Why is Ramaphosa dragging his feet with Con Court appointments?

The South African Constitution turned 25 last week while the Constitutional Court, which heard its first case in February 1995, is a year older. But 2021 was arguably the court’s most turbulent year, with a marked increase in populist attacks on it. Which makes the inexplicable failure to appoint a new Chief Justice, as well as to fill four other vacancies on the court, inexcusable and irresponsible.

Perhaps the most remarkable thing about South Africa’s Constitutional Court is that its extensive powers, which — in recent years — the court has not been shy to use, remain intact more than 25 years after it was created. The court also remains independent from the political branches of government, and often hands down judgments that have a direct impact on political life in South Africa. No wonder, then, that the court has come under sustained attack this year from some populist politicians and the odd matricidal fraudster, facts be damned.

But the Constitutional Court is also facing criticism from other quarters, including from academics and legal commentators, who (among other things) worry about the quality of some of the court’s judgments and the long delays in finalising some of these judgments. The latter (mostly reasoned and fact-based) criticism is generally good for the court. As there is no appeal possible from the Constitutional Court, reasoned criticism of its judgments serve an important accountability function. (Which is why the tendency of former Chief Justice Mogoeng Mogoeng to brand those who criticised him or any of his judgments as his “enemies” is so unfortunate.)

But the quality of the Constitutional Court’s judgments do matter for other reasons too, most notably because the legitimacy and authority of the court partly depend on it. Because Constitutional Court judgments sometimes have momentous political consequences, and because such judgments are written by human beings and not automatons, it is inevitable that some people who either find the outcome of a particular judgment politically or personally inconvenient (going to jail being the ultimate inconvenience), or who believe that they can benefit politically from attacking the court, would accuse the justices of making purely political decisions.

While these attacks often have very little to do with the content of a judgment or the quality of the legal reasoning contained in it (many of the court’s more hysterical critics do not seem to read the judgments they complain about), I believe these kinds of cynical and self-serving attacks will have less of a sting and are far less likely to cause long term damage to the legitimacy and authority of the court, if a particular judgment is well-reasoned, in line with the court’s binding precedent, and is scrupulously fair.

That said, any court with the kind of power and influence enjoyed by South Africa’s Constitutional Court will always be vulnerable to attacks from populist politicians and other fellow travellers. As the example of Hungary’s Constitutional Court demonstrates, there are many ways for such politicians to clip the wings of a bothersome court. Until 2010, Hungary’s Constitutional Court was often held up, alongside South Africa’s Constitutional Court, as an example of what a modern, progressive, constitutional court should look like.

But in 2010, after the Hungarian court invalidated a law that imposed a 98% tax on severance bonuses paid out to civil servants, the new government (enjoying a two-thirds majority in parliament) introduced amendments to the constitution which removed the Constitutional Court’s jurisdiction to review laws pertaining — among other things — to budgetary and tax policy. The next year, a new constitution was adopted which increased the number of judges on the court from 11 to 15, allowing the new government to pack the court with its allies.

In 2013, the Hungarian Parliament adopted further far-reaching amendments to the constitution, re-enacting a number of controversial provisions that had been annulled by the Constitutional Court. The most far-reaching provision annulled all decisions of the Hungarian Constitutional Court made before the adoption of the 2011 constitution. The most alarming change concerning the Constitutional Court annuls all court decisions prior to when the Fundamental Law entered into force. The amendment further created a National Judicial Office (NJO), headed by a political appointee, and gave this office the absolute power to move cases from the court to which a case is assigned by law to a different court anywhere in the country “that is less crowded”.

While the Hungarian court remains in place, changes to its review powers have made it far more difficult than before for the court to enforce the protection of fundamental rights, notably by “constitutionalising” infringements of some fundamental rights. In one interpretation, this was made possible by a populist political backlash against the previous socialist government, which swept the far-right into power in an electoral landslide. (Although the new governing party received only 52% of the votes, it won more than two-thirds of the parliamentary seats because of the absence of proportional representation in the electoral system.)

Of course, South Africa is not Hungary, and given South Africa’s proportional representation electoral system, it is unlikely that any party in the foreseeable future would be able to muster a two-thirds majority in Parliament to effect fundamental changes to the Constitution with a view to clipping the wings of the Constitutional Court. Add to this, the fact that a stellar track record, built up over the past 26 years, has so far helped to protect the court’s reputation from its less than stellar performance over the past few years, and one might conclude that all is well.

So much for the good news.

Courts are not only imperilled by active steps to undermine their authority. Sometimes, benign neglect can be devastating too. The bad news is that the Constitutional Court faces serious challenges which have had an impact on the management of the court and on the quality of some of its judgments. There are minor issues, such as its website not always being kept up to date. As I write this, the website still lists Mogoeng Mogoeng as Chief Justice, and Chris Jaftha and Sisi Khampepe as justices, despite them having retired earlier this year.

More seriously, on at least two occasions this year the handing down of judgments were delayed by several hours and in one case with a few days, with very little explanation given. One of these was the Qwelane hate speech judgment which contained several obvious mistakes that had to be corrected later. (For example, the wording of the proposed amended hate speech provision contained in the order differed from the wording contained in the text of the judgment.)

There have also been cases where it has taken an inexplicably long time between hearing oral argument in a case and handing down judgment. The court has not yet handed down judgment in the Jewish Board of Deputies’s hate speech case heard in August 2019, more than two years ago. Judgments in two cases heard in February this year are also still outstanding, more than 10 months after the oral arguments were heard.

Questions are also being asked about the wisdom of some of the courts’ decisions. The order handed down by the court in which it refused to postpone the local government election was, at best, vague and difficult to interpret, leading to much confusion because the order had to be issued (through no fault of the court) before the judgment containing the reasons for the order were ready. And the less said about the bizarre decision of the court (or at least two justices of the court) to hear Jacob Zuma’s far-fetched application to rescind the court’s previous decision finding him guilty of contempt of court and sending him to prison, the better.

It is not difficult to find reasons for this state of affairs, and not all (or even most) of the blame can be laid at the feet of the current justices of the court. Most notably, those with the power to do so seemed not to have bothered to fill vacancies on the court in a timeous manner. There are currently only six permanent justices on the court, instead of the 11 provided for by the Constitution, which must make it rather difficult for the court to do its job properly. The court has also been without a Chief Justice since Mogoeng retired in October (although Mogoeng has been absent since May when he went on long leave). The Deputy Chief Justice has been occupied with the State Capture Commission and has also been largely absent from the court. In short, the court has been left understaffed and leaderless.

All this could have been prevented. President Cyril Ramaphosa should have appointed a new Chief Justice well ahead of Mogoeng’s retirement, and I find his failure to do so inconceivable and irresponsible, as is the lack of urgency displayed by him as well as by the Judicial Service Commission (JSC) in finalising the appointment. While the JSC in early October provided the president with the names of five candidates (from which he needs to select two for appointment to the Constitutional Court), the president has not made the appointments. Again, I find this inexplicable, and suspect the president is probably in breach of section 237 of the Constitution requiring that “all constitutional obligations must be performed diligently and without delay”.

The fact that neither the former nor any of the acting Chief Justices ensured that the JSC advertises and interviews candidates for the two positions on the court that became vacant in October well in advance of the retirement of justices Jaftha and Khampepe, is also not defensible.

If Jacob Zuma had still been president, some pundits would almost certainly have speculated that his failure to fill vacancies on the court was a deliberate ploy to weaken the court. Maybe it is time to ask the same question of Ramaphosa.

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