The President to appoint the next Deputy Chief Justice
At the JSC interviews held on the 4th October, the JSC failed to recommend a panel of four possible appointments to the Constitutional Court. This was after Judge Bosielo’s withdrawal, after new information was put to the JSC alleging that he had conflicts of interest. This left only three nominees, not sufficient for the constitutional requirement that the President receive four nominations.
This means that the court still has two vacancies arising from the retirements of Justice Van der Westhuizen and Justice Moseneke. The Chief Justice commented today on these vacancies, saying that there is nothing to stop the President from appointing someone from outside the Constitutional Court to the position of the Deputy Chief Justice. This arises from section 174(3) of the Constitution, which gives the President the power to appoint the Chief Justice and the Deputy Chief Justice.
The Chief Justice said that it is his view that the President can appoint someone who is not a member of the Constitutional Court, nor even a sitting judge. This would conform with previous practice. This would mean that there was then only one position on the Constitutional Court to be filled, which is the one that will now be re-advertised.
The JSC will not pre-empt the decision of the President, who will have to indicate who he wishes to appoint as Deputy Chief Justice. They will advertise one position, and only if the President appoints the Deputy Chief Justice from the existing bench of Constitutional Court judges, will they advertise a second.
This appointment by the President, and in fact the involvement of politicians in the JSC, was intended to ensure that a possibly reactionary judiciary, opposed to transformation, would not defeat the constitutional project by appointing only conservative judges to the court. The progressive appointments by politicians would theoretically counter this trend. However, there is no predicting the future. Twenty years on, the judiciary is now composed of judges all appointed by a JSC constituted in a constitutional order. The judiciary is certainly not perceived as revolutionary but they have handed down many progressive judgments in areas involving rights of all kinds.
Politicians, on the other hand, have come up against rights, not always in a good way. They have been constrained in the exercise of their power by the judiciary, and more often than is perhaps wise, bemoaned the experience. What then will the approach be of the President in this appointment? Will he choose a more executive minded judge? Or one who tends towards the progressive side?
Of course, there is another completely different concern, which is: did the drafters of the constitution contemplate the President himself directly appointing a lawyer to the Constitutional Court who isn’t already a judge? Should this be permissible in terms of the separation of powers or could it undermine the independence of the judiciary?
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[UPDATE: 17 May 2018] Judge Bosielo passed away on the 15 May 2018. It was reported by the OCJ in a press statement after his death that Judge Bosielo had been subject to an internal review wherein the sub-committee had cleared him of any wrong-doing. Read the full OCJ press statement.