President Cyril Ramaphosa has defended his 2022 decision to appoint Raymond Zondo as Chief Justice despite him securing the least number of votes during the Judicial Service Commission (JSC) interview process.

Ramaphosa has responded in an affidavit to a case brought by former president Jacob Zuma in the Gauteng Division of the  High Court in Pretoria, challenging Zondo’s appointment as Chief Justice.

A letter accompanying Ramaphosa’s affidavit reveals that the majority of the JSC members felt Zondo should not be chosen to lead the judiciary, saying he “was found to lack the requisite administrative skills for a Chief Justice” despite having held previous leadership positions. 

The JSC instead recommended Supreme Court of Appeal President, Judge Mandisa Maya.

Ramaphosa has defended his decision, calling Zuma’s case “fundamentally misconceived”.

In addition to challenging the appointment, Zuma has challenged the process used by Ramaphosa.

In September 2021, the President created an advisory panel to shortlist candidates for the Chief Justice vacancy. The panel considered the credentials of several candidates nominated by members of law bodies and members of the public before recommending four candidates – then Deputy Chief Justice Raymond Zondo, Supreme Court of Appeal Judge President Mandisa Maya, Gauteng Judge President Dunstan Mlambo and Constitutional Court Justice Mbuyiseli Madlanga.

The four shortlisted candidates were interviewed by the Judicial Service Commission and ultimately Ramaphosa chose Zondo. Maya was later appointed as Deputy Chief Justice. 

Read more in Daily Maverick: JSC ends shocking week of Chief Justice interviews with marathon Zondo grilling

Zondo vs Maya

Zuma argues that Ramaphosa should not have chosen Zondo after the JSC had recommended Maya as the preferred candidate. 

Ramaphosa attached a letter to his affidavit in which the JSC explained the process it undertook, the overall impressions of the judges, and how they scored in a vote.

The JSC is comprised of the Chief Justice, the President of the Supreme Court of Appeal (SCA), the Minister of Justice, a Judge President, two practising advocates, two practising attorneys, one law teacher, 10 members of Parliament chosen by the National Assembly and National Council of Provinces, and four people designated by the President after consulting with other political party leaders.

Read more in Daily Maverick: Zuma’s bid to set aside Raymond Zondo’s appointment as Chief Justice is a legal nonsense

Since Zondo was the Acting Chief Justice and Maya the President of the SCA at the time of the interview, the Deputy President of the Supreme Court of Appeal, Judge Xola Petse, chaired the interview process.

“After the conclusion of the deliberations, and pursuant to section 178 (6) of the Constitution, a vote was conducted by secret ballot which confirmed that President Maya had the majority support of the members of the commission,” Petse wrote.

“For the sake of completeness, I record that President Maya polled the highest number of votes, 19 in all, followed by Judge President Mlambo with seven, Justice Madlanga with five and Acting Chief Justice Zondo with three. 

“As a result, the JSC has, by majority decision, decided that His Excellency the President should consider appointing President Maya as the next Chief Justice of the Republic of South Africa.” 

Petse also noted that Maya “performed exceedingly well during her interview and presented an excellent vision for the judiciary which the JSC considered to be thoughtful”.

“She was found to be a well-rounded and intellectual leader, an administrator par excellence who has achieved the milestones that she had set for herself when she was interviewed by the JSC in 2017 for the position of President of the Supreme Court of Appeal. 

“Her leadership in the SCA since her appointment as a President of that court can only be described as unequalled given the myriad of challenges that confronted her when she took over,” Petse said.

Read more in Daily Maverick: Judge Mandisa Maya set to be SA’s next Chief Justice

Maya, who was 58 years old at the time of her interview, would have been eligible to serve the full 12-year term as Chief Justice if she had been appointed.

The JSC was concerned that Zondo, who was 62 at the time, would serve only two-and-a-half years as Chief Justice as he was appointed to the Constitutional Court in 2012.

Section 176 of the Constitution provides that a Constitutional Court judge serves a non-renewable 12-year term or can serve until they are 70 years old, whichever comes first.

“He did not fare well in the interview, as was to be expected from someone who has been the second most senior member of the Judiciary since 2017. Most of the members of the Commission considered that he had no vision for the judiciary to speak of.

“Although he had been in leadership positions, both as the Judge President of the Labour and Labour Appeal Courts and Acting Chief Justice on several occasions, he was found to lack the requisite administrative skills required for a Chief Justice,” Petse said.

“The commission was also concerned about Zondo becoming ‘embroiled in endless litigation’ emanating from his reports in the Commission of Inquiry into State Capture.”

Despite these comments, Ramaphosa told the court that he was empowered to make his own decisions.

“While I could not disregard the views put forward by the JSC, I had to weigh up the information provided by the JSC, the report of the nominations panel, and inputs by parties in the National Assembly, to arrive at my final decision,” he said in an affidavit.

“The JSC expressed a preference that I appoint Justice Maya as Chief Justice. The preference of the leaders of political parties in the National Assembly was varied. (Zondo) turned out to be either the preferred choice or one of the choices, for many of the leaders of political parties.”

Ramaphosa said the JSC was not required to rank the candidates.

“My duty was to consult with the JSC. This, I did. The fact that the JSC decided of its own accord to provide me with a ranked list of candidates does not mean that I was obliged to follow its preferences,” Ramaphosa said.

He said that at the time of the interviews, Zondo was the second most senior judge in the country. Ramaphosa adopted the view that the appointment would be a “natural succession from his then position and continuity of his leadership role”.

Ramaphosa said the fact that Zondo would only have two-and-a-half years in office “did not serve as an impediment” and pointed out that Zuma had appointed Chief Justice Sandile Ngcobo under similar circumstances.

“At the time of his appointment, Justice Ngcobo had a period of approximately two years to serve until his tenure would expire,” he said.

Challenge to process

Zuma’s challenge also calls into question Ramaphosa’s decision to appoint a nominations panel. He argues that the creation of the panel violates section 174 (3) of the Constitution.

The section states that “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.”

“The nominations panel has no constitutional or legislative status in section 174)3) of the Constitution. The members of the nominations panel are not empowered by the Constitution or any other statute to perform any of the functions that the President appointed them to perform,” Zuma said in his founding affidavit.

However, Ramaphosa has criticised the timing and contents of Zuma’s legal challenge.

In his affidavit, Ramaphosa said the panel was appointed in September 2021 and Zondo was appointed on 11 March 2022. He argued that challenges to an administrative decision done in terms of the Promotion of Administrative Justice Act should be done within 180 days (six months) of the decision and any delay needed to be condoned by the court.

“I accept that this is a serious matter with profound constitutional implications. This, however, is precisely why this application ought to have been promptly instituted. Far from justifying the delay, it serves to demonstrate why the delay should not be overlooked,” Ramaphosa said.

Ramaphosa also pointed out that the nominations panel had no final decision-making powers and said it did not “usurp” any powers belonging to the JSC.

The legal challenge comes as Zondo’s term draws to a close. He is expected to retire in August and will continue to receive his salary and benefits at the level of Chief Justice unless his appointment is successfully challenged.

The Chief Justice’s remuneration is currently set at R3-million while the Deputy Chief Justice is paid R2.76-million annually. 

Ramaphosa has nominated Maya as his only candidate for Chief Justice this time around, and the JSC is expected to hold another public interview before providing feedback.

Zondo is listed as a respondent in Zuma’s case but has yet to file a response to the court, which, in turn, has yet to confirm a hearing date. DM