Are judges’ appointments campaign fodder?

In the Sunday Times edition of May 15, deputy Judge President Phineas Mojapelo made two key points about the appointment of a new chief justice or the prolongation of the incumbent’s terms.

First, Mojapelo stated that the president appointed the chief justice and his deputy after consultation with the Judicial Service Commission (JSC) and the leaders of political parties represented in Parliament. Second, he said the procedure for appointing them is initiated once the JSC calls for nominations.

Mojapelo cited section 174(3) of the Constitution as the president’s authority. But our courts have pronounced on what is required when an authority has to act in or after consultation with someone. In McDonald and Others v Minister of Minerals and Energy and Others 2007(5) SA 642 (C), the judge held that “where the law requires a functionary to act ‘in consultation with’ another functionary — there must be concurrence between the functionaries, unlike the situation where a statute requires a functionary to act ‘after consultation with’ another functionary, where this requires no more than that the ultimate decision must be taken in good faith, after consulting with and giving ­serious consideration to the views of the other functionary”.

Thus, “after consultation” would not require the president to follow the views of those he consulted. Here Mojapelo is right, but he seems to think there should be a referendum on the candidate for chief justice. And he loses the plot when he seeks to conflate consultation by the president on appointing a new chief justice and the process that should be initiated by the JSC when recommending candidates for the appointment.

Sections 174(3) and (4) of the Constitution make it clear that the president initiates the process and makes appointments after consulting political parties and the JSC. Only with the appointment of other judges — those of the Constitutional Court, for instance — should the JSC initiate a process similar to that described by Mojapelo, which ends with it making recommendations to the president, who appoints these judges after consulting the chief justice and leaders of political parties represented in Parliament. Were former chief justices Arthur Chaskalson and Pius Langa appointed through this JSC-initiated process?

Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 states that a chief justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2) may, at the request of the president, continue to perform active service for a period determined by the president. This period may not extend beyond the date on which the chief justice turns 75. Clearly, this Act is the one contemplated in section 176(1) of the Constitution.

It seems to me that Mojapelo’s article was an attempt to undermine the possible extension of Chief Justice Sandile Ngcobo’s tenure and promote the candidature of someone else. I hope I am wrong.

What is worrying is the suggestion that appointments to the judiciary will now become issues in political campaigns and the subject of lobbying by judges. The Serjeant at the Bar column in the Mail & Guardian (May 27) on the extension of the chief justice’s term is clearly a follow-up to Mojapelo’s article — is this part of a campaign? It is interesting that the column cites decisions of the Constitutional Court on the Scorpions (Hugh Glenister), the Truth Commission (Robert McBride) and the Zimbabwe report as part of the legal struggle that will draw the judiciary into possible conflict with the government.

Could it be that in judgments such as Glenister the judges may have gone beyond their judicial function and expressed their policy preferences? One conclusion is inescapable: there are legal battles being planned against the government that require a new chief justice “not cast in the political image of the government”, as Serjeant intimated.

This gives one the impression — right or wrong — that there is a plan to hijack the Constitutional Court. It seems Ngcobo is a stumbling block and must be removed.

Advocate Joseph Lukwago-Mugerwa is former legal adviser to the Eastern Cape provincial government

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