The Constitutional Court has held that the private deliberations of the Judicial Services Commission in exercising its mandate to appoint judges must be disclosed as part of the record of proceedings when a decision is challenged.
The judicial candidates are interviewed in public and this is followed by private deliberations and recommendations to the President whom to appoint. The applicant sought to set aside certain decisions regarding appointments of judges in the Western Cape as unlawful and irrational and therefore sought access to the JSC deliberations.
When any decision is taken on review, the person doing so is entitled to access to the record of the proceedings being reviewed. The record must contain all information relevant to the challenged decision or proceedings.
Historically, deliberations have not formed part of the record but this law has now been developed.
In some circumstances considerations of confidentiality will justify the exclusion of deliberations. But the record may well provide evidence of reviewable irregularities in the process, such as bias, ulterior purpose, bad faith, the consideration of irrelevant factors, a failure to consider relevant factors, and other factors under section 6 of PAJA.
The body being reviewed must establish reasons for the exclusion of any particular part of the record.
The JSC alleged that confidentiality ensured the candour and robustness of future deliberations and would protect the interests of candidates. JSC members ought to be in a position to stand publicly by their views.
Without a full record, a court cannot perform its review function properly. The applicant’s right of access to courts under section 34 of the Bill of Rights would be affected if the full record was not available. No blanket non-disclosure can be upheld. In truly deserving and exceptional cases, confidentiality may be permitted.