In a case brought by the Helen Suzman Foundation, the Constitutional Court has ordered the JSC to make public its deliberations on appointing judges. In a majority judgment delivered yesterday, the court ruled that a blanket ban of disclosure was unjustifiable in a democratic society.

A TimesLIVE report says the question the court had to deal with was: May the private deliberations of the JSC‚ in the execution of its mandate to advise the President on the appointment of judges‚ be disclosed as part of the record of its proceedings?

The High Court ruled that these deliberations should not form part of the record, and the SCA agreed, leaving the foundation to approach the Constitutional Court for relief.

The case has its genesis in October 2012‚ when the JSC recommended to the President that he appoint certain candidates as judges of the Western Cape High Court‚ and not to appoint others. The decision followed private deliberations held by the JSC after the candidates had been interviewed.

The foundation wanted to have that decision – to advise the President to appoint certain other candidates and not others – reviewed on the grounds that it was unlawful and irrational.

When, in terms of the Uniform Rules of the Court‚ the JSC filed the record of the proceedings with the registrar‚ it did not include any minutes or transcripts of the deliberations. The foundation became aware that the JSC routinely recorded its deliberations and that the deliberations in question had also been recorded.

The JSC refused to supply the record of deliberations.

Helen Suzman Foundation v Judicial Service Commission

Three judgments were prepared by the Constitutional Court, notes TimesLIVE. The majority judgment‚ penned by Justice Mbuyiseli Madlanga‚ said the current position in law was that the rule 53 record contained all information relevant to the challenged decision or proceedings.

‘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‚’ Madlanga said in a judgment‚ in which six other justices concurred.

In a dissenting judgment‚ Justice Chris Jafta said ‘record’ in rule 53(1)(b) did not include deliberations. In the third judgment‚ Acting Justice Jody Kollapen disagreed with Madlanga’s conclusion that the foundation’s appeal must succeed. Although Kollapen agreed with Jafta that the appeal must fail‚ he did so for different reasons.

Full TimesLIVE report