Review procedure – extent of record on review

November 1st, 2018

Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC)

By Sejako J Senatle SC

In 2012 the Judicial Service Commission (JSC), established in terms of the Judicial Service Commission Act 9 of 1994 (the Act), advised the President to appoint certain aspirant judges, in terms of s 174(6) of the Constitution. This decision was taken after interviews and private deliberations by the JSC had taken place. The Helen Suzman Foundation, the applicant, approached the Western Cape Division of the High Court and sought to have the decision reviewed and set aside.

In terms of r 53(1)(b) of the Uniform Rules of Court, the JSC was required to file the relevant record of the proceedings sought to be reviewed and set aside, together with the reasons. Although the JSC filed other relevant records – the reasons for the decisions made were distilled from the private deliberations – the actual records of the deliberations were not filed. The JSC based its refusal on ‘confidentiality’.

The High Court dismissed the application on the basis that the Helen Suzman Foundation was not entitled to the private deliberations records in terms of r 53. On appeal the Supreme Court of Appeal confirmed the High Court’s decision. The Helen Suzman Foundation further appealed to the Constitutional Court (CC) to determine if it was legally permissible for the JSC’s post-interview deliberations to be excluded from the r 53 record?

The majority judgment per Madlanga J, discussed the importance of r 53. The court held that the filing of the full record furthers an applicant’s right of access to court by ensuring that the court has the relevant information before it and there is equality of arms between the parties. It was an invaluable tool in the review of proceedings. This was, however, subject to certain exceptions. The CC remarked that the fact that the information was confidential does not per se in our law render it to be withheld.

The court emphasised that the fact that the deliberations were conducted in private did not detract from their relevance as evidence. The CC held that such information may well provide evidence of reviewable irregularities in the process.

The court found that the JSC’s own practice of distilling reasons for a decision on the deliberations was enough indication that its deliberations are relevant. The court went on to distinguish r 53 from discovery under r 35 of the Uniform Rules of Court. It held that r 53 was different in that it envisaged the grounds of the review changing later. Whereas, r 35 is a discovery process where information requested is not relevant to the pleaded case. The court emphasised that r 53 advanced an applicant’s right of access to court in terms of ss 34 and 39(2) of the Constitution. It cautioned the risk of denying an applicant this right.

It should be mentioned that the court held that the issue of disclosure of the record had huge constitutional implications. It held that it related to the very ‘make-up’ of an important and constitutionally created arm of state, namely, the judiciary, which is the final referee of constitutional compliance. For the judiciary to carry out its mandate, it is important to continue to enjoy public confidence. The appointment process must be able to attract the best candidates as judges in order to have a strong judiciary.

Madlanga J went on to dismiss the JSC’s argument that the disclosure of the deliberations would compromise the selection process. The court further disagreed with the JSC that not only would the interests of candidates be jeopardised, but that of the members of the JSC. The court, in this regard, described the composition of the JSC and regarded that the argument was without merit. The court also dismissed the JSC’s other argument that this would compromise the candidates’ privacy and dignity. The court held that the embarrassing phase of the process was not the post-interview stage, but in fact during public interviews.

The JSC had also argued that in terms of s 178(6) of the Constitution read with s 38 of the Act and its regulations, there was no disclosure. In this regard, the court held that s 178(6) did not mean that the JSC could determine procedures that were in conflict with the Constitution. This, the court held, would be an infringement of s 2 of the Constitution.

Madlanga J furthermore held that the secrecy the JSC was claiming, could result in negative public perception not only about the JSC itself, but also about the very senior judiciary in respect of whose appointments it plays an important role. The court held, that generally the only way to test the legality of the exercise of this power completely and thoroughly was to disclose all relevant material to establish if the relevant information was withheld from the applicant. There was always a risk that possible illegalities remain uncovered and escaped scrutiny in the review process. The court held that it is only in exceptional circumstances that complete non-disclosure should be allowed. If non-disclosure is justified, the court may exercise its discretion to allow disclosure. The court went on to say at para 77:

‘The fact that a number of other relevant documents and reasons distilled from the deliberations have been provided does not detract from the unfairness of withholding other relevant information.’

The CC upheld the appeal and the JSC was ordered to deliver the full record of its private deliberations to the applicant.

Sejako J Senatle SC BJuris LLB (Unibo) LLM (Howard College) LLD (NWU) is an advocate at the North West Bar Association, as well as the South African Law Reports and the South African Criminal Law Reports reporter in Mahikeng.

This article was first published in De Rebus in 2018 (Nov) DR 42.