Opinionista Pierre De Vos 3 May 2018

How open and transparent should the Judicial Service Commission be?

The Judicial Service Commission plays an important role in the selection of judges. But what is the extent of the transparency required from the JSC when one of its decisions is challenged in a court of law? Should the party challenging the JSC decision be entitled to a transcript of its private deliberations? A recent judgment of the Constitutional Court held that a party challenging a JSC decision is normally entitled to such a transcript. Is this level of transparency a good idea or not?

Before I read the various judgments in the recent Constitutional Court matter of Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8 (24 April 2018) I was firmly of the opinion that the private deliberations of the JSC (where commissioners discuss the merits of the judicial candidates before voting on who to select for appointment) should remain private and that an applicant wishing to have a decision of the JSC reviewed and set aside should not be entitled to such a transcript.

Luckily, most of us are able to change our minds when presented with new facts or good arguments. At the very least, good arguments will make you less certain of your original opinion. This, I think, is a good thing. Absolute certainty is often the product of too little thinking and a catastrophic lack of engagement with facts and arguments.

And I must concede that in this case the majority judgment of Madlanga J contains strong arguments, advancing a plausible case that a litigant should be entitled to a transcript of the deliberations of the JSC. The minority judgment of especially Jafta J is disappointing as it engages in the kind of formalistic legal reasoning that harks back to a pre-constitutional era, avoiding any meaningful engagement with the policy questions involved. (The other minority judgment of Kollapen J is far more convincing, exactly because it deals with the constitutional policy questions head-on.)

The case is a preliminary skirmish in a legal battle about the selection of judges by the JSC. The JSC is in some ways an odd body. It comprises the Chief Justice, the President of the Supreme Court of Appeal, the Minister of Justice, 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.

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; two practising advocates nominated from within the advocates’ profession; two practising attorneys nominated from within the attorneys’ profession; one teacher of law designated by teachers of law at South African universities; six persons designated by the National Assembly from among its members; four permanent delegates to the National Council of Provinces with a supporting vote of at least six provinces, and four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly.

This JSC selects judges for appointment to the High Court and the Supreme Court of Appeal (SCA). The President must appoint these candidates selected by the JSC and has no power to reject any of the candidates selected by the JSC. The JSC also selects a shortlist of four candidates from which the President must select one for appointment to a vacancy on the Constitutional Court. The President appoints the Chief Justice and Deputy Chief Justice and President and Deputy President of the SCA after consulting the JSC, but unlike with other judges, the President is not bound by any recommendation of the JSC in this regard.

The composition of the JSC acknowledges the fact that judges in a constitutional state will inevitably make decisions that may have political consequences and that politicians should therefore be involved in the appointment of judges.

Those who argue that the judiciary is illegitimate because it is unelected are probably not aware that a majority of the members of the JSC who selects High Court, SCA and Constitutional Court judges are elected politicians or individuals appointed by the President. Those who argue that the appointment of judges is nothing more than a party-political sham are probably not aware that judges and lawyers serve on the JSC to counter the dangers of appointments becoming a party-political matter entirely.

In the case under discussion the Helen Suzman Foundation decided to challenge a decision of the JSC to appoint some candidates as judges of the Cape High Court and not to appoint other candidates. They requested the record of proceedings on which the decision was based (in terms of section 53(1)(b) of the Uniform Rules of Court), and was provided with many documents but not with the transcript of the deliberations. Both the High Court and the SCA ruled that the JSC was not obliged to provide this transcript.

These courts agreed with the JSC that there were good reasons for the confidentiality of its deliberations, including the promotion of the rigour and candour of deliberations; the encouragement of future applications; and the protection of the dignity and privacy of applicants. It was argued that requiring disclosure may have the unintended consequence of discouraging the JSC from recording its deliberations in future.

The majority of judges of the Constitutional Court disagreed, relying on section 34 and 39(2) of the Constitution. It argued that rule 53 should be read to advance the applicants’ right of access to court under section 34 of the Constitution. This is so because section 39(2) of the Constitution instructs judges to interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights.

The majority argued that rule 53 needed to be interpreted expansively to ensure that litigants have the relevant information before it and that there is equality of arms between the person challenging a decision and the decision-maker. The right of access to court would be denied to a party not provided with the relevant information held by another party to the dispute. For the majority, this need to ensure fairness to all parties was of pivotal concern. It thus argued that JSC deliberations were relevant to the decisions taken by the JSC to select some candidates for appointment and not others. According to Madlanga J:

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. Absent disclosure, these irregularities would remain hidden. Deliberations are the most immediate and accurate record of the process leading up to the decision.”

Recall that the current public protector got into terrible trouble in the review of her Bankorp Report because she did not disclose the complete record to the opponents and then attempted to mislead the court about it. In the light of this experience, the argument that a transcript of deliberations of the JSC might well assist the applicants in making its case is not as far-fetched as I had initially thought.

Another pivotal concern for the majority was the need for openness and transparency in order to safeguard the legitimacy of the JSC appointment’s process and thus of the judiciary itself. The majority held that the foundational values of accountability, responsiveness and openness also applies to a body like the JSC. 

These values are of singular importance in South Africa coming – as we do – from a past where governance and administration were shrouded in secrecy. 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. 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.”

It is this same concern to ensure openness and transparency that led the majority to reject the argument that JSC commissioners would be inhibited from speaking their minds if they knew that their deliberations could be made public. The argument advanced to support this conclusion is based on a full-throated endorsement of the value of transparency to protect judicial candidates against impermissible bias and – possibly – other forms of inappropriate conduct from members of the JSC.

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” 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.”

The majority also rejected the argument that confidentiality would protect the privacy and dignity of the candidates themselves. 

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.”

Anyone who has watched JSC interviews would know that candidates being interviewed are sometimes put through the wringer and are often embarrassed and even humiliated by the questions lobbed at them by members of the JSC. As Madlanga J noted, it is this public embarrassment “that should fill candidates with dread”. This gruelling public scrutiny was appropriate as it helped to ensure the legitimacy of the process.

[M]ost 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.”

Perhaps – and this I had not considered before – some members of the JSC might be anxious about having private deliberations revealed exactly because these deliberations might not show them in a good light. Maybe they wanted to protect themselves and not necessarily the candidates who they routinely embarrass during public hearings?

In any event, the majority also suggested that this general rule of transparency was not absolute. Some types of information could be excluded from the record. For example, privileged information (like communications between clients and their legal representatives) is routinely excluded from disclosure under rule 53. It further suggested that “public interest privilege” might well warrant the exclusion of some private information from the ambit of rule 53.

Jafta J did not provide adequate responses to these policy-based reasons for transparency, relying instead on technical legal arguments. Kollapen AJ did attempt to refute these arguments. The honourable justice appears to have a more generous view of public representatives and seem to be less worried about the possibility that members of the JSC could ever act in an inappropriate manner if their deliberations were kept secret. This view is summarised in the following passage:

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. 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.”

Whatever your view on this matter, the JSC will now have to provide the Helen Suzman Foundation with a record of the deliberations when the impugned appointments were made. However, this does not mean all deliberations will be made public as the ruling only applies to cases where a litigant seeks to review and set aside a decision of the JSC. This means that in almost all cases, we will never hear what the lawyers and politicians on the JSC say when they discuss candidates for judicial appointment. DM

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