Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
FREEDOM UNDER LAW
THE APPOINTMENT OF THE CHIEF JUSTICE
Jeremy Gauntlett SC
1114 Huguenot Chambers, 40 Queen Victoria Street, Cape Town
Max du Plessis
Advocates Bay Group, 12th Floor, 6 Durban Club Place, Durban
Advocates Group 21, 21st Floor, The Marine, 22 Gardiner Street, Durban
On behalf of:
Freedom Under Law
1. Freedom Under Law has requested an urgent opinion on the nature of the President’s powers in terms of s 174(3) of the Constitution, and the procedural limits on the exercise of that power.
2. Flowing from this analysis, we have also been asked to consider whether this section should be amended in light of rule of law considerations.
3. After beginning work on this opinion, the President nominated Justice Mogoeng Mogoeng as his candidate for Chief Justice. The process that he has adopted thus far, and that adopted by the Judicial Service Commission (“JSC“), provide a fruitful basis for consideration of the relevant procedures. They also provide a helpful launching pad from which to consider the normative issue we have been asked to deal with – how ought the Chief Justice’s appointment, from the perspective of strengthening the rule of law, to be structured under our Constitution.
4. We begin by focusing on what procedure is required by the section in its current form. In so doing we also consider broader comparative and rule of law considerations in relation to the exercise of this power. From this starting point we move on to consider how an appointment process for the Chief Justice should be structured.
Analysis of the required procedure
5. Section 174(3) of the Constitution provides as follows:
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, appoints the President and Deputy President of the Supreme Court of Appeal.
6. The key question to be asked is what “after consulting” means and requires.
7. The difficulty is that the Constitution does not define “consulting“; nor does it indicate what process of consultation should be employed (in juxtaposition to section 174(4), which sets out a detailed process for nominations to be given to the President by the JSC, in relation to other Constitutional Court judges). Thus, the section is open-textured; and there is invariably more than one type or form of consultation that may be appropriate.
8. The issue is to determine what form of consultation would best fit with, or give effect to, the Constitution and its value system.
The meaning of meaningful consultation
9. The starting point must be the specific terms of the section. While broad, it nevertheless sets two important parameters. First, there must be consultation; and second, the consultation must occur prior to the appointment.
10. Taking each parameter in turn we see that, first by stating that the appointment must only occur “after” consultation the section makes clear that prior consultation is required. Therefore, whatever the form of the consultation it must have occurred before the appointment is made – ex post facto consultation, however rigorous, will not be acceptable.
11. Second, consultation is required. As mentioned the term is not defined, but the interim Constitution is a strong indicator that at least it must entail the good faith exchange of views, which must be taken seriously.
12. In relation to the current vacancy of the chief justiceship, the President has specified only one nominee, designating him “the preferred candidate”, and then invited comment thereon.
13. Section 174(3) of the Constitution specifically requires the President to appoint the Chief Justice only “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly…“.
14. These requirements demonstrate the Constitution’s expectation of consultation in furtherance of a participatory and representative democracy – an expectation now confirmed as principle by the Constitutional Court in a number of cases.
15. By ensuring a process of consultation with the JSC and the political parties in the National Assembly a necessary safeguard for democracy and the independence of the judiciary is fulfilled. This is also in line with the founding values entrenched in s 1(d) of the Constitution of “accountability, responsiveness and openness“.
16. In Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others the Constitutional Court stated the requirements for consultation as being “the free expression of views and the willingness to take those views into account“.
17. In Doctors for Life, Sachs J (in a concurring judgment) emphasised the important role of consultation in our democracy, stating that:
Public involvement in our country has ancient origins and continues to be a strongly creative characteristic of our democracy. We have developed a rich culture of imbizo, lekgotla, bosberaad, and indaba. Hardly a day goes by without the holding of consultation and public participation involving all stakeholders, role-players and interested parties, whether in the public sector or the private sphere. The principle of consultation and involvement has become a distinctive part of our national ethos.It is this ethos that informs a well-defined normative constitutional structure….
18. There has been a considerable amount of case law, both pre- and post-1994 on what the duty to consult entails.
19. In the case of Maqoma v Sebe NO and Another 1987 (1) SA 483 (Ck) the meaning of “consultation” was considered in the context of s 2 of the Administrative Authorities Act 37 of 1984 (Ck), which, as in the present case, provided no definition of consultation. The court held:
[I]t seems that ”consultation” in its normal sense, without reference to the context in which it is used, denotes a deliberate getting together of more than one person or party . . . in a situation of conferring with each other where minds are applied to weigh and consider together the pros and cons of a matter by discussion or debate.
20. The court provided an exhaustive consideration of what consultation requires, considering dictionary definitions, and South African and English case law, coming to the following important conclusion:
However convinced the empowered authority may be at the outset, of the wisdom or advisability of the intended course of action, he is obliged to constrain his enthusiasm and to extend a genuine invitation to those to be consulted and to inform them adequately of his intention and to keep an open and receptive mind to the extent that he is able to appreciate and understand views expressed by them; to assess the views so expressed and the validity of objections to the proposals and to generally conduct meaningful and free discussion and debate regarding the merits or demerits of the relevant issues. So receptive must his mind be that, if sound arguments are raised or other relevant matters should emerge during consultation, he would be receptive to suggestions to amend or vary the intended course to the extent that at least a possibility exists for those with whom he consults to persuade him to alter his intentions if not to abandon them.
In stating the aforesaid, I am fully mindful of the fact that despite the imperative requirements of consultation in the Act, he is not obliged to give effect to the wishes of those whom he has to consult. He is the sole decision-maker regarding the actions eventually to be taken but, nevertheless, he is enjoined by the enactment not to act in terms thereof until and unless he has given full, proper and bona fide consideration to the views expressed during consultations conducted as I have attempted to set out hereinbefore.
21. The position is strongly put by the Court of Appeals of England and Wales in Sinfield and Others v London Transport Executive  2 All ER 264 (CA), where Sachs LJ described the importance of statutorily enjoined consultation in the following terms (which description has found approval in our Courts):
It is apposite first to mention that counsel for the executive emphasised not once but several times that whatever be the true construction of s 23(3) and whatever order this Court might make, it was in the end the executive and no one else who would make the decision. If that was intended to intimate that the executive merely looked on consultations as an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and I sometimes even its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals before the mind of the executive becomes unduly fixed.
22. In Robertson & Another v City of Cape Town; Truman-Baker v City of Cape Town, the High Court approved of the following summary of the duty as expressed in Maqoma: “The essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice . . .”.
23. Mojapelo DJP in S v Smith also considered the relevant British and South African case law, and usefully summarised some of the key principles (quoted in full for ease of reference):
From the Maqoma case (supra) the principles that come out are:
1. Consultation entails a process in which more than one person confers in the sense of applying their minds together to consider the pros and cons of a matter.
2. It may be formal or informal.
3. It may further be oral or in writing.
4. The essence of consultation is a communication of ideas on a reciprocal basis.
5. The procedure is in the discretion of the person/party who has to consult.
6. The procedure must, however, allow reasonable opportunity to both sides (the consulting and the consulted parties) to communicate effectively and achieve the purpose for which prior consultation is prescribed.
There are two main principles that are distillable from the quotation from the case of Sinfield and Others (supra), and these are:
1. Consultation must be seen as more than mere opportunity that the executive gives to the consulted to make ineffective representations.
2. The right to be consulted is valuable and should be implemented:
(a) by giving those who have the right to be consulted an opportunity to be heard; and
(b) must take place at the formative stage of proposals before the mind of the executive becomes unduly fixed.
The further complementary principles that emerge from the decision in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [ 1 All ER 280 (QB)] are that:
1. The mere sending of a letter constitutes but ‘an attempt to consult’ and does not suffice.
2. The case also emphasised the need to communicate for consultation to take place: the essence of consultation, so the court held, is communication of an invitation, communicated with a receptive mind, to give advice. The invitation must be received. However, once it is received, even if no advice or response is proffered, it does not matter and will thus not affect the question whether consultation has taken place or not. As the court emphasised, ‘without communication and the consequent opportunity of responding, there can be no consultation’.
Finally, from a reading of the decision in R v Secretary of State for Social Services [ 1 WLR 1 C (QB)], the following principles emerge:
1. The case once more emphasised that the ‘essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice’. This clearly demonstrated that it is an essential consideration in any consultation that the invitation to advice from the consulting party must in effect reach the consulted and that the advice, if any, from the consulted must similarly reach the consulting party. In other words, communication must in fact be effective and genuine for consultation to take place. Where it is not, there is no consultation.
2. The decision also emphasised the critical role to be played by the supply of sufficient information and sufficient time. To achieve consultation:
(a) Sufficient information must be supplied by the consulting to the consulted party to enable the latter to tender helpful advice.
(b) Sufficient time must be given to the consulted party to enable it/him/her to give the advice and sufficient time must be available to the consulting party to consider the advice tendered.
While the R v Secretary of State for Social Services (supra) decision emphasised the need for the consulting party to give the consulted sufficient time to enable the latter to give the advice, the earlier decision of Rollo (supra) put an emphasis on the need for the consulted to be given sufficient information to enable the consulted to give the advice. The consulted thus needs to be given sufficient information and time to enable the giving of the advice.
It is clear from the aforegoing that consultation cannot be a mere formal process. It has to be a genuine and effective engagement of minds between the consulting and the consulted parties. A mere formalistic attempt to consult does not constitute consultation.
24. Drawing from this case, and the others considered, the following necessary aspects of the duty to consult may be distilled:
24.1 Consultation entails a process in which more than one person confers.
24.2 There must be a consideration of the pros and cons of a matter.
24.3 It may be formal or informal.
24.4 It may further be oral or in writing.
24.5 The essence of consultation is a communication of ideas on a reciprocal basis.
24.6 The procedure must allow reasonable opportunity to both sides (the consulting and the consulted parties) to communicate effectively and achieve the purpose for which prior consultation is prescribed.
24.7 Where, as here, a “preference” is expressed, effective consultative must entail a disclosure of the basis of the preference. If, as the expression indicates, the “preference” entails a consideration of others, that should be disclosed, to enable the “preference” to be understood, and to form the subject of the consultation. (In the present case, it has been reported that the Democratic Governance and Rights Unit of the University of Cape Town was required to provide an independent assessment of five named serving judges for the purpose; if that served before the President in determining his “preference”, it should be disclosed to those whom the President must consult).
24.8 Consultation must be seen as more than a mere opportunity that the executive gives to the consulted to make ineffective representations.
24.9 An opportunity must be given to those who have the right to be consulted an opportunity to be heard.
24.10 It should take place at the formative stage of proposals before the mind of the executive becomes unduly fixed.
24.11 There must be a genuine invitation to give advice and a genuine receipt of that advice.
24.12 Communication must in fact be effective and genuine for consultation to take place. Where it is not, there is no consultation.
24.13 Sufficient information must be supplied by the consulting to the consulted party to enable the latter to tender helpful advice.
24.14 Sufficient time must be given to the consulted party to enable it/him/her to give the advice and sufficient time must be available to the consulting party to consider the advice tendered.
24.15 The consulted needs to be given sufficient information and time to enable the giving of the advice.
24.16 The party inviting views must consider those views in good faith.
25. It is clear from the above that when the Constitution requires consultation this is no mere formality to be mechanically complied with – rather, it forms an essential component of the democratic safeguards which underpin our democracy.
26. Whilst the full ventilation of the views of the JSC and the leaders of the political parties would in all instances be imperative, its importance is certainly heightened when dealing with the highest judicial officer and the head of the court administration of our country.
27. Given the importance of consultation in a participatory democracy, it cannot merely be overlooked for reasons of convenience or time saving – nor should the process be truncated, or in any way weakened. It is a constitutional imperative and a necessary requirement for any purported appointment by the President that there be meaningful consultation in accordance at the very least with the principles distilled above.
28. The proper interpretation of s 174(3) requires that it be read to provide the greatest possible constitutional protection for judicial independence, and that it be read in context. As stated by Ngcobo J (as he then was), “[a] provision in a Constitution must be construed purposively and in the light of the constitutional context in which it occurs“.
29. The Constitutional Court has given its approval to an interpretive approach “which, whilst paying due regard to the language that has been used, is ‘generous’ and ‘purposive’ and gives expression to the underlying values of the Constitution“. The Court has further stated that a purposive interpretation must be conducted in a manner that will allow the spheres of government to exercise their powers “fully and effectively“.
30. Hence, while the section does not set out the specifics of how such consultation should occur, given that the appointment is for the head of one of the three branches of government, the Constitution must be interpreted in favour of the most rigorous, independent, and broadly consultative process possible.
31. Indeed it is for this reason that consultation is required with the heads of all political parties in Parliament, not just the majority, or even the majority and the official opposition – but all parties. The reason is clear. The Chief Justice is South Africa’s Chief Justice, not merely that of the President or Government of the day. For instance should Justice Mogoeng be appointed he stands to hold office past two further national elections before he would retire in 2021. The need for consultation to be broad, rigorous, and meaningful, is accordingly an obvious constitutional requirement which is underpinned by our country’s commitment to multi-party democracy (a commitment we discuss in detail further below).
32. Lastly, we point out that the interim Constitution specifically detailed the meanings of “in consultation with” and “after consultation“. Sections 233(3) and (4) of the interim Constitution provided:
(3) Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision-making procedures.
(4) Where in this Constitution any functionary is required to take a decision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary.
33. While there are no similar provisions in the final Constitution, when drafting the final Constitution a similar understanding of the two terms was likely to have been intended. As in the interim Constitution, the final constitution provides for certain situations where appointments are made “in consultation” and others “after consulting“.
34. The definition in the interim Constitution provides a further interpretive aid. It indicates that:
34.1 the decision must be taken in good faith;
34.2 there must be a consultative process, in which the views of the body being consulted are sought, given, and taken seriously; and
34.3 the decision must only be taken after the consultation.
35. We turn next to consider who the participants are to this consultative process, and to assess what meaningful consultation would entail in respect of such participants.
The consultative obligation and its impact on the JSC and political parties
36. Under s 174(3) there are two categories of consultee: the JSC, and the leaders of political parties in Parliament.
37. In relation to the JSC, the nature of the institution is indicative of the type of engagement that would be required.
38. The only possible way that the JSC could meaningfully contribute in consultation with the President is if it has an opportunity to interview all of the possible individuals being considered for the post. That is because it is only by interviews that it will be in a position for its members to reach a conclusion on the candidate’s fitness for office, and to the extent that there is more than one candidate, then to consider who is best for the position as between those candidates.
39. In the present situation, the JSC seems to have already, partially, accepted this prerequisite – calling for an interview with Judge Mogoeng on 3 September 2011, prior to giving its recommendation to the President.
40. The more difficult question is whether the JSC in providing its advice, as it is constitutionally mandated to do, needs to generally call for nominations, or at least call for them from the political parties who are an integral part of any such consultation.
41. This past Saturday, 20 August, the JSC by majority vote held that it is not permissible or desirable to do so.
42. We have misgivings about the JSC’s approach, not least of all because it suggests that the JSC has already accepted – even if only at a prima facie level – the President’s nominee, and hence closed its mind (and the process) to alternatives.
43. We are affirmed in our view by the article of Mojapelo DJP (written in his personal capacity), and months before any suggestion was made about whom the President’s preferred candidate would be. In that article Judge Mojapelo strongly advocated the standard JSC process for judicial appointment, which includes an open call for nominations.
44. Judge Mojapelo complained that “[i]n the last appointment of the chief justice, the JSC did not announce the vacancy and invite nominations. … The public did not nominate candidates. They were not afforded an opportunity to do so. The decision-making process of the JSC was robbed of an important element of legitimacy, that is, public participation at its initial stages. Consequently, the process was, I submit, critically impoverished.“
45. All that being said and noted, one cannot escape the fact that s 174(3) (as opposed to s 174(4)) does not specify a nominations procedure in relation to the appointment of the CJ and DCJ. It is therefore possible that a court will find that there is no constitutional requirement for inviting nominations from other parties. However, should the JSC decide to interview only the President’s nominee it would need to be exceptionally vigilant, and rigorous in its methods, in its screening of the sole candidate in order to be able to advise the President properly.
46. But as we say below, while the JSC may be under no duty to call generally for nominations, there must be a right for political parties consulted to suggest alternative nominees. We consider this places a concomitant obligation on the JSC to interview such nominees (or at least consider them, before creating an interview shortlist). In our view the right of political parties to do so would be a concomitant feature of consultation in a multi-party democracy, it being recalled that consultation includes the opportunity for the consulted to impart its views, and for those views to be taken seriously.
47. In relation to the political parties, then, we see a good argument that it would at least be necessary to allow political parties (through their leaders, who are consulted) to provide any critique of the candidate(s) suggested by the President, but also to be able to offer nominees of their own.
48. Such an opportunity to offer alternatives would be a component of good faith consultation. That consultation must include the possibility that the President could be persuaded that, however acceptable his preferred candidate is – or however much he or she meets the minimum requirement – there may be someone better suited to the job, and whom the President had not considered.
49. The fact that s 174(3) requires political parties to be consulted assumes that such parties could (and are expected to) provide a useful sounding board in this regard. If the additional candidates proposed by political parties were then interviewed, or put into a pool to be shortlisted by the JSC for interview, the JSC would undoubtedly improve its prospects of meaningfully advising the President fully on who should be considered for appointment to head the judiciary. In this way, the JSC would not impoverish itself by advising the President only on the suitability of any nominee(s) he puts forward, but would instead enhance the consultative and constitutional process by allowing for comparisons with and between other possible fit and proper persons, nominated by political parties.
50. Obviously merely because one is a fit and proper person to be Chief Justice, does not discount the need for relevant comparison with other fit and proper persons.
51. While the President undoubtedly has a discretion, which is broad, in our view good faith consultation requires that he should at least be advised objectively who the best candidate for the position of Chief Justice is – so that if he instead chooses to select someone else, he has done so properly advised of the full field.
52. In coming to that conclusion we draw support from the fundamental principles that underlie our constitutional democracy and relevant international law principles. It is to those supporting principles that we now turn.
The rule of law, judicial independence and separation of powers, and multi-party democracy
53. Section 1 of the Constitution recognises the rule of law as a founding value. At the core of the rule of law are the requirements of an independent judiciary and separation of powers. As stated by Ackermann J in De Lange v Smuts NO, “judicial independence is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law“.
54. The Constitutional Court stressed the importance of judicial separation and independence in South African Association of Personal Injury Lawyers v Heath:
The separation of the Judiciary from the other branches of government is an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution. … Under our Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this duty is that the courts be and be seen to be independent.
The separation required by the Constitution between the Legislature and Executive, on the one hand, and the courts, on the other, must be upheld, otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution, will be undermined. The Constitution recognises this and imposes a positive obligation on the State to ensure that this is done. It provides that courts are independent and subject only to the Constitution and the law which they must apply impartially without fear, favour or prejudice. No organ of State or other person may interfere with the functioning of the courts and all organs of State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.
55. Section 165(2) of the Constitution provides that “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice“. This explicit statement of judicial independence is buttressed by ss 165(3) and (4) of the Constitution. Section 165(3) proscribes any interference with the judiciary: “[n]o person or organ of State may interfere with the functioning of the courts“. Section 165(4) imposes stringent obligations on all Organs of State: “[o]rgans of State, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts“.
56. The Constitution insulates judges of the Constitutional Court from undue political influence. This is so as such judges are constitutionally mandated to make final decisions on matters of the greatest political and constitutional import.
57. One of the ways in which the Constitution seeks to strengthen and protect this independence is by stipulating, in detail, the processes by which Constitutional Court judges must be nominated and appointed. This process is open, transparent and inclusive of all interested parties (although as we noted previously the Constitution provides greater specificity regarding the procedures for the appointment of Constitutional Court judges than for the appointment of the CJ and DCJ).
58. In the absence of an open, transparent, and inclusive process, the President would have practically untrammelled powers to appoint judges to the highest court of the land. It would undermine the very basis of the constitutionally enshrined doctrine of separation of powers; and it would make a mockery of the founding value of the rule of law.
59. Article 10 of the United Nations Basic Principles on the Independence of the Judiciary provides as follows:
Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
60. In terms of Principle A, article 4 of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa:
g) All judicial bodies shall be independent from the executive branch.
h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.
i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.
61. Section 5 of the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors prepared by the International Commission of Jurists (2007) provides the following overview:
In order to guarantee the independence and impartiality of the judiciary, international law requires States to appoint judges through strict selection criteria and in a transparent manner. Unless judges are appointed and promoted on the basis of their legal skills, the judiciary runs the risk of not complying with its core function: imparting justice independently and impartially. Therefore, clear selection criteria based on merit are an essential guarantee of independence. There is, however, no agreement in international law as to the method of appointment. In this field, a certain degree of discretion is left to individual States, provided that the selection be always based on the candidates’ professional qualifications and personal integrity. Thus, there are two crucial issues related to the appointment of judges. The first is related to the criteria applied to the appointment, where international law stipulates clear guidelines. The second issue consists of the body, and the procedure within that body, in charge of appointing members of the judiciary. On this topic, international standards do not explicitly determine which body within a State has the power to appoint judges or the exact procedure to be followed. However, it is important to bear in mind that any appointment procedure must guarantee judicial independence, both institutional and individual, and impartiality, both objective and subjective. This requirement derives from the principle of separation of powers and of checks and balances, which constitute indispensable safeguards to this end.
62. The Principles go on to note that, “In general terms, it is preferable for judges to be elected by their peers or by a body independent from the executive and the legislature.”
63. The Principles approve of the finding by the Inter-American Court of Human Rights that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges and, to this end, the different political systems have conceived strict procedures for both their appointment and removal” and that “the independence of any judge presumes that there is an appropriate appointment process, a fixed term in the position and a guarantee against external pressures.”
64. What can be drawn from these international law principles is that the way in which judges are appointed has an important impact on their actual, and perceived, independence. Hence, a system that insulates appointments from the executive and the legislature is preferable.
65. Our Constitution has recognised this by the creation of the Judicial Service Commission, which is the body constitutionally entrusted with the responsibility for selecting persons to be appointed as judges, including Constitutional Court judges. Even, in relation to the appointment of the Chief Justice and Deputy Chief Justice, where it may be argued that the role of the JSC is more limited, it still must be consulted (with all that that term connotes) prior to any appointment, and must encourage consultation in the full sense as regards the process.
66. Thus when considering what the process under s 174(3) should entail, the rule of law and independence of the judiciary speak in favour of a procedure that maximises (or at least which does not deliberately trivialise) meaningful consultation in accordance at the very least with the principles distilled above at paragraph 24.
67. A further reason in favour of a constitutionally rich procedure of consultation is also entrenched in section 1 of the Constitution: the principle of multi-party democracy.
68. While our Constitution’s Founding Provisions in section 1 speak of democracy, they qualify the concept by requiring a ‘multi-party’ system of democratic government (often referred to as multi-party democracy):
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
69. It has been held that the values enunciated in section 1 of the Constitution are of fundamental importance, informing and giving substance to all the provisions of the Constitution. They are “interpretative guidelines, presumptions almost, which favour a certain way of understanding the South African constitutional project and, in the case of section 1(d), the nature of the democracy which that project seeks to promote.”
70. In Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) (decided under the Interim Constitution) Sachs J stated:
The notion of an open and democratic society is thus not merely aspirational or decorative, it is normative, furnishing the matrix of ideals within which we work, the source from which we derive the principles and rules we apply and the final measure we use for testing the legitimacy of impugned norms and conduct.
71. Case law on section 1(d) is clear about the fundamental importance of the values enunciated therein. In August v Electoral Commission, Sachs J stated:
Quite literally, [section 1(d)] says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement.
72. The Constitution accordingly goes further than simply describing a democratic ideal; it provides requirements of the kind of democracy which is to be applied in South Africa – a multi-party system of democratic government.
73. The protection of minority parties through a multi-party system of democratic government is guaranteed explicitly in section 1(d); section 57(2)(b), section 199, and section 236 of the Constitution, and more obliquely in sections 57(1)(b) and section 116.
74. In United Democratic Movement v President of the Republic of South Africa and Others (No 2), the Constitutional Court phrased the issue like this:
The first question that has to be considered is the meaning of the phrase ‘a multi-party system of democratic government’ in the context of section 1(d) of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to compete for office”.
. . .
[M]ulti-party democracy contemplates a political order in which it is permissible for different political groups to organise, promote their views through public debate and participate in free and fair elections.
75. In Democratic Alliance and Another v Masondo NO and Another, Sachs J went further, stating:
[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered . . .
The open and deliberative nature of the process goes further than providing a dignified and meaningful role for the participants. … It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it.
76. This principle of multi-party democracy has furthermore been used by the Constitutional Court in an interpretative role, much along the lines described in August v Electoral Commission (above) where it was stated that legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement. In African Christian Democratic Party v Electoral Commission and Others 2006 (5) BCLR 579 (CC), section 1(d) was held to “act as a higher-norm presumption against an intention on the part of the legislature to exclude certain categories of people from voting.”
77. In Matatiele Municipality and Others v President of the Republic of South Africa and Others, the foundational commitment to multi-party democracy was used to support a reading of section 155(3)(b) of the Constitution that would prevent the manipulation of municipal boundaries by a dominant political party to safeguard its position against later shifts in the balance of political power.
78. This commitment to multi-party democracy is also seen in the functioning of Parliament. The Constitution provides (in section 46(1)) that the National Assembly must consist of between 350 and 400 members elected by an electoral system based on a national common voters roll and producing, in general, proportional representation.
79. In terms of section 57 of the Constitution, the National Assembly has the power to adopt rules to deal with and regulate its internal arrangements proceedings and procedures. Section 57(1) states: the National Assembly may:
(a) determine and control its internal arrangements, proceedings and procedures;
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
80. In De Lille and Another v Speaker of the National Assembly, this section was interpreted to denote a clear limit that the rules and orders made by the National Assembly in order to regulate its business cannot be so drafted as to frustrate the principle of democracy.
81. Section 57(2)(b) imposes further requirements and limits the content of those Rules. The National Assembly’s rules and orders must (inter alia) allow for
Participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly in a manner consistent with democracy”.
82. The Constitutional Court’s approach to this form of multi-party democracy may be gleaned from Democratic Alliance and Another v Masondo NO and Another, which dealt with the interpretation of section 160(8) of the Constitution. Section 160(8) deals with the Internal Procedures of a Municipal Council, and is the equivalent of section 57(2) in the National Assembly. Langa CJ described the purpose of these provisions thus:
Section 160(8) is couched in terms very similar to provisions concerning the national legislature (section 57(2)(b)) and the provincial legislatures (section 116(2)(b)). The purpose of these provisions is to ensure that minority parties can participate meaningfully in the deliberative processes of parliament, provincial legislatures and municipal councils respectively. In the context of local government, this form of representation finds expression in the municipal council and in committees elected by it.
83. The importance of a multi-party system of democracy in which the rights of minority parties are protected runs like a refrain through the Constitution itself, and the judgments of the courts that are called on to interpret its provisions. In our view, the position adopted by the JSC and the President has the effect of threatening these important principles.
Conclusion on the current approach to consultation by the President and the JSC
84. Judicial appointment generally, and the position of the Chief Justice more specifically, should entail a weighing up of the strengths and weaknesses of a broad pool of candidates. The JSC is the institution with the requisite institutional and constitutional competency to undertake such an exercise; and the political parties envisaged in s 174(3) have a right – consistent with our Constitution’s commitment to multi-party democracy – to assist in that exercise by providing names of alternative candidates to the President’s nominee.
85. Indeed, to our minds if political parties were to nominate alternative candidates for selection in the current process, yet the JSC refused to interview them or consider them for short-listing, then this would severely limit the value of, and good faith required in, consultation with the leaders of political parties and the JSC.
86. In the present case, given that the country is already without a Chief Justice, the President’s decision to nominate one candidate only indicates that he intends appointing him, no matter what the JSC or political parties say. Unfortunately the JSC, by publicly refusing to accept other nominations, has lent its imprimatur to the President’s stance.
87. In so acting it has therefore effectively foreclosed the ability of the political parties to suggest alternatives, and to have these alternatives vetted by the JSC.
88. The JSC’s failure fundamentally undermines the notion of consultation envisaged by our Constitution, since it inhibits what the Constitutional Court in Merafong described as “the free expression of views and the willingness to take those views into account“. On this basis alone we believe that the current appointment process may be vitiated.
How section 174(3) could be amended
89. We have also been asked to consider how the current section might be amended to enhance the values and principles we have already discussed.
90. In considering any reformulation of s 174(3) we provide exploratory observations only. The issue of reformulation must be analysed with our Constitution and its democratic vision in mind. We have accordingly in our research recognised that comparative jurisprudence – for instance from the United States, Canada, the United Kingdom – is of limited value, since each country’s provisions on appointment of judges is peculiar to that state’s constitutional tradition. Of greater assistance, in our view, are the generally accepted principles of rule of law and independence of the judiciary as reflected under international law.
91. The one relatively simple option in order to better cater for the concerns of the independence of the judiciary and the rule of law, is for s 174(3) to be amended to follow more closely the scheme created in s 174(4), which deals with the appointment of Constitutional Court judges other than the Chief Justice and Deputy Chief Justice.
92. Section 174(4) provides as follows:
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:
(a) 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.
(b) 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.
(c) The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.
93. The real difficulty with s 174(3) is that it does not explicitly require the JSC to call for nominations (or even accept nominations) for Chief Justice, from any one other than the President. It also does not explicitly require the preparation of a list of recommended candidates from which the President must appoint.
94. To the extent that s 174(3) cannot be interpreted to nevertheless require such a procedure or similar procedure, this limits the value of the JSC’s contribution to the process, and it minimises the role of political parties. That is so when evidently it is desirable to have an institutionally competent body actively involved in the appointment of all judges; and to show respect rather than to pay lip-service to the principle of multi-party democracy.
95. This current, potential deficiency could be remedied by requiring that the position of Chief Justice (and Deputy Chief Justice) be opened for applications, or nominations from legal and political bodies, with the JSC then short-listing the candidates (perhaps with the President’s nominee or nominees assured of a place on the short-list), interviewing the short-listed candidates, and then creating a list of recommended candidates. The President would be able appoint one of the persons on the recommended list after consultation with the leaders of parties in Parliament.
96. The simplest suggestion then, which would be in line with international jurisprudence, and in line with our own Constitutional structure, would be to do away with the distinction between ss 174(3) and (4), by adding the procedural nomination steps in s 174(4) to (3) (with some minor modifications).
97. This would still vest the President with significant discretion, but would ensure a full and proper consideration of the competing qualities of all the possible candidates that may wish to stand for the position. There would be some limitation, with the President constrained to appoint from the final list created by the JSC; and (akin to the power in s 174(4)(b)) the President empowered to indicate to the JSC if any nominees sent to him are unacceptable, which would force the JSC to supplement this list.
98. In any event, we believe that there is a good argument why the appointment process of the Chief Justice should be brought in line with the process used for the appointment and vetting process for other Constitutional Court judges.
99. First: it would prevent a situation where, if the Chief Justice was not appointed from the ranks of the Constitutional Court judges, his elevation to that court as Chief Justice could be seen as less rigorous than for other Constitutional Court judges.
100. Second: given the inherent equality in the position of such judges, as recognised by the Constitutional Court in the JASA case, there seems little reason why a similar process of appointment should not be adopted for the appointment of all Constitutional Court judges.
101. Third: to the extent that there is a distinction to be drawn, the unique position of the Chief Justice requires greater, not fewer, safeguards, to insure that his appointment is, and is seen to be, consistent with the highest standards of independence of the judiciary.
102. Recent depictions of Justice Mogoeng as the President’s lapdog (whatever their origin or accuracy) are indicative of how quickly a system without vigorous institutional safeguards can lead to a perception, however unwarranted, that a judge is not independent. When that judge is thereafter appointed as Chief Justice, such perceptions may undermine the rule of law.
103. It is evident that s 174(3) as it currently stands does not elaborately detail the process that should be followed and the form, and nature, of consultation required for the appointment of the Chief Justice.
104. Nevertheless, for the reasons we have given there are significant residual constraints built into the process, principally through the requirement of meaningful consultation, read with the Constitution’s commitment to independence of the judiciary, separation of powers, and multi-party democracy.
105. In our view the President and the JSC in respect of the current process of nominating Justice Mogoeng for the position of Chief Justice have elided these constraints.
106. To the extent that such elision or avoidance is not taken up by FUL or other concerned parties by a legal challenge in respect of Mogoeng J’s nomination, the open-ended nature of the process remains undesirable as it raises the possibility that the perception of the independence of the judiciary will be eroded because of significant public, political and legal contestation over what procedure should be adopted. It also leads to the danger that a procedure which in fact compromises the independence of the Chief Justice is adopted.
107. It therefore seems prudent, and in the interests of constitutional certainty, for s 174(3) to be amended to ensure a proper and transparent appointment process. We believe that one of the simplest, and most effective, options would be the adoption of a similar provision to that incorporated in s 174(4). This may well alleviate many of the concerns that have arisen with the present process in theory and in practice.
Jeremy Gauntlett SC
Max du Plessis
Chambers, Cape Town and Durban
25 August 2011
Issued by Freedom Under Law, August 29 2011
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 For example in Matatiele Municipality and Others v President Of The RSA And Others (No 2) 2007 (6) SA 477 (CC) para .
 2008 (10) BCLR 969 (CC).
 Id at para .
 Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC).
 Supra at para . See also Chaskalson CJ’s account of the principle of open, transparent and responsive government at paras  et seq in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC).
 At 490C – E.
 See Hayes and Another v Minister of Housing, Planning and Administration, Western Cape, and Others 1999 (4) SA 1229 (C) and S v Smit 2008 (1) SA 135 (T).
 The section (s 23(3) of the Transport (London) Act 1969) provided “that where it is proposed to provide a bus service in London which has not been provided continuously since immediately before 1 January 1970, then before deciding on the route of that service, or a terminal point, or a pick-up or set-down point, or a point at which or a street by the use of which buses may turn round at a terminal point, the executive shall consult with certain bodies or persons” (Sinfield at 266).
 At pg 269c – e.
 2004 (5) SA 412 (C).
 At para .
 At pgs 152-3.
 See also Nico Steytler & Jaap de Visser ‘Local Government’ in Constitutional Law of South Africa 06-08, ch22-p134.
 Executive Council of the Province of the Western Cape v Minister for Provincial Affairs and Constitutional Development and Another; Executive Council of KwaZulu-Natal v President of the Republic of South Africa and Others 2000 (1) SA 661 at para .
 S v Makwanyane and Another 1995 (2) SA 642 (CC) at para 9; and Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at para .
 Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) at para ; City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) at para .
 See http://www.news24.com/SouthAfrica/News/No-other-nominations-for-chief-justice-20110820; JSC spokesperson CP Fourie said the following, “The JSC deliberated on whether it would call for further nominations other than that made by the President, and resolved by a majority that it is neither permissible nor desirable to do so.”
 Judge Phineas M Mojapelo, ‘Due consultation is crucial’ Sunday Times May 15, 2011.
 See also generally Albert V. Dicey, Introduction to the Study of the Law of the Constitution (E.C.S. Wade ed., MacMillan 1959); Joseph Raz, The Politics of the Rule of Law, in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press 1994); Trevor R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford Univ. Press 2003). Allan, at pg 57, notes, “The independence of the judiciary is intended chiefly to guard against executive interference in the judicial process. Raz points out that, since the court’s judgment establishes conclusively what is the law in each case, people can be guided by the law only if the judges can be expected to apply the law correctly, without bias or under improper pressure; but it is as important that government ministers and state officials obtain such guidance, and follow it, as that the private citizen should do so.“
 1998 (3) SA 785 (CC).
 Id at para .
 2001 (1) SA 883 (CC) at paras  and ; see also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996, supra at para .
 Sections 167(4) and (5) of the Constitution.
 Adopted as part of the African Commission’s activity report at the 2nd Summit and Meeting of Heads of State of African Union, Maputo, July 2003.
 Arthur Chaskalson was the President of the ICJ from 2002-2008 (and at the time that these principles were adopted), and is an Honorary Member. The Honourable Mr Justice Cachalia, of the Supreme Court of Appeal, is currently a Commissioner.
 Constitutional Court Case (Aguirre Roca, Rey Terry and Revoredo Marsano v. Peru), IACtHR judgment of 31 January 2001, Series C No.55, paras  and .
 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others 2005 (3) SA 280 (CC).
 Roederer C: “Founding Provisions” in S Woolman et al (eds) Constitutional Law of South Africa (2nd ed, OS, March 2006) Chapter 13.
 1999 (3) SA 1 (CC) at para .
 Quoted above.
 Section 57(2)(b) states: “The rules and orders of the National Assembly must provide for the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy“.
 Section 199(8) states: “To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.”
 Section 236 states: Funding for political parties: “To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.”
 Section 57 deals with internal arrangements, proceedings and procedures of the National Assembly. It states that the National Assembly may “(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.“
 Section 116 is the same as section 57, but deals with the National Council of Provinces.
 2003 (1) SA 495 (CC) at para .
 2003 (1) SA 495 (CC) at para .
 2003 (2) SA 413 (CC) at paras [42-3].
 2006 (5) BCLR (CC).
 1999 (4) SA 863 (SCA).
 2003 (2) SA 413 (CC) at para .
 We refer to the cartoon prepared by Zapiro in the Mail & Guardian, 19 August 2011.
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