Question 1:

(i) Section 174(2) of the Constitution expresses the need for the South African judiciary to be
broadly reflective of the racial and gender composition in the country when judges are appointed.
This serves to not only bring the judiciary in line with the constitutional goal of promoting the
spirit and purport of the Bill of Rights through values such as equality and the prevention of
unfair discrimination, but it also serves to increase the legitimacy of the judiciary, as prior to
1994, the composition of the judiciary were predominantly White men, under the Apartheid
dispensation which favored people in these race and gender groups. Diversified bench might
also bring unique insight (not necessarily?); redressing the past in terms of racial inequality
is a necessary first step. ✓✓

(ii) In paragraph 43 of Helen Suzman Foundation, the court argued that although there are no
explicit constitutional obligations that the JSC should give reasons for its non-selection of
judicial candidates, this does not bypass the implied obligation to do so. These reasons should be
properly rationalized, and not relate simply to the disparities in votes (paragraph 51).

In Judicial Service Commission, the court held that all relevant documentation and reasons from
the deliberation process when selecting candidates, must be provided, as the withheld
information could contain evidence of reviewable discrepancies that are not covered by other
documentation (paragraph 77). The court also discussed rule 53 of the Uniform Rules of Court,
which exists to facilitate and manage review applications (paragraph 13). The requirement in rule
53(1)(b) specifically states that the decision-maker must file a record of its decisions in order to
assist in this review process. A record is classified as a rule 53 record provided that it contains
any information relevant to the decision and its proceedings (paragraph 17).

In paragraph 213, Kollapen AJ concluded that the disclosure of the deliberations could cause
harm to the privacy and dignity of many, in addition to undermining the JSC and its
constitutional mandate to promote judicial independence and the effectiveness of the selection
process. I disagree with this conclusion. Noting the argumentative reasons in Helen Suzman
Foundation, I concur that the judiciary is constitutionally bound by the principles of transparency
and accountability. Furthermore, the private deliberations contribute greatly to the decision
procedure, and contain the rationale behind the decision. As the court held in the Helen Suzman
Foundation, there is an implied obligation for the JSC to provide rational reasons for its decision
of not selecting judicial candidates. Thus, non-selected candidates, in addition to being provided
with reasons for their non-appointment, should be provided with the record containing the
deliberations. ✓✓✓✓ read paragraphs 31-42 of this judgment.

(iii) In paragraph 41 of Helen Suzman Foundation, the JSC contended that voting for candidates
is conducted by secret ballots, in which none of the JSC members are aware of how other
members have voted. For this reason, the JSC contends that it is unable to present reasons for a
candidate’s non-selection as this would require each member to explain why they voted a
particular way, thus defeating the purpose of a secret ballot. Paragraph 43 further explains that
the JSC cannot exercise its powers irrationally and arbitrarily, and that it is bound by section 195
of the Constitution, which emphasizes an adherence to transparency and accountability.
Moreover, providing reasons is an important aspect of judicial review (paragraph 44), and failing
to do so means that a non-selected candidate can challenge the decision of the JSC on the basis
of irrationality. ✓✓ Could bring a claim based on procedural fairness and rationality;
case: Judicial Service Commission, also could bring a claim based on the Bill of Rights eg.
unfair discrimination based on (x) section in FC.

(iv) The first candidate, although having an LLB and PhD in Law and being cited extensively by
the Constitutional Court, does not have any experience working as a judge and has only worked
as a professor in Law. The second applicant has court experience as she has over 20 years of
experience working as an advocate, appearing before the High Court, Supreme Court of Appeal,
and the Constitutional Court. The third applicant, although being the Judge President with over
20 years of experience as a judge, has made misogynistic comments about women which do not
strongly refute the allegations of harassment and misogyny against him. Judicial Service
Commission highlights that section 174(1) of the Constitution says that any man or woman who
is a fit and proper person may be appointed as a judicial officer. Furthermore, section 174(2) says
that the racial and gender composition of South Africa must be broadly considered when
appointing judicial officers. Thus, the second candidate; advocate Sandhya Naidoo, is the most
suitable candidate for judicial appointment due not only to her experience, but also due to the
fact that she would contribute to expanding the judiciary to be more reflective of the race and
gender composition of South Africa. The third candidate is not a suitable candidate due to his not
being ‘fit and proper’ in line with section 174(1) of the Constitution, given his misogynistic
comments. Additionally, this behavior does not promote the spirit and purport of the Bill of
Rights; which is another principle entrenched in the Constitution.

(v) The JSC, despite being an organ of state under section 239 of the Constitution, operates
outside of the control of the Executive and is a guarantor body. The JSC consists of 23 members
including the Chief Justice, the president of the Supreme Court of Appeal, and amongst others,
the cabinet minister responsible for the administration of justice. Given that South Africa tends
to have one-party dominance by the ANC, the cabinet minister will be of the ANC party. This
means that the JSC is not entirely independent because partisan members will seek to advance
the agenda of their political party due to party loyalty. Furthermore, the Chief Justice is
appointed by the President and thus there may be subtle influence from the Executive to the JSC.
Thus, given the dynamics of the South African political context, the composition of the JSC does
not seem to adequately protect judicial independence. ✓✓✓✓high political representation.
*Counter-majoritarian dilemma.