The implications of the decision in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the South African Judicial Service Commission

Abstract

The article examines the implications of the judgment of the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the Judicial Service Commission (JSC). The judgment has brought to the fore a new lease of life relating to the JSC’s post-interview deliberations as a disclosable record in terms of Rule 53(1)(b) of the Uniform Rules of Court. The disclosure seeks to provide an insight into the decision-making process of the JSC in the appointment of judicial officers in South Africa. It is argued that the judgment is two-pronged: first, the disclosure of the post-interview record enhances the culture of justification for decisions taken, which advances the foundational values of the new democratic dispensation; secondly, it creates uncertainty about the future management and protection of the JSC processes in the undertaking of robust debates on the post-interview deliberations. It then questions whether the JSC members will be privileged in their engagement with the suitability of the candidates to be recommended for appointment by the President. The question is raised against the uncertainty about which decision of the JSC will be challenged that will need the disclosure of the record because the judgment does not entail the national disclosure of the record in respect of each candidate but applies only when there is an application for review of the JSC decision.