The ruling overturns a 2013 decision by the Western Cape High Court and a subsequent ruling by the Supreme Court of Appeal.
The case related to whether the JSC was compelled to release the full recording of their deliberations under Rule 53(1)(b) of the Uniform Rules of Court, which facilitates and regulates applications for review in ensuring that applicants have access to the full record of the decision that is the subject of the case. The HSF argued that the JSC is obliged to disclose all relevant information regarding its decision, including the recorded deliberations. The Foundation’s argument was that, given the importance of its constitutional mandate to assist the President in appointing judges to the bench, the JSC’s public powers must be exercised in line with the constitutional values of openness, accountability and transparency.
In a majority judgment, the Constitutional Court rejected the JSC’s argument that its internal, private deliberations, as a class of information, can be shielded from disclosure in all circumstances. The Court held that a blanket ban on disclosure is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount. The Court did, however, state that information that was truly confidential could be protected by a suitable confidentiality regime. The Court also found that allowing access to the deliberations of the JSC would not dampen the openness of the Commission’s deliberations or dissuade worthy candidates from applying.
The HSF was awarded costs in this case and welcomes the Court’s decision as a victory for transparency and accountability in our constitutional democracy.
