Deliberations information class: Disclosure on review

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“Today the Constitutional Court handed down judgment in an application for leave to appeal against an interlocutory order of the High Court of South Africa, Western Cape Division, Cape Town (High Court). The dispute concerns whether the Judicial Service Commission (JSC) is obliged, under rule 53(1)(b) of the Uniform Rules of Court (rules of court), to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision.
In October 2012 the JSC decided to recommend that the President appoint certain candidates as judges of the Western Cape Division of the High Court, and not to appoint others. This decision followed private deliberations held by the JSC after the candidates had been interviewed publicly. The Helen Suzman Foundation (HSF), a non-profit organisation, approached the High Court seeking to have that decision reviewed and set aside on the grounds that it was unlawful and irrational. The application was brought in the public interest. The JSC subsequently filed a record of its proceedings as required in terms of rule 53(1)(b) of the rules court. The record included reasons prepared by the Chief Justice following the deliberations. It did not include the deliberations themselves. The HSF discovered that the JSC routinely recorded its deliberations. The HSF therefore launched an interlocutory application in the High Court for an order compelling the JSC to provide the recording as part of the full rule 53(1)(b) record. The application was denied. The HSF approached the Constitutional Court for leave to appeal after an appeal against the interlocutory order failed in the Supreme Court of Appeal.
The HSF contended that rule 53(1)(b) exists to facilitate effective review proceedings and that review applicants are entitled to the record, lest they be forced to launch their review applications in the dark. This accords with the right of access to court or fair trial right enshrined in section 34 of the Constitution. The HSF argued that the standard for what information must be disclosed in the record is whether the information is relevant to the impugned decision. It then argued that the recording of the deliberations was clearly the most relevant evidence of what considerations were factored into the decision-making process and was thus liable to be disclosed. It also argued that the disclosure of the recording under rule 53(1)(b) is crucial to holding the JSC accountable in its performance of a vital democratic state function.
The JSC argued that it is empowered by section 178(6) of the Constitution to determine and regulate its own procedure. Pursuant to this constitutional provision, it has made regulations that provide for its deliberations to be in private. In turn, the privacy of its deliberations entitles the JSC to withhold the recording of its deliberations. Also, continued the argument, section 38 of the Judicial Service Commission Act (JSC Act), the statute governing JSC processes, permits the non-disclosure of confidential information. Further, the JSC contended that the disclosure of its deliberations would hamper its ability to perform its constitutionally assigned role by, among other things, reducing the opportunity for candour in the deliberation process, discouraging potential applicants from subjecting themselves to such a process, and by endangering the privacy and reputations of applicants.
In a majority judgment concurred in by Zondo DCJ, Cameron J, Froneman J, Kathree-Setiloane AJ, Mhlantla J, and Theron J (first judgment) Madlanga J reasoned that the JSC’s contention for a blanket ban on disclosure, rather than a fact-specific case for non-disclosure, is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount. The first judgment also held that rule 53(1)(b) helped to promote an important fundamental right, the right to a fair trial under section 34 of the Constitution, and thus rejected the argument that deliberations, as a class of information, can be shielded from disclosure in all circumstances. It also held that the broad terms of section 178(6) of the Constitution do not empower the JSC to determine procedures that are at odds with specific rights and foundational values contained in the Constitution. On the JSC’s argument founded on section 38 of the JSC Act, the first judgment concluded that what this section protects from disclosure is “confidential” information. In this matter the JSC has pleaded for blanket non-disclosure without demonstrating why the content of the recording at issue in these proceedings is confidential. For purposes of section 38, confidentiality must be proved. And the JSC has failed to do that in the instant matter.
On the point that disclosure might be a dampener on the candour of deliberations, the first judgment held that JSC members worth their salt ought not to be deterred from deliberating freely and honestly purely because of the prospect that the content of the deliberations might be disclosed. It also held that worthy candidates were not likely to be deterred from availing themselves for interviews because of this same prospect.
Lastly, the first judgment held that the JSC has failed to demonstrate why recordings of its deliberations that are truly confidential may not be adequately protected by a suitably couched confidentiality regime. Such a regime could limit access to the deliberations only to the court concerned and a few individuals like the parties’ lawyers.
Consequently, this Court has upheld HSF’s appeal and set aside the orders of the High Court and the Supreme Court of Appeal. These orders are substituted with an order compelling the JSC to deliver the full recording of the proceedings sought to be reviewed by the HSF.
In a dissenting judgment (second judgment) Jafta J held that rule 53(1)(b) of the rules of court was never intended to apply to proceedings before the JSC and, even if it did, it would not entitle a party to the deliberations of the JSC, as such deliberations do not form part of the record of proceedings as contemplated in the rule. The central issue, however, in this matter was whether the High Court properly exercised its discretion in terms of rule 30A of the rules of court, when it held that there was compliance by the JSC with rule 53(1)(b). Rule 30A confers a discretion on the High Court where there is non-compliance with any rules of court to grant an order it deems fit. This discretion is in line with the powers that the Constitution confers on the High Court, the Supreme Court of Appeal and this Court to regulate their own internal processes and is further consonant with the underlying purpose of the rules of court. The second judgment holds that this discretion was judicially exercised by the High Court. The second judgment would dismiss the appeal on this basis.
In a separate dissenting judgment (third judgment), Kollapen AJ considered whether deliberations form part of the record. In answering this question, he agreed with the first judgment that the general exclusion of deliberations from the record would not pass constitutional muster. However, the third judgment held that deliberations should only form part of the record if they satisfy the test for relevance. The judgment concludes that, even if the test for relevance is satisfied, the deliberations could still be excluded if there was a justifiable reason for their exclusion. In these proceedings, the third judgment held that the deliberations of the JSC were relevant to the decision that was under review and, as such – save for a legally justifiable reason – should be included in the record.
The third judgment also addressed the question of whether a justifiable reason existed for the exclusion of the deliberations of the JSC in the matter before this and found that a justifiable reason did exist in this case. According to the third judgment, preserving the confidentiality of the JSC deliberations not only served as a justifiable reason for the exclusion of the deliberations from the record, but was also necessary to safeguard multiple constitutional values encompassed in the Bill of Rights.

In conclusion, the third judgment held that the exclusion of the private deliberations of the JSC from the record would not violate HSF’s right to properly bring review proceedings nor would it breach the principles of openness and transparency enshrined in the Constitution. The third judgment would dismiss the appeal with no order as to costs”.

Note: Footnotes omitted

[1] May the private deliberations of the Judicial Service Commission (JSC), in the execution of its mandate to advise the President on the appointment of judges, be disclosed under rule 53(1)(b) of the Uniform Rules of Court as part of the record of its proceedings? The High Court of South Africa, Western Cape Division, Cape Town (High Court) answered the question in the negative. On appeal, the Supreme Court of Appeal held that the JSC’s deliberations are not necessarily excluded from the record, but that in the particular circumstances of this case, they should not form part of the record. The Helen Suzman Foundation (HSF) now approaches this Court seeking leave to appeal against that decision.

Background

[2] In October 2012 the JSC took a decision to advise the President to appoint certain candidates as judges of the Western Cape Division of the High Court, and not to appoint others. This decision followed private deliberations held by the JSC after the candidates had been interviewed. The HSF approached the High Court seeking to have that decision reviewed and set aside on the grounds that it was unlawful and irrational.

[3] In terms of rule 53(1)(b) the JSC was required to file the record of the “proceedings sought to be corrected or set aside, together with such reasons as [it] is by law required or desires to give or make” with the registrar of the High Court. The JSC filed the record in August 2013. This record consisted of: (a) the reasons for the decision by the JSC; (b) the transcripts of the JSC interviews; (c) each candidate’s application for appointment; (d) comments on each candidate by various professional bodies and individuals; and (e) related research, submissions and correspondence. The reasons for the decision were distilled from the deliberations by the Chief Justice.

[4] The filed record did not include any minutes, transcripts or other contemporaneous record of the JSC’s official deliberations. Two days before the applicant was due to file its supplementary affidavit, it became aware that the JSC routinely recorded its deliberations and that the deliberations in question had also been recorded. It requested the JSC to file a recording of the deliberations on the basis that the recording formed part of the rule 53 record. The JSC declined. It adopted the stance that “post interview deliberations of the JSC are done in a closed session for reasons of confidentiality”. This was a blanket – and not fact-specific – claim to confidentiality. The HSF launched an interlocutory application to compel the JSC to file a full record of the decision, including the recording.

[5] The High Court dismissed that application on the basis that the HSF was not entitled to the recording under rule 53. On appeal, the Supreme Court of Appeal held that a decision-maker’s deliberations do not automatically form part of a rule 53 record. The extent of the record depends on the facts of the case. It held that whether or not disclosure was required was—

“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.”

That Court held that, in some cases, the decision-maker may be required to produce a “full record” of proceedings, including its deliberations. However, there are cases, such as this one, where confidentiality considerations warrant non-disclosure of deliberations. The appeal was dismissed.

[6] In this Court, the HSF argues that the judgment of the Supreme Court of Appeal: undermines procedural fairness; curtails the efficacy of rule 53 in a manner inconsistent with open, transparent decision-making; undermines the ability of courts to exercise their power of judicial review; and encourages selective disclosure by respondents in review applications. According to the HSF, the recording is “patently the most immediate and accurate record of the decision and the process leading up to the decision”, and is “indispensable in determining whether there is a rational connection between the deliberations, the decision and the reasons”. The HSF argues that, without the recording, it is deprived of the procedural and substantive safeguards that are the very reason for the existence of rule 53. It contends that this breaches the requirement of equality of arms in section 34 of the Constitution.

[7] The JSC argues that there is a distinction in our law between the record that served before a body and the deliberations of that body. It submits that, while a disclosure of deliberations may be required in some circumstances, this cannot be the norm. The JSC submits that there are good reasons for the confidentiality of its deliberations. These are: the promotion of the rigour and candour of deliberations; the encouragement of future applications; and the protection of the dignity and privacy of applicants. Requiring disclosure may have the unintended consequence of discouraging the JSC from recording its deliberations in future.

[8] The Trustees for the Time Being of the Basic Rights Foundation of South Africa were admitted as a single amicus curiae (friend of the court) and granted leave to file written submissions, but not to make oral submissions at the hearing. The amicus curiae argued that: the JSC has the power to regulate its own procedure; in doing so under regulation 3(k) of the JSC rules of procedure (JSC procedure), it has made provision for its deliberations to take place in private; the implication is that no one is entitled to what takes place at the private deliberations; and as there has been no challenge to the validity of regulation 3(k), this is fatal to the HSF’s application.

[9] This matter raises two principal issues. They are:

(a) Do we have jurisdiction and, if we do, must leave to appeal be granted?
(b) Is it legally permissible to exclude a recording of JSC deliberations from a rule 53 record?

Jurisdiction and leave to appeal

[10] The question whether JSC deliberations must be disclosed as part of the rule 53 record raises constitutional issues. It implicates the right of access to court which – in the context of civil proceedings – is often referred to as the right to a fair trial. It concerns the interpretation of the JSC’s constitutional power to determine its own procedure. That this Court has jurisdiction is clear.

[11] The question whether and under what circumstances the JSC must divulge a recording of its post-interview deliberations under rule 53 is of great import. There are reasonable prospects of success. Thus it is in the interests of justice that leave to appeal be granted.

The content of a rule 53 record

[12] In order to decide if it is legally permissible to exclude a recording of JSC deliberations from a rule 53 record, it is necessary first to consider what the existing state of our law is on what a rule 53 record is, and what it contains.

[13] The purpose of rule 53 is to “facilitate and regulate applications for review”. The requirement in rule 53(1)(b) that the decision-maker file the record of decision is primarily intended to operate in favour of an applicant in review proceedings. It helps ensure that review proceedings are not launched in the dark. The record enables the applicant and the court fully and properly to assess the lawfulness of the decision making process. It allows an applicant to interrogate the decision and, if necessary, to amend its notice of motion and supplement its grounds for review.

[14] Our courts have recognised that rule 53 plays a vital role in enabling a court to perform its constitutionally entrenched review function:

“Without the record a court cannot perform its constitutionally entrenched review function, with the result that a litigant’s right in terms of section 34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a court with all the issues being ventilated, would be infringed.”

[15] The filing of the full record furthers an applicant’s right of access to court by ensuring both that the court has the relevant information before it and that there is equality of arms between the person challenging a decision and the decision-maker. Equality of arms requires that parties to the review proceedings must each have a reasonable opportunity of presenting their case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponents. This requires that “all the parties have identical copies of the relevant documents on which to draft their affidavits and that they and the court have identical papers before them when the matter comes to court”.

[16] In Turnbull-Jackson this Court held:

“Undeniably, a rule 53 record is an invaluable tool in the review process. It may help: shed light on what happened and why; give the lie to unfounded ex post facto (after the fact) justification of the decision under review; in the substantiation of as yet not fully substantiated grounds of review; in giving support to the decision maker’s stance; and in the performance of the reviewing court’s function.”

[17] What forms part of the rule 53 record? The current position in our law is that – with the exception of privileged information – the record contains all information relevant to the impugned decision or proceedings. Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker. Zeffertt and Paizes make a comment on the exclusion of evidence on the grounds of privilege. That comment must surely be of relevance even to the exclusion of privileged information from a rule 53 record. After all, the content of a rule 53 record is but evidentiary in nature. The authors say that in the case of privileged information, the exclusion is based on the recognition that the general policy that justice is best served when all relevant evidence is ventilated may, in some cases, be outweighed by a particular policy that requires the suppression of that evidence. The fact that documents contain information of a confidential nature “does not per se in our law confer on them any privilege against disclosure”.

[18] Specifically coming to a decision-maker’s deliberations, historically they have not formed part of the rule 53 record. This was based on this dictum in Johannesburg City Council:

“The words ‘record of proceedings’ cannot be otherwise construed, in my view, than as a loose description of the documents, evidence, arguments and other information before the tribunal relating to the matter under review, at the time of the making of the decision in question. It may be a formal record and dossier of what has happened before the tribunal, but it may also be a disjointed indication of the material that was at the tribunal’s disposal. In the latter case it would, I venture to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially. A record of proceedings is analogous to the record of proceedings in a court of law which quite clearly does not include a record of the deliberations subsequent to the receiving of the evidence and preceding the announcement of the court’s decision. Thus the deliberations of the Executive Committee are as little part of the record of proceedings as the private deliberations of the jury or of the Court in a case before it. It does, however, include all the documents before the Executive Committee as well as all documents which are by reference incorporated in the file before it.” (Emphasis added.)

[19] Recently our courts have begun to diverge from this position. In what I consider to be a positive development, they place emphasis on the fact that deliberations are relevant to the enquiry as to what it is that informed the decision. HC SANRAL tells us that—

“any record of the deliberations by the decision-maker would be relevant and susceptible to inclusion in the record. . . . The content of such deliberations can often be the clearest indication of what the decision-maker took into account and what it left out of account. I cannot conceive of anything more relevant than the content of a written record of such deliberations, if it exists, in a review predicated on the provisions of section 6(2)(e)(iii) of [the Promotion of Administrative Justice Act], that is that impugned decision was taken because irrelevant considerations were taken into account or relevant considerations were not considered.”

To state the obvious, “[t]he fact that the deliberations may in a given case occur privately does not detract from their relevance as evidence of the matters considered in arriving at the impugned decision”.

[20] However, the statement in Johannesburg City Council has recently been endorsed by the Supreme Court of Appeal in Intertrade. But in the present matter, the Supreme Court of Appeal held that the statement in Johannesburg City Council that deliberations never form part of the record should be qualified. It held that deliberations are not necessarily excluded from the record but that in some circumstances considerations of confidentiality will justify their exclusion.

[21] It is helpful to consider this question in two stages:

first, whether deliberations in general ought to be excluded from rule 53 records; and

second, whether JSC deliberations in particular ought to be excluded.

[22] The general exclusion of deliberations as a class of information from rule 53 records in accordance with the Johannesburg City Council principle seems to be somewhat arbitrary. Irrelevance and privilege are the usual grounds for excluding information from the record. It cannot be that deliberations, as a class of information, are generally:

(a) irrelevant for purposes of assisting an applicant in pleading and presenting her or his case; or

(b) subject to some form of privilege.

Further, I cannot conceive of any policy or public interest reasons for excluding deliberations from the record in general. In the specific example given in Johannesburg City Council, of a judicial officer’s court book, the notes contained in it certainly do meet the test for being part of the record. That is, the notes are relevant to the judicial officer’s decision. Whatever the basis for exclusion may be, it is surely not because the notes are not relevant to the decision. Reasons that have been proffered for the exclusion are based on the existence of strong policy considerations that justify exclusion. They are not based on generalised notions of confidentiality. It cannot be that these strong policy considerations necessarily exist in respect of the deliberations of all decision makers. That said, the exclusion under this example is not before us for decision. Therefore, I need not pronounce definitively on it.

[23] Surely, deliberations are relevant to the decision they precede and to which they relate. Indeed, HC SANRAL correctly says so. They 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 the like. Absent disclosure, these irregularities would remain hidden. Deliberations are the most immediate and accurate record of the process leading up to the decision.

[24] If this is true of deliberations in general, it must surely be true of JSC deliberations as well. The JSC’s own practice of distilling reasons for a decision from the deliberations is indication enough that JSC deliberations are of relevance to the decisions. They clearly bear on the lawfulness, rationality and procedural fairness of the decisions. The question is whether there is some legally cognisable basis that they must nonetheless be excluded from a rule 53 record. I deal with that question later.

[25] The JSC submitted that relevance should be determined with reference to the pleaded case. I do not agree. Rule 53 envisages the possibility of a review applicant supplementing the papers, including the very cause of action, upon being furnished with the record. That much is plain from the fact that an applicant may supplement not only the affidavits, but also the notice of motion. That means an applicant may add to or subtract from the grounds of review. Then, if information could be excluded on the basis of being irrelevant to the pleaded case, this would negate a substantial part of the purpose of the rule 53 record. What must be disclosed is information relevant to the impugned decision. Unsurprisingly, a review applicant may not have pleaded certain issues that bolster her or his challenge exactly because she or he was not aware of their existence.

[26] It is helpful to point out that the rule 53 process differs from normal discovery under rule 35 of the Uniform Rules of Court. Under rule 35 documents are discoverable if relevant, and relevance is determined with reference to the pleadings. So, under the rule 35 discovery process, asking for information not relevant to the pleaded case would be a fishing expedition. Rule 53 reviews are different. The rule envisages the grounds of review changing later. So, relevance is assessed as it relates to the decision sought to be reviewed, not the case pleaded in the founding affidavit.

[27] In sum, I can think of no reason why deliberations as a class of information ought generally to be excluded from a rule 53 record. For me, the question is whether deliberations are relevant, which they are, and whether – despite their relevance – there is some legally cognisable basis for excluding them from the record. This approach to what a record for purposes of rule 53 should be better advances a review applicant’s right of access to court under section 34 of the Constitution. It thus respects the injunction in section 39(2) of the Constitution that courts must interpret statutes in a manner that promotes the spirit, purport and objects of the Bill of Rights. Whilst doing so, it also heeds the caution expressed in Hyundai that, in seeking to adhere to the section 39(2) injunction, courts must not strain the language of a statutory instrument. Here is how Langa DP expressed the caution:

“Limits must, however, be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read ‘in conformity with the Constitution’. Such an interpretation should not, however, be unduly strained.”

[28] I have had the pleasure of reading the judgment prepared by my colleague, Jafta J (second judgment). The second judgment takes the view that the word “record” in rule 53 must have the same meaning regardless of the type of proceedings sought to be reviewed. It instances the notes of a judicial officer in court proceedings. It then says because these notes do not form part of the record, deliberations in administrative proceedings should likewise also not form part of the record; the word “record” should not be assigned different meanings depending on the function performed. I understand the reasoning to be grounded on the fact that what the second judgment is comparing is information of a particular type.

[29] To my mind this begs the question. One must first establish the reason for the exclusion of a judicial officer’s notes from the record for one to be able appropriately to use this as a basis for the exclusion of all comparable information in administrative proceedings. That reason may not necessarily apply to other instances. As to what that reason is and – for that matter – whether a judicial officer’s notes should form part of a rule 53 record is not before us for decision.

[30] Also, reasoning backwards from this example does not provide a principled basis for ascribing a meaning to “record” and excluding all deliberations from a rule 53 record. A simple illustration will help. Let us consider correspondence as a class of information. If relevant, it ordinarily forms part of the record. However, some correspondence – such as attorney-client communications – may be privileged and thus exempt from inclusion in a rule 53 record. It does not then follow that, because there is privilege in respect of this type of correspondence, all correspondence is exempt from inclusion in a rule 53 record. In each instance any claim to exemption must be founded on some legally cognisable basis. So, within the class “correspondence”, some correspondence would be included in the rule 53 record, and some excluded.

Exclusion of JSC deliberations from a rule 53 record

[31] The JSC has argued that its deliberations must be excluded on the basis of its confidentiality concerns. One cannot make light of this argument. If it has merit, it has huge constitutional implications. That is so because it relates to the very make-up of an important and constitutionally created arm of state – the judiciary – which is the final arbiter on compliance with the Constitution. The JSC’s confidentiality concerns relate to the selection of members of this arm of state. If there is something in the fears expressed by the JSC, disclosure may well seriously hamper this selection process. And that may redound to the detriment of the judiciary.

[32] The importance of the judiciary in our constitutional democratic project cannot be overemphasised:

“The judiciary is essential to the maintenance of constitutional democracy. By exercising judicial control over governmental power and keeping it within its constitutional bounds, the judiciary is able to hold the legislature and executive to account in the courts and thus secure the rule of law and the protection of human rights.”

[33] For the judiciary to continue to fulfil these important functions, it is of pivotal importance that it continues to be a strong institution which carries public confidence and support:

“Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.”

[34] This strength relies, in no small measure, on ensuring that our judicial appointment processes are able to attract and result in the selection of the best possible candidates to serve as judges. If we are to have a strong judiciary which enjoys public confidence and is capable of fulfilling its constitutionally mandated role, of course judges who – in accordance with the provisions of section 174(1) and (2) of the Constitution – are best placed to fulfil this mandate must be appointed. The JSC argues that disclosure of its deliberations would impede the selection process. If there is merit in this claim, this would have serious consequences for the judiciary and, consequently, our constitutional democracy as a whole. The question is whether disclosure would indeed weaken the selection process. Put differently, is there merit in the JSC’s confidentiality concerns?

[35] The JSC contends that the need for confidentiality has two aspects. The first concerns members of the JSC themselves. The confidentiality of JSC deliberations promotes effective judicial selection by ensuring the candour and robustness of future deliberations. The second aspect concerns the interests of candidates. If the content of deliberations and thus the views held by commissioners about candidates could be divulged, that might be a dampener to future applications. Confidentiality of the content of deliberations promotes the privacy and dignity of candidates. Thus this implicates fundamental rights.

[36] In order to assess the impact of the disclosure of deliberations on the selection process properly, it is worth having a close look at who make up the JSC. Some become members of the JSC by virtue of the office they hold. These are the Chief Justice, the President of the Supreme Court of Appeal, the Cabinet member responsible for the administration of justice, and – when the JSC is considering matters relating to a specific division of the High Court – the Judge President of that division and the Premier of the province concerned. The remaining members are nominated, designated or elected by a variety of bodies and the President. They are: one Judge President designated by the Judges President; two practising advocates nominated from within the advocates’ profession; two practising attorneys nominated from within the attorneys’ profession; one teacher of law designated by teachers of law at South African universities; six persons designated by the National Assembly from amongst its members; four permanent delegates to the National Council of Provinces with a supporting vote of at least six provinces; four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly. All those who are nominated – and not designated or elected – are appointed by the President.

[37] Since courts play a crucial role in our constitutional democracy, without doubt the JSC’s function of recommending appointments to the senior judiciary is of singular importance. Bearing in mind the importance of this function, I do not think it unreasonable to expect that those that bear the responsibility of nominating, designating or electing individuals for membership of the JSC will take their responsibility seriously and identify people who are suitably qualified for the position. Of course, we cannot be blind to some bad appointments to a variety of senior positions that we have witnessed in litigation that has come before the courts. But that is not reason enough to make an assumption that the JSC may well be saddled with bad appointments. As for those whom the Constitution has identified for membership by virtue of their office, I cannot second-guess the framers of the Constitution in selecting the relevant offices. If anything and barring individual shortcomings which – from time to time – do manifest themselves even in the highest and most respected of offices, these offices are eminently qualified for membership of the JSC.

[38] Now, looking at the composition of the JSC, it seems to me that the JSC’s concerns regarding the impact of disclosure of deliberations are overstated. I do not think it is expecting too much to adopt the stance that JSC members worth their salt ought to be in a position to stand publicly by views they have expressed in private deliberations. I would find it odd that JSC members would be such “timorous fainthearts” that they would clam up at the prospect that views they express during deliberations could be divulged. I readily conceive of members being apprehensive at the prospect of disclosure if – during deliberations – they make inappropriate comments. Is that worthy of shielding? I think not. Debating with candour and robustness does not equate to the expression of impropriety. It escapes me why the prospect of disclosure of deliberations should necessarily take away candour and robustness from the debate.

[39] Another aspect of the JSC’s confidentiality argument relates to the privacy and dignity concerns of candidates themselves. The argument is that divulging the content of deliberations may bring into the public domain matter that impugns the dignity and privacy of candidates and that this may be a dampener to future applications. One assumes that, in asserting their points during deliberations, JSC members will not – as they shouldn’t – make unfair or improper assertions that impugn the dignity or privacy of candidates. By unfair or improper assertions I mean assertions that have no basis on the material canvassed, questions asked or answers given during the interview. I have already concluded that the JSC cannot appropriately expect unfair or improper assertions made during deliberations to be shielded from disclosure.

[40] Generally the most embarrassing issues that could impugn the dignity or privacy of candidates are raised during interviews. And the interviews take place in public and are often widely publicised. It is this stage that should fill candidates with dread. These are applicants who have put themselves forward for an important public office, and who must expect, and do submit to, gruelling scrutiny at the public interview. What follows after the public interview can hardly be as distressing. And most observers, who care to, will most likely draw their own conclusions on embarrassing issues at the stage of the public interview. If anything has the potential of being a dampener to future applications, it must be the prospect of the gruelling public scrutiny. That is not what the JSC’s concerns relate to. How, if it were known by potential candidates that the ensuing arguments by JSC members at their deliberations are normally divulged, that could – to a sufficiently significant extent – be a dampener to future applications is difficult to comprehend.

[41] It should be borne in mind that the gruelling public interviews take place all the time. That should be contrasted with the few times when JSC decisions are taken on review, giving rise to the need to divulge deliberations. I do not think that the prospect that the deliberations might be divulged would be to so significant an extent as to be a dampener to worthy candidates. I use “worthy” advisedly. Candidates who are aware of issues that may seriously impugn their candidacy are more likely to fear the exposure of those issues and the interrogation on them that would most likely ensue at the public interview than the later expression of views on those issues by JSC members in deliberations.

[42] I am led to the conclusion that the fears expressed by the JSC do not entitle it to refuse to disclose recordings of its deliberations. The second judgment reaches the opposite conclusion. This it does mainly on two bases. One basis is grounded on exemptions on disclosure contained in the Promotion of Access to Information Act (PAIA). The other relates to what the second judgment holds was at the centre of the High Court’s judgment: that is the exercise of discretion in terms of rule 30A of the Uniform Rules of Court. I have also had the honour of reading a judgment penned by my colleague, Kollapen AJ (third judgment). It too disagrees with my conclusion based on, amongst others, some provisions of PAIA. I must next deal with this PAIA point.

The impact of PAIA provisions

[43] The second judgment draws attention to the fact that some sections in PAIA deny the public access to certain types of information. One example is section 12(d) of PAIA which denies access to information relating to the JSC’s selection process. The second judgment then makes the point that it would be a subversion of the provisions of PAIA to afford a litigant under rule 53 that which PAIA does not allow. I disagree.

[44] PAIA and rule 53 serve different purposes. Rule 53 helps a review applicant in the exercise of her or his right of access to court under section 34 of the Constitution. On the other hand, in one instance PAIA affords any person the right of access to any information held by the state. The person seeking the information need not give any explanation whatsoever as to why she or he requires the information. The person could be the classic busybody who wants access to information held by the state for the sake of it.

[45] In the myriad areas of its operation, the state often comes across, or enjoins persons to furnish it with, private information. I expand on this shortly. The knowledge that the state will not unhesitatingly give that information to others – including busybodies who want it for no particular reason – serves as an incentive to persons readily to cooperate and provide their information. That facilitates the exercise of powers and performance of functions by state functionaries. Surely then, if under PAIA information – including information truly belonging to other private persons – can be had merely for the asking, it makes sense that there should be stricter controls on access than in the case where – as is the position under rule 53 – information is required for the furtherance of a right. Of course, those controls should not be such that the right of access to information is denuded of its essential content.

[46] The difference in the nature of, and purposes served by, the right of access to information in terms of PAIA, on the one hand, and the right to a record under rule 53, on the other, underscore the reality that it is inapt simply to transpose PAIA proscriptions on access to information to the rule 53 scenario. There is a principled basis for drawing a distinction.

[47] Take the example of section 36 of PAIA. This section exempts from disclosure confidential commercial information. This type of information is routinely disclosed in civil proceedings where that is necessary. It would be an oddity for it to be suggested that this should not be so. Indeed, confidential commercial information has been divulged under rule 53. The modern regulatory state, which collects and holds vast amounts of information – including confidential commercial information – about private businesses for a variety of purposes “has an interest in the protection of confidential information submitted to it, because third parties may otherwise be unwilling to co-operate”.

[48] In Bridon confidential commercial information belonging to Bridon International GMBH (Bridon) had been divulged to an organ of state, the International Trade Administration Commission (Commission), to enable it to exercise its “anti dumping” investigative powers in terms of the International Trade Administration Act. Relying on this information, the Commission made a recommendation that the relevant Minister should take a decision that would adversely affect Casar Drahtseiwerk Saar GMBH (Casar), Bridon’s competitor. The Minister decided in accordance with the recommendation. Casar instituted proceedings in which it sought the review of both the Commission’s recommendation and the Minister’s decision. In complying with rule 53, the Commission refused to disclose Bridon’s confidential commercial information. This was on the basis that, in terms of Part D of Chapter 4 of the International Trade Administration Act, the Commission could divulge the information only with the consent of Bridon. This stance led to an interlocutory application by Casar that the Commission be compelled to furnish the information in terms of rule 53. The High Court granted that application subject to a strict confidentiality regime. An appeal by Bridon to the Supreme Court of Appeal was unsuccessful.

[49] Crucially for present purposes, the effect of what the Supreme Court of Appeal held – correctly so – was that Bridon’s confidential commercial information was subject to disclosure under rule 53. This it did despite the existence of section 36 of PAIA. Of course, the Supreme Court of Appeal upheld the High Court’s strict confidentiality regime.

[50] Does the fact that Bridon turned on the provisions of section 35 of the International Trade Administration Act make a difference? No. In terms of this section a court that has found the information in issue to be confidential has a discretion to make an order concerning access to it. But in the end in Bridon the information was required in terms of rule 53. That is what the order by the High Court, which was confirmed by the Supreme Court of Appeal, sanctioned.

[51] Lastly, the second judgment points to absurdities that may arise if everything relevant to the impugned proceedings were to form part of the rule 53 record. It gives the example of “a party that seeks access to information held in confidence under an international agreement or information whose disclosure could reasonably cause harm to the defence or security of the Republic”. The judgment then makes the point that in terms of section 41 of PAIA the information officer of a public body may refuse access to information of this nature.

[52] Information that bears no relevance to the subject of review need not form part of the record. At the same time, not all information that is relevant must necessarily form part of the record. There may be one or other basis of exclusion. As we know, privileged information, for example, communications between clients and their legal representatives, is routinely excluded from disclosure under rule 53. The question is: is there some legally cognisable basis for excluding the relevant information from the record? A basis of excluding the information referred to by the second judgment could, for example, be “public interest privilege”. Based on the learning that Bridon deals with extensively, there is no closed list of what may constitute privilege. The test is based—

“on a judicial evaluation of the balance between two conflicting public interests. On the one hand there is the public interest in finding the truth in court proceedings. This is to be weighed up against the countervailing public interest which sometimes requires that the confidentiality of information be maintained.”

[53] Happily I need not decide the question whether the type of information instanced by the second judgment does indeed qualify for public interest privilege. The simple point I make is this: the fact that information that – in terms of section 41 of PAIA – cannot be accessed by a requester is relevant for purposes of rule 53 does not of necessity lead to its disclosure under this rule. Thus I do not see the absurdity which – according to the second judgment – follows inexorably whenever the information in issue is relevant.

[54] The third judgment too relies on some PAIA exclusions to bolster the view that the JSC is entitled not to disclose its deliberations. I think my response to the second judgment in this regard has sufficiently dealt with what the third judgment says.

[55] To summarise, the denial of access to information – whether under sections 12(d), 36, 41 or any other section of PAIA – does not necessarily lead to the type of information covered by those sections being exempt from disclosure under rule 53.

Is there a legislative or constitutional bar to disclosure?

[56] The JSC also argued that – read together – section 178(6) of the Constitution, section 38 of the Judicial Service Commission Act (JSC Act) and regulation 3(k) of the JSC procedure determined by the JSC, create a bar to disclosure. The JSC is established in terms of section 178 of the Constitution. Section 178(6) empowers the JSC to determine its own procedure. Under this power, the JSC has determined rules of procedure. The rules have been promulgated as regulations in terms of section 35 of the JSC Act. These regulations are what I defined as the JSC procedure above. Regulation 3(k) provides that “[a]fter completion of the interviews, the Judicial Service Commission shall deliberate in private and shall, if deemed appropriate, select the candidate for appointment by consensus or, if necessary, majority vote”.

[57] Section 38(1) of the JSC Act provides:

“No person, including any member of the Commission, Committee, or any Tribunal, or Secretariat of the Commission, or Registrar or his or her staff, may disclose any confidential information or confidential document obtained by that person in the performance of his or her functions in terms of this Act, except—
(a) to the extent to which it may be necessary for the proper administration of any provision of this Act;
(b) to any person who of necessity requires it for the performance of any function in terms of this Act;
(c) when required to do so by order of a court of law; or
(d) with the written permission of the Chief Justice.”

[58] The power in section 178(6) – which is couched in broad terms – does not mean the JSC may determine procedures that are at odds with the Constitution. It cannot be otherwise because a determination of procedure by the JSC that is at variance with any constitutional provision would be an infringement of the supremacy clause which prescribes that “law or conduct inconsistent with [the Constitution] is invalid”. Of relevance for present purposes is the right of access to court contained in section 34 of the Constitution. It is axiomatic that this is the right sought to be advanced by rule 53. As we have seen from Democratic Alliance, without a record, a court cannot perform its review function properly. And that constitutes an infringement of the right of access to court. This must also be true of a truncated record; the JSC record from which a recording of the deliberations has been excised answers that description.

[59] In addition, there is a real risk of a review applicant’s right under section 34 being infringed when she or he has been denied access to material that might have assisted her or his case. The unfairness lies in the fact that the applicant may have been hampered in the formulation and prosecution of her or his case. Put differently, she or he may have been prevented from making the best possible case. It matters not that – in the end – the recording of the deliberations may have proved to be useless to the applicant’s case. The pronouncement by Brand JA in Bridon is apt:

“The Commission expressly stated that it had relied on Bridon’s confidential information in arriving at the decision which Casar seeks to challenge in the main application. It follows that, without knowing the basis for the decision, Casar will have to mount that challenge in the dark against an opponent with perfect night vision, in that it knows exactly what information it had considered. For example, Casar will hardly be able to contend that the decision was irrational; that irrelevant considerations were taken into account; or that the decision was taken arbitrarily or capriciously. These, of course, would all constitute legitimate grounds for review under section 6 of the Promotion of Administrative Justice Act 3 of 2000. What is more, it is not only the confidential information actually relied upon by the Commission that may potentially be material. Disclosure of Bridon’s confidential information that was available to the Commission may show that it had failed to have regard to relevant considerations, which is another review ground contemplated in section 6(2)(e) of PAJA.”

[60] Coming to regulation 3(k) of the JSC procedure, if it is to be read to mean that a recording of the deliberations of the JSC is not subject to production under rule 53, that would make the regulation inconsistent with the right of access to court and invalid. In Hyundai Langa DP said:

“[J]udicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.”

[61] And he then expressed the word of caution against straining language that I referred to above.

[62] Therefore, if possible, the procedure that has been determined by the JSC in terms of section 178(6) of the Constitution must be read in conformity with the Constitution. This accords with section 39(2) of the Constitution. A reading that keeps regulation 3(k) within constitutional bounds is quite possible here. If the constitutional right of access to court requires disclosure, I do not see how a procedure determined by the JSC can alter that. After all what section 178(6) authorises is the determination by the JSC of its procedure, not that of courts.

[63] Do the provisions of section 38 of the JSC Act alter the position? I think not. The section itself actually envisages disclosure, but only under the exceptions itemised in (a) to (d). There is thus no general bar to disclosure. Crucially, it is not all information or documents obtained in the performance of functions in terms of the JSC Act that may not be disclosed. The operative word is “confidential”; only confidential information or documents are hit by the prohibition. This is a far cry from the blanket refusal of disclosure that the JSC is contending for. Surely, confidentiality must relate to the nature of the information. Information cannot be confidential just because the person who would like it to be regarded as such says it is. Therefore, an a priori declaration by the JSC that its deliberations are to be held in private cannot automatically transform even the most innocuous, non sensitive content of deliberations to confidential information. Confidentiality has everything to do with the nature of the information or document concerned. That is why – in my view – section 38 applies even in instances outside of JSC deliberations. Thus if the JSC claims that divulging the content of its deliberations will be hit by the prohibition in section 38, it must first demonstrate that the information is of a confidential nature. It has not done that. It has rather relied on a blanket non disclosure. Section 38 cannot be a basis for that stance.

Balancing the competing interests

[64] The JSC’s appeal to secrecy in the face of the possible infringement of a litigant’s fundamental right to a fair trial raises rule of law concerns. This Court has held that the foundational values of accountability, responsiveness and openness find application even outside their original setting of regular elections found in section 1 of the Constitution. This is what it said addressing the need for the openness and transparency of the processes of courts themselves:

“Courts should in principle welcome public exposure of their work in the court room, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (i.e. the principle of open court rooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.”

[65] These values are of singular importance in South Africa coming – as we do – from a past where governance and administration were shrouded in secrecy. If we are truly to emancipate ourselves from that past, all our democratic constitutional institutions must espouse, promote and respect these values. The blanket secrecy that the JSC is advocating is at odds with this imperative. And this is especially so, regard being had to the fact that the JSC’s claim to secrecy does not bear scrutiny.

[66] The secrecy that the JSC is clamouring for might result in negative public perceptions not only about the JSC itself, but also about the very senior judiciary in respect of whose appointment it plays a vital role.

[67] Where a claim to blanket non-disclosure is asserted, the court must engage in a balancing exercise. An important factor in weighing-up the JSC’s interest against that of review applicants in general is that the JSC is engaged in a particularly important exercise of public power, which must be done lawfully and rationally. Generally the only way to test the legality of the exercise of this power completely and thoroughly is to afford an applicant for review access to all material relevant to that exercise of power. If a public functionary can withhold information relevant to the decision, there is always a risk that possible illegalities remain uncovered and are thus insulated from scrutiny and review. That is at variance with the rule of law and our paramount values of accountability, responsiveness and openness. This affects not only the individual litigant, but also the public interest in the exercise of public power in accordance with the Constitution. It must, therefore, be in truly deserving and exceptional cases that absolute non-disclosure should be sanctioned.

[68] Unsurprisingly, in Masetlha Moseneke DCJ writes that ordinarily courts incline towards disclosure rather than the opposite. Of course, he says this in a different context, but it is relevant. His words are:

“Ordinarily courts would look favourably on a claim of a litigant to gain access to documents or other information reasonably required to assert or protect a threatened right or to advance a cause of action. This is so because courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honoured part of a litigating party’s right to a fair trial.”

[69] It is worth noting that the third judgment accepts that ordinarily the deliberations of the JSC should form part of a rule 53 record. But it holds that considerations of confidentiality justify their exclusion. Based on my conclusion that it is only in truly deserving and exceptional cases that there must be absolute non disclosure, I do not agree. Although I cannot make light of the concerns raised by the JSC, I do not think they reach the level of being exceptional.

[70] Where absolute non-disclosure is not justified, the information at issue may – in the court’s exercise of discretion – be disclosed, not disclosed or disclosed subject to a confidentiality regime. The court will weigh up the interests that favour disclosure against the asserted confidentiality interests. The outcome of that exercise of discretion will depend on the circumstances of each case.

[71] In this case, it is not possible to order non-disclosure because no fact-specific basis for non-disclosure has been pleaded. May disclosure then be ordered under a confidentiality regime?

Confidentiality regime

[72] I do not quite comprehend why the JSC’s concerns cannot be adequately addressed by a suitably framed confidentiality regime. The only reason given by the third judgment against a confidentiality regime is that confidentiality regimes are not foolproof. The judgment says:

“Even if access to the deliberations of the JSC are limited to the parties and their lawyers, the material in the deliberations is likely to find its way into affidavits and oral submissions made by the parties.” (Emphasis added.)

[73] This is not true of all confidentiality regimes. Some can and do impose very stringent conditions with the result that it becomes unlikely that the confidential material may be divulged beyond the category of people who should rightly have it. An example is the one that was formulated in Bridon. It limited—

“access to the confidential part of the Commission’s record to legal representatives of the parties in the main application and one independent expert appointed by each party to assist in that application. In addition, these persons w[ould] only have access after they ha[d] signed a confidentiality undertaking in the form dictated by the order. In terms of that undertaking the signatory pledge[d] not to divulge the information that he or she obtained from the record to anybody outside the stipulated group of persons, which group d[id] not include the parties themselves or any of their employees. The order further require[d] that any pleading, affidavit or argument filed in the main application be made up in two parts – a confidential version and a non confidential version; that all references to confidential information be expunged from the non confidential version; and that access to the confidential version be reserved to permitted persons and the judge presiding in the main application.” (Emphasis added.)

[74] For all we know the likely fears of, and potential harm to, JSC members and candidates appearing before them may be sufficiently dealt with by a similarly strict confidentiality regime. The Bridon example does not only deny access to the public, it also denies it to the parties themselves. The few individuals who do have access sign a confidentially undertaking not to divulge the information even to their clients. To the extent that the third judgment says the information could be divulged even in parties’ submissions, it is a matter of relative ease for the regime to address that as well. The fact that – as was done in Bridon – something can workably be done with the content of affidavits illustrates this. Under these or similar circumstances, it would be grabbing at straws for one to continue to suggest that the JSC could still nurse realistic fears. At best, the likelihood of disclosure is minuscule and certainly not warranting the non-disclosure that the JSC is contending for. In each instance, all that would have to be done is to craft a regime with conditions that are suited to it.

[75] Although the third judgment makes a strong case for the JSC’s claim, I remain unpersuaded that the required protection cannot be sufficiently provided by a suitable confidentiality regime.

[76] In this case must we then order disclosure subject to a confidentiality regime? Since no fact-specific claim of confidentiality was raised, I do not think it necessary to pronounce on a possible confidentiality regime.

Refusal of disclosure based on the facts

[77] At a factual level, the third judgment says that the HSF will not suffer any significant harm as it already has a substantial record; it will thus not be forced to launch its review in the dark. It is worth noting that the third judgment acknowledges that the JSC’s deliberations are relevant for purposes of a rule 53 record and that relevance must be considered in respect of their connection to the impugned decision rather than the pleaded case. The unfairness suffered by a review applicant denied access to deliberations lies in the fact that she or he may have been prevented from making the best possible case. The fact that a number of other relevant documents and reasons distilled from the deliberations have been provided does not detract from the unfairness of withholding other relevant information. The information that has been withheld may provide evidence of reviewable irregularities that are not revealed by the other documentation. That is why the rule requires that all relevant documentation must be provided, unless there is some legally cognisable basis for withholding it.

[78] Finally, I next deal with the second basis for the second judgment’s conclusion.

High Court’s exercise of discretion

[79] The second judgment reasons that the High Court’s decision to deny the HSF the recording of the JSC’s deliberations was based on that Court’s exercise of discretion in terms of rule 30A of the Uniform Rules of Court. The second judgment says, because the High Court’s decision was based on the exercise of discretion in the true sense, on appeal its decision should be liable to be set aside only on the narrowest of grounds. I have no quarrel with the fact that in terms of rule 30A(2) there is an exercise of discretion as to what an appropriate order should be once a court has held – under rule 30A(1) – that there has been non-compliance with the rules. As to the antecedent question arising from rule 30A(1) whether there has, in fact, been non compliance with the rules, there is no question of an exercise of discretion. The court must determine – as an objective question of fact or law – whether there has been non-compliance. On that question, therefore, a court of appeal makes the simple determination whether the lower court was right or wrong in its conclusion on compliance. The discretion under rule 30A(2) does not feature at all. The second judgment does not draw this distinction between what is required of the court first under rule 30A(1) and then under rule 30A(2).

[80] To conclude on this aspect, the High Court first had to determine whether the JSC’s refusal to furnish the HSF with a copy of the recording of the deliberations amounted to non-compliance with rule 53. This did not involve any exercise of discretion. On this the High Court held against the HSF. That remains the issue that we too must determine. On whether the High Court’s conclusion falls to be upheld, we cannot be subject to the strictures applicable to appeals on matters concerning the exercise of a discretion in the true sense. The question is a simple one: was the High Court right or wrong in its conclusion?

Conclusion

[81] The appeal must succeed with costs, including the costs of two counsel.

Condonation

[82] The amicus curiae applied for condonation for the late filing of its written submissions. The written submissions were served electronically on the HSF and the JSC and emailed to the Registrar’s office on the last day for filing. On the following day the correspondent attorneys attempted to file hard copies of the submissions. These were not accepted as they were late and not accompanied by a condonation application. The written submissions were ultimately filed, together with the condonation application, two days later. The delay is minimal. Given that electronic service was effected on time, there is no prejudice to the other parties. It is in the interests of justice that condonation be granted, and it is granted.

Order

[83] The following order is made:

1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the High Court of South Africa, Western Cape Division, Cape Town (High Court) and the Supreme Court of Appeal are set aside and substituted with the following:
“The respondent is ordered to comply with rule 53(1)(b) of the Uniform Rules of Court and to deliver the full recording of the proceedings sought to be reviewed in the main application, including the audio recording and any transcript of the deliberations of the JSC after the interviews on 17 October 2012.”
4. The respondent is to pay the applicant’s costs, including the costs of two counsel, in this Court, the Supreme Court of Appeal and High Court.