Yesterday was the first of five days set aside by the Judicial Service Commission (JSC) for its interviews of candidates nominated by the President for the position of Chief Justice left vacant by the retirement of Justice Mogoeng Mogoeng in October 2021.
I write this in the early hours of the morning, troubled by something that kept being said during yesterday’s interview of Justice Mbuyiseli R. Madlanga. Several of the JSC commissioners appeared to labour under the impression that they — the JSC — would at the end of their deliberations on Saturday, make a recommendation to the President about who should be the next Chief Justice.
This strikes me as manifestly odd. But perhaps because we are charting hitherto uncharted territory, this is to be expected. I think a primer or refresher on what the Constitution says in this regard may be necessary.
Section 174(3) regulates the appointment of the Chief Justice. It says, first, that the President “as head of the national executive” makes the appointment. This he does “after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly”.
Ordinarily, this poses no interpretive difficulty. But these are no ordinary times. For, the President nominated more than one candidate for the position. Historically, the President would announce his (this is a historical ‘his’) preferred candidate who would eventually be appointed.
Section 174(3) is broad. It vests the broad executive authority to appoint the Chief Justice in the President. It says that he appoints after consulting the JSC and the leaders of parties represented in the National Assembly. Contrast this with 174(6) which provides that all other judges, other than Constitutional Court judges, the Deputy Chief Justice, and the President and Deputy President of the Supreme Court of Appeal, are appointed “on the advice of” the JSC.
The operative phrase — “on the advice of” — is absent in the case of the Chief Justice. Even Constitutional Court judges are appointed in accordance with an entirely unique procedure, which involves a measure of discretion for the President to decide ultimately whom of the candidates recommended by the JSC he should appoint to the court.
Importantly, the courts have considered (in different circumstances) what the phrases “after consultation” and “in consultation with” mean, and have decided that the former was a lower legal standard than the latter. Put simply, if a provision of law requires a decision to be made “after consultation”, it leaves the door open to the decision-maker’s discretion whereas a decision that must be made “in consultation” requires the consent or agreement of someone other than the decision-maker in order to be valid.
For present purposes, the JSC seems to think that the President has asked it to recommend which of the four candidates he should appoint as the next Chief Justice. Not so. The media release of 17 November 2021 states that the President had “in accordance with section 174(3) of the Constitution, submitted to the Judicial Service Commission … a list of four candidates for consideration for the position of Chief Justice”. It will be recalled that this provision requires some form of consultation with the JSC.
The Constitution does not provide guidance on what this consultation looks like and, in fact, consultation with leaders of parties represented in the National Assembly remains a mystery to all of us mere mortals. Historically, this consultation has taken the form of a public interview, and again, historically, all but one of the candidates for Chief Justice (a lone nominee in each case) have been appointed.
It appears that the JSC has been overzealous (and whomst amongst us has not been?) and has decided that it will decide who the next Chief Justice is. This could not be further from reality. What the President has asked is that the JSC advise him on the suitability of the candidates, not to recommend which candidate he must appoint. And as with all advice, he may simply choose to ignore it.
The obvious pointer to this fact is that the JSC does not have the power to recommend a candidate, nor does it have the corollary power to not recommend a candidate. It is simply there to be consulted. Whatever the outcome of its deliberations on Saturday will be, does not, strictly speaking, matter as a matter of law. The JSC cannot render a decision. The President retains his full discretion to appoint whomever he wishes, provided that he does so after consultation with the JSC and leaders of parties in the National Assembly.
This brings me to the legal implications of the process adopted for this appointment. As mentioned, it is the first of its kind. There was a public call for nominations, followed by a shortlisting process by the panel appointed by the President for that purpose, then there’s the JSC and National Assembly consultation process which will be followed by the appointment.
An unintended consequence of this elaborate process has been that each stage has been given the appearance of legal validity, however mistaken. What happens, for instance, if the JSC decides to only “recommend” (or forward to the President the name of only) one candidate and he appoints someone else? Can that decision be challenged? Some are of the opinion that an appointment that deviates from the JSC’s “recommendation” would be open to challenge on rationality grounds. This of course assumes that the JSC “recommendation” would constitute a decision capable of being reviewed, but the fact that this is a somewhat plausible, if tenuous, argument is concerning. It incorporates into the fairly straightforward provisions of section 174(3) requirements that are simply not in the Constitution and fetters the President’s discretion in ways that was not and is not envisaged by it.
No one really knows that will happen on Saturday, but one truly hopes for the best.
02 February 2022
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