South Africa is expected to start the process of appointing a new chief justice soon. Exactly what does the process entail? The chief justice of South Africa, like the speaker of the legislature and the president, is an important head of one of the three authorities of government. His or her appointment must thus rightly engage the interest and attention of all South Africans.
The process of appointing the incumbent should reflect the constitutional values of a democratic, open and transparent society, based on human dignity, equality and accountability. It must imbue the office with the legitimacy that justifies the exercise of an authority so critical on behalf of all of us.
Our constitution provides that the chief justice and the deputy chief justice be appointed by the president, as head of the national executive, after consultation with the Judicial Service Commission (JSC) and leaders of political parties represented in the National Assembly (section 174(3)).
What is consultation?
It is important to bear in mind the legal framework and requirements of consultation before one looks at each of the forms of consultation prescribed. Consultation has to be real, not formalistic. The principles according to law that govern consultation are:
* It entails the involvement of more than one person, namely the consultant, in this instance the executive (the president) and the consulted, who confer in the sense of applying their minds to consider the pros and cons of a matter;
* It may be formal or informal; oral or in writing (the form does not matter);
* The essence is the communication of ideas on a reciprocal basis;
* It must allow a reasonable opportunity to both sides to communicate effectively and achieve the purpose for which consultation is prescribed;
* It must be seen as an opportunity for the consulted to make real and effective representation;
* For this to happen, consultation must be accommodated at the formative stages of a proposal before the mind of the executive has become unduly fixed;
* The invitation to consult must be communicated and thereafter there must be adequate time for the consulted to advise and adequate time for the consultant (executive) to consider the advice given by the consulted; and
* The mind of the executive must be open and receptive when consultation is sought and received. If the mind is already fixed, then consultation is not genuine.
* The chief justice and the deputy chief justice are the only judicial officers for whose appointment the representatives of the legislature are consulted outside the JSC. The president is required to consult not only with the leader of the party with the majority in parliament, but also with the leader of all parties represented in parliament. The consultation must be as inclusive as possible.
The objective is clear: the whole country, not just a section, is taken along.
In appointing the chief justice (and the deputy chief justice) and, indeed, in exercising any of the authority that is vested in him by the constitution, the president exercises not a personal power but a public and constitutional one. It is public power that he exercises on behalf of the people of SA. He acts as president only when he acts in accordance with the constitution and the law.
In consulting with him, the various opposition leaders also carry forward the wishes and aspirations of those that they represent. Consultation with leaders of political parties ensures that the legislative authority of the republic is heard on the appointment of their chief justice.
Consultation with the JSC is an important constitutional requirement which ensures that the body that advises the president on all judicial appointments is heard on this highest of all judicial appointments.
Consultation with the JSC is not consultation with its leader or some of its members, but with all of its members. The JSC is itself a constitutional body separate from its members. It acts when it is properly constituted and in accordance with its rules and procedures. When any of its members, or indeed all of them, act other than according to the rules and procedures of the JSC, then those actions may be set aside on the basis that the law was not followed.
In order to consult on a candidate, the JSC must make up its mind on the suitability of a candidate and then communicate its opinion to its consultant, the president. Unless it has made up its mind, it will not be possible for the JSC to advise.
How does the JSC make up its mind on the suitability of a candidate for a particular judicial appointment? The JSC has over the years, since its inception in 1994, developed well-established rules and procedures on how it makes up its mind on the suitability of candidates for judicial appointments.
The rules and procedures are as important as the JSC itself, for unless it follows its own rules and procedures, the JSC does not act as the JSC.
In brief, the following are the rules and procedures:
* The JSC announces the available judicial vacancy and invites the public to submit nominations;
* Then any person may nominate a candidate for judicial appointment. The empowering of any person to make a nomination ensures that every South African is given the right to participate in the process at this early stage. The people of SA are brought into the process. No one is disqualified;
* Once the candidates have been nominated, a committee of the JSC short-lists the candidates on behalf of the whole JSC. Any member of the full JSC may insist on a nominated candidate being short-listed. This is yet another rule that ensures inclusivity;
* The names of short-listed candidates are published in the Government Gazette and national newspapers. The public are invited to comment on the short-listed candidates. Again, literally any person may submit a comment to the JSC about any short-listed candidate, yet another important window for continued public participation;
* Thereafter, and after expiry of the period of public comments, the candidates are interviewed in a hearing which is open to the media and the public; and
* Only once all these steps have been traversed does the JSC deliberate and decide on the suitability of a candidate.
Each and every one of the steps is important in the process of the JSC making up its mind. The decision-making power of a juristic body is dependent on the proper procedure being followed for that purpose. This procedure allows for an open and fairly transparent process which is among the best in the world.
Public participation and transparency are evident at every level. When it comes to the appointment of the chief justice, the steps listed above for the JSC are important not only for legality, but also, more importantly, for the legitimacy of the process. The fact of the matter is that when consultation is not genuine, then it is not legal.
In the last appointment of the chief justice, the JSC did not announce the vacancy and invite nominations. Steps (a) and (b) in the JSC procedures did not take place. The public did not nominate candidates. They were not afforded an opportunity to do so. The decision-making process of the JSC was robbed of an important element of legitimacy, that is, public participation at its initial stages. Consequently, the process was, I submit, critically impoverished.
There was understandably public outrage when the process was opened by a presidential nomination. The public rightly felt excluded from participation at inception. The process was so unsatisfactory that "nomination" was confused and conflated with "appointment" not only in the public mind, but also in the vocabulary used by public representatives or spokesmen.
It so happened that the candidate appointed was a worthy and deserving candidate. It was unfortunate that failure to follow procedure created an outcry around his appointment.
South Africa must not allow the process of appointing our highest judicial officer to again be tainted by a lack of proper consultation. We cannot afford the risk of a lack of public support in this field where legitimacy and public accountability are crucial.
Source: Times Live: Phineas M Mojapelo
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