Extract from the transcript of President Cyril Ramaphosa’s testimony to the Commission of Inquiry into State Capture, 11 August 2021
ADV PAUL PRETORIUS SC: And the term was used, in fact, in the context of, in this case, the centre being the Deployment Committee. But if we may move on. There is one issue that I should raise with you, Mr President, in relation to a meeting of the Deployment Committee of 22 March 2019. You want to look at it. It is in the bundles in front of you but I am just going to summarise what the meeting determined.
The meeting noted that the Judicial Services Commission was considering the filling of vacancies in the judiciary. The Deployment Committee recommended to Justices, two seats to fill vacancies in the Constitutional Court. It recommended a judge to fill a position on the Supreme Court of Appeal and in other capacities as well including Deputy Judge President in a province.
So the question arises is. What is the Committee doing recommending appointments to the judiciary?
PRESIDENT CYRIL RAMAPHOSA: Chairperson, I go back to my earlier explanation that the Deployment Committee particularly in a case like this would play the role of saying there is a vacancy and it often happens when another person was being deployed in government who would normally be your Minister of Justice say: Hey, there are vacancies.
But the Deployment Committee knows that at best all it can ever do to note that, one, that there is a vacancy. Two, that there are certain names that could, you know, be proposed. And having done that, it also knows very well but it is not the appointing structure. And by definition, by the way our constitution works it could never ever have a judge appointed because that is a process that is done through the JSC and what comes out of the JSC is the will of those people who sits on the JSC.
But what that Deployment Committee has often insisted on, acting Chief Justice, is that we need to have a gender balance. We need to have a demographic balance. And that message often, you know, is raised more regularly and more pointedly by the African National Congress. And I can say as a deployees of the ANC that the
fact that today we have got so many female judicial officers is because the ANC – and you could say, you know, through various structures, has been insisting - it could be the ANC Women’s League, it could be the ANC itself and so on, has been insisting that we must have more female judicial officers but we must also have a balance.
There must be a demographic balance. We must have people of Indian origin, Coloured, Africans and Whites. And that has been, without any doubt or equivocation, been the insistence of the party that I lead. And in - so in that regard I think we should look at it positively. Positively because it has really insisted on this approach.
To the extent that people want to look at it negatively, you need to be alive to the fact that, if anything, it was just identification of names and being aware but in the end, the ANC does not decide and cannot decide.
And I would be the first to say you cannot as the ANC choose judges. And that is why it was the ANC itself that insisted that the constitution should be crafted in the way that it is, to be able to have that level of nonpartisanship, independent and you must have all those people who sit on the JSC. And it is something that I feel strongly about.
CHAIRPERSON RAYMOND ZONDO DCJ: Well, there is the question, Mr
President, whether if the ANC or the Deployment Committee – maybe let us say the ANC wants to influence the appointment of certain people within government whether it should not do that transparently.
PRESIDENT RAMAPHOSA: H’m.
CHAIRPERSON: So that everybody knows rather than do it in some office somewhere where there is no transparency and you end up with, in the case of a Minister, a Minister who may be coming to an interview to interview candidates for a certain position on the basis that the Deployment Committee has said it should be so and so and yet there are a number of candidates.
But apart from the Minister, nobody else knows that there is this influence that has been given to the Minister that it should be so and so. And so there is the questions whether if they want to influence appointments, they should not do it transparently as opposed to doing it ...[intervenes]
PRESIDENT RAMAPHOSA: In hiding.
CHAIRPERSON: ...in this way. [laughs]
PRESIDENT RAMAPHOSA: [laughs]
CHAIRPERSON: Maybe I should not describe what this
way is. PRESIDENT RAMAPHOSA: [laughs]
CHAIRPERSON: But in this way. I mean, if you talk about what Mr Pretorius was referring to where there is – were discussing candidates for various courts as judges. You have in the JSC members of Parliament ...[intervenes] PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: ...who are members of the ANC.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: And one would have thought that the
ANC would take the position that says members of 20 Parliament who are members of the ANC know what the ANC stands for.
PRESIDENT RAMAPHOSA: H’m.
CHAIRPERSON: Know what the ANC would like to see
happen in the judiciary, those issues of demographics and whatever, whatever. So in making their own contribution in a transparent way because the JSC process is transparent.
PRESIDENT RAMAPHOSA: H’m.
CHAIRPERSON: They will be doing so knowing what the ANC would like to see.
PRESIDENT RAMAPHOSA: Sure.
CHAIRPERSON: And therefore you do not have this situation where in some office in Luthuli House the candidates for a judge is being discussed by people whose views will not be subjected to public scrutiny as would happen with members of the JSC. And candidates will not get a chance to defend themselves or say: But you know, I should be appointed because of A, B, C, D. When the Deployment Committee said: No, no. We think so and so is the right one.
PRESIDENT RAMAPHOSA: Chairperson, I would – I think it is a suggestion that in a number of instances does get implemented and I would cite one recent example where, for instance, the officials of the ANC decided that a particular person should be employed as – and I can speak about it now – as Speaker of Parliament and the caucus of the ANC then meets and then decides that yes we want to propose this person. So that is transparent.
The one that may not have been transparent is where the officials decided. [laughs] It could only be transparent if after the officials have been taken the decision and publicise it that we are going to suggest that to caucus that this person should be nominated.
I think it is an interesting proposition which, as I said, does get implemented at times. And I recall, and I will recite another example, I recall the question that was put to me when we had to appoint an NDPP of NPA and the question – I decided as President that I wanted to open it up to make it transparent and to have an interview process and nominations should be made which was quite new but it happened and maybe I will talk about it later.
It was a process where names were being put forward. And the question was asked of me whether I as President want to single out one person and I held back and I said it might be a difficult one because let me let the process unfold because in the end I have to make the call or the decision.
So it is a proposition that is interesting where to remove this shroud of secrecy. Maybe the party should be able to show its hand that this is how we would like to do it. And I guess it happens in other environments worldwide. Because in the end, political parties do have their preferences when it comes to various positions.
And I know that in the US, for instance, you know parties do say: We prefer this one as the Chief Justice and this one as a Judge of Appeal and all that. And we do that. And maybe we need to grow up and see how best the democratic process can mature on that level.
CHAIRPERSON: Thank you. Mr Pretorius.
ADV PRETORIUS SC: Just to refer, finally, back to the meeting of the 22nd of March of the Deployment Committee in relation to appointments to the judiciary. This is not a case, Mr President, of the party recommending or even insisting that certain principles be followed in the composition of the judiciary. This is a case where the Committee actually recommended named judges which is something different, or candidates for the bench. And in the context of the policy of democratic centralism, clearly, the recommendation of a particular name for a particular post must have been intended to influence the decision of the Judicial Service Committee. Otherwise, what would be the point?
These recommendation would be clearly and probably communicated to the members of the Judicial 20 Service Committee in order to influence them in their decision.
PRESIDENT RAMAPHOSA: Well, I would say – I would go back to where I said – where I say the real safety for the processes that the Deployment Committee is not the appointing entity. You may well say influence. Yes, political party will always seek to influence precisely what you were also saying. That maybe if you want to influence, do it transparently. And I would buy into that. Do it openly and say we support this one and that one.
And in the end, even the public does get involved sometimes when there is, you know, nominations for judges or top positions. They will say this one is preferable. And when that person is not been appointed there is an outcry that: Ah, they left out this one. And so on. So influence, yes, but appointment, no. Because
in the end, the ANC Deployment Committee is not the appointing structure and whatever the appointing structure is including the President when finally names, as process dictates, names are presented to the President, the President will also take into account the processes that took place in the Judicial Services Commission.
So I can hear Mr Pretorius is going very hard on this issue of influence but I would like to say whatever the influence would be it would always be tempered by the inability of the ANC Deployment Committee to appoint. It does not appoint and should not appoint.
ADV PRETORIUS SC: H’m.
CHAIRPERSON: Of course, what is quite obvious,
Mr President. When we discussed this, is that the
influence of the Deployment Committee may be quite weighty particularly on those members of the JSC who are ANC MP’s and they might not want to go against such an important structure of the ANC if it has already indicated its preference. And that is – that maybe unsatisfactory because...
Well, I do not know at what stage that recommendation was made in that case but if it is made before the interviews for example, it may well be that it would have the effect that some ANC members who are MP’s who are in the JSC might be unduly inclined towards a particular candidate in circumstances where they should be quite open, you know.
So I am just saying. It is one thing to say the Deployment Committee is not the appointing authority.,
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: But the reality might be that once the
Deployment Committee has made it preference clear, already a member – maybe I should say a disciplined member of the ANC, you know, would be inclined to put a lot of weight on that recommendation ...[intervenes]
PRESIDENT RAMAPHOSA: H’m.
CHAIRPERSON: ...where he or she should approach the
interviews in a very openminded manner.
PRESIDENT RAMAPHOSA: Chairperson, I think we must accept that we live in a world where lobbying takes place for placement of people anywhere where lobbying – there is sometimes lobby groups, lobbyist and all that. People who for one reason or other would prefer certain persons or candidates to be placed in certain positions. That happens all over the world all the time.
It – you know in a low position or a high-placed position. So if one accepts that there will be people and groups of people who will articulate their preferences. It should not be seen as something that is evil or wrong. If it is meant to achieve illegal, unlawful and, then there is a
problem.
But if it is meant that there should names that can be put forward for instance to achieve a particular purpose like we want more women in the judiciary. And we know this Gloria and that Gloria and that person who should be put forward, I do not necessarily think that there is anything wrong with that.
Because otherwise how do we achieve the transformation that we seek to achieve? Will it happen of its own volution or how will it happen? It will happen
because people are lobbying or articulating those positions. And I would like to suggest that unless the proposition that has been put forward is that this resulted in unlawfulness and something completely wrong and should not happen at all, then I will take the point.
But the proposition you put forward that maybe it should happen transparently appeals to me because then it is no longer done in the dark corners if one wants to say the Committee operates in those, it is done openly and transparently. And it is certainly something that I would like to take up for debate and discussion in my party because to me it makes a lot of sense.
CHAIRPERSON: No, I think the – what was put to you is more in the context of there being no transparency. PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: So if there is no transparency, this
lobbying or whatever is happening secretly. [laughs] PRESIDENT RAMAPHOSA: Yes, yes.
CHAIRPERSON: But where it is transparent
...[intervenes]
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: ...so it can be debated.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: It can be looked at. It can be
20 scrutinised.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: That might be – that might stand on a
different footing, you know, where there is transparency. I think part of the problem is where it is – maybe secret is the right word, I am not sure.
PRESIDENT RAMAPHOSA: Yes. CHAIRPERSON: Ja, ja, ja.
PRESIDENT RAMAPHOSA: Well, you and I have never
agreed on anything acting Chief Justice. On this one we agree. [laughs]
CHAIRPERSON: [laughs] Thank you, Mr President.
Mr Pretorius.
ADV PRETORIUS SC: In your recent answer, Mr
President, you raised the issue of international practise. It may well be for example – the example that springs to mind is the appointment of the Supreme Court in the United States of America.
PRESIDENT RAMAPHOSA: Yes.
ADV PRETORIUS SC: But the point, I think, is that our
constitution demands the highest standards. PRESIDENT RAMAPHOSA: Indeed.
ADV PRETORIUS SC: Even compared to international
jurisdiction.
PRESIDENT RAMAPHOSA: Indeed, indeed. ADV PRETORIUS SC: And it is those standards that we
apply here. But in relation to constitutionality of the
deployment policy and practise, the Chair will decide. It is a legal question, ultimately, but I am not sure it should be debated. But would you concede that loyalty to the party or party membership should never be a determinant or determining factor in appointment of public office? PRESIDENT RAMAPHOSA: Yes, I would say that. ADV PRETORIUS SC: Right.
PRESIDENT RAMAPHOSA: And even the decision that
was taken by the party at its conference was that we should lay more emphases and capacity, professionalism and also non-partisanship because that is the best way any civil servant would be able to serve the people of South Africa. So, yes, I would.
***
Extract from the transcript of President Cyril Ramaphosa’s testimony to the Commission of Inquiry into State Capture, 12 August 2021
ADV PRETORIUS SC: I would like to move on to a new topic, please, Mr President and Chair. First to go back to an item raised by you, Chair, in relation to the Judicial Service Committee agenda.
CHAIRPERSON: H’m.
ADV PRETORIUS SC: And Commission and the activities of the Deployment Committee in making recommendations and the timing of those events.
CHAIRPERSON: H’m, h’m.
ADV PRETORIUS SC: I am told by our researcher who
has been assisting me, Chair, that the JSC’s Screening Committee in 2019, January 29 compiled a shortlist of possible appointments to various positions in the judiciary. The Deployment Committee met in this regard and made its own recommendations on the 22nd of March 2019 after the shortlist was compiled.
And the interviews of the Judicial Service Committee occurred in April 2019. So there was this shortlist in January. The Deployment Committee meeting recommended judges in March and the interviews took place in April 2019. That is just the timeline.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: Yes. In previous sessions, Mr President, I cannot remember whether involving including the one 20 where you appears but I think when Mr Mantashe appeared, this was touched upon. I have gained the impression, I think from Mr Mantashe’s evidence, that while the Deployment Committee does get involved in recommending, I think he put it like that too, names for – of people to be considered for appointment to government.
I gained the impression that the issue of judges does not go to the Deployment Committee. Now I may have misunderstood but that certainly the impression I have got. So I was a little alarmed when I heard that there was a case where it happened. [laughs]
PRESIDENT RAMAPHOSA: [laughs]
CHAIRPERSON: Now one gets concerned because maybe some of the candidates or judges because of their existing at the time before they are appointed as judges, existing relationship with the ruling party might get to know for example that the Deployment or that party supports them. I do not know.
PRESIDENT RAMAPHOSA: [laughs]
CHAIRPERSON: And one would not like, you know, any issues such as factionalism that one might see in political parties get into the judiciary. So I am concerned about that, you know. So, has the party itself taken a position that even those who wish to be judges the – or at least maybe some of them, or they will – the Deployment Committee will deal with who should be appointed or who should not? Or was this just an exception? Was it something that should not have happened but did happen?
PRESIDENT RAMAPHOSA: [laughs]
CHAIRPERSON: [laughs]
PRESIDENT RAMAPHOSA: Chairperson, I think I would like you to look at this in a positive light.
CHAIRPERSON: H’m.
PRESIDENT RAMAPHOSA: With a positive spirit.
CHAIRPERSON: H’m.
PRESIDENT RAMAPHOSA: The governing party’s agenda is to transform our country from the horrible past that it was and to transform it wholly and completely and to ensure that various institutions, not only Parliament or Executive, various institutions are so representative of the demographics of our country.
And I want to hasten to add that without the governing party’s initiatives in this regard, many of the transformative processes that we have today in our country would not be there. Quite frankly, they would not. Many people will deny this but that is a fact.
The governing party has led the process of transformation and that includes its own views on the transformation of the judiciary. Either to, we had a wholly untransformed judiciary and it is the governing party’s insistence and in latter days, the issue I have dealt with
yesterday of having women in the judiciary, has been an ongoing insistence by the governing party.
Now the best way for the governing party to be able to engender this transformation has been yes to discuss like I would say any other institution. And I know yesterday somebody was saying you know there are even lawyers’ bodies and attorneys’ bodies and advocates’ bodies who when even judges are supposed to be presented or nominated, they themselves nominate.
They put names forward and they have views including various bodies even not legal fraternity entities. So that is the lobbying processes. And as I have said yesterday, lobbying happens all the time. And similarly, for an institution like the governing party to now have a situation where its own views, its own proposals are now shifted aside the way it is told that you may not do it, I think would be going against the grain of what happens generally in society because in that case it would no different.
Of course, his voice would have a little bit more weight but nonetheless it also needs to have its voice heard. And I did say yesterday that the safety with all this is that in the end the governing party is not the appointing party. It is not. It may well have a bearing but I was to say I know of no judicial officers who have relationships with the governing party.
And in fact, I would say the judicial officers should not have a relationship with the governing party. Even how they vote, I do not want to know how they vote. But in the end, it is – the governing body must play a role in further transforming our judiciary and bringing in more women, bringing in more black people. By black people I mean the full gambit of Black, Coloured, Indian and African.
So the influence that it has, it is tempered by the appointment of the Judicial Services Commission. Now yesterday on the tea break we even reflected that some of the – even the suggestions that the governing party has had have actually at times been pushed aside and the JSC has gone ahead to appoint people who the governing party did not – who – ja, who the governing party would possible have wanted. It has gone ahead to appoint other people.
So that is why I am saying, acting Chief Justice, I would like to implore you to look at it in a positive light rather than in a negative light. I do not believe that it does the harm that many people would think it does. And it happens all over the world. I mean, governing parties do make proposals as to whether finally those people are appointed, it is the appointing authority.
And the good thing as – I think – I do not know whether it was – yes, it was Mr Pretorius who said our constitution sets up a much higher bar, much better. And I once heard a chief justice in the US saying that the South African constitution, they say the best but one of the best. That is what they seem to have said.
So the bar for us is higher. So the influence, even of the governing party, would you know be almost impossible to reach that bar.
CHAIRPERSON: Ja-no, I think that one thing that needs
to be made clear is that the process for the appointment of judges ...[intervenes]
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: ...enables anybody and everybody who
wishes to comment on any candidate to send comments to the JSC.
PRESIDENT RAMAPHOSA: That is true.
CHAIRPERSON: To say I think this candidate is suitable, this one I do not think is suitable, this one has got
challenges or whatever. That is how transparent our
process is.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: And in that context, there is no provision that says the ruling party should not send comments.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: You know. Anybody and everybody and any organisation may do so, you know. It may well be that where those comments are sent – we go back to the issue of transparency – are sent transparently to the JSC.
PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: Then they get subjected to scrutiny in a public forum at the interviews where as if they are not send transparently then there is – there may be a problem. PRESIDENT RAMAPHOSA: Yes.
CHAIRPERSON: Ja, okay.
PRESIDENT RAMAPHOSA: Okay.
CHAIRPERSON: Mr Pretorius.
ADV PRETORIUS SC: Yes. I am just referring back for clarity to the provisions of Section 174 of the constitution which enjoins you, Mr President, to appoint the judges of the Constitutional Court. PRESIDENT RAMAPHOSA: Yes.
ADV PRETORIUS SC: And then to appoint all other
members of the judiciary on the advice of the Judicial Service Commission.
PRESIDENT RAMAPHOSA: Yes.
ADV PRETORIUS SC: So you do have that part. But here is a distinction, is there not, between governing party making policy statements to guide organs of state as the ruling party or the governing party?
A distinction between that situation and the Judicial Service Commission receiving recommendations of particular persons, named persons from the Deployment Committee comprising of very senior government officials particularly in the context of the government expressly saying we must – the governing party saying we control the leaders of power and we have a system of democratic centralism.
So there is a degree of authority that comes from, as the Chair has pointed out, that comes from the judicial – from the Deployment Committee to naming judges, not implementing, or advising on policies of transformation but naming particular individuals. Is that not a problem?
PRESIDENT RAMAPHOSA: I revert back to what I said
that the safeguard in all this is that the governing party is not the appointing party or entity. And I want to repeat. There have been times where the governing party would have wanted a particular candidate and that candidate in the end was not appointed and a different one was.
And to me that just shows the robustness of this whole process because yes in a way it shows a preference but the preference in the end is not the appointed person or official and there are many other entities that would show their own preferences. It is possible that to say a COSATU which is a fairly powerful organisation state its preference but in the end it is just a preference. It is not the appointer of those people.
So I guess maybe we differ on that but I differ advisedly in saying there is a safeguard and I think the drafters of the constitution has given us that wonderful safeguard but in the end the appointment of judges will never be the terrain or the responsibility by a governing party but it will be by another institution.
CHAIRPERSON: Of course it is also true, Mr President.
We all know that within the structure of the JSC there would be quite a number of members of the JSC who come from the ruling party and therefore can be said to know what the ruling party stands for and what it would like to
achieve in terms of transformation. I just mention that
because, one, there would be a number of MP’s who come from Parliament who are members of the ruling party. The Minister of Justice was party of the Judicial
Service Commission and would probably all the time be a member of the ANC. So, but I am just mentioning that there are those other people as well who would be expected to seek to look at the – at what needs to be done to achieve a judiciary that is ...[intervenes]
PRESIDENT RAMAPHOSA: Transformation. CHAIRPERSON: ...transformed. Yes.
PRESIDENT RAMAPHOSA: Ja.
CHAIRPERSON: Both in terms of race and gender. PRESIDENT RAMAPHOSA: Yes, indeed, Chair. CHAIRPERSON: Ja, ja.
PRESIDENT RAMAPHOSA: Chair, yesterday you made a proposition which I responded to quite warmly when you said: You know what, we do should be underpinned by transparency. And I would like to, once again, say yes. To me that is a rather wonderful and positive proposition which obviously needs to be looked at.
CHAIRPERSON: Ja.
PRESIDENT RAMAPHOSA: Because we are not going to be able to diverse if one can use that, any political party, be it the governing party or the opposition or any other from expressing its preference. I do not think that is going to happen but if we say having done so be transparent so that it never gets seen as being underhand or happening in dark corners.
And by the way, on the Judicial Services Committee or Commission, there sits other parties as well
and those parties will invariable also discuss
...[intervenes]
CHAIRPERSON: Yes.
PRESIDENT RAMAPHOSA: ...amongst them their own
structures ...[intervenes]
CHAIRPERSON: Yes.
PRESIDENT RAMAPHOSA: ...who they believe would be 20 best placed.
CHAIRPERSON: Yes, yes.
PRESIDENT RAMAPHOSA: And so, they will also, and this is, you know, how politics works, they will come with their own mandates and thoughts and put them forward. And in the end, it is really that contestation and... So I do not think we should say the governing party should not have structures that will deal with the preferences that it can put forward.
ENDS
