OPINION: Be that as it may, Ramaphosa’s decision is hard to justify. From a political perspective and from common-sense point of view, the president’s decision leaves a bitter taste in the mouth.
By Professor Bheki Mngomezulu.
The appointment of Judge Raymond Zondo as Chief Justice raises pertinent questions. After many weeks of speculation, President Cyril Ramaphosa appointed Judge Zondo as the successor to Chief Justice Mogoeng Mogoeng. This decision took many by surprise, myself included.
Ramaphosa’s decision has triggered pertinent questions, including the following: Did he violate the Constitution? Was his decision justifiable? Was Zondo the best candidate for this position?
Why was the emphatic recommendation of the Judicial Services Commission (JSC) ignored? Did the appointment have anything to do with what transpired during the Zondo Commission? Was the appointment meant to ensure Ramaphosa’s “soft landing” when he leaves office? Will this appointment ensure stability at the Constitutional Court? This list is not exhaustive, but it forces us to ponder about the possible motivating factors behind the President’s decision.
Regarding the first question, I will be honest. The president did not violate the Constitution. Section 174(3) gives him the prerogative to appoint the judiciary (including the Chief Justice).
He does this after consulting the JSC and all political parties that are represented in Parliament. According to the statement released by the Presidency, this is what the president did. Therefore, there was no breach of the Constitution.
Be that as it may, Ramaphosa’s decision is hard to justify. From a political perspective and from common-sense point of view, the president’s decision leaves a bitter taste in the mouth.
First, Judge Zondo did not emerge as the best candidate from the public interviews that were conducted by the JSC. Judge Mandisa Maya was confirmed as the best candidate.
This raises the question as to whether the President had already decided that Judge Zondo would be appointed regardless of the outcome of the interviews. If that was the case, why was it necessary to waste taxpayers’ money to allow a useless process to unfold?
While it is true that thepPresident has the final say in the appointment of the Chief Justice, such a decision must be informed by proper reasoning for it to be credible and justifiable.
Looking at this appointment from a political angle, a few things do not add up. During the Commission on State Capture, which was presided over by Judge Zondo, many things went wrong.
The president was implicated by some witnesses and yet Judge Zondo did not afford him the opportunity to explain himself as he did to others. Ramaphosa only appeared in his official position(s) before the commission, not in his personal capacity. It remains unclear as to why this was the case.
Now that the president has appointed Judge Zondo, this could be rightly or wrongly viewed as reciprocation and insurance to guarantee Ramaphosa’s soft landing when he retires as the president.
Second, the manner in which the Zondo Commission handled the Jacob Zuma matter left a lot to be desired. When Zuma appeared before Judge Zondo, he was not treated like other witnesses. The interrogation gave the impression that this was a court proceeding and not a commission. This resulted in Zuma asking Judge Zondo to recuse himself.
Interestingly, Judge Zondo became the player and the referee when he heard the matter and decided that he was not going to recuse himself.
In response, Zuma decided not to return to the commission under these circumstances. Judge Zondo went to the Constitutional Court to lay a complaint, thereby making it impossible for Zuma to appeal.
Moreover, Judge Zondo asked the Constitutional Court to sentence Zuma for two years if found guilty. For anyone who is not a lawyer, this raised eyebrows. Intriguingly, the Constitutional Court judges entertained Judge Zondo’s requests.
When Justice Sisi Khampepe delivered her judgment, she ignored a fine or a suspended sentence and went to the extreme – ruling that Zuma should be incarcerated for 15 months.
Consequently, 350 people lost their lives, businesses were adversely affected, people lost jobs, the infrastructure was destroyed in unrest as racial tensions polarised the country. Politics and law converged; the results were devastating. I am not sure if Ramaphosa considered this would happen.
Another critical point is stability within the Constitutional Court. Judge Zondo is left with less than three years before he retires. Common sense dictates that someone with the prospect of remaining in this office for much longer would have been an ideal option.
Judge Zondo will be turning 62 in May. Judge Maya will be turning 58 on today (Sunday 20 March 2022). It remains unclear if the president took these facts into account.
Against this backdrop, my view is that the president was constitutionally correct in appointing Judge Zondo but erred in both the political and common-sense perspectives.
He also missed a glorious opportunity to appoint the first capable female judge to head the Constitutional Court. Elevating Judge Zondo on the grounds that he was Deputy Chief Justice cannot be the reason. Judge Dikgang Moseneke remained the deputy until he retired.
* Bheki Mngomezulu is Professor of Political Science and Deputy Dean of Research at the University of the Western Cape.