Judicial Service Commission v Cape Bar Council (Centre for Constitutional Rights as amicus curiae)

On 12 April 2011, the Judicial Service Commission (JSC) held a meeting to interview seven shortlisted candidates for three vacancies on the Western Cape High Court (WCHC) bench. The candidates included one black male candidate (Mr Henney), six white candidates (one female). The JSC only recommended one candidate (Mr Henney) for appointment, leaving two vacancies unfilled. At this meeting, neither the President of the Supreme Court of Appeal (Mpati P) nor his Deputy (Harms DP) were present. The President had left on 11 April after being excused for an important engagement, and the Deputy President was not invited to attend on 12 April as it was deemed unnecessary. The Cape Bar Council (CBC) challenged the JSC's proceedings on two grounds: (1) that the JSC was not properly constituted due to the absence of both the President and Deputy President of the SCA, and (2) that the JSC's failure to recommend candidates for the two remaining vacancies was irrational and unconstitutional, particularly given that several candidates (notably Adv Rogers SC, Fitzgerald SC, and Olivier SC) were appropriately qualified and fit and proper persons for judicial appointment under s 174(1) of the Constitution.

• Was the JSC properly constituted when both the President and Deputy President of the Supreme Court of Appeal were absent from the meeting?
• Were the decisions of the JSC taken on 12 April 2011 subject to judicial review under the doctrine of legality despite exclusion from PAJA?
• Was Judge Henney a necessary party to the proceedings?
• Did the JSC have an obligation to give reasons for its decision not to recommend candidates for the two remaining vacancies?
• Was the JSC's decision not to fill the two vacancies irrational and therefore unconstitutional?

1. The appeal was dismissed with costs including costs of two counsel. 2. Paragraph 1 of the High Court order was amended to read: 'That the proceedings of the first respondent (the JSC) on 12 April 2011 that resulted in the JSC not recommending candidates to fill two vacancies on the bench of this court (the WCHC) were inconsistent with the Constitution in that both the President and the Deputy President of the Supreme Court of Appeal were absent and those proceedings are accordingly declared unlawful and consequently invalid.' 3. Save for the amendment above, the orders of the High Court were confirmed, including the direction that the JSC, properly constituted, reconsider afresh the applications of shortlisted candidates who were not selected on 12 April 2011.

1. Section 178(1)(b) read with s 178(7) of the Constitution requires the presence of either the President of the Supreme Court of Appeal or the Deputy President (as designated alternate) for the JSC to be properly constituted when considering judicial appointments. In their absence, the JSC cannot take valid decisions. 2. Although JSC decisions are excluded from review under PAJA by s 1(gg), they remain subject to judicial review under the constitutional doctrine of legality, which requires the exercise of public power to be lawful, rational and non-arbitrary. 3. The JSC, as an organ of state bound by constitutional obligations of rationality, transparency and accountability (s 195), is under a general obligation to give reasons for decisions not to recommend qualified candidates for judicial appointment when properly called upon to do so. 4. Stating that a candidate 'did not receive enough votes' does not constitute a sufficient reason for not recommending that candidate, as it merely restates the question without providing an answer. 5. The adoption of a secret ballot voting procedure does not exempt the JSC from its obligation to give reasons, as the JSC must adopt procedures that enable it to comply with its constitutional obligations. If necessary, reasons can be distilled from deliberations or provided anonymously. 6. Where undisputed facts give rise to a prima facie inference that a decision is irrational, and the decision-maker fails to provide reasons to rebut that inference, the decision will be found to be irrational and therefore unconstitutional and invalid.

1. The court noted that it need not determine how extensive reasons should be, who would be entitled to request them, or under what circumstances such requests could be made, as this would depend on the facts and circumstances of each case. 2. The court declined to rule on the constitutionality of the JSC's voting procedure (one vote per vacancy versus one vote per candidate) due to conflicting versions presented by the JSC and because such a finding would be redundant given the other grounds for setting aside the decision. 3. The court observed that the JSC's rules for Constitutional Court appointments (s 2(f)(iii)(l)) already require reasons to be distilled and recorded, suggesting no principled basis for distinguishing other judicial appointments. 4. The court noted without deciding that 'unavailable' in s 2(2) of the Judicial Service Commission Act should bear the same meaning as 'temporarily unable to serve' in s 178(7) of the Constitution, and does not include absence without legitimate reason or mere failure to invite a member. 5. Brand JA noted that the amendment to paragraph 1 of the High Court order was designed to avoid any direct impact on Judge Henney's appointment, emphasizing that anyone seeking to set aside his appointment would need to persuade a court not only that the JSC's recommendation was invalid but also that the consequences of setting aside his appointment would be justified under the Oudekraal principles and s 172(1) of the Constitution.

This judgment is significant for establishing several important principles in South African administrative and constitutional law: (1) It clarifies the composition requirements of the JSC under s 178 of the Constitution, holding that certain members (Chief Justice, President of SCA, or their designated deputies) must be present for the JSC to be properly constituted. (2) It confirms that JSC decisions, while excluded from PAJA, remain reviewable under the doctrine of legality. (3) It establishes that the JSC has a general obligation to give reasons for decisions not to recommend qualified candidates for judicial appointment, flowing from constitutional obligations of rationality, transparency and accountability. (4) It confirms that stating a candidate 'did not receive enough votes' is not a sufficient reason. (5) It rejects the argument that secret ballot voting procedures exempt the JSC from giving reasons. (6) The case reinforces that all exercises of public power must be rational and that failure to provide reasons in circumstances giving rise to prima facie irrationality will result in the decision being set aside. (7) It provides important guidance on the application of non-joinder principles in constitutional litigation and the discretion courts have under s 172(1) not to invalidate consequences of unlawful administrative action.