This appeal concerns the question whether the full record of a decision taken by the JSC on the appointment of judges, including the recording of the JSC’s deliberations, falls to be made available in legal proceedings (in terms of Rule 53 of the Uniform Rules of Court). In 2012, the HSF launched a legal challenge pertaining to the JSC's interpretation and application of section 174 of the Constitution when recommending individuals to the President for appointment as judges. When the HSF sought the record of proceedings of the JSC's 2012 recommendations for judges in the Western Cape, the JSC refused to provide the recording of its deliberations (as to who should or should not be appointed) on grounds that the information was confidential. This prompted the HSF to launch interlocutory proceedings to ensure access to the full record of the JSC’s decision, including the recorded deliberations.
In November 2016, the Supreme Court of Appeal held that the deliberations should remain confidential. It is against this judgment that the HSF is now appealing.
In the appeal to the Constitutional Court, the HSF contends that the JSC is obliged to disclose all relevant information regarding its decision, including the recorded deliberations. 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. It cannot be that a decision-maker, exercising a public power to appoint public servants, can conduct its affairs in secrecy and selectively fillet the record of decision it makes available, placing certain of its activities outside of the scope of judicial review. Even where there are any considerations which warrant limited disclosure, then these do not represent an absolute bar to production and can be catered for, through confidentiality regimes and the like.
The HSF therefore accepts that certain aspects may, depending on the circumstances, need to be kept confidential, but does not accept the principle of a public body itself deciding what information it discloses when its decisions are to be reviewed, or that confidentiality trumps a litigants' entitlement to the complete record and reasons of the decision under review.
