The leaders of three opposition parties have urged President Jacob Zuma to withdraw his statement on the nomination of Sandile Ngcobo to replace outgoing Chief Justice Pius Langa.
In a joint statement on Friday, Democratic Alliance (DA) leader Helen Zille, Congress of the People (Cope) leader Terror Lekota, and Independent Democrats (ID) leader Patricia de Lille said the nomination had been unconstitutional.
In terms of the Constitution, the president, after consulting the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly, appointed the chief justice and the deputy chief justice.
This was a critical constitutional requirement and central to it was the phrase ”… after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly”, they said.
”The idea of consultation is straightforward — it is the necessity that the president elicits and considers the advice of the leaders of all parties represented in the National Assembly before coming to a conclusion about his appointment.
”Obviously, that consultation is designed, therefore, to inform his decision.”
This was borne out by both logic and precedent.
To announce a candidate and then consult defeated the very purpose of consultation in the first place.
It meant the president had arrived at a conclusion prior to consulting and the process of consultation would have no effect on his decision — it would be a meaningless exercise.
This was quite clearly not the intention of the relevant constitutional section.
”That section exists to ensure that the president, in an open, consultative and democratic manner, seek out and incorporate the considered opinion of all parties represented in a democratically elected Parliament, before arriving at a decision,” they said.
Regarding precedent, for every other judicial appointment for which the Constitution required the leaders of parties in the Assembly to be consulted, since 1994, the presidency had sought out the opinion of those parties prior to announcing a nominated candidate.
Sapa reported that, in explaining his choice, Zuma had said he had taken the decision ”properly” and ”objectively”.
”Importantly, it also reports the president as saying: ‘The fact of the matter is that I have appointed a judge that I believe is capable’.”
The three leaders said this statement was unequivocal.
”Quite clearly, in President Zuma’s mind, by announcing Judge Sandile Ngcobo as his candidate, he had effectively made the appointment and had no intention of consulting before doing so, as the South African Constitution requires.
”We can jointly confirm that none of us were consulted ahead of the president’s announcement yesterday [Thursday].”
On Friday morning, at 9.10am, the DA received a fax — traditionally, the manner in which these matters were communicated — from the presidency requesting its opinion, in terms of Section 174 (3) of the Constitution.
The fax was dated August 5 2009. The DA’s records confirmed no fax was sent on August 5 and that nothing else was received from the presidency prior to Friday’s communication.
”We can also confirm that the president has not consulted the Judicial Service Commission on this matter, as is required by the Constitution.
”This is unconstitutional. If the point of consultation is to seek out opinion in order to inform one’s decision, it cannot be done after the fact.
”And it is absolutely apparent, both from President Zuma’s comments to the media and by the fact that no communication was received from the presidency that he had made up his mind on this matter and considered Judge Ngcobo ‘appointed’, before he properly consulted, as required by the Constitution.”
That the fax was backdated, suggested the presidency was now trying to rectify its mistake by consulting retroactively.
”In light of this and the president’s failure to properly consult or act in the manner required by the Constitution, it is necessary for him to withdraw his statement and consult properly before arriving at a decision as to who his desired candidate is.
”President Zuma has repeatedly given South Africa the assurance that he respects the Constitution, that he wishes to engage the opposition and that he is dedicated to upholding our institutions and ensuring best democratic practice.
”His attitude to this matter, however, suggests otherwise,” they said. — Sapa