Zuma’s bid to set aside Raymond Zondo’s appointment as Chief Justice is a legal nonsense

What kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?

Earlier this week Jacob Zuma and the JG Zuma Foundation announced that they are proceeding with their court challenge to review and set aside the appointment of Justice Raymond Zondo as the Chief Justice of South Africa.

The challenge is a legal nonsense and an abuse of the court process, and thus yet another attempt by Zuma to delegitimise the State Capture Report as well as the Constitutional Court to avoid accountability for his dubious actions.

Who on earth, I wonder, is funding this folly?

And what kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?

In its media release, the JG Zuma Foundation suggests it will challenge the appointment on two distinct grounds.

It claims, first, that the appointment was irrational because President Cyril Ramaphosa ignored the advice of the Judicial Service Commission (JSC) whose preferred candidate for appointment was now Deputy Chief Justice Mandisa Maya.

It claims that Justice Zondo “scored the lowest number of votes from the JSC following the week-long interviews”, and that the JSC “effectively declared [Justice Zondo] as unsuitable for the position”.

There are fundamental problems with this claim.

To start, the claim that the JSC effectively declared Justice Zondo unsuitable for the position is false. We know this because the lead counsel in all of Zuma’s recent failed court applications, Dali Mpofu, speaking in his capacity as spokesperson of the JSC, made clear at the time that the JSC believed “all four candidates were of a high quality”.

Additionally, section 174(3) of the Constitution makes clear that the President has the final say in appointing the Chief Justice “after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly”.

As the President is not required to appoint the Chief Justice “in consultation with” the JSC, but merely “after consulting” with the JSC, he is entitled to ignore the advice of the JSC.

Again, as spokesperson of the JSC, Mpofu confirmed this self-evident fact when he stressed that Ramaphosa was not bound by the recommendation emanating from the JSC interviews as it remained his sole, presidential prerogative in terms of the Constitution to appoint the head of the judiciary.

When asked whether there would be any consequence should Ramaphosa choose to select one of the other candidates for appointment, he said:

There are no consequences. The Constitution is very clear that the Judicial Service Commission is making a recommendation, or to put it in the words of the Constitution, that the President, after consulting the JSC, makes the appointment. What is notable is that we are not even the only body that he consults.

It is true that had the JSC found Justice Zondo was not appointable at all (something it did not do), the President’s decision might have been vulnerable on the ground of irrationality if he had not taken this into account. But even then, the decision would not be irrational merely because he decided not to follow the advice of the JSC.

The Zuma Foundation also argues that in choosing to appoint Justice Zondo (instead of Justice Maya) as Chief Justice, President Ramaphosa acted in breach of the equality clause and section 174(2) of the Constitution “both of which prohibit gender discrimination”. Again, there are two fatal problems with this argument.

The claim that section 174(2) of the Constitution prohibits gender discrimination is self-evidently false. What the section actually says is that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.

The section does not contain a prohibition of any kind, as the foundation claims. Instead, it imposes a duty on the body or person making the appointment, to consider – as one of the relevant factors – the need for race and gender representivity in the judiciary when making an appointment.

Moreover, as the Constitutional Court first suggested in 1997 in President of the Republic of South Africa and Another v Hugo, given the nature of the power bestowed on the President when making appointments under the Constitution, or the manner in which it is required to be exercised,  it may very well be that the provisions of “the Bill of Rights provide no ground for an effective review of a presidential exercise of such a power”.

This is so because the President, acting as head of the executive, exercises a political discretion that a court would normally not be permitted to interfere with, as this would breach the separation of powers. (This is something I already pointed out back in 2009 after Helen Zille appointed an all-male cabinet and Cosatu had the ridiculous idea of challenging this in the Equality Court.)

For example, it would be beyond absurd to argue that the President unfairly discriminated on the grounds of sex or gender in breach of section 9(3) of the Constitution because he appointed Gwede Mantashe instead of Lindiwe Sisulu as Minister of Mineral Resources and Energy. (To be clear, unlike either of these ministers, Justices Zondo and Maya were both eminently qualified for the position for which they were being considered.)

This is even more so in cases where the decision made by the President only affects one person. In the context of the pardoning of prisoners, the Constitutional Court thus held in Hugo that in cases where the President “pardons or reprieves a single prisoner it is difficult… to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power”. The same will be true when the President is called upon to appoint somebody to a single position.

The real reason for the court challenge is revealed towards the end of the foundation’s media statement when it claims the case will require Ramaphosa to “dispel the allegations or suspicions that Zondo was being unduly rewarded for absolving Ramaphosa for his role in the Bosasa/CR17 scandal, among other things, in the so-called State Capture Commission Report”.

This claim is false, as the President cannot be legally required to dispel Zuma’s allegations or suspicions unless he provides the court with evidence that might give rise to a reasonable apprehension of bias on the part of Ramaphosa.

As there is no such evidence, this is a self-serving political (and not a legal) claim, aimed at promoting Zuma’s campaign to discredit the State Capture Commission, his successor as President, and the Constitutional Court which sent him to jail for his outrageous contempt of that court.

Very much like Donald Trump, who never stops making the false claim that he won the 2020 election against Joe Biden, Zuma cannot get over the fact that both the State Capture Commission and the Constitutional Court had the cheek to try to hold him accountable for his wrongful behaviour.

As he is going to lose this case and will almost certainly be ordered to pay the costs of his opponents, one wonders where the money for this hopeless litigation is coming from.

The cost is surely not going to be covered by the sale of Zuma’s socks.

I suspect much might be revealed about our politics if we knew who the benefactors bankrolling this folly are and what benefits they expect from doing so.

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