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

On 12 April 2011 the Judicial Service Commission (JSC) interviewed shortlisted candidates to fill three advertised vacancies on the bench of the Western Cape High Court. Seven candidates were interviewed. The JSC recommended only one candidate, Judge R C A Henney, leaving two vacancies unfilled. At the meeting neither the President of the Supreme Court of Appeal (SCA) nor the Deputy President of the SCA was present, and the Deputy President had not been invited. The Cape Bar Council (CBC) challenged the validity of the proceedings, alleging that the JSC was not properly constituted and that its failure to fill the two vacancies was irrational. The Western Cape High Court upheld the challenge, declaring the proceedings unconstitutional and invalid and ordering reconsideration. The JSC appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The SCA confirmed the High Court’s orders, with a minor amendment clarifying that the proceedings of the JSC on 12 April 2011 were unconstitutional and invalid due to the absence of both the President and Deputy President of the SCA.

This case is significant for clarifying the constitutional requirements for the proper composition of the Judicial Service Commission and affirming that its decisions are subject to review under the doctrine of legality. It reinforces the principle that public power, including judicial appointment processes, must be exercised lawfully and rationally, and underscores the obligation of the JSC to provide reasons for its decisions.