The content on this page is not written by Polity.org.za, but is supplied by third parties. This content does not constitute news reporting by Polity.org.za.

On 9th of June, the Judicial Service Commission (JSC) sat to interview 4 candidates to fill the Constitutional Court vacancy left by the retirement of former Chief Justice, Sandile Ngcobo. All four candidates were found to be potentially suitable and their names forwarded to the President for consideration.

As yet, we have received no communication from the President's office initiating the constitutionally required consultation process with leaders of opposition parties about the appointment of the new judge.

According to the Constitution the President must, “as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly” make the appointment.

I have today written to President Zuma to re-state that the Constitution requires proper and meaningful consultation before he decides on an appointment.

In the past, the President has ‘consulted’ at the very last moment, as a formality, when his mind was clearly already made up. He has always sought consultation only on his preferred candidate, which has suggested that his mind has not been open to the possibility of changing his appointment based on the consultation process. This meant that the leaders of opposition parties did not have fair chance to respond or engage with the President about his choice.

All in all, the consultation between the President and leaders of political parties about the appointment of senior judicial vacancies has been a mere fig leaf for doing what the President intended to do from the start, and cannot be regarded as meaningful. My letter to President Zuma today suggests ways in which substantive and proper consultations can take place.

The DA urges President Zuma to accept the value inherent in real consultation. This mechanism seeks to legitimise the appointment process by reaching consensus with the opposition in the decision made. It aims to protect all South Africans from political influence in the highest court in the land by incorporating a measure of oversight and democratic participation. A superficial acknowledgement of consultation does damage to the legitimacy of the appointment process, without which his choice of judges will remain questionable.

To counter this the DA suggests that:

The full candidate short list, and not just the President's preferred candidate, be distributed to all political party leaders that are to be consulted.
A reasonable timeframe should be allowed for submissions on the suitability of candidates. In this case, given that there will be 4 candidates to be vetted, a two week period will be sufficient.
The President should apply his mind to the points raised in the submissions, and be prepared to motivate for his preferred candidate. Formal written responses to points raised by the other parties should be prepared by the Presidency for subsequent personal meetings between leaders of the opposition parties and the President. It is essential to set aside a day for the proper consultative meetings.

In the past, the President has never replied to written submission about judicial appointments, and would not engage in further consultation.

Judicial appointments are one of the most important functions of the President. If he wants the appointments to have credibility, he must consult meaningfully, and with an open mind, as we believe the spirit of the Constitution requires. We hope he will agree to the suggestions for proper consultation that we have outlined.