The Judicial Service Commission (JSC) went beyond its remit by recommending that President Cyril Ramaphosa appoint Supreme Court of Appeal Judge President Mandisa Maya as the next chief justice, he said on Wednesday, stressing that the choice remained his prerogative.
Ramaphosa told journalists at parliament that he had expected the JSC to acquit itself in the same manner it usually did when the president would forward the name of a single candidate to be interviewed for the post, although this time four candidates were shortlisted.
“In the past, the JSC was often given one name and they would then respond about the suitability of the candidate,” he said in reply to a question.
“We thought we would ask the JSC, and we’ve gone through a sort of a public process, to see who would be most suitable, or who would be suitable; not necessarily the most suitable, but who would be suitable.
“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,” he added.
“Now that does not detract from the role of the president in this. The president’s role still remains that the president has the authority and the power in the end after various consultations with the JSC, as well as the parties, to appoint a chief justice. That is where we are.”
Ramaphosa said he was perusing a report the JSC submitted to him.
But he indicated that he had yet to consult with political parties represented in parliament on the matter, as required by the Constitution.
Government sources have said that the JSC exceeded its mandate by putting forth the name of a preferred candidate to the president, and had, in doing so, painted him into a political corner.
The difficulty is greater still, because, if Ramaphosa deviated from the JSC’s recommendation, he would effectively be declining an opportunity to appoint the country’s first female head of the judiciary.
Sources who were present at the JSC’s deliberations after it interviewed Maya, Deputy Chief Justice Raymond Zondo, Constitutional Court Justice Mbuyiseli Madlanga and Gauteng Judge President Dunstan Mlambo in the first week of February, said there was some confusion among members of the commission as to how to proceed.
However, national assembly speaker Nosiviwe Mapisa-Nqakula, Economic Freedom Fighters leader Julius Malema and JSC spokesman advocate Dali Mpofu argued strongly that the JSC should settle on a single candidate, prompting a vote to select one.
Mlambo obtained the second-most votes, followed by Madlanga, with Zondo coming in last. The JSC proceeded to write its only report after making the outcome of its vote public.
A well-placed source said the move amounted to a political ambush of Ramaphosa.
Asked whether he feared he would be criticised if he did not go along with the JSC’s recommendation, Ramaphosa replied that presidents always risked criticism.
He said he had only had time to watch “snippets” of the televised interviews, which were criticised for the manner in which Zondo and Mlambo were questioned by some JSC commissioners.
Mlambo endured questions on unsubstantiated allegations of sexual harassment, which he dismissed as “gossip” designed to sink his candidacy. Although the questions were later expunged from the record, observers said the damage was done and the line of questioning by Mpofu and Malema should have been ruled out of order without delay.
The post of chief justice has been vacant for more than four months, ever since Mogoeng Mogoeng retired last year.