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The role of the President in appointments of the Court

The role of the President in appointments of the Court

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?

Comments (3)

  1. Avatar
    Ishmael Malale
    Jun 25, 2016

    The power to appoint Apex Judges by the President is not misplaced but appropriately part of complex checks and balances in the the South African political system.Judges are increasingly in favour of self appointment, to introduce ‘juristocracy’.

  2. Avatar
    Adv.Ron S Mncwabe (practising as a magistrate)
    Jul 8, 2016

    I believe the appointment of Judges is in the right hands. There are checks and balances,for example the JSC including leaders of political parties are involved in the process.It’s not like the President of the Republic thumb suck such appointments.The buck has to stop somewhere, in this case it stops with the President. He takes responsibility of these appointments.Therefore he/she accounts to such appointments. Imagine if it the final say was left with leaders of political parties,the issue of appointments would never end as it is seen in the way they go on with performance of their duties in our parliament.What’s happening in parliament cannot be allowed in the appointments of Justices as the image of or Judiciary will be tarnished.This job is the center and cornerstone of our democracy.It cannot be left to a situation of cats and mouse fights.

  3. Avatar
    Nicholas Herd
    Oct 7, 2016

    Interestingly enough, India has a system which basically constitutes ‘self-appointment’ where members of the Supreme Court (Constitutional Court equivalent) form the committee [Collegium] which appoint the Justices to that same Court. This makes a lot of sense, in real terms, as it is likely that the Justice selecting other Justices have the best interests of the Court, that they will ultimately leave behind, in mind. They are also less likely to appoint based on political incentives and will select only those whom they would trust (and be able) to work alongside — it is worth bearing in mind that these Justices are fundamentally analysts and scrutinise thoroughly the characters and work of individuals before them as part of their job (after all, this is their mandate); to apply that same skill set to appointing judges makes sense. However, such an insulated mechanism could prove vulnerable to internal corruption and this would then be difficult to root out.

    In this light, I think that the Constitution has generally got it correct (in the form of the JSC), however, the Judicial system of appointment does seem somewhat compromised, in terms of the political involvement. I am somewhat apathetic and cynical towards South Africa’s political system (all parties; as a whole) at the moment, being 18 this could possibly be attributed to my youth; I would, never-the-less prefer to see a JSC:

    [1.] With more Justices sitting on it. Possibly adjust the composition of the JSC so that the 4 most senior Con Court Justices (+ the Chief Justice = 5 Con Court Justices) and also the 2 most senior Justices of Appeal [SCA] (+ President of the SCA = 3 Justices of Appeal), along with the ‘Permanent Judge President’, sit on it. This will give greater weighting to the Judges, diluting the voting power shared amoungst the political parties. The reason for those specific ratios is because those two courts are where the most ’eminent’ and ‘advanced’ jurists, and the ones who often render/uphold the landmark judgments, sit.

    I’m not saying that the Political system, and the other legal appointments, should be totally crowded out or removed altogether, I’m simply saying that the Courts should now have a greater say in their own composition (to align more closely with the Sep of Power Doctrine — it must be remembered that this Separation is to effect accountability, and so a total bifurcation would be, at its very core, counter-intuitive. A greater Separation, to ensure independence, is, however, in my view, necessary and can be achieved through this moderation).

    And I argue for this as I see such a JSC having a more enhanced ability to ameliorate the ever present danger in any democracy of — I point towards the USA as a prime example of what could be considered as — ‘political interference’ which ultimately establishes ‘political divisions’ in the courts. This is the appointment of ‘friends’ of politicians or of individuals who have seemingly adopted a judicial philosophy akin to a political one, and so are appointed based on their predicted decision making. Whilst I don’t actually feel it entirely fair to conclude (partially due to my ignorance in the dense subject area) that there is pervasive ‘political interference’ currently, there should be guards against it occurring in the future (the checks and balances should be prospective in nature).

    [2.] That has more “after the fact controls” in some areas (in terms of appointments) than “before the fact authority”. What I mean by this:

    [2.1] That, in the cases of High Court & equivalent appointments, the same process as currently employed is implemented [with an application being submitted to the JSC, the JSC interviewing the candidate(s) and then submitting a list to the President to make appointments on the advice of the JSC, with the President having the sort of ‘veto’ that he does currently posses in terms of §174 (4), where he can choose not to appoint from that list and request a supplemented list). This affords the JSC the ‘right’ amount of power in limiting the scope of candidates and sorting out any ‘bad apples’, and the President maintains a check on the JSC as he (or she) can ‘block’ an unwise shortlisted appointment (even if discretion fails the Presidency, with a shortlist packed with inappropriate appointments, he/she can still request a supplemented list and circumvent such a “bad list”)].

    The reason why this system makes sense is that the vast majority of appointments being made will invariably be High Court appointments, and the JSC seems better equipped (in comparison to the Presidency) to initially sift through and vet these candidates (with the JSC consisting also lawyers and Judges who are “on the ground”, so to speak, and who know what to look for in candidate and what to reject, and compile a shortlist) The Presidency will likely only refuse an appointment in the instance of an overt blemish in the character or record of one of those person(s) shortlisted, becoming known.

    [2.2] In the cases of SCA and Constitutional Court appointments (and I have not definitively made up my mind about whether SCA appointments should be in this category or the previous one), I would advocate for the system to be reversed: applications should be made to the Presidency (or possibly to a Political Party — although I don’t know how that would work), who must then interview/vet (and who may search for and convince their own candidates) candidates. The President should then be required to submit, to the JSC, a list of nominated candidates for the specific position, and the JSC will then interview those nominated candidates and either:
    (1) Compile a shortlist and revert to the President for final selection; or
    (2) Make the final appointments (with the consent of the Chief Justice and the Justice/Judge who is the head of the relevant Court, thereby granting them an ‘intermediate veto’ and final decision making power > “independence”).
    — Again, I haven’t decided, in my own mind, which of these two system would be more valuable.

    My only issue with this, is that the President becomes the initial doorkeeper (which I suppose he/she is, anyway, just at the end of the catenation currently). The question is whether this new system would be

    The appointment of the Chief Justice should done in this way (as outlined above). Appointing the Deputy Chief Justice, I believe, should be the prerogative of the Chief Justice (limited to selecting an individual already on the Constitutional Court, if there is no vacancy on the Con Court, or, also from the SCA if there is a vacancy on the Constitutional Court — and that person being confirmed as a Justice in the same way as outlined above).

    [3.] In terms of acting appointments, the Minister [responsible for the Administration of Justice] appoints after consulting of the senior Judge of the relevant Court. To me, this should be the other way around.

    — For an appointment to act in any High Court, the JP/DJP (Judge President/Deputy Judge President) should appoint after consulting the Minister [ I do believe that this is effectively the system as it operates currently, except that the Minister has to agree to the appointment] as having the Minister, who does not have the opportunity to see the Advocates in action/access to them in real terms, initially appoint does not make all that much sense. It would be proper to have to consult the Minister for any acting-appointments (serves as a check and balance on stacking the courts).

    — For acting appointments to the SCA, the President/Deputy President of that Court should be able to elevate a High Court Judge (only) to act in the SCA, with the concurrence of the Minister.

    — Finally, the Chief Justice, with the concurrence of either the President or the Minister concerned, should able to elevate any judge from the SCA or other Appeals Courts to act in the Constitutional Court; the appointment of an Acting-Deputy-Chief Justice should be made by the Chief Justice, from the ranks of Constitutional Court Justices only, with the concurrence of the Minister.

    — If there is a deadlock (the Minster does not agree to an appointment, in the instance of his/her concurrence being required, and the senior Judge holds firm, possibly in the instance of a vacancy needing to be filled urgently), a panel of 3 of the most Senior judges of that division, the Minister and any fit person that the Minster chooses should take the decision on the appointment of that Acting-Judge.

    There are also other administrative tasks performed by the Minister [responsible for the Administration of Justice], in consultation with or with the concurrence of the senior judge concerned: these tasks/functions/authorities, in my view, should be transferred to the Judge Presidents, President of the SCA or Chief Justice. Where there might be a disproportionate chance for corruption or some other malignancy, the decision should be taken/task should be performed after consulting the Minster (not necessarily even with his or her consent). Ultimately, the check and balance on the Judiciary in terms of administration is the allocation of its budget (Parliament and the Executive can refuse to appropriate funds to certain judicial schemes where they feel that such programmes are not paying dividends or should not be funded — notwithstanding the fact that the remuneration of judges themselves cannot be tampered with).

    These are the possibly ‘small ways’ in which the judiciary might achieve greater, more thorough independence — in my humble opinion.

    [07 October 2016]

    I would also like to thank “Judges Matter” for the work that they do and for providing this platform to the public.

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