By Zelna Jansen
The President appointed Deputy Chief Justice Raymond Zondo as the Head of the Judiciary and Chief Justice of the Constitutional Court. The appointment was met with both complimentary and negative remarks.
Section 174(3) of the Constitution provides that the President, as head of the national executive, after consulting the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly, appoints the chief justice. The words “after consultation” is key. It means that the President is not bound by the recommendations made by the JSC. If the words were “in consultation”, it would prescribe that the President must consider the recommendations. The President therefore only needs to consult. Legally, there is no prescribed form the consultation should take. There is also no time constraint within which the President must appoint a new chief justice.
The President also followed a public participation process which began in September 2021, wherein the public was invited to submit nominations. These were then evaluated by a panel, chaired by Judge Navi Pillay. The panel proposed four names Justice Mbuyiseli Madlanga; Justice Mandisa Maya; Justice Dunstan Mlambo; and Justice Raymond Zondo, who were interviewed by the JSC. The JSC recommended Justice Maya.
The JSC interviews were criticised as being a “circus” due the tone, calibre, and length of questioning that the justices had to endure. This led to a public outcry that politicians must be removed from the process of appointing justices. It seems the public frowns upon politicians pulling punches and settling scores with justices whom they perceive as pioneering the fight against corruption.
Justice Zondo, who also consequently chaired the Commission on the Inquiry into State Capture and Corruption was interviewed for about 12 hours, faced objections to his nomination by those implicated in state capture and questions of bias in implementing the terms of reference of the commission. Prior to his interview he held a press briefing in response to an opinion editorial penned by the Minister of Tourism that made derogatory comments labelling black judges as “mentally colonised Africans”.
Justice Zondo was questioned about his reasons for conducting a media briefing in response to the article. Justice Zondo may have been thrown off balance by the line of questioning. In fact, the interview process had descended into a shouting argument between a commissioner and the Minister of Justice. It seemed that a good candidate was lost. If it was not for the democratic process of including the voices of people, I would have also agreed to remove politicians from this process. But let us not forget that former chief justice Mogoeng Mogoeng was interviewed over a two-day process. Perhaps this “circus” does have a role to play in appointing the head of the judiciary which is the head of the third arm of government in the separation of powers principle. The other being the President as the head of national executive and the Speaker as head of the Legislature.
However, consolation was found in the fact that Justice Maya was indeed a very good candidate. She is highly recommended and had a proven record of dealing with tensions within the judiciary. Also, not being part of the constitutional court meant that she had no history as Justice Zondo had, and could bring a fresh perspective. Also, Justice Zondo may find himself busy with the implementation of the state capture report and his term with the Constitutional Court would come to an end within a few years. Constitutional Court justices may only serve for a term of 12 years. Justice Zondo was appointed in 2012. It was, therefore, a pleasant surprise when the President announced the appointment of Justice Zondo as chief justice. Further, the President intended to appoint Justice Maya as deputy chief justice when the position becomes vacant. A lesson to the JSC, the appointment of the chief justice is the executive power of the President. Whatever attempts to bring certain candidates into disrepute, clearly will not hinder the President’s decision.
In terms of the law, the President must implement the recommendations of the inquiry into state capture. This will be done under the watchful eye of the judiciary. It therefore does not matter whether there is a different President following the ruling party’s national conference later this year. Those intending to apply to court for a review of the process or any of the recommendations, must bear in mind that the constitutional court is the court of last instance, and the head of the constitutional court is also the former chairperson of the commission. There is, therefore, no legal obstacle to enforce the recommendations. However, depending on what happens later this year, the tensions between the judiciary, government and the ruling party may be exacerbated.
Although Justice Zondo will have a short term, he can still do much. He will be chairing the JSC interviews. One could propose that the chief justice develops principles and values around the type of questions that can be asked during this process. This can be done in consultation with the JSC and national assembly and perhaps ensure better interview process for future justices.
Zelna Jansen is a lawyer. She is CEO of Zelna Jansen Consultancy.