Cape Town - If the Helen Suzman Foundation is successful in its legal bid for access to certain audio recordings and transcripts of closed-door Judicial Service Commission (JSC) discussions, it could have a major effect on access to public bodies’ confidential deliberations.
This was according to Kameel Premhid, a legal researcher for the foundation, who told the Cape Times that the case had the potential to set a “groundbreaking” precedent.
He said the matter involved the judicial scrutiny of entities, particularly public entities, that were believed to have used their powers in an “unlawful manner”.
If the foundation was successful, it would have the effect that where it could be proved that there had been such “unlawfulness”, it was possible for the decision-making body’s confidentiality to be broken and its deliberations and reasons for its decision accessed.
But the JSC is fighting to defend the confidentiality of its deliberations.
The audio recordings and transcripts the foundation is trying to access relate to closed-door discussions by the commission after it interviewed candidates for five places on the Western Cape Bench in 2012.
When the matter was heard by Judge Andre le Grange in the Western Cape High Court on Friday, advocate Ismail Jamie SC, acting for the JSC, argued that the commission had the power to regulate its own affairs and decisions.
Jamie believed that the foundation was trying to embark on a “fishing expedition”. “Their application is about trawling through the deliberations to find new grounds of review,” he said.
The foundation’s application forms part of a larger legal battle over the process the JSC follows in recommending candidates. It wants a review of the commission’s decision relating to its recommendations for the Western Cape Bench in 2012. Acting for the foundation, advocate David Unterhalter SC argued for the disclosure of the audio recordings and transcripts, saying the JSC’s deliberations were central when it came to the review.
According to him, the disclosure was fundamental to the process of court and the equal footing of the litigants. Unterhalter further said that secrecy was always a cloak for those wanting to “hide something”.
Jamie denied this, saying it had nothing to do with an attempt to conceal.
The JSC’s lawyers have argued that there are legitimate reasons for the commission to keep its deliberations confidential. This included that it would affect the “rigour and candour” of the deliberations, that it would deter future applicants for judicial posts, that it would affect the dignity and privacy of the applicants and that it would have the “unintended consequence” of encouraging the commission to cease to record its deliberations.
Judge Le Grange reserved judgment.