Helen Suzman Foundation v Judicial Service Commission and Others

• Jurisdiction: South Africa
• Judge: Maya DP, Majiedt JA, Mbha JA, Dambuza JA and Fourie AJA
• Judgment Date: 02 November 2016
• Citation: 2017 (1) SA 367 (SCA)
• Docket Number: 145/2015 [2016] ZASCA 161
• Hearing Date: 05 May 2016
• Counsel: D Unterhalter SC (with M du Plessis and ML Dandadzi) for the appellant.AL Platt SC (with N Pakoe) for the respondent. V Ngalwana for the first amicus curiae. F Moosa (attorney) for the fourth amicus curiae.
• Court: Supreme Court of Appeal

Maya DP (Majiedt JA, Mbha JA, Dambuza JA and Fourie AJA concurring):

Background

[1] The core issue in this appeal is whether the deliberations held in a closed session by the respondent, the Judicial Service Commission (the J

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A JSC), in the execution of its mandate to advise the President of the Republic of South Africa (the President) on the appointment of judges under s 174(6) of the Constitution, [1] form part of the record of its proceedings for purposes of Uniform Rule 53(1)(b). [2]

[2] The appellant, the Helen Suzman Foundation (HSF), [3] appeals, with B the leave of this court, against the judgment of the Western Cape Division of the High Court, Cape Town (Le Grange J). The court a quo dismissed HSF's interlocutory application for an order directing the JSC to deliver the full record of the proceedings sought to be reviewed, including the audio recording and any transcript of the JSC's private deliberations after the interviews of judicial candidates on 17 October 2012. C HSF required the record for purposes of review proceedings it launched in the High Court. In those proceedings it sought an order declaring, inter alia, that the JSC's decision, taken pursuant to the deliberations, to advise the President to appoint certain candidates and not to advise him to appoint certain other candidates as judges of the D court a quo, was unlawful and irrational and thus invalid. [4] Four amici curiae, the Police and Prisons Civil Rights Union (Popcru), the National Association of Democratic Lawyers (NADEL), the Democratic Governance and Rights Unit (DGRU) and the trustee for the time being of the Basic Rights Foundation of South Africa (BRF), were also granted leave to join in the proceedings although only Popcru and BRF participated in E the appeal.

Proceedings in the court a quo

[3] The challenge, originally initiated by the former Deputy President of the Supreme Court of Appeal, Mr Justice Harms, was particularly F directed at the JSC's recommendation of the appointment of Dolamo AJ instead of Mr Gauntlett SC. After the institution of the review proceedings the JSC delivered a record of its proceedings in terms of rule 53(1)(b). The record contained: (a) the reasons for the JSC's decision, G distilled from the deliberations, which set out its considerations in

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respect of each candidate; (b) the transcripts of the interview with each A of the candidates; (c) each candidate's application for appointment; (d) comments on the candidates from various professional bodies and interested individuals; and (e) related research, submissions and correspondence.

[4] HSF, having discovered in the interim that the JSC routinely keeps B audio recordings of its entire proceedings, considered the record incomplete as it did not include a transcript or audio recording of the deliberations (the recording). Following the JSC's dogged refusal to furnish the recording on the ground that it does not form part of the record of its proceedings contemplated by rule 53, HSF issued a rule 30A [5] C notice and thereafter launched the interlocutory application to compel the recording's production. The basis of these procedures was that the JSC had furnished an incomplete record in breach of rule 53(1)(b) by failing to furnish the recording, which is the most immediate and accurate record of its decision and the process leading thereto. D

[5] As indicated above, the court a quo found in the JSC's favour and held that the record produced by the JSC met the objectives and purpose of rule 53. In the court a quo's view, due regard being had to the JSC's legislative framework and overall approach to judicial appointments, namely: (a) the JSC's publication of the objective criteria it employs in the E selection of judges; (b) its public-interview process; and (c) its obligation to give reasons for its recommendations to the President, which were provided here, the record satisfied the requirements of openness, transparency, equality of arms [6] required by s 34 of the Constitution and

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A access to information. The court saw no reason to depart from the established approach of determining the extent of the required record for purposes of rule 53 on the facts of each case. And on that basis the court considered that HSF had been supplied with 'enough' documentation to ensure that it was not forced to launch its review in the dark. The court B also found significance in the fact that such documentation included a summary of the JSC's reasons compiled by the Chief Justice, which, it pointed out, had not been impugned as incorrect. In its view, the Chief Justice could not, in any event, improperly adapt the reasons having regard to its broad composition.

C [6] The court a quo considered that the JSC's unique status deriving from its constitutional powers and entitlement to determine its own process, placed its private deliberations in the realm of judicial officers' court-book recordings or deliberations after a hearing, which do not form part of the record of proceedings on appeal or review. The court a quo finally held that comparative international jurisdictions did not support HSF's D stance which, in turn, would not advance the constitutional and legislative imperatives of the JSC. Instead, the JSC was shown to represent international best practice and is far more transparent than the majority of comparable international bodies.

Submissions on appeal E

[7] HSF's contentions before us did not change. Relying mainly on a number of cases from the provincial divisions and one from this court, [7] it argued that constitutional democracy and the associated principles of transparency and accountability that underpin rule 53 oblige the JSC to furnish the full record of its proceedings, ie any minutes, transcripts, F recordings or other contemporaneous records of the JSC's official deliberations after interviewing candidates up to the time of taking the decision, including the recording. It was not for the JSC to determine the extent of relevant and disclosable material under rule 53, so it was argued. And the JSC was legally obliged to produce the recording because G the deliberations bear on the lawfulness, rationality and procedural fairness of its decision and is indispensable to the determination whether there is a rational connection between the deliberations, the decision and the reasons.

[8] This was so, it was contended, because the deliberations represented H the only part of the process where the JSC acts as a deliberative committee and were the most direct evidence of the reasoning behind the JSC's

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decision. They constituted the very basis from which that reasoning was A drafted and were therefore indispensable to the exercise of review rights and clearly relevant. Disclosure would enhance the legitimacy of the JSC processes rather than compromise the dignity and integrity of candidates. HSF did however acknowledge the court's power to order limited disclosure if there were any parts of the recording which, in its view, B should not be made public in order to mitigate any prejudice, preserve HSF's fair-trial rights and give effect to rule 53. But it argued that the JSC had laid no basis for such a limitation of the record and that the court a quo disregarded this proposition, in any event, despite HSF's oral and written submissions in this regard. It also challenged the court a quo's comparison of the deliberations to private judicial deliberations, arguing C that the JSC had not performed judicial functions in this instance and that the High Court had no power to determine what would be disclosable as in the case of a magistrate taken on review in a specific context.

[9] The JSC properly accepted at the outset that its processes must D comply with the foundational constitutional principles of transparency, responsiveness and accountability that bind all organs of state. [8] It acknowledged its significant public and constitutional responsibility and that it wields enormous public power, which must be exercised lawfully, rationally and in a procedurally fair and unbiased manner, and, as mentioned above, that an organ of state whose decision is under E review may be obliged to disclose its deliberations, or some aspects thereof, in appropriate circumstances. It was thus not in contention that the process it followed and its decision are subject to judicial review under rule 53. The point of departure, as stated, related only to the meaning and extent of the term 'record of . . . proceedings' in the rule. F

[10] But the JSC argued that the confidentiality of its deliberations, which protects the dignity and integrity of the candidates and the process itself, does not conflict with the constitutional norms, domestic case law, international jurisprudence and the rules of court. This was so, given the G sound reasons therefor, the fact that it is recognised in relevant legislation and the extent of the openness and transparency within which the JSC generally operates. Thus, it asserted, there is no absolute requirement for the disclosure of its deliberations, which are not relevant to HSF's review proceedings, and the record it provided sufficed to enable HSF to challenge it in the review on an equal footing. H

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A [11] The amici supported the JSC's position. Popcru also took issue with HSF's insistence on accessing the verbatim recording despite the summary of the deliberations which was prepared and submitted by the Chief Justice on the mandate of the JSC's members. In Popcru's view, HSF's stance challenged the veracity of the summary and indicated its B lack of faith in the word of the Chief Justice. BRF reiterated that the recording bears no relevance for the review proceedings as it does not form part of the objective information evidence...