OPINION: It was a missed opportunity, on part of the president, for him to reaffirm the independence of the judiciary and restore the integrity of the institution that has been subjected to insurmountable criticism in recent years.
by Dr Rasodi K Manyaka
In September 2021, the Presidency issued a call for suitably qualified persons to be nominated by the public for the position of Chief Justice of the Republic of South Africa.
This happened because the president wanted to be seen to be involving members of the public in making this important appointment.
This much was affirmed by the statement released by the Presidency on October 4 last year that the invitation to members of the public “was intended to promote transparency and enable public participation” in the process of appointing the head of the Judiciary.
For many, this is a welcomed gesture because, in a democracy, decisions need to be reflective of the collective views of the public.
Following the process that was started in September, several names were forwarded to the president by the nomination panel.
Later, the president identified and forwarded only four names to the Judicial Service Commission (JSC) for consideration namely: Acting Chief Justice Raymond Zondo, Constitutional Court Justice Mbuyisile Madlanga, President of the Supreme Court of Appeal Mandisa Maya and Judge President Dustin Mlambo.
The JSC is a constitutional structure that is made up of experts in the legal fraternity, judicial officers, members of Parliament as well as representatives of the executive and civil society.
One of the functions of the JSC is to interrogate the suitability of candidate judges and advise the president in making the final appointment.
In particular, the JSC plays quite an important role in the appointment of the head of the judiciary: the chief justice.
This much is consistent with section 174(3) of the Constitution which states among other things that the president, as head of the national executive, must appoint the chief justice and deputy chief justice.
But this must happen after ‘consultation’ with the JSC, and leaders of parties represented in the national assembly.
Some people call this, rightly so, the prerogative of the president.
The interview process that the JSC conducted in determining the suitability of the nominated candidates was the first step of making this consultation possible.
But the JSC is not the only institution to be consulted on this matter.
The second step was the consultation with the leaders of parties represented in Parliament.
But what does consultation in its truest sense entail?
Like any other concept, the notion of consultation may mean different things to different people.
Consultation in this context means that the views of JSC and leaders of parties represented in Parliament should be factored in by the president when making a final decision regarding the appointment of the chief justice.
However, the analysis of the statement released by the presidency on March 10 when announcing the official appointment of Zondo as the chief justice does not appear to have incorporated the views of those who were supposed to be consulted in making the final appointment.
This is despite him emphatically stating that his decision emanates from the consultative process with the JSC and leaders of parties in the national assembly as constitutionally mandated. In the same statement, the president reiterate that this was an ‘inclusive process’ but inclusivity must not be mistaken for unanimity.
The president’s decision is different from the outcomes of the interview process that the JSC engaged in as part of the consultative process. For this reason, the president was compelled in the spirit of good governance to rationalize his decision and take the nation into his confidence regarding the logic and rationality of his preferred appointment.
However, the president’s statement is vacuous on notions of accountability about the logic of how he has arrived at his decision. The fact that the JSC for example recommended the name of Mandisa Maya and not Raymond Zondo is sufficient for him to rationalize his decision.
For the JSC was unanimous on the name of Maya. This must not be understood to mean that the president was bound by the decision of the JSC. He was not. But in making his decision, he needed to have reflected on their advice and not just wilfully ignore this important constitutional structure. The less talked about the outcomes of the second leg of consultation the better because it remains a ‘mystery’.
Many of us are not even sure whether such consultation did take place as required and if it did, what were the outcomes.
Where is transparency that the president talked about when he issued calls for nominations?
For me, it is a missed opportunity on part of the president. A missed opportunity for him to reaffirm the independence of the judiciary and restore the integrity of the institution that has been subjected to insurmountable criticism in recent years.
What the president could have done in crafting his statement which announced Raymond Zondo as the Chief Justice is that he could have taken the nation into confidence about the rationality of his decision.
That is, he could have explained with ease why he appointed Zondo even if the JSC for example preferred Maya or any other candidate for that matter. Instead, his statement says nothing about the outcomes of the first and the second leg of the consultation process except that his decision emanates from these processes.
Some people in society see nothing wrong with the president’s decision. They are holding onto the tired argument that the president is exercising his prerogative. IF Zondo was his man, why didn’t he nominate him alone as Zuma did with Mogoeng Mogoeng?
He couldn’t because he wanted to project himself as a politically accountable president.
However, his decision does not reflect this.
Nonetheless, this attitude gives him political legitimacy and currency. It projects his decision as informed by public participation rather than self-interest and factionalism.
I submit that the failure by the president to rationalize his decision will further fuel the speculation and the the perception that the judiciary is used to fight political battles.
Lest we forget, the former Chief Justice Mogoeng
Mogoeng boldly asserted, when he delivered the Nelson Mandela lecture, that there was “an attempt to capture the judiciary” in South Africa and that “a captured judiciary will never be able to use the Constitution as an instrument of transformation”.
The president squandered an opportunity to quell such speculations. And by so doing, he rendered constitutional institutions such as the JSC useless. What would be the need for this institution in future to continue interviewing candidates for this important position if the president already has his own preferred candidate?
Is the president saying that it is okay for us to accompany others to interviews when the employers have already decided who they want?
The fact that already there are concerns that the president’s decision is ‘factional’ and motivated by narrow ‘self-interest’ before Zondo can assume office should be worrying.
Hence, the argument that the president failed to take South Africans into his confidence regarding the validity and rationality of his decision.
Cyril’s actions, at least on this issue, make a mockery of our constitutional democracy, which is founded, among other things, on values of transparency and accountability.
In fact, he may be the most ‘dangerous’ president we have ever seen post-1994.
He appears to be the most consultative president to hide his dictatorial tendencies.
Is this the dictatorship of democracy?
In the context of Mogoeng’s words articulated elsewhere in this article, it may be necessary for us as a country to reflect on the adequacy of this process of appointing the head of the judiciary.
* Manyaka is a lecturer in public administration at the University of Mpumalanga. He writes in his personal capacity.
** The views expressed here may not necessarily be that of IOL.