[39]   To sum up: A decision-maker’s deliberations do not automatically form part of the record of the proceedings as contemplated in rule 53.  The extent of the record must depend upon the facts of each case.  In certain cases the decision-maker may be required to produce a full record of proceedings which includes its deliberations.  But there may be cases, such as this one, where confidentiality considerations may warrant non-disclosure of deliberations for the reasons set out above.

I agree with the court a quo that the JSC is set apart from other administrative bodies by its unique features which provide sufficient safeguards against arbitrary and irrational decisions.  The relief sought by HSF would undermine its constitutional and legislative imperatives by, inter alia, stifling the rigour and candour of the deliberations, deterring potential applicants, harming the dignity and privacy of candidates who applied with the expectation of confidentiality of the deliberations and generally hamper effective judicial selection.

Helen Suzman Foundation v Judicial Service Commission (145/2015) [2016] ZASCA 161 (2 November 2016) per Maya DP (Majiedt, Mbha and Dambuza JJA and Fourie AJA concurring)

Further excerpts without footnotes

Background

[1]     The core issue in this appeal is whether the deliberations held in a closed session by the respondent, the Judicial Service Commission (the JSC), in the execution of its mandate to advise the President of the Republic of South Africa (the President) on the appointment of judges under s 174(6) of the Constitution,[1] form part of the record of its proceedings for purposes of Uniform rule 53(1)(b).[2]

. . . . . .

Confidentiality of the JSC’s deliberations

[21]   Against that background, it must be decided whether the confidentiality of the JSC’s deliberations insulates it from disclosure under rule 53.  The starting point  is  the  fount  of  the  JSC’s  existence  –  s 178  of  the  Constitution.   These provisions, inter alia, determine its composition.[1] In ss (4), provision is made for the JSC’s powers and functions as are assigned to it by the Constitution (in s 174) and national legislation.  And in subsection (6), it is given a wide power to determine its own procedure with only one rider that its decisions must be supported by its majority.[2]

. . . . . .

[25]   The confidentiality of the deliberations therefore enjoys recognition in legislation enacted to give effect to the very right to access information enshrined in the Constitution, which was rightly not challenged as being unconstitutional.  (All that HSF argued was that the confidentiality of the deliberations is no basis for withholding disclosure under rule 53, and that it could at best ‘lead to the setting up of a confidentiality regime in respect of disclosure where properly established’ and that the regulations relate only to the process to be employed by the JSC in performing its functions.)

Furthermore, our courts, which ultimately retain the power to order disclosure of confidential material where appropriate, have endorsed the need for confidentiality in JSC processes.[1]

Recently, in Judicial Service Commission v Cape Bar Council & another,[2] this court dealt with the JSC’s obligation to give reasons for its decision not to recommend a particular candidate if properly called upon to do so.  In concluding that the JSC is indeed enjoined by law to provide such reasons, the court accepted the legitimacy of the JSC’s procedure of merely distilling its reasons as a summary of its deliberations (as was done in this case) and voting for candidates by secret ballot.

The court stated that ‘if the reasons of the majority cannot be distilled from the .  .  .  deliberations which precede the voting procedure, there appears to be no reason, on the face of it, why the members cannot be asked to provide their reasons anonymously.’[3] The court also pointed out that it was not ‘suggesting that the JSC is under an obligation to give reasons under all circumstances for each and every one of the myriad of potential decisions it has to take.’[4]

. . . . . .

[27]   What may be gleaned from these decisions, in my view, which HSF’s counsel did not challenge, is that there is no absolute requirement of disclosure of the JSC’s proceedings.  Rather, it is a question of weighing, inter alia, the nature and relevance of the information sought, the extent of the disclosure and the circumstances under which the disclosure is sought and the potential impact upon anyone, if disclosure is ordered or refused, as the case may be, in a manner that would enable the JSC to conduct a judicial selection process that does not violate its positive obligations of accountability and transparency.  It should be borne in mind in that exercise, however, that these constitutional values do not establish discrete and enforceable rights.[1]

They serve merely as interpretive guides that may have to be balanced against and fettered by competing values, interests and rights of equal importance, such as rights to dignity and privacy of parties who would be affected by the disclosure.  And as the rules of court must, like all other legislation, be construed and applied in the manner enjoined by s 39(2) of the Constitution,[2] there can be no objection to a limitation of the record if that is reasonable and justifiable in the sense contemplated by s 36(1) of the Constitution.[3]

[28]   It must then be determined if there are any reasons, consistent with the Constitution and the law, justifying the non-disclosure of the deliberations.  I have difficulty with HSF’s contentions that non-disclosure of the recording is inimical to the notions of open justice and public accountability and that protecting the confidentiality of the deliberations would undermine the public’s trust in the JSC and its processes.

The nature of the JSC’s constitutional mandate requires it to engage in a rigorous, intense judicial selection process.  To that end, it must be accepted that during the course of the deliberations adverse remarks will be made, which although not necessarily actionable in law, may yet be hurtful to a candidate and cause reputational damage harmful to his or her professional career.  This would apply with greater force to a sitting judge who applies for a higher position on the Bench with the potential of eroding public esteem in the judiciary upon which the ultimate power of the courts rests.[4]

The JSC and its members may also be exposed to possible actionable claims for delictual damages arising from utterances made during the deliberations which a candidate may consider defamatory.  It should not be overlooked too that the legal practitioners in the JSC will, in future, appear before the appointed judge who may harbour ill feelings against them if they expressed adverse views against her or his appointment in the deliberations.  This may potentially inhibit the practitioners and even the judges sitting on the JSC from freely and frankly expressing themselves on the suitability of the candidates.

[29]   Protecting the confidentiality of the deliberations clearly serves legitimate public interests in the circumstances.  Whilst the JSC itself cannot lay claim to a general right to privacy as it discharges a public duty, the privacy and dignity of judicial candidates, who are assured by the JSC Act and its regulations that the deliberations concerning their suitability will be confidential, must be protected  in the judicial interviewing and selection process.[5]

Non-disclosure of the deliberations therefore fosters this obligation.  It likely encourages applicants who might otherwise not make themselves available for judicial appointment for fear of embarrassment were the JSC members’ frank opinions on their competence or otherwise be made open to the public.  This would compromise the efficacy of the judicial selection process.  The cloak of confidentiality also enhances the judicial appointments process by allowing the members to robustly and candidly state facts and exchange views in discussing the suitability or otherwise of the candidates based on their skills, characters, weaknesses and strengths.