CHIEF JUSTICE: JOINT LETTER TO PRESIDENT ZUMA BY THE DA, COPE, ID AND IFP

The Democratic Alliance, in a joint letter together with the Congress of the People, the Inkatha Freedom Party and the Independent Democrats, has today formally responded to President Zuma, with regard to the procedure followed in his nomination of Justice Sandile Ngcobo for the position of Chief Justice. A copy of the letter follows below.

The President of the Republic of South Africa

Hon JG Zuma

10 August 2009

President Zuma

RE: The nomination of Justice Sandile Ngcobo as Chief Justice.

We write in response to your two facsimiles, sent through to our respective offices on 7 August 2009.

The first facsimile was sent through at 9.10 am, without a cover sheet, and comprised a letter from yourself requesting our opinion on your nomination for the position of Chief Justice - Constitutional Court Judge Sandile Ngcobo - a copy of whose CV you attached. Your letter was dated 5 August 2009.

The second facsimile was sent through at 12pm. It comprised the identical letter and CV but this time followed a cover letter, dated 7 August 2009, and which read as follows:

"The president of the Republic of South Africa, Mr J.D. Zuma intends to appoint Mr Justice Sandile Ngcobo as Chief Justice of SA, please find the attached letter from the President on this regard."

"We would appreciate if we can have your input on the proposed appointment on or before 17 August 2009."

The cover letter was signed by Adv Makhene, your legal advisor.

As you state in your letter, the Constitution requires that you consult the leaders of all political parties represented in the National Assembly, as well as the Judicial Service Commission (JSC) before making the appointment.

The relevant section of the South African Constitution is found in Chapter 8, Section 174 (3), and 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."

In an address to the South African Press Club on 6 August 2009 - before your letter was sent through to the Democratic Alliance and Independent Democrats - you announced your nomination to the media and the public (see here).

In that address you stated:

"I have decided to nominate Justice Sandile Ngcobo as the next Chief Justice since Chief Justice Pius Langa is due to retire. I have requested advice from the Judicial Services Commission and leaders of political parties represented in the National Assembly in this regard."

Subsequent to your address but also on 6 August, the South African Press Association (SAPA) reported that you had nominated Judge Ngcobo and that, in explaining your choice, you stated that you had taken the decision "properly" and "objectively" (see here).

Importantly, it also reports you as saying: "The fact of the matter is that I have appointed a judge that I believe is capable".

Both your address and the subsequent statement attributed to you are significant, for they are both inaccurate and the consequences of that, we believe, are profound.

Our offices and the late facsimiles from your office both confirm that you did not consult all the leaders of the political parties represented in the National Assembly.

We have also confirmed that you did not consult the JSC on this matter prior to your announcement.

Please find attached to this letter a joint statement released by all three parties in this regard (see here).

Put another way, you did not, as you state in your address, "request advice from the Judicial Services Commission and leaders of political parties represented in the National Assembly". And, as a consequence of this, your nomination was not, in our considered opinion, undertaken "properly" or "objectively".

The reason why the South African Constitution requires the President to consult the leaders of all political parties in the National Assembly is clear: The National Assembly consists of 400 public representatives, democratically elected to represent the interests of all South Africans.

As the judiciary is an independent body - an independence epitomised by the position of Chief Justice - it is appropriate that those Members of Parliament be consulted before such an appointment is made. In much the same fashion, it is necessary to consult the JSC, a representative body both of the National Assembly and the justice system more broadly.

Not to consult the members of these institutions would result in the appointment being made entirely at the discretion of the head of the executive; a situation which lends itself to the abuse of power, undermines the Constitutional principle that there be a separation of power between the executive and judiciary and, in practical terms, runs the risk that the Chief Justice and those candidates eligible for the position of Chief Justice might act in a manner designed to find favour with the President.

There is also a practical purpose to this particular Constitutional provision: by consulting widely, one naturally gathers more information and opinion than was initially available.

This information might be critical to the decision at hand. Should one not consult, one might overlook an important fact or insight that may have profound implications. This need not necessarily be the case, but it certainly is a possibility, and as it is the particular process you have followed in this instance which is problematic, we believe it to an important procedural point.

We would like, also, to address the concept of consultation, because we believe it central to this process. Consultation fairly means eliciting and considering the views of particular parties with the purpose of better informing one's decision. In other words, one cannot consult after the fact or retroactively - which is what, for all intents and purposes, your two facsimiles received by our offices on 7 August attempt to do. To seek out the opinion of a party after you have arrived at a conclusion is a meaningless exercise.

The statement attributed to you by SAPA - that you believed you had already "appointed" Justice Ngcobo - and the fact that your communication arrived after your public announcement to this effect, suggests to us, that to provide you with our considered opinion now would fall short of the intended purpose of consultation.

In this regard, we would like to request that you withdraw your public statement, in which you stated "The fact of the matter is that I have appointed a judge that I believe is capable".

This request is far more complex than it appears. For, by publicly stating that you believe you have already appointed Judge Ngcobo to the position of Chief Justice and by failing to consult prior to that announcement, the process is compromised: the public and the media believe you have arrived at a conclusion and, if you wish your final decision to be interpreted as fair and objective, you need to convince them that you have an open mind on the matter.

The ultimate test of such a position is, of course, a public expression that, after consultation, you may alter your decision.

Only by making such a statement does it become plausible to say that the President takes the consultation process required by the Constitution seriously and that you in particular are committed to making the best possible choice after you have sought out all the relevant facts and opinions in this regard.

Sincerely,

P. de Lille, Leader of the Independent Democrats
H. Zille, Leader of the Democratic Alliance
M. Dandala, Parliamentary Leader of the Congress of the People
M. Buthelezi, Leader of the Inkatha Freedom Party

Issued by the Democratic Alliance, August 10 2009

Click here to sign up to receive our free daily headline email newsletter