Way back when, in one of the Public Protector’s crusades against public enterprises minister Pravin Gordhan, she had ordered President Ramaphosa to discipline him. Gordhan sought an interdict against the implementation of the remedial action, with the President joining the effort, presumably to buy himself some time to figure out the how to get out of the political bind he was in. In court, the President advanced an interesting argument.

The Constitution, he said, did not empower him to discipline members of Cabinet. It only empowered him to appoint and dismiss them. It struck most of the legal establishment as an odd argument. How could it be, many lawyers asked, that the President could appoint and dismiss members of Cabinet but could not discipline them?

At first blush, this does seem to be an irrational argument. Even worse, members of the profession pointed to the Nkandla judgment of the Constitutional Court to illustrate its unsoundness. How, they asked, could the Court have instructed President Zuma to reprimand a member of his Cabinet if he didn’t have the power?

The simple answer, of course, is that the Court could have gotten it wrong. It may have proceeded from the premise that the President had the power to do so. That does not mean that the President actually has that power as a matter of law.

Being so steeped in the mortal sin of analogous reasoning as they are, South African lawyers likened the relationship between members of Cabinet and the President to an employment relationship. Of course it is nothing like it but for the argument to make sense, it was assumed that the power to appoint and dismiss necessarily entailed the power to discipline.

This is a plausible argument but it does not really disprove the soundness of an argument which locates the repository of the disciplinary power elsewhere. For instance, the Constitution says members of Cabinet are “accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.” At the level of principle, the National Assembly may itself be the repository of the disciplinary power for the following reasons:

(a) it is its job to hold Cabinet members accountable, to check executive power;
(b) it is from its members that the President appoints all but two ministers; and
(c) it makes perfect sense in the context of the separation of powers.

One does not need to agree with this argument to acknowledge its merits. But to dismiss it offhand as many did betrays the poverty of the South African legal imagination, one which I hope to explore a little further here.

The Judicial Service Commission recently announced that it would hold public interviews for the position of Chief Justice in early February next year. There are four nominees for the post, shortlisted by a panel that was appointed by the President for that purpose. The country has been without a Chief Justice since October 11. Although, actually, since Chief Justice Mogoeng took long leave and retired having not resumed his duties, there hasn’t been a Chief Justice since May.

In the meantime, we have an “acting Chief Justice”. If you read through the Constitution, you will find no mention of an acting Chief Justice nor any provision regulating their appointment. A cursory survey of the law reports suggests that under the new Constitution, and before 2013, the practice of appointing an acting chief justice developed organically and continued as custom. It is not clear how the appointment was made or on what basis.

Pre-Constitution, under the Supreme Court Act of 1959, the State President could appoint an acting chief justice from within the ranks of the Supreme Court, and not just the Appellate Division.
The statute that replaced the Supreme Court Act, the Superior Courts Act of 2013, creates the office of the Acting Chief Justice. It provides that “in the absence of the Chief Justice, or if the office of the Chief Justice is vacant,” the Deputy Chief Justice must “exercise the powers or perform the functions of the Chief Justice, as Acting Chief Justice”. It appears that the assumption of the role is automatic, triggered by either an absence or a vacancy in the office of the Chief Justice.

For some reason, this state of affairs really did not sit well with me. I read a tweet (since deleted) which questioned whether there could be an acting chief justice without an incumbent in the office. “Hmm,” I thought, “good point.” When I read further, I became more unsettled. As one does, I began to ponder the imponderable: what if there was no such a thing as an acting chief justice?

Now, of course this is problematic. But problematic is my raison d’être. For starters, let’s revert to the Constitution. First, it vests the judicial authority of the Republic in ‘the courts’. The courts are to be led by the Chief Justice as ‘the head of the judiciary’. Importantly, the Chief Justice is also a member of the Constitutional Court, alongside the Deputy Chief Justice and nine other judges.

Interestingly under section 175(1), which regulates the appointment of acting judges to the Constitutional Court, the President may appoint someone to act as “an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office is absent” (italics are mine). It then requires that such an acting appointment must be made on the recommendation of the Minister of Justice “with the concurrence of the Chief Justice” and that an acting Deputy Chief Justice must be appointed from the existing judges of the Constitutional Court.

Notice that the Constitution regulates quite explicitly and deliberately the appointment of acting judges of the Constitutional Court including for the role of the Deputy Chief Justice, but never the Chief Justice. That office is not one “of those offices” in section 175(1).

When President Ramaphosa hadn’t appointed anyone to succeed former Chief Justice Mogoeng by October 11, I began to wonder what would happen between that date and the appointment of the new Chief Justice. The answer, as contemplated by the Superior Courts Act, would come from the Office of the Chief Justice. It had announced back in July that Zondo DCJ would now assume the role of ACJ and exercise the powers of the Chief Justice and that seems to have been extended beyond October 2021.

For several reasons, I do not think that the office of Acting Chief Justice can exist as a matter of law. To me, the Superior Courts Act attempts to achieve the impossible.

To start off, the purpose of section 4(2) of the Act appears to be to enable the Deputy Chief Justice to exercise the powers and fulfil the functions of the Chief Justice in the latter’s absence. It is curious why Parliament saw it fit to do this, when — by definition — that is the function of the Deputy Chief Justice, and indeed of all deputies. The upshot of this argument being that the Deputy Chief Justice does not have to “act” in the place of the Chief Justice because he is entitled by virtue of his position (in the latter’s absence) to exercise those powers and do all those things which the Chief Justice himself would ordinarily do.

This many seem like a trivial objection, but I promise that it is not. That Parliament assumed the power to create the office of Acting Chief Justice is also of concern. Nowhere in section 175 does the Constitution vest Parliament with the power to regulate the appointment of acting judges, let alone an acting chief justice. And for good reason. The first is that the President has the discretionary power to appoint the Chief Justice. One would imagine that an acting appointment to the role would equally be as discretionary. The second is that Parliament does not get to legislate wherever and whenever it pleases. The power to make laws is vested in Parliament as a constitutional and not original power. Its contours begin and end where the Constitution determines. It is especially not for Parliament to decide to legislate for another arm of state, given the separation of powers.

Crucially, Parliament’s power to regulate the appointment of an acting chief justice does not seem to be sourced anywhere in the Constitution. The principle of legality guards against this. It requires all public power to be sourced in law. Where no law confers such a power, that power does not exist. To the point, Parliament could not grant itself the power to create and regulate the office of Acting Chief Justice. Such a power would have to come from the same or higher law that created Parliament itself, i.e., the Constitution.

Does the Constitution’s silence on the possibility of an acting chief justice not enable Parliament to legislate for it? No. Where the Constitution empowers Parliament to regulate a matter through legislation, especially in relation to the judiciary, it does so explicitly. For example, section 166(e) empowers Parliament to recognise or establish a court other than a magistrate’s court, the High Court, Supreme Court of Appeal or the Constitutional Court. That is how the labour, competition and tax courts came to be. In addition, Parliament my determine the number of judges of appeal in the Supreme Court of Appeal (section 168(1)) or determine the various Divisions of the High Court (section 169(2)) or even extend the term of office of a Constitutional Court judge (section 176(1)) beyond the prescribed 12 years, through an Act of Parliament.

If that is not enough to convince you that Parliament overstepped its bounds, consider the following. Section 175(1) regulates the appointment of the acting Deputy Chief Justice. Needless to say, the Deputy Chief Justice is an office lower than Chief Justice. The provision requires that an acting appointment be made:

(1) by the President;
(2) on the recommendation of the Minister of Justice, who;
(3) acts in concurrence with the Chief Justice.

In practice, the Chief Justice merely transmits the name of the preferred judge to the Minister, who, in turn transmits it to the President, who then issues a letter of appointment. The Chief Justice is therefore a crucial cog in the acting appointments machinery. But I mention this for another reason.

The Constitution saw it fit to single out, and provide a process for, the appointment of an acting Deputy Chief Justice. It was deliberate. This choice forecloses any other possible process contained in any other law. So too must its deliberate omission of an “acting Chief Justice”. Our constitutional law requires the same.

The principle of subsidiarity as articulated on many occasions by the Constitutional Court, makes this plain. Subsidiarity in law refers to the hierarchical ordering of legal norms, institutions, and remedies.

This ordering requires that, where they exist, primary legal norms must be applied to resolve disputes that fall within their ambit. So too should legal institutions which have primary jurisdiction over those disputes resolve them (e.g. a labour dispute must be adjudicated by the Labour Court and not the High Court). And a court faced with multiple competent remedies must grant the one that ordinarily follows from the resolution of a dispute based on the applicable legal norms.

To illustrate this, where a litigant has a claim for unfair discrimination, such a claim must be brought in terms of the Equality Act which gives effect to the section 9 right not to be unfairly discriminated against and not section 9 itself. Section 9 here serves a subsidiary role: it is available only when the provisions of the Equality Act do not accommodate an equality claim or are challenged for being unconstitutional. The effect is that a litigant cannot sidestep specific legislation in favour of the Constitution (*wink* PAJA *wink*) unless they challenge the legislation as falling foul of the Constitution.

In my mind, there is a further aspect to subsidiarity that is implicated by the mere idea of an acting chief justice. The ordering norms in our legal system is such that the Constitution is right at the top. It establishes other high-order norms and regulates high-order institutions. For instance, Parliament, the President and the superior courts are all regulated by the Constitution, in addition to any additional powers it grants.
Within this hierarchy, the Constitution carves for itself an exclusive role. No legislation can override it. In the context of the judiciary, the hierarchy of institutions places the Constitutional Court at the apex, followed by the Supreme Court of Appeal, and then the High Court, and the Chief Justice at the ‘apex of the apex’ followed by the Deputy Chief Justice.

The Constitution as the ultimate legal norm regulates the appointment of an acting deputy chief justice. The Deputy Chief Justice is a lower office than Chief Justice. This inverts our ordinary understanding of subsidiarity: the ultimate legal norm regulates an office that is lower in the hierarchy but says nothing of the highest office. This means that a lower norm (i.e., Act of Parliament) cannot regulate the appointment of an acting deputy chief justice. The corollary is that an Act of Parliament, being a lower norm than the Constitution, cannot provide for the appointment of an acting chief justice.

Viewed in this way, the Constitution forecloses the possibility of an acting chief justice. It does not contemplate that the office of Chief Justice should ever be vacant that an acting appointment should be made. Where such a vacancy should arise, the Deputy Chief Justice would assume responsibilities for the time being, to the extent permissible, and in the ordinary course. But an Acting Chief Justice is a constitutional impossibility.

There are, I think, legitimate questions to be asked about the Acting Chief Justice’s exercise of constitutional and statutory powers as Acting Chief Justice. As intimated earlier, there is no acting Deputy Chief Justice at the moment because such an appointment requires the concurrence of the Chief Justice, who is not there. Section 174(4) also requires that the President consult with the Chief Justice before appointing any judges to the Constitutional Court, there is no Chief Justice so appointments are stalled until at least March 2022 after one has been appointed.

I am uncertain about what other statutory powers exist out there that require the services of the Chief Justice and do not allow for delegation. But there too, the exercise of those powers by any other judge can earnestly be called into question. There may be administrative and operational requirements which necessitate an acting Chief Justice, but those would be internal to the functioning of the Court and in accordance with its rules (I suspect that’s what pre-2013 acting appointments were for).

Another genuine concern relates to the composition of the JSC. For the first time, the JSC will be chaired by the Deputy President of the Supreme Court of Appeal for its February sitting. Luckily for us, the JSC’s role in the appointment of the Chief Justice is largely advisory and its decision is not binding on the President. However, JSC decisions have been reviewed and set aside in the past on the basis that it was not properly constituted when it took those decisions. I put it no higher.

The lethargy with which both the JSC and the President approach appointments to the Constitutional Court is of serious concern.

I have hoped to illustrate why the practice of acting appointments may have unintended consequences. The tendency among many public office bearers to want to operate in the constitutional grey — when the Constitution is quite literally in black and white — is worrying. So too is the lack of appreciation for the structure and internal logic of the Constitution, which manifests itself in the arrogation of powers by those to whom they have not been granted.

He that hath ears to hear, let him hear.