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We have today received from President Zuma a response to our joint letter opposing the process followed by the President before announcing his preferred candidate for the position of Chief Justice. It remains our considered opinion that the President failed to properly consult as required by the Constitution. It is quite clear that he made up his mind before consulting and thus the advice of opposition leaders will not be properly considered.

In fact, whether or not the President's personal intention was to undermine the Constitution is neither here nor there; the consequence of the Presidency's actions in this regard has had that effect.

(A copy of the President's response is available on request.)

The President's response ignores the substantive issues we raised in our letter and attempts to mask his true intent behind superficiality and technicalities. This suggests a disdain for the Constitution in general and the particular provision which concerns the appointment of the Chief Justice, which is designed to ensure that such decision is not made solely at the discretion of the Head of the Executive.

This habit - the smoothing over of issues of substance with generic rhetoric - is unfortunately becoming a defining characteristic of the way in which the President engages with civil society and the opposition.There is a clear intention to avoid real debate on substantive issues; and where critical and definitive points of contention exist, increasingly, the President's response is marked by vagaries and misdirection. In this respect we believe his letter is disingenuous and ignores the key points we made.

We believe the following points are problematic:

The President states that, in announcing his preferred candidate, he had said the nomination "was subject to advice from the Judicial Service Commission and leaders of political parties represented in the National Assembly". In fact, this is false. What he said was: "I have requested advice from the Judicial Services Commission and leaders of political parties represented in the National Assembly in this regard" and that the decision had been made "properly". But he had done no such thing. That advice was only sought a day later, after the fact. The process had not been undertaken properly.
The President states that "it is common cause that you first nominate, and then open the consultative process". This is wrong in two respects. First, by nominating just one candidate, the President reduces the scope of any advice he may receive (which is to the detriment of the process); second, the notion of nominating a preferred candidate is well within the President's rights, but it has nothing to do with what the Constitution requires and the fact that the Presidency stated it was not willing to withdraw that nomination suggests the outcome had been determined prior to consulting.
The President states, "Please rest assured that I have not appointed a new Chief Justice, nor have I taken a final decision on whom to appoint as the new Chief Justice..." Again, this stands in stark contrast to the facts. In response to our previous joint statement Presidency spokesperson Vincent Magwenya said that "We (the Presidency) cannot withdraw (the nomination). The (opposition) parties should advise... and engage the president on the nominee." If the President's preferred candidate could not be withdrawn, then his mind was not open to the advice he (retroactively) sought, and the consultation process compromised.

The real victim in this whole saga is the President's preferred candidate, Justice Sandile Ngcobo, who is by all accounts an able candidate and certainly one worthy of consideration for the position. And yet, because the President has undermined the process surrounding the appointment to the position of Chief Justice, his nomination has been tainted in turn.

If President Zuma really is committed to the Constitution and to ensuring its intent is made reality, he cannot continue to whitewash this government's indiscretions with empty gestures. There can be little doubt the Presidency never had any intention of consulting properly and its attitude in this regard is to the detriment of that office in particular and the South African public more broadly.