reflections
of the
Deliberations.
[9] Mr. Jamie argued
that the selection of judges is a vital and sensitive constitutional
function. Furthermore, the JSC has decided
to hold a transparent
nomination process, and an interview process that is open to the
public and the media. In addition, in line
with the recent decision
in Judicial Service Commission and Another v Cape Bar Council and
Another
2013 (1) SA 170
(SCA) at para 45, the JSC has accepted that
it is obliged to release, on request, the full reasons for its
decisions to select
certain nominees and reject others. According to
Mr. Jamie, the JSC is however within its rights and justified to keep
the record
of its deliberations and the votes of the individual
commissioner’s secret. It was further argued that the
contention that
the JSC is obliged to reveal not only its reasons,
but the full recording of its private deliberations in all
circumstances, is
baseless as it is not only in conflict with the
majority of decided cases on this issue, it is also in conflict with
the near universal
practice of similar institutions in comparable
democracies. It was also contended that the HSF’s challenge has
nothing to
do with the notions of “transparency” and
“openness”, but was made merely to attack a decision of
the JSC
the HSF does not even wish to be set aside.
[10] The second
amicus curiae aligned itself with the stance adopted by the JSC. Mr.
Moosa, in essence, argued that the non-disclosure
of the contents of
the Recording is justifiable in law. Ms. Pillay on behalf of the
third amicus curiae submitted that there is
no justification for the
HSF’s complaint. The principal argument advanced on behalf of
the third amicus curiae was that if
one has regard to the overall
process adopted by the JSC its approach to the non-disclosure of its
recorded Deliberations is reasoned,
justifiable and in accordance
with several comparative jurisdictions.
[11] The JSC’s
power to advise the State President on the appointment of Judges of
the High Court is derived from the provisions
of s 174(6) of the
Constitution. In the Cape Bar Council matter supra at paragraph [45]
Brand JA held that, ‘….the
JSC is therefore, as a
general rule, obliged to give reasons for its decision not to
recommend a particular candidate if properly
called upon to do so. I
do not express any view as to how extensive these reasons should be
or who would be entitled to request
them, or under which
circumstances such a request could legitimately be made. That, I
think will depend on the facts and circumstances
of every case’.
[12] In answering
the question whether in the circumstances of this matter the
Deliberations form part of the Record as envisaged
by Rule 53(1)(b),
consideration must be given in my view to the objectives and purpose
of the Rule, including the overall process
adopted by the JSC in
respect of judicial appointments, and the documents and information
that had been made available as part
of the Record.
[13] The Rule
provides as follows:
“53 Reviews
(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.
[14] It is settled
law 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. The Rule essentially
confers the benefit 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’. In this regard see Jockey Club of South Africa
v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 660 F -G; Motaung V Mukubela &
Anor NNO; Motaung v Mothiba NO
1975 (1) SA 618
(O) at 625E.
Moreover, an applicant should not be deprived of the benefit of this
procedural right unless there is clear justification
therefor. See
Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others
1999 (2) SA 599
(T) at 628-9. The purpose of giving reasons was also properly
articulated by Schultz JA in his judgment at para 5 in Transnet
Limited v Goodman Brothers (Pty) Ltd
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA), quoting
Baxter, “Administrative Law (1989) at 228:
“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.'
[15] 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.
[16] 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.
[17] This brings me
to the question, whether there is merit to the HSF’s complaints
in respect of openness, transparency,
equality of arms and access to
information, taking into account the JSC’s legislative
framework and its overall approach
in respect of judicial
appointments.
[18] The JSC derives
its powers from section 178 (4) of the Constitution. It is indeed a
sui generis entity mandated with the task
of the appointment and
removal of judges. It may also advise the national government on any
matter relating to the judiciary or
the administration of justice.
Furthermore, in terms of s 178(6) of the Constitution the JSC is
given a certain degree of latitude
in respect of its processes. In
terms thereof, the JSC may determine its own procedure but its
decisions must be supported by
a majority of its members. The
Judicial Service Commission Act 9 of 1994
provides in
section 5
that
the Minister must, by notice in the Gazette, make known the
particulars of the procedure which the JSC has determined in terms
of
section 178 (6) of the Constitution. In terms of such provision, the
procedure of the JSC was published in the Government Gazette
on 27
March 2003 (“the Procedure”). Significantly, Clause 3
(k) of the prescribed procedure, in respect of the appointment
of
Judges to the High Court, provides that after the completion of the
interviews, the Commission “shall deliberate in private
and
shall, if deemed appropriate, select the candidates for the
appointment by consensus or, if necessary, majority vote.”
[19] The JSC has
followed the procedure for the selection of candidates for
appointment as Judges as clearly set out in Regulation
3. It appears
that the nomination forms of each of the eight relevant candidates
form part of the furnished Record. After the closing
date of
nominations, a short list was compiled. All the material received
with regard to the short-listed candidates was then distributed
to
all the members of the JSC as prescribed in Regulation 3(g).
Thereafter, the JSC interviewed all the short-listed candidates.
The
interviews were open to the public and the media and subject to the
same rules as those ordinarily applicable in courts of
law and there
was no set time limit. After completion of the interviews, in terms
of Regulation 3(k), the JSC deliberated in private
and thereafter
advised the President of the names of the successful candidates which
was made public.
[20] In addition to
these regulatory procedures the JSC has adopted a summary of the
criteria to be used when considering candidates
for judicial
appointments. This has been attached as “FA8” to the
founding affidavit in the main application. The
Preamble to that
document states as follows:
“At its
Special Sitting held, in Johannesburg on 10 September 2010, the
Judicial Service Commission resolved, after a lengthy
debate and
review of the Guidelines that had been adopted in 1998, to publish
criteria used when considering candidates for judicial
appointments.
This decision is in line with the JSC’s principle that the
process of judicial appointments should be open
and transparent to
the public so as to enhance public trust in the judiciary.
The following
criteria are used in the interview of candidates, and in the
evaluation exercise during the deliberations by the members
of the
Commission: ….”
[21] Viewed
cumulatively, it is evident that transparency and openness of the JSC
is ensured by the publication of objective criteria
to be used in the
selection of judges; the existence of a public interview process; and
an obligation falling upon the JSC to give
reasons. This process
adopted by JSC in respect of judicial appointments in my view does
not justify the complaint by the HSF regarding
the lack of openness,
transparency, equality of arms and access to information.
[22] I now turn to
the issue whether the JSC is legally and constitutionally obliged in
the present circumstances to reveal not
only its distilled reasons
but the full recording of its private deliberations, as part of the
Rule 53 record.
[23] The
long-standing approach of our Courts regarding the interpretation of
the Rule can be characterized as follows: ’A
record of
proceedings is analagous 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.’ In this regard see
Johannesburg City Council v The Administrator, Transvaal and Another
(1)
1970 (2) SA 89
(T) at 91H-92A; Free State Steam & Electrical
CC v The Minister of Public Works and Others
[2008] ZAGPHC 256
;
Lawyers for Human Rights v Rules Board for Courts of Law and Another
[2012] ZAGPPH 54;
[2012] 3 All SA 153
(GNP);
2012 (7) BCLR 754
(GNP)
at para 22.
[24] Recently
however certain Courts have adopted a different approach. In Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999 (2) SA 599
(T) it
was held that the content and extent of the record of proceedings
will depend upon the facts of each case. This matter involved
an
application for a record of proceedings by a bidder for a gambling
license from the Mpumalanga Gambling Board. The Court after
considering the relevant empowering legislation of the Mpumalanga
Gaming Act 5 of 1995, which required the board to “function
in
a transparent and open manner… unless there is a legally
justifiable reason for withholding disclosure”, held
that the
applicant was entitled to a video recording of the deliberations of a
gambling board. Furthermore, it was held that the
Johannesburg City
Council decision should not be followed, in part as a result of the
right to reasons introduced by the Constitution.
A similar approach
was adopted in Ekuphumleni Resort (Pty) Ltd and Another v Gambling
and Betting Board, Eastern Cape and Others
2010 (1) SA 228
(E).
[25] In City of Cape
Town v South African National Roads Agency Ltd (“SANRAL”)
and Others
[2013] ZAWCHC 74
, it was held that, in certain types of
challenges, deliberations should form part of the Rule 53 record. At
para [48] the following
remark was made by the Court:’ It seems
to me that any record of the deliberations by the decision-maker
would be relevant
and susceptible to inclusion in the record. The
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. 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 s 6 (2) (e) (iii) of PAJA..,”
In a recent unreported decision of the North Gauteng High Court in
Comair Limited
v The Minister of Public Enterprises and Others NGHC
Case No: 13034/13, it was also held that Rule 53 entitles an
applicant to
access to the deliberations.
[26] Is the new
approach as developed in the above cases and as reflected in the
remarks made in the SANRAL matter persuasive and
appropriate, in all
requests for the record in terms of Rule 53. In my view the question
must answered in the negative. The general
approach has always been
that the extent of the record of proceedings is dependent upon the
facts of each case. (Cape Bar Council
at 187C, supra). There is no
justifiable reason to depart from this approach in the present
instance. The JSC is indeed a unique
entity. It not only derives its
powers from the Constitution but is also entitled to determine its
own procedure. The procedure
determined by the JSC in terms of the
Constitution has been promulgated and Gazetted in the Government
Notice dated 27 March 2003.
According to Regulation 3(k), “After
completion of the interviews, the Commission shall deliberate in
private and shall,
if deemed appropriate, select the candidates to be
recommended for appointment in terms of section 174(4) of the
Constitution by
consensus, if necessary, by majority vote.”
There is no legal challenge against these regulations and are they
valid until
they are repealed or set aside.
[27] Furthermore,
the new approach as adopted in the SANRAL case has not universally
been accepted by our Higher Courts. In MEC
for Roads and Public
Works, Eastern Cape and Another v Intertrade Two (Pty) Ltd
2006 (5)
SA 1
(SCA), the issue at hand was an application in terms of the
Promotion of Access to Information Act 2 of 2000 (“PAIA”)
for access to information related to a tender that the respondent had
sought to have reviewed in terms of Rule 53. The additional
information sought included “Minutes of all other departmental
meetings and relevant committee meetings at which the tenders
in
relation to the contracts were considered and evaluated.” The
appellant argued that it was not obliged to provide the
documents
under PAIA, as the respondent could in any event obtain them through
Rule 53. The Supreme Court of Appeal did uphold
the claim for the
documents under PAIA but in its reasoning referred to the same
passage the JSC relies upon in the Johannesburg
City Council matter,
to the effect that deliberations are excluded from the ambit of a
record. The argument advanced by counsel
for the JSC is that even
though no firm finding was made, by referring to the dictum of the
Johannesburg City Council, the Supreme
Court of Appeal indeed
endorsed the principle that some documents on the grounds of
privilege or relevance may not fall within
the ambit of the Rule 53
record. Such argument is in my view not without merit.
[28] In the present
instance the JSC indeed provided its reasons in the form of the
summary compiled by the Chief Justice. Despite
the vague assertion by
the HSF that a drafter of the summary has the power to determine what
goes into the summary and would be
in a position to tailor the
reflections of the Deliberations, there is no suggestion that the
reasons compiled by the Chief Justice
are inaccurate. In any event it
is inconceivable that the Chief Justice would have tailored the
reflections of the Deliberations
of the JSC having regard to its
composition regulated by s 178(1) of the Constitution. The relevant
part of this section provides:
“178 Judicial
Service Commission
(1) There is a
Judicial Service Commission consisting of –
(a) the Chief
Justice, who presides at meeting of the Commission;
(b) the President of
the Supreme Court of Appeal;
(c) one Judge
President designated by the Judges President;
(d) the Cabinet
member responsible for the administration of justice, or an alternate
designated by that Cabinet member;
(e) two practising
advocates nominated from within the advocates’ profession to
represent the profession as a whole, and appointed
by the President;
(f) two practising
attorneys nominated from within the attorneys’ profession to
represent the profession as a whole, and appointed
by the President;
(g) one teacher of
law designated by teachers of law at South African universities;
(h) six persons
designated by the National Assembly from among its members, at least
three of whom must be members of opposition
parties represented in
the Assembly;
(i) four permanent
delegates to the National Council of Provinces designated together by
the Council with a supporting vote of at
least six provinces;
(j) four persons
designated by the President as head of the national executive, after
consulting the leaders of all the parties
in the National Assembly;
and
(k) when considering
matters relating to a specific High Court, the Judge President of
that Court and the Premier of the province
concerned, or an alternate
designated by each of them.”
[29] 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.
[30] It was also
argued by the JSC and the DGRU, that there are valid and cogent
reasons supported by international comparative
practice why in the
public interest deliberations of the JSC should remain private and
confidential. The HSF has expressed the
opposite view and argued that
public interest demands that the whole record be disclosed and that
nothing in this matter permits
a departure from that generally
established principle. It was further contended by the HSF that the
continued concealment of the
most immediate and accurate record of
the Deliberations can only fuel speculation, suspicion and erode the
public confidence in
the processes of the JSC.
[31] The HSF stance
is not supported by comparative international jurisdictions namely
the USA; Canada; United Kingdom; Australia;
the Commonwealth;
Malaysia; Tanzania and Zambia amongst others.
[32] The following
foreign jurisdictions will be highlighted: In the USA, judicial
selection occurs at two levels; federal and state.
At the federal
level, judges are nominated by the President and approved by the
Senate. Regularly the Department of Justice seeks
advice from the
Standing Committee on the Federal Judiciary of the American Bar
Association (the ABA), which would prepare a report
on a suitable
candidate having considered a wide range of information. Such report
is not binding but is extremely persuasive.
In the matter of Public
Citizen v Department of Justice
[1989] USSC 125
;
491 US 440
(1989), pursuant to a
request by a public interest body , under freedom of information
legislation known as FACA (Federal Advisory
Committee Act 86
Stat.770), it was concluded by the District Court (691 F. Supp. 483
(1988)) that the legislation could not be
interpreted to require
disclosure of the ABA materials for the reason that any need for
applying FACA to the ABA Committee is outweighed
by the President’s
interest in preserving confidentiality and the freedom of
consultation in the selection of judicial nominees.
Such decision was
confirmed by the Supreme Court of Appeal. In the concurring judgment
of such court it was stressed by Justice
Kennedy that applying FACA
to the ABA Committee could potentially inhibit the President’s
freedom to investigate, to be informed,
to evaluate and consult
during the consultation process.
[33] At state level,
a variety of methods are used to select judges. Some states use
selection commissions, others elect their judges.
The American
Judicature Society (“AJS”) – an organisation that
monitors and advocates on issues of judicial selection
–
conducted an analysis of all states that have judicial selection
commissions (See American Judicature Society Judicial
Merit
Selection: Current Status (2011). It appears that of the 33 states,
only five do not have a provision requiring that deliberations
are
confidential. As the AJS explains in its handbook for judicial
selection commissions:
“With few
exceptions, nearly every jurisdiction conducts confidential
deliberations. Even in jurisdictions that provide little
or no
confidentiality protections for applicants, commission deliberations
are afforded extensive confidentiality. Confidentiality
of
deliberations is intended to encourage frank discussion of the
applicants and their qualifications by the commissioners.”
(M
Greenstein, rev. K Sampson Handbook for Judicial Nominating
Commissioners (2004) at 24)
[34] The AJS has
published a document called “Model Judicial Selection
Provisions” as an aid to states adopting merit
selection. Open
meetings for discussing procedures and selection requirements are
recommended, but it is left to the state to determine
whether
interviews should take place in public. The position as far as
deliberations is very clear: “All final deliberations
of the
judicial nominating commission shall be secret and confidential.”
The AJS explains its reasoning behind its position
as follows:
“Finding the
appropriate balance between preserving the privacy of judicial
applicants and providing transparency in the screening
process is one
of the greatest challenges that nominating commission’s face.
Applicants should be protected from public scrutiny
regarding their
private lives and from public embarrassment that could result from
failure to receive a nomination. At the same
time, the public should
have sufficient knowledge of the nominating process to maintain
confidence in that process. Commission
proceedings should be as open
as possible. However, the final deliberations and selection of
nominees should remain confidential
to encourage free and open
discussion of the candidates’ qualifications.”
[35] American courts
have repeatedly upheld the confidentiality of the proceedings of
judicial nominating commissions (See, for
example, Lambert v Barsky
N.Y.Supr.
91 Misc.2d 443
, 398 N.Y.S.2d 84 (1977) (“public
interest” or “executive” privilege protects
confidential questionnaire
submitted to Judicial Nominating Committee
created by executive order of the Governor); Justice Coalition v
First District Court
of Appeal Judicial Nominating Commission
823 So.
2d 185
(Fla. Dist. Ct. App. 2002) (the District Court of Appeal of
Florida upheld a refusal to provide records of a commission’s
deliberations under a freedom of information act claim). In Guy v
Judicial Nominating Commission
659 A.2d 777
(Del. Super. 1995), the
Superior Court of Delaware rejected a request in terms of a freedom
of information statute for records
of the Delaware commission holding
that providing access to such records would impede the Governor’s
search for judges:
“The
effectiveness of that search … would be compromised if the
source and substance of the advice and information
provided to the
governor by the commission were not protected. It is unlikely that
persons with knowledge of the qualifications
of candidates would be
as frank in their comments if they knew their statements would not be
confidential.”
[36] Support for the
need for confidentiality can be found in American academia. Joseph
Colquitt has emphasised the need for a
balance to be struck between
openness and secrecy, in order to ensure an effective selection
process:
“The
commissioners … must be able to candidly discuss the nominees,
and in so doing, be free from the general public’s
emotional
appeals and pressure from interested political actors. At the same
time, sufficient openness must exist to demonstrate
that the
commission is free from the cronyism and commission-captures that
threaten its independence. Such transparency catalyzes
public
confidence about the fairness of the process.
Thus, a carefully
constructed balance must be struck between the two diametrically
opposed objectives of openness and confidentiality.
This can be
accomplished by allowing for public hearings followed by confidential
interviews of the prospective nominees and commission
deliberations.”
(2007) 34 Fordham Urban LJ 73 at 110
[37] At present,
comparing the position advocated by both Colquitt and the AJS, the
JSC provides a greater degree of transparency
in its nomination and
selection procedures, given that all the nomination documents, and
the interviews, are public. It is only
the Deliberations and the
votes of its members that are confidential.
[38] Canada has
several levels of courts with different appointment processes.
Supreme Court Judges are appointed by the Governor-General
on the
recommendation of the Prime Minister, while at the lower level
federal judges and provincial judges are generally selected
or
recommended by a committee. The application and deliberation
procedures in respect of the above process are almost entirely
confidential
[39] The code of
ethics for the commissioners of the Federal Judicial Appointments
Advisory Committee, the body which recommends
the appointment of
judges in lower federal and superior provincial courts, provides the
following:
“All Committee
discussions and proceedings shall be treated as strictly confidential
and must not be disclosed outside the
Committee, except to the
Minister of Justice, except that a Committee Chair may inform the
Chief Justice of the names of the candidates
who have been
recommended by the committee. A member shall not communicate to a
candidate or to any other person, during his or
her term or
thereafter, the substance or details of any interviews held, of
discussions within the Committee nor of recommendations
made.”
[40] The Guidelines
for Committee Members further provide that “[a]ll Committee
discussions and proceedings must be treated
as strictly confidential,
and must not be disclosed to persons outside the Committee”,
and also requires confidentiality
in respect of all documents
submitted as part of the application, and in respect of information
obtained from references or sources.
[41] Provincial
committees appear to follow a similar approach to the issue of
confidentiality. For example, the course adopted
by the Ontario
Judicial Appointments Advisory Committee, is one of complete
confidentiality of all applicants. The Ontario Judicial
Appointments
Advisory Committee in Annual Report (2012) at 9 described the
position as follows: “The Judicial Appointments
Advisory
Committee has developed two fundamental principles on the issue of
confidentiality of committee information. These are:
(a) information
about committee process is completely open to any person whomsoever,
(b) information about particular candidates
is completely
confidential unless released by candidates themselves.”
[42] The Judicial
Appointments Committee (“JAC”) is responsible for the
selection of judges in England and Wales. In
terms of the JAC’s
empowering statute all information that pertains to a particular
person, and is obtained during the appointment
process, is
confidential (Constitutional Reform Act, 2005, s 132). However,
disclosure is permitted if “required, under
rules of court or a
court order, for the purposes of legal proceedings of any
description.” Section1 32(4)(c). The JAC
explains its
publication policy as follows:
“One of the
key principles of good administration is to be open and accountable.
We are committed to publishing a wide range
of information about our
activities and on subjects in which there is known to be a public
interest. Under the terms of the Constitutional
Reform Act 2005, our
processes must be undertaken confidentially and any information that
we gather for the purposes of making
selections for judicial
appointments can only be disclosed in very specific circumstances. We
must also balance our wish to operate
openly and transparently with
our duty to protect the personal and confidential information we
hold. Therefore the information
that we can place in the public
domain about our work is limited.”
[43] Although there
were at least two decisions arising out of requests for documents of
the JAC, which did not deal with the same
issues, as in the present
instance, they at least highlight the fact that in the UK access to
the JAC’s documents is not
automatic. In Guardian News and
Media Ltd v Information Commissioner, the Information Tribunal held
that the Ministry of Justice
was justified in its refusal to disclose
information about serious disciplinary actions against judges
(Guardian News and Media
Limited v IC (Freedom of Information Act
2000)
[2009] UKIT EA_2008_0084
(10 June 2009)). Furthermore, in
Judicial Appointments Commission (Decision Notice) [2009] UKICO
FS50242843 (24 August 2009) the
Information Commissioner upheld a
decision by the JAC to refuse access to information about candidates
for selection.
[44] Australia does
not have a judicial appointments commission. There is however
academic support for the establishment of one.
The academics making
such recommendations have stressed the need for confidentiality not
only of the new commission’s deliberations,
but also of
applications and shortlists. See R Davis and G Williams ‘Reform
of the Judicial Appointments Process: Gender
and the Bench of the
High Court of Australia’
(2003) 27 Melbourne University Law
Review 819
at 863.
[45] Simon Evans and
John Williams in their article, ‘Appointing Australian Judges:
A New Model’ (2008), appearing in
30 Sydney Law Review 294
, in
which they set out their vision of the reform of the Australian
judicial selection process, affirm their acceptance of the
importance
of transparency in judicial selection, yet also identify the need for
the confidentiality of judicial selection committee
proceedings:
“There are
powerful institutional and pragmatic reasons for preserving strict
confidentiality of aspects of the process. For
example, if names of
potential appointees, especially in small jurisdictions, were made
public it may adversely affect relationships
with clients. The upshot
may be to discourage meritorious individuals from seeking
appointment. Even in larger jurisdictions, breaches
of
confidentiality would undermine the operation of the system. This is
not special pleading for judicial appointments. Confidentiality
is a
common feature of appointments processes generally. It ensures that
meritorious candidates are not deterred by the prospect
of disclosure
of a candidacy that might be perceived as overreaching or that might
(wrongly) be perceived as reflecting badly on
the candidate if it was
ultimately unsuccessful. Equally, confidentiality of references
ensures that referees are not deterred
from being fully candid about
the evidence that supports (or undermines) the candidate's
application.” (Ibid at 303-304)
[46] They too
conclude, while accepting the importance of accountability, that
“applications, references, interviews and assessments,
as well
of the Commission's deliberations” should be confidential.
[47] In 2013, the
Commonwealth Lawyers Association, the Commonwealth Legal Education
Association and the Commonwealth Magistrates’
and Judges’
Association, on advice received from their members, developed a model
constitutional clause for judicial appointment
commissions (J Brewer,
J Dingemans & P Slinn Judicial Appointments Commissions: A Model
Clause for Constitutions (2013)). The
model contains the following
observation in the clause recommending that the appointment
commission should be able to determine
its own procedure:
“It is
important that the selection process is seen to be transparent in the
processes it uses to assess the qualifications
of candidates for
appointments. In some countries, such as South Africa the
deliberations are through public hearings. We do not
recommend that,
because reports have shown that although candidates are prepared to
put themselves through an open and fair process,
they are less
willing to share their candidature, and any lack of success, with the
public at large. Whatever the method, there
should be an established,
public system for the assessment of qualifications of candidates.”
[48] When comparing
the JSC to these other systems, it leaves two distinct impressions:
First, employing a body such as the JSC
represents international best
practice for the selection of judges. Second, the JSC is already far
more transparent than the majority
of comparable bodies in other
international jurisdictions. Whilst it is accepted that transparency
in judicial selection should
obviously be welcomed, the continuing
entrenchment of some degree of secrecy in all comparable systems
demonstrates that the JSC’s
claim that it should deliberate in
private is well-founded. In fact, certain of these international
courts and academic writers
have recognized the justification for
confidential deliberations similar to what has been advanced by the
JSC. They have held that
confidentiality breeds candor, that it 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. With
respect to the arguments that disclosure of
deliberations could potentially impact on the candidates’
dignity, the HSF raises
a point that one who is willing to endure
public interviews could hardly be affected by the disclosure of
Deliberations. It goes
without saying that the right to human dignity
extends to all South African Citizens, it is important to be mindful
that the candidates
in the present matter had an expectation that the
Deliberations would be confidential. Furthermore, the HSF underscores
a key consideration.
The knowledge that the full record of the
Deliberations might include extremely frank remarks and opinions of
senior members of
the Judiciary and Executive as to the candidate’s
competence or otherwise would be made public, could deter potential
candidates
from accepting nominations for appointment. The very
efficiency of the judicial selection process could therefore be
compromised.
[49] Properly
considered in weighing up the HSF’s interest against the JSC’s
need for confidentiality, the relief sought
would in my view not
advance the constitutional and legislative imperatives of the JSC.
[50] In conclusion,
absent the Deliberations of the JSC, the HSF is not being deprived of
the procedural and substantive safeguard
which is the underlying
rationale for the Rule.
[51] For these
reasons it follows that the HSF is not entitled to the full recording
of the Deliberations of the JSC as part of
the Rule 53 Record.
[52] The JSC in this
instance does not seek an order of costs.
[53] In the result
the following order is made.
The application is
dismissed with no order as to costs.
LE GRANGE, J