JOINT STATEMENT BY HELEN ZILLE, MOSIUOA LEKOTA AND PATRICIA DE LILLE, LEADERS OF THE DEMOCRATIC ALLIANCE, THE CONGRESS OF THE PEOPLE AND THE INDEPENDENT DEMOCRATS, AUGUST 7 2009
President Zuma must withdraw his nomination for Chief Justice
Section 174 (3) of Chapter 8 of the South African Constitution reads as follows:
"The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal."
This is a critical constitutional requirement and central to it is the phrase: "...after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly".
The idea of consultation is straightforward: it is the necessity that the President elicits and considers the advice of the leaders of all parties represented in the National Assembly before coming to a conclusion about his appointment. Obviously, that consultation is designed, therefore, to inform his decision.
This is borne out by both logic and precedent.
With regard to logic: To announce a candidate and then consult defeats the very purpose of consultation in the first place. It means the President has arrived at a conclusion prior to consulting and the process of consultation will have no effect on his decision - it would be a meaningless exercise. This, quite clearly, is not the intention of Section 174 (3). That section exists to ensure that the President - in an open, consultative and democratic manner - seek out and incorporate the considered opinion of all parties represented in a democratically elected Parliament, before arriving at a decision. Obviously, this is in the interest of best democratic practice.
With regard to precedent: For every other judicial appointment for which the Constitution requires the leaders of parties in the National Assembly to be consulted, since 1994, the Presidency has sought out the opinion of those parties prior to announcing a nominated candidate. This process was followed with regard to the candidates proposed for the Supreme Court of Appeals, earlier this year, and on every relevant occasion in the past.
Yesterday (6 August) the South African Press Association (SAPA) reported that President Zuma had nominated Constitutional Court Judge Sandile Ngcobo to replace Judge Pius Langa, who retires from the position of Chief Justice later this year.
The SAPA report stated that, in explaining his choice, President Zuma had said he had taken the decision "properly" and "objectively". Importantly, it also reports the President as saying: "The fact of the matter is that I have appointed a judge that I believe is capable."
This statement is unequivocal. Quite clearly, in President Zuma's mind, by announcing Judge Sandile Ngcobo as his candidate, he had effectively made the appointment and had no intention of consulting before doing so, as the South African Constitution requires.
We can jointly confirm that none of us were consulted ahead of the President's announcement yesterday.
On hearing the President's announcement yesterday, the Democratic Alliance issued a statement setting out that the President was required by the Constitution to consult and that, as the DA had not yet been consulted, the Party was not prepared to comment.
This morning (7 August), at 9.10am, the Democratic Alliance received a facsimile (traditionally, the manner in which these matters are communicated) from the Presidency requesting our opinion, in terms of Section 174 (3) of the Constitution. Significantly, the facsimile is dated 5 August 2009. The DA's records confirm no facsimile was sent on 5 August and that nothing else was received from the Presidency prior to today's communication.
In other words, only after a statement was issued pointing out this fact that the Constitution required the Presidency to consult, did the Presidency send the relevant communication.
We can also confirm that the President has not consulted the Judicial Service Commission on this matter, as is required by the Constitution.
This is unconstitutional. If the point of consultation is to seek out opinion in order to inform one's decision, it cannot be done after the fact. And it is absolutely apparent, both from President Zuma's comments to the media and by the fact that no communication was received from the Presidency that he had made up his mind on this matter and considered Judge Ngcobo "appointed", before he properly consulted, as required by the Constitution.
That the facsimile was backdated, suggests the Presidency now trying to rectify its mistake by consulting retroactively.
In light of this and the President's failure to properly consult or act in the manner required by the Constitution, it is necessary for him to withdraw his statement and consult properly before arriving at a decision as to who his desired candidate is.
President Zuma has repeatedly given South Africa the assurance that he respects the Constitution, that he wishes to engage the opposition and that he is dedicated to upholding our institutions and ensuring best democratic practice. His attitude to this matter, however, suggests otherwise.
Issued by the Democratic Alliance, COPE and the Independent Democrats
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