15 September 2011

Judicial appointments under the spotlight - holding the JSC accountable

Lionel Egypt, Director in the Cape Town office's Dispute Resolution and Litigation Department, is currently representing the Centre for Constitutional Rights in its litigation against the Judicial Service Commission (JSC). The Cape Bar Council (CBC) is challenging the JSC's failure to fill two vacancies on the Western Cape High Court bench, with the Centre for Constitutional Rights making supporting submissions as amicus curiae.

Despite a vast backlog at the Western Cape High Court, seven short-listed candidates (including one of the country's pre-eminent Senior Counsel, Adv Owen Rogers) and twenty-eight applicants, the JSC recently recommended that only one of the three existing judicial vacancies be filled and failed to recommend Adv Rogers SC for appointment.

The CBC and the Centre for Constitutional Rights are challenging both the procedure adopted by the JSC in making recommendations for judicial appointment, alleging that it was inconsistent with the Constitution, as well as the merits of the decision, contending that it was irrational and therefore unlawful to recommend only one applicant for appointment when there were three vacancies and several suitable candidates.

The Centre for Constitutional Rights is putting forward five primary arguments regarding the unconstitutionality of the JSC's conduct. At the core of this case is the extent of the discretion, if any, that the Constitution grants to the JSC in recommending candidates for appointment and, furthermore, the mechanisms in terms of which the JSC may be held accountable.

The JSC itself has declared that its conduct in the present case is "immune from review". In response Egypt argues that "[the interpretation of its constitutional duties by the JSC] affords the opportunity for individual members of the JSC to give unrestrained vent to any subjective prejudice or personal dislike. Worse, it opens the process to allegations of political gerrymandering, the very thing which, in our submission, the JSC structure is intended to inhibit".

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