Panel Recommendations on Electoral Commission Appointment
Recommendations of the panel established in terms of section 6(3) of the Electoral Commission Act 1996.

1. Section 6(2) of the Electoral Commission Act 1996 requires that any person appointed as a member of the Commission be selected from a list of recommended candidates submitted to the National Assembly by a panel consisting of the President of the Constitutional Court, as Chairperson, a representative of the Human Rights Commission, a representative of the Commission on Gender Equality and the Public Protector.

2. On 26 January 1999 the President of the Constitutional Court was informed by President Mandela that Justice Kriegler, a member and chairperson of the Electoral Commission, had resigned. He was asked to convene a meeting of the panel referred in section 6 of the Electoral Commission Act and take the steps necessary to prepare a list of names to be submitted to the National Assembly.

3. The panel met on 27 January to consider how to proceed in the circumstances which then existed. In terms of section 49(2) of the Constitution an election has to be held within 90 days of the date on which the term of the current Assembly expires. Although a date has not yet been fixed for the holding of the election, it seems that it must be held during the period May to July 1999. There is accordingly some urgency in filling the vacancy which has occurred. The Electoral Commission Act, however, makes no provision for the manner in which casual vacancies are to be filled.

4. When the panel met it had to decide how to proceed in the absence of any specific statutory provision prescribing what has to be done when a casual vacancy occurs. Section 6 of the Electoral Commission Act provides that the Commission shall consist of five members, one of whom shall be a judge, appointed by the President in accordance with the provisions of that section. The section also provides that no person shall be appointed as a member of the Commission unless the procedure prescribed by section 6 for the appointment of Commissioners has been complied with. That procedure requires the panel to prepare a list of names for submission to the National Assembly. A committee of the National Assembly, constituted in accordance with the requirements of section 6(2)(d) is required to nominate persons whose names appear on the list to be appointed as Electoral Commissioners, and the National Assembly is required by resolution to recommend the appointment to the President. The panel proceeded on the assumption that appointments could only be made if a list were prepared by it, a nomination were then made by the committee of the National Assembly appointed for that purpose, and a resolution of the National Assembly were passed. As there is no provision in the Electoral Commission Act dealing specifically with the filling of casual vacancies, the panel took the view that it should proceed as closely as possible in accordance with the procedure prescribed by section 6(5) of the Act, which requires the panel to act in accordance with the principles of transparency and openness and make its recommendations with due regard to a person's suitability, qualifications and experience.

5. It was not necessary for the panel to consider whether the list previously submitted to the National Assembly could be used for the purpose of filling the casual vacancy. The reason is that the Act requires at least one member of the Commission to be a judge, and the only person on the list previously submitted to the National Assembly who was a judge, was Justice Kriegler. In the circumstances it was necessary for the panel to proceed on the basis that the vacancy would have to be filled by a judge. That meant that the previous list would have to be supplemented by adding to it the name or names of a judge or judges.

6. Because of the importance of filling the vacancy as soon as possible, the panel asked the President of the Constitutional Court to establish the names of judges who would be willing to accept appointment to the Commission. The President of the Constitutional Court did this by writing to the Chief Justice and the Judges President of all the higher Courts asking them whether they, or any member of their Court, would be willing to accept appointment to the Electoral Commission if asked to do so by the President. A copy of this letter is attached to this report.

7. In order to meet the requirement of transparency the panel called a press conference immediately after its decision had been made, and invited representatives of the electronic and print media to attend the conference. Representatives of both the electronic and the print media in fact came to the conference at which a press statement was issued and the members of the panel responded to questions put to them. A copy of the press statement is also attached to this report.

8. The press statement contained a general invitation to members of the public to nominate a judge to fill the vacancy. The only requirement attached to the nomination was that the judge concerned should consent thereto. The fact that nominations were being called for received publicity in both the print and electronic media.

9. Because of the special knowledge that they have concerning the judiciary, the panel addressed letters to professional organisations within the legal profession asking for nominations to be made by them. Such letters were addressed to the General Council of the Bar of South Africa, The Association of Law Societies, The Black Lawyers Association and the National Association of Democratic Lawyers. A copy of the letter addressed to such organisations is also attached to this report.

10. Only two judges have indicated a willingness to accept appointment to the Electoral Commission. They are the Honourable Mr Justice A Gildenhuys and the Honourable Mr Justice I Hussain. We attach to this report copies of their curricula vitae which were made available to us. We have had the opportunity of interviewing both the nominees, and we are satisfied that they meet the requirements prescribed by sections 6(2)(a) and (b) of the Act for appointment as Commissioners. Our brief comments on the candidates based on the interviews are as follows.

11. Justice Gildenhuys is a judge of the Land Claims Court. He was the chairperson of the National Peace Secretariat from 1991 - 1995, and has been actively involved in community activities serving on various committees, including committees of the Association of Law Societies. Justice Gildenhuys was at one time a member of the Broederbond. This issue was explored in the interview with him, and was also explored by the Judicial Service Commission before recommending him for appointment to the sensitive post of judge of the Land Claims Court. Justice Gildenhuys played. an active role during the transformation process. He chaired the National Peace Secretariat, and negotiated the establishment of regional peace committees. He was also appointed to the board of the SABC during the period of transformation, where he chaired the sub-committee on election and news coverage, and helped establish a representative committee of the SABC to deal with voter education by the broadcast media. As a former board member of public companies, and chair of the financial committee of the Association of Law Societies, and of the Attorneys' Fidelity Fund, he has experience in financial and administrative matters.

12. Justice Hussain participated in the activities of the Independent Electoral Commission during the last election being the Deputy Director Monitoring and Head of the Department of Investigations for the PWV region. He had 30 lawyers in his department which was concerned with the investigation and prosecution of infringements of the electoral legislation and associated code of conduct. Closer to the election his department also became involved in dealing with practical logistical and other problems which arose at that time. When the election was over he participated in the compilation of a report identifying practical problems which had arisen during the election (which we have seen) and also compiled a more detailed report (which we have not seen) which he considered would be of assistance to the Independent Electoral Commission for the running of future elections. He has been actively involved in the affairs of Nadel and the Johannesburg Bar Council.

13. As no other judge is willing to accept appointment to the Commission we are unable to provide more than two names to the Assembly. We draw attention to the fact that on the previous list submitted to the National Assembly the name of only one judge appeared, Justice Kriegler, who was the only judge who accepted nomination for appointment as an Electoral Commissioner.

14. We have acted as expeditiously as we could in the circumstances, making transparent how we are proceeding, and doing our best to secure the nomination of judges to fill the vacancy caused by Judge Kriegler's resignation. Because of the time constraints, and the fact that both nominees had been interviewed in public by the Judicial Service Commission prior to their appointment to the bench, the panel did not consider it necessary to convene a public hearing to interview the candidates Both nominees are judges, and have satisfied the Judicial Service Commission that they are persons of integrity and independence, which are requirements for judicial appointment. The Judges President of the courts in which they serve recommend them as suitable candidates for the post of Electoral Commissioner.

15. Each candidate informed us that he would be willing to serve as an ordinary member of the Commission, but if asked to do so, would also be willing to chair the Commission. We have satisfied ourselves that both candidates have a good knowledge and understanding of the dynamics of our society, and that they meet all the requirements for the office of Electoral Commissioners.

16. We have done the best we can do in the circumstances that have arisen, and are unable to place before the National Assembly any names other than those of Mr Justice Gildenhuys and Mr Justice Hussain. If either of the nominees is appointed to fill the vacancy, the Commission will ultimately consist of five persons chosen from ten names, one of whom, Justice Kriegler, has withdrawn after having been appointed to and served for a time on the Commission. We express no opinion as to whether the Electoral Commission Act contemplates that more than two names are required to be placed on a list to fill a casual vacancy. We have proceeded on the assumption that it does not; but if it does, we are unable to comply with that requirement.

17. Both nominees indicated that they could make themselves available at short notice to serve on the Commission and that the Judges President of their respective courts would co-operate in freeing them from their other obligations. It is important, however, that a decision be taken as soon as possible so that the arrangements to accommodate the absence of the judge that is appointed, can be made by the court on which he serves, with the minimum disruption.