President Jacob Zuma's choice of Raymond Zondo for top court judge has been undermined by the notion that it was a done deal.
Perceptions that a candidate was earmarked for the vacant judge's post in the Constitutional Court have cast a lingering shadow over the appointment of Raymond Zondo, even for those who believe he is a capable and experienced judge.
University of the Witwatersrand professor of law Cathi Albertyn told the Mail & Guardian her concern was with "process and diversity", not Zondo's appointment, a judge whose capability she does not question.
"The process became very problematic when it became 'known' that Zondo was President Jacob Zuma's choice at a very early stage," said Albertyn.
"I do not know how or why this happened, but it made potential candidates reluctant to put their hats in the ring and was one of the reasons why this process took so long."
Albertyn said the selection and appointment of judges generally, and especially to the Constitutional Court, had to be seen to be open-ended and a real choice.
"Of course, now that Zondo has been appointed, it looks like this was the plan all along," she said.
"Even if it is not true and despite the substantive manner in which the process was carried out [by means of interviews and consultation], in the end it casts a shadow over the process."
Albertyn believes it is a "great pity" that the president did not exercise his choice in favour of diversity. One of the other candidates, Mandisa Maya, is highly regarded and would also have fulfilled the gender parity criteria of the court.
Nobody knows how the rumour started that Zondo was tipped as a firm favourite in some quarters, but the shortage of female judges in the Constitutional Court was expected to be a consideration among the panel in selecting Maya.
"This would have been constitutionally possible and widely praised. Gender diversity is about making hard choices at the right time.
"Regrettably, the president did not do so this time and chose the person with whom he felt the most comfortable. As a result, women remain significantly underrepresented in the court."
The Constitutional Court has only two female judges out of the 11 that currently preside.
Three Supreme Court of Appeal judges – Maya, Lebotsang Bosielo and Robert Nugent – as well as Zondo were shortlisted for the post.
Lack of interest
The Judicial Service Commission previously had to advertise the vacancy again because of a lack of interest, which was believed to have been caused by the perception that a candidate had already been earmarked.
Constitutional law expert Pierre de Vos told the M&G before the selection was made that Zondo would not be his personal choice for the post, because he believes him to be a "traditional old-school lawyer and too conservative in his attitude to the Constitution and the law".
Given the constitutional demand and need to take into account race and gender, De Vos said it would have been better appoint a woman.
He described Maya as a "very impressive judge".
However, as Zuma clearly chose a candidate with whom he felt "comfortable", Albertyn said this was now another issue to contemplate.
"Given the nature of the court's power in our democracy, the president is always going to choose the kind of judge he wants to see in court," said Albertyn.
"I imagine that was part of his decision."