The role of the President in appointments of the Court

The role of the President in appointments of the Constitutional Court was one of the issues that the now retired Deputy Chief Justice (DCJ) Moseneke talked about with open concern. The Constitution does not envisage all appointments being made by Parliament, and a number of key appointments lie in the President’s hands.

In a paper delivered at a conference in November 2014, Moseneke raised concerns about the “remarkable concentration of the President’s powers of appointment.” The former DCJ goes on to list the many appointments that the President holds the power to make. Of particular public interest now are the judicial appointments in the hands of the President, who will appoint the replacement for Deputy Chief Justice Moseneke, after consultation with the Judicial Service Commission (JSC) and the leaders of the opposition parties in Parliament. The President also appoints the President of the Supreme Court of Appeal (SCA) after consultation with the JSC which is worth noting as Judge Mpathi, the current SCA President is retiring soon.

The two judges on the Constitutional Court who you might not expect to be so appointed as Deputy Chief Justice by the President are the two judges, Judges Jafta and Nkabinde, who, after reporting an allegedly improper approach to them by Judge President Hlophe, then lodged a statement with the JSC placing on record, among other things, that they were not willing to make any statement to the JSC.

These judges were, at least in part, able to stall the JSC investigation of Judge President Hlophe for 8 years. The SCA stated in one of the many cases on this issue that “it was unsettling when counsel on behalf of the appellants (the two judges), with emphatic certainty, stated during submissions before us that this matter would never end, speculating without specificity that there would be on-going challenges to proceedings related to the complaint.”

These are judges who, we might suggest, are not the first ones who jump to mind when it comes to the appointment of judicial leadership in the Court. But Judge Nkabinde has indeed been chosen by the President as the acting Deputy Chief Justice.

Is the appointment of the leaders of the court in the right hands?