Zuma nomination fair on process, foul on substance

President Jacob Zuma has nominated Constitutional Court Justice Mogoeng Mogoeng to replace outgoing Chief Justice Sandile Ngcobo as provided for in terms of Section 174(3) of the Constitution.

The section sets out that the president as head of the national executive, after consulting the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly, appoints the chief justice.

The fact that he has nominated Justice Mogoeng is not, I would humbly submit, grounds for alleging that the proper process for nomination has not been followed nor the basis for a challenge as suggested by the Institute for Accountability in Southern Africa.

The president is required to consult the JSC and opposition parties and thereafter appoint the chief justice but that does not preclude him from nominating the party he believes to be a suitable candidate. In addition he is also not obliged to follow the recommendations made to him during those consultations.

In this regard we have the view of constitutional law expert Professor Pierre de Vos who states: “Of course, the president has the right to appoint any fit and proper person who is suitably qualified as chief justice. All that is required is for the president to consult with the JSC and the leaders of opposition parties before making an appointment. There is no requirement that the president should heed the concerns of those consulted. It must be made clear that I am not suggesting that the nominee is not a fit and proper person that is suitably qualified for the job.”

De Vos accepts that Zuma is entitled to make the appointment but questions the basis for his decision without impacting on the nominee’s dignity in any way.

In contrast we have the statement of Mac Maharaj, spokesperson to the president, who defends the decision made by Zuma.

In terms of both submissions there is no contention that the process being followed is not the correct one.

Of course the fact that the process being adopted is procedurally correct does not make the president’s choice beyond criticism.

As things stand South Africa has in Deputy Chief Justice Dikgang Moseneke an internationally renowned jurist who as an anti-apartheid activist was sentenced to 10 years imprisonment on Robben Island. He was also one of the parties who helped draft the interim South African Constitution.

His refusal to kowtow to the apartheid government, which saw him jailed, carried on in the new South Africa where he made it clear that he considered the creation of an equal society among his primary roles and then had the audacity to say that it is “not what the ANC wants or what the delegates want, it is about what is good for our people”.

This would seem to have been the death knell for his chances of becoming chief justice as far as the powers-that-be are concerned, when in fact it should have cemented him as the ideal choice.

In Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23;CCT 53/11, CCT 54/11, CCT 62/11 (29 July 2011) it was stated:

“33. The Court has highlighted the importance of separation of powers in ensuring that the courts are able to discharge their constitutional duty of ensuring the legitimate exercise of public power, cautioning that —

“[t]he separation required by the Constitution between the Legislature and Executive, on the one hand, and the courts, on the other, must be upheld, otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution, will be undermined.”

The supremacy of the Constitution in this constitutional democracy and the separation of powers appear to be concepts that are not fully understood by certain members of the African National Congress if regard is had to the somewhat bizarre interview ANC secretary general Gwede Mantashe had with the Sowetan newspaper.

It is patently clear that Mantashe considers the ordinary working of the judiciary in testing legislation for constitutionality as somehow entering the political arena. That where the learned judges call for remedial action or refuse to pass legislation because it is in conflict with the Constitution it somehow borders on becoming an opposition party.

This seems to tie in with Zuma’s recent warning to the judiciary that the executive is responsible for enacting legislation not them.

In terms of supremacy, the Constitution is at the very top of the pecking order in South Africa. This ensures that where the government abuses its position, the masses have recourse to the courts to verify that any law being proposed is in accordance therewith. This is their ultimate safeguard.

Accordingly where South Africans have an internationally renowned jurist who puts the interests of the masses above party politics and everything else and he has served as deputy chief justice under Justice Ngcobo then people have a right to know why he is being overlooked.

This must in no way be seen as a criticism in any way of Justice Mogoeng but rather a question to the ANC and government which is overlooking the obvious choice without a proper explanation therefore.

As for the contention by Mantashe that opposition to the president’s nominee for chief justice is racist has to be up for some sort of award. Perhaps he can clarify the basis for us. Just after he explains how he thinks the Constitutional Court is supposed to work. At present he thinks it’s being used as some sort of “opposition” to the government.

Perhaps in reading up on how a constitutional democracy is supposed to work and the functions of the executive, legislature and judiciary in that system he might be relieved to learn that his conspiracy theories are unwarranted and begin to understand why the refusal to appoint Justice Moseneke as chief justice is considered to be such a poor decision.