What happens when 5 judges retire?

Next year five judges of the Constitutional Court will come to the end of their 15 year term and will have to retire. These are Chief Justice Pius Langa and Justices Kate O’Regan, Albie Sachs, Yvonne Mgoro and Tollie Madala. Justices O’Regan, Sachs and Mokgoro have been consistently the most progressive voices on the court and it is difficult not to worry about the direction the court will take with five fresh faces on its benches.

Although there are some safeguards built into the Constitution regarding the appointment of judges, the process of appointing Constitutional Court judges are potentially open to political manipulation. In the present circumstances what is worrying is that section 174(3) of the Constitution states that:

The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission…

This means that the President has the final and exclusive say in who gets appointed as Chief Justice in the place of Justice Langa. If the judges retire in September as they are supposed to and if Mr Zuma gets elected as President in June as expected, Mr Zuma will have this power to appoint a new Chief Justice.

He could therefore appoint any “appropriately qualified” “fit and proper” South African citizen he wishes as Chief Justice – even if that person has never served as judge or has never served as judge on the highest court. He could select anyone with a legal background who has not been found guilty of misconduct: Justice Chris Jafta, say, or what about Dumisa Ntsebeza.

If he does the right thing and appoints Deputy Chief Justice Dikgang Moseneke to the position of Chief Justice, there will be a vacancy for the Deputy’s post which the President will also be able to fill – from outside the Constitutional Court if he so wishes.

Moreover, section 174(4) of the Constitution states that the other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.

The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that if the Chief Justice is appointed from among the members of the serving Constitutional Court judges, the JSC will have to send up 8 names to the President who can then select the names of 5 of these nominees to serve on the highest court. Mr Zuma will have all the incentive in the world to think carefully before making his selection because these are the same judges who might have to hear an appeal of the criminal case against him.

The President also has some considerable say in the appointment of several members of the JSC, including the Minister of Justice, three members of the National Assembly representing the majority party, four delegates from the National Council of Provinces and four supplementary members. The Presidential appointees serve for a term of five years and I assume their term comes to an end next year at the same time as that of President Mbeki’s, so if Mr Zuma is elected President he will be able to have a say in the appointment of 12 members of the JSC. (But maybe I am wrong on when their term ends – anyone knows?)

There are usually 23 members to the JSC which means that if I am correct, the President will have a hand in selecting a majority of 12 of these members. This means that Mr Zuma could try to appoint “sound” people to the JSC who would try to ensure that only pliant or pro-Zuma lawyers are nominated for positions on the Constitutional Court. Why not try and get his appointees to appoint lawyers that will be willing to rule in his favour when his various appeals come to the Constitutional Court?

It might well be that Mr Zuma will not be tempted to subvert the system in this way or that he will be persuaded not to go down that route by the Chief Justice and by the leadership of the ANC. If he does not desist and completely politicises the court it will be an unmitigated disaster for the Rule of Law and for trust in the judiciary in South Africa.

The fact that Mr Zuma may be involved in the appointment of Constitutional Court judges who may hear his various appeals will also create some serious ethical problems for these justices. They will not be able to recuse themselves because the Constitutional Court needs a quorum of at least 8 judges to hear a case. But in the public mind they might be seen as biased in favour of Zuma if the process of their appointment did not go smoothly and if unqualified lawyers were appointed.

One way to deal with this potential crisis is for all five the outgoing judges to retire a few months early before the end of President Thabo Mbeki’s term so that Presidnet Mbeki will be able to appoint the new Chief Justice (Moseneke) and new Deputy Chief Justice (Sandile Ngcobo?) and the old JSC will be able to send the eight names to President Mbeki for selection.

Of course, as Vusi Pikoli has shown, lawyers are a funny breed and they do not always act as expected by those who appointed them. Recall an apartheid era Minister of Justice who complained once that the problem with judges were that once selected onto the bench they thought they were there on merit and had a bad habit of starting to think for themselves.

Whatever happens, we are in for a very stormy ride.

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