Another legal lesson for the JSC

One may well argue about whether it was politically astute or strategically wise of the Cape Bar Council to take the Judicial Service Commission (JSC) to court about its failure to fill two posts on the Western Cape High Court bench and for making a decision about this non-appointment in the absence of the President of the Supreme Court of Appeal who, in terms of the Constitution, must take part in the decision.

The Cape Bar is, arguably, the least “transformed” Bar in the country. There is also a widespread perception that many members of the Cape Bar is less than enthusiastic about the appointment of judges who happen not to be white and male and members of the old boys club. (Whether this perception is based on fact and hence justified, is not relevant for the present discussion.) Its challenge to the JSC decision was therefore always going to be portrayed by some as another anti-transformation move aimed at retaining the influence of white Bar Council members over the appointment of judges.

Political perceptions aside, the resulting judgment in the case of The Cape Bar Council v The Judicial Service Commission and Another makes for interesting reading and reminds us that the JSC is not above the law — despite the attitude of some of its members. Unfortunately the JSC has not always covered itself in glory and has often acted in a manner not compatible with the Constitution.

The judgment is thus helpful as it sets out the manner in which the members of the JSC ought to — but does not always — arrive at decisions.

The judgment, authored by Koen J (Mokgohloa J concurring), reminds us that the JSC exercises a public power and is hence controlled by what is prescribed in the Constitution and the law. Although decisions by the JSC relating to the selection, nomination and appointment of judges do not constitute administrative action in terms of the Promotion of Administrative Justice Act (PAJA), such decisions could nevertheless be reviewed in terms of the principle of legality.

In this regard, the court reminded the JSC that it is bound by the requirements of the Rule of Law. An incident of the Rule of Law is the principle of legality and this entails that a body like the JSC exercising a public power “may exercise no power and perform no function beyond that conferred upon them by the law”. The exercise of such a power may also not be arbitrary and must be rational. In other words, there must be a rational objective basis justifying the connection made by the decision maker between the material available to her on which she  made the decision and the conclusion she eventually reaches.

The judgment also confirmed that the JSC – as a public body — must perform its functions openly and transparently as this is required to give effect to two of the founding values of our Constitution that is foundational for our democracy, namely accountability and transparency. This is also why a public body like the JSC should normally be required to provide reasons for its decisions. Unless a person affected by a decision can discover the reason behind the decision, she may be unable to tell whether the decision is reviewable or not. Providing reasons also assures an affected person that her case was considered properly and forces the decision maker to formulate reasons that would withstand scrutiny, thus forcing it to evaluate all the relevant considerations correctly and carefully.

In the past, in the absence of consensus, the members of the JSC would be required to vote for each nominee. As the court pointed out, it is unclear from the JSC submission whether each member had as many votes as there were vacancies (three votes, say, if there were three vacancies in a division) or whether a member could vote for as many candidates as she wished. The court assumed that the former process was used. What was clear was that a member of the JSC could vote for fewer candidates than there were vacancies in a division.

Only those nominees who obtained a majority of the votes (thirteen) would be selected for appointment to the bench. (The JSC selects High Court judges for appointment and thus “nominates” them, after which the President must appoint those selected. This means that, in effect, the JSC appoints the judges to the High Court.)

Whatever process was actually used, it was clearly flawed. The majority of members of the JSC could in effect veto the appointment of even the most brilliant and progressive lawyer committed to the values enshrined in the Constitution by abstaining from voting for that candidate or from abstaining from voting for ANY candidates. This the members could do without providing any rational basis for their decision.

The JSC stated in its defence that this procedure was indeed rational and that it complied with the principle of legality because that was the procedure it had chosen (finish en klaar, so to speak) and because reasons could not be given for selecting or not selecting a candidate for appointment because the voting was done by secret ballot and the reasons of individual members for voting or not voting for a candidate were thus unknown. The JSC nevertheless contended that when members of the JSC exercise their vote, they take cognisance of their constitutional mandate (and do not consider other irrational or impermissible factors). The court did not buy this argument, stating that:

It is difficult to follow how that statement can be made. The deponent clearly would not know what the individual members of the JSC took into account, nor does he refer to the deliberations that took place or indicate the sources of his knowledge, such as that members of the JSC informed them of their reasoning. No other members of the JSC has deposed to an affidavit confirming this account insofar as it concerns them, as being correct.

The court found that there was no reason why the JSC could not furnish reasons for its decisions. Reasons are provided for recommending candidates for appointment to the Constitutional Court, and these reasons are then forwarded to the President for his consideration. The court thus asked why reasons could not similarly be provided by the JSC for its decisions to recommend or not to recommend candidates for appointment to the High Court.

The question of whether reasons should be provided for appointment or non-appointment of judges is a difficult one. On the one hand, the judgment must surely be correct when it points out that the provision of reasons for a decision to recommend or not to recommend the appointment of a candidate would possibly infuse more predictability and rationality into the process of appointment. On the other hand, providing reasons for the non-appointment of a candidate could be highly embarrassing for such a candidate and might dissuade talented candidates from putting their names forward.

Perhaps the best way to proceed would be to require the JSC to formulate reasons for the appointment or non-appointment of candidates but to have to furnish those reasons only to the relevant candidates on request. This would mean that the JSC would normally not be required to announce their reasons to the public at large. Nominees could then be protected and the integrity and legitimacy of the bench safeguarded while the JSC would remain accountable.

The judgment was also highly critical of other aspects of the manner in which the JSC arrives at decisions about the nomination of High Court judges. Although the JSC provided contradictory information to the court about the voting procedure (do members get as many votes as there are vacancies or can they vote for as many candidates as they wished?), it was assumed that each member could only vote for as many nominees as there were vacancies in a division.

As the court points out, this process would be arbitrary and irrational as a candidate would have a far better chance of being selected where there was a small number of shortlisted candidates than where there were large number of candidates. It is therefore conceivable that the same candidate would not be selected for appointment in one round because she might be competing against several candidates, yet would be selected during the next round because there were fewer candidates competing for the same post. A post could therefore remain unfilled merely because “too many” candidates were nominated for positions in a single round.

As those candidates achieving the lowest support were not eliminated and votes for them were not transferred to other more popular candidates, this meant that the votes of members of the JSC who voted for unpopular candidates are currently “wasted”. There was seemingly no opportunity for these votes to be transferred to other candidates, which left open the possibility that no vacancies would be filled in any given round (even where imminently suitable candidates had applied for the positions available) as no candidate might achieve the thirteen votes required for appointment.

What the court did not mention was that this procedure invited members of the JSC to engage in political lobbying before interviews are conducted. If one had a strong preference for candidate X, one might try to lobby for that candidate to ensure that other like-minded members of the JSC would not split their vote. One might also be tempted to “trade” votes by telling other members of the JSC that one would support “their” candidate if they supported “your” candidate.

The court was careful not to prescribe which voting system should be used by the JSC but it did find that the JSC was required to settle on a clear and less arbitrary system of voting than the one it seemed to have employed in the past. The court also declined to make a finding advanced by the amicus curiae that the JSC could not refuse to appoint a candidate because of broader concerns for equity. What was required was for these reasons to be clearly articulated when reasons are provided for leaving vacancies unfilled.

The most perplexing and perhaps embarrassing aspect of the events that led to this court case, was that the JSC was not properly constituted when it had to consider appointments to the Cape High Court bench.

Relying on the wording of section 178 of the Constitution as well as on precedent first set in the Premier of the Western Cape v Acting Chairperson, JSC the court found that the absence of the President of the SCA from the deliberations, turned valid proceedings into invalid proceedings. These proceedings were thus not in accordance with the dictates of the Constitution and hence unlawful and constitutionally invalid.

Given the fact that section 178(7) of the Constitution explicitly provides for the Deputy President of that court to act as an alternate on the JSC in the absence of its President, and given the precedent set in the Premier of the Western Cape case, it is hard to understand how the JSC could have continued with its meeting while its members should have known that it was no longer properly constituted.

The members of the JSC must either have been completely ignorant of the law as set out by our courts or it must have decided deliberately not to adhere to the law and the Constitution. Either way, the decision by the JSC to continue with its deliberations even when it stopped being properly constituted must rank as one of the least explicable decisions ever taken by that body. I say this, knowing very well that it has not excelled in the past in making legally plausible and vaguely justifiable decisions and that it has been successfully sued by a wide array of individuals as diverse as Judge President John Hlophe and Premier of the Western Cape Hellen Zille.

The process through which judges are selected for appointment by the JSC will always be fraught with controversy. Only the most naive or gullible person would contend that politics play no role in this selection of judges. In a constitutional democracy judges have enormous power. They can declare invalid acts of Parliament and members of the executive and can develop the common law to soften the effects of the often harsh consequences that old common law rules still have on the interests of the less powerful, the marginalised and oppressed.

There is no consensus about what a truly independent judge infused with the values enshrined in our Constitution would look like. Depending one one’s political affiliations one might have different criteria for a good judge. It is often said that the JSC should appoint only independent-minded judges. But if one asks what this means, one soon realises that “independence” is not viewed in the same light by everyone. A DA MP might well believe that an independent judge is one whose views is not too dissimilar from her own, while an ANC MP might believe an independent judge is one whose views are more or less in accordance with her own views.

This does not mean that the process of selecting judges cannot be improved by stating more clearly what the criteria for appointment should be. The credibility of judicial selection by the JSC would surely be enhanced if the process was more transparent and logical and if the JSC felt that it was more accountable for its decisions. This balanced judgment of the High Court might go some way to infuse some transparency and rationality into the process and to limit the political excesses that the process invites.

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