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.
Why would it be the right thing to appoint Moseneke?
He was once [ early nineties ] well known as a deputy president of the PAC. Most of the public would remember him from then. And he probably is still a member or supporter of that party.
Can the public really entrust its Constitution in the hands { judgement / opinion / insight / perspective } of a supporter of that lunatic fringe of the political spectrum? Doesn’t it say too much of his philosophy and view of life and society?
One can rightly enquire whether his appointment would usher in the “one settler, one bullet”- or ” kill the boer, kill the farmer” – era { ala PAC } of constitutional jurisprudence for our allready shaky and fragile constitutional democracy.
Henri you are spot on my brother. I never thought of this least I knew of Moseneke’s involvement with the PAC. How did he get into that post by the way? Anyway more reasons why Zuma should be careful.
You know Pierre I laughed at your post with excitement of course. I did not realize that JZ will have such huge responsibility as a head of state so soon after his inauguration. Needless to say you are out of order prof. The man is not in government and you already accusing him of improper conduct that he is to do. What is the basis of your allegations? I do not see any problem before us. The president will appoint judges like any other sitting president. It is not good to wish bad things on other people. If religious argument of that being evil cannot be used at least the moral one should apply. I have been thinking how the ANC will push its transformation agenda of the judiciary. If the best time is not now (or should say next year) I really do not know when. Oh boy I like this.
NB: Grace yourself prof
It is absolutely obvious that Judge Presidents of various high courts should be considered in this regard.
We no doubt Hlope is one of them with or without the racial motivated hearings his facing.
The notorious WHITE CAPE BAR won’t win against Hlophe. He is OUR LAST HOPE.
I must stress as a young attorney in this country, I don’t really approve the conduct of most white practioners in our our profession, especially of the Cape bar.
I think it is time we make these staments in all level of spheres. “WE ARE PREPARED TO ENGAGE AND LAY OUR LIVES DOWN FOR OUR LEADERS (INCUDING JUDGE PRESIDENT HLOPHE)”.
WE STILL HAVE A LONG WAY TO GO IN THIS COUNRY, WITH UPCOMING YOUNG LEGAL PRACTITIONERS LIKE MYSELF.
Lindelani, i think your comment is based on a misunderstanding. The current complaint against Hlophe is not racially motivated: 9 of the 13 CC judges who lodged the complaint are not white. While i agree with you that the legal profession is still white-dominated and that we should change this, i do not understand how that can mean that the mainly black judges on the CC are racist. I do not know whether Hlophe is guilty of any misconduct (that is for the JSC to decide), but there is no reason to presume that the allegations are racially motivated.
T, I also find your post confusing. There are very good reasons to suspect JZ even though he is not yet in public office. As Pierre points out, it has been proven in court that he accepted money from a convicted fraudster and did favours for him. He is either corrupt or stupid. In both cases we should be concerned about him appointing judges to the court that will in all likelihood determine whether he goes to jail or not. I also do not see how the opportunity to appoint judges to the already racially balanced CC (the only court that reflects South Africa’s demographics) will aid transformation. Unless of course you mean that they should appoint at least four female judges (2 of the 3 currently there will be leaving) in which case i agree with you entirely.
Henri, i think your post is ill-informed. Have you ever met Justice Moseneke? Have you ever spoken to him or heard him speak about human rights and the rule of law? I have, and i can say that ‘kill the boer, kill the farmer’ is no closer to his mind than it is to Arthur Chaskalson’s or George Bizos’. So what if he was a member of the PAC? Nelson Mandela started MK, does that mean he cannot value the rule of law or human rights? Of course not. I think you should read Moseneke’s judgments to determine his attitudes rather than look at his political affiliation in a very different time and place.
Lindelani, I assume you are an aspirant satirist and are pretending to have these opinions to make fun of narrow-minded bigots? If not, how do you justify working for such an evil, white, racist, organisation as Investec? Should you not rather put your money where your mouth is and work for the revolution instead? O, I forgot, the revolution does not pay as much….
Well prof I have to agree with you on Lindelani. In the revolution we value sacrifice. Our happines and destiny are tied with those of the rest of our population. Yes the revolution does not pay that much. Thing is we not concerned with our well bieng rather that of all our citizens. I guess there some of us who still believe in UBUNTU. You might have heard about that at least.
165(2): “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
It’s a bit rich to assume the courts are independent, especially so in the case of the Constitutional Court whose judges are all appointed by the President as head of the national executive and thus have to salaam to him. A future President Zuma, who is facing serious charges and will have a vested interest in who these judges are, should recuse himself from having to make such appointments.
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Come on Clara I believe you should qoute from the same constitution that the president has a prerogative to appoint a Chief justice. I will paste the relevant qoute from Pierre’s post.
…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…
The problem with you dear is that you do not even trust the justice system in this country. You assume because the president exercises the sole right of appointing judges albeit through consultation, those judges are not independent and succumb to him. Needless to say that you bring little or no proof of this. please bring proof of your assertions. There is indeed no provision of one to absent himself from making such decisions. Remember there is one president. Not a group of presidents were your silly suggestion would be accomodated. Like in the Langa Hlophe fiasco with the JSC.
Even if Zuma would appoint these judges he has no buddies amongst them. So they would not do him any favours.
Unlike you Clara I as a true south african democrat ( which I hope you too are) believe in the supreme law of the land our constitution and the courts that up guard it. I also believe in the countrie’s courts to apply the law impartialy and without fear , favor or prejudice.
PS: and that according to Msimang J should be applied no less or no worse even to Zuma.
Prof all this comment about appointing of judges it was never raised when Tata Madiba was a president, never raised when TM take over presidents and now you are raising it as JZ is about to take over. What agenda do you have? Is the same agenda of the scorpion or same agenda of the constitutional court judges or is the agenda of those people who do not want see Msholozi occupying the highest office in the country. Why I do not agree with Msholozi in most issues but I see there is an agenda of destroying him personally.
The constitutionally court judges they have run to the media first with their complaint instead of following proper procedures approach JSC. But I also doubt the independence of the JSC as the judge president himself is the member of jSC. The same person who fired Msholozi in 2005 is the same person who has appointed the current JSC members, the judge presidents, the deputy judge presidents and the minister of justice and the NDPP. But we do not hear noise about the independence of the judges and all this institution.
The issue of the arms deal is well orchestrated strategy to destroy Msholozi, how many people when involve in serious crime left off the hook by the scorpion in prosecution them.
The same constitution you use to protect the constitutional judges, jsc, ndpp, and other forces which is against ubaba Msholozi, must protect the right of Msholozi against any form discrimination.
We will support Msholozi in applying for permanent stay of his cases as this is clear is not just case but a strategy to destroy him political and stand his way of occupying the highest office in the land. The ANCYL Vos Mazibuko branch support the statement made by president of the youth league. If need be we will take up arms and kill for Zuma. We will not allow a situation where leaders of the ANC will be destroy while watching.
“A future President Zuma, who is facing serious charges and will have a vested interest in who these judges are, should recuse himself from having to make such appointments.”
How on earth can the system not cope with taking it from his hands? An awaiting trial accused with cases before the Con Court cannot appoint judges to its Bench.
Oh, why don’t the ANC just announce that Motlanthe will be our next President and then this shit can all stop?
Pierre re: lindelani
LMAO!
Now, Lindelani, if the SAHRC are telling Vavi and Malema to withdraw their statements or else, do you really think that it will do your aspirant corporate career much good to be Subpoenaed before them too for your comments here? LOL! You really are hysterical!
Investec? Ha! Is it possible that you were able to lose even more credibility?
“Prof all this comment about appointing of judges it was never raised when Tata Madiba was a president, never raised when TM take over presidents and now you are raising it as JZ is about to take over. ”
Hmmmm???? Now why would you not have raised any of this as an issue before???? Hmmmm????? It’s a difficult one!
Mpho.
Firstly, I must stress than SAHRC is badly runned in this country. It looks like they lost their mandate God knows who’s directing the organisation.
Even if I can suffer grave human rights abuses, SAHRC will be the last organisation that I can consider reporting to.
Grave human rights violations are happening on daily basis in this country (you can think of any, in any event you dont have to think of any you witness them everyday as well), they don’t attend to those they just choseto stress on senseless issues. SAHRC had very good objective at the time it was founded. All its objectives have been lost and it is running like a chicken without its head.
SAHRC is something dead DOG WITHOUT TEETH, it does not serve its objectives. PLEASE I BEG YOU DONT EVEN MENTION THAT THING CALLED SAHRC. It’s one of the senseless organisations waisting our limited resources in the country- HUGE REVIEW IS NEEDED ON SAHRC
Lindelani, a huge review was done on the SAHRC and all other Chapter 9 institutions by the National Assembly Committee headed by Prof Kader Asmal. I was involved in that review. The SAHRC came out of it looking like one of the best run organisations given their limited resources.