The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The (ironically named) Justice For Hlophe Alliance has issued a press statement claiming that they have “nominated” Judge President John Hlophe for the position of Chief Justice. This is a bit like me issuing a press statement claiming that I have nominated Evita Bezuidenhout, Steve Biko or Michael Jacskon for the position of Pope: it might make headlines, but it is utterly irrelevant to what happens in the Vatican when the Cardinals appoint a new Pope.
The problem is that nominations are not invited for the position of Chief Justice and no one can legally nominate anyone for that position. Regardless of what one might think about the possible merit of appointing an ethically challenged man with a precarious relationship with the truth to the head of our judiciary, our Constitution is rather clear about vesting the power to appoint the Chief Justice solely in the President.
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, appoints the President and Deputy President of the Supreme Court of Appeal.
This means that it is for the President and the President alone to decide who he wishes to appoint as Chief Justice, completely independent of any nomination process. No one – I repeat, no one – can be nominated for this position. Unlike ordinary judges who must be nominated, then interviewed by the Judicial Services Commission (JSC) and then recommended by them for appointment by the President, the President has a final and absolute discretion to appoint the Chief Justice.
Once the President has an idea of who he wants to appoint, he must consult the JSC and the leaders of opposition parties in Parliament to hear how they feel about the candidate (or candidates) he has in mind, but even if they are all opposed to his preferred nominee, he may still go ahead and appoint his chosen candidate.
Of course, it would be great if the President’s choice submitted himself or herself to an interview with the JSC – as Chief Justice Langa did before his appointment – because it will demonstrate a respect for our Constitution and the institutions created by it. It would serve as an example to others as it would display the appropriate deference to the JSC.
But even if the President’s choice shows a contempt for our Constitution and for ordinary voters and refuses to be interviewed by the JSC, there will not be much the rest of us (including the JSC) can do about it. As long as the President’s preferred candidate is an “appropriately qualified woman or man who is a fit and proper person” and as long as that person is a South African citizen, the President may go ahead and appoint the person of his choice as Chief Justice.
If one assumes that some lawyers are behind this group, it is therefore rather perplexing that the people from the Justice for Hlophe Alliance seems to be blissfully unaware of this rather obvious fact. Maybe they were out of the country when then President Thabo Mbeki appointed Chief Justice Pius Langa, or maybe they forgot how the process unfolded the last time around. But even then, why did they not check the Constitution before pulling this publicity stunt? In any case, it is rather embarrassing that they do not seem to know how our Chief Justice is appointed – seeing that it is rather a basic fact known to almost every second year law student (well, at least those who pass Constitutional Law).
It is of course true that the President’s preferred candidate need not have served on the Constitutional Court (or any other court for that matter) to be eligible for appointment. The President can appoint the Head Magistrate of Pofadder (but not Evita Bezuidenhout or Michael Jackson) as Chief Justice if he wants to.
If one assumes that Judge President Hlophe is indeed a “fit and proper person”, he can be appointed as Chief Justice, but a “nomination” is improper as it might create the impression that those doing the “nomination” are trying to unduly influence the President in exercising his constitutionally mandated discretion. This publicity stunt is therefore an insult to our President because it suggests that he is too stupid or uninformed to make up his own mind about who he wishes to appoint and must be “guided” by a legally bogus “nomination”.
This seems like a slap in the face of President Zuma and if I was him I would be thoroughly miffed by this move. In due course he will make up his own mind about who to appoint – regardless of any bogus “nomination”. When that happens, we can of course debate the merits of his choice and praise or criticise it. Before that, it is best we refrain from promoting any candidate for the position of Chief Justice, lest we create the impression that we think our President is not up to the task of appointing a Chief Justice – a task entrusted to him by the Constitution.BACK TO TOP