According to its resolutions made public immediately after it met on 20 August 2011, the Judicial Service Commission has been busy again. One of its resolutions requires further scrutiny and assessment. It reads that:

"The JSC deliberated on whether it could call for further nominations other than that made by the President, and resolved by a majority that it is neither permissible nor desirable nor to do so."

This resolution, it should be noted, is a decision of the majority of the JSC, unlike the other resolutions passed to attempt, somewhat forlornly, to facilitate the process of consulting on the appointment of our next chief justice, and on the suitability of the candidate that the president has already picked prior to the start of the process.

Putting this resolution into its constitutional context is a good starting point. Section 174(3) of the Constitution makes it clear that the president is supposed to appoint a new chief justice "after consulting" with the JSC and the leaders of the various political parties which are represented in the National Assembly.

This consultation process takes place in the context of the foundational values which inform our new inclusive democracy under the rule of law. Relevant for present purposes are the notions of "a multi-party system of democratic government, to ensure accountability, responsiveness and openness". These words come from section 1 of the Constitution.

The majority of the JSC has, in its wisdom, decided that one candidate for appointment to the powerful position of head of the judiciary will do in our open, democratic and multi-party system. This is patently an untenable and unconstitutional attitude to adopt. There is nothing in the Constitution that precludes anyone from nominating a candidate.

The "one horse" approach drains all meaning from the notion that the appointment is made "after consulting" with the body and persons concerned while ensuring that the process laid down is carried out in an accountable fashion that is responsive to the need of ordinary folk, by finding the best chief justice available.

The JSC is a body given two solemn tasks by the Constitution. The main one is to identify and recommend suitably qualified fit and proper persons for judicial office and, subsidiary to that, is the maintenance of discipline among the ranks of the judiciary.

The majority in the JSC are political appointees, and most of those in "the majority" are appointees of the president, the state and the ANC. It is significant that the resolution was made, after some hours of deliberation, but still without reaching consensus. Thus the term "by a majority" is probably code for what so often happens in the machinations of the JSC. There is a well established caucus of politically aligned cadres in the JSC.

These cadres are naturally loyal to the ANC and are obliged to toe the party line and to promote its national democratic revolution. Hegemonic control of all the levers of power in society is one of the main aims of this agenda.

An insight into the thinking of a JSC presidential appointee, Adv Dumisa Ntsebeza SC, was given when a long and rambling email written by him to Advocates for Transformation came into the public domain. He made it clear that the Deputy Chief Justice was his preferred candidate, but that it was politically expedient to simply fall in line with the wishes of the president by toeing the line on the preferred candidate already announced: Mogoeng Mogoeng.

The president's own thinking in relation to appointments of this kind was revealed in his 8 January speech earlier this year. This is what he said on that occasion:

"We reiterate what we said in our 2007 Strategy and Tactics document that we place a high premium on the involvement of our cadres in all centres of power. ANC cadres have a responsibility to promote progressive traditions within the intellectual community, which includes our universities and the media. We also need their presence and involvement in key strategic positions in the State as well as the private sector, and will continue strategic deployments in this regard."

In a parliamentary committee set up to consider the new regulations relating to judges, embarrassed looks and guilty glances were exchanged when the presidential utterance quoted above came up in the deliberations and the question was raised as to whether "all centres of power" includes the judiciary. The president himself has never addressed this properly, but has in the past been critical of the independence of the judiciary because he does not seem to appreciate that the law means what, in the final analysis, the Constitutional Court says it means, not what the executive and legislature would like it to mean.

His recent speech at the Access to Justice Conference again illustrated his view that the will of the executive should be regarded as paramount. This would be the case if the hegemony of the national democratic revolution were attained. In fact and in law, the will of the executive is constrained by what the Constitution allows. This is because conduct inconsistent with the Constitution can be struck down as invalid by the courts in accordance with the provisions of its section 2.

It is usually the case that decisions taken "by a majority" in the JSC are those where the cadres come up against the lawyers and unaligned members of the JSC who make an honest attempt to interpret and apply the Constitution. The cadres simply do the bidding of Luthuli House, as Ntsebeza SC has indicated he will do when (or if) he is consulted about the fitness of the president's nominee for the highest judicial office in the land.

It is plainly anti-democratic to disallow the nomination of other candidates, and the JSC's refusal to do so undermines the whole consultation process envisaged in the Constitution.

Meaningful consultation over the merits and demerits of a single candidate is a somewhat sterile exercise, especially when that candidate is said to be the fourth choice of the president, with those picked ahead of him refusing to accept nomination for whatever reasons.

Simply because the term "after consultation" does not envisage the reaching of consensus on a candidate, it is important for the nation that the process be seen to be conducted in a bona fide and open fashion with the opportunity to introduce fresh ideas, perspectives and candidates to a president who brings an open mind to the process, with a view to finding the best available person for the chief justice post.

The courts have accepted a meaning for the term "consultation" as it is used in section 174(3): "‘consultation' in its normal sense, without reference to the context in which it is used, denotes a deliberate getting together of more than one person or party (also indicative of the prefix ‘con-‘) in a situation of conferring with each other where minds are applied to weigh and consider together the pro's and cons of a matter by discussion or debate"

The matter for discussion here is the appointment of a new chief justice from the pool of legal talent now available; it is not the merits or demerits of a lone particular "preferred candidate" pre-selected, without the benefit of any proper consultation, and in a manner so lacking in openness that it is calculated to deprive the process of the required bona fide interaction.

The cart-before-the-single-dead-horse approach of the president and the majority of the JSC is indeed likely to thwart the true purpose of the process. The country and its highest court will be the poorer for this.

Paul Hoffman SC is a director of the Institute for Accountability in Southern Africa (www.ifaisa.org)

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