MBEKEZELI BENJAMIN: Judicial appointment delays — a potential for constitutional delinquency

This week marks a month since Mandisa Maya was interviewed for the position of deputy chief justice of SA. Since then, there has been no word from the presidency on whether she is to be appointed and, importantly, if so when she will take up office. This speaks to a wider concern about the president’s slow confirmation of judicial appointments and communicating them publicly when he has. In doing so, he is undermining the constitution.

Section 174 of the constitution gives the president the power to appoint judges. The president has three levels of discretion when it comes to judicial appointments. The first, widest discretion is in terms of section 174(3) and relates to the top four positions in the judiciary: chief justice, deputy chief justice, president of the Supreme Court of Appeal and their deputy. This means the president may nominate to the position any judge who is fit and proper and appropriately qualified.

Upon nomination, the Judicial Service Commission (JSC) must interview and give its views on that candidate (for the top two posts, leaders of political parties represented in parliament also have a say). Significantly, the president is not bound by these views (though, arguably, should the JSC raise serious concerns about a candidate, it would be irrational for the president to still appoint them).

The second, more restricted discretion, is in terms of section 174(4) and relates to appointments of justices of the Constitutional Court. Here, the JSC gives the president three more names than are required to fill a vacancy. For one vacancy, a minimum of four names is therefore required, for two, five names and so on. Here, the president has no power to nominate and is required to choose the required number of names from the list the JSC gives him.

On the third level of discretion, in terms of section 174(6), the president hardly has any discretion. This relates to any judge below the level of the apex court. That is, the Supreme Court of Appeal, the High Court and specialist courts like the Labour and Electoral courts. Here the president must appoint the names recommended by the JSC and cannot deviate from that recommendation.

‘Diligently and without delay’

Considering all these options, and for the sake of good governance and proper execution of his constitutional duties, it is crucial that the president confirm the judicial appointment in each situation as soon as possible. This is particularly so in light of section 237 of the constitution, which requires all constitutional obligations (including those of the president relating to the appointment of judges, as set out above) to be “performed diligently and without delay”.

There is a particularly serious need for the president to act quickly to confirm judicial appointments and communicate them publicly. This is because the exact timing of a judicial appointment not only has implications for the court concerned, but also for the professional affairs of that candidate.

A JSC-mandated judicial conduct tribunal is now investigating the exact timing of when Gauteng judge Nana Makhubele was appointed. In a media statement released in November 2017, then president Jacob Zuma proclaimed her appointment to be effective from January 1 2018. President Cyril Ramaphosa is alleged to have changed this start date to June 1 2018. This was not communicated publicly.

Between January 1 and March 16 2018, Makhubele allegedly sat as chair of the board of a state-owned company. If true and her original appointment date was valid, this would be in breach of not only judicial ethics, but also the law, as judges may not hold any other office of profit from anything other than their judicial office. A guilty finding by the tribunal could give rise to the most serious consequence for a judge: impeachment and removal from office. 

Another reason it is crucial for the president to confirm judicial appointments and communicate them timeously is a practical one. It takes far too long for our courts to adjudicate cases. A key cause of this is that we have too few judges — about 254 judicial posts for a population of 60-million people (below the average in comparable emerging-market economies such as Kenya, Mexico and Turkey). As a result, we are increasingly seeing businesses taking their legal disputes to private arbitration instead of the courts, which impoverishes our commercial law. 

The justice department is now rationalising or “right sizing” the judiciary, including matching the judges needed with the population. In the meantime, we need all current posts filled, and filled timeously. It helps no-one to have judicial posts budgeted for and funded, but unfilled for months. It is no excuse to say acting judges can step in and fill the gaps when there are candidates already recommended.

The final, more frustrating aspect of the delays in the president confirming judicial appointments is that there is simply no reason for such delays to occur in the first place, more so when the president has limited discretion on appointments. In the case of Maya, she was the sole candidate interviewed for deputy chief justice, and presumably because it was the president who nominated her, it should have been easy for him to sign her appointment certificate within days of the JSC interview.

When we saw similar delays in the appointment of the chief justice earlier this year, Judges Matter pointed out that it took only four days between chief justice Mogoeng Mogoeng’s interview and his appointment. Ramaphosa took over a month to appoint Raymond Zondo as his successor.

Undermining the judiciary

In other countries, we have seen that one of the ways politicians undermine the judiciary is to delay the confirmation of judicial appointments and not communicating it publicly. In Kenya, President Uhuru Kenyatta simply refused to confirm an appointment of an outspoken judge who was recommended by that country’s JSC, but also didn’t say he wouldn’t, leaving the judge in limbo.

In India, the president has racked up a backlog of 353 judges (out of 1,098 posts, nearly a third) he hasn’t confirmed. Because a judicial appointment is not necessarily linked to a vacancy in India, there are suspicions that he is manipulating this situation to confirm only the most pliant judges (or at least those sympathetic to the governing party).

SA has not reached this stage, not by a long shot. But it does signal a crucial need for Ramaphosa to act more quickly to confirm judicial appointments and communicate them publicly without delay. There is also a duty for business, civil society and other social actors to remain vigilant in monitoring how the president executes this important constitutional duty.

The constitution says the president must fulfil all his constitutional duties without unreasonable delay. By being slow to act, Ramaphosa is skating dangerously close to constitutional delinquency.

• Benjamin is a research and advocacy officer at Judges Matter, a civil society organisation that monitors judicial appointments.