In a landmark ruling issued on 30 September 2011, judgement was handed down in favour of the Cape Bar Council (CBC) and the Centre for Constitutional Rights. The Cape Bar Council (CBC) sought to challenge the Judicial Services Commission’s (JSC) failure to fill two vacancies on the Western Cape High Court bench, with the Centre for Constitutional Rights making supporting submissions as an amicus curiae.
Lionel Egypt, Director in Dekker Hofmeyr’s Dispute Resolution and Litigation practice successfully represented the Centre for Constitutional Rights in its litigation against the Judicial Service Commission (JSC).
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 challenged both the procedure adopted by the JSC in making recommendations for judicial appointment, alleging that it was inconsistent with the Constitution, and 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.
In its answering papers the JSC declared its conduct in the present case to be “immune from review”.
In response Egypt argued 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”.
In ruling that the JSC’s conduct was unconstitutional and unlawful, Koen J placed significant reliance on the arguments proffered by the Centre for Constitutional Rights with regard to the irrationality of the JSC’s voting procedure:
[w]hatever the voting system may be, it should be clear and defined in advance to deal with any kind of situation which might present itself. To deal with possible scenarios which might arise, as and when they arise, on an ad hoc basis will itself not be consistent with the requirements of rationality and transparency and would be arbitrary… Whatever the voting procedure is supposed to be, it should be clear and not left to the kind of vagaries on which I am now speculating.
“This is a landmark ruling in the on-going effort to realise the constitutional vision of an open, accountable and transparent democratic society,” added Egypt.
