Former president Jacob Zuma. Photo: Supplied
In his latest legal frolic, former president Jacob Zuma has asked the Pretoria high court to set aside the appointment of Chief Justice Raymond Zondo.
In papers filed to the court, he argues that President Cyril Ramaphosa’s appointment of Zondo was irrational and unconstitutional and so was the preceding step of establishing a nominations panel to shortlist candidates for the position.
Ramaphosa established the panel in September 2021, shortly before former chief justice Mogoeng Mogoeng retired. It was an unprecedented step designed to open the process of appointing a chief justice to consultation.
Four candidates were shortlisted — Zondo, Gauteng Judge President Dunstan Mlambo, Deputy Chief Justice Mandisa Maya, who was at the time the president of the supreme court of appeal, and constitutional court justice Mbuyiseli Madlanga.
The Judicial Service Commission interviewed the four candidates, and it is after its report to Ramaphosa that the process went awry. The JSC put forth Maya as its preferred candidate. Ramaphosa said he believed it had exceeded its mandate, which had simply been to comment on the relative suitability of all four candidates.
“So we literally expected a report by them that would say these are the names of the people that we have interviewed who we believe are suitable. They went over that. They nominated a person,” Ramaphosa said at the time, before appointing Zondo.
In his court application, Zuma said Zondo has repeatedly abused his office by accusing him of state capture. He later goes on to say that he intends to file a separate legal challenge to Zondo’s report on state capture. Zondo found that Zuma was ever ready to do the bidding of the Gupta family.
“Such abuse directly or indirectly flows from his illegal appointment as chief justice,” Zuma submits in his court application.
It was illegal, he said, because no provision exists in law for the appointment of the nominations panel, and that section 178(3) of the constitution does not permit the president to devise his own process for appointing a chief justice.
The imposition of a nominations panel was unlawful in that, without amending the requirements prescribed in section 178(3) of the constitution, the president extended the reach of his consultation to include the nominations panel.”
He added that the only constitutionally sanctioned advisory body in this instance was the JSC, and setting up the panel usurped the powers of the commission.
Furthermore, Zuma said, it was “rumoured in the media” that Zondo received the lowest number of votes when the JSC voted to settle on a preferred candidate.
Constitutional expert Dan Mafora said it was a strange reading of the Constitution because the text is silent on what happened before he sent nominations to the JSC.
“I think it is a discretionary power given to the president and does not constrain the options he has before he announces who his preferred candidate or candidates are. The idea that the section limits him works backwards by assuming that only the JSC and leaders of political parties can have a say in the appointment of the chief justice, but it actually only applies after he has decided who his nominees are.
“There are no restrictions on how he nominates candidates. It is based on a misinterpretation of section 174(3),” Mafora said, referring to the correct section from which the president derives his power to appoint the chief justice.
He said Ramaphosa had been justified in saying that the JSC went beyond its remit by pinpointing Maya for appointment as head of the judiciary.
“The president is right on that score. I don’t think that the decision by the JSC bound him in any way. The role of the JSC is purely advisory, and the idea that the JSC could only have preferred one candidate is flawed in law.
The president is not bound by its recommendations when appointing the chief justice, the deputy Chief Justice and the president and deputy president of the appellate court.
It is not clear, in political terms, why Zuma is filing this application as a precursor to taking the report of the commission of inquiry into state capture on review. Prosecutions emanating from the recommendations in the report have been slow in coming, and at 80 his chances of being jailed for corruption in that regard are slim.
Presidential spokesman Vincent Magwenya said Ramaphosa would engage with the application through due legal process.
“It is clear that Mr Zuma will not tire in his abuse of the courts and his obsessive harassment of President Ramaphosa,” Magwenya said.
Zuma was handed a 15-month jail sentence for contempt of court for defying summons to testify before the Zondo commission. He was released on medical parole after roughly two months. After the appellate confirmed that this was unlawful, the remainder of his sentence was remitted.
Last year, he brought charges against Ramaphosa in a private prosecution, tangentially related to the charges he faces of arms deal corruption. It was set aside as an abuse of process.