THE Judicial Service Commission (JSC) was grilled by the Supreme Court of Appeal on Thursday when it argued that the JSC was not obliged to give reasons for its appointment decisions.
The JSC holds interviews for the appointment of judges in public, but its deliberations have always been behind closed doors and it has never given reasons why some candidates are recommended for appointment to the high courts and others overlooked — a subject of ongoing debate in the legal fraternity.
Depending on how this case is ultimately decided, the JSC might in future have to give reasons for its decisions, if asked for.
Criticism of the JSC’s appointment choices boiled over in April last year when the JSC recommended only one candidate for appointment to the Western Cape High Court — despite three vacancies and a number of suitable candidates.
The Cape Bar Council then took the unprecedented step of challenging the JSC’s Western Cape process in court, saying the commission had not been properly constituted the day it interviewed for the Western Cape High Court and that the process was irrational. The high court found in favour of the bar council, prompting the JSC’s appeal to the Supreme Court of Appeal, heard on Thursday.
At the hearing, the JSC’s counsel, Marumo Moerane SC, faced the same question repeatedly: if he accepted that the JSC must, as a public body, act rationally, how could it be that the commission did not have to give reasons for its decisions?
Mr Moerane accepted from the outset that the JSC could not act arbitrarily and had to act rationally. But he said there was nothing in the constitution, the Judicial Service Commission Act or the commission’s rules requiring it to give reasons for its decisions.
“How do I know whether it has acted rationally, if you do not have to give reasons?” asked Judge Fritz Brand. “How do I know, for instance, that seven members didn’t like the colour of my tie?”
Judge Brand put it to Mr Moerane that citizens were entitled to know whether a decision of a public body was taken rationally. “Otherwise, the right to a rational decision means absolutely nothing,” he said.
Mr Moerane argued further that, given the composition of the JSC, which is made up of people from diverse backgrounds, and the fact that its decisions were taken by secret ballot, it was impossible for the JSC to give any reason for an appointment — except that a candidate did not obtain a majority of votes.
However, this did not appear to go down well with Judge Suretta Snyders, who said: “The implication of your argument, Mr Moerane, is that the JSC would not even know if the majority of its members took a vote on a completely irrational basis.”
Mr Moerane responded that voting was preceded by deliberations, so the commission would know if decisions were made on an irrational basis. However, the point of deliberations was for commissioners to seek to persuade each other which way to go. So when it came to voting, it might well be that a reason proffered in deliberations was not ultimately why the majority went one way or another, he said.
The idea that it was impossible to provide reasons also elicited a barrage of questions from the judges.
When recommending judges for the Constitutional Court, the JSC must, in terms of the act, “distil and record” reasons for recommending to the president the candidates it has selected.
“If the JSC is able to distil reasons for recommending, why then is it not able to distil reasons for not recommending?” asked Judge Snyders.
Mr Moerane said that it was different with the Constitutional Court, as it was a “special court”. It was the president who decided who to appoint to the highest court and he had to do so after consulting leaders of other political parties, so he needed some kind of advice from the JSC.
Les Rose-Innes SC, for the Cape Bar Council, said Mr Moerane’s argument that the JSC did not have to provide reasons, as a “point of departure”, was an “extreme contention” that would raise a “constitutionally alien spectre of how a body such as the JSC should operate”.
Reasons should at least be provided when the JSC was faced with a rationality challenge, said Mr Rose-Innes.
Mr Moerane ended the day by warning of the dangers of opening the “floodgates of disgruntled litigants” whose litigation could put the JSC on hold in making appointments while their court cases were pending.
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