Four of the Constitutional Court titan judges are set to retire from the bench this October at the completion of their terms. Kate O’Regan, Yvonne Mokgoro, Albie Sachs and Pius Langa; four justices with a reputation for commitment to the values of the Constitution, protecting the separation of powers and fiercely defending the independence of the judiciary. The imminent departure of these four guardians of The Constitution raised a number of important issues. First, and most importantly, is the issue of Chief Justice of the Constitutional Court – who will replace Pius Langa when he retires? Secondly, who will replace the other departing justices and how vulnerable are these judicial appointments to political intervention?

The answer to the first question seemed to be Sandile Ngcobo, when on August 6th 2009 President Jacob Zuma nominated him for the post of Chief Justice. That day opposition parties were said to have welcomed the nomination, despite the fact that Deputy Chief Justice Dikgang Moseneke was overlooked. They welcomed the nomination, it seems, because it effectively removed contentious Western Cape judge John Hlope from the equation. The following day, however, the DA, Cope and the Independent Democrats issued a joint statement pressing President Zuma to withdraw his nomination of Ngcobo to replace Langa as chief justice. Party leaders insist that Zuma failed to consult the National Assembly before coming to a conclusion about his appointment.

It would appear that President Zuma’s conduct the day before, in nominating Ngcobo, was effectively an appointment to the post, and not merely a nomination. Substantiation for this conclusion? The opposition parties point out that when explaining why he chose Ngcobo over Moseneke, Zuma stated that of the two, Ngcobo was the most experienced judge and is quoted as saying “…the fact of the matter is that I have appointed a judge that I believe is capable”, (my emphasis) which decision he said was taken “properly” and “objectively”. The answer to the second question is irrevocably tied to the answer to the second question. That the president appeared to have appointed Ngcobo to the post, without having followed the proper constitutionally-mandated processes indicates that the appointment of judges is likely to be highly susceptible to political intervention.

The opposition parties criticism of Zuma’s actions? They labeled it an “abuse of power” and maintained that he did not consult the National Assembly before coming to a conclusion about his appointment. They claim that while Zuma did communicate with them about the issue, it was only after the announcement was made. Despite the fact that the Presidency attempted to make it clear that this was merely a nomination and not an appointment, and attempted to insist that this was “only the beginning of the constitutional process”, the opposition still maintains that the nomination was unconstitutional, as it ignored the requirement of prior consultation. The announcement, in short, should have happened only after the constitutional process was followed. Thereafter the opposition parties were informed that the president intended to appoint Ngcobo as chief justice, and they were invited to provide input on or before the 17th of August 2009. This, the opposition parties maintain, is not how the Constitution requires that these events should unfold.

According to section 174(3) of the Constitution the President must, in his capacity as head of the national executive, after consulting the Judicial Services Commission and the leaders of political parties represented in the National Assembly, appoint a Chief Justice and Deputy Chief Justice. The duty to consult before a decision is taken is an important facet of participatory and representative democracy. The National Assembly is made up of 400 representatives, who speak for different groups and interests across the South African electorate. It is thus necessary, in terms of the principle of separation of powers (of which the independence of the judiciary is a vital component) to consult both the National Assembly and the JSC before making such a decision as appointing a chief justice. The consequence of ignoring such a duty to consult is that the decision lies within the discretion of the head of the executive, which provides the opportunity for an abuse of power and emasculates the separation of powers that lies at the core of our democracy. Furthermore, the opposition parties noted, there is the risk that the chief justice and eligible candidates might act so as to find favour with the President. In this respect Diakanyo has been quick to point out that “Ngcobo, though a respected judge with an outstanding track record, may be viewed with some suspicion given his dissenting judgment on the matter relating to Zuma and Thint. Of the 11 Constitutional Court judges, he was the only one to rule in Zuma’s favour” and that it is “quite a co-incidence that the same judge who ruled in Zuma’s favour would be the ‘nominee’ for Chief Justice.”

What are the implications of having ignored the duty to consult? The decision that Zuma claimed was taken “properly” and “objectively” will be viewed with serious skepticism. Failure to make provision for the procedures of participatory democracy raises doubts about the legality and fairness of the decision, and in short, as the opposition parties have alleged, raises questions about its constitutionality. There are many reasons for the requirement of consultation contained in section 174(3) of the Constitution. In ensuring that the National Assembly, who represent the people of South Africa and the legislative arm of government and the Judicial Services Commission, who broadly represent the justice system, are consulted. In this respect the executive, legislative and judicial branches of government are to work in conjunction to appoint a chief justice. Although it is eventually the President who makes such appointment, he cannot exclude the other branches of government in reaching his decision.

The consultation process mandated by the Constitution in section 173(4) is what makes an appointment decision “proper” and “objective”, in the sense that consultation provides access to a range of opinions and information that might previously not have been available or apparent to the President, and provides him with the objectivity necessary to make his decision properly. It is only in considering all available information and opinions that a decision can be said to be objective, and it is only in following through with this consultation process and gathering all the necessary information that the decision can be said to have been taken properly.

The effect of the President’s nomination without having consulted as he was required brings into question the principle of legality. This is a broad constitutional principle that governs the use of all public power and is an aspect of the rule of law which is one of the founding values of our constitutional order. The principle of legality insists that the exercise of public power is only legitimate if it is lawful. In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council, the principle of legality was held to mean that a body exercising public power is required to act within the powers lawfully given to it, and in President of the Republic of South Africa v South African Rugby Football Union, the principle necessitated that the holder of the public power must act in good faith and not misconstrue his powers. In the Pharmaceutical Manufacturers Association case Chaskalson noted that it is a requirement of the rule of law that the exercise of public power should not be arbitrary or irrational, and that decisions must be rationally related to the purpose for which the power is given. Thus in order to pass constitutional inspection, the exercise of such power by the executive, and of course, the head of the executive must, at the very least, comply with this requirement. The power given to the President, in his capacity as the head of the executive, is the power to appoint a chief justice, but the power is given on the condition that he consult with the other branches of government before making his decision. Zuma’s decision to nominate Ngcobo, which appeared to be more a decision to appoint than to nominate cannot be said to be an exercise of power within the scope of power given to him by section 174(3) of the Constitution. Nor does it appear to have been taken in good faith. In fact it appears that Zuma has indeed misconstrued the nature of his powers in that his conduct showed an intention to appoint, and once this intended appointment was met with opposition, to make an effort to involve the leaders of the opposition parties and the JSC. Nowhere is there evidence of good faith. Furthermore, the decision is not rationally connected to the purpose for which the power was given. The power to appoint was given to the head of the executive, on the understanding that he should respect the rule of law and uphold the separation of powers which would have been done through a proper consultation process. The purpose of the power is to make an appointment in such a way as to uphold the independence of the judiciary.

The impact on the independence of the judiciary is significant. Such a decision to appoint a chief justice, made in this manner, evidences a blurring of the line between politics and law. Despite the fact that the distinction between politics and law raises many philosophical questions, the fact of the matter is that the importance of a fiercely independent judiciary is undermined. An appointment of a judge, and the appointment of a chief justice should, essentially be a question of law, not politics. It should be a question that asks who the best person for the position is according to criteria laid down by legislation, and not a political question that asks who is best aligned and positioned so as to be politically beneficial. Political placements of judges are unacceptable, as it is inimical to the constitutional requirement that judges do their jobs without fear or favour. Judges must be impartial and independent, and while there is always scope for human error, impartiality and independence is generally well-ensured by following the proper nomination and appointment processes.

So how can this be resolved? The opposition parties call for Zuma to withdraw his nomination of Ngcobo. This is not as simple as it might appear at first glance. If Zuma does so, it is tantamount to his acknowledgement that the process was unsound. In order for the general public and the media to find Zuma’s decision to be taken “objectively” and “properly”, the process of nomination needs to be carried out according to section 174(3), which means that a nomination and a subsequent appointment needs to be made after the necessary consultation. This requires, the opposition parties believe, the President to convince the public that he has “an open mind on the matter”, and the ultimate test, they maintain, involves public expression of the fact that there exists the possibility that the President might change his mind, after consulting the National Assembly and JSC as required.

This is not to say that Ngcobo is not a suitable candidate, nor does it imply that there is someone better suited to the post than he. This is merely to ensure the legitimacy of the decision, on which the very foundation of the principle of separation of powers and thus the independence of the judiciary depends. Only once the process is sound, can it be said that those who are chosen to replace the four exiting judges, and the person appointed to lead the highest court in the land, are the best possible candidates for the job. And only once the process is sound can it be said that political intervention in judicial appointments is at a tolerable minimum. After all, the judiciary is meant not only to uphold the Constitution and apply it without fear or favour, but they are also meant to ensure that the government and those in positions of power are held accountable. Accountable not only to the Constitution, but to the people themselves. And only once the people are certain that judges are chosen legitimately, can they be sure that they will hold the government accountable to their promises.